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Regulatory case studies: Education is key

PD Editor Karen Lee Published on 11 December 2012

In a panel discussion, moderated by Attorney David Crass of Michael Best & Friedrich LLP, four dairy producers shared their unique situations with regulatory agencies that have taken an interest in the dairy industry. Read on to see what they learned and gather the advice they have for fellow producers.

OSHA
Brody and Jeremy Mahr
Mahr City View Dairy
Stanley, Wisconsin

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THE SITUATION: Mahr’s City View Dairy is a 1,100‐cow dairy owned and operated by Dean, Mary, Brody, Mike and Jeremy Mahr near Stanley, Wisconsin. This dairy business consists of 2,500 acres and employs six additional employees.

On Jan. 29, 2012, Jeremy and an employee traveled to the farm’s heifer facility at a different location. When they arrived they found another employee lying unconscious in the field. Jeremy called 911 and performed CPR while he waited for help to arrive. The employee was later pronounced dead.

He was a long-standing employee of the farm and one the Mahrs had come to know quite well. They were emotionally shaken by the incident, but still had business to attend to as a result of these circumstances.

On the scene the sheriff’s department said they had to call the Occupational Safety and Health Administration (OSHA) because it was the death of an employee. (Crass pointed out the sheriff did the farm a favor by doing this because a workplace only has a limited window to report an employee death without incurring a penalty.)

The OSHA inspector arrived on the site to take pictures and ask some preliminary questions. The inspector informed the Mahrs a full inspection was needed and wanted to set up an appointment for the next day.

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Brody said they explained they had just lost a close friend and requested some time to grieve, so the inspector agreed to postpone the inspection for nine days.

The Mahrs were then left to think about funeral plans, what to tell the family, how to replace a key employee and what they needed to prepare for an OSHA inspection.

Luckily, Jeremy said, he got a call from his cousin who happens to be an insurance representative that works with farms to become OSHA compliant. The cousin stopped by to look over the farm. He recommended they put up “Authorized Personnel Only” signs, place covers on outlets and provide and document training for employees.

They used training videos provided by the University of Wisconsin – Extension. These videos are about ½-hour in length and come in English and Spanish.

According to Jeremy, they trained their employees on skid loader use, cattle handling, chemical handling, general safety, first aid and CPR.

“After four days of training,” he said, “the guys started rolling their eyes. We told them, ‘These are life skills. These are things you’re going to take with you.’”

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Brody and Jeremy said they were also fortunate to have the help of their mother. She worked as a registered nurse for 45 years and assembled a number of training modules. She put together a safety manual and individual employee forms for the farm.

On the day of the inspection, Brody said the farm owners and their insurance representative met with the OSHA inspector. They talked about what the employees do each day and then did a walk-through of all the places on the farm that the employees go.

After that, Jeremy said, the inspector interviewed each employee for about a half hour. The family was not allowed to participate in the interview or ask the employees what they talked about.

At the end of the day, they had a closing interview with the inspector who had an idea of where the citations would fall. Some citations were not penalized with a fine, but instead had to be fixed within a certain amount of time.

Jeremy said they were issued a general citation of $7,000 based on the size of their farm. And, since they were a small business and showed good faith in that short period of time, by performing training, posting signs, etc., OSHA reduced the fine by 40 percent.

The inspector also advised them to contest the findings, Brody said. Everybody does this and there is not cost to do so.

“You have nothing to lose,” he said.

According to Jeremy, they did contest it, and OSHA recognized the employee was performing a common task on the farm by bringing up the cows, but the fine was upheld.

WHAT THEY LEARNED:
• OSHA regulations apply to everyone that has a farm and employees.
• The 12 hazard categories and how they apply on their farm.
• The benefits of providing and documenting employee training.

WHAT THEY RECOMMEND:
• Get everyone on board – safety is a good thing.
• Know the criteria for an OSHA visit.
• Assign a safety director to your business.
• Know the 12 hazard categories and decide where they apply on your farm.
• Participate in the WisConn program or equivalent.
• Training and documentation is crucial.

Environmental regulation
Jim Mlsna
Ocooch Dairy
Hillsboro, Wisconsin

THE SITUATION: Ocooch Dairy milks 600 cows three times per day, producing 27,000 pounds of milk. The dairy owns and rents a total of 1,150 acres of land and employs 13 people. Jim’s three sons and two daughters are all involved in the operation and each has a specific role in the daily management of the dairy.

The farm sits on “Ocooch Mountains” in western Wisconsin. While not actual mountains, they are large rolling hills with lot of natural springs, 15 on the Mlsnas’ land alone.

“It does take different mindset to farm the hills,” Jim said. “You can get into problems easily, especially if you have a neighbor who doesn’t approve of your farming methods.”

Located 10 miles from the largest organic cooperative, many people in the surrounding area have a strong desire to preserve the land and water, but they don’t like the smell of manure, big tractors or working after midnight. They also don’t like digesters, rBST or conventional milk, Jim said.

Six years ago, Jim contracted with a company to empty his manure storage. During this process, a hose clamp came undone and manure started flowing down hill and into a stream.

Jim had recently finished his comprehensive nutrient management plan so he knew what to do in this emergency. He immediately called a contractor. They installed a temporary dam to stop flow of creek. Then the creek water was pumped back toward the manure storage.

Meanwhile, his neighbors stood on other side of fence for hours, taunting the man running the pump.

Because he knew this was going to make headlines, he decided to call a news conference to explain the situation. Jim had been trained in media relations, but he also sought advice from producer groups in the state. He invited media outlets that would be honest – statewide agricultural papers and the local newspaper.

