Sep 18, 2014
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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.

Employers Need to Walk the Talk

Aug 29, 2014

Employers and supervisors who want their employees to act professionally should set the example by acting professionally themselves.

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By Robin Paggi, Worklogic HR

Did your parents ever tell you not to smoke while a cigarette dangled from their lips? Or, tell you not to curse when they had a potty mouth? If so, you know that the "Do as I say and not as I do" philosophy is not an effective parenting technique. A recent administrative hearing demonstrated that it’s not an effective technique for employers or supervisors either.

The administrative hearing occurred after Wellma "Tootie" Shafer was terminated from her job as a cashier at the Last Chance Market in Russell, Iowa. Shafer’s boss, Rick Braaksma, challenged her attempt to obtain unemployment benefits and both presented their cases before an administrative law judge.

According to numerous news sources, Braaksma argued that Shafer was terminated for misconduct because of an inappropriate discussion she had with a customer. "They were standing at the cash register talking about dirty, adult situations. I told (Shafer) we do not run our store like that. We cannot stand there and talk about adult situations in front of other customers," he was quoted as saying in the article, "Judge: Talking dirty not reason enough to lose job" on www.usatoday.com.

Shafer said no such conversation took place, but even if it did, profanity and off-color humor were part of the scene at the market. For example, the labels of some products sold at the store included profanity and depictions of female body parts (like "Wake The F Up" coffee and "The Hottest F---in’ Sauce" hot sauce).

In response to Braaksma’s argument that he didn’t tolerate dirty jokes in his store, the administrative judge asked, "So why don’t you remove these articles from your shelves?"

Braaksma: "Because we sell them."

Judge: "They are dirty jokes on your shelves, basically."

Braaksma: "No, they’re bottles of hot sauce. It’s all right to have dirty words on the premises because the farmers come in there and eat lunch all the time and that’s just, uh, kind of…"

Judge: "So dirty words are OK."

Braaksma: "Yeah, but there’s a time and a place for it."

So, Braaksma fired Shafter for talking dirty, but he allowed products with dirty words on them in his store. In other words, do as I say and not as I do.

The judge gave Shafer her unemployment benefits, noting that she had not been warned about her performance before being terminated. While at-will employers are not required to provide warnings, this case (among many others) demonstrates that it’s a good idea to do so.

It also demonstrates that employers and supervisors with the "Do as I say and not as I do" philosophy will have a very difficult time defending themselves for terminating employees who are simply emulating their behavior. Additionally, and probably more importantly, they will have a very difficult time getting employees to respect them and perform well.

One of the most basic principles of leadership is to lead by example. Employees are a lot like children in that they watch people in positions of authority and take their cue from them.

So, employers and supervisors who want their employees to act professionally should set the example by acting professionally themselves. Those who want their employees to work safely should always work safely. Those who want their employees to show up on time, cut costs, work efficiently, etc. should do all of those things themselves.

Employers and supervisors must walk the talk if they want their employees to do what they tell them to do. Because the "Do as I say and not as I do" philosophy doesn’t get it done.

Robin Paggi is the training coordinator at Worklogic HR, a human resources outsourcing company. In addition to conducting workshops on HR issues, she is a frequent presenter at conferences and a regular contributor to The Bakersfield Californian, The Kern Business Journal and Bakersfield Magazine. Contact her at rpaggi@worklogiclegal.com.
 

A New Pressure on Employers from Feds: I-9 Discrimination

Aug 25, 2014

U.S. Department of Justice is increasingly scrutinizing employer I-9 practices for discrimination against immigrant workers.

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By Anthony P. Raimondo, attorney

Agricultural employers continue to struggle with compliance under a hopelessly broken immigration system that criminalizes employers for hiring the workers who are available and willing to work, and criminalizes immigrant employees who just want to work and try to make a better life for their families.

As Congress continues to fail to act on immigration, the pressure on both employers and employees in agriculture continues to grow. Now, a new pressure has been added.

The U.S. Department of Justice is increasingly scrutinizing employer I-9 practices for discrimination against immigrant workers. Conduct such as failing to provide the I-9 instructions with the form, specifying which documents are needed (i.e., "bring your drivers’ license and Social Security Card"), or requesting more documents than required (i.e. a Permanent Resident Alien Card and a Social Security Card) can lead to allegations of discrimination.

When completing an I-9, employees are entitled to choose to present any one document from List A, or any List B document and any List C document. An employer may not refuse to accept documents that reasonably appear genuine on their face and then request other documents from the employee. It is very common for employers to take a Permanent Resident Alien card (List A) and also take a Social Security Card (List C). If a List A document is provided, no further documents are necessary.

