In 2022, the Legal Food Hub helped more than 90 farmers and food businesses get the legal help they need with the support of our network of pro bono attorneys. We published new legal guides on topics that ranged from agricultural employment law to nonprofit governance. We offered a winter webinar series that addressed participants’ most pressing legal concerns. And we delivered in-person trainings about farmland contamination, land access, and entity formation.
Mohammad Hannan of Hannan Healthy Foods Farm grows certified organic vegetables on seven acres of conserved agriculture land owned by the town of Lincoln, MA. He sells his produce at the farmstand in Lincoln, through a CSA, and at the East Somerville Farmers Market.
For the 2022 season, Mohammad added his first employees! Mr. Hannan needed an attorney to review an employment agreement that he had drafted to make sure it complies with all applicable employment laws. He will use this agreement as a template for all future employees.
The Legal Food Hub matched Mr. Hannan with Attorney Mae Stiles of Fierst Bloomberg Ohm. With years of experience in corporate and licensing matters, Mae was the perfect attorney to get Mohammad confidently prepared for the next phase of his business venture.
Laws of the Land: What to Know About Your Farm BEFORE You Commit Wednesday, Feb 1st, 12:00-1:15EST Presenters: Attorney Laura Hartz and Attorney Stacey Caulk, Drummond Woodsum
You’ve heard the phrase ‘location, location, location’ when it comes to choosing a home. It’s no different for farmers when choosing a site for their farm business. All sites come with unique conditions that impact the farm’s viability, including physical characteristics, zoning restrictions, federal and state permitting requirements, and pre-existing third-party rights of neighbors, landlords, tenants, easement holders, or lenders. This webinar will cover the who, what, how, where, and most importantly, why, of identifying the unique characteristics and regulatory requirements tied to your future farm property before you sign on the dotted line.
Hosting a Food Focused Event: The Legal Side of a Delicious Activity Wednesday, February 8th, 12:00-1:15EST Presenters: Corie Pierce, Bread and Butter Farm VT Dr. Lisa Chase, University of Vermont Attorney Andrew Marchev, Fellow at Vermont Law School
Hosting an event with food on your farm is a great way to gather your community, educate the public about farming, and grow your business. Join this webinar to learn about next steps to safely and legally offer samples, host a tasting, farm to table meal, or other event with food on your farm. During the session we will hear from Corie Pierce, owner of Bread and Butter Farm in Shelburne, Vermont and regular host of burger nights. We will also hear from Andrew Marchev, Legal Fellow at the Center for Agriculture and Food Systems and Lisa Chase, Agritourism Expert at University of Vermont Extension.
Media and Marketing 101 Wednesday, February 15th, 12:00-1:15EST Presenters: Attorneys Elliot Brake, Kevan Lee Deckelmann, Chad W. Higgins, Matthew J. Saldaña, Bernstein Shur
As a small business, you are likely using emails, text, and social media to advertise your business and communicate with your customers. You may also have your own webpage spotlighting customer reviews and other content. With all these forms of social media and communication comes a web of laws that are difficult to navigate. During this webinar, a team of attorneys from Bernstein Shur will help you detangle these laws. We will cover topics such as email, text, and social media marketing, claim substantiation, website policies, the proper use of logos and other copyrighted material, endorsements, testimonials, and customer reviews, and other hot topics in advertising law.
Onboarding New Employees Wednesday, February 22, 12:00-1:15EST Presenter: Attorney Tara Walker, Bernstein Shur
Congratulations! Your small business is ready to hire your first employees. This is both an exciting and daunting process. Luckily, we have Tara Walker of Bernstein Shur Portland, Maine who will walk you through this process. Tara will cover common legal traps for the hiring manager in the hiring and interview process, she will provide a checklist of best practices, and recommended documentation for your new employees.
Selling Value-Added Products on the Farm Wednesday, March 1, 12:00-1:15EST Presenter: Legal Services Specialist Christine Dzujna, Farm-To-Consumer Legal Defense Fund
If you are a farmer interested in opening a farmstand on your property, please join us to learn about key federal, state and local regulations that impact small food producers who seek to make and sell value-added products from home. We will cover what’s allowed when selling meat, eggs, dairy, cottage foods such as pickles and baked goods, and more, and explore the legal solutions that can help these businesses grow and thrive.
Keith Richard of Archipelago in Portland, ME has been an outstanding partner for the Legal Food Hub over the past few years, taking on matters ranging from contract disputes to LLC formations, to negotiating the sale of a conservation easement. He is particularly passionate about working with farmers and small business owners, tackling food waste, and composting. Keith’s broad skillset and tireless advocacy have made him an indispensable partner for the Hub.
In addition to his service to the Legal Food Hub, Keith has also taken on pro bono matters from the Volunteer Lawyers Project, the Eviction Defense Program of Pine Tree Legal Assistance, and Legal Services for the Elderly. He was recently recognized for the fifth consecutive year by the Maine Supreme Judicial Court’s Katahdin Counsel Program for his pro bono work. He first began accepting referrals from the Hub in his prior position at Libby O’Brien Kingsley & Champion in Kennebunk, ME, and moved to Archipelago in June of 2022. He will continue to assist Legal Food Hub participants in his new role.
Thank you for your contribution to the local food movement, Keith!
The Agricultural Mediation Programs in Vermont and New Hampshire recently expanded the list of approved issues that qualify for free mediation to include easements, contracts, and labor issues.
“Farmers and other agricultural businesses in these situations find themselves in disputes with landowners, employees, or other entities,” Vermont Agricultural Mediation Program (VTAMP) Director, Matt Strassberg said. “Both sides often try everything to fix the problem on their own but aren’t able to make the progress they hoped for.”
Mediation is a voluntary and confidential process where an impartial person (mediator) helps parties resolve their differences and negotiate agreements. The programs are supported by the USDA and the departments of agriculture in each state.
