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Counseling the Livestock Operator To Prevent &
React to Undercover Surveillance
New York State Bar Association Committee on Animals and the Law
“Ag Gag” Laws
March 25, 2015
By Cari B. Rincker, Esq.
Who I Am
• Grew up on a beef cattle farm in Illinois– Advanced degrees in
animal science
• Chair of the ABA, General Practice, Solo & Small Firm Division’s Agriculture Law Committee
• Client bases ranges from livestock producers & food entrepreneurs to mid-size agri-businesses
Preventative Practices for Farms
• Different Stages
– Hiring Practices
– Upon Hiring
– Ongoing Programs
• Protection of Public Image
• Record Keeping
• Reaction to a Breach
Hiring Practices
• Interviewing Practices
• Background Checks
• Notice of Prohibited Devices
Interviewing Practices
• Get to know your job applicants
– Review the resume
– Ask probative questions
– Ask for references
– Ask about educational history
Interviewing Practices
• Check references– Check online and call the
main number for the business vs. relying on the phone number provided by applicant
– Check website to see if legitimate business
– Confirm periods of employment with the reference
Interviewing Practices
• Establish Procedures– Phone interview first
– Then send reference form to applicant
– References should be provided in written format
– Check references
– If no discrepancies, then in-person interview
Interviewing Practices
• If discrepancies are reported at the written stage:– Receive clarification
from the applicant;
– Possible use of a credit reporting agency; or,
– Notify the applicant that employment will not be offered
Background Checks
• Background checks are considered consumer reports
• Farm employers who wish to run background checks must comply with the Fair Credit Reporting Act (“FCRA”)
Background Checks
• Farm employers must provide written disclosure to the applicant “that a consumer report may be obtained for employment purposes.”
– This must be provided before the report is requested
– This disclosure must be a stand-alone document and cannot be included as part of the application form
• Applicant must authorize procurement of the report in writing 15 U.S.C. § 1681(b)(2).
Background Checks
• Farm employers may have to disclose the background check/consumer report to the applicant– Disclosure required by employers who
intend to take adverse action (such as rejection of applicant or termination of existing employment) based on information in consumer report
– In such cases, employer should provide copy of report and written description of applicant’s rights in relation to the report.
See 15 U.S.C.A. § 1681(b)(3).
Background Check
• If adverse action is taken on applicant, a notice must be provided to the applicant or employee providing: – Contact information for
the reporting company;
– Statement that an adverse
action was not a decision of
the reporting company; and,
– Information on the right to
dispute the report.
Background Check• Livestock operations should check the laws on
background checks in their state.– Some state laws may not be preempted by FCRA and may
forbid the use of credit reports for employment purposes• California• Colorado• Connecticut • Hawaii• Illinois• Maryland• Oregon• Vermont• Washington
Notices of Prohibited Devices
• Notice of prohibited devices and acts should be included in the employment application and posted at the workplace.
Notices of Prohibited Devices
If livestock producer is in a state with an “aggag” law, then notice language should match statute
Notices of Prohibited Devices
• Notices should list specific devices that are prohibited, if any, including smart phones, cameras or video cameras.
Notices of Prohibited Devices
Notice should state that permission to make any recording must be made from the employer in writing.
Notice of Prohibited Devices
Notice may designate that any recordings taken on the premises are property of the livestock operation and any recordings must be turned over to the livestock operation
Notice of Prohibited Devices
Livestock operation should make employees aware of the serious nature of any recordings on the premises
Upon Hiring
• Employee Handbook
• Employee Contract/ Independent Contractor Agreement
• Non-Disclosure Agreement
Ongoing Programs
• Regular training on animal handling techniques
• Farms should consider their own undercover surveillance
• Participation in voluntary animal welfare programs and trainings
Training• Depending on the
operation, training on animal handling practices should be done at regular intervals
• When the training concludes, have the employees “sign off” stating that they participated in the training and understand the animal handling practices
This is me taking a blood sampleat the University of Illinois research farm for my masters degree.
Training
• Livestock operations should work with a cooperative extension agent to help develop sound animal handling practices for their operation– New York – Cornell
Cooperative Extension
– Illinois – University of Illinois
– Texas – Texas A & M University I’m with my father on our farm
Farm’s Own Undercover Surveillance
• Make sure the animal handling practices are being implemented properly
• Help ensure proper equipment is available
• To see if employees act differently when the “boss” isn’t around
Participation in Voluntary Training and Animal Welfare Programs
• New York State Cattle Health Assurance Program (“NYSCHAP”)
– Other states have similar programs
• Milk & Dairy Beef Quality Assurance Program
My family’s farm
Voluntary Certification & Third Party Verification Programs
• American Humane Certified by the American Humane Association
• Animal Welfare Approved by the Animal Welfare Institute
• United Egg Producers Certified
• Certified Humane Certification Program from the Humane Farm Animal CareFor more info http://awic.nal.usda.gov/farm-animals/animal-welfare-audits-and-certification-programs/animal-welfare-audits-and-2
Protection of Public Image
• Website
• Social Media
• Community involvement
• Opening barn doors to the public – either virtually and/or farm tours
• Public relations consultant
A Word on Record Keeping
• Farms should consider keeping as much documentation that they can on everything they are doing right to care for their animals each day. This will be useful in court for any defense against animal cruelty charges. – Feeding records
– Veterinary care
– Consultations with an extension specialist
– Observations on body conditions scores
– Training employees or independent contractors on animal handling techniques
– Consider memorializing proper animal handling techniques in the employee handbook
– Videos and photographs
Reaction to a Breach
• Establishing procedures for documenting the occurrence and the actions taken to retrieve employer property are critical. – Policies should establish
efficient mechanisms for
determining the contents
of the recording device and
suspected employees should
not be held longer than
necessary.
Reaction to a Breach
• Get a team put together before an incident.
– Public relations person
– Attorney
Oh, P.S. – 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/Field-Manual-Legal-Farmers-Entrepreneurs/dp/1484965191
Please Stay in Touch
535 Fifth Avenue, 4th Floor
New York, NY 10017
(212) 427-2049
www.rinckerlaw.com
@CariRincker @RinckerLaw
www.facebook.com/rinckerlaw
http://www.linkedin.com/in/caririncker