Sep 20, 2014
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June 2014 Archive for Labor Matters

RSS By: Dairy Today: Labor Matters, Dairy Today

Experts cover today’s key dairy labor issues and offer fool-proof techniques to optimize employee performance, sat­isfaction and longevity.

Dairy Lawsuits Rise Again

Jun 30, 2014

Protect yourself against the spike in legal claims, especially these three litigation areas.

Anthony Raimondo 2010 06 photo

By Anthony P. Raimondo, attorney

As the industry faced economic crisis through low milk prices and high feed costs, the rush of legal claims against California dairies began to subside as plaintiffs’ attorneys faced difficulty collecting settlements or judgments against financially strapped dairy producers.

However, as the economics of the industry have improved, the attorneys are returning as well, and a new rush of lawsuits has arisen against California dairies. Dairies nationwide should be alert to these trends, as the nation often follows what happens in the West.

The types of claims faced by dairies include the following:

  • Wage and Hour: While federal law provides only for minimum wage for agricultural workers, such as dairy employees, many state laws impose overtime and other obligations on employers. Producers should be aware of their state’s minimum wage and overtime requirements, as well as pitfalls that can lead to liability. For example, in California, employers can credit the value of housing towards minimum wage, but only if there is a written agreement where the employee agrees to the amount of the credit. In addition, while federal laws allow for salaries that cover both regular and overtime hours, states such as California make it very difficult to defend against overtime claims from salaried dairy employees. Producers need to be aware of the wage and hour and recordkeeping requirements for their particular state.
  • Discrimination/Harassment: Dairies have seen a spike in cases alleging discrimination or harassment, often on the basis of race or national origin. Federal agencies are increasingly aggressive about claims of sexual origin or gender identity discrimination, and producers should take care to avoid such claims. Dairies should be alert to prevent teasing or other behavior that can lead to claims of discrimination or harassment. Maintaining written records of discipline and performance can also help defend against claims of discrimination. Producers should be alert to employees who are on extended workers’ compensation leave who then make claims of disability discrimination. Employers must remember that they have an obligation to engage in an interactive process with injured employees to determine what, if any, accommodation is needed to return to work, and whether that accommodation is reasonable or presents an undue hardship to the ranch.
  • Pension Withdrawal Liability: Many dairies were unionized at one time, and have moved or otherwise left the union behind. The law broadly protects financially strapped pension plans, and can impose liability on participating employers to make up the plan’s shortfall when the employer withdraws from participation. Dairies should seek legal advice if they plan to withdraw or have already withdrawn from a multi-employer pension trust, as the exposure to liability can be significant.

Sadly, as the economics of the industry improve, farmers and other employers must be cautious that the improved conditions also attract attorneys who will target farmers in attempts to divert the flow of income away from the ranch and toward the attorneys. Producers must be proactive to educate themselves and protect against this threat.

The goal of this article is to provide employers with current labor and employment law information. The contents should not be interpreted or construed as legal advice or opinion. For individual responses to questions or concerns regarding any given situation, the reader should consult with Anthony Raimondo at Raimondo & Associates in Fresno, at (559) 432-3000.

Become a SAFER Farm

Jun 12, 2014

As dairy farms grow in size and the number of workers (family and non-family) increases, providing a safe working environment becomes more important.

By Chuck Schwartau, Regional Director, University of Minnesota Extension

As dairy farms grow in size and the number of workers (family and non-family) increases, providing a safe working environment becomes more important.

An Australian program, "The People in Dairy" suggests "SAFER" Principles for farm safety.

See - identify hazards to health and safety on the farm
Assess - decide the risk associated with the hazard
Fix - take appropriate action to control the risk
Evaluate - check to be sure your controls are effective
Record - record actions you take or plan

Seeing hazards is a job in which everyone on the farm must participate. Encourage everyone to be watching for hazards on the farm. Make it easy for workers to report and record hazards as they are seen so someone can Assess them promptly.

An assessment should be conducted to establish the severity of the hazard and determine appropriate action steps -- the Fix...

Action steps don’t always mean expensive fixes or changes. High risk hazards should be eliminated if at all possible, but many hazards can be more simply addressed:

1. Eliminate the hazard when possible. This might mean replacing a product or piece of equipment or totally eliminating it from the farm.

2. Substitution is another option. You might be able to replace the hazard with equipment or a procedure that is less hazardous.

3. Engineering might minimize the hazard. Installation of guards, railings, safety switches or building proper storage units often eliminates or minimizes the hazard.

4. Safe work practices and procedural changes may minimize the risk to workers. A set of well written standard operating procedures (SOP’s) should include practices that avoid or minimize risks.

5. Don’t forget personal protective equipment (PPE). After everything else is done and there is still some degree of hazard, provide proper PPE for workers and insist it be used as it is intended. PPE’s on a shelf, in a cupboard or hanging on a hook are no protection.

Evaluate is the fourth stage of the SAFER program. Check the impact of the Fix that was implemented. It is important for employers to check back and be sure the steps taken have achieved the desired outcome. Did hazard elimination or guarding get done? Were Stand Operating Procedures (SOPs) developed and are they being followed to eliminate or minimize the hazard? Is PPE being used all the time? If any of these questions leave doubt that the hazard has been fully addressed, you know your job of providing a safe workplace isn’t quite done and you need to look again at the action step.

Record all the actions you take or plan to take. This will provide the documentation that would probably be requested if your farm is ever the subject of an OSHA audit.

The most important factor to achieve success is the people on the farm. If the people aren’t willing to work with you on safety, a good safety program will be difficult to implement. If the workers are engaged in the plan development, they are much more likely to implement it.

Suggested steps to worker engagement are:

  • Work with the workers to identify hazards and have them help with assessment.
  • Regularly include health and safety discussions in staff meetings.
  • Record workers’ input and actions taken on any safety items. This step will help demonstrate your effort to comply with regulations.

Be a good role model for your workers. Be sure to practice good safety yourself in everything you do on the farm.

I very deliberately used the term "workers" rather than "employees" because it includes all owners and managers on the farm, as well as non-family employees. A culture of safety on the dairy means everyone needs to take the issue seriously and practice safety all the time. If you don’t work safely all the time, why should anyone else?

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