Farmers are often frustrated by the employment laws that restrict their hiring and firing decisions. Unfortunately, these laws can impose significant penalties on farmers if they are violated. Therefore, it is extremely important that farmers understand what they can and cannot do when hiring and firing employees.
The most important laws to understand about hiring are Title VII of the Civil Rights Act of 1964, the Equal Pay Act, the Americans with Disabilities Act and the Wisconsin Fair Employment Act. These laws prohibit farmers from making hiring decisions based on age, race, gender, national origin, religion, marital status, or the nature or severity of a disability.
Hiring questions and statements about the following areas should always be avoided:
Age. An employer should not express a preference for younger employees during the hiring process.
Arrest and conviction record. An employer cannot have a blanket policy on not hiring people with an arrest or conviction record. However, employers may refuse to hire an applicant on the basis of a conviction if the circumstances of the conviction relate to the job.
Disability. Employers cannot refuse to hire someone based upon a disability. As such, questions cannot be asked about a person’s medical history or condition. However, an employer can decide whether or not the person has the ability to perform the job.
Marital status. Employers may not discriminate against applicants on the basis of marital status (i.e., whether the person is married, single, divorced, separated or widowed).
National origin or citizenship: Employers may not discriminate against applicants on the basis of national origin, including place of birth, identity of ancestors, and shared physical, cultural and linguistic characteristics.
Race or color. An employer should never ask applicants to identify themselves by race or color.
Religion. An employer should not ask applicants about religious denominations.
Gender. An employer may not discriminate against an applicant based on gender. An employer should not ask a female applicant whether she is pregnant, plans to marry or has children. An employer, however, may inquire about an applicant’s availability for work and inform applicants, on a gender-neutral basis, of the normal work hours for the position.
Improperly handled employee terminations can create significant liability for a farm employer. There are generally three types of terminations, and each can have differing legal consequences:
Voluntary resignation. This is defined by courts as when an employee leaves or abandons employment.
Discharge. Absent contractual, statutory or public-policy limitations, an employer has the right to terminate the employment relationship with or without cause, at any time, with or without notice.
Resignation deemed to be discharged. This is defined by the courts as the situation in which an employee quits, but in circumstances in which the working conditions have made remaining with the employer simply intolerable.
Court rulings have determined that an employee cannot be fired for filing workers’ compensation claims, filing charges with the Department of Labor, reporting Occupational Safety and Health Administration violations or receiving garnishments for debts. Just like the areas listed earlier for hiring, nor do the laws allow discrimination in termination decisions based upon the same areas.
There are numerous guidelines to follow when hiring or firing employees. There are several things that farm employers can do to limit their liability:
- Use a job application form that focuses questions on job-related functions.
- Check references and perform background checks.
- Have a well-drafted employee handbook.
- Document all employee disciplinary actions that occur in the workplace and keep a record of those actions.
If a farm employer properly complies with these items, they can reduce the likelihood of employment claims and costly litigation.
Schneider is a partner in the agricultural law firm of Twohig, Rietbrock, Schneider and Halbach. Call him at 920-849-4999.