Category Archives: Labor

Ohio Ag Law Blog–The Ag Law Harvest

Written by: Ellen Essman and Peggy Hall

October is almost over, and while farmers have thankfully been busy with harvest, we’ve been busy harvesting the world of ag law.  From meat labeling to RFS rules to backyard chickens and H-2A labor certification, here’s our latest gathering of agricultural law news you may want to know:

Federal judge upholds Missouri’s meat labeling law—for now.  Missouri passed a law in 2018, which among other things, prohibited representing a product as “meat” if it is not derived from livestock or poultry.  As you can imagine, with the recent popularity of plant-based meat products, this law is controversial, and eventually led to a lawsuit.  However, U.S. District Judge Fernando Gaitan Jr. decided not issue a preliminary injunction that would stop the Missouri Department of Agriculture from carrying out the labeling law.  He reasoned that since companies like Tofurky, who brought the suit, label their products as plant-based or lab-grown, the law does not harm them.  In other words, since Tofurky and other companies are not violating the law, it doesn’t make sense to stop enforcement on their account. Tofurky, the American Civil Liberties Union, and the good Food Institute have appealed Judge Gaitan’s decision, asserting that Missouri’s law infringes upon their right to free speech.  This means that the Missouri law can be enforced at the moment, but the decision is not final, as more litigation is yet to come.

Oregon goes for cage-free egg law.   In August, Oregon passed a new law that would require egg-laying chickens, turkeys, ducks, geese, or guinea fowl to be kept in a “cage-free housing system.” This law will apply to all commercial farms with more than 3,000 laying hens.  A cage-free housing system must have both indoor and outdoor areas, allow the hens to roam unrestricted, and must have enrichments such as scratch areas, perches, nest boxes and dust bathing areas.  As of January 1, 2024, all eggs sold in the state of Oregon will have to follow these requirements for hens.  The law does allow hens to be confined in certain situations, like for veterinary purposes or when they are part of a state or county fair exhibition.

City can ban backyard chickens, says court.   The Court of Appeals for Ohio’s Seventh District upheld the city of Columbiana’s ordinances, which ban keeping chickens in a residential district, finding that they were both applicable to the appellant and constitutional. In this case, the appellant was a landowner in Columbiana who lived in an area zoned residential and kept hens in a chicken coop on his property.  The appellant was eventually informed that keeping his hens was in violation of the city code.  A lawsuit resulted when the landowner would not remove his chickens, and the trial court found for the city. The landowner appealed the trial court’s decision, arguing that he did not violate the city ordinances as they were written, and that the city applied the ordinances in an arbitrary and unreasonable way because his chickens did not constitute a nuisance. Although keeping chickens is not explicitly outlawed in Columbiana, the Court of Appeals for Ohio’s Seventh District found that reading the city’s zoning ordinances all together, the “prohibition on agricultural uses within residential districts can be inferred.”  Furthermore, the court pointed out that the city’s code did not ban chickens in the whole city, but instead limited them to agricultural districts, and that the prohibition in residential areas was meant to ensure public health.  For these reasons, the court found that the ordinances were not arbitrarily and unreasonably applied to the appellant, and as a result, the ordinances are constitutional.  To read the decision in its entirety, click here.

EPA proposes controversial Renewable Fuel Standard rule.   On October 15, EPA released a notice of proposed rulemaking, asking for more public comment on the proposed volumes of biofuels to be required under the Renewable Fuel Standard (RFS) program in 2020.  The RFS program “requires a certain volume of renewable fuel to replace the quantity of petroleum-based transportation fuel” and other fuels.  Renewable fuels include biofuels made from crops like corn, soybeans, and sugarcane.  In recent years, the demand for biofuels has dropped as the Trump administration waived required volumes for certain oil refiners.  The administration promised a fix to this in early October, but many agricultural and biofuels groups feel that EPA’s October 15 proposed rule told a different story. Many of these groups are upset by the proposed blending rules, claiming that way the EPA proposes calculate the biofuel volumes would cause the volumes to fall far below what the groups were originally promised by the administration. This ultimately means the demand for biofuels would be less.  On the other hand, the EPA claims that biofuels groups are misreading the rule, and that the calculation will in fact keep biofuel volumes at the level the administration originally promised. The EPA plans to hold a public hearing on October 30, followed by a comment period that ends November 29, 2019.  Hopefully the hearing and comments will help to sort out the disagreement. More information is available here, and a preliminary version of the rule is available here.

