If you’ve hired help on your operation, you’re probably aware of the Department of Labor (DOL) regulations that exempt agricultural workers from being paid overtime. The idea behind this regulation is that farming and ranching isn’t the kind of work that follows a normal schedule. There’s only so much daylight in a day, and producers have to take advantage of every second. But just because the work being done is happening on your operation doesn’t necessarily mean it’s an ag job. That distinction has created some unpleasant surprises for a few northeast farmers including possible fines, and hefty bills for back wages.
The scenario that caused one farmer trouble looks like this. He has employees who milk his cows and employees who work in the small farm’s processing plant where the milk is made into yogurt. The DOL found that the cow milkers were agricultural labor and exempt from earning overtime. But, according to the DOL’s Daniel Cronin, when farmers “change the raw and unmanufactured state of the agricultural commodity, it can take them outside the definition of agriculture.”
The farmers involved were surprised to learn this, and I can’t blame them. After reading parts of the DOL’s Field Operations Handbook, and checking out the Code of Federal Regulations (CFR( Interpretive Bulletin 780 things aren’t so straight forward. Here’s what I found:
According to the Field Ops Handbook, “Workers not employed by the farmer, such as the harvesting crew of a canner, processor, packer, or independent contractor, or employees of a “chicken factory” or hatchery, are employed in “agriculture” if they are employed “on a farm” in duties which constitute “primary” or “secondary” agriculture as defined in IB 780, Subpart B. The fact that a minor or incidental part of the work of such employees occurs off the farm will not change the situation.” If those employees are considered to be employed in agriculture, even if the farmer hasn’t hired them, then why wouldn’t an employee processing milk into yogurt and putting it in the plastic tubs?
Section 780 subpart B of the CFR provides some in-depth definitions of agricultural employment. Section 780.111 says that “separating cream from milk, bottling milk and cream, or making butter and cheese may be considered as “dairying” under some circumstances, or they may be considered practices under the “secondary” meaning of the definition when performed by a farmer or on a farm, if they are not performed on milk produced by other farmers or produced on other farms.” I don’t have a law degree but I read that to say that if an employee is creating something from the milk you produce on your farm, that falls under the agricultural over time exemption. Definitions here, and elsewhere in Section 780 imply that if the farmer is using milk from other producers, then he’s running a factory, and there is no overtime exemption. For example:
§ 780.141 Practices must relate to farming operations on the particular farm.
Thus, the performance on a farm of any practice, such as packing or storing, which may be incidental to farming operations cannot constitute a basis for considering the employees engaged in agriculture if the practice is performed upon any commodities that have been produced elsewhere than on such farm (see Mitchell v. Hunt, 263 F. 2d 913).
So what’s a confused farmer or rancher to do? I wish I had an easier answer than this, and if I come up with one, I’ll let you know. But until then, I recommend doing a little reading of the handbook and regulations I’ve provided. See what they say about things you’re doing on your own operation. If you don’t like what you see, or you’re unclear about what it means for you, write a letter to your federal elected officials or set up a meeting with their local staff. Tell them about your concerns and ask them to tell the DOL to clarify. After all, they’re laws designed by and for people by and for farmers and ranchers. Make them what you want them to be.
In the meantime, I’ll continue to track down information and share with you what I find.