Recent data from the organizations show success rates of over 80% when mediation is tried before resorting to arbitration, litigation, or some other dispute resolution method.
“Farming is a round-the-clock demanding job. By nature, farmers are highly resourceful and skilled at solving problems. Yet we’re seeing an increase in complex disputes that leave farmers feeling stretched thin,” Vermont Secretary of Agriculture Anson Tebbetts said. “This service is a lifeline that helps farmers get back to doing what they love.”
Presenter: Kim Memmesheimer, Hoefle, Phoenix, Gormley & Roberts, PLLC
When you’re forming your LLC or other business entity, it is important to plan for the future. This webinar will prepare you with key questions to consider about succession planning when forming your business.
Presenter: Rachel Gartner, Faegre, Drinker Biddle and Reath
Small food businesses and farms with value-added processing often sell their products locally, but understanding the Food and Drug Administration’s rules for labeling those products can be challenging. This webinar will prepare you to feel confident creating a food label and selling your product.
Presenter: Jeff Polubinski, Gravel & Shea
When a farmer works with a landowner to put together a farmland lease, there are many important considerations. This webinar will inform farmers and nonprofit farm organizations about the key elements that should be in a farmland lease.
Presenter: Tom Trenholm, Drummond Woodsum
Navigating employment laws on your farm can be a challenging task. This webinar will help Maine farmers understand how to handle various workers on your farm, including WOOFers, volunteers, and CSA workers.
Presenter: Amy Manzelli, BCM Environmental & Land Law
When you’re starting a farm business, there are lots of important legal issues to consider, from what type of business entity you’ll form to how to protect yourself from liability and plan for the future. This comprehensive webinar will equip farmers with the legal know-how to tackle these key decisions and start off on a strong legal footing.
The Legal Food Hub is thrilled to announce it will begin offering services in New Hampshire on November 4th 2021. We look forward to becoming a part of the New Hampshire food network and doing our best to support and grow a sustainable food system.
Beginning November 4th 2021, if you are a farmer, food entrepreneur, or nonprofit in the food space and you are in need of legal services, please fill out our application. We will respond within 48 business hours and work towards getting you the legal help you need, pro bono.
If you are a stakeholder of the New Hampshire food system, we’d like to get to know you! Email our program coordinator, Mary Egan at email@example.com to set up a brief informational session.
If you are an attorney barred in New Hampshire and interested in providing pro bono services, we welcome you to our network. Email our program coordinator, Mary Egan at firstname.lastname@example.org to set up a meet’n’greet.
The Legal Food Hub Team
For generations, farmers of color, including Black, Hispanic, Indigenous and Asian farmers, have struggled against systemic discrimination and a cycle of debt. This struggle has been exacerbated recently by a disproportionate amount of COVID-19 infection rates, hospitalizations, death, and job loss experienced by these groups. At the same time, more than 370 million acres of our nation’s farmland is poised to change hands over the next decade, creating an opportunity to provide expanded access to farmland for historically marginalized farmers. The Biden administration is taking steps to address these inequities in our farming communities.
The American Rescue Plan
Tucked inside the $1.9 trillion America Rescue Plan (the “Plan”) bill signed by President Biden on March 11, 2021, is $5 billion worth of aid to help farmers of color. The money would support programs for farm debt relief as well as United States Department of Agriculture (USDA) grants, training, education and other forms of assistance.
The Plan provides $4 billion toward debt relief for farmers of color to pay off burdensome debts that have prevented them from making a living or investing in the profitability and efficiency of their farms. Loan payments are available for up to 120% of USDA direct farm loans or USDA-guaranteed loans. The additional 20% above the loan amount is intended to pay off early-payment penalties, taxes or other fees associated with debt relief. According to the New York Times, the USDA estimates that it could provide debt relief for as many as 15,000 loans, and it is asking lenders to halt any pending farm forfeitures tied to loans guaranteed by its Farm Service Agency.
The USDA will receive an additional $1 billion to invest in land access, outreach, education, assistance overcoming barriers to access to USDA programs, and business development. The Plan also funds a racial equity commission to address longstanding discrimination across the USDA and provides financial support for research and education at historically Black colleges and land grant universities. In a nod to the importance of preserving working farmland as it transitions to the next generation, the Plan also provides resources to address heirs’ property issues, for example by clearing up title to the farmland and preventing partitioning of the land.
Pandemic Assistance for Producers
In addition, the USDA had created a $6 billion Pandemic Assistance for Producers program, that will target farmers who did not benefit from previous rounds of pandemic-related assistance, including farmers of color. The program expands the popular Coronavirus Food Assistance Program that provides relief payments to farmers and will establish partnerships with grassroots organizations to assist farmers with the application process.
Impact on New England Farmers
While the 2017 Agricultural Census changed its reporting method to include more producers overall, New England’s Black farming population has more than tripled since 2007 to 405 farm producers according to the 2017 Agriculture Census. Asian and Hispanic farmers numbers have also increased, although white farmers still make up over 97% of New England farmers. While farming has grown increasingly diverse in New England, many farmers of color do not own the land they farm. Black farmers are much more likely to rent land; in fact, in fact 78% are tenants who rely solely on rented land to farm. About 20% of Asian farmers and 10% of Hispanic farmers also farm solely on rented lands. In contrast, a majority of U.S. farmland is owner-operated—just over 60 percent, according to the 2017 Census of Agriculture.
The American Rescue Plan debt forgiveness would help New England farmers by reducing the debt burden on existing farms. In addition to the threat of losing the farm if the loan is not repaid, debt makes it difficult to obtain the credit necessary to purchase farm equipment and supplies. Reducing debt makes it easier for farmers to invest in their current properties to run them more efficiently and profitably.