New H-2A labor certification rule is in effect.    The U.S. Department of Labor has finalized one of many proposed changes to the H-2A temporary agricultural labor rules.  A new rule addressing labor certification for H-2A became effective on October 21, 2019.  The new rule aims to modernize the labor market test for H-2A labor certification, which determines whether qualified American workers are available to fill temporary agricultural positions and if not, allows an employer to seek temporary migrant workers.   An employer may advertise their H-2A job opportunities on a new version of the Department’s website, SeasonalJobs.dol.gov, now mobile-friendly, centralized and linked to third-party job-search websites.  State Workforce Agencies will also promote awareness of H-2A jobs.  Employers will no longer have to advertise a job in a print newspaper of general circulation in the area of intended employment. For the final rule, visit this link.

And more rules:  National Organic Program rule proposals.  The USDA has also made two proposals regarding organic production rules.  First is a proposed rule to amend the National List of Allowed and Prohibited Substances for organic crops and handling.  The rule would allow blood meal made with sodium citrate to be used as a soil amendment, prohibit the use of natamycin in organic crops, and allow tamarind seed gum to be used as a non-organic ingredient in organic handling if an organic form is not commercially available.  That comment period closes on December 17, 2019.  Also up for consideration is USDA’s request to extend the National Organic Program’s information collection reporting and recordkeeping requirements, which are due to expire on January 31, 2020.  The USDA’s Agricultural Marketing Service specifically invites comments by December 16, 2019 on:  (1) whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency’s estimate of the burden of the proposed collection of information including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.

Great Lakes restoration gets a boost from EPA.  On October 22, 2019, the EPA announced a new action plan under the Great Lakes Restoration Initiative (GLRI).  The plan will be carried out by federal agencies and their partners through fiscal year 2024.  Past GLRI action plans have removed environmental impairments on the lakes and prevented one million pounds of phosphorus from finding its way into the lakes.  The plans are carried out by awarding federal grant money to state and local groups throughout the Great Lakes, who use the money to carry out lake and habitat restoration projects.  Overall, the new plan’s goals are to remove toxic substances from the lakes, improve and delist Areas of Concern in the lakes, control invasive species and prevent new invasive species from entering the lakes, reduce nutrients running off from agriculture and stormwater, protect and restore habitats, and to provide education about the Great Lakes ecosystem.  You can read EPA’s news release on the new plan here, and see the actual plan here. We plan to take a closer look at the plan and determine what it means for Ohio agriculture, so watch for future updates!

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Changes on the Horizon for H-2A Temporary Agricultural Labor Rules

Written by Evin Bachelor, Law Fellow, OSU Extension Agricultural & Resource Law Program

The U.S. Department of Labor (DOL) says that it has found a number of inefficiencies in the H-2A temporary agricultural labor visa program, and the department has a solution: change the program’s rules.  The DOL has proposed a number of administrative rule changes that it believes will make the approval process move along quicker, relieve burdens on U.S. farms, and create a more level playing field with regards to pay.  Before we talk about the rule changes, let’s recap what the H-2A program is.

H-2A is a visa program for seasonal agricultural laborers from other countries.

Labor shortages have plagued farms across the United States for decades.  Congress first created a visa program for non-immigrant labor in the early 1950s, but it wasn’t until 1986 that Congress established the H-2A visa program for temporary agricultural workers.  Under this program, farmers may apply to employ H-2A workers on their farm on a temporary or seasonal basis for up to a year, but may apply to renew the worker’s visa for up to three total years.

