By Alona Myers,
A tragic skid-steer accident in Wisconsin involving a Hispanic guest worker sparked an OSHA (Occupational Safety and Health Administration) investigation and inspection that expanded to Wage and Hour inspections and became the genesis of a “local emphasis program” launched by OSHA. This emphasis program from Wisconsin, Ohio, and some other surrounding mid-western states has become a model for similar programs being contemplated in other states like New York. The New York program is still in the development stage, but given the perceived success of the Wisconsin program, it won’t be long in coming. So what can be expected?
The Wisconsin program began in 2012 and focused on:
- Manure Storage Facilities and Collection Structures
- Skid-Steer Loader Operation
- Animal Handling / Worker Positioning
- Electrical Systems
- Tractor Operation
- Guarding of Power Take-Offs (PTOs)
- Guarding of other power transmission and functional components
- Hazard Communication
- Confined Spaces
- Horizontal Bunker Silos
With the emphasis program, it is not so much that the number of inspections will increase, because there is a limit to OSHA’s man power, but that the inspections will be based on general things like the size of the operation rather than complaints or specific events. Additionally, it is illegal to announce an inspection in advance so the inspections that occur will be more random and the potential for fines will double or even triple. This makes for the appearance of a more aggressive “out-reach” on the part of the local OSHA office. You have the right to know why OSHA is inspecting your operation and you can demand to see a warrant which can buy some time before the inspection, but ultimately that is just delaying the inevitable. If you employ more than 10 employees or if your operation can be construed as a “temporary work camp”, then you are under OSHA’s jurisdiction. For what it is worth there have been occasions where dairy farm housing has been considered a “temporary work camp” even though dairy workers are not temporary workers. You can fight over the definition in court, but then you get the lawyers involved. There may also be questions for your attorney about whether you have enough employees to fall under OSHA’s jurisdiction. It is not always a straight-forward issue, but we know there are more large operations in NY than ever before. The popularity of Greek Yogurt alone has caused a small boom in the NY industry. Many of the farms that were too small to fall under OSHA 20 years ago have either gone out of business or have grown larger and can no longer fly under the radar like they used to.
When you combine that with the hard core pro-labor attitude of the current administration and the willingness of our lawmakers to legislate everything from soft drinks to school lunches, it is not surprising that wage and hour inspectors are piggy-backing on the OSHA inspections. So, for example, if providing housing is part of your employee’s compensation package, then it could be subject to both OSHA and Wage and Hour inspections. If there are violations found in the provided housing, there could be fines from OSHA and back compensation required by Wage and Hour. On the up side, this seems to be the only pairing up that OSHA is doing, but on the down side, that means you could potentially deal with ICE and some other agencies separately. OSHA and Wage and Hour are more interested in improving conditions where the worker is at than in sending the worker somewhere else, so they are particularly interested in what the workers have to say about farm conditions. They will often bring a translator along on the inspections as well, so there is a lot of wisdom in making sure your staff is prepared to meet inspectors when they arrive. If the inspectors show up and receive permission to inspect from a foreman or manager in your absence, you may be in for some surprises.
The bottom line is that it is more important than ever to be in compliance with the law. Your best defense is to educate yourself and work with people that know the law. In New York there are some wonderful professional resources available to you including Agri-Placement Services, NYCAMH, and the Farm Bureau, as well as a host of online resources and information. Agri-Placement Services specializes in all aspects of labor law compliance for dairy farms and NYCAMH offers training services and works with grants for tractor roll cages and other farm safety programs. With OSHA fines ranging from $7,000 to $70,000 per violation, it is definitely best to be prepared.