Final Report for LNE07-255
The purpose of the On-Farm Workstays Project is to research and provide on-farm mentors with the information they need to create safe and lawful on-farm workstays, with a focus on employer responsibility (wage and hour law); employee housing; and worker’s comp. Outreach to the over 400 Northeast farmers who list workstay (“apprenticeship” or “internship”) opportunities through the region’s on-line matching services began with an informational mailing about the Project, its key topics of interest, and an invitation encouraging further Project involvement – first by response to an On-Farm Mentor survey and then by direct participation in one or more workshops and documented follow-up. The 79 survey responses provided valuable information about this constituency as well as evidence of farmers’ keen interest in the topics, concerns about confidentiality and frustration with complex legal and regulatory requirements. Project plans of offer peer-to-peer workshop presentations by practicing mentors were replaced by standard, carefully researched presentations prepared by the Project’s Coordinator – a response to concern that offering information on the three topics involved might erroneously be construed as legal advice. Project milestones for initial outreach and survey response were achieved to Project satisfaction. The milestone established for workshop participation (120) was achieved with modest success (93 attendees ) but few of the Project’s initial contacts participated; expectations that 60 workshop attendees would request follow-up assistance (with requirement for documented change in practice), the Project’s final milestone, was a significant failure and Project setback. Confidentiality and fear that participation would trigger on-farm inspection by regulators were stated concerns. Three farms did come forward with information about their attempts to achieve compliance. In no instance could the cost of full compliance (i.e., with wage and hour law, housing requirements and worker’s compensation) be supported by current farm revenue. The need for further research and engagement was clear.
Time (and resources) spent on researching the varying and complex state-based laws and regulations limited Project focus to six of the twelve Northeast states: CT, ME, MA, NH, NY and VT—another unanticipated Project “failure.” An “interim” report (attached) includes information relevant to these six states; to date, resources required to complete research for the remaining Northeast states has not been obtained.
Over 400 Northeast farmers currently offer on-farm “workstay” opportunities. Following the time-honored tradition of on-farm mentoring, they play an important role in training the next generation of farmers, and many (if not most) see themselves as teachers, not employers. In hosting trainees, they agree to impart a wide range of farming skills and knowledge in exchange for help they need on their farms. Similarly, their trainees are likely to see themselves as students, not employees, and often willingly accept little or no monetary compensation, viewing their education as sufficient return for the work they do.
NEWOOF, a regional trainee matching service, has profiled many of these farmers through annual surveys that confirm the resilience of this tradition. While all respondents cite multiple reasons for hosting trainees, two consistently rank highest and of virtually equal importance -- “I need farm labor” and “I want to train new farmers.” However, many of these farmers do believe that “space in the barn and all the veggies you can eat” is not pay, and that they are not employers. It comes as an unpleasant surprise to learn that while time their trainees spend in class or hands-on instruction can legitimately be seen as “education,” they become employees when performing work that contributes to a farmer’s bottom line.
Why focus on this challenging topic? Experienced farmers have told us that they want and need this information. In an increasingly regulatory environment, they are aware that they are at risk, seek change, and are uncertain how to proceed. “Developing training materials on how to research and comply with start-up and ongoing legal requirements” scored highest in a regional survey of on-farm mentors’ educational and training needs and interests (DACUM Occupational Profile Survey for On-Farm Mentors, 2000). In response, the On-Farm Workstays Project seeks to begin addressing these needs – to research and educate on-farm mentors about existing labor law and regulation, and help develop ways to create on-farm training opportunities that can both comply with this law and regulation, and make it economically feasible to host trainees. If successful, the Project may also provide a first step in laying groundwork for appropriate regulatory change, and/or in creating a more formal approach to on-farm training that recognizes and sanctions the educational nature and value of the mentor/trainee relationship.
Performance Target: of over 450 Northeast small farmers who currently list on-farm workstay opportunities and receive a mailing about the Project and its informational resources, 120 (26%) will [respond and] elect to attend a Project-sponsored state or regional workshop and become informed about (1) legal issues associated with “hosting” farm labor (60 workshop participants) or (2) effective farm skills training techniques (60 participants) and 50% of these will provide evidence of behavioral change.
The Project did not achieve this Performance Target. While it received 79 (18%) responses to its mailing, 45 (57%) indicated interest (yes or maybe) in a workshop, and there were 93 workshop attendees, as the Project engaged in workshop activities, participating farmers showed little or no interest in follow-up assistance with its requirement for documented change in practice (see commentary on Milestone 3, below). Eventually, three did share information with the Project, with agreement on complete confidentiality and that there would be no documentation. In all three instances, however, it was clear that changes required for complete compliance could not be supported by current farm revenue.
a. Data Base. The Project began with data base development. Farmer contact information extracted from six online “apprenticeship matching services” was combined and organized by state.
b. Informational Packet and Survey. The Project’s nine page informational packet included an introductory cover letter explaining the Project and inviting participation; an On-Farm Mentor Employment Issues Survey with SASE; three two-page “Did You Know” handouts on the employment status of on-farm trainees, workers compensation insurance law, and OSHA regulation on employee housing; and an order form for The On-Farm Mentor’s Guide – Practical Approaches to Teaching on the Farm.
