Directfarmbusiness - Fair Labor Standards

Several Federal and Illinois laws address labor and employment issues in the agricultural context. This labor and employment chapter is meant to provide an overview of fair labor standards, migrant and seasonal workers protections, occupational health and safety, workers compensation, and employee liability. These are only some of the employment issues a direct farm business might encounter. The chapter should not be understood as all-inclusive, and in all situations an attorney should be consulted regarding compliance with labor and employment laws applicable to a specific operation.

The Fair Labor Standards Act (FLSA) (29 U.S.C. Chapter 8) is the federal law that establishes minimum wages (currently $7.25, but see Illinois below) and maximum hours (forty hours, over which amount employees must be paid time and a half), and prohibits employment discrimination and child labor (29 U.S.C. §§ 206; 207; 206; 212, respectively).

However, there are exceptions to these laws for agricultural employees (29 U.S.C. §213; 29 C.F.R Part 780). To qualify for the exceptions, the employee’s activity must fall under the act’s definition of agriculture, which is "farming in all its branches and among other things includes the cultivation and tillage of soil, dairying, the production, cultivation, growing and harvesting of any agricultural or horticultural commodities. . . the raising of livestock, bees, fur-bearing animals, or poultry, or any practices (including forestry or lumbering operations) performed by a farmer or on a farm as incident to or in conjunction with such farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market" (29 U.S.C. § 203(f), emphasis added).

The Department of Labor divides the definition into two branches: primary agriculture and secondary agriculture (29 C.F.R. § 780.105).The primary definition includes farming in all its branches and the specific farming operations enumerated in the above definition (id.) These activities always qualify for the agricultural exemption, regardless of the employer’s purpose in performing the activities (for instance, a factory owner operates a farm for experimental purposes for the factory) (29 C.F.R. § 780.106).The secondary meaning of “agriculture,” which encompasses operations that do not fall within the primary meaning of the term, requires that work be “ … performed by a farmer or on a farm as an incident to or in conjunction with such [primary agriculture] farming operations …” (id.). Analysis of whether the work is performed “by a farmer” (29 C.F.R. §§ 780.130-780.133) or “on a farm” (29 C.F.R. §§ 780.134-136) and is “incidental to or in conjunction with” the primary agricultural farming operations (29 C.F.R. §§780.137-780.157) is complex and highly fact specific. If employees are doing work that may be “incidental or in conjunction with” the primary farming activity, or doing work off the farm, or performing work on other farmer’s products, the employer should consult an attorney or contact their local U.S. Department of Labor’s Wages & Hours division before relying on the agriculture exemption to the FLSA. Contact information is available here. For more information, the U.S. Department of Labor maintains an agriculturally oriented compliance webpage here.

Minimum Wage & Overtime Exceptions Agricultural employees always are exempt from overtime requirements (29 U.S.C. § 213(b)(12)). The agricultural exemption applies on a workweek basis. An employee who performs any activities that do not qualify under the definition of agriculture would not be exempt from FLSA rules (under the Agricultural Labor Exemption) for that workweek (29 C.F.R. § 780.10). The act also exempts from the overtime requirements agricultural related activities such as drivers or driver's helpers making local deliveries if the employee is compensated on a per trip basis, agricultural employees that are also employed in affiliated livestock auctioning, employees involved in the processing of maple sap into sugar or syrup, employees engaged in the transportation of fruits or vegetables from the farm to the place of first processing or first marketing within the same state, and employees that transport other employees to any point within the same state for the purpose of harvesting fruits or vegetables (29 U.S.C. §§ 213(b)(11), (13),(15), & (16)).

Agricultural employees (as well as fishing and fish farming employees) are exempt from both the minimum wage and overtime requirements if any of the following apply (29 U.S.C. § 213(a)):

the employer did not use more than 500 man days of labor during any quarter of the preceding year. A man day is defined as any day where any employee performs agricultural work for at least one hour;
the employee is an immediate family member;
the employee is a hand laborer that is paid on a piece rate basis who commutes from his/her home each day and was not employed in agriculture more than 13 weeks in the preceding year;
the employee is a family member under the age of 16 working on the same farm as the parent or surrogate parent that is paid on a piece rate basis and is paid at the same rate as those over 16; OR
the employee is principally engaged in the production of range livestock.

