This document provides an overview of Cari B. Rincker's background and experience in food and agriculture law. It then summarizes several key areas of law impacting local food producers, including the Food Safety Modernization Act, National Organic Program standards, direct meat marketing rules, on-farm poultry slaughter laws, agriculture district protections, urban agriculture laws, and rules around volunteer farm labor. For each area, it provides a brief high-level summary of the applicable laws, regulations and exemptions. The document is intended to help counsel and advise local food producers on legal compliance.
Counsel local food movements on FSMA and organic regulations
1. Part 2: Counseling the Local Food
Movement
Lawline
November 18, 2013
By Cari B. Rincker, Esq.
2. My Background
• Grew up on a beef cattle
farm in Central Illinois
• Education
– A.S. in Agriculture from
Lake Land College
– B.S. in Animal Science from
Texas A & M
– M.S. in Ruminant (Beef
Cattle) Nutrition from
University of Illinois
3. My Background
• J.D. from Pace Law School
(2007)
– Certificates in Environmental
Law & International Law
• Associate at Budd-Falen
Law Offices in Cheyenne,
Wyoming (2008-2009)
– Environmental Law, Property
Law, Land Use & Federal
Lands
– Worked with “cowboys”
Cattle branding in
Casper, Wyoming
4. My Background
• Have my own food and
agriculture law practice in New
York City
• Chair of the American Bar
Association, General Practice,
Solo & Small Firm Division’s
Agriculture Law Committee
• My food and agriculture client
base
– Farmers to ranchers
– Small to mid-size agri-business
– Food entrepreneurs
5. Overview
• Food Safety Modernization
Act
• National Organic Program
• Direct Meat Marketing
• On Farm Poultry Slaughter
• Agriculture Districts and
the Right to Farm
• Urban Agriculture
• Volunteer Farm Labor
7. Food Safety Modernization Act
• Food Safety Modernization Act
(“FSMA – pronounced Fiz-ma”)
was signed into law by President
Obama on January 4, 2011
– Shifts the focus from responding
to contamination to preventing it
• Reactive system to a proactive
system
– First major update to food safety
law in 70 years
8. Food Safety Modernization Act
• FDA released
proposed rules on
January 2013
• Awaiting final rules
(C) Cari Rincker, 2013
8
9. Food Safety Modernization Act
• The proposed rule mandates
the establishment of two
primary regulations:
– Standards for produce
production (The “Produce
Rule”)
– Food safety measures for
facilities that process food for
human consumption (the
“Preventative Controls Rule”)
10. Proposed Produce Safety Rule
• Establishes science-based
minimum standards for the safe
growing, harvesting, packing and
holding of produce on farms
• Proposed new standards regulate
the following areas:
– Worker training, health & hygiene
– Agricultural water
– Biological soil amendments of
animal origin
– Domesticated and wild animals
– Equipment, tools and buildings
FDA – FAQ’s
11. Proposed Produce Safety Rule
• Farms fall into one
of three categories:
– Exempt
– Modified
requirements
– Full requirements
National Sustainable Agriculture Coalition
12. Proposed Produce Safety Rule
• What kind of produce?
– Most fruits and vegetables
in the raw / unprocessed
state
– Exemptions: Doesn’t
apply to raw agricultural
commodities that are:
• rarely consumed raw
– E.g., potatoes
• Produced for personal or
on-farm consumption
• Destined for commercial
processing (with
documentation)
– E.g., canning, bagged
salads and leafy
greens
13. Proposed Produce Safety Rule
A farm is exempt if
the average annual
sales during the
previous 3-year
period is no more
than $25K
– This is sales not
profit
14. Modified Requirements
• If the produce will undergo
additional commercial
processing that kills harmful
microorganisms, then the
produce is not covered
– However, the farm will be
subject to recordkeeping
requirements and the
compliance and
enforcement
requirements of the
Produce Rule
National Sustainable Agriculture Coalition
15. Modified Requirements
• If the farm on average over the
previous 3 years has less than $500K
in gross annual sales and the
majority of the food is sold directly
to a “qualified end-user” (e.g.,
consumer, restaurant or retail food
establishment) then the farmer
must:
– Provide the name and complete address
of the farm where the produce was
grown on either a food packaging label
or on a sign at the point of purchase
– Comply with the compliance and
enforcement requirements of the
Produce Rule; and
– Be subject to the provisions regarding
the withdrawal of the farm’s status as a
partially covered (“qualified exempt”)
operation.
National Sustainable Agriculture Coalition
16. Proposed Preventative Controls Rule
• A “facility” is a location that manufactures, processes, packs or holds food
for consumption in the United States
• FDA will look at whether there are any manufacturing or processing
activities
–
–
–
–
–
–
–
–
–
–
–
–
–
–
–
Irradiation
Cutting/coring/chopping/slicing
Canning
Coating with things other than wax/oil/resin
Drying that creates a distinct commodity
Artificial ripening
Cooking
Pasteurizing/homogenizing
Infusing
Distilling
Salting
Smoking
Grinding/milling
Freezing
Slaughtering animals or post-slaughter operations
National Sustainable Agriculture Coalition
17. Proposed Preventative Controls Rule
•
FDA looks at the type of
manufacturing and processing
activities
– Whether the farm is conducting
the activities on its own
agricultural products
• Reduced requirements
– Whether the facility is
manufacturing and processing
someone else’s agricultural
products
National Sustainable Agriculture Coalition
18. Proposed Preventative Controls Rule
• Proposed rule has two main
points:
– Requirements for hazard
analysis and risk-based
preventative controls; and
– Revisions to existing Current
Good Manufacturing Practice
(“GMP”) requirements
• Some facilities are subject to
only one and not the otherimportant to see them as two
different requirements
National Sustainable Agriculture Coalition
19. Proposed Preventative Controls Rule
• Who is subject to the
Hazard Analysis and
Risk-Based
Preventive Controls
(“HARPC”)?
• 3 categories
– Exemptions
– Modified
requirements
– Full requirements
National Sustainable Agriculture Coalition
20. Exemptions from Hazard Analysis and RiskBased Preventative Controls
•
Following products are exempt
–
–
–
–
–
Juice
Seafood
Dietary Supplements
Alcoholic beverages
Low-acid canned foods
•
Grain elevators and warehouses that are solely
engaged in storing agricultural commodities or
packaged food
•
Small or very small on-farm businesses that
conduct certain low-risk manufacturing and
processing, packing or holding activities
– Making jams and jellies
– Manufacturing honey and maple syrup
National Sustainable Agriculture Coalition
21. Facilities Subject to Modified
HARPC Requirements
• If the facility on average over the previous 3 years has
less than $500K in gross annual sales and the majority
of the food is sold directly to a “qualified end-user”
(e.g., consumer, restaurant or retail food
establishment) then the facility must maintain certain
records and must certify that:
– It qualifies for modified requirements; and
– It is implementing and monitoring preventive or complying
with applicable non-federal food safety law and must
display a label or sign with the complete business address
of the facility at the point of sale
National Sustainable Agriculture Coalition
22. Proposed Preventative Controls Rule
• Who must comply with the
current Good Manufacturing
Practices (“GMPs”)?
