Here's what you need to do to keep out of trouble when hiring employees for your feedyard business.
So you need a few more workers at the feedlot or ranch to make life easier for the rest of the crew. Of course, you'll want to find out what experience your job applicants have, try to get a feel for their character and check references.
This means first sitting down for job interviews and asking questions. But be careful how you ask and what you ask, or you could face a lawsuit over workplace discrimination, one of the fastest growing areas of employment litigation.
Over the past two decades, the number of discrimination lawsuits has risen by more than 2,200%. Approximately one in five lawsuits filed in the U.S. alleges workplace discrimination. The cost of defending employee litigation runs between $20,000 and $200,000/case.
Not all claims of discrimination end up in lawsuits. Typically, a job applicant, employee or former employee who suspects discrimination (or wants to get even for some perceived injustice) will file a complaint with the Equal Employment Opportunity Commission or the state equivalent.
The agency will investigate and — if there's enough evidence — may file a lawsuit or push for a cash settlement. If the claim appears groundless, the agency may leave it at that — in which case the worker can still sue privately, but with less chance of winning.
It's far better to know the law and avoid the appearance of discrimination.
A Look At The Law
Start with federal laws. Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment on the basis of gender, race, religion or national origin. Title VII applies to all businesses that employ at least 15 workers. Those who violate it are subject to damages of up to $50,000. The fact that you've always had male feedlot managers doesn't make it okay to turn down a female applicant.
Two other federal laws could also get you in trouble when you're hiring, promoting or firing workers. The Age Discrimination in Employment Act, which applies to businesses that employ 20 workers or more, prohibits discrimination on the basis of age.
You can't refuse to hire a 50-year-old because you think they're too old, unless they're truly unable to do the job. Likewise, it's against the law to fire an older worker to avoid paying retirement benefits.
The Americans With Disabilities Act, which applies to businesses with 15 employees or more, prohibits discrimination against otherwise-qualified applicants or employees on the basis of a disability or a perceived disability. If the act applies to your operation, you're required to make “reasonable accommodations” that would allow the worker to do the job, provided that doing so wouldn't cause your business undue hardship.
For instance, if you're hiring a bookkeeper and one of the applicants uses a wheelchair, the first question is whether she's qualified to do the job, with or without accommodations. Then, after making a job offer, you can find out what minor adjustments might be needed — such as lowering a doorknob, moving furniture farther apart, or getting a large-screen computer monitor. It's up to the employee to reveal and document any disability and request an accommodation.
Most states also have laws against workplace discrimination. Some state laws apply to all employers, not just those with enough employees to cross the threshold for the federal laws.
Ask Careful Questions
Charges of workplace discrimination are not especially common in the beef industry. Still, it's a good idea to know the law and be careful with how you make hiring, promotion and discipline decisions. Avoiding discrimination or an appearance of it may not only keep you out of legal trouble, it also may help you discover some excellent workers you might otherwise overlook.
If you advertise job openings, avoid descriptions that could indicate your intent to discriminate illegally. These might include “Looking for a young self-starter” or “Man needed to handle cattle.”
If you use a written job application (a good idea if you have more than a handful of workers), make sure that it doesn't request information that could be used as a basis for discrimination. For instance, don't ask a candidate's age, race or marital status.
More likely to get you in trouble are the questions you ask in the job interview. Let's start with gender discrimination, which includes marital status, pregnancy and childcare responsibilities. Keep your questions focused on job requirements, employment history and work habits. Don't speculate on the applicant's personal life.
Among questions to avoid: “Why would a pretty girl like you want a dirty job like this?” “So, are you married?” “It looks like you're pregnant. Are you sure you can handle this job?” “What are your plans for child care after the baby's born?”
Even if you're just trying to be friendly, the questions could imply that you might not hire the applicant because of her gender.
Also avoid questions related to the applicant's age. Focus on whether the applicant can do the job. For instance, don't ask “Aren't you kind of old for a job like this?” “Are you set in your ways?” “Is this a retirement position for you?” or “Do you have the energy to keep up with younger employees?”
If an applicant appears to have a disability, don't ask personal questions. Focus on whether he or she can do the job. It's okay to ask if there's any reason the applicant can't operate heavy machinery, but don't ask questions like “Tell me about your disability,” or “What medications are you on?” If you determine that the applicant is qualified for the job, go ahead and make the job offer.
The same goes for race. Don't make small talk based on the employee's race or apparent nationality, such as declaring your love of Mexican food or asking what the applicant thinks of a famous minority athlete.
Promotion And Discipline
The majority of discrimination complaints come from former employees who've contended they were terminated or denied promotion for some discriminatory reason. To avoid problems, have a good anti-discrimination policy clearly posted. Have internal procedures for how you'll investigate any charges of illegal discrimination.
In choosing which employees to promote, make sure your reasons are related to performance rather than preconceived notions about race, gender or age. For instance, that male workers wouldn't respect a female supervisor or one of a different nationality or race should not be a consideration.
Next, write down your performance-related reasons for promoting this particular person instead of another person, and file it in case there's ever a question.
The same goes for discipline. Have clear policies about discipline, and make sure you're consistent.
All this may make the hiring process seem like a tinderbox, but it's not difficult to stay out of trouble. The keys are: don't discriminate, and don't give the impression that you might. Just focus on the job and don't ask personal questions.
Steven C. Bahls, dean of Capital University Law School in Columbus, OH, is president of the American Agricultural Law Association. Freelance writer Jane Easter Bahls specializes in business, law and agriculture.
Walk The Line
When hiring, employers need to walk a line between federal laws designed to protect workers from discrimination and those designed to protect the jobs of U.S. citizens. To avoid legal trouble, make sure you understand what you're required to do and comply with these laws consistently.
Many farms, ranches and feedlots employ migrant workers and recent immigrants who are willing to work long hours for minimum wage. To control the number of foreign workers seeking American jobs, however, federal law prohibits hiring foreign workers without a valid work permit.
The Immigration and Nationality Act requires employers to request a Form I-9 stating employees' citizenship or legal work status, and to check documents to confirm that status.
It's also illegal to discriminate against job applicants or employees on the basis of national origin. That means you can't refuse to hire people just because they look Mexican or Somalian, for instance, or because they have foreign-sounding surnames.
To avoid such an appearance, be sure to request documents from all job applicants, not just those you guess might not be Americans. Be consistent.
Most employers ask for proof of citizenship or work status after they've made a job offer but before the employee starts work. For a complete list of documents acceptable to prove legal work status, or to download an I-9 form, see www.usdoj.gov/crt/osc/facts/index.html.