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BE FAIR: In all your employment practices, including hiring, firing, retention, promotion, etc., you cannot discriminate against an individual from a protected class.

Follow these ag employment best practices

Legal Matters: Especially if you are planning to hire or fire someone, here are some things to keep in mind.

By Blake Knickelbein

If you are a farm owner who has employees, you must increasingly be aware of various employment rules and regulations. There are best practices you can institute not only to limit your potential liability, but also to increase employee morale and productivity. This article is a quick overview of some considerations to keep in mind regarding your farm’s employment practices, with a focus on hiring and firing employees.

• Hiring. The hiring process is the first opportunity to establish an effective working relationship. No matter what your recruitment practices are to identify qualified farm employees, your goal should be to hire an individual who can complete the job duties effectively and be a strong member of your team. When screening applicants, be consistent with the questions asked and information requested. Also, focus as much as possible on job-related questions.

In all your employment practices, including hiring, firing, retention, promotion, etc., you cannot discriminate against an individual from a protected class. Protected classes are generally age over 40, race, color, religion, gender, nation of origin, marital status and disability. By focusing on job-related questions and qualifications, you limit your risk of being accused of discrimination for not hiring someone. For example, if you interview someone over 40 and focus on his or her age, family life, marital status, responsibilities to children, etc., and then do not hire the person, he or she could perceive that you failed to hire them based on their age. 

• Firing. Sometimes an employee does not work out, and it becomes necessary to fire the person. Take some time to think about the decision, as it will mean large consequences for the employee, potential interruption for your business and the legal risks involved. As a general rule, an employee in Wisconsin is considered an “at will” employee. This means the employment relationship is terminable at will by either party without cause. This is a strong presumption, and the relationship will be considered at will unless there is a contract that says otherwise or the employer has done something to change the at-will relationship.

Therefore, as an employer it would seem you can fire someone for any reason or no reason at all, except discrimination. However, it is still advisable to review your termination practices and review your reason for terminating a specific individual, as there are potential pitfalls.

Before terminating an employee, ensure that you have not done something to change the at-will relationship. The clearest example would be an employment contract that states you were hiring the individual for three years. Another example would be if you have an employee handbook or verbally tell employees that you have a three-strike policy before terminating someone. You may have just created a contract where you can only terminate an employee if you give him or her three strikes. Confirm that you do not have a written contract for a specified period of time with the person, you have not created a procedure for terminating an employee in your handbook, and you have not verbally assured the employee of employment for a certain duration. 

There are best practices for terminating an employee. Be consistent with all your employees throughout all your employment practices. If you treat employees differently, you open yourself up for discrimination claims. For example, you reprimand or terminate a female employee for taking long lunch breaks but have not reprimanded male employees for doing the same.

Also, be mindful of how you communicate the termination to the employee. There are no requirements for private employers governing the process to terminate an employee. However, you should meet with the employee in a private location where you will not be interrupted. During the meeting, you and another representative from your farm should be present to provide evidence in case of a dispute later regarding what was said. If you provide a reason for the termination, focus on the principal reason — do not list every negative thing the employee did, and do not debate with the employee about the reasons. Finally, keep a record of the termination and the matters that were discussed. 

Throughout your employment practices, it is critical to be consistent with all employees, because even though employment is generally at will, there are many potential pitfalls. We advise clients to contact an attorney before terminating an employee, and at the very least to assess the situation and risks to yourself and the employee.  

Knickelbein is an attorney in the ag law firm Twohig, Reitbrock, Schneider and Halbach S.C. Call Knickelbein at 920-849-4999.

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