– Only facilities that are
exempt are warehouses and
grain elevators that store raw
agricultural commodities
(including fruits and
vegetables) intended for
further processing
National Sustainable Agriculture Coalition
23. National Organic Program
• Harrison Pittman et al., “A Legal Guide to the
National Organic Program”, The National
Agriculture Law Center (January 2011) available
at http://nationalaglawcenter.org/wpcontent/uploads/assets/articles/pittman_organic
program.pdf (last visited September 29, 2013).
– NALC has a great online law library on a myriad of
legal topics affecting the food and agriculture industry
(“Reading Room” tab online)
24. National Organic Program
• Congress enacted the Organic Foods Production
Act (“OFPA”) in 1990
– to create “national standards governing the
marketing of certain agricultural products as
organically produced products,”
– assure consumers that “organically produced
products meet a consistent standard,” and
– facilitate “interstate commerce in fresh and
processed food that is organically produced.”
• OFPA directed the U.S. Department of Agriculture
(“USDA”) to establish national standards for
organic production and handling
Pittman at 1
25. National Organic Program
• On December 21, 2000, USDA
published the final rule that created
the organic standards
– Directed that it be administered by
the USDA Agriculture Marketing
Service (“AMS”)
• As of October 21, 2002, for a
producer or handler to sell, label or
represent that an agricultural
product is “organic” then he/she/it
must comply with NOP standards
– Limited exceptions
Pittman at 1
26. NOP Applicability
• Exceptions to NOP certification
requirements
– 1. Production or handling operation
that has a gross income from sales
totaling $5K or less
• Primary direct-to-consumer and indirect
markets
• Still must comply with applicable organic
production and handling requirements
– Doesn’t have to submit an organic system
plan
• Must also comply with labeling
requirements for exempted operations
• Cannot be used as ingredients in
processed products identified as
“organic”?
7 CFR 205.100(a)
27. NOP Applicability
• Exceptions to NOP certification
requirements
– 2. Handling operation that only
handles agricultural products
containing less than 70% organic
ingredients by total weight
• Must comply with the standards for
avoiding the commingling and contact of
organic products with prohibited
substances
• Labeling standards for excluded
operations and multi-ingredient packaged
products with less than 70% organic
• Record-keeping requirements for
exempted operations
7 CFR 205.101(a)(3)
28. NOP Applicability
• Exceptions to NOP certification
requirements
– 3. Handling operation that
identifies ingredients as “organic”
only on the information panel only
• Must comply with the standards for
avoiding the commingling and contact
of organic products with prohibited
substances
• Labeling standards for excluded
operations and multi-ingredient
packaged products with less than 70%
organic
• Record-keeping requirements for
exempted operations
7 CFR 205.101(a)(4)(i)-(iii)
29. NOP Applicability
• 2 main exclusions from NOP certification
– 1. handling operations that sell only “organic”
products that are packaged or otherwise
enclosed in a container before the operation
receives or acquires the product and it remains in
the same package
– 2. retail food establishments that process on the
premises “raw and ready-to-eat” food from
products that were previously labeled as organic.
7 CFR 205.101(b)
31. Recordkeeping Requirements
• Certified Operations
– Must maintain records that relate to the “production or
handling of agricultural products sold or labeled as organically
produced” for five years beyond the date the records are
created.
– The records must include a detailed history of the substances
applied to the operation’s fields or agricultural products, the
names and addresses of the persons who applied the
substances, the dates and rates the substances were applied,
and the method used to apply the substances.
– They must also be sufficient to demonstrate that the operation
has complied with all applicable NOP requirements.
– The records must be available during normal business hours to
representatives of the Secretary, the State official governing a
State’s organic program, if applicable, and the certifying agent
for inspection and copying.
7 USC 6511(d) and 7 CFR 205.103
32. Recordkeeping Requirements
• Exempted Operations
– Must maintain records sufficient to demonstrate
that ingredients identified as “organic” were
organically produced and handled and to verify
the quantities produced from those ingredients.
– The records must be kept for at least three years
after they are created.
• USDA Representatives and the state official governing a
state organic program must be allowed access to the
records for inspection and copying during normal
business hours.
7 CFR 205.101(c)
33. Recordkeeping Requirements
• Excluded Operations
– Confusing and unsettled
– the comments state, in pertinent part, that
“*e+ach exempt, excluded, and certified operation
should maintain the records which demonstrate
compliance with the Act and the regulations
applicable to it and . . . establish . . . that the
exempt, excluded, or certified operation is and has
been in compliance with the Act and the
regulations.”
34. Allowed and Prohibited Substances,
Methods and Ingredients
• For a certified operation to sell, label, or represent a
product as “organic,” it must produce or handle the product
without the use of synthetic substances and ingredients,
unless the substances or ingredients are specifically listed
as allowed on the national list of approved substances
(“National List”).
– A “synthetic” is “*a+ substance that is formulated or
manufactured by a chemical process or by a process that
chemically changes a substance extracted from naturally
occurring plant, animal, or mineral sources, except that such
term shall not apply to substances created by naturally
occurring biological processes.”
7 CFR 205.105 and 7 USC 6502(21)
35. Allowed and Prohibited Substances,
Methods and Ingredients
• Certified operations must
also produce and handle
products without the use
of prohibited nonsynthetic
or nonagricultural
substances unless on the
National List
• There are certain vaccines,
for example, that can be
used for limited purposes
that are on the National
List
7 CFR 205.105 and 205.2
36. Allowed and Prohibited Substances,
Methods and Ingredients
• Cannot use an “excluded method”
– Methods used to genetically modified organisms
– Influence their growth and development by means
that are not possible under natural conditions
• Cell fusion, micro/macro-encapsulation and DNA technology
(e.g., gene deletion, gene doubling, introducing foreign
genes)
– Excluded methods do not include the use of
traditional breeding, conjugation, fermentation,
hybridization, in vitro fertilization, or tissue culture
37. NOP Organic Production and
Handling Standards
• Organic System Plan
– A producer or handler of a production or handling operation
seeking certification must submit an “organic system plan” to its
certifying agent or, if applicable, to the governing official of its
state’s organic program.
– An “organic system plan” is a plan of management of an organic
production or handling operation that has been agreed to by
the producer or handler and the certifying agent and that
includes written plans concerning all aspects of agricultural
production or handling” as set forth in OFPA and the final rule’s
organic production and handling requirements.
• Including recordkeeping procedures
• Describe management practices
7 USC 6513
38. Land Requirements
• Any field or farm parcel from which harvested crops
are intended to be sold, labeled, or represented as
‘organic,’ must not have had any prohibited substances
applied to it for the three years preceding the harvest
of the crop
• The field or farm parcel must also “*h+ave distinct,
defined boundaries and buffer zones such as runoff
diversions to prevent the unintended application of a
prohibited substance to the crop or contact with a
prohibited substance applied to adjoining land that is
not under organic management.”