However, the Plan’s impact is hampered by the low number of farmers of color who hold USDA loans. Black farmers have loans at significantly lower rates than the national average, which is not surprising since Black farmers were historically denied USDA loans that were easily obtained by white farmers. When socially disadvantaged farmers are unable to access credit in the first place, whether to buy land or purchase farm equipment, they have fewer loan debts to forgive. Indeed the 15,000 loans that may be eligible for debt forgiveness will affect only a fraction of the 240,00 farmers nationally that identified as Hispanic, Black, Indigenous or Asian in the 2017 Agricultural Census. This underscores the importance of increasing farmland ownership and access to credit for farmers of color in our region.
Increasing technical support and access to USDA programs — initiatives found in both the American Rescue Plan and the Pandemic Assistance for Producers initiative — may have broader and more significant impact on New England farmers. These programs will improve access to tools farmers need to run their farm businesses better and are aimed at helping farmers of color acquire and maintain their land and level their footing with white farmers. According to Jim Habana Hafner, executive director of Land For Good, these programs help lower barriers for accessing resources and correct historical and structural inequities, which will create farming opportunities for farmers of color.
The devil, as they say, is in the details. It will be weeks before we know how the USDA will prioritize programs and allocate resources, both among the many USDA programs and across the country. Oversight of the programs, especially by people of color, is key to assure that the programs are managed to meet the legislative objective of “assisting and supporting socially disadvantaged farmers.” Agriculture secretary Tom Vilsack has voiced support for addressing systemic discrimination at the USDA, stating during a March 25, 2021 congressional hearing on Black farming, “Let me be clear: There is no place in the USDA for discrimination — none.” Vilsack can begin the process by placing more people of color in positions of leadership of these and other programs at the USDA. Support at this highest level is necessary to begin to address the generational losses of Black farmers and support our diverse farming community.
In conclusion, the USDA programs aim to provide both immediate debt relief and longer-term support that will help farmers of color with land security, land acquisition and land succession. Farmers are urged to contact their local Farm Services Agency to learn more about these program.
The Legal Food Hub’s free annual Winter Webinar Series began on Tuesday, February 16th. Each week we spent an hour covering a legal topic of significance to New England farmers, food entrepreneurs, and food-oriented nonprofits.
Understanding Purchase and Sale Agreements in Real Estate Transactions
A purchase and sale agreement is the document that establishes the steps of the transaction, as well as the responsibilities of the Seller and the Buyer. Purchasing real estate can seem like a complicated process but we will walk you through it.
During this webinar, Massachusetts attorney Richard Cavanaugh of Common Grow, LLC will discuss typical provisions in a purchase and sale agreement. He will also cover some other issues – like zoning and wetland restrictions – that you should consider when deciding whether or not to buy a property.
Presenter: Attorney Rich Kavanaugh, Common Grow LLC.
Resolving Challenging Issues through Agricultural Mediation
Sometimes, as a farmer, you find yourself stuck or facing a conflict. Whether your business has been threatened, a creditor is hounding you, or a neighbor is making complaints about your farm, you are not alone. The USDA’s certified Agricultural Mediation programs can help you through these situations.
The mediation program is a free service that gives all voices an opportunity to be heard and work together toward a solution that works for everyone. In this webinar, you will have a chance to meet Agricultural mediators in New England. They will give you an overview of the program and share some stories that illustrate the effectiveness of their work.
Presenter: Matt Strassberg, Director of the Environmental Mediation Center
Hiring Your First Farm Employees
Congratulations! Your farm business has grown, and you are in dire need of hiring some help. Enter employment law – specifically, agricultural employment law. Join our one-hour webinar to learn the general laws that you are required to follow as an agricultural employer. We will cover important pay considerations, how to get employees properly set up, and best practices to avoid discrimination lawsuits. After this session, you will feel confident to make your first hires.
Presenter: Attorney John S. Gannon, Skoler-Abbott LLC.
Opening Your Farm to Visitors and Controlling for Liability
From farm dinners to CSA pick-ups, and from Airbnb to educational programs, you might open your farm to friends, neighbors, and even tourists. As you welcome visitors to your farm, you need to be ready to handle the myriad of risks that they bring with them. Join us to receive practical advice from an agritourism expert, an insurance agent, and an attorney. Each will provide you with tools to prepare for the worst and enjoy the best.
Presenters: Attorney Mary Rose Scozzafava; Stuart Farnham, AFIS Vice President of Frazer Insurance Agency, Inc.; Lisa Chase, University of Vermont Agritourism Expert
Options for Forming a Social Enterprise
As a farmer or food entrepreneur, you may want to create a successful business while also working for social good. In a social enterprise, these goals go hand-in-hand. In this webinar, we’ll discuss the details of a social enterprise. And, we will talk about the advantages and disadvantages of common business structures that can be the foundation for your social enterprise (sole proprietorships, partnerships, LLCs, corporations, co-ops, and non-profits).
Presenters: Colin Antaya, Legal Fellow for Conservation Law Foundation; Kohei Ishihara, Owner of Movement Ground Farm
Enjoy reading about the growth of the New England Food System through our annual report. We connect the stewards of our food system to pro bono legal services. By supporting those who grow, produce, and sell our local food, we’re helping to foster a sustainable, resilient, and just food system. And a healthy and thriving local food system means a healthy environment, climate, and economy for all New Englanders.
Below are some resources that will assist you as you navigate legal issues raised by Covid-19.
Additional Resources for Farmers:
Community Involved in Sustaining Agriculture Farmers and business owners, CISA wants to hear from you. How is this affecting you, your employees, your sales? What sort of support do you need? Are you making changes to your business that we can help promote?
COVID-19 Guidance for Farmers Markets, Farm Stands, & CSA Guidance Massachusetts Department of Agriculture gives guidance on farmers markets, farm stands and community supported agriculture.
