Legal details of hiring, firing

Whether a farm has one employee or many employees, there are things every dairy farmer should understand about the process of hiring and firing employees.

“As an employer, knowing the legal rights and responsibilities in the hiring and firing process is really important,” said Troy Schneider, partner and attorney at Twohig, Rietbrock, Schneider & Halbach Law Office.

Schneider provided tips Dec. 28, 2023, during a Professional Dairy Producers The Dairy Signal “Legal ins and outs of hiring and firing.” His law firm has worked in the agricultural field for over 50 years, providing legal services to farms and agribusinesses. 

“When I was growing up, it was typical for farms to have maybe one to two hired men, and the rest of the workforce was family,” Schneider said. “But today, farms have lots of employees. Some farms have 50 or 60 employees. There’s a whole human resources element to farming these days.”

When hiring a new employee, Schneider warned against making inquiries into taboo areas that would be grounds for discrimination. These include age, race, religion, sex, sexual orientation, political affiliations, arrest or conviction record, whether they are disabled, marital status, whether they are involved in a domestic partnership or military service.

“Keep all inquiries during your hiring process as it relates to the job,” Schneider said. “You could back into some of those taboo areas as long as they relate to the job. Always make that tie in of what’s required of the work, and you’ll be just fine.”

Many farms use employment application forms during the recruiting process. Schneider said to stick to questions on this form during an interview and make sure the questions are job related. The form should include a statement that the farm is an equal opportunity employer and that all employees hired are at-will employees, meaning they can be hired and fired at any time.

The potential employee should also be asked to acknowledge that any information he or she is providing is truthful. If they lie on their job application, it gives the employer grounds to terminate them if necessary.

If the application form asks for references, it must also request permission to contact those references and permission for that reference to release information on behalf of that employee.

“One thing that people don’t know is that the (Equal Employment Opportunity Commission) requires you to keep any job applications for one year for employees that you’ve accepted,” Schneider said. “That’s a legal requirement.”

During an interview, Schneider said to reiterate that the farm is an equal opportunity employer and does not believe in discrimination.

“Even if you slip up, you’ve qualified yourself as a non-discriminatory employer,” he said.

If doing drug and alcohol testing of employees, Schneider said to keep in mind that it is illegal to discriminate against someone because they have an addiction issue.

“However, if you tie that to an employment qualification, you’re OK,” he said. “Rather than saying something like, ‘We don’t hire addicts at our farm,’ it would be better to state that, ‘We urge you to reapply after you seek treatment.’ That’s what farm employers sometimes use as their out.”

Schneider said it is illegal to knowingly hire an unauthorized alien.

“Knowingly is the key word there,” he said. “As long as you don’t have any specific knowledge that they are unauthorized to work, you’re OK.”

Schneider said farms are required to fill out I-9 forms for their employees, which must be kept for three years after that person is hired and for one year after that person no longer works at the farm.

“Wisconsin is an employment-at-will state, meaning that nobody has a right to their job unless given that right,” Schneider said. “You can hire and fire anybody at any time.”

There are certain things that limit that right, however, such as contractually giving someone rights via a written or oral employment agreement. Contracts for more than a year have to be in writing; however, Schneider said there is a legal concept called promissory estoppel that states that promises made — whether oral or written — are enforceable by law.

“Watch what you say and how you say it because you might be giving employees certain rights that you did not intend to give them,” Schneider said.

Employees cannot be fired based on race, color, creed, sexual orientation, etc.

Voluntary termination or quitting can be done by word or action. An employee can say, ‘I quit.’ If an employee fails to show up for work consistently for a number of days, Schneider said that could be deemed a quit situation by their actions.

“When somebody quits, they have less rights under lots of different areas and benefit type plans than if they get fired,” Schneider said.

When creating an employee handbook, Schneider said to be careful not to unintentionally give employees certain rights. Handbooks should specifically include language underscoring the employee relationship is at-will in all circumstances. The handbook should also state that the employer reserves the right to unilaterally make future policy modifications within the handbook.

Use permissive language when referring to policies in the handbook, meaning the employer reserves the right to change those policies at any time. It should also be noted that disciplinary procedures mentioned are not exhaustive.

Schneider said employee records are important and should be reviewed when deciding to fire someone.

“Every time an employee screws up, document it immediately, and better yet, have them sign some sort of disciplinary procedure,” Schneider said. “Review those, and make sure if you have certain policies on certain actions, there is consistency you’ve created while applying that policy.”

When communicating to an employee that they are going to be let go, pick a discreet location and have another person present as a witness.

“When you’re telling somebody the reasons why they were fired, make sure it doesn’t go into any of those prohibitive areas,” Schneider said. “Keep it about job performance-type things. Be careful not to sugarcoat anything either. You can be blunt yet professional.”

Schneider also addressed the topic of payments for terminated employees.

“When you fire someone, you have to give them their last paycheck,” Schneider said.

In order to deduct pay to cover damages caused by an employee, the employer must have something in writing. According to Wisconsin Statute 103.455, an employee must have signed something ahead of time stating their employer can deduct from their wages for defective or faulty workmanship, lost or stolen property, or damage to property.

“Without something in writing, you cannot make those deductions,” Schneider said.

Following termination, the employer must also pay the fired employee for any unused vacation, paid time-off or sick pay.

“That’s really important, and you have to make sure you have a policy on how those items are accrued and that those policies are clear and consistently applied,” Schneider said.

For more information on the hiring and firing process, Schneider recommended a book, “Hiring and Firing in Wisconsin,” by Wisconsin State Bar as a resource on this topic.