Child Labor Generally, children must be at least 16 to work on a farm during school hours (29 C.F.R. 570.2). During non-school hours, children who are 14 can work on a farm, and 12 and 13 year-olds may work on a farm with parental consent or when working on the farm with the parent. Children under 12 may only work on their family’s farm or on a farm that is exempt under 29 U.S.C. § 213(a)(6) (29 U.S.C. § 213(c)(1)). Children under the age of 16 cannot work in agriculture in a particularly hazardous position, except when employed by their parents on a farm owned or operated by the parents (29 U.S.C. § 213(c)(2)). Hazardous positions include, but are not limited to, operating large farm machinery, working in enclosed spaces with dangerous animals (studs and new mothers), working from a ladder or scaffold more than 20 feet high, working inside certain spaces such as manure pits, and handling hazardous farm chemicals. The full list is available at 29 C.F.R. § 570.71. Under very limited circumstances, ten to twelve year olds can be employed off of the family farm for hand harvesting, but an employer must apply for a waiver and demonstrate that the industry seeking to employ the children will suffer severe disruption without the child labor. (29 U.S.C. § 213(c)(4); 29 C.F.R. §§ 575.1-575.9).

The Illinois Minimum Wage Law (820 ILCS 105) sets minimum wages higher than federal law. The current rate is $8 for persons 18 years of age or older, and will go up to $8.25 on July 1, 2010. An employer can pay 50 cents less than the minimum wage for the first 90 days of employment and to those under 18. Employers with less than 4 employees (not counting family members) are exempt from paying the minimum wage (820 ILCS 105/3(d)(1)). The Illinois act contains the same agriculture exemptions as the federal law (820 ILCS 105/3(d)(2)).

The Illinois Child Labor Law (820 ILCS 205/1) has prohibitions similar to the FLSA for agricultural child labor. However, the Illinois standards are less protective than the federal standards. When state law differs from federal law, an employer must comply with the more protective standards. Therefore, this guide does not detail the Illinois rules regarding hours.

However, Illinois does impose an additional requirement that employers obtain an employment certificate for the minor prior to employing them (820 ILCS 205/6). The certificate, issued by an officer at the employee’s school, verifies that the minor is old enough to work, physically capable of the work, and the employment will not interfere with their schooling. Employers must keep records of the employee for at least three years (56 IAC 250.500).

Occupational Safety and Health Act (OSHA) (29 U.S.C. Chapter 15) and implementing regulations (29 C.F.R. Parts 1900-2009) establish safety and health standards for agricultural employees. The Act does not cover self-employed persons or farms that employ only the farmer’s immediate relatives. Additionally, the funding appropriations bill for 2009 (and the previous thirty years) prohibits the Occupational Safety and Health Administration (OSHA) from spending any funds on enforcement against farms that have fewer than ten employees and have not had a temporary labor camp in the previous twelve months (Fiscal Year 2009 Omnibus, P.L. 111-8 (3/11/09)). This means that, technically, the law and regulations apply to small farms, but functionally, there is nothing OSHA can do if a small farmer fails to comply with the rules. Nonetheless, the Illinois Health and Safety Act (820 ILCS 225) and implementing regulations (56 IAC Part 350) adopt the standards set by the federal Department of Labor. Therefore, the Illinois Department of Labor (DOL) uses the Federal rules and regulations for all farm operations, and the size of the farm will not excuse a farmer’s failure to ensure the safety of his or her employees under the act.

29 C.F.R. Part 1928 lists most of the OSHA regulations for farms. The regulations require roll-over protective structures for tractors, protective frames and enclosures for wheel-type agricultural tractors, safety mechanisms for farming equipment and provision of bathrooms and hand washing facilities for field sanitation (29 C.F.R. §§ 1928.51, 1928.52-.53, 1928.57, and 1928.110, respectively). Part 1928 incorporates some regulations from Part 1910, including requiring that employers maintain minimum standards at temporary labor camps, communicate information to employees on hazardous chemicals, retain DOT markings, placards and labels, store and handle anhydrous ammonia safely, adhere to safety standards in logging operations, attach a “slow moving vehicle” sign on any equipment that travels at less than 25 miles per hour on public roads, and institute monitoring of and controls for employee’s exposure to cadmium (29 C.F.R. §§ 1910.142, 1910.1200, 1910.1201, 1910.111(a)&(b), 1910.266, 1910.145, and 1910.1027, respectively). Agricultural operations are exempt from all the other provisions of Part 1910, which establishes general operational safety standards (29 C.F.R. § 1928.21(b)).