Massachusetts Department of Public Health Order of the Commissioner of Public Health for Farmers Markets, Farm Stands, and CSAs
Mass.gov COVID-19 Resources for Agriculture In response to the spread of COVID-19 and the measures being taken to address it, Massachusetts Department of Agriculture has compiled a list of resources to keep our agricultural community informed and aware of relevant policies and best practices.
Additional Resources for Small Business (could apply to farmers as well):
Covid Relief Coalition Provides services to small business owners and non-profits who have been affected by COVID-19. Specifically, it will provide pro-bono services to applicable businesses
City of Boston: Coronavirus Resources for Businesses
Kiva Microloans LISC is offering KIVA micro-loans, which are “interest free, fee free, character-based loans of up to $15K, with 50% crowdfunded and 50% matched by LISC”.
Massachusetts Food Trust Program Improving Food Security Access throughout the Commonwealth.
ICIC Small Business Resource Center for Covid-19.
The Boston Foundation The COVID-19 Response Fund has been established by a coalition of business, government and philanthropic partners to rapidly deploy flexible resources to organizations in Greater Boston that are working with communities that are disproportionately affected by the coronavirus outbreak.
The Boston Foundation Other Covid-19 resources and grants for businesses.
Please feel free to email us at email@example.com with any questions and we will do our best to help.
Land for Good Regional land trust’s compilation of resources for farmers and food systems.
New England Grassroots Environment Fund Grant money available for community-based projects responding to COVID needs in all New England states.
Farm to Institution: COVID-19 Resources A comprehensive list and forum for all things farming and COVID-19.
You, COVID-19, and Your Farm Business A review of your business plan, communicating with your customers, taking stock of your business, and pivoting to reach your customers even better.
Please feel free to email us at firstname.lastname@example.org with any questions and we will do our best to help.
Coronavirus Disease 2019 This is the Connecticut government’s response to COVID-19.
Please feel free to email us at email@example.com with any questions and we will do our best to help.
Maine Department of Agriculture: COVID-19 Information for Agriculture and Food Business This is the primary resource for COVID-19 related questions for farm and food businesses. Since this is an evolving pandemic, visit this page often for the most up to date information.
Maine Department of Agriculture, Conservation, and Forestry Statement to Consumers Regarding the Safety of Maine Food COVID-19 is not a food-borne illness. However, procuring food during the pandemic can be stressful, and Maine consumers have justifiable concerns about the safe handling of their food.
Coastal Enterprise Inc. COVID 19 resources for Maine businesses.
COVID-19 and Farmers Markets Guidance given by Maine Federation of Farmers Markets
UMaine Beginning Farmer Resource Network: COVID-19 Information and Support for Maine Farmers A comprehensive list of resources for Maine farms facing coronavirus impact.
UMaine Cooperative Extension/FAQs The extension school is opening its doors for COVID-19 and Maine agriculture questions. Submit your questions here.
UMaine Cooperative Extension/Food & Health COVID-19 Information and Support for Maine Food Producers and Produce Growers.
UMaine Cooperative Extension/Food & Health COVID-19 Food Safety Information for Maine Consumers
UMaine Farm Product and Pick-up Directory Post where you will be selling your products or find where other farms are selling theirs.
MOFGA Support for Maine Farmers Maine Organic Farmers and Gardeners Association has compiled a list of resources and links.
Rhode Island Department of Health Visit this page often for the most up to date recommendations from the Department of Public Health.
Rhode Island Farm Bureau Advice for Ag Transport Across State Lines.
Rhode Island Department of Environmental Management Where to find local food for consumers and producers.
Rhode Island Superior Court Read how the court intends to provide temporary relief to local businesses.
RI Delivers Rhode Islanders’ connection to help for those living in quarantine or isolation due to coronavirus disease 2019 (COVID-19).
RI Food Policy Council: In response to the spread of COVID-19, the Rhode Island Food Policy Council is aggregating information on available food access and food business resources and opportunities.
Northeast Organic Farming Association of Rhode Island COVID-19 Resources for Farmers.
Firms Publishing COVID-19 Help Articles:
Downs Rachlin Martin, PLLC
Gravel and Shea
Primmer Piper Eggleston & Cramer PC
Paul Frank and Collins
Stitzel Page & Fletcher, PC
Northeast Farmer Association of Vermont As you are making significant adjustments to your business, production, labor, and marketing strategies for this upcoming season, one-on-one assistance is available to help you with these critical decisions and ensure the continued viability of your farm.
University of Vermont Considerations of Fruit and Vegetable Growers Related to Coronavirus and COVID-19. Vermont has put out comprehensive information on what growers can and should do to protect themselves, their employees, and their customers.
Vermont’s Agency of Agriculture, Food and Markets This post contains importation information regarding COVID-19 and agriculture and food businesses.
Vermont Farm & Forest Viability Program The Viability Program provides business advising and technical assistance to farm, food, and forest businesses in Vermont to help them achieve long-term success. They are also supporting businesses navigating COVID-19 by providing shorter-term disaster response services.
Please feel free to email us at firstname.lastname@example.org with any questions and we will do our best to help.
How do I protect my employees? Where can I sell my produce now that my farmers market closed? Is there grant money available for my business? Despite the pandemic we find ourselves facing, New England has mobilized, and an incredible amount of resources have become available to food businesses and farmers to help provide financial relief as well as business guidance during this difficult time. Below is a list of these resources as well as helpful advice on the laws that are in flux.
For Connecticut Farmers and Small Businesses
For Maine Farmers and Small Businesses
For Massachusetts Farmers and Small Businesses
For Rhode Island Farmers and Small Businesses
For Vermont Farmers and Small Businesses
For Farmers Regionally and Small Businesses
Massachusetts Overtime Exemptions – What You Need to Know
If you’re a farmer hiring employees in Massachusetts, navigating the rules of the road can be challenging. This blog post highlights a recent court ruling in the Commonwealth that could affect when farmers pay their workers overtime.
