Since dairy farms operate as year round businesses, we often don’t pay any attention to the special laws and regulations that govern seasonal labor. We think that those issues are relevant only to traditionally seasonal operations such as fruits and vegetables. However, there is at least one regulation that dairy producers should be aware of, seasonal farm labor camps.

Pennsylvania’s definition of a seasonal farm labor camp includes:

• One or more individuals employed in agricultural labor on a seasonal or other temporary basis AND
• camps owned, leased, or operated by an employer or farm labor contractor where four or more unrelated individuals occupy the camp on a yearly basis.

The second point includes dairy farmers who provide housing for four or more unrelated individuals. This means that a dairy farmer who provides such housing must get a permit from the PA Department of Agriculture and must abide by regulations that govern such camps. (Yes, this regulation still applies even though the employees are not seasonal.)

The Pennsylvania Department of Agriculture regulates seasonal farm labor camps and provides a website on the topic. Visit their website or call them (717-787-4315 ) to learn more about camps and how to apply for a permit. You can also download a self inspection form from the website to get yourself prepared.

The proposed new No-match rules have been put aside for the time being. A federal judge ruled that the potential damages to innocent people outweighed the Department of Homeland Security’s need to implement the rule. So the proposed no-match rule is put off indefinitely. It may end up in a battle that eventually goes to the Supreme Court. For more on this topic, visit this article from Workforce Management newsletter.

So, does this mean farm employers can rest easy? Hardly. Homeland Security is still using all means available to them to enforce current law and put pressure on employers. All employers should make sure that they have properly completed I-9 forms for all employees.

It is also important for employers to understand that there is a difference between “knowingly” and “unknowingly” employing people who are unauthorized to work in the U.S. The Society for Human Resource Management recently reported on the felony conviction of a retail business owner and his employee who “knowingly” employed illegal immigrants. They were convicted of encouraging these unauthorized persons to remain in the U.S. and “participating in a conspiracy to conceal, harbor and shield these workers from detection.” The result was significant jail time for both the business owner and the employee.

I write this note not to scare employers but to inform them of the risks they run of “knowingly” employing illegal aliens. It’s one thing to employ people who have shown you documentation that appears authentic, but it is a different thing altogether to engage in activities to conceal and continue to employ people that you have substantial reason to believe are here illegally. Please be very diligent in your review of your employees’ authorization to work.

The Professional Dairy Managers of Pennsylvania and Dairy Alliance are coordinating action group meetings to discuss these issues and how you can get involved and have a positive impact. Please contact PDMP or myself if you would be interesting in hosting such a meeting in your area.

Visit this Dairy Alliance website for more on the Immigration Issue.

A federal judge in California delayed enforcement of the proposed Social Security No-Match rule for another 10 days. The judge will use that time to prepare a decision about the legality of the proposed rule. More details on this process can be found at this Yahoo! news site. Employers should use this time to continue reviewing their own files and ensuring that they are in compliance with the law.

U.S. News and World Report has given nationwide coverage to the disturbing North Dakota raid that took place in April of this year. The article also explores the economic effects of immigration raids.

Meanwhile, in Washington D.C., agricultural groups that favor immigration reform are working to resurrect the AgJobs bill.

For more information on immigration issues and information on how employers can comply with the law, go to: http://dairyalliance.psu.edu/hr/hispanic/ 

A federal judge in California temporarily blocked the Department of Homeland Security from implementing the new social security no-match rule. The rule was supposed to go into effect on September 14th but is now delayed until at least October 1st. The judge, in issuing her injunction, stated that the federal agencies needed to show clear evidence that a no-match letter should lead an employer to reasonably infer that an employee is here illegally.

For more on the immigrant workforce, see the Dairy Alliance website.

Recent changes in the rules about social security no-match letters and immigration raids have gotten a lot of attention in agriculture. Beginning September 14th, employers who knowingly employ people who are not authorized to work in the U.S. will soon be at risk of criminal prosecution and increased fines. In some cases, social security no-match letters could be evidence of “knowingly” employing someone who is not authorized to work.