7 CFR 205.202(b)-(c)
39. Soil Fertility and Crop Nutrient
Management Practice Standards
• Under the soil fertility and crop
nutrient standards, a producer
must “select and implement
tillage and cultivation practices
that maintain or improve the
physical, chemical, and biological
condition of soil and minimize
soil erosion.”
• A producer must also manage
crop nutrients and soil fertility by
rotating crops, using cover
crops, and by applying plant and
animal materials to the land.
7 CFR 205.203(c)
40. Seeds and Planting Stock
Practice Standard
• A producer must use
organically grown seeds,
annual seedlings, and
planting stock in their
operations
– There are some limited
exceptions…
7 CFR 205.204(a)
41. Crop Rotation
• A certified organic
producer must
implement a “crop
rotation” practice
into its operation
– Example: Corn and
Beans
7 CFR 205.2
42. Livestock Production
• Livestock products intended
to be sold, labeled or
represented as “organic”
must be produced from
livestock raised in organic
management conditions
from the last third of
gestation or hatching
– 3 exceptions
• Poultry – from second day of
life
• Milk- dairy animals with 1
year of organic handling
• Breeder livestock- at the time
of birth
7 CFR 205.236
43. Livestock Feed
• Must be given a feed
ration that is
composed of organic
agricultural products
– Includes grains, hay,
silage, pasture and
fodder
– Note that organic
does not necessarily
mean grass fed
7 CFR 205.2
44. Livestock Health and Well-Being
• Required to establish and
maintain preventative livestock
health care practices
– Must administer vaccines and
other veterinary biologics when
needed
• Must allow “for exercise,
freedom of movement, and
reduction of stress” appropriate
for the livestock species
– Must accommodate the animal’s
natural behavior
Pittman at 21-22
45. Temporary Variances
•
Under certain circumstances, producers and handlers can obtain temporary
variances from the
–
–
–
–
–
–
–
–
–
–
–
•
soil fertility and crop nutrient management standard;
seed and planting stock standard;
crop rotation standard;
crop, pest, weed, and disease management standard;
origin of livestock standard;
livestock feed standard;
livestock health care practice standard;
livestock living conditions standard;
organic handling requirements;
facility pest management standard; and the
commingling and contact with prohibited substance prevention standard.
The Secretary may issue a temporary variance due to natural disasters, “*d+amage
caused by drought, wind, flood, excessive moisture, hail, tornado, earthquake, fire,
or other business interruption*,+” and for certain research purposes.
7 CFR 205.290(a)(1)-(3)
46. NOP: Labels, Labeling, and Market
Information
• 4 Labeling Categories
– 100% Organic
– “Organic”
– “made with organic
_______”
– Products with less than
70% organically
produced ingredients
• Percentage is
determined by weight
in solid form
Pittman at 27
47. Labeling Categories: 100% Organic
• For a raw or processed product to be sold, labeled, or
represented as “100 percent organic,” it must contain
100 percent organically produced ingredients.
• Products in this labeling category may display “on the
principal display panel, information panel, and any
other panel of the package and on any labeling or
market information” pertaining to the product
– the term “100 percent organic” to modify the name of the
product, and
– the term “organic” to identify the organic ingredients
contained in products containing two or more ingredients.
Pittman at 28
48. Labeling Categories: Organic
For a raw or processed product to be sold,
labeled, or represented as “organic”– the
second labeling category– it “must contain
at least 95 percent organically produced
raw or processed agricultural products.”
– The remaining ingredients in the
product must be organically produced,
unless they are either commercially
unavailable in organic form or are
“nonagricultural substances or
nonorganically produced agricultural
products produced” in accordance with
the National List requirements.
Pittman at 28-29
(C) Cari Rincker, 2013
48
49. Labeling Categories:
made with organic ___________
• Multi-ingredient products
that are comprised of at
least seventy percent but
less than 95% organic
ingredients fall within the
third labeling category,
“made with organic
(specified ingredients or
food group(s)).”
– Example: Candy bar
“made with organic
peanuts”
Pittman at 30
50. Labeling Categories:
70% Organic ingredients
The organic ingredients
contained in products falling
within the fourth labeling
category, “products with less
than 70 percent organically
produced ingredients,” must
have been produced and handled
in accordance with the organic
production and handling
requirements.
– The packages of products in
this labeling category are
prohibited from displaying
the USDA seal.
51.
52. NOP Certification
• 6 Basic Requirements
– Comply with all the OFPA and
NOP production and handling
stands
– Create, implement and annually
update and organic system plan
– Allow a certifying agent to
conduct on-site inspections
– Maintain records
– Make payments to the certifying
agent
– The person must notify the
certifying agent when there is
an application of a prohibited
substance or change in the
operation
53. NOP Compliance
• If certified operation
knowingly sells or label
a product that is organic
when it did not comply
with the standards:
– Suspension or
revocation of
certification
– Civil penalties up to
$10K per violation
– Administrative hearings
Pittman at 50
54. Direct Marketing of Meat Products
Martha Goodsell and Dr.
Tatiana Stanton, “A Resource
Guide to: Guide to Direct
Marketing,” Cornell
University Cooperative
Extension (January 2011).
55. Federal Meat Inspection Act
Are the animals amenable?
• Amenable
• Amenable Livestock- Cattle, sheep, goats
• Amenable poultry- chickens, turkey, ducks, geese,
guineas, ratites (ostrich, emus, and rhea), squabs
• Nonamenable – not subject to the Federal Meat
Inspection Act
• Game animals and birds
• Even if a farmer raises a domesticated species, it is
still considered non-amenable
Cornell at 11
56. Federal Meat Inspection Act
• Requires imported
meat products to
have inspection
requirements
equivalent to the U.S.
requirements
– Must remain in the
original packing the
country of origin and
foreign establishment
number of the label
Cornell at 15
57. Custom Exempt Slaughterhouses
• May offer slaughtering
services without federal
inspection and oversight
– Should not be confused with
state slaughterhouses that
are inspected by state
officials
• For the owner themselves
or their household
– Must be stamped “Not for
Sale”
• Custom-exempt plants are
inspected periodically
Cornell at 19
My family would harvest our
4-H projects and steers–
example of custom slaughter
58. Nonamenable Slaughtering and
Processing Facilities
• There are specialized state
facilities that conduct
butchering and processing
for nonamenable animals
– In New York, must obtain
an Article 5-A license
– Higher standards than
conventional customexempt plants
• Example: hot water at 180°
F vs. 170° F
Cornell at 21
59. Selling Meat Direct to the Consumer
• In New York, all red
meat from amenable
species must be
slaughtered at a USDA
inspected facility
– Some states allow for
state- inspected
slaughter facilities if
sold intrastate
60. On Farm Poultry Slaughter
CARI B. RINCKER AND PAT B. DILLON, “FIELD MANUAL:
LEGAL GUIDE FOR NEW YORK FARMERS AND FOOD
ENTREPRENEURS” (2013). (Chapter 23) (pp 339346)
Bliven, Lynn et al., “On-Farm Poultry Slaughter
Guidelines,” Cornell University Cooperative
Extension (July 2012).