In order to hire H-2A workers, an employer must certify in an application to the DOL that there are not enough qualified domestic workers willing and able to perform temporary and seasonal agricultural labor.  In order to prove that there is not enough domestic labor, the farmer must demonstrate an effort to advertise the available work in the local area.

Further, the farmer must demonstrate to the DOL that employing foreign workers will not negatively affect the wages and working conditions of similarly employed U.S. workers.  In other words, a farmer can’t hire foreign labor because it’s cheaper.  A farmer is expected to pay the foreign workers the same as the farmer would pay domestic workers, based upon the higher of the DOL’s Adverse Effect Wage Rate, minimum wage, or prevailing wage.

What does the Department of Labor seek to change?

The DOL proposes to make several changes to the H-2A program’s administrative rules.  Some of these changes update the rules to reflect what is already happening, while some make slight changes to the program’s overall scope.

  • Mandate e-filing.  The DOL currently allows farmers to submit their applications online or in hard copy, but reports that 4/5 of applications are completed online.  A review by the DOL has found that online applications get completed more quickly, have fewer errors, and reduce costs relative to hard copy submissions.  Under the new rule, the DOL would require all applications to be completed online, unless the farmer has a disability or does not have internet access.
  • Allow e-signatures.  The DOL currently requires farmers to sign a hard copy of their applications and either scan the document into the application or mail it.  Under the new rule, the DOL would accept e-signatures as equal to handwritten signatures.
  • Subdivide the adverse effect wage rate based upon specific agricultural occupations.  In the previous section, we noted that the farmer must pay the foreign workers the same as he or she would pay domestic workers.  One way to determine that wage is to use the DOL’s Adverse Effect Wage Rate.  Currently, the DOL has one rate for a state or region based upon the combined numbers for field and livestock workers.  Under the new rule, the DOL would use Farm Labor Survey data to subdivide agricultural occupations in order to ensure that higher paying occupations, such as supervisors of farmworkers and construction laborers on farms, use an Adverse Effect Wage Rate that properly reflects the wages of those higher paying occupations, rather than one general rate for all agricultural workers.
  • Update the methodology for calculating prevailing wage standards.  Another way to calculate the minimum wages of H-2A laborers is to base their pay off of the prevailing wage.  The current method of calculating the prevailing wage, which has not been updated since 1981, requires in-person interviews of employers.  Under the new rule, the DOL would eliminate the in-person requirement and allow states to collect data using more modern methods.
  • Incorporate guidance letters regarding animal shearing, commercial beekeeping, custom combining, and reforestation occupations into formal rules.  When asked for an interpretation of its rules and policies, a federal agency may issue a guidance letter to the person seeking an interpretation.  These guidance letters are not necessarily binding, and have no general application beyond the person seeking the interpretation.  By incorporating the guidance into a formal rule, the interpretation holds the force of law.  The DOL identified these occupations as unique relative to other agricultural occupations, and created a special set of procedures to obtain H-2A laborers to work these types of jobs.
  • Expand the definition of “agriculture” to include reforestation and pine straw activities.  Currently, reforestation and pine straw occupations are only available for H-2B applications, which are for non-agricultural occupations.  Under the new rule, these activities would be eligible for the agricultural based visa.
  • Reduce the time an employer must allow a domestic worker to apply for a job to 30 days.  Currently, the DOL requires a farmer to hire all eligible, willing, and qualified U.S. workers who make themselves available to work until the half way point in the H2-A contract period.  This means that if a farmer has H-2A laborers working under a six-month contract, then the farmer must hire any eligible, willing, and qualified domestic worker during the first three months of the contract.  Under the new rule, the farmer would only have to leave such opportunity open to domestic workers for 30 days.
  • Allow an employer to stagger the entry of H-2A labor.  Sometimes a farmer does not need all of the H-2A labor to arrive at once, but rather needs some to start on one date and then others to start on a different date.  Currently, this would require the farmer to submit an application for each date on which the farmer needs H-2A labor.  Under the new rule, the farmer would be able to submit one application but stagger the start dates of his or her workers over the course of 120 days.  This 120-day clock begins on the day the first H-2A workers enter the U.S.

