We are seeing a changing workforce in today's agriculture. More women have ownership roles in our farms and processing companies. Second and third-generation farmers are going away, getting a college degree, and returning to embrace the family farm. Livestock and row crops are being produced with more reliance on automation and technology. Producers are consolidating and hiring more employees. Farms and agribusinesses should be aware of the employment laws that apply to them and should actively manage their workforce to maximize potential and minimize legal liability.
At a bare minimum, I advise my clients to do five things to protect themselves against employment liability: (1) clearly adopt an "at will" employment policy; (2) use an employment handbook/agreement to ensure expectations are clear; (3) document everything; (4) use a progressive discipline policy; and (5) know who you can and cannot fire.
(1) Clearly Adopt an "At Will" Employment Policy - most states (except Montana) are "at will" employment states. This means an employee can be dismissed for any reason or no reason, without warning. Employers should be careful so their contracts -- verbal and written -- do not give rise to a "for cause" relationship.
(2) Use an Employment Handbook and/or Agreement - these documents lay out expectations so the employer and employee know what they are committing to do. The documents should be tailored to the particular employer and can include provisions regarding time off, discipline, payment, responsibilities, confidentiality, and company property. This can save time and headaches down the road.
(3) Document Everything - I tell my employment clients to keep a file for employees. Document performance. This does not have to be an intricate formal system. It can be as simple as jotting down a note and placing it in the file when an employee is late, calls in, or exceeds expectations. Include the date, a quick summary of what happened, and what, if anything, was done.
(4) Adopt a Progressive Discipline System - ideally, an employee should not be surprised when they are terminated. If an employer uses a progressive discipline system, the employee would be aware she called in five times in the last month and would know she was subject to termination the next time she calls in. Provide underperforming employees with a series of increasingly severe warnings documented and placed in the employee's file.
(5) Know who Can and Cannot be Terminated - a multitude of federal, state, and local laws control when an employee can be terminated. The Family Medical Leave Act (FMLA), which mandates unpaid medical leave in case of serious medical conditions, applies to employers with 50 or more employees. It applies to employees who have worked for the farm for at least a year. The Americans with Disability Act (ADA) prohibits discrimination against disabled persons and generally applies if there are 15 or more employees. The Age Discrimination in Employment Act (ADEA) prohibits employment discrimination against employees over 40 years old. It applies to employers with 20 or more employees. Title VII forbids discrimination based on color, gender, race, national origin, and religion. It applies to an employer with at least 15 employees. The Immigration Reform/Control Act makes it illegal to knowingly hire workers without proper immigration status and legalizes certain seasonal workers. This Act applies to employers with 4 or more employees. Whistleblowers and people exercising their legal rights (voting, military service) generally are protected from termination. Most states have worker's compensation laws that apply to nearly all employers. All these laws can affect an employer's practices regarding termination of employees. You should seek legal counsel if you have questions about what employment laws apply to your company.