61. On Farm Poultry Slaughter
• General rule: poultry must be slaughtered in a USDA
inspected facility
– Poultry Produce Inspection Act (“PPIA”)
• 1000 Bird Limit Exemption: New York poultry producer
who processes and sells less than 1000 chickens or 250
turkeys
– 1 turkey = 4 chickens
Combinations
are okay
Ex: 50 turkeys
& 800 chickens
=
62. 1000 Bird Exemption
• Additional Requirements
– Must be chickens and turkeys that
he/she raised on the farm;
– Poultry farmer does not engage
in the buying or selling poultry
products other than those
produced from poultry raised on
his/her farm;
– Slaughter and processing are
conducted under sanitary
standards, practices and
procedures that are sound, clean,
not adulterated or misbranded,
and fit for human food;
– Poultry producer keeps the
required records; and,
– Poultry does not move into
interstate commerce.
Rincker at 339-340
63. 1000 Bird Exemption
• Slaughter and
processing must be
done on site
– Poultry farmer may
own their own
equipment or rent a
Mobile Poultry
Processing Unit
(“MPPU”)
Rincker at 340
64. 1000 Bird Exemption
• It is per farm, not per farmer
– Example: farm partnership
formed between Grandpa (400
chickens), daughter (200
chickens) and two sons (400
chickens), and 1 grandson (100
turkeys) – the farm enterprise is
not eligible for the 1000 Bird
exemption
• It is recommend by the NYS
Department of Agriculture &
Markets that the poultry be
sold direct to the consumer
65. 1000 Bird Exemption
• Food label must include:
– Product name and description;
– Inspection Legend and Establishment
Number (for farms processing under
this exemption, it should say
“Exempted – P.L. 90-492);
– Net weight statement (includes
“packed on” date, “sell by” date, “net
wt lb.”, “price per lb”, and net weight);
– Name and address of the farm; and,
– Safe handling statement (if processed
under on-farm exemption, then label
must say “Exempt P.L. 90-492”).
• If there is a nutritional claim, then a
Nutritional Facts Panel must be
included
67. Producer/Grower
1000 Bird Limit Exemption
• Processing Guidelines
– Water used in processing, cleaning and sanitation, in
chilling tanks and ice manufacture should be potable
and must be tested annual to determine potability;
– Any approved sanitizing agents for use on food
contact surfaces must be used in prescribed
concentrations and methods;
– Any agents (including lubricants) used on equipment
maintenance must be food grade;
– The on-farm processing facility must be managed in a
manner that protects the environment (e.g., surface
and groundwater, and soils).
68. Good Manufacturing Practices (“GMP’s”)
•
•
•
•
•
•
•
Provide Training for Processing Personnel
Establish Health & Hygiene Policies
Maintain a Clean Processing Environment
Control Pests
Control Access to the Processing Facility
Provide Potable Water
Securely Store Processing Equipment, Utensils,
Supplies & Materials
• Manage Processing Wastes
69. (Sanitation) Standard Operating
Procedures (“SOP’s” “SSOP’s”)
• Site Management & Pest Control
• Personnel Health & Hygiene
• Pre-Operational Inspection & Sanitation
Schedule
• Daily Operational Sanitation Maintenance
• Chill Tank, Giblet Chill Containers &
Refrigeration Temperature Monitoring
• Post-Operational Sanitation Schedule
70. Hazard Analysis Critical Control Point
(“HACCP”) Plan
Even though a HACCP Plan is not required for birds slaughtered and
processed under the Producer/Grower 1000 Bird Limit Exemption it is
highly recommended
• 7 Steps of HACCP
–
–
–
–
–
–
–
Access food safety hazards associated with all areas of your product
Determine Critical Control Points (“CCP’s”)
Establish the Critical Limits for each CCP
Establish Monitoring Procedures for CCP’s
Establish Corrective Actions to be taken when CCP’s are not in control
Establish Record-Keeping Procedures
Establish Verification Procedures to determine that the system is working
71. Article 5-A Licenses in New York
• If a farmer harvests more than 1000 birds
yet stays in intrastate commerce in New
York, this farmer does not have to harvest
the poultry in a USDA inspected facility if
the farm obtains an Article 5-A license
– This is Article 5-A under the New York
Agriculture & Markets Law
Rincker at 342
72. Article 5-A Licenses in New York
• Exclusions
– Bona fide farmer who butchers his
own domestic animals or fowl on
his farm exclusively for use by the
farmer and his/her household
– A custom slaughterer
• This is where animals are delivered
by the owner for slaughter for use in
the household of the buyer (i.e.,
cannot sell the meat or carcass)
– 1000 Bird Exemption
– Any person who donates the
poultry to a charitable or not-forprofit organization
Rincker at 343
73. Article 5-A Licenses
• 2 year license - $200
application
• NYSDAM must be satisfied
with the equipment and
sanitation
• NYSDAM may inspect the
premises
• A drawing must be
submitted included the
specifications of the facility
• Inspection results must be
posted on the premises
75. Agriculture Districts
Article XIV, Section 4 of the
NYS Constitution provides
for the policy of New York
to encourage the
development and
improvement of its
agriculture lands for the
production of food and
other agricultural products
76. Agriculture Districts
• Article 25-AA of NY Agric. & Mkts Law
– “Local governments, when exercising their powers to
enact and administer comprehensive plans and local
laws, ordinances, rules or regulations, shall exercise
these powers in such manner as may realize the policy
and goals set forth in this article, and shall not
unreasonably restrict or regulate farm operations
within agricultural districts in contravention of the
purposes of this article unless it can be shown that the
public health or safety is threatened.” Section 305-a.
77. Agriculture Districts
• Among other advantages,
farms located in agricultural
districts are typically exempt
from many local and state
regulations including State
Environmental Quality Review
(“SEQR”) and some building
codes for building construction.
– Farms located in agriculture
districts should be free of
overly restrictive land use
regulations.
(C) Cari Rincker, 2013
77
78. Right-to-Farm Law
• Nearly every state around the
U.S. has a Right to Farm law
• Right-to-Farm laws bar nuisance
suits against farmers and
ranchers using sound production
practices in agricultural districts
(C) Cari Rincker, 2013
78
79. Right to Farm
• Under section 308[1], NYSDAM issues opinions
upon request on “sound agricultural practices”
• NYSDAM may consider:
– operation of farm equipment
– proper use of agricultural chemicals and other crop
protection methods
– direct sale to consumers of on-farm products
– agricultural tourism
• NYSDAM may consult with USDA and/or Cornell
80. Right to Farm
• Upon issuance of an opinion, NYSDAM must
publish a notice in a newspaper in the
surrounding area. See NY Agric. & Mkts § 308[2].
