The author is a freelance writer and dairy farmer from Wisconsin.

FARM owners need to be aware of the legal side of hiring and retaining good employees and handling underperforming employees. In an episode of the Workable Workforce Series on the “Dairy Stream Podcast,” hosted by the Dairy Business Association and Edge Dairy Farmer Cooperative, Troy Thompson, an employment law attorney at Axley Brynelson Law Firm, covered legal aspects of human resources on farms.

Thompson listed four types of employment policies a farm should have in place:

  1. Policies required by law, such as equal opportunity policies, anti-discrimination policies, and safety policies.

  2. Policies that put in place an early defense to the most common employment claim, such as wage per hour policies.

  3. Policies that advance employers’ rights and interests, like confidentiality and nondisclosure agreements.

  4. Policies that are critical to the employer’s mission; guiding principles and key standard operating procedures (SOPs) are examples.

Thompson emphasized that these policies need to be in an employee handbook and used in practice.

There are state and federal laws that require posting certain policies in a prominent location. Wage and hour and Family and Medical Leave of Absence (FMLA) policies are examples of these. Equally as important is to walk new employees through the farm policies at the time of hire. Thompson added it is also important to have your employee handbook translated into their primary language so they can utilize it.

Lead by example

“Leaders have to set and be the standard at all working times, especially in times of disagreement,” said Thompson. When managers and supervisors lead by example, their team will follow and be successful.

Farms need to commit to a systematic, process-oriented approach to human resources (HR). Every employee needs the same onboarding and overview of farm policies to gain an understanding of how and why policies are set in place.

Thompson also discussed four main HR mistakes he sees. The first is not training managers and supervisors on their legal duties to act. Under federal, state, and local fair employment laws, managers and supervisors have a special duty to help their employer prevent unlawful discrimination, harassment, and retaliation in the workplace. They also have a responsibility to help an employer conduct an investigation on any report of harassment or discrimination, even if the employer knows that it isn’t unlawful.

Another misstep is discounting the value of strategic HR and failing to give HR a seat at the management table. Farms today operate in an increasingly regulated world, and they need the ability to lawfully navigate employment, immigration, safety, and tax rules to have long-term success.

Not committing to the professional development of employees is another problem Thompson sees. In a stressed labor market, employees need to feel like they have a future for professional development on the farm and that the employer cares about their interests.

Finally, Thompson said businesses fail to develop a safety and health program. Thompson mentioned, “As an employer, we all have a special duty to make sure the employee gets home in one piece every day.”

Many incidents on farms can be preventable and may trace back to a failure of training or supervising employees to ensure they are working safely. Farms can lean on safety professionals through insurance agents or state safety and health programs to help with training.

Hiring foreign labor

Thompson mentioned two ways farms can stay organized when hiring foreign labor. First, every hire needs to complete an I-9. Under federal law, an employer is not authorized to employ an individual that is not work authorized in the United States. Second, communicate policies and safety requirements to employees so they have the information they need to be successful in your organization. The government is concerned about employers taking advantage of vulnerable populations. Being a good employer who shows care for their employees protects against this.

Employers need to give seasonal workers the same onboarding and training as full-time employees. Thompson also stressed that strict child labor laws exist, and farms need to make sure family members of seasonal workers aren’t helping and working off the clock.

Dealing with claims

For farms to avoid employment discrimination, harassment, and retaliation claims, Thompson had two main suggestions. The first was that employers must comply with their obligations under law. For example, good equal opportunity employment and anti-discrimination policies need to be communicated clearly to employees.

The second is periodic written coaching so an employee can’t claim that something never happened. Regular coaching emphasizes the importance of farm policies and makes employees accept responsibility later.

If a claim occurs, documentation provides a heightened warning to an employee that things are getting serious, provides the employee with the opportunity to review written expectations, and eliminates the chance of credibility disputes.

“Our job as an employer is to lock in place what the facts are so that the agency or court only has to say, ‘here are the facts and here is how the law applies,’” said Thompson.

The Occupational Safety and Health Administration (OSHA) requires that certain injuries and incidents, such as death or inpatient care, are reported in a specific time frame. Employers are also required to report alleged injuries or occupational diseases to workers compensation insurers in a timely manner once they become aware of them. That insurer will then investigate defenses to the claim and push the employee to return to work as soon as possible with light duty. The sooner they can get back to work, the more likely they are to have a long and successful return to the farm.

Under the Americans with Disabilities Act (ADA), federal and most state laws require that the employer participates in an ongoing interactive process to explore reasonable accommodations for an employee who needs time off for medical reasons. Many times, a temporary leave of absence is a reasonable accommodation when this occurs.

Handling difficult situations

One strategy to not lose members of a farm’s workforce but correct underperformance is to apply a formal performance management approach. Thompson said giving people a chance to be successful through good communication can help correct an underperforming employee. It is important to document the communication you provided in the case that employee ends up being let go and the termination is brought to a court.

Thompson explained the importance of first keeping in mind that if you terminate an employee professionally and have always treated that employee respectfully and communicated clearly, they are more likely to accept responsibility. If the termination catches them by surprise, it is more likely to lead to a claim.

In most cases, the employee is deemed eligible for unemployment benefits unless the employer can provide strong evidence of misconduct. Employers need to show that, if a rule was broken, they effectively communicated to the employee that they broke the rule and a fair investigation was conducted.

Managing a team can be a rewarding but challenging job. Now may be the time to review your employee handbook and ensure that your HR items are organized and following local, state, and federal laws. This can help both your farm’s managers and employees be more successful.

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