Hello, welcome to the Farm Commons Podcast, where we make farm law accessible and actionable for sustainable farmers and ranchers, as well as their networks of support. I'm Eva. And I'm Kate. In each episode, we explore real legal issues based on farms every day, providing key knowledge and tangible solutions to help you grow a thriving agricultural business.
For managing liability to navigating tough conversations with landlords and neighbors, we've got your back. Let's get started. Hi Eva. Hi Kate.
I am looking forward to this episode today because it connects back to the employment law details that we covered in Episode 49. And that episode was about legally sound internships on your farmer ranch. And today we're going to build on that, but through a different angle where we'll be focusing on working interviews. Yes.
And for those who are wondering what that is, a working interview is when a prospective employee is invited to come and work at the farm or ranch for a few hours so everybody can get a sense of the working style. And it's a great way for both employers and prospective employees to see if the job is a good fit. And of course there are legal considerations which we will talk about today. And I wanted to start us off with a story from my own experience because I was invited to do a working interview at a farm in the suburbs of Boston a few years ago.
And I didn't have a car at the time so I biked out there. It was an hour long bike ride. And then I spoke for 15 minutes with the farmer and he was like, oh, well, you seem great. You can have the job.
And I was a little bit like, oh, no, I just biked here. Like I want to make sure that I get to, I get what I wanted out of this experience too. And so I kind of insisted that I go through with a working interview and I left to go meet up with a field crew who had just gotten started on the zucchini harvest. So they handed me a harvest knife and I worked with the team for about two hours and then felt pretty good about the decision and accepted the job.
And at the end of the experience, I was really glad that I got through with the working interview. I felt really good about leaving my current job to accept this farm job. And I appreciated that my new co-workers already knew me and my boss had confidence in my work style. So I was feeling like, what could be wrong here?
That's such a rich story that you share there, Kate. Lots, lots going on. I appreciate your firmness in saying like, hey, I biked all the way out here. Let me do this full interview and you got to sense that the job would work for you as well.
And so for that question, what could be wrong here? The answer is tricky. And there's a lot there. So we're going to be bringing in some help from our founder and one of our staff attorneys, Rachel Armstrong, to help weed through the legal dynamics of working interviews.
So hey, Rachel. Hi, folks. How's it going? I'm in here at some point during our podcasting lifetime.
I want you to invite me here to talk about what is right. The fear of the bad news is always, oh, there's something wrong here. Rachel's going to tell us what it is. And it's true.
That is why I am here. So as I said in my story, I think there's a lot of really good stuff about working interviews. And so we're not here to discourage people. But as always, we're here to make sure that they're informed as they make decisions.
Exactly. Well, I appreciate you bringing it back around to that. This is about having information to make decisions about what is right for the farm. This is about risk management.
And this being farm commons and us talking about legal risk, listeners might guess that in the first place. There are legal risks that are involved with inviting a prospective employee for a working interview. But it doesn't mean that working interviews have to be off the table. It just means we need to pay attention and make some good decisions about them.
Kate, you and your employer left the interview feeling really confident about your decisions. And that's important to center on. Working interviews can help the business owner engage the interviewees ability to do things like ask questions. You can assess how fast are they?
How coordinated are they? Did they have a personality that will really fit in with the team that you already have? All of those things are really hard to assess from a traditional, just question and answer based interview. And I also really appreciate about your story, Kate, that you got something out of that.
You got to see if this is a job that you wanted and if it would, you felt you would fit on this team. And I think especially with the traditional interview style, it's hard to get a sense of what this job is actually going to be like. So I appreciate how that really worked for you. Yeah.
I am glad that we're lifting up those benefits of this kind of interview format. And honestly, I felt I still feel great about working interviews. And I didn't even bet and I at the concept of working interviews until preparing for this very podcast episode. So I've learned a lot here.
I hope listeners can take away something as well. And let's really hold on to those benefits while we talk about the legal risks involved, just so listeners have everything they need to know for their own risk management. So getting right into it, what are some of the legal risks associated with working interviews? Yeah.