For more information about the proposed changes, visit the proposed rule’s entry on the Federal Register HERE.

The public may submit comments until September 24, 2019.

As part of the public rulemaking process, the DOL is seeking public input on the proposed rule changes.  Members of the public may submit written comments to the DOL until Tuesday, September 24, 2019.

You may submit a comment online (visit https://www.regulations.gov/) or by mail (send to Adele Gagliardi, Administrator, Office of Policy Development and Research, Employment and Training Administration, U.S. Department of Labor, 200 Constitution Avenue NW, Room N-5641, Washington, DC 20210).  When mailing comments, be sure to include the rule’s Regulatory Information Number (RIN): 1205-AB89.

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Back-to-school means different laws apply to youth farm workers

When kids head back-to-school, it’s time for farmers to do some homework and recall the rules that apply to youth working on farms during the school year.   Once school is in session, Ohio labor laws place restrictions on the times of day and number of hours that youth under the age of 18 can work on a farm.  The laws don’t apply to parents, grandparents, or legal guardians, however.  For other farm employers, be aware that the laws vary according to the age of the minor and some require written parental consent.  Here’s a quick refresher:

16 and 17 year olds

  • Cannot work before 7:00 a.m. on school days, with the exception that they can work starting at 6:00 a.m. if they were not working past 8:00 p.m. the night before.
  • Cannot work after 11:00 p.m. on a school night, which means a night when the minor has school the next day.
  • No daily or weekly limits on the number of hours the youth can work.

14 and 15 year olds

  • Cannot work during school hours while school is in session.
  • Cannot work before 7:00 a.m. or after 7:00 p.m., but can work until 9:00 p.m. from June 1 to September 1 or during any school holiday or break lasting more than 5 weekdays.
  • Cannot work more than 3 hours during a school day or more than 8 hours during a non-school day.
  • Cannot work more than 18 hours in a week while school is in session, unless the job is part of a work education program such as vocational training or work study.

12 and 13 year olds

  • The same time restrictions and daily and weekly hour limits for 14 and 15 year olds (above) apply to 12 and 13 year olds, but there is no exception to the 18 hour weekly limit for vocational training or work study programs.
  • Employer must obtain written parental consent for the youth to be working, unless the youth’s parent or legal guardian also works on the same farm.

Under 12 years old

  • Can only work on a farm where employees are exempt from the federal minimum wage, which includes a farms of an immediate family member or a “small farm” that used fewer than 500 “man days” of agricultural labor in any calendar quarter the preceding year.  A “man day” is a day during which an employee performs agricultural work for at least one hour.
  • Exception to the above:  local youths 10 and 11 may hand harvest short-season crops outside school hours for no more than 8 weeks between June 1 and October 15 if their employers have obtained special waivers from the U.S. Secretary of Labor.
  • The same daily time restrictions and daily and weekly hour limits for 14 and 15 year olds (above) apply to youth under 12 years old, but there is no exception to the 18 hour weekly limit for vocational training or work study programs.
  • Employer must obtain written parental consent for the youth to be working.

The other labor laws that typically apply to youth doing agricultural work on a farm continue to apply throughout the school year.  For example, employers must maintain records for youth employees, provide a written agreement of compensation and a statement of earnings on payday, and a 30 minute rest period if the youth works more than five consecutive hours.  An employer can’t assign any youth under the age of 16 with a “hazardous” job or task unless the youth is 14 or 15 and has a certificate of completion for tractor or machine operation.  Further information about these and other laws that apply to youth under 18 working on a farm is in our new Law Bulletin, Youth Labor on the Farm:  Laws Farmers Need to Know, available here.

