By David Mayer Jr.
Our farm clients often tell us about the challenges they face in recruiting qualified employees. Many are finding it difficult to hire new employees who are willing to do the hard work and who possess the dedication and determination required for long-term success and employment with the farm.
I often hear from farm clients how they hired a new employee who appeared to be an excellent recruit and who claimed during the interview that he or she had the skill, experience and ability to handle the position. But shortly after starting, they quit because they were unwilling or unable to live up to the physical or mental demands required for the position. The same clients often express to us their frustration with the loss of the finances and resources invested in the new hire, and inquire whether it is possible to require a new hire to participate in unpaid training for a period of a couple of days to confirm the new hire has the skill, experience and ability to fulfill the responsibilities of the job.
The answer to whether unpaid, on-the-job training is a permissible employment practice requires a review of the applicable federal and state employment law requirements. The Federal Labor Standards Act sets the federal law minimum wage, overtime, record keeping, and child labor standards and requirements for agricultural employers.
Under FLSA, agricultural employees must be paid the minimum wage unless the employer is entitled to an exemption. Generally, an agricultural employer is exempt from the minimum wage requirements under FLSA if the employer did not utilize more than 500 “man days” of agricultural labor in any calendar quarter of the preceding calendar year. For the purposes of FLSA, a “man day” is defined as any day during which an employee performs agricultural work for at least one hour. FLSA also has several other exemptions to the minimum wage requirements.
In addition to the FLSA requirements, an agricultural employer must comply with state law requirements. Under Wisconsin law, all farmworkers must be paid a minimum wage of $7.25 per hour, because Wisconsin does not recognize the FLSA exemptions to the minimum wage requirements. The bottom line is that all Wisconsin agricultural workers must be paid minimum wage for each hour of farm work when the agricultural worker’s time is controlled by the farm employer.
Therefore, under Wisconsin law, it would not be permissible to require a new hire to participate in unpaid training. Furthermore, under federal law, unpaid attendance at a training program or a similar activity would need to be counted as working time unless the training meets the following criteria:
- attendance is outside of the employee’s regular working hours
- attendance is voluntary
- the course, lecture or meeting is not directly related to the employee’s job
- the employee does not perform any productive work during such attendance
However, the farm employer confronted with this challenge does have the ability to limit financial loss with adequate planning. One method the agricultural employer can use to limit financial exposure would be to institute a probationary period during which the new employee would be paid minimum wage and would be ineligible for any other voluntarily offered benefits. During the probationary period, the farm employer would have the opportunity to evaluate the employee’s performance and determine if he or she is a proper fit. However, if the employee is terminated during the probationary period for unsatisfactory performance or the employee quits, the employer will have expended a minimal amount of the farm’s financial and other resources.
Some farm employers may be hesitant to implement this approach because they are concerned that they may lose out on the most qualified employees because other farm employers offer a higher starting wage. To alleviate this concern, we generally advise that clients offer a “wage bonus” that is equal to the difference between the employee’s probationary wage and the wage the employee would earn at the end of the probationary period, which is contingent upon the new employee working a specified number of hours.
Mayer is an attorney in the agricultural law firm of Twohig, Rietbrock, Schneider and Halbach. Call him at 920-849-4999.