He also invited city officials so they could hear from him what had happened. Representatives from the Department of Natural Resources (DNR), Land and Water Conservation and the contractor were on hand to help explain the situation as well.

WHAT THEY LEARNED:
• Prevention is the best plan. Have an emergency plan.
• Have good relationship with the people you need in an emergency.
• Do not admit that you did something wrong until you have all the facts.
• Be prepared for bad publicity. There will be letters to the editor and articles in the papers.
• Don’t let the other side tell their story too long. You need to respond and tell the people all the good things you do.

WHAT THEY RECOMMEND:
• Maintain good relationships with DNR professionals. Talk to the wardens. Invite them to your farm when you don’t have a problem. Work with water quality specialists. Ask them for ideas when planning construction projects or get their input before a problem becomes an incident, Jim said. For instance, the manure lagoon is full and the weatherman is predicting a heavy rain. Call them to ask for advice.
• Put a plan together for emergency situations. Go through the “what if” and “worse case” scenarios.
• Have a relationship with an environmental law firm. Do not go into a hearing without an attorney.
• Strengthen your social license to farm. The Mlsnas host a "Christmas in the barn" event and hold farm tours to tell people what they are doing.
• If a situation does happen, stay calm and get the facts.

Immigration
Mike Larson
Larson Acres
Evansville,
Wisconsin

THE SITUATION: Larson Acres is a 2,900‐cow dairy owned and operated by Mike, Ed, Donald, Sandy, Jamie and Amy Larson. This dairy business consists of 5,000 acres and employs 53 local residents, including 11 family members.

In May of last year, Mike was working in his office when a car pulled up. Four people donning badges climbed out, came into the office and presented a piece of paper to identify them. They asked if Juan (last name omitted) worked there. He had gotten into some trouble, and when they stopped at his apartment earlier the person there told the officials he worked at Larson Acres.

Not wanting to employ a troublemaker, the Larsons were happy to help locate him. The office manager checked the employee files but they could not find the name. Then, they brought their parlor manager to the office, and showed him the picture of the individual.

He identified the worker as Jose (last name omitted); he is employed there, but had just left about an hour ago when his shift was finished. The parlor manager said he’s scheduled to be back the next day for his shift from 5 a.m. to 1 p.m. and if they wanted to stop back then, the farm would hand deliver the employee.

However this visit took place on a Friday and since they do not work weekends they decided to return on Monday.

As Mike told it, rumor got out and Jose never returned to work. When the officials called back on Monday to see if he was working, the Larsons told them he never came back.

Three weeks later officials from U.S. Immigration and Customs Enforcement (ICE) stopped to say the farm had been “randomly selected” for an I-9 audit, Mike said. The farm was to mail in its I-9 forms within a week, and it did so for all 60 employees. Three months later the officials called and made an appointment to discuss their findings.

At the appointment, Mike said, the officials complimented the farm for having the “most impeccable set of records they’ve seen.” They had never audited a business of this size and not found a reason to fine them, until now.

But, they did find the farm had 24 employees that were not eligible to work in U.S. Even though the forms were filled out correctly, the identification numbers used did not clear the system.

The officials informed Larsons they needed to come up with plan and let the officials know what they were going to do.

“We were lucky immigration wanted to work with us,” Mike said. The farm owners called their attorney and outlined the following plan.

Of the 24 employees, two of them were managers that had been with the farm for eight to 10 years and would be hard to let go. They began brainstorming ways they might be able to keep them on the farm.

Meanwhile, they started to have internal meetings with the herdsmen, human resources and their attorney on how to work through the other 22 employees. A couple of them had already left since the time the paperwork was filed. The others were on a short leash and if they did anything wrong they were let go immediately. That whittled the list down to nine people.

By December they were left with nine employees, and they decided to be up front with them. They sat them down and told them there was a problem with their paperwork. They explained there would be no vans coming in to haul them away, but that they were on the list. Seven of them left within three weeks.

The Larsons were now left with their two key employees and they asked ICE to have until March 1. The request was granted. The farm could not come up with a way to keep them employed, and with heavy hearts they held a farewell party.

Even though the immigration officials were understanding of the situation and gave them time to work through this situation, Mike said he was frustrated that they did nothing to help them find a way to keep good employees.

“When we asked what will happen to them, they said, ‘They’ll probably go work for the people up the road.’”

Larson Acres was now known as a hot spot in the Hispanic community and no one wanted to come work at the farm.

“We never had trouble with turnover, until now,” Mike said.

They advertised for a milker position and received 896 applications. They found 20 percent that would be hirable and interviewed them. The farm ended up hiring 7 percent on a trial basis. Of the first 30 people they hired, there are only three of them working now, he said.

WHAT THEY LEARNED:
• An ICE visit can happen to anyone. They are generally triggered by an outside incident that brings attention to the employees.
• “It could have been a lot worse,” Mike said. “Amy’s record keeping was awesome.”
• It is important to communicate well with ICE and the employees.
• The Larsons figure they lost a couple of pounds of milk per cow, fell behind in the parlor, and didn’t do as well with reproduction shots because they lost their head herdsman. When they add together the loss of experience, and the time it took to hire new employees, complete the paperwork and train them, they figure this incidence cost them $2.5 million.
• Current immigration laws don’t support year-round farming. They are built for seasonal workers.
• A trusted attorney who specializes in immigration can be a valuable (but costly) resource.

WHAT THEY RECOMMEND:
• Have paperwork and documentation in order. Put one person in charge of I-9s and make sure they know the rules. Have a system to monitor expiration dates so when an audit comes everything is up to date. Perform regular audits of your paperwork by yourself or a third party.
• Work with legislation to promote immigration reform. PD

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