The following information is provided as a resource to help employers understand and comply with the law. Topics include: the I-9 form, social security mismatch letters, responses to immigration enforcement, community relations, and online verification of work authorization documents. You can also access this information at the Dairy Alliance website.

Completing Form I-9, Employment Eligibility Verification

• Must be completed for ALL employees within three business days of the date employment is to begin
• Must be completed by the employer or employer’s representative, not by anyone else
  

• Employer must see documents as specified on page 3 of the I-9 form. The employer may not require the potential employee to provide certain documents.
• Keep all I-9s in a separate file so that they can be easily accessed if requested.
• Retain I-9s for 3 years from date of hire or for 1 year from date of termination of employment. Employees with temporary work authorization must provide proof of reauthorization when initial document expires.
• Employers are not required to keep copies of documents provided by employees.

• Link to the I-9 form: http://www.uscis.gov/files/form/i-9.pdf
• Link to ICE brochure on completing I-9.
• Link to more ICE information about Employment Authorization
• Link to frequently asked questions about employment eligibility

Online Verification of Employment Eligibility

Social Security and the Department of Homeland Security are offering an online service that will allow employers to check work authorization. Registration is required to use the Employment Eligibility Verification website.

Social Security Mismatch Letters

Many employers receive letters from the Social Security Administration that indicate one or more of their employees have social security numbers that do not match their names on file. ICE provides a more thorough discussion of how this new regulation will be handled on their website. They also provide an interactive website called the Safe Harbor Information Center.

Social Security Administration provides an online service where you can verify your employees’ records.

The Farm Employer’s Labor Service (FELS) in California has several attorneys’ discussion of the new Safe Harbor rule. If you have concerns about the work eligibility of your employees you should seek legal advice from an attorney about you specific situation.

What to do in the event of a raid

Dairy Today published a chilling account of a recent raid on a dairy farm in North Dakota. The article includes a list of 10 things to do when Immigration and Customs Enforcement (ICE) arrives at a farm to conduct an immigration raid.

The following article was prepared for the Becker Forum at Cornell University, February 13, 2007.

WHAT IMMIGRATION CAN AND CANNOT DO

By Walter H. Ruehle, Esq. of the Legal Aid Society of Rochester

Immigration has the authority to enforce our nation’s immigration laws. However, their authority is limited by the U.S. Constitution, the Immigration and Nationality Act and its regulations, and by internal practice. The ability of the local and state police to enforce the immigration law is even more limited.

THE LIMITS OF INS AUTHORITY

1. CONSENSUAL QUESTIONING – Immigration can ask questions of a person if they have a “reasonable suspicion, based upon specific, articulable facts,” that that person is not a US citizen. By itself, a person’s ethnic appearance and inability to speak English is not reasonable suspicion; foreign dress or grooming, a high concentration of aliens in the area, or a tip from an informant is. [If Immigration walks up a person, the only question that person must answer is their name. The person has the right to refuse to answer any other questions and to walk away from the officer. If the person walks away, the officer cannot do anything else unless the officer has a legal basis to detain them (see 2 below). However, if the person runs away, the officer has the right to detain them.]
2. DETENTION -Immigration cannot stop a car, or detain a person in some other way, unless they have a “reasonable suspicion, based on specific, articulable facts,” that that person is not a U.S. citizen and is in the U.S. illegally. Immigration cannot detain a person solely because of their skin color, inability to speak English, farmworker status and/or their out of state car. A specific tip, erratic driving or running away from agents, or the employee’s false immigration papers, obtained from an employer during an audit, do give the agents the right to detain.
3. ARREST – Immigration can arrest a person if they have an arrest warrant, or if they have probable cause to believe a person is not a US citizen, is in the U.S. illegally, and is likely to escape before a warrant can be obtained.
4. SEARCHES OF DWELLINGS – Immigration cannot come into a dwelling unless they have a search warrant, or unless the occupant gives them permission to enter. A landlord cannot give Immigration permission; neither can the employer where the employer provides the housing. To get permission, Immigration must knock at the door and identify themselves before they come in.
5. FARM OPERATIONS – Immigration cannot enter a farm or “other outdoor agricultural operation” to question a person suspected of being an alien unless they have either the consent of the owner or a warrant.
6. MANNER OF QUESTIONING -Immigration cannot force a person to answer questions. They also cannot threaten, or trick a person into answering questions by promising that things will be better if the person answers. Use of “third degree” methods is also prohibited.
7. USE OF FIREARMS – Immigration cannot use their weapons unless they believe that a person is going to kill or seriously hurt them or some other person. “Warning shots” are expressly prohibited.
8. BEHAVIOR – According to the Border Patrol Manual, Border Patrol agents must treat everyone with courtesy and kindness. They cannot be arrogant or unpleasant. If in plainclothes, they must identify themselves before doing anything else. If asked, they must show identification.