• If the farmer is conducting a sound agricultural
practice on any land in an agricultural district and
subject to an agricultural assessment, then said
practice is not considered a private nuisance.
See NY Agric. & Mkts § 308[3].
81. NYSDAM Determination of
Unreasonably Restrictive Laws
• Whether the requirements will:
– adversely affect the farm operator’s ability to manage the
farm operation effectively and efficiently;
– restrict production options which could affect the
economic viability of the farm; and
– cause a lengthy delay in the construction of a farm building
or implementation of a practice; the cost of compliance for
the farm operation affected
• Affect the availability of less onerous means to achieve
the locality’s objective.
• Relevant standards established under State law and
regulations.
82. Right to Farm at the Local Level
• NYSDAM encourages localities to
provide for a Right to Farm
exemption in its local land use law
– “*n]othing contained herein shall be
deemed to limit the right to farm as
set forth in Article 25-AA of the NYS
Agriculture & Markets Law....”
• Local laws oftentimes provide that
no “sound agricultural practice” as
defined in Article 25-AA shall be
deemed prohibited under the
ordinance or subject to its permit
requirements.
83. Right to Farm Disputes
• Can be resolved for free
through the New York
State Agriculture
Mediation Program
(“NYSDAM”) between
the farmer and the
neighbor
84. Backyard Chickens
• Cities that allow for the use of backyard
chickens may place specifications on the
following:
– number of hens,
– setbacks for coops/pens,
– number of roosters (if allowed at all),
– neighbor consent,
– pest control, and
– feed storage.
85. Beekeeping
• Local zoning
ordinances that allow
for urban apiaries may
post regulations for the
lot size and setbacks
• Beekeepers may still be
subject to tort liability
– People v. McOmber
86. Examples of New York Ordinances with
Urban Livestock
• Albany- no livestock allowed
Chapter 115, Article VIII, § 115-31: No person shall keep,
harbor, or shelter any farm animal or fowl within the City
of Albany. For purposes of this article, farm animal or
fowl shall include cows, cattle, horses, ponies, donkeys,
mules, pigs, goats, sheep, chickens, ducks, geese, or other
animals or fowl usually known as "farm animals or fowl,"
but not solely limited to the aforementioned and not
including common household pets.
Guide to Urban Farming at #29
87. Examples of New York Ordinances with
Urban Livestock
• Buffalo
Cont.
Chapter 341, Article II, § 341-11.1: It shall be lawful for any person to
keep, permit or allow any domesticated chicken hens ** *under the
following terms and conditions:
A. No more than five chicken hens shall be allowed for each singlefamily dwelling or multifamily dwelling.
B. No chicken hens shall be allowed in multifamily complexes,
including duplexes, without the expressed written consent of the
owner of the building and all tenants residing in the building other
than the applicant.
C. No chicken hens shall be allowed without the express written
consent of all residents residing on property adjacent to that of
the applicant.
Guide to Urban Farming at #29
88. Examples of New York Ordinances with
Urban Livestock
Cont.
• Buffalo
D. No roosters shall be allowed.
E. Chicken hens are to be restricted to the rear or backyard of any
lot in a residential zoning district or the rear or backyard of a
residential use in all other zoning districts.
F. Chicken hens shall be kept as pets and for personal use only; no
person shall sell eggs or meat or engage in chicken breeding or
fertilizer production for commercial purposes.
G. Persons wishing to keep chicken hens within the City of Buffalo
must obtain a license from the Office of the City Clerk after
payment of an annual fee of $25, and after inspection and
approval of the coop and cage that chicken hens are to be kept in
by an Animal Control Officer, pursuant to § 341-11.4 hereof.
Guide to Urban Farming at #29
89. Examples of New York Ordinances with
Urban Livestock
• Buffalo
Chapter 511, Article XXII, § 511-115: It shall be unlawful
for any person to stable, keep as a pet, or permit to
remain any cloven-footed or hoofed animal, such as, but
not limited to, cows, goats, horses, pigs, or sheep, on any
lot or premises within a residential district or business
district as classified under Chapter 511 of the Code of the
City of Buffalo, and in no case shall such animal be kept
on the same lot or premises with a dwelling.
Guide to Urban Farming at #29
90. Examples of New York Ordinances with
Urban Livestock
• Geneva
Chapter 77, Article I, § 77-2: No person shall
keep or harbor any bees in the city. Any
beehive used or occupied by bees is hereby
declared to be a nuisance; and it shall be
unlawful to keep or maintain any such hive in
the city.
Guide to Urban Farming at #29
91. Examples of New York Ordinances with
Urban Livestock
• Geneva
Chapter 77, Article I, § 77-3: No person shall keep or
harbor any chickens, ducks, geese or other domesticated
fowl in the city except in the AR, Agricultural Residential
Use Districts and F Industrial Use Districts and not closer
than 200 feet to any house, except the owner's,
apartment building, church, school, hospital or any other
building customarily used or occupied by human beings,
such as but not limited to stores, hotels, restaurants,
offices and factories.
Guide to Urban Farming at #29
92. Examples of New York Ordinances with
Urban Livestock
• Geneva
Chapter 77, Article I, § 77-4: No person shall keep or harbor any cattle,
horses and sheep in the city except as follows:
– Cattle, horses and sheep may be kept in the city in the AR,
Agricultural District if maintained not closer than 100 feet to any
house except the owner's, apartment building, church, school,
hospital or any other building customarily used or occupied by human
beings, such as but not limited to stores, hotels, restaurants, offices
and factories.
– Every person maintaining animals as permitted in Subsection A of this
section shall keep clean and sanitary every shed, barn or structure
housing said animals.
– Every such shed, barn or structure shall be thoroughly cleaned at least
once every 24 hours and refuse from the same shall, when collected,
be kept in airtight containers until disposed of in accordance with any
other provisions of this Code.
Guide to Urban Farming at #29
93. Examples of New York Ordinances with
Urban Livestock
• Geneva
Chapter 77, Article I, § 77-5: No person shall
keep or harbor any goats, pigs or swine in the
city; and it shall be unlawful to keep or maintain
any goat pen, pig sty or other building for the
housing of goats, pigs or swine.
Guide to Urban Farming at #29
94. Examples of New York Ordinances with
Urban Livestock
• New Rochelle
Chapter 89, Article VI, § 89-16: The Council of the City of
New Rochelle hereby finds that the keeping, permitting,
harboring and/or raising of farm animals, including but
not limited to those of the equine, swine, bovine,
ruminant and avian species on parcels of land with
inadequate size and setbacks within the jurisdiction of
the City of New Rochelle causes offensive odors which
interfere with the quality of life of the public, property
values and the public health, safety and welfare of the
community.
