GUEST BLOG POST By Sanne Kure-Jensen
Farming is hard work and many farmers seek help from volunteers, compensated volunteers (trade food and/or housing for labor) and paid employees. Farmers want their workers to be happy and productive. Rachel Armstrong led an informative webinar on the legal considerations around unpaid and compensated volunteers. “Ag. law is incredibly complex,” said Rachel Armstrong, lawyer, and former grower. Her website (farmcommons.org) offers checklists, flowcharts and model documents to guide farmers.
Armstrong recognizes that consumers everywhere value their connection to the land; they want to reconnect with the land and with farmers who grow their food. Many farm customers happily volunteer with their favorite farmer. Armstrong noted that no one volunteers to pump gas.
Farmers may bring in volunteers for:
- Crop Mobs and Work Parties – CSA members might harvest greens, plant garlic or paint a barn
- Farmers Market Help or CSA Drop-site Coordinators – volunteers might receive food or a CSA share.
- Worker Shares/ Working Shares – work weekly for a CSA share
- WOOFers – trade field work for food and lodging; organized by Worldwide Opportunities on Organic Farm or WOOF (wwoofusa.org)
- Unpaid Interns – may earn college credit while learning skills and trade
Farmers should carefully distinguish between a volunteer and employee. A volunteer must not displace a regularly paid employee doing similar work. Volunteers may offer unpaid work for charitable, religious or humanitarian goals. Nonprofit organizations may utilize volunteers; for-profit business may not. Volunteering is not allowed at for-profit businesses to prevent businesses from pressuring employees to volunteer their time or work (i.e., come in on a weekend).
The largest volunteer risk is injury. Volunteers often arrive unskilled or untrained in specific farm activities and may not use the same caution as experienced farmers.
Farmers must manage risks in all aspects of farming. Risk of injury, liability or employment law violations are serious. Accident prevention keeps everyone safe.
Armstrong recommended all farmers purchase a Commercial General Liability (CGL) policy for interns, employees, seasonal employees and other farm guests who volunteer for compensation. A commercial policy also ensures coverage for off-farm activities (CSA drop sites) value-added processing, agritoursim, transportation to markets and for distribution, if you sell anyone else’s products.
Armstrong also recommends a Farm Liability Insurance (like homeowner’s liability policy). This protects the landowner in case of an accident on the farm property. This is separate from a CGL.
Shop around and describe all aspects of your business to potential insurance agents. Keep a log of your conversations or use email for documentation.
Job Description/Waiver of Liabilities
Armstrong recommends using a clear job description (for volunteers and employees) and waiver of liability that outlines potential risks. Many non-farm businesses follow this practice. See a Waiver of Liabilities template at farmcommens.org. Be sure to customize the template to your operation and needs. Courts do not like Waivers of Liability, so many are not enforceable, unless prepared by a skilled local attorney.
The second greatest volunteer risk is misclassification. Many volunteers should be treated as employees.
Armstrong urged caution when for-profit farms pay volunteers in tomatoes or a CSA share such as with a worker share. Be cautious using a volunteer application and asking people to make up missed time. This looks like employment and exposes farmers to employment law, minimum wage, withholding, workers compensation, etc.
If your farm offers worker shares, be sure the share value covers minimum wage for the hours per week and be sure to have workers compensation insurance, where required. State labor rules on this vary widely. Be sure to check with local labor departments for applicable rules. See farmcommons.org/resources/model-worker-share-agreement for a model Worker Share Agreement.
Some farms offer food, farm products and/or lodging. This is a great way to train the next generation of farmers. Offering lodging may subject the farm to Occupational Safety and Health Administration (OSHA) inspections and migrant worker laws. OSHA compliance is required for all farms. The law does not allow routine farm inspections except when a farm provides housing. One of many OSHA rules says that farms providing housing must have bathrooms with hot water. Tents and port-a-johns are not sufficient. States differ on whether employers must offer housing for employee spouses and/or family.
Carefully document everything in case of an IRS or OSHA audit. Do your homework and verify compliance with local, state and federal regulations.
The US Department of Labor Fact Sheet #71 defines Interns at (dol.gov/whd/regs/compliance/whdfs71.htm). Many, but not all, federal courts enforce these guidelines.
Farmer internship programs at for-profit farms/businesses must meet all six tests for an Intern to be unpaid, paid less than minimum wage and exempt from receiving overtime pay. Missing even one of these qualifications makes the trainee an employee, no matter what job title they have.
- The on-farm training and work is similar to training which could be given at a school
- The training and experience benefits the intern
- The Intern may not displace regular paid employees and the intern works under close supervision of farm staff
- The trainer/employer does not gain anything by the intern’s work. Sometimes the trainer’s operation may suffer
- There is no promise of a paid job after the training. The training period should have set length.
- Both the trainer/employer and the Intern understand that wages will not be paid during the training.
Armstrong advised any for-profit farm business to treat all workers as employees.
Many interns working in for-profit businesses should be classified as employees. Workers may not sign away their worker rights in any type of contract. Recent high-profile cases in the publishing and movies industry have awarded significant back wages and legal fees to misclassified Interns.
College and other approved post-secondary education programs may offer Internships with a formal curriculum and course of study. Students typically receive college credits while learning. Students may or may not earn a stipend during their Internship. This is different from wages. Learn more at maine.gov/labor/labor_laws/publications/minorsguide.html#Farm.
Offering training does not mean you can avoid paying minimum wage during a worker’s training time. Manufacturers pay workers to learn how to operate machinery. The same applies for a farmer learning new skills. Consider this the cost of doing business. Armstrong emphasized that there are limited exceptions for this practice.
Apprentices learn a trade and should be paid at least minimum wage during their training. View federal guidelines for apprenticeship programs at dol.gov/whd/programs/dbra/faqs/trainees.htm.
Farm Commons is a nonprofit legal services organization providing farmers with proactive legal counsel to build their resilience. Farm Commons offers legal services and legal education to the farm community.
View the webinar and resources on Workers/Employees at farmcommons.org/resources. See a list of other farming legal webinars at farmcommons.org/webinars. Contact Rachel Armstrong, executive director and attorney via email at firstname.lastname@example.org or call (608) 616-5319. Write to Rachel Armstrong at Farm Commons, Inc. 2934 Milwaukee St. #2, Madison, WI 53704.
A similar story ran in the April 6, 2015, New England edition, the April 15, 2015, Mid-Atlantic edition of Country Folks and the April, 2015 Eastern edition of Country Folks Grower.
Sanne Kure-Jensen is the Administrator for the Northeast Organic Farming Association of Rhode Island (NOFA/RI), an organizational member of the New England Farmers Union.