THE LIMITS OF POLICE AUTHORITY

State and local police can only enforce the criminal provisions of immigration law. Under the immigration law, it is a crime to enter the U.S. illegally, but it is not a crime to enter the U.S. legally and remain longer than permitted. Thus, the police cannot detain or arrest a person unless they satisfy the same standard as Immigration (see 2 and 3 above) AND they also have reason to believe that the person entered the U.S. illegally.

Community Relations

People in rural communities are often concerned, even frightened, when Hispanic farm workers first enter a community. Dairy managers should try to dispel these fears with factual information. Here is a discussion of some common myths about immigrant dairy farm workers.

A more thorough discussion of community relations activities was presented at the 2003 conference on Managing the Hispanic Workforce. Find it here.

Iowa Center for Immigrant Leadership and Integration is a great resource for community integration. Look for the new booklet called “New Americans, New Iowans.”

Employee Wages and Housing

Pennsylvania’s Seasonal Farm Labor Law governs the treatment and housing of seasonal farm workers. While most dairy employees will not be covered by this law, it is advisable for all employers who provide housing to be familiar with it. The regulations spell out how this law is enforced.

Immigration Lawyers

This link takes you to a lawyers.com search for attorneys who practice immigration law in Pennsylvania.

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Many people are misinformed about the employment of immigrant (mainly Hispanic) farm workers in agriculture. In the dairy industry at least, Hispanic farm workers have almost exactly the same employment situations as their counterparts from the local population.

Myth #1: Immigrant farm workers are low paid. Farming is not a get-rich-quick scheme but dairy farm wages are competitive with many other industries. Cornell research from 2004 placed average cash wages for dairy workers at $7.51 in New York. An informal survey done in Pennsylvania… at the same time found cash wages at about $8 to $8.50. These rates compared favorably with entry level jobs in retail and service industries at the time. Most immigrant workers also receive housing and other benefits in addition to the cash wage.

Myth #2: Immigrant farm workers do not pay taxes. These workers are hired in exactly the same way as all other employees. Taxes are withheld for local, state, and federal payments.

Myth #3. Immigrant farm workers do not pay into Social Security. On the contrary, these workers pay into the system, but they may never collect from it. If an employee is using a false social security number then he or she may never collect the money paid in.

Myth #4: Immigrant farm workers are abused. Isolated cases of abuse occur, as in any population. However, there is an active market for farm workers. Employers have to be fair and strive to create a good working atmosphere and good conditions in order to retain employees. Dairy farmers work hard to create a friendly working environment and promote inter-cultural understanding.

Myth #5: Immigrant farm workers are paid under the table. Their employment is regularly reported and documented to the appropriate authorities.

Myth #6: Immigrant farm workers take jobs from local people. It is possible that the availability of immigrant workers could take away some farm employment opportunities for local people. Farmers maintain, however, that it is nearly impossible to find enough willing workers to fill entry-level farm jobs in the local population. Pennsylvania’s unemployment rate in April 2007 was 3.8%. This low unemployment rate means that there are very few people looking for work. Without immigrant workers it would be extremely difficult for farms to find enough people to fill the jobs essential to our food supply.