Overtime laws require employers to pay one and a half times the regular pay rates when an employee works more than forty hours in a week. Both the federal and state overtime laws include exemptions to this requirement for certain types of work.
The Massachusetts overtime laws include an exemption for agricultural and farming workers. However, the Massachusetts Supreme Judicial Court recently decided a case that affects what is considered agricultural and farming work.
In the case of Arias-Villano v. Chang & Sons Enterprises, Inc., the highest Massachusetts court determined that the agricultural exemption only applies to a very narrow type of agricultural work – the planting, raising, and harvesting of crops. The exemption does not apply to post-harvest activities, for example cleaning, sorting, and packaging produce, even if related to the farming operations.
Federal Overtime Exemption
The federal overtime exemption for agricultural workers is less restrictive than the Massachusetts exemption. However, the Court in Arias-Villano compared the federal definition of agriculture with the Massachusetts definition. Employers in Massachusetts are required to fulfill the requirements of the Massachusetts overtime requirements; the federal requirements are provided as a basis for the more restrictive definition used in Massachusetts.
The federal Fair Labor Standards Act includes an exemption to the overtime pay requirements for agricultural workers, but agricultural work is defined to include both farming activities, including growing and harvesting crops, and certain post-harvest activities, including preparation for sale.
Specifically, the exemption includes “farming in all its branches … and any practices … performed by a farmer or on a farm as an incident to or in conjunction with such farming operations.” (FLSA Sec. 203(f)).
Work that is simply in conjunction with a farming operation qualifies for the agricultural overtime exemption, including post-harvest packing, sorting, and transportation. Food manufacturing, however, is not qualified for this exemption. (https://www.dol.gov/agencies/whd/fact-sheets/12-flsa-agriculture)
Massachusetts Overtime Exemption
In contrast to the federal agricultural exemption, the Massachusetts overtime exemption defines agriculture as “labor on a farm and the growing and harvesting of agricultural, floricultural, and horticultural commodities.” (M.G.L. c. 151, §2).
The definition of agriculture under the Massachusetts overtime exemption does not include post-harvest activities, nor does it allow for the exemption of work that is incidental to farming operations, unlike the federal exemption.
Arias-Villano and What’s Changed
In Arias-Villano, a group of employees who worked at a bean sprout company sued for overtime pay. The company grows, harvests, packages, and distributes bean sprouts in a hydroponic operation. These employees were responsible for cleaning, sorting, weighing, and packaging the sprouts and cleaning the facility, but were not responsible for growing or harvesting the sprouts. The employer claimed that overtime pay was not applicable because the company was engaged in agricultural and farming activities.
However, the Court determined that the responsibilities of these employees (cleaning, sorting, weighing, and packaging sprouts) were not agricultural and farming activities under the Massachusetts overtime law. The Court determined that Massachusetts had intended to adopt a narrow exemption, and intentionally modified the definition of agriculture from that used in the federal statute.
So, after this decision, if an employee is engaged in post-harvest activities and is working more than forty hours per week, the employee must be paid overtime wages under the Massachusetts overtime laws. Activities such as the harvesting of crops, planting of seeds, and maintenance of a field would be considered exempt activities under the Massachusetts exemption. However, activities that are post-harvest, including cleaning, grading, sorting, packaging, and transporting agricultural commodities would not be exempted, and the employer would be required to pay the overtime rate.
The Court and the Massachusetts Department of Labor Standards have not addressed if overtime must be paid if an employee works both in growing and harvesting (exempted) activities, as well as post-harvest (non-exempted) activities.
If you’re a farmer hiring workers in Massachusetts and you need help figuring out how employment laws apply to your operation, contact the Legal Food Hub at email@example.com and check out our employment law resources here.
See how other states are dealing with Agricultural Employment Law:
Liz Sharpe JD Candidate, 2020, Seton Hall University
VERMONT LEGAL FOOD HUB TO DELIVER FREE LEGAL SERVICES TO FARMERS, FOOD ENTREPRENEURS, AND RELATED ORGANIZATIONS
WEDNESDAY, JANUARY 22, 2020
SOUTH ROYALTON, VT.
Today Vermont Law School (VLS) and Conservation Law Foundation (CLF) announced the launch of the Vermont Legal Food Hub. Located at VLS’s Center for Agriculture and Food Systems (CAFS) in South Royalton, the program will match income-eligible farmers and business owners with skilled attorneys willing to provide free legal services.
“A thriving local food system depends on the success of farms and food businesses,” said Sophia Kruszewski, director, CAFS’s Food and Agriculture Clinic. “Yet many of these businesses lack legal support. Our goal is to connect them with the assistance they need to be resilient and grow.”
One survey by Farm Commons found that only 10 percent of farmers used legal services, in contrast to 70 percent of small businesses in general. Starting a farm or food-related business comes with many associated legal needs, such as acquiring or transferring land or entering contracts. Farmers or food entrepreneurs sometimes go without legal services or pay more than they can afford. In the worst-case scenario, they may leave the profession due to these hurdles.
Jennifer Rushlow, who now serves as director of VLS’s Environmental Law Center, established the nation’s first Legal Food Hub in Massachusetts in 2014 as director of CLF’s Food & Farm Program. Since then, hubs have expanded to Maine, Rhode Island, and Connecticut. They have placed more than 450 clients with attorneys, leveraging more than $2.5 million in pro bono legal assistance. CAFS will serve as primary administrator of the Vermont hub, the first of its kind in the state.
“We’re proud to bring the Legal Food Hub to Vermont,” said Jen Duggan, vice president and director of CLF Vermont. “Supporting local farmers and food businesses leads to vibrant communities and a healthier environment for everyone.”