However, agricultural employers remain subject to several other important OSHA provisions and regulations pertaining to signs, record keeping, injury reporting, and first aid training. Employers must post signs in the workplace notifying employees of the protections OSHA provides (29 C.F.R. 1903.2). Employers must keep records of all reportable work related injuries (29 C.F.R. 1904.4). An injury qualifies as reportable if it causes death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, or loss of consciousness or if it involves a significant injury or illness diagnosed by a physician or other licensed health care professional (29 C.F.R. 1904.7). Employers who never employ more than 10 employees at any given time do not need to keep OSHA injury and illness records, unless OSHA informs them in writing that they must keep such records (29 C.F.R. 1904.1). However, these employers must still report to OSHA within eight hours if an incident kills an employee or hospitalizes more than three employees (29 C.F.R. 1094.39). The employer can report via phone by calling their area OSHA office or OSHA’s central line at 1-800-321-OSHA (1-800-321-6742) (id.). At the end of every year, employers must review their log of injuries, ensure and certify its accuracy, and provide a report to OSHA (29 C.F.R. 1904.32). Employers must keep these records for five years (29 C.F.R. 1904.33).

The Toxic Substances Disclosure to Employees Act (820 ILCS 255) is an Illinois law that imposes disclosure requirements on employers. However, federal OSHA regulations on hazardous communication preempt the Illinois law (29 C.F.R. § 1910.1200). Therefore, the Illinois Department of Labor enforces the Federal regulations rather than the Illinois law. Employers must maintain information on how to handle and detect dangerous chemicals in the workplace, as well as provide training and information to employees. The regulations do not apply to toxic substances regulated under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). Instead, the FIFRA requirements discussed below for labeling/posting apply.

Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) (7 U.S.C. Chapter 6) requires the U.S. Environmental Protection Agency to regulate the production and use of farm chemicals. Pursuant to FIFRA, the EPA has promulgated a Worker Protection Standard (WPS) for agricultural pesticides. The standard requires employers to provide safety training and access to information on pesticides used on the farm. Employers must protect workers from exposure during pesticide mixing and application, as well as notify workers and restrict entry to sites after application. Finally, employers must provide adequate soap and water for clean up, and emergency assistance if a worker is injured by a pesticide. The EPA has a manual for employers on how to comply with the WPS, available here.

The Migrant and Seasonal Worker Protection Act (MSWPA) (29 U.S.C. Chapter 20) and its regulations (29 C.F.R. Part 500) establish standards for the employment of migrant and seasonal agricultural workers. It also requires employers to make certain disclosures and maintain employment records.

Hiring Some direct farm businesses may choose to use a Farm Labor Contractor (FLC) to obtain migrant or seasonal workers. FLCs recruit, pay, and transport workers to the needed locations. In return, the direct farm business pays the FLC a fee. FLCs must register and obtain a certificate with the Illinois Department of Labor pursuant to the MSWPA (500 U.S.C. §§ 500.1, 500.40) and the Illinois Farm Labor Contractor Certification Act (225 ILCS § 505). The Federal government delegated certification of FLCs to the State of Illinois. Therefore, FLCs need only register with the Illinois Department of Labor. An employee of a registered farm labor contractor must obtain a Farm Labor Contractor Employee Certificate of Registration (29 C.F.R. § 500.40). The direct farm business should ensure that it deals only with a registered FLC.

If the owners or employees of a business that does the recruiting of its workers, rather than contracting with an FLC, the business need not register as a farm labor contractor if it qualifies as a family or small business (29 C.F.R. § 500.30). Entities qualify for the family business exception if the owner of the farm or their immediate family member does the labor contracting (29 C.F.R. § 500.20(a)). If the operation used less than 500 man-days of seasonal or migrant labor during every quarter of the preceding year, it qualifies for the small business exception (29 C.F.R. § 500.30(b)). The regulation defines a man-day as any day where an employee performs agricultural labor for at least an hour.