Guide to Urban Farming at #29
95. Examples of New York Ordinances with
Urban Livestock
• North Tonawanda
Chapter 57, § 57-2: From and after the enactment
of this ordinance, it shall be unlawful for any
person, firm or corporation to harbor or maintain
any animals or livestock within the limits of the City
of North Tonawanda, New York. This section shall
not be construed to apply to slaughterhouses and
abattoirs that are covered in the provisions of other
city ordinances.
Guide to Urban Farming at #29
96. Examples of New York Ordinances with
Urban Livestock
• Rochester
Chapter 30, Article I, § 30-12: No person, firm,
association or corporation shall bring into, keep,
hold, offer for sale, sell or kill or allow to be kept,
held, offered for sale, sold or killed in the City of
Rochester any live animals, except animals for
show or exposition purposes only, and except
white mice, white rats, cats, dogs, horses, mules
and donkeys.
Guide to Urban Farming at #29
97. Examples of New York Ordinances with
Urban Livestock
• Rochester
No person, firm, association or corporation shall bring into, keep, hold,
offer for sale, sell or kill or allow to be kept, held, offered for sale, sold
or killed in the City of Rochester any chickens, geese, ducks, doves or
pigeons, turkeys or other animals or owls, except persons holding a
poulterer's license, without having a license therefor issued by the
Chief of Police and under and pursuant to the provisions of this
chapter; provided, however, that no license shall be required for any
animals or fowls in transit through the said City; and provided,
however, that nothing herein contained shall apply to
slaughterhouses, cattle yards or any place where any cattle or swine
are killed or dressed; and provided, however, that nothing herein
contained shall apply to any cattle, sheep or swine brought into the
City and directly transported to a slaughterhouse or cattle yard.
Guide to Urban Farming at #29
98. Examples of New York Ordinances with
Urban Livestock
• Syracuse
Chapter 16, Article XVIII, § 12-62: No person shall keep within
the city of Syracuse any animal which is deemed to include a
reptile, bird and/or an animal of a species which is wild,
ferocious, fierce, dangerous, poisonous or naturally inclined to
do harm*…
• In Chapter 16, Article XVIII, § 12-63, wild, ferocious, fierce,
dangerous, and poisonous animals, birds and reptiles are
defined to include cows, guinea hens, goats, sheep, and
swine, excluding Chinese Potbelly pigs.
Guide to Urban Farming at #29
99. Examples of New York Ordinances with
Urban Livestock
• White Plains
Title V, Chapter 5-2, Article I, § 5-2-1: A. No live chickens,
geese, ducks or other fowl shall be kept in the city unless
they are securely enclosed in such a manner as to
prevent them from straying from the premises of the
person owning them.
Title V, Chapter 5-2, Article I, § 5-2-2: A. It shall be
unlawful for any person to allow any livestock which is
under his ownership, care, custody or control to run at
large.
Guide to Urban Farming at #29
100. Examples of New York Ordinances with
Urban Livestock
• Yonkers
Chapter 65, § 65-23: No person shall keep, cause
or allow to be kept on, in or about any premises
or property any poultry, fowl or other birds,
except as hereinafter provided:
– It shall be lawful to keep for purposes of sale live
poultry in a live poultry market.
Guide to Urban Farming at #29
102. Volunteer Labor on Farms/ CSA’s
• Types
– “Work Share” or “Half
Work Share”
– Travel-Based
Volunteers
– Informal Worker Shares
– Casual Volunteers
103. “Compensated” Farm Volunteers
• Minimum Wage?
– Fair Labor Standards Act
(“FLSA”)
– definitions of
“employee” and
“volunteer”
104. “Compensated” Farm Volunteers
• Analysis:
– Is the volunteer working in
expectation of
compensation?
– Is the volunteer displacing
employees?
– Does the volunteer give the
food business a competitive
advantage?
– Is the farm offering
educational benefits?
105. Is the Farm Exempt from Federal
Minimum Wage?
• If a farm utilizes fewer than 500 man-days of
labor in any calendar quarter of the previous
year then they are exempt from federal
minimum wage requirements
– 29 U.S.C. § 213(a)(6), 29 C.F.R. Part 780 Subpart D.
– If volunteers are considered employees, then they
contribute to the man-day calculation.
106. Insurance
• Workers Compensation
• Farm liability and commercial
insurance policies typically
exclude coverage for
“employees”
• Commercial insurance will
likely cover unpaid volunteers
but not “compensated” farm
volunteers
107. Questions on Being an Agriculture Lawyer
• Fridays with Cari
Skype Calls
– First Friday of the
month at 2pm ET
– RSVP to
cari@rinckerlaw.com
– No charge
108. I Just Wrote a Book
Cari B. Rincker & Patrick B.
Dillon, “Field Manual: Legal
Guide for New York Farmers
& Food Entrepreneurs”
(2013)
Available at
http://www.amazon.com/Fi
eld-Manual-Legal-FarmersEntrepreneurs/dp/1484965
191
109. Please Stay in Touch
• Send Me Snail Mail: 535 Fifth Avenue, 4th Floor,
New York, NY 10017
• Call Me: (212) 427-2049 (office)
• Email Me: cari@rinckerlaw.com
• Visit My Website: www.rinckerlaw.com
• Read My Food & Ag Law Blog: www.rinckerlaw.com/blog
• Tweet Me: @CariRincker @RinckerLaw
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Notas do Editor
Part I = Direct Farm Marketing Cottage Food Operation LawLiability
The proposed rule has specific requirements for growing sproutstreating seed before sprouting testing sprout irrigation water for pathogens monitoring the growing environment for Listeria
Pages 10-14 of On-Farm Poultry Slaughter Guidelines & Regulations (June 2012) Consider implementing in employee handbookHave folks sign off agreeing to policies
Designed to prevent the creation of unsanitary processing conditions and ensure that food products are wholesome and unadulterated. SOP’s describe how to carry out and document safe food handling and personal hygiene practices (“Good Management Practices”).Pages 15-17 of On-Farm Poultry Slaughter Guidelines & Regulations (June 2012) Print out for notes (too voluminous)
Pages 18-20 of On-Farm Poultry Slaughter Guidelines & Regulations (June 2012) Print out for notes (too voluminous)HACCP Plan – focuses on eliminating, minimizing or reducing food safety hazards to an acceptable level. HACCP Training Course is recommended Page 19 – identifies the process step, potential hazard, and recommended control measures
The purpose of agricultural districts is to encourage the continued use of farmland for agricultural production. NY Agric. & Mkts § 300 etseq. sets forth agricultural districts in the State of New York. “The socio-economic vitality of agriculture in this state is essential to the economic stability and growth of many local communities and the state as a whole. It is, therefore, the declared policy of the state to conserve, protect and encourage the development and improvement of its agricultural land for production of food and other agricultural products.” See NY Agric. & Mkts § 300.
