Labor issues can be a challenge on any dairy farm. Attorney Karl Butterer of Foster, Swift, Collins and Smith, PC, explored labor policies, trends and employment pitfalls with dairy producers at the Great Lakes Regional Dairy Conference held in Mt. Pleasant, Michigan.
Labor policy, regulations and requirements are confusing and constantly changing. Butterer shared the latest changes in policy and explained labor regulations and requirements farmers should know to ensure their operation is in compliance.
“I’ve seen the good, bad and the ugly,” said Butterer, who has 20 years of litigation experience representing businesses in Michigan. “You can do some good stuff, you can do some bad stuff, and you can do some stuff that shoots yourself in the foot.”
Aging workforce, gender discrimination create new concerns
In 2017, 19.3 percent of the workforce was age 65 and above. The trend toward an aging workforce seems innocuous, but it’s something to be concerned about, according to Butterer. Producers can expect to see an increase in workplace age discrimination claims as well as the use of age in disability claims.
Title VII is a federal anti-discrimination law that prohibits employment discrimination based on gender. That includes sexual harassment and hostile work environment claims. “Will the ‘Me Too’ movement increase claims?” Butterer asked. “I think almost for sure it will, and it will be interesting to see what the statistics show next year.”
Nationwide, retaliation charges based on different types of discrimination in the workplace have tripled since 1997, and it’s currently the easiest way to get sued, Butterer explained. “A retaliation claim is when an employee sues you because they say they engaged in protected activity and you punished them for doing that by firing them or withholding pay,” he said.
Be proactive during hiring process
Taking a proactive stance with employee contracts is an essential way of avoiding future litigation over termination or discipline in the workplace. Butterer recommended several steps:
1. Individual employment contracts should be established outlining the nature of the relationship and spelling out post-termination rights and obligations.
2. Employee handbooks that define uniform expectations, a shared vision and that are signed by the employee can be useful. However, if you are not going to follow the policies in the handbook, it will be a detriment, Butterer warned.
3. Maintain a good record-keeping system that includes written warnings, counseling, attendance and training records, etc.
4. Learn which laws apply to your organization.
5. Start a background check policy and follow up on references.
When a problem is developing with an employee, and discipline or termination is on the horizon, Butterer recommended keeping the problem with the employee confidential and documenting everything.
Review the employee’s personnel file and performance evaluations, consider how similarly situated employees have been treated in the past, and follow company policies outlined in the contract or handbook.
If termination of an employee is necessary, Butterer recommended the employer get a signed resignation with the reason if possible, give severance pay in exchange for release where appropriate and have a witness to any involuntary discharge.
He stressed the importance of making sure final housekeeping is done. Examples are writing the last paycheck, making sure company property is returned, notifying an insurance provider and moving the former employee to inactive status.
Wage and overtime laws
Butterer ventured into federal minimum wage and overtime laws. He explained the Fair Labor Standard Act (FLSA) is enforced by the U.S. Department of Labor, and the secretary of labor can file suit against an employer for violation of the FLSA.
Individuals can also file lawsuits for alleged FLSA violations. Common lawsuits seek damages such as unpaid wages, although there are rarely criminal penalties.
Wage and overtime laws basically outline the minimum amount employers must pay for a defined number of hours of work and when overtime wage rates are required. Wage and hourly records must be maintained. Certain “white collar” employees are exempt from the overtime requirement.
These exemptions may apply: the employee is paid on a salary basis, the pay is at least $455 per week, and the employee’s primary duties are executive, administrative, learned professional, computer or outside sales.
Butterer said there may also be wage and overtime exemptions for agricultural workers. The FLSA ag exemptions cover workers employed on a small farm, a member of the employee’s immediate family, those engaged in hand harvesting or when responsibilities principally relate to livestock production.
In addition, only those who have an employment relationship between the employer and employee are covered by the FLSA. Independent contractors are not covered.
Individual state wage and overtime regulations may also apply.
Records are critical
Accurate and current records of all employees and labor policies are important, especially when problems arise, Butterer emphasized. “If you have a labor dispute with an employee, the deck is stacked against you if you don’t do the record-keeping,” he stressed. 
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Melissa Hart
- Freelance Writer
- North Adams, Michigan
- Email Melissa Hart