Wages Employers must pay migrant and seasonal workers when wages are due, which must be at least every two weeks (29 C.F.R. 500.81)

Disclosures FLCs and employers not exempt from the act must disclose certain information to the employee at the time of recruitment, including the location of the work, wage rates, the type of work involved, the period of employment, any transportation or housing to be provided and how much this will cost the employee, if anything, whether workers' compensation or unemployment benefits are provided, and if so, disclosure of the insurance company's information, whether the operation is the target of a strike, and any arrangement whereby the employer is to receive a commission from another establishment for sales made to workers (29 U.S.C. § 1821(a); 29 C.F.R § 500.75(b)). The employer must display and maintain a poster provided by the Department of Labor outlining employee rights under the MSWPA (29 U.S.C. § 1821(b); 29 C.F.R. 500.75(c)). The employer must provide the terms of employment in writing (29 C.F.R. § 500.75(d)).

Information must be provided to the worker in his/her own language, where necessary and reasonable (29 U.S.C. § 1821(g); 29 C.F.R 500.78).

Providing Housing or Transportation If the employer provides housing, the employer must disclose in writing, or post in a conspicuous place, the terms of such housing (29 U.S.C. § 1821(c); 29 C.F.R. § 500.75(c)). A state or local health authority (or other appropriate entity) must certify that any housing the employer provides complies with federal health and safety standards (29 C.F.R. §§ 500.130, 500.135). Likewise, the employer must insure any transportation the employer provides and it must comply with vehicle safety standards (29 C.F.R. §§ 500.100, 500.121).

Recordkeeping Employers must keep individual employees’ records for the following: the basis on which wages are paid; the number of piecework units earned, if paid on a piecework basis; number of hours worked; total pay period earnings; specific sums withheld and the purpose of each sum withheld; and net pay. Employers must keep the records for three years and provide all the information to the employee. (29 U.S.C. § 1821(d); 29 C.F.R. 500.80).

Prohibitions The MSWPA prohibits employers from requiring that migrant or seasonal workers purchase goods or services solely from their employer (29 U.S.C. § 1829(b); 29 C.F.R. § 500.73).

H-2A Visas If there is a seasonal shortage of domestic agricultural workers, a direct farm business may be able to recruit foreign agricultural workers under the H-2A visa program of the Immigration and Nationality Act (8 U.S.C. § 1101(a)(15)(H)(ii)(a)) and its accompanying regulations (8 C.F.R. § 214.2(h)(5) (Immigration and Naturalization Service regulations) and 20 C.F.R. §§ 655.90-655.215 (Department of Labor Regulations)). The employer must petition for certification to recruit foreigner workers and demonstrate a shortage of domestic workers. If certified, the employer must comply with several requirements, including ongoing recruiting of domestic workers and providing housing, meals and transportation to foreign recruited workers. The MSWPA does not apply to workers employed under the H-2A visa program, but H-2A employers must comply with all other federal laws such as the FLSA and OHSA.

The Department of Labor maintains a website that provides step-by-step instructions on how the H-2A program works, including links to forms.

Unpaid Interns

For many small farms, hiring unpaid interns is a common practice. They provide much needed labor, and the intern benefits by receiving valuable mentoring and experience. However, if the intern is doing work on the farm that contributes to the farm’s profitability, he or she is an employee and the farm business must take care to comply with applicable employment laws. If a farm qualifies for the minimum wage exception delineated above (employing fewer than 500 man days per quarter), the Federal and Illinois rules set no minimum wage, so allowing employers to not pay interns. This is somewhat unusual – many states have minimum wages, even for agricultural employees, and there are numerous instances of the government assessing small farms large fines for violating minimum wage rules. If interns are not being paid, the farm should nonetheless have them clock in and out as if they were paid employees and keep meticulous records of who worked for them, for how long, and when. If there ever is a problem in which a disgruntled intern complains to the department of labor, and the farm becomes the subject of an investigation, it is important to have a paper trail documenting the farm’s compliance with the laws. Even if an internship is exempt from the minimum wage requirements, the farm is not exempt from complying with the other employment laws, for instance, OSHA and FIFRA rules still apply, housing and transportation must meet minimum standards, and workers’ compensation (see discussion below) is necessary if the farm employs more than 400 man days per quarter. Farms employing paid and unpaid employees must count the unpaid employees man-days towards the 400 for workers compensation.