Article 25-AA of the Agric. & Mkts Law authorizes the creation of local agriculture districts pursuant to landowner initiative, preliminary county review, state certification and county adoption. Most counties in New York have placed agricultural land in state certified agricultural districts. While they are county-created and state-certified, towns have no authority over agricultural districts. Agricultural districts should not be confused with agricultural zoning that may exist in some towns.Among other advantages, farms located in agricultural districts are typically exempt from many local and state regulations including State Environmental Quality Review (“SEQR”) and some building codes for building construction. Farms located in agriculture districts should be free of overly restrictive land use regulations.
NYSDAM has not defined what is a “sound agricultural practice”The Right to Farm law in New York authorizes NYSDAM to issue opinions, upon request, concerning the soundness of specific agricultural practices. If the Commissioner determines that a practice is sound, it shall not constitute a private nuisance. This protects farmers in cases where neighbors or others complain about farming activities.This provision could be problematic for both the local government and farm operations. AML §308 (New York’s Right to Farm law) does not define “sound agricultural practices.” The Department does not make prospective judgments on agricultural practices and has not defined what constitutes a sound agricultural practice. Section 308 requires that agricultural practices be evaluated on a case-by-case basis. Department staff review each practice, for which an opinion is requested, on its own merit and a Commissioner’s Opinion only examines the condition and management of the practice in effect at the time of the review. Further, the absence of an opinion from the Commissioner does not mean that a particular practice is unsound.Under the procedures followed by the Department in conducting sound agricultural practice reviews, generally staff consult the landowner, neighbors, State and local agencies, pertinent literature and experts in the particular field of interest. The landowner whose practice is under review generally needs to be a willing participant for the Department to fully evaluate a practice and reach a valid conclusion as to its soundness. Information regarding management of the practice and grant of access to the farm premises is usually needed from the farmer. The review process is time consuming and generally takes from six to twelve months before an opinion is issued. To require a farmer to obtain an opinion to avoid prosecution or permitting under the local law would be unduly burdensome and, generally, unreasonably restrictive.
Where local standards have exceeded the State standards, the Department has, in many instances, found the local laws to be unreasonably restrictive. Each law, however, is examined on its own merits. If a local government believes that local conditions warrant standards that differ from the State’s, the Department considers those conditions in evaluating whether the local standards are unreasonably restrictive.Article 78 Appeal
In People v. McOmber, 206 Misc. 465, 469-470 (NY Sup. Ct., Lewis Co. 1954) the court held that honey bees may be kept but the owner as the duty to keep the bees so that they do not “annoy, injure or endanger the comfort, repose, health or safety of any considerable number of persons or to render a considerable number of persons insecure in the use of their property.”
The use of volunteer labor has growing popularity. Many small farms, especially CSA’s are using volunteer labor. Why Use volunteer labor? Vegetable production in particular is incredibly labor intensive. In fact, with some operations, 50% of production costs can be for labor. Some CSA farms grow between 30-50 types of fruit and vegetable limiting ability to use mechanic solutions. Hand labor can sometimes replace chemical weed control. Furthermore, it is a risk management tool for farms selling products direct to consumers. There are a limited number a risk management tools available to small farms – crop insurance can be cost prohibitive for some operations.
Formal Worker Shares- Rather than paying for his or her share in cash, a worker share performs labor for the farm, generally from 4-6 hours per week for 20 to 30 weeks. Typically formalized through application and selection processes. Approximately 30-50% of CSA’s use worker shares. More info: Sharing the Harvest: A Citizen’s Guide to Community Supported Agriculture by Elizabeth Henderson and Robyn VanEn.WWOOFers and Other Travel-Based Volunteers-- The nonprofit organization World Wide Opportunities on Organic Farms, originating out of the UK, placement program for volunteers around the globe. After registration, a potential volunteer is permitted to search the database of farms willing to accept volunteer workers. After making contact, farmer and potential volunteer (the “WWOOFer”) negotiate a private agreement, generally to exchange labor for temporary housing and food. WWOOF-USA lists 1593 farms who accept WWOOFers. See www.wwoof.org. Informal Worker Shares-The worker share concept has expanded to include less formal arrangements where compensation is understood, but not necessarily specified to the same detail as a formal worker share program. For example, farmers’ market vendors may utilize volunteers who work in exchange for leftover produce. With CSA’s, customers may provide space and assistance distributing produce on their property in exchange for a share. These worker shares do not go through an application and selection process, instead they are chosen based on the resources they can provide to the farmer.Casual Volunteers—With expanding interest in food production, many farms are taking advantage of this opportunity by providing all manner of volunteer opportunities on their farms. Tour groups are one example: schools and churches may arrange to visit a farm and assist with a large task. Another emerging concept is the “crop mob:” a large group of volunteers that descend on a farm to accomplish a project. Generally, these individuals receive something in return for their labor such as a meal or farm products..
Although the FLSA defines “employ” as to suffer or permit to work, a definition which would encompass any compensated or uncompensated volunteer arrangement, Walling v. Portland Terminal Co., 330 U.S. 148 (1947) confined the definition to exclude those who, “without promise or expectation of compensation, but solely for his personal purpose or pleasure, worked in activities carried on by other persons either for their pleasure or profit.” The case opened the door for volunteers to perform labor for a business without implicating the minimum wage requirements of the FLSA. FLSA regulations define a volunteer as, “an individual who performs service for a public agency for civic, charitable, or humanitarian reasons, without promise, expectation or receipt of compensation for services rendered.” 29 C.F.R. § 553.101. This definition would exclude volunteering for a for-profit business and volunteering in return for compensation. In the context of volunteers who receive in-kind compensation but do not work for their own educational objectives, and work for a for-profit business, development of a volunteer exception to the FLSA is minimal.