Myth #7: Immigrant farm workers don’t learn English. Learning another language is difficult for many people, especially as we get older. There are many immigrant workers taking advantage of English learning opportunities with the support of their farm employers. Immigrants with young children find that the kids rapidly learn English and sometimes struggle to speak Spanish.

After dispelling some myths, it is also important to consider a few facts.

Fact #1: Long hours. Most immigrant farm workers work many hours per week, often in the range of 60 to 80 hours. There are definite concerns about people working so many hours. Workers often demand to work long hours because they want to earn as much money as possible to send to family members in their native countries, and so that they can return home more quickly.

Fact #2: Employment documentation is a problem. It is true that many immigrant farm workers have falsified documents. A black market exists where these documents can be purchased, and the fake ones look just like the real ones. Employers are required to review documents to determine identity and employment eligibility, they are also not permitted to discriminate if the documents appear legitimate. The current state of documentation in this country makes it very difficult for employers to determine who is authorized to work and who is not.

Clearly, we have problems with the current immigrant farm worker situation in this country. We should not have people purchasing and using falsified documents to gain employment. Likewise, farmers should not be forced to play detective when deciding which papers are real and which are false. Reform of our system, however, should be based on facts and not on myths.

Few Local Workers
Pennsylvania is a large and productive agricultural state. Many jobs are created in the agricultural industry that help to bring a wide variety of high-quality products to the market at very affordable prices. Unfortunately, too few residents of local communities are aware of farm employment opportunities or willing to take them. Advertisements for farm jobs in local newspapers and job banks go unanswered. Farm jobs have a mostly undeserved reputation in the public’s consciousness of being hard, dirty, and low-paying. True, the work is sometimes physically demanding, exposed to the outdoor environment, and sometimes you get dirty. On the other hand, the pay is usually quite competitive with other entry-level jobs, you’re not stuck inside all day, and you may perform a variety of tasks that are not found in other jobs. In the dairy industry, many jobs are very engaging, especially for people who enjoy working with animals.

Supply Meets Demand
In the last 5 to 10 years, immigrants from Mexico and other Spanish-speaking countries have discovered the great demand for farm employees in Pennsylvania. They come from places where wage rates are only about one tenth of what they can earn here. Farmers provide good wages typically ranging from $8 to $12 per hour in Pennsylvania and often including benefits such as housing and health care. Farmers indicate that Hispanic employees tend to be very dependable and hard-working. In the dairy business it is critically important to have a reliable workforce that shows up to milk the cows on time, this need is met by the Hispanic workforce. Thus the combination of farm employers finding a reliable workforce and employees finding lucrative and satisfying job opportunities is an almost irresistible attraction.

These are the primary reasons for the dramatic growth of the immigrant (mainly Hispanic) workforce in Pennsylvania.

You can read more about what motivates Hispanic immigration in this paper from the 2005 Conference on Managing the Hispanic Workforce.

One of the most common complaints from dairy producers today is that it is very difficult to find and keep good employees. This problem has led many people to turn to the Hispanic workforce as an alternative source of employees. While this option has worked for many people, it is an option that carries it’s own set of risks. These risks include: language barriers in the workplace and the likelihood that some of these workers are not legally eligible to work in the U.S.

The dairy industry is not alone in facing this problem. A March 4th article in the Centre Daily Times pointed out that the trucking industry faces similar problems with an annual driver turnover rate of over 100 percent. Their problem is exacerbated by the need for drivers to be away from home for extended periods of time and stagnant pay rates.