The Vermont hub has already recruited attorneys from 10 law firms and placed two pilot cases. One involves a group aiming to protect land for a farmer’s market and community garden in Putney.
“Forming a non-profit is complicated, but applying to the Vermont Legal Food Hub was simple,” said client McKenna Hayes. “We were quickly paired with a pro bono attorney who is helping us navigate the process, ensuring the longevity of our farmer’s market and community garden.”
The hub also benefits attorneys. By working with the local food sector, law firms gain access to a quickly growing practice area. In other states, nearly half of surveyed hub attorneys reported continued relationships with their clients, often on a paid basis, as businesses have grown.
“Providing legal services on a pro bono basis offers our firm the possibility of a long-term relationship,” said Jeff Bernstein, attorney with BCK Law, who is representing Hayes. “And it’s satisfying to help establish a new venture that will enrich the local community.”
Vermont Law School students will help to manage the program under the supervision of licensed attorneys, according to CAFS Director Laurie Beyranevand. “Not only will the Legal Food Hub provide a service to our community,” she said, “but students in our Food and Agriculture Clinic will also have the opportunity to fill a needed role, working on real-world cases that support Vermont’s food system.”
The Hub is currently recruiting additional attorneys and accepting applications for legal assistance from Vermont farmers, food entrepreneurs, and related organizations. For more information, visit legalfoodhub.org or contact Whitney Shields, program coordinator, at firstname.lastname@example.org or 802-831-1307.
This project is funded by the National Agricultural Library, Agricultural Research Service, U.S. Department of Agriculture.
Article by Laurie Schreiber of Mainebiz
Amy Rowbottom has been making artisanal cheeses for about 10 years.
Taking Skowhegan-based Crooked Face Creamery from a part-time startup to an established food producer made her realize she needed legal help to protect her products and brand. But she had never done any legal work or trademarking on her own and she operates on slim margins, scarcely able to afford the expense of hiring a lawyer.
Taking part in a business boot camp in 2018, she heard about the Legal Food Hub, a program of the Conservation Law Foundation that provides pro bono legal services to food producers and farmers.
After reaching out, she was put in touch with David McConnell, an attorney with Perkins Thompson in Portland who has a practice in trademark and copyright issues. They met in 2018 and McConnell shortly thereafter filed a trademark application for Rowbottom’s logo with the U.S. Patent and Trademark Office. The procedure is simple on its face, says McConnell.
“But there are a lot of traps for the unwary,” he says. “You have to precisely identify each class of goods and services that the mark applies to.”
Saving on legal fees
Central to Rowbottom’s brand is a logo of a cow with a crooked face.
“She was being proactive,” says McConnell. “She recognized it was worth getting the federal trade mark registration.”
After nearly a year, which is how long the trademark process typically takes, the problem has been solved. Rowbottom only had to pay for the trademark filing fee. Thanks to the program, she saved between $1,000 and $5,000 on legal fees, McConnell estimates — a big chunk of change for a bootstrap operation.
That kind of aid illustrates Legal Food Hub’s mission. Founded in 2014, it connects eligible farmers, food entrepreneurs and organizations that support them with attorneys from a growing network who work on their legal issues for free, with an overall goal of helping to grow the farm and food sector.
The program operates in Maine, Massachusetts, Connecticut and Rhode Island, with plans to expand to the other New England states. Since its launch, the hub has handled 375 cases, offering $2.5 million in pro bono legal services in the four states.
In Maine, the hub is managed by the Conservation Law Foundation’s Portland office.
“We saw a trend and a growing need in the farming and food entrepreneur community for affordable legal services,” says Phelps Turner, a staff attorney who manages the Maine hub. “So we leveraged our connections in the legal community throughout New England to create this program. We identified attorneys and law firms willing to volunteer their time and provide free legal services to farmers and food entrepreneurs.”
Farms and food businesses in New England often run on tight margins, yet have many legal needs, Turner says.
“They have limited budgets,” he notes. “We saw that, often, the businesses were not able to afford a lawyer for matters they identified as legal needs.”
Although some of the legal issues facing food producers have evolved over time, such as food safety regulation, generally speaking the legal landscape isn’t much different from any other type of business, Turner notes.
“I think it’s more that the profit margins remain small or perhaps are even shrinking among farmers and food entrepreneurs, so they’re dealing with limited resources and have to make choices,” he continues.
That might result in food producers not being able to retain legal counsel to deal with standard matters.
“Cases we’re placing through the Legal Food Hub in Maine typically involve contracts, leases for land or business space, purchase and sale agreements related to real estate, and conservation and agricultural easements,” he says. “There are also cases involving entity formation — how a business chooses to structure itself and protect itself in terms of liability, along with related tax implications. There are employment and labor issues — making sure they conform with minimum wage and overtime requirements, or know how to work with apprentices and seasonal workers. There are state and federal laws they have to navigate.”
Intellectual property and trademark law applies to food entrepreneurs — people making value-added products like Rowbottom’s specialty cheeses.
“They’re often seeking to protect their recipes, their name and their logo,” Turner says. “Ideally, you seek to protect those early on so you’re not facing an issue later where someone else starts using your recipe, name or logo.”
In Maine, the hub has placed 165 cases over the past five years.
“We’ve seen a dramatic need and it’s not tapering off,” Turner says.
The hub spreads awareness of its service through outreach to the food and farm community — setting up a table at the Maine Agricultural Trade Show, for example.
“We also constantly try to grow our network of volunteer attorneys,” says Turner. “We want to reach as many farms and entrepreneurs as we can, and we need a range of lawyer expertise and also lawyers who are geographically available throughout the state.”
For lawyers, the hub offers educational programs around food and farm issues, like a continuing legal education course on agricultural easements and a new online portal with food- and farm-related legal resources and guides.
