For Lee Jensen of Five Star Dairy LLC, it started the morning of May 12. He was sitting in the farm office preparing for a first-quarter meeting with his lender and consultant, when an unmarked car drove up to the parlor and out climbed five people. They said they were from the Wisconsin Department of Labor – Wage and Hour Division and OSHA (or the Occupational Safety and Health Administration). However, they did not provide any identification. They said they were there to inspect the employee housing and employees’ wage records.

Jensen escorted them back to his office, where he asked for their badges and business cards. After the formalities, the OSHA staff announced they wanted to start walking around and interviewing all of the employees.

“I said, ‘You’re not going to do this. You’re not going to stop people while they are in the middle of milking cows or delivering a calf. You’re not going to wake up people while they are sleeping and put them at risk because they did not get a decent rest. That is not safe.’ ”

They proceeded to ask him a lot of questions about his manure system. There had been a death in the area; a farm employee was scraping manure into a pit and the skid loader fell in, trapping the employee.

At Jensen’s dairy, OSHA wanted to know where they pushed manure into a pit. Jensen had a hard time convincing the authorities that is not the type of system he uses, and they would not find a situation like that at Five Star Dairy.

He explained he had another meeting that morning and asked that they return another time. OSHA said because it was a different type of manure system they were no longer interested, but Wage and Hour would be back.

Jensen contacted his attorney, Chuck Palmer, to learn his rights and understand what he may need to provide when they returned.

On Friday, May 28, he was contacted again and learned two women with Wage and Hour wanted to come back the following Wednesday. He asked about OSHA and was told they were not coming.

At the meeting he would need to provide employee paycheck stubs, time slips and access to the housing offered by the dairy.

At the allotted time, Jensen said he was waiting in his farm office. He waited there one hour before a car pulled up and again five people climbed out, including representatives from OSHA, who were now dressed in labeled jackets.

They said they wanted to walk the farm while Jensen was busy in the office with Wage and Hour. He was able to keep the group together and spent the next three-and-a-half hours being interrogated by five people.

He said they asked a variety of questions including: What wages are paid? How long is the lunch break? How many people work per shift? What are the various job positions and the responsibilities?

What is fed to the animals? Does it come from out of state? What do the trucks haul? Where do they haul it? How are the drivers paid?

“They literally wore me down to a frazzle,” Jensen said.

Then, when Wage and Hour asked to interview the employees without Jensen’s presence in a comfortable, safe atmosphere, he agreed to give the OSHA representatives the tour they requested.

“It became clear to me that I was being perceived as the big, bad employer. They told me that I had choices and my employees do not. They told my employees if they help them, they would protect them from me. They drove a wedge between me and my employees. I don’t know if that was their intent,” he said.

He recalled that one of the five also told him that he was “lucky to be one of the first dairies to be brought up to speed on this and that he would be viewed as a leader in the industry.”

Jensen did find the OSHA tour helpful in that they identified some hazards on the farm. While no injuries had occurred from these in the past, he said they have been corrected and may prevent a future injury from happening.

“We spend so much time and effort on increasing milk production, cow comfort, accounting, ag nutrient management and other permitting that we, as an industry, now need to move safety high up as a priority,” he said.

“We need to have safety meetings for all workers and provide proper training on equipment from a certified trainer and document that for each employee.”

When OSHA left after the first week, they indicated to Jensen they could fine him up to $7,000 per violation. He did not receive a written letter from them until Sept. 25, and in the end settled with OSHA for $1,375.

As Jensen retold his story at the Dairy Business Association Annual Business Conference in Madison, Wisconsin, on Nov. 30, he had still not finished with Wage and Hour, who had visited his farm at least six times in the past year.

Solum’s story
Dairy producer Roxanne Solum of Minglewood Inc., heard that OSHA was visiting farms in the area. The next day, both OSHA and Wage and Hour stopped by her farm.

She was working with an employee at the time and called her husband, Kevin, for help. They asked for the representatives to come back after lunch, which they agreed to do.

When they returned, they began with general questions, she said. They asked questions like: How many employees do you have? Do you have a formal safety program?

When those were finished, OSHA announced they wanted a tour and Kevin agreed to take them around the dairy. Solum said they asked him about skid loader training and why there were no ROPs on the Farmall M.

He had to explain that tractors made prior to 1975 were grandfathered into the rule. They asked about the dangers of fermented gas in the grain bins, to which he tried to explain grain in bins does not ferment.

When he mentioned they were swept recently by himself, his daughter and an employee, they were only concerned for the safety conditions provided to the employee.

Wage and Hour asked to see the farm’s entire payroll and Solum said one of the representatives checked it all manually. When she was done, she commented, “There is nothing here.”

“They also interviewed all employees, who told us they were very disturbed by the situation,” she said.

When they inspected the employee housing, she said they pointed to water sitting in a pothole in the driveway and indicated it could be a breeding ground for mosquitoes. They also said a cover was needed on a wastebasket inside to prevent flies.

“It was very evident that the people from the Department of Labor were not too educated on dairy farms,” Solum said.

The Solums also turned to Palmer for legal help and ended up with a final fine of $375.

Attorney’s viewpoint
“These two dairy producers have pioneered this process for you,” Palmer says.

It all began with the farm fatality that caused the OSHA office in Eau Claire, Wisconsin, to open an investigation and they started looking at large dairies they knew about.

“I do not think that OSHA realized dairy farms in Wisconsin had grown,” he says.

He adds this is the first time he’s seen Wage and Hour paired with OSHA. Wage and Hour has jurisdiction to be there if the farm has more than 500 man days of non-family labor in all quarters of the prior year.

He estimates that to be about five to six employees. OSHA’s jurisdiction in agriculture comes into play if a farm has 10 or more non-family employees or provides housing for at least one employee.

While it is a failing approach to have five people arrive at once and hit a dairy producer from two directions, it may be necessary due to an overlap in rules. If housing is offered as a portion of the wage, Wage and Hour calls on OSHA to determine if the housing is in compliance.

Palmer says the departments are developing an enforcement program to focus on dairies with 1,000 animal units or more. OSHA can obtain that listing from the Department of Natural Resources and dairies will be randomly selected.

“By law, OSHA is not allowed to give advance notice of their arrival. However, every employer has the right to demand a search warrant,” he says. “Don’t make that your policy, but use it if they are not being reasonable with you.”

During an inspection, know your rights. Are you big enough to be covered? Were you selected randomly or was there an accident? You always have the right to ask for a warrant. If you show you are prepared, they may relax a little, Palmer says.

On-site consulting
To prepare for this, it is best to use an on-site consulting service. Engage consultants to help you review the housing code, check field equipment safety, inspect hazardous communications and provide proper skid loader training.

Jeff Carter is the loss control program director for the Wisconsin AgriService Association. He says the primary concerns OSHA has for agriculture is if training has been done and is documented, if hazardous communications are put into place, if guards are present and if electrical wires are properly installed.

You can also ask employees for their help in identifying safety improvements on the dairy or conduct your own self-assessment, but be brutal as you walk through the facility, he says.

“Even though these experiences are not comfortable,” Carter says, “producers coming out of it have a pretty progressive mindset when it comes to safety moving forward.” PD