It appears that the federal government may be taking a greater interest in document abuse and immigration discrimination cases. In April 2014, a Dallas-area concrete company agreed to pay $115,000 in civil penalties, undergo training on the anti-discrimination provisions of immigration law, revise its internal policies, and be subject to government oversight for one year to resolve a federal government investigation. The investigation started because of a referral from the U.S. Citizenship and Immigration Services (USCIS), likely because of information uncovered in an I-9 audit. The government concluded that the company subjected non-citizen new hires to unlawful demands for specific documentation, while U.S. citizens were permitted to present their choice of documentation. The employer also selectively utilized E-Verify to confirm the employment eligibility of individuals they knew or believed to be non-U.S. citizens or foreign born.

"Employers cannot create discriminatory hurdles for work-authorized non-U.S. citizens or naturalized citizens in the employment eligibility verification process, which includes the E-Verify program," said Acting Assistant Attorney General Jocelyn Samuels for the Civil Rights Division. "The Department of Justice is committed to protecting U.S. citizens and all work-authorized immigrants from document abuse."

In June, the Department of Justice negotiated a settlement with a Colorado janitorial company that resolved claims of immigration related discrimination. Specifically, the company required more documentation from non-citizens than was required of citizens. The settlement included payment of more than $50,000 in civil penalties and $25,000 back pay to compensate individuals who may have lost wages due to the discriminatory practices. The government also demanded the right to monitor the business’s employment eligibility verification process for one year.

Of greatest concern, the DOJ found in a separate investigation that a nursing home engaged in document abuse because required lawful permanent resident aliens to present a new green card after the old one expired, even though such reverification is unlawful.

Permanent residents have permanent work authorization in the United States that does not expire when the cards expire, much like a citizen’s work authorization does not lapse when a passport expires. While a permanent resident alien card must be valid at the time of hire, the form does not needed to be updated when the card expires. The nursing home also required permanent residents to produce proof of citizenship if they became naturalized citizens, even though this practice is prohibited by law. The case was settled for $14,500 in civil penalties, training on the anti-discrimination provision of the INA, establishment of a back pay fund, and two years of government oversight.

Employers must be sure to understand how the I-9 works, what documents are required (and what are not), and should make sure that employees processing new hires are properly trained. A great resource is the USCIS "I-9 Handbook for Employers" (Form M-274), available at www.uscis.gov Employers must be careful not to specify what documents are needed, and must be careful not to re-verify documents that do not require re-verification.

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.

What Could Obama Do?

Aug 21, 2014

With Congress stalemated on immigration legislation and little reason to expect a good legislative window before 2017, all eyes are on the President.

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By Craig J. Regelbrugge, National Co-chairman, Agriculture Coalition for Immigration Reform

With Congress stalemated on immigration legislation and little reason to expect a good legislative window before 2017, all eyes are on the President. He and his spokespeople have said that he intends to do what he can, "within the law," to improve the situation. Various industries are engaging in various ways, and many legal experts believe he could do quite a few things, each with its own attendant risks and benefits.

Agricultural employers of all types and political stripes have a lot of skin in this game. After all, a majority of the labor force is believed to have papers that wouldn’t stand up to a forensic investigation. But they’re the only ones applying for the work. The existing visa program, H-2A, is an unresponsive and bureaucratic mess. Some industries, like dairy, are virtually excluded from using it anyway, because neither the work nor the workers fit the definitions of temporary or seasonal. Without a doubt, we need legislation to fix the myriad shortcomings of the current system. But perhaps more limited measures could help. What’s possible?

First, without any fanfare, the Administration could shift enforcement priorities to stuff that really matters. At a time when all eyes should be on smugglers and cartels, we’ve seen considerable resources wasted on harassing farmers and their workforce, which was hired after showing papers that appear genuine, the legal standard. Homeland Security officials should only be auditing farms when there’s evidence of criminal wrongdoing, not randomly or on the basis of shadowy, anonymous tips from a disgruntled competitor, worker or neighbor.

Secondly, the Administration could provide some relief from deportation for some of the workforce. The default position is said to be to expand the Deferred Action for Childhood Arrivals (DACA) policy to unauthorized immigrants who have been here for a long time (maybe 10 years or more) or have U.S. citizen children. Such expansions might affect a considerable number of farm workers. The carrot would be legal authorization to work, but there would be no particular incentive to remain in agriculture. How many would take the risk of coming forward and essentially putting themselves on a deportation list? Would they stay on the farm or leave?

Farm worker advocates would like to see such policies extended to all experienced farm workers. After all, we’ve got a labor shortage now, and anything that stabilizes the workforce might help. Some legal analysts believe a better approach than deferred action to address this issue would be the use of "parole authority," an option that essentially allows for the waiving of normal immigration rules for specific individuals when it is deemed to be strongly in the public interest.