c. Workshop Presentation(s). The Project prepared a generic PowerPoint presentation, “Create Safe and Legal Workstays on Your Farm” for use in workshop settings, to be modified as needed for offerings in each state. The packet included a copy of the PowerPoint (9 pages), three state-specific informational documents (“Are your Trainees Employees?” (8 pages); “Workers’ Compensation Insurance” (4 pages); and “OSHA Regulations for Employee Housing” (2 pages) as well as a list of print and electronic resources for [State] Agricultural Employers, a Request for Follow-up Assistance/Information, and a Workshop Evaluation Form. The Project prepared a PowerPoint presentation/workshop, “Cultivating a New Crop of Farmers: Is On-Farm Mentoring Right for You and Your Farm?” – an Introductory Workshop based on the Decision Making Workbook of the same name. Worksheets include: “Motivations for Becoming an On-Farm Mentor,” “Behaviors and Characteristics of Successful On-Farm Mentors,” and “Creating On-Farm Resources for Your Training Program.” An extensive resource list is provided as well. Access to this material will be provided online at www.smallfarm.org.
d. Outreach Materials. The Project distributed informational handouts at conferences and meetings and responded to numerous requests for information by telephone and mail. Project staff prepared and distributed an “interim” report, “The On-Farm Workstays Project,” summarizing Project topics relevant to the states for which research had been completed: CT, ME, MA, NH, NY and VT. The Appendix to this report includes a listing of print and electronic information resources for agricultural employers; a 3-page worksheet on “Agricultural Work and the 500 Man-Day Exemption Under the Fair labor Standards Act; and a 2-page summary of OSHA Regulations for Employee Housing with compliance questionnaire. Dated 2008, the Project anticipated need to seek additional time and resources to complete research and outreach to the remaining six Northeast states.
Milestone 1 - 450 farmers receive Project information packages.
The Project was launched in October 2007 with the mailing of an information packet and survey (with SASE) to 432 farmers offering “apprenticeship” or “internship” opportunities through in one or more of the following online matching services: NEWOOF, ATTRA, MOFGA, the NOFA’s, the Biodynamic Association and SAITA. The milestone target was, for all practical purposes, achieved. The invitational cover letter began with a quote from The On-Farm Mentor’s Guide – A Practical Approach to Teaching on the Farm: “Did you know? Trainees (interns, apprentices, etc.) in a classroom on your farm aren’t considered employees, but the minute they pluck so much as a bean from a plant for you, or carry a bucket of water to your chickens, they are.” It acknowledged that “understanding the laws defining who are employees and the regulations governing their employers can be daunting,” and invited recipients to take part in a Project designed to conduct research and provide information on legal issues in three critical areas: employer responsibilities (wage and hour law); trainee housing; and worker’s compensation. Two-page informational sheets on these three topics were included in the packet. An “On-Farm Mentor Employment Issues Survey” asked:
a. On average, how many trainees (interns, apprentices, etc.) do you host each year?
b. How many employees (excluding yourself) do you have in addition to trainees?
c. How useful is the information provided in the information packet (scale: 1=very useful to 5=not useful)?
d. Did you learn something you did not know before?
e. Are you interested in attending a workshop on employer issues?
f. What questions or concerns do you have?
Milestone 2: 80 farmers return survey and response forms.
The Project survey achieved an 18% response (79 responses) and thus met its milestone target. Responses were as follows:
a. Average number of trainees/year: 0(22); 1(16); 2(13); 3(8); 4(12); 5(2); 6(2); 10(1); 12(1); 15(1); 25(1).
b. Average number of employees/year: 0(25); 1(12); 2(10); 3(1); 4(9); 5(11); 6(2); 7(1); 8(1); 9(1); 12(3); 14(1); 17(1); 20(1).
c. Usefulness of information: 1(25); 2(18); 3(21); 4(7); 5(4); no response (4).
d. Learn something? Five (5%) of 79 responding answered “No.” Comments: “No, but would be interested in attending workshop on employer issues anyway.” “No, but glad to see focus on employment and away from on-farm ‘apprenticeships.’” “(2) No, we have already read the ‘On-Farm Mentor’s Guide.’”
e. Interest in workshop? No - 23; Maybe – 8; Yes – 37; no response (11). NOTE: Yes and maybe responses received notification of workshops to be held in the region or in their state.
f. Questions or concerns? Twenty-nine (30%) of 79 responding failed to answer this question; however, of these, only 11 were not interested in a workshop. The 50 responses to this question, taken together, comprise the single most fruitful result of the Project. They provide an early hint of the workstay problems, confidentiality concerns, agency mistrust, and breadth and complexity of issues the Project would confront as it developed. In addition to written responses, the Project also received several phone calls and emails requesting to be removed from the Project mailing list, citing concern that participation might trigger on-farm visits from regulators. Because of their importance to the Project, included here is a sampling of written responses:
“These agencies with their crazy rules don’t seem to bother you until you try to comply. It’s better to stay off the radar screen. I truly don’t believe they are going to go after small farms unless you ask them to.”