Federal and Illinois law authorize employers to employ student-learners at less than minimum wage if they meet the applicable requirements and obtain a license prior to employing the student learner. At the Federal level, the student-learner must be at least sixteen years old, receiving instruction in an accredited school, college or university and employed by an establishment on a part-time basis pursuant to a bona fide vocational training program (29 C.F.R. Part 520). The employer must pay the student-learner at least 75% of the applicable FLSA minimum wage. Illinois allows employers to pay learners 70% of the Illinois minimum wage for the duration of their training if the employer obtains a permit for the learner’s employment (820 ILCS 105/6). The training cannot last more than six months and the employer must establish that there is a bona fide training program for the occupation, and the length of the training period is reasonable in light of the skills required to attain a level of minimum proficiency (56 IAC 210.600). It is generally difficult for farms to qualify to employ student learners at sub-minimum wages.

Making an internship a positive experience for the farmer and the intern requires investing much more effort than simply expecting the intern to show up and work. It requires carefully recruiting and selecting interns mentally and physically prepared for the nature of the work and developing a realistic plan for what and how they will learn. The New England Small Farms Institute publishes two guides that can assist in hiring interns and ensuring positive experience. Cultivating a New Crop of Farmers – Is On-Farm Mentoring Right for You and Your Farm? A Decision Making Workbook, for $20, contain worksheets covering all aspects of mentoring and The On-Farm Mentor’s Guide – Practical Approaches to Teaching on the Farm, for $35, provides more detailed guidance. Although they require an investment of some money, both are valuable resources for ensuring both sides get the most out of the internship experience. The publications are available through NESFI’s website.

One of the best ways to ensure a positive experience is to develop an internship agreement, outlining the hours and work expected, the housing provided (if any), food and fresh produce arrangements, and what mentoring the farmer will provide. Both the farmer and the intern should sign the agreement. Clearly defined expectations at the outset will help prevent conflicts, or worse yet, an intern that abandons the farm mid-season. It will also be beneficial to the farmer to have clearly delineated agreement if the Department of Labor comes knocking.

Many injuries can occur on a farm. If a farming operation hires employees, the owner must take into consideration the attendant risk that an employee may be injured. An employer should (and must in circumstances governed by OSHA) take affirmative measures to ensure a safe workplace. When prevention fails, employers may be liable for an employee's injury, or when an employee commits a tort (an injury or wrong) against a fellow employee or third party. This section discusses the employer's liability exposure from an injured employee and the employer's potential liability arising from a situation in which an employee injures a third party.

If an employee of a direct farm business is injured, the injured employee can seek compensation in one of two ways-- a claim under the Illinois Workers' Compensation Act or a common law action for tort. An employee may only seek damages through tort if their injury is not subject to workers' compensation (210 ILCS 305/5(a)).

Workers Compensation

The Illinois Workers' Compensation Act (820 ILCS 305) and the Illinois Workers Occupational Disease Act (820 ILCS 310) require almost all employers to obtain workers compensation insurance to cover medical treatment and lost pay to employees injured on the job, regardless of fault. The Illinois Workers Compensation Commission has a fee schedule for payment of medical treatment, and sets and caps the daily disability pay. In exchange, the act bars employees from suing employers under tort law. This ban protects employers from the courts’ unpredictability and absence of limits on compensation awards.

An "agricultural enterprise," however, is exempt from the workers' compensation program if it employs less than 400 working days of agricultural labor per quarter in any quarter in the preceding year, excluding family members (820 ILCS § 305/3(19)). Even if exempt from the law, businesses can elect to be covered by filing notice with the Illinois Workers Compensation Commission and obtaining appropriate insurance.

Some aspects of a direct farm marketing operation, however, may not fall under the "agricultural enterprise" exception. If any of the operation's employees engage in activities that would not qualify as a traditional farming activity, for instance processing food, or if the employee's time is divided between agricultural and non-agricultural activities, the direct farm business should consult an attorney to determine the applicability of the Illinois Workers' Compensation Act.