The other obvious area for possible action would be to improve the existing visa programs, in agriculture’s case, H-2A. Technically, it’s possible. Most of the cumbersome and unrealistic rules and restrictions of the current program are regulatory in nature, not in statutes passed by Congress. So the Administration could engage in a systematic rulemaking effort to achieve many of the goals of the bipartisan agricultural stakeholder agreement that became part of S.744, the comprehensive immigration bill that passed the U.S. Senate in June, 2013.

But despite strong support from many in Congress, including more than a few Senate Democrats, no one is expecting serious effort in this area. After all, Obama will likely listen to labor unions and worker advocates, and they have little interest in improving the visa program to admit more workers in the future.

Action of some sort is expected as early as September. It remains to be seen what the President will do, and whether it will be done in one step or several. But with House Republicans pretty much immobilized, it might be the only action we see for a while. Let’s hope it does more good than harm!

Based in Washington, D.C., Craig Regelbrugge is co-chairman of the Agriculture Coalition for Immigration Reform, and vice president for government relations with the American Nursery and Landscape Association. Contact him at cregelbrugge@anla.org or at 202-434-8685.

Which Robotic Milking Traffic System Is the Best?

Jul 21, 2014

How to decide whether the "free flow" or "guided flow" method is right for your dairy.

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By Greg Larson, MIone multi-box robotic milking system expert with GEA Farm Technologies

Of the many decisions that must be made when converting to a robotic milking system, choosing a cow traffic flow method will be one of the biggest decisions made.

There are two basic approaches to cow traffic in robotic milking systems – "free flow" or "guided flow." Both can work extremely well. As evidence, there are herds in the United States achieving production of 90 pounds per cow per day using each of these systems.

The choice between the two is a matter of herd goals and priorities; facility accommodations; and cost considerations.

Free flow promotes cow choice

As the name implies, free-flow traffic systems allow cows to operate on their own instincts. They choose how often they visit the robot, visit the feed bunk and rest in the free stalls. As a result, the cows usually eat smaller, more frequent meals, which can promote rumen health and a stable energy-balance. Ample resting time and low stress promote healthy feet and legs and a strong immune system.

Free-flow systems also have the lowest cost in the start-up phase because they require the least amount of sorting gates and other equipment. Most retrofitted barns are a free-flow system because it is the most practical to install in existing facilities.

The major drawback to a free-flow system is that you will spend more time "fetching" cows that do not visit the robot often enough. Feeding a high-cost feed concentrate in the robot and more pounds of concentrate per milking is necessary to entice cows to visit. Nutritional balancing also is more challenging, because the higher level of concentrate feeding results in the need to manage a "partial mixed ration" (PMR) at the bunk, versus a more traditional TMR system that dairyman are comfortable balancing.

"Milk-first" adds precision

Most herds using a guided-flow system take a "milk-first, feed-second" approach. Via a system of selection gates, cows are guided up to the robot for milking on a priority basis, ensuring that they are milked at regular intervals, up to four times per day. They then are released to the feeding area after milking.

Because the enticement of feed is not needed to attract cows to the robot, "milk-first" cows consume at least 40 percent less concentrate per day than cows in free-flow systems. This represents considerable savings in purchased feed costs. Guided traffic also allows for more customized feeding groups. After milking, cows can be sorted into different feeding zones based on production level, parity, stage of lactation or other desired criteria. Herds with milk-first barns typically utilize a post-selection system for management and veterinary actions and post-fresh cows.

Rations are formulated for milk-first barns mirror traditional TMR standards. Less purchased concentrate feed also allows producers to maximize their use of home-grown forages for maximum robotic profitability.

The milk-first approach also reduces the labor required to fetch cows that do not visit the robot frequently enough. The milking system also does not tie up cows that visit too frequently and must be refused. However, more timid and subservient cows may not fare as well in a guided system, and cows may spend more time standing in holding pens waiting to be milked.

Weigh your options

To identify the traffic system that will best suit your business model, it is important to identify your goals and priorities, for your dairy enterprise, your personal life and the future. Think about why you are adopting the technology, and what you hope to accomplish with it. You will have more flexibility in your options if you are building a new facility. At the same time, you need to choose your traffic system in advance, because details like barn design, ventilation and manure handling vary significantly between the two systems.

You should visit many other dairies using robotic milking systems as you develop your own plan. Allow for at least 12 months of research before finalizing your robotic milking decisions. And, of utmost importance, be sure to include options in your site plan to accommodate future expansions and the next generations.

For more information, contact Greg Larson, MIone multi-box robotic milking system expert with GEA Farm Technologies at (877) 973-2479, email: MIone.na@gea.com, or go to: http://www.gea-farmtechnologies.com.

 

Dairy Lawsuits Rise Again

Jun 30, 2014

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

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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.

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