The dairy industry is facing a shortage of people to fill middle management jobs such as herdspersons and parlor managers. The public is largely unfamiliar with modern agriculture and unaware that there are job opportunities in the industry. The industry has always relied on recruiting kids who grew up on farms to study agriculture and return to the industry, unfortunately there aren’t enough of those kids anymore. It is time for the dairy industry to start presenting itself as a viable career option for people in the general public who might be interested. Dairy management jobs pay well, involve working with animals, and allow people to be home with their families at night. These are features and benefits of careers in agriculture that people need to learn about. In order to secure a sufficient workforce, the industry must do a better job of recruiting, training, and promoting employees.

Background:

According to the National Corn Growers Association, the continued rapid expansion of the ethanol industry in the United States will mean increased volume of distiller’s grains. In 1999, 1.47 billion gallons of ethanol was produced compared to 3.41 billion in 2004, and 4 billion in 2005. During the 2004/2005 crop year, 1.325 billion bushels of corn went to ethanol production and approximately 1.5 billion bushels of corn will be used in the 2005/2006 crop year. As a result the byproduct of ethanol production, distiller’s grain, has gone from 7.3 million tons produced in 2004, to 8.89 million tons in 2005/2006 with an expected production of 10 millions tons in 2006/2007. The first question: What is going to happen to the increasing volume of distiller’s grain produced?

New generation of distiller’s grains (NGDG):

With advancing technology, today’s ethanol plants are producing a slightly different product compared to previous analyses reported in the 1989 and 2001 NRC Nutrient Requirements of Dairy Cattle. The average crude protein of NGDG is around 30% with a range between 27 to 35% on a dry matter basis. Recent research on NGDG shows rumen undegradable protein higher (63.5% to 78% of crude protein) compared to previous reports of 47% to 57% of crude protein. The fiber fractions in NGDG can be quite variable and they tend to be lower compared to values reported in the 1989 and 2001 NRC. Based on recent research, the neutral detergent fiber value is on the low end of the range (27% on a dry matter basis) compared to the NRC values of 39% to 44%. Other nutrients that should be evaluated with NGDG are fat and phosphorus. Distiller’s grains contain high levels of unsaturated oil and fat can range from 10-15% on a dry matter basis. The range for phosphorus can be 0.65 to 0.95% on a dry matter basis. Another difference with advancing technology in ethanol plants, is improving the complete fermentation of starch. NGDG contain 5% or less starch compared to earlier analyses of 10 to 15% on a dry matter basis. The analyses of NGDG can vary substantially among ethanol plants. The second question: What affect will NGDG have on precision feeding?

Nutrient Management Considerations (Precision Feeding):

The dairy industry has made significant improvements in lowering phosphorus content in dairy rations and recently, working on fine-tuning nitrogen intakes to help improve water and air quality. With the increased volume of distiller’s grains on the market (question 1), the logical assumption is that it will go to livestock feeding. There have been several research papers evaluating feeding 20 to 25% of the ration dry matter with distiller’s grain for lactating dairy cows. This equates to 10 to 13 pounds of dried distiller’s grain per cow daily. This is very different from the 4 to 5 pounds commonly fed. Add to the volume of distiller’s grain fed, the higher level of protein and phosphorus along with the variability in nutrients, the potential to over feed phosphorus and nitrogen is great (question 2). There is also the issue of feeding high levels of fat and rumen undegradable protein and the effect on production and components. If the industry moves towards feeding higher levels of distiller’s grains, the issue is not only excess nutrients fed and excreted, but the impact on production and components. Before higher inclusion levels of NGDG are even considered, pay attention to ration costs (best cost ration vs. least cost), potential impacts on animal performance and profitability, and don’t overlook the environmental impact. Constant attention to regular feed analysis will be critical with the NGDG. There is a lot to consider before incorporating NGDG into rations, especially at the higher inclusion levels.

References:

Distiller’s Grain Feeding Recommendations for Beef, Dairy, Swine and Poultry. 2006. Compiled by the National Corn Grower’s Association. www.ncga.com

Using Distillers Grains in Dairy Cattle Diets. 2006. Penn State Dairy Cattle Nutrition Workshop Proceedings. Pg 79. http://www.das.psu.edu/dairynutrition/education/workshop2006/