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In the news: USDA’s Economic Research Service employees unionize

Written by Evin Bachelor, Law Fellow, OSU Extension Agricultural & Resource Law Program

When you don’t want to move, you don’t want to move.  That’s the message being sent to Secretary Perdue and the leadership of the USDA by employees of the USDA Economic Research Service (ERS), who recently voted to unionize 138 to 4.

ERS produces research on agriculture and rural economies that is used by policymakers in determining where to prioritize federal money, personnel, and attention.  Many universities and agricultural organizations also utilize the data in their own research.  Economists and statisticians make up a large portion of ERS’s staff.

The vote comes after months of tension over the fate of ERS.  USDA leaders have been seriously discussing moving the headquarters of ERS closer to the farms and rural areas that it is charged with researching, and away from D.C.  Recently the USDA announced that locations in Indiana near Purdue University, in Kansas City, and in North Carolina’s Research Triangle Region have been selected as potential relocation sites.  However, many ERS staffers have been vocal about not wanting to move away from D.C., either for personal reasons or to protect the prestige of the office within the USDA.

Further, Secretary Perdue had announced plans last year to place the service directly under the USDA’s chief economist, which would put ERS more directly under the watch of administrators appointed by President Trump.  Some staffers have expressed concerns that such a move could increase the pressure to analyze data in a particular way, and reduce the service’s independence.

According to news interviews, as conversations among the higher level administrators became more serious, many ERS employees felt that they did not have much say in the matter.  This sense of helplessness triggered many employees to want to unionize, while some employees have already left in pursuit of other jobs.

The right of most federal employees to unionize is protected under federal law, but the preliminary vote was not the final stop in the process.  The vote to unionize had to be reviewed by the National Labor Relations Authority, which governs public-sector labor relations.  The American Federation of Government Employees (AFGE) has already begun to represent the roughly 200 workers at ERS.  AFGE represents approximately 700,000 employees of the federal government and of the District of Columbia, with just under half of those members paying dues.  AFGE is affiliated with the AFL-CIO, which is the nation’s largest federation of labor unions.

The formation of a union does not mean that ERS employees will be able to prevent the changes being proposed at the administrative level.  However, it increases the likelihood that ERS employees have a seat at the decision table as a united group.  This desire to have a united front and collectively bargain is one of the traditional purposes of forming a union.

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USDA website revamp helps with H-2A applications and managing loans

Written by Evin Bachelor, Law Fellow, OSU Extension Agricultural & Resource Law Program

The United States Department of Agriculture (USDA) announced last week that farmers.gov will now feature two new tools.  One will help farmers navigate the application process for obtaining temporary agricultural workers under H-2A, and the second will help farmers understand and manage their USDA-backed farm loans.  The press release explained that the USDA values the experience of its customers, and that it developed these tools after hearing feedback on the need for simple, technology based resources to help farmers.  Unveiled in 2018, farmers.gov allows users to apply for USDA programs, process transactions, and manage their accounts.

Customized H-2A checklists based on the needs of an individual farmer

Many farmers need seasonal or temporary workers for planting, cultivating, and harvesting crops.  The seasonal nature of agriculture can make it difficult for farmers to find an adequate supply of domestic labor willing to fill the temporary positions.  To relieve this difficulty, the federal government created the H-2A temporary agricultural worker program to allow these farmers to hire workers from foreign countries to supplement the domestic labor market on a temporary or seasonal basis.  Farmers must demonstrate that there are not enough U.S. workers able, willing, qualified, and available for the temporary work, and that the H-2A workers will not result in reduced wages for other U.S. workers.

Understanding the H-2A process has long been complex and confusing, but a new tool focused on education for smaller producers includes a revamped website and an interactive checklist tool.  The new website explains the basics of the program, includes an interactive checklist tool to create custom checklists, and gives an estimate of the costs of hiring H-2A workers.

The interactive checklist tool is a helpful way for producers to learn about the steps they need to take to obtain the labor that they need.  In the past, websites would rely heavily on producers to sift through information and determine the requirements that they needed to follow.  Now, the interactive tool asks questions one at a time to generate a custom checklist.