If a court holds that a direct farm business was liable for an employee's claim and the operation was required to carry workers' compensation insurance, the direct farm business would have to pay all of the workers' compensation benefits. It is unlikely that the operation's general insurance policy would cover such a liability, and benefits can be quite costly. On the other hand, workers compensation insurance itself can be very expensive. For these reasons, it is important to consult a lawyer to determine the business’s precise needs. Furthermore, there are potentially significant fines for failure to obtain workers compensation insurance. Negligently failing to maintain coverage can be a class A misdemeanor with a fine up to $2,500; knowingly failing to have insurance can be a class 4 Felony with a fine up to $25,000. In addition, the government can fine employers $500 per day for every day that they failed to have coverage.

Employer Liability to Employees when Exempt from Workers Compensation

In cases where employers are exempt from mandatory workers' compensation insurance coverage, Illinois’ common law tort principles will determine an employer's liability for an employee's on-the-job injuries. A tort is an injury or harm to another person or person’s property that the law recognizes as a basis for a lawsuit. Torts are part of the common law, which is the body of laws and rules that courts create as they issue decisions.[1] The legislature can modify the common law by passing legislation. In several instances, the Illinois legislature has modified traditional common law rules and created special rules for tort liability within the employer-employee context.

Employer’s negligence Although there are many legally recognized harms, the most common claim is for negligence. Whether a person was negligent and caused an injury is a highly fact specific issue that courts must decide on a case-by-case basis. To avoid being negligent, an employer must use the standard of care to protect his/her employees from workplace injury that an ordinary, prudent and reasonable person would under the circumstances. The standard of care obligates an employer to protect against reasonably foreseeable injuries, not every injury that may occur. An employer is liable for defects or dangers that he/she reasonably should have had knowledge of and must warn employees of workplace hazards the employers knows of, or should know of. “Knows or should know of” requires that an employer must also act prudently and reasonably in seeking out and discovering potential workplace dangers.

Contributory negligence of the employee In Illinois, a negligent employer may avoid liability if a jury determines that the employee was also negligent and was more than 50% responsible for his/her injury (735 ILCS 5/2-1116). This reduction in damages is based on the theory of contributory negligence, which bars an injured victim from recovering any damages if they were primarily responsible for their own injury. If the employee was negligent but contributed less than 50% to their injury, the employee's monetary award for damages is reduced proportionally according to the amount by which the employee's negligence contributed to his/her injury.

Assumption of the risk is an implied or express agreement between the employer and employee that the employee assumes the risk of injury that is inherent to performing the tasks necessary to accomplish the job (Chicago and E. IL RR Co. v. Heerey, 203 Ill. 492 (1903). An employer cannot be held liable for an injury that the employee assumed the risk of. An employee only may assume known risks, and such risks do not include the risk of the employer's negligence. That is, the employer still has the duty to reasonably maintain a safe workplace. For instance, an employee helping with cattle assumes the risk of getting kicked and could not hold the employer responsible, but an employee helping harvest apples probably does not assume the risk of cattle perusing the orchard and knocking them off their ladder. Assumption of the risk reduces the employees recovery by the amount which the jury finds the employee was responsible (Betts v. Manville Personal Injury Trust, 225 Ill. App. 3d 822, 904 (1992)). This is a defense that is only available where there is an employment or other contractual relationship (Goad v. Evans, 191 Ill. App. 3d 283 (4th Dist. 1989),
Reed v. Zellers, 273 Ill. App. 18 (3d Dist. 1933)).

Employer Responsibility for Employee’s Injury to Others

As noted in the previous section, many injuries can occur on a farm. This section discusses the employer's potential liability when an employee injures a third party (whether on or off-farm) or a fellow employee.

Employees injuring third parties An employer may be jointly and severally liable for the injuries to third parties caused by the actions of its employees through the theory of respondeat superior ("the master shall answer for his servant"). For liability to occur, the employee's action, whether negligent or willing/knowing, must have been committed in the course of the employment and with some notion of furthering the employer's business.

For the employer to be liable, there must have been an employer-employee relationship, rather than that of an independent contractor. The question of whether an employer/employee relationship exists is based on the facts of each individual case. An agreement disclaiming an employment relationship is not enough to show that a relationship did not exist (Tansey v. Robinson, 24 Ill.App. 2d 227, 234 (1960)). Instead, the actual practice between the employer and the employee will determine the relationship. A number of evidentiary factors may be taken into account, including the right to control the manner in which the work is done, the method of payment, the right to discharge, the skill required for the work to be done, and who provides the tools, materials, or equipment. Of these, the right to control how the work is performed (not actual control) is the most important (Lang v. Silva, 306 Ill. App. 3d 960, 872 (5th District, 1999)).