If our listeners have been hanging around farm commons for any length of time, they have heard me say it before. I want to say it again. Anyone who does the work of a for-profit business is likely, very likely an employee. And that means an employment law is a play to that person.
Mm-hmm. Yeah. And that's really becoming a catchphrase around here at Farm Commons, which I think is useful in two ways, in that it's catchy. And it's also the goal.
Anyone who does the work of a for-profit business is likely to be an employee. And so we've covered this before, like you said, Rachel. But we're going to break it down here real quick for any new listeners out there who might be listening and thinking, oh, this is news to me. So if you are a farmer, perhaps you're a vegetable farmer and you grow and harvest and sell your vegetables, that is the work of your farm.
If someone comes onto the business, onto the farm to assist in that process, they have technically done the work of the farm business and therefore would be considered an employee. Even if they only worked for a few hours or worked slowly and unskilledfully as maybe the case during a working interview. It's that person's first time on the farm using your tools or systems. Maybe it's the first time working with zucchini.
Maybe they've only worked with pumpkins before and they're not used to zucchini. So employment laws would apply to this person. Exactly. I appreciate you laying that out, Eva.
A number of different employment laws apply when someone becomes an employee. Now, we technically have to worry about all of them, but in the interest of limited time and focus, let's really emphasize our conversation on two aspects of employment law, minimum wage and workers' conversation. So Kate, question for you. Were you paid for your interview?
I certainly was not. Right. Right. That's usually how it goes, right?
From the employer's perspective, you haven't been hired yet. You're not an employee, so okay. But technically, the farm that you were at could have been in violation of employment laws. If they were required to pay at least a minimum wage.
Now, we know you're outside of Boston, so very likely minimum wage applied to that farm and they're required to pay at least a minimum wage to anyone who did the work of that for profit business. Now, that can be a little heavy. We know that there's a thing that happens and we know that interviewees aren't paid for their time in a working interview. So what's going on?
Well, one of the things that's helpful to reflect on is risk management. What does risk management really mean for the farm and for any small business? It's helpful to think about it in terms of where do we have high likelihood that a bad thing will happen and where do we have a highly negative impact if that bad thing does happen? So, let's apply these two specific situations.
Say a prospective employee comes out to harvest carrots for two hours on a hot summer day and then they are not offered the job. What are the chances that that person will get upset and report the employer to say the wage and hour enforcement agency? Hard to say. Hard to say how likely that is.
You don't have to have time when people get upset. It's hard to predict what they are going to do. So in a worst case scenario, that claim could move forward and the farm could end up in trouble for back wages and potentially a fine on top of that for utilizing this worker without complying with employment laws. On the other hand, though, it certainly is possible to pay prospective employees for their time spent in the interview.
It's not what we normally see happen, but that isn't to say that it's not quite easy to do. So depending on the state that you live in and the minimum wage in your state at two-hour interview could cost 30 bucks or less. So let's take a new Hampshire example for their minimum wage, 75 an hour. So times that by $2.14.50 to pay an interview subject for their time, which at least closes out the risk that we would get in trouble for a minimum wage violation for that working interview.
And paying interviewees is a great way to have a more equitable hiring process too. So lots of wins all around there. Rachel, you mentioned workers' compensation and the risk here, the reason we talk about workers' compensation is that somebody could get injured very likely on a farm. Farming is inherently risky.
And actually another part of my working interview story that I started this episode with, when I went to meet up with the field crew to harvest zucchinis, I was there for about 10 minutes before someone on the field crew sliced their hand open with a harvest knife and two people had to leave to go help them get stitches. So it wasn't me that got injured, but it easily could have been, especially since I was just handed a knife and never used a harvest knife before or harvested zucchinis. So if a prospective employee were injured during their working interview, what kind of risks are associated for the employer? Great question.