McConnell has helped several clients through the hub so far. In addition to Rowbottom, another client was the Maine Federation of Farmers’ Markets when it needed help filing for trademark protection. His service probably saved the federation $1,000 to $2,000. The federation also received help from attorney Kenleigh Nicolletta of Brann & Isaacson in Lewiston in filing for 501(c)(3) nonprofit status.
The federation — a resource for farmers’ markets that works with farmers, consumers and communities — needed trademark protection for its Maine Harvest Bucks program. The program allows food assistance recipients to receive a bonus dollar for every dollar spent at participating farmers’ markets. Because the bonus money must be spent on fresh produce, the idea is that the program helps the recipients and also provides extra income to farmers.
The program’s name was originally used by a number of nonprofits but lacked a consistent message, explains the federation’s director, Jimmy DeBiasi. Several years ago, control of the program was passed to the federation, which decided trademark protection was key to maintaining the integrity of the brand’s message. They went to the hub.
“As an under-resourced organization, we all of a sudden had legal counsel that helped us negotiate with other organizations to protect Maine Harvest Bucks and create licensing agreements that worked for everybody,” DeBiasi says.
“Usually, clients are not well-versed in the arcane aspects of trademark or copyright law, which you wouldn’t expect them to be,” McConnell says. “That’s where a lawyer adds value.”
McConnell tries to meet clients face-to-face, ideally at their operation.
“I can get a better sense for what may be some issues that they might not have initially identified as something they needed help with,” he says. “And we can do some creative planning to get things on the right trajectory.”
McConnell doesn’t mind working pro bono. As it turns out, his practice is largely focused on the food economy anyway, and he co-owns a new rum distillery in Portland, Three of Strong Spirits.
“This work dovetails nicely with what I was already doing for paying clients,” he says. “It makes Maine a much more vibrant place to live in, if we have active systems of producers who are making delicious food and drink.”
Legal Food Hub helped Shovel & Spoon, a farm and farm-to-table catering business in Limington, set up a limited liability corporation, acquire farmland and protect its brand.
The business started in 2018 in Acton, then purchased 30 acres in Limington and moved there.
The hub connected co-owners Tomer Kilchevsky and Courtney Jean Perry with several lawyers on successive issues. Connections came quickly and turnarounds were fast, Kilchevsky says.
“We’re farmers and cooks and have little experience in law and contracts, so having someone there to guide us through the process was extremely helpful,” he says. “And it’s not like they helped us once and went away. They check up occasionally on how things are working out.”
They estimate they’ve saved $3,000 to $4,000 in legal fees.
What would folks typically do without the hub?
“I think some people were going without legal representation,” Turner says. “I think some have been trying to address some of these issues themselves, or were just not addressing them at all. The fact that there have been 165 cases in Maine, in five years, suggests there was, and still is, a great need.”
“Putting it through the intellectual property lens, they might build a product or a brand, then find out later there’s a Goliath who swoops in and crushes their David, so to speak, with a preexisting mark,” says McConnell. “Or maybe they didn’t have someone help them write a good contract at the front end. Or maybe it’s not in writing at all, but just a verbal understanding. Later on, if there’s a disagreement, sometimes they’re not in a position to move forward in a way they anticipated.”
At Crooked Face Creamery, Rowbottom has about 40 wholesale accounts and two distributors, just bought a larger cheese pasteurizer and is in the process of scaling up. She’s reached out to McConnell on additional issues, including researching lease arrangements and problems with an equipment supplier.
Without McConnell’s help, Rowbottom says, she would have had to hire a lawyer or do the work on her own.
“There are so many things to do when you’re running a business,” she says. “To weave your way through those things, when somebody else has all the resources and knows the process, is a huge time-saver. And it’s reassuring to know it’s going to be done right.”
This article originally ran in Mainebiz. Read it here.
New England farmers looking to hire a farm apprentice or a few employees for the farming season face a web of confusing legal requirements. These requirements can be hard to navigate. For example, what types of farm work qualify for exemptions from minimum wage or overtime? When can a farmer have volunteers help on the farm? What kinds of leave does a farmer need to provide for employees?
The Legal Food Hub is here to help sort through those complex questions. In partnership with New Entry Sustainable Farming Project and Conn, Kavanaugh, Rosenthal, Peisch & Ford, a Boston law firm, we put together a legal guide on employment law for Massachusetts farmers. The guide, written by attorneys Mary O’Neal, Andrew Dennington, and Henry Tran, identifies the key legal issues that farmers should think about when hiring employees. We also hosted a series of workshops and webinars on the topic for farmers across the state. These educational offerings help farmers identify the legal risks in their operations so that they know when to turn to a lawyer for help.
“The issue of whether and how farmers should compensate interns, apprentices, and volunteers is a particularly challenging one,” the team of attorneys from Conn Kavanaugh reports. “Our work for the Legal Food Hub has been a wonderful opportunity for us to share our knowledge with agricultural entrepreneurs who may not otherwise have access to legal services. We also have enjoyed learning more about an emerging growth sector of our region’s economy.”
In other states, we have paired farmers with attorneys in our network to help navigate their employment law questions. When he was hiring an apprentice for the season, Phil Cuddeback of Phil’s Farm in Eliot, Maine, worked with Tom Trenholm of Drummond Woodsum in Portland to answer his questions. And that legal help made a difference. “I now feel confident in my approach to find affordable labor, which is essential in the success of my business,” Phil said.
The Legal Food Hub has just released an employment guide for Rhode Island and is working to develop legal guides and workshops on a range of legal topics. For example, we produced a legal guide on community kitchens and hosted workshops on topics including intellectual property law for food entrepreneurs, business formation for farmers, and leases for farmland. In the coming year, we look forward to providing educational offerings that help farmers and food businesses across the region identify legal challenges and feel prepared to work with one of our volunteer attorneys on their legal needs.