Is the volunteer working in expectation of compensation? Courts will explore whether the purported volunteer receives compensation in exchange for the labor, along with the individual’s motivation for accepting the sub-minimum wage compensation. Compensation may be provided as cash or in-kind services. 29 U.S.C. § 203(m). For example, providing food and shelter to otherwise homeless individuals in exchange for their labor is compensation. Tony and Susan Alamo Foundation v. Sec’y of Labor, 471 U.S. 290, 291 (1985). However, if the homeless individual primarily seeks work-related rehabilitation, and the food or shelter is provided to facilitate this goal, then although it may be in-kind compensation, the volunteer has not worked in expectation of it. Williams v. Strickland, 87 F.3d 1064, 1068 (9t Cir. 1996). Likewise, if the volunteer recovers only expenses, such as gas mileage to and from the event, the reimbursement merely enables the volunteer to deliver service and does not create an expectation of compensation. U.S. Department of Labor, Wage and Hour Division, Opinion Letter, FLSA2006-18.. Courts may also consider how closely the arrangement resembles a traditional employment relationship. When volunteers receive more compensation for better performance or the equivalent of commission (Tony and Susan Alamo Foundation v. Sec’y of Labor, 471 U.S. 290, 291 (1985)), or work a traditional 8-hour day, report in for shifts, and use the same tracking system for hours worked as regular employees (Archie v. Grand Central Partnership, Inc., 997 F.Supp. 504, 535 (S.D.N.Y. 1998)) the court is more likely to find the business owes minimum wage. Is the volunteer displacing employees? Employees are displaced where a volunteer fills a role that is part of the regular, necessary complement of workers. Donovan v. American Airlines, Inc., 686 F.2d 267 (5t Cir. 1982); Archie v. Grand Central Partnership, Inc., 997 F.Supp. 504, 535 (S.D.N.Y. 1998). The displacement may also take the form of a reduction in hours for current employees. U.S. Department of Labor, Wage and Hour Division, Opinion Letter, FLSA2002-9. Also, if volunteers are doing the same work as otherwise regularly employed persons Donovan v. American Airlines, Inc., 686 F.2d 267, 272 (5t Cir. 1982), the business could continue to provide the same level of service or production without the engagement of volunteers or the court may find an employee has been displaced. Solis v. Laurelbrook Sanitarium and School, Inc., 642 F.3d 518, 530-531 (6t Cir. 2011). On the other hand, if employees supervise volunteers the court may assume that no employee has been displaced because the additional labor required for supervision makes up for any additional work the volunteer might accomplish. Solis v. Laurelbrook Sanitarium and School, Inc., 642 F.3d 518, 530-531 (6t Cir. 2011).Does the volunteer grant the business a competitive advantage? Courts have shown some willingness to carve out an exception where the use of volunteer labor does not grant a competitive advantage, even though the volunteer may displace an employee. Where a service position was created to accommodate conscientious objectors within a nonprofit organization, the court declined to find the volunteer was an employee. Penn Community Services, Inc. v. Isaacson, 450 F.2d 1306 (4t Cir. 1971). In a second situation where the entire operation would cease to exist without the volunteer opportunities filled by students and where employees served out of religious conviction, the court found the business did not operate in a regular marketplace. Solis v. Laurelbrook Sanitarium and School, Inc., 642 F.3d 518, 520, 531 (6t Cir. 2011). If educational benefits are a part of the discussion: Recognizing that some work positions can actually benefit the volunteer more than the business, courts have found that if a volunteer receives a high quality educational experience, the employer need not also provide a minimum wage. The key in this analysis is whether the individual or the business primarily benefits from the arrangement. McLaughlin v. Ensley, 877 F.2d 1207, 1210 (4t Cir. 1989); Solis v. Laurelbrook Sanitarium and School, Inc., 642 F.3d 518, 525 (6t Cir. 2011). In assessing an educational experience, some courts have drawn a distinction between work experience alone and an educational program. Work experience, such as simply following employees on their stocking routes, constitutes poor quality education because it relates only to the specific business and not to an industry in general. McLaughlin v. Ensley, 877 F.2d 1207, 1209 (4th Cir. 1989). Adding counseling, orientation, or work progress reports to a work experience does not bring it up to the level of an educational program either. Archie v. Grand Central Partnership, Inc., 997 F.Supp. 504, 533 (S.D.N.Y. 1998). On the other hand, where interns emerge from an experiential learning position fully qualified for employment, the court is more likely to find that the pursuit primarily benefitted the intern. Donovan v. American Airlines, Inc., 686 F. 2d 267, 273 (5t Cir. 1982). Whether the balance of the benefit tips towards the intern or the business also depends on the role of volunteers in light of the employer’s overall business model. In one case illustrating this distinction, the business had three times as many volunteers as compared to regular employees and could not possibly have satisfied its service contracts without volunteers. Archie v. Grand Central Partnership, Inc., 997 F.Supp. 504, 535 (S.D.N.Y. 1998). But in a separate case where trainees provided a significant amount of the business’ useful work, the state had accredited the internship program and employees spent a significant amount of time training interns. As a result, no minimum wage was owed. See Solis v. Laurelbrook Sanitarium and School, Inc., 642 F.3d 518, 532 (6t Cir. 2011).
Since the man-day threshold is sooner exceeded where the operation uses more workers for shorter work periods, a farm with a significant volunteer labor force may exceed the threshold even without full-time employees. Also, the small farm exception is limited to agricultural labor. 29 U.S.C. § 203(f), 29 C.F.R. Part 780, Subpart B. Diversified and direct to consumer farms that utilize volunteer labor may also unwittingly assign non-agricultural labor to volunteers, eliminating small farm exemption from federal minimum wage for the entire workweek in which the labor was performed. 29 C.F.R. § 780.11.
Workers’ Compensation State workers’ compensation statutes may exempt agricultural operations, volunteers, or small businesses, each of which may be available to a farm utilizing volunteer workers. The Workers’ Compensation Research Institute has a table available for purchase in the past that lists the agricultural, volunteer and small business exemptions available in each state. Based on the 2012 table for agriculture, 12 states have no agricultural exemption, 12 offer a total exemption, and the remaining provide an exemption based either on wages, total hours employed or number of employees, or the precise type of agricultural labor. Specific caution is needed with agricultural exemptions as the definition of agricultural labor limits its applicability. See 40 A.L.R. 6th 99, Validity, Construction, and Application of Statutory Provisions Exempting or Otherwise Restricting Farm and Agricultural Workers from Workers’ Compensation Coverage. If a workers’ compensation exemption is available based on number of employees or total payroll, volunteer hours and compensation may need to be included in the calculation. The definition of “volunteer” as used in connection any available volunteer exception to workers’ compensation is also problematic for farm volunteers. The Wisconsin volunteer exemption for workers’ compensation, for example, is limited to,” a volunteer for a nonprofit organization …who receives from that nonprofit organization nominal payments of money or other things of value totally not more than $10 per week...,” which would not encompass a for-profit farm volunteer. Wis. Stat. Ann. § 102.07(11m). Even farms that do choose workers’ compensation may have difficulty with the payroll audit considering the non-traditional compensation structure. Anecdotally, some workers’ compensation providers have also disagreed with farmers on whether the compensated volunteer is an employee and may be eligible for coverage at all in states that exempt volunteers. Farm Liability Policies Farm liability insurance policies will generally exclude coverage for injury to “employees,” and standard forms fail to define employee in a way that would distinguish on the basis of compensation. Utilizing a common law definition of employee, the door is certainly open for denial of bodily injury claims involving compensated volunteers. Commercial General Liability Policies Although a commercial general liability (“CGL”) policy does cover volunteer workers, they are, “not paid a fee, salary or other compensation by you or anyone else for their work performed for you,” in the Insurance Services Office CGL standard form. Compensated farm volunteers will fall outside this definition. A CGL policy also excludes bodily injury to employees, which follows the common law definition, which primarily is designed to distinguish between independent contractors, and employees rather than volunteers and employees. The outcome of a compensated volunteer injury claim on a CGL policy is unpredictable.