Great question. If the employees are real for the employer, they could be sued. They could be sued by that individual saying that the injury was negatively caused because they weren't trained. They didn't know how to use this implement, this tool, and that should not have happened.
Sometimes we react to stories like that and say, well, what kind of jerk would sue the farm when they came out for a working interview? Well, it may not actually be that individual who is driving the lawsuit. If they go to the emergency room, they get stitches and they're relying on their personal health insurance, to provide health insurance, to cover that injury or get it paid for, that insurer, that insurance company can choose to file that lawsuit against the farm because the insurance company wants to get paid back for the treatment and the costs that they put in to make that person whole again. So these risks are a little bit outside of our control and just being good fair people who understand, well, it was a working interview.
It doesn't always work when there are other companies and financial interests involved. What's important to note is that workers' compensation can help mitigate this risk. Workers' compensation is there to provide coverage for anyone who is injured in the course of doing the job. These plans are built to be flexible so that people who are hired can be covered from day one.
So it is very possible to secure coverage for people who come and go even after one day. The way to be sure, of course, is to reach out to your workers' comp employer, I'm sorry, workers' comp coverage company or agents and make sure that they know that you're doing working interviews and that you're intending to treat that as employment and verify with them that if that individual were injured, you would be covered. So it takes a conversation to make sure that we have some of that coverage. But very doable and helps protect us from pretty significant risk of injuries.
Yeah, absolutely, Rachel. And like Kate said, farming is inherently risky. Those risks of injuries are real, ever-present, and they can be managed, of course, with good communication, maybe the farmer handing you that knife and saying, hey, be careful. Here's how to use it.
Here's the angle we like to use on the zucchini, but also even with the safe practices, accidents can happen and that's where workers' compensation really kicks in as the gold standard to protect from the risk of worker injuries. So we've seen, from common, working interviews increase in popularity on farms and ranches, really the agricultural world, like this is becoming a more common practice over the last decade. But it has been around in other industries, specifically the food service industry, where it is quite a popular practice. There's this thing called the stage.
If you read it and you've never heard it pronounced before, like me, you would have thought, oh, the stage, the stage, a food service business. And so in prior days of my life, I worked as a barista at a cafe and I went through one of these working interviews to get that job where I went out to the cafe and was assigned to a barista to shadow them. And I had to make drinks and serve customers during what was about four hours. I did not get paid for that time, even though I was doing the work of the cafe, making those lattes, restocking cups, doing all the things that would be a part of my job if I were to be hired.
And I was not paid for that time. Although I will give a shout out to the barista that I shadowed who allowed me to share part of the tips with them. That was very big-hearted of you, barista out there. So it isn't just farmers and ranchers who are in the dark about these legal best practices around working interviews and how employment law obligations can come into play.
That's a very good point. And it's not just farmers. And that's so often a theme with all the different legal complications and contingencies that we talk about. It can feel like, oh, my goodness, why didn't anyone tell me?
Unfortunately, nobody told anyone else either. So you're not alone. If you didn't know these things. And together, we can learn them and we can assess what we want to do going forward.
We offer two tips today. We address specifically the minimum wage and the workers' compensation issues and two basic things that business owners can do to address those risks. Consider paying at least minimum wage and then give your workers' call, explain what you're doing and confirm coverage. If you don't have workers' compensation because you're not required to carry it, no problem.
Just give that liability insurance company a call and say, hey, this is what I'm doing. I just want to check and see that if an interviewee who would legally be considered an employee doing the work of my business, that they would be covered if they were injured. And then take it from there. Yeah, so I think that this is another area where we see that business owners have a lot of power to kind of creatively manage their risk while still getting the benefits that their business needs from things like working interviews.
And I do just want to return to that point that you made earlier about risk management and assessing when you're feeling overwhelmed about all of the things that you don't know and all of the potential risks. Just to start with this, that place of where is there a high likelihood something that will happen and where is there a high negative impact from that thing happening? I do just think that that can be such a powerful way to reduce overwhelm and really start people off on a path for managing risk in a way that is effective and helps mentally as well. Yeah, so true, Kate.