When using the tool, producers will first be asked whether this will be their first time hiring workers using the H-2A Visa Program.  If the producer answers yes, they will be asked when they need the labor.  If the producer answers no to the first question, they will be asked whether they are extending the contract of workers that they are currently employing.  Ultimately, the producer will be asked when they need the labor.  At the end of the questions, the tool will provide a checklist that the producer will use to determine what steps he or she needs to take to obtain H-2A labor.  The checklists are designed to be easy to understand and to make the process less confusing.

View information about your USDA-backed farm loan online

The USDA offers farm ownership and operating loans through the Farm Services Agency to family-size farmers and ranchers who cannot obtain commercial credit.  Farmers.gov now allows producers to view information about these USDA-backed farm loans through a secure online account.  Producers can view loan information, history, and payments from a desktop computer, tablet, or smartphone.  Producers will need to sign up for a USDA online account in order to create an account profile with a password.

At this time, the program only allows producers doing business on their own behalf as individuals to view this information through farmers.gov.  Other entities such as LLCs and trusts or producers acting on behalf of another cannot utilize this tool yet, although the USDA indicates that this is planned for in the future.

The USDA’s press release made clear that the addition of these tools represents a step toward providing better customer service and increased transparency.  As only a step, producers can expect more tools and features to be added to farmers.gov in the future.  As this happens, we will be sure to keep you up to date about the website’s new bells and whistles.

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Hiring of foreign agricultural workers is webinar topic for July 25, 2018

The next topic in the Agricultural & Food Law Consortium’s webinar series on July 25, 2018 is “Compliance with DOL and Immigration Laws and Regulations for Agricultural Businesses” featuring attorney Misty Wilson Borkowski of Cross, Gunter, Witherspoon & Galchus, P.C., in Little Rock, Arkansas.  Ms. Borkowski, who dedicates her practice to immigration law, will discuss the latest developments in the laws and regulations that agricultural businesses must comply with when hiring foreign agricultural workers.  The webinar is intended to benefit all involved with the hiring of foreign agricultural workers, including producers, farm labor contractors, and attorneys.

The financial stability of farming operations throughout the United States is heavily dependent on the proper employment of foreign agricultural workers.  Understanding the law and regulations applicable to the hiring of those workers can be a daunting task, even for those operations that regularly use foreign agricultural workers.  For example, U.S. farmers who have H-2A workers or are considering utilizing the H-2A Visas for foreign agriculture workers must comply with U.S. Department of Labor and Immigration laws and regulations with regard to recruitment, hiring, paying, withholding taxes, housing, transportation, and related matters.

The free webinar will take place on Wednesday, July 25, 2018 at Noon EST.  Go to this link for log on information.

OSU’s Agricultural & Resource Law Program is one of four partners in the Agricultural & Food Law Consortium, a national, multi-institutional collaboration designed to enhance and expand the development and delivery of authoritative, timely, and objective agricultural and food law research and information.  The Consortium hosts a series of webinars on timely and important agricultural and food law topics which are freely available to the general public and designed to be appropriate for non-attorneys as well as attorneys. For a listing of upcoming webinars and access to past webinars that have been archived, please click here.

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Employers should use revised Form I-9 for employee verification

Are you using the correct version of the I-9 Form to verify that your new employees are eligible for employment?  Employers  must now use only the revised July 17, 2017 version of Form I-9 for employment eligibility verification for new hires.

The U.S. Citizenship and Immigration Services (USCIS) made a few revisions on the July 17, 2017 version of the I-9 Form.  Employers can now accept an individual’s Consular Report of Birth Abroad (Form FS-240) as an acceptable document for employment authorization under List C.  The instructions for the new form also reflect the name change for the office that enforces anti-discrimination provisions of the Immigration and Nationality Act.  The office is now called the Immigrant and Employee Rights Section, which replaces the previous Office of Special Counsel for Immigration-Related Unfair Employment Practices.

The current I-9 Form is available here.  USCIS provides helpful resources to assist employers with completing the I-9 Form are here.

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