Getting timely legal assistance can make all the difference for a farm, food business, or community organization. Just ask Suzie Flores and Jay Douglas of Stonington Kelp Company. Suzie and Jay, who operate their new kelp company in Long Island Sound, sought the Legal Food Hub’s help to form a business entity before their first kelp harvest.
In March 2018, the Legal Food Hub launched in Connecticut in partnership with the Ludwig Center for Community and Economic Development and the Environmental Protection Clinic at Yale Law School. The Legal Food Hub’s arrival in Connecticut has been an exciting opportunity to provide accessible legal assistance to farmers and food entrepreneurs in the state.
“The Legal Food Hub comes to Connecticut at a critical time for our state’s agriculture industry,” said State Rep. James Albis. “The average age of farmers in Connecticut is 59 years old – retiring farmers will need help in succession planning to make sure their farms are being preserved, and entrepreneurial farmers will need help getting started as many farms transition from one owner to the next. The Legal Food Hub can help fill the inevitable legal needs of farmers new and retiring alike.”
Since its launch, the Legal Food Hub has served 14 farmers, food entrepreneurs, and nonprofit organizations in the state. These participants include a mobile farmers’ market, a local refugee assistance project, a nonprofit educational farm, and a small food business that makes products with food that would otherwise be wasted. Our growing network of attorneys in the state has assisted with issues ranging from business formation and employment law to real estate transactions.
The Legal Food Hub has more work to do to support a resilient and sustainable local food system in Connecticut. One study found that only 10% of surveyed farmers use legal services, in contrast to 70% of small businesses in general. There are numerous legal needs associated with starting a farm or business, acquiring land, entering into contracts, transferring land to family members, and other essential business matters. Some farmers and food entrepreneurs who cannot afford legal fees either go without or pay more than they can afford, harming other aspects of their business’s economic viability.
As the Legal Food Hub continues to grow in Connecticut, we are eager to serve more innovative farmers and food businesses across the state. Local farmers and food businesses are at the heart of healthy and thriving communities. A sustainable food system is essential to the health, environment, and economic growth of our communities in Connecticut and throughout New England.
Sarah Turkus knows firsthand how difficult it can be to navigate complex legal issues while running a busy small farm. Sarah has been a farmer and youth educator since 2010 and, in her latest endeavor, manages a nonprofit cooperative farm that opened in 2018. In preparing for the farm’s launch, Sarah wanted to ensure that she had a clear understanding of the legal rights and responsibilities of both the farm owners and its employees. With her demanding schedule, however, she simply did not have the time to get up to speed on the numerous employment laws affecting her farm.
She’s not alone. The reality is that small farmers usually lack the time and resources to tackle many legal matters head-on. To help farmers like Sarah, CLF’s Legal Food Hub has released a new guide that makes it easier for them to comply with state and federal employment laws – so they can spend more time growing and producing delicious local food, and less time trying to navigate these complex laws on their own.
Farm Employment Law is Complicated
In Rhode Island, over 90 percent of farms qualify as small farms, growing and selling between $1,000 and $250,000 of agricultural products per year. The state has become a leader in small farm growth in the United States, and this has created a boon for consumers craving local food. To meet this demand, our farmers work tirelessly and face numerous hurdles every day. While many of these challenges are unpredictable or beyond their control, such as low production yields and increasingly extreme weather, others should be more manageable, such as following the letter of the law when hiring an employee or intern.
However, following the letter of the law isn’t always easy because many exceptions and exemptions apply to agricultural work. For example, under both U.S. and Rhode Island employment laws, agricultural employees are exempted from overtime pay requirements if they are doing farm work. That means an employee would not get paid overtime for planting or harvesting work but would when working a stall at a weekly farmers’ market.
Also, even though many farmers call their workers “interns,” federal law prohibits for-profit farmers from hiring people for unpaid internships unless seven specific criteria are met. Rhode Island state law goes even further and prohibits for-profit farms from using volunteers. Usually, this means that all workers at a for-profit farm must be paid as employees unless they qualify as interns under the law. However, many farmers don’t even know that these laws exist and may unintentionally fail to comply with them.
CLF’s New Guide Aims to Help Farmers Navigate Employment Law
Overtime pay and internship requirements are just a few of the employment issues often overlooked or misunderstood by small farmers. Developed in collaboration with Rhode Island employment law attorney Gina DiCenso, the Legal Food Hub’s new employment guide provides an overview and summary of common employment law issues. These include workers’ rights, how a farmer must pay their employees, what time off employees are entitled to, workplace safety requirements, and best practices for employee handbooks. The guide also lists useful resources that farmers can consult for more information. Also, farmers can reach out to the Legal Food Hub for help in navigating these legal issues.
Understanding employment law is essential to protect both farmers and their employees. Ultimately, CLF’s new guide will help our busy small farmers like Sarah Turkus succeed by making it easier for them to understand and address employment law issues proactively. The guide is free to download here. We hope you’ll share it with your local farmers and farm workers so they can spend more time farming and less time dealing with legal issues. The more we can support our farms and farmers, the stronger we can make our local food economy.
Elizabeth Boepple – BCM Environmental Land Law
With her focus on farm and food law, Beth is a staunch supporter of the local food system across New England. She has been a champion of the Legal Food Hub since its launch in Maine in 2014. She serves her clients with a wealth of knowledge garnered from years of experience working with clients in farming and food production throughout New Hampshire, Maine, and Vermont. Beth’s broad expertise in real estate, land use, corporate, and commercial and banking law has been a great asset to the Legal Food Hub. After taking on one of Maine’s first Hub cases in 2014, Beth has been assisting participants since then on a range of issues. Beth, we can’t thank you enough for your dedication to your clients, farm and food law, and the Legal Food Hub!