Scope of Employment For an employer to be vicariously liable for an employee's torts under the doctrine of respondeat superior, the torts must have been committed within the scope of the employment (Pyne v. Witmer, 129 Ill.2d 321, 359 (1989)). An activity “is within the scope of employment if (a) it is of the kind he is employed to perform; (b) it occurs substantially within the authorized time and space limits; (c) it is [motivated], at least in part, by a purpose to serve the master” (id.). One obvious example is an employee causing a traffic accident while delivering produce to the market.

As when the employer’s negligence injures an employee, the employer may raise contributory negligence as a defense when an employee injures a third party. If the victim knew of and assumed the risk of the injury they incurred or contributed more than 50% to their own injury, the employer will not be liable, notwithstanding their employee’s negligence. For example, if the third party involved in the traffic accident with the employee delivering the produce ran a stop sign, the third party’s own negligence would reduce or preclude any recovery.

Employers may also be liable for their employee’s tortious conduct under the theory of negligent hiring or retention. In these cases, if an employer knew or should have known that the employee was likely to harm someone, the employer is directly liable for their own negligence (Van Horne v. Muller, 185 Ill. 2d 299, 310 (1999)).

Employees injuring other employees An employer is not liable for the negligent actions of one employee against another employee unless the employer knew, or had reason to know, that the negligent employee should not have been hired or should not have remained in his/her employ. An employer can also be held liable if the employer did not provide the proper means for the negligent employee to carry-out his/her duties. An employer is responsible for ensuring that all employees follow health and safety procedures. An employer cannot shield itself from liability by delegating this responsibility to supervisors. If the employer has delegated health and safety duties to a supervisor or foreman, the supervisor's negligent actions causing injuries to a fellow employee may be imputed to the employer. This means the employer can be held responsible for the supervisor’s actions as if the employer had done the act.

The best way to avoid liability is to act with reasonable care and exercise due diligence – make sure tools and equipment are safe and in proper working order; supervise employees and do not ask them to do tasks that are outside the scope of expected dangers on a farm; if an employee could injure others, such as in an auto accident while making deliveries, ensure that they are a responsible and reliable employee before entrusting them with a task. Nonetheless, no liability can be completely prevented. These potential liabilities are one of many reasons it is important for farmers to have insurance that covers tort liability and the cost of defending a lawsuit. Although a general farm liability policy (see Chapter 3, Section 3: Insurance) may cover some bodily injuries that could occur on the farm, such as injuries to trespassers, it likely does not cover everything. In particular, as was discussed above, workers compensation insurance may be necessary to cover injuries to employees. Therefore it is imperative that you discuss and verify your liability coverage with your insurance agent.

Further resources:

The USDA’s 63-page Summary of Federal Laws Affecting Agricultural Employees is a good primer on the federal labor and employment laws that are explained in the previous pages, and includes discussion of some federal laws not covered in this guide.
The U.S. Department of Labor (DOL) compliance assistance guide, has a subsection specifically directed to agricultural employers. They also have a compliance assistance website that provides information on all of the major DOL laws regarding employment.
The Illinois Department of Labor maintains a website listing the labor and employment laws that it enforces.

Have you…?

Read and understood the agricultural exceptions to the FLSA and Illinois’s minimum wage law? If you intend to take advantage of the exceptions, have you verified that employees’ activities qualify?
If you intend to employ minors, do you understand the restrictions on the hours and activities they may be employed in? Have you obtained necessary certificates for each minor?
Obtained equipment and developed operational procedures necessary to comply with OSHA, FIFRA and other employee-protection laws?
Complied with any necessary paperwork and disclosure requirements for migrant workers you may employ?
If employing unpaid interns, established reasonable recordkeeping for ensuring and verifying compliance with all minimum wage, hours and worker safety laws? Developed a plan for ensuring the experience meets yours and the intern’s expectations?
Discussed workers’ compensation insurance, and any other employee liabilities, with your insurer or an attorney?

[1] For this reason, many of the cites given are for cases that describe the rule, rather than for a codified rule found in a statute or regulation.