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JUNEAU - Dairy businesses deal with risk in many areas, ranging from the milk price and herd health issues to safety around machinery.

"There is also risk involved in your employment matters," Blake Knickelbein said during a World Class Webinar sponsored by Professional Dairy Producers of Wisconsin.

Knickelbein, an agricultural attorney with Twohig Rietbrock Schneider & Halbach, detailed practices leading to a strong workforce and healthy employment relationships. 

Hiring

The core goal is to find applicants who will succeed in the specific job and be a strong member of the dairy's team.

Establish routine practices for determining who to hire and, during the screening process, ask questions specifically tailored to identifying a person who will meet that core goal, Knickelbein advised.

Avoid any discrimination involving age (over 40), race, color, religion, gender, marital status and disability in the hiring process. "This is one of the bigger risks you face," Knickelbein noted.

Avoid asking non-job related questions. For example, asking an applicant over 40 about his family life or marital status increases the risk for an age discrimination claim.

Use caution when inquiring about health conditions relative to the job being offered. By law, Knickelbein explained, an employer must make reasonable accommodations.

Tread carefully when it comes to credit checks, references and arrest/convictions history. Be aware that a credit report requires the applicant's written permission and he must be provided with copies of the report.

Employers may refuse to hire an applicant on the basis of past convictions only if the circumstances of the crime substantially relate to the particular job. For instance, a trucking company lawfully refused to hire a driver due to his conviction for burglary, as the driver would be solely responsible for transporting merchandise.

When it comes to drug testing, Knickelbein said Wisconsin has no law expressly related to substance-abuse testing.

That means employers may be subject to disability discrimination claims if their use of test results is improper, since alcohol addiction is a classified as a disability and drug addiction may be a disability.

"You cannot simply reject an applicant who tests positive for drugs or admits to an alcohol dependence without first considering reasonable accommodations," Knickelbein said.

By the same reasoning, be careful when firing an employee who shows signs of being an alcoholic. "You really want to seek legal advice before terminating," he advised.

Newly hired employees

It is critically important to clearly establish "at will" employment, which means  employment can be terminated by either party without cause and, thus, remove limitations on an employer's ability to discharge an employee.

Knickelbein urged farmers to write it into their employment application form.

Wisconsin employers must report all new hires to the DWD and need to keep accepted application forms for at least one year, which can be protection against discrimination claims.

Farmers are required to keep records for three years with the name, address, occupation, dates of employment and rate of pay.

Termination

When an employee quits, take good notes of the situation and/or have him sign a form stating that he is voluntarily terminating his employment.

When firing an employee, which an employer has the right to do without establishing misconduct, beware of the discrimination "land mines" when dealing with a protected class.

Be aware that if the farm has an employee handbook that establishes procedures for termination, it may create an enforceable contractual commitment. 

Verbal promises can also be seen as legally binding. "If you tell an employee that he'll have a job through the 2018 harvest season, you should be careful if you terminate him early," Knickelbein said.

A "constructive discharge" occurs when an employee quits because working conditions have made remaining with the employer simply intolerable.

This situation inspired a law to limit an employer's ability to cause an employee to quit. In such cases, the employee is treated as fired and may recover damages if his termination violated the rules.

When an employee is laid off, he enjoys the prospect of returning to the job. While employers have discrimination in selecting employees for layoffs and recalls, Knickelbein said, be aware that this creates a high level of risk for discrimination claims.

Review layoff decisions carefully, he advised.

Termination best practices

Before firing someone, coolly weigh the consequences for the employee, the interruptions it will cause the business, and the legal risks.

Above all, be consistent with all employees. For example, don't fire a female employee for taking long lunch breaks, when male employees have been allowed to do so.

"There are a lot of gray areas where there is potential for discrimination," Nickelbein observed. "You may want to seek legal advice."

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