“I have difficulty getting interns who will take the job seriously and are willing to learn.”
“I am paying cash off the books as many others do. What are the risks?”
“What are my legal responsibilities to volunteers and working CSA shareholders?”
“We were inspected at a time when we had one intern and were cited for inadequate posting and failing to provide the intern with written weekly documentation of … deductions for housing.”
“What about folks who want to work on your farm for free?”
“I could not run my farm without apprentices, but could never afford to comply with the regulations you mention here.”
“We are treating our patients as helpers and assume we don’t fall under these restrictive laws.”
“I have tried but I can’t stay legal and meet my labor budget.”
“We generally hire [a specific religion was mentioned] boys. Any issues here?”
“We are a non-profit so no work contributes to our ‘bottom line.’”
“[This project represents] wasted taxes spent on SARE and other items under spendthrift USDA direction. How many government workers does it take to plant and harvest a crop? About 200,000!”
“Reading this makes me think of downsizing and not employing anyone, ever.”
“I used to have interns and tried to comply with the regs. When my Worker’s Compensation increased by a factor of 4 for half the coverage, I decided I could not have any interns. With my new knowledge [provided in your packet], I will definitely never have another intern.”
“We once hosted over 20 interns. Because [legal issues] are so complicated and there is so much government involvement, we have decided to downscale and now rely only on family.”
“Thank you. This is a great idea. It’s research I would not have time to do myself.”
And last but not least: “We need a lot more clarification on all these things!”
In retrospect, this would have been an appropriate time to re-consider Project reliance on workshops as a means of presenting complex legal information and engaging farmers in evaluation of their farm practices in these sensitive areas—particularly when associated with the Project requirement for documented change.
Milestone 3: 120 farmers attend workshops and complete workshop evaluation forms.
The Project held workshops in CT, NH, MA, NY and at the NOFA Summer Conference. Attendance varied from as few as 5 to over 40 (a conference gathering) for a total of 93 participants (77% of target). Direct feedback indicated keen interest in the topic but uncertainty about further direct participation. Although evaluation forms were distributed to all participants, few were returned. All found the workshop valuable; confidentiality and fear that participation would trigger on-farm inspection by regulators were stated concerns.
NOTE: Early expectation that practicing on-farm mentors (key individuals) would deliver Project workshops was set aside, due to the unexpectedly complex nature and variability of state-based regulations and concern over presenting information that might be construed as legal advice. All workshops were presented by Project Coordinator/ Researcher, Kathryn Hayes. Each was designed to present state-specific information based on her research. Due to the extensive amount of research required for each presentation, workshop content and outreach was completed for only six of the twelve Northeast states – limits imposed by Project resources and time.
Milestone 4: 60 workshop attendees [request follow-up assistance and] report a change in practice or behavior as a result.
This milestone was a significant failure and Project setback. Although printed Requests for Follow-up Assistance and Information were distributed at each workshop, hoped-for post-workshop participation that required documentation of change in practice did not occur. In response, Project personnel convened meetings with leadership of five regional organizations to request assistance in outreach and recruitment but none provided these services. Three farms eventually volunteered to work with the Project under strict confidentiality agreement. In all instances, it became evident that the cost of full compliance in all three of the Project’s areas of interest (employer responsibility [wage and hour law], employee housing and worker’s compensation) could not be supported by current farm revenues
See Materials and Methods, above.
Additional Project Outcomes
Impacts of Results/Outcomes
The immediate impact of Project results is sobering. A tradition of passing along farming knowledge through on-farm workstays – on-farm mentoring – faces serious challenge from labor law and regulation that may not have been crafted with these time- honored training arrangements in mind. While providing farmers and trainees with needed information is an important first step, it does not automatically inspire engagement and compliance. Disengagement -- a retreat “under the radar” -- is a frequent response, with significant attendant risk. Moreover, when the economic impact of labor law compliance is subjected to close scrutiny, the news can be equally disturbing. As one dairy farmer noted, “It is difficult to pay a ‘living wage with all the bells and whistles’ to my milking replacement when I figure I’m earning about 89 cents an hour myself.”
Nevertheless, hiding under the radar is clearly not an option. Project proponents believe that crafting a system that works is achievable. A research and design challenge with great potential, it will require both a clear understanding of relevant labor law and regulation – which this Project has begun to offer – and further research on successful “vo-ag” educational programming designed to provide competency based, experiential learning for adults. (See Areas Needing Further Research, below.)
As noted, documentation of farmer compliance with labor law and regulation covered by the Project (Milestone 4) was a significant Project failure and Project setback. Confidentiality and fear that participation would trigger on-farm inspection by regulators were stated concerns. Three farms did come forward with information about attempts to achieve compliance. In no instance could the cost of full compliance (i.e., with wage and hour law, housing requirements and worker’s compensation) be supported by current farm revenue.
Areas needing additional study
a. State-specific labor law and regulation for RI, PA, NH, MD, DE and WV.
b. Vocational training and funding models that offer compensation to qualified on-farm mentors for time spent as educators and pay to trainees for agricultural work.
c. Creative approaches to providing trainees with financial resources required to support training needs.