And getting into that practice of going through the working day on the farm as the farmer or rancher and keeping an eye out for those areas of high risk, what's the worst that could happen with this working interview or other areas of farm law that we cover in other episodes of this podcast, just cultivating that practice of seeing your farm through the risk management lens can be empowering and something that you can start doing right away, even right after this podcast. So there's definitely a lot of opportunity for you listeners out there to consider your own values when calculating your own risk tolerance because there's certainly no one way to do risk management, but there are certain consequences that can come with different approaches. Excellent. Well, I sure appreciate this conversation.
To close us out, I have a question for you, Kate and you Eva. How do you feel about the working interviews that you've been through knowing what you know now? Yeah. I still feel like I had a really positive experience during my working interview and it was a really worthwhile thing for me as a prospective employee, and assuming the employer got a lot out of it too, I think that I might ask about being compensated for my time if I were invited to do another working interview.
You know, it's both a legal best practice for the business, as we now know, and it's just a way to respect the interview's time and effort. So I definitely want to see working interviews continue in the agricultural world. Yeah, yeah, I agree with you on that, Kate, for sure, especially when best legal practices are followed and hosting those interviews. And for me, I did not have a working interview in the farming sense that with that cafe, staj situation, I need to be honest, I don't feel so great about it.
And at the same time, I can totally understand how it happened. It was a small business and a small rural town, and they were doing their best and that lack of attention to those four hours of my working interview, you know, triggering some employment law obligations carried over into other parts of the business where there were some question marks that I had during my time working there. So these things happen, and I do think as a potential employee, you know, there's also power on our parts, your employees' parts, to push back or ask questions. Like you, Kate, saying that you might ask to be compensated for your time in your next working interview.
So power works and book ways and I think acknowledging that builds empowerment all around on farm sandwiches. That makes sense, Eva. And, you know, I got to sneak in there. Didn't you mention to me that maybe that cafe is no longer in business?
Yep, they are not. They have closed. Exactly. Yeah.
And there could be a connection between, you know, a hiring process that wasn't a positive experience for you, maybe an inability to keep strong employees and that there's just a practical consequence to that and no farm wants to be in that situation of not being able to retain employees and having to go through this churn and eventually shutting down. It's also worth pointing out that we don't know why businesses close sometimes. We don't know if it's because they're not profitable or maybe because insurmountable back wages finds for violations. So always good to remember what we don't see might still be there.
We just don't recognize it. And you know, you all are getting the good information that you need to make decisions about what is right for you. So I really appreciate this conversation. And thank you, Kate, and even for sharing your stories.
Yeah, thank you. I really appreciate this too. And for any listeners who feel like working interviews are really working for them. So if you want to keep your working interviews as part of your business, just two legal best practices to start with are to pay minimum wage to your interviewees and carry workers compensation.
So that's just a little starting place for you on your risk management journey. And if you want to know more about what that means to pay minimum wage, well, how much and when and carry workers compensation, well, do I have to have it? How do I get it? You can dive into our advanced farm employment law course available at the Farm Commons website to learn about those two best practices and start implementing them and more on your farm.
Great. And we'll link that advanced farm employment law course in the show notes as well. Thank you, Rachel. Thank you, Eva.
And thank you listeners for being with us. We're so glad you joined us for this episode of the Farm Commons podcast. If you're looking for more resources on your burning farm law questions, visit our website at farmcommons.org for a variety of workshops, guides, checklists, tutorials and more. You can also email your questions and comments to info at farmcommons.org.
Stay tuned for our next episode. Until then, keep growing. This work is supported by the Farm and Ranch Stress Assistance Network, first hand, grant number 2021, 70035, 35372, and project accession number 10, 27, 099 from the US Department of Agriculture, National Institute of Food and Agriculture. Any opinions, findings, conclusions or recommendations expressed in this publication are those of the authors and should not be construed to represent any official USDA or US government determination or policy.