Author: Legal Services Food Hub

By Mary Rose Scozzafava

Do you wonder, as a New England farmer, how the new U.S. Food and Drug Administration’s (FDA) Produce Safety Rule applies to you? Have you read the Rule, but thought that it didn’t cover the situations on your farm?  Conservation Law Foundation’s (CLF) Legal Food Hub and Harvard Law School’s Food Law and Policy Clinic (FLPC) are speaking up to ensure that the regulations work for New England farmers.

A Voice for New England’s Sustainable Agriculture

New England agriculture is made up of mostly small, diversified farms. Farmers grow and sell a variety of products and engage in many different farming activities, including raising livestock. New England farmers also employ organic farming practices at a higher rate than other regions of the United States.  So, New England farm operations tend to be smaller in acreage, yet more complex than larger operations.

With our local understanding of the unique characteristics of New England’s farm sector, CLF’s Legal Food Hub and Harvard Law School’s FLPC took a look at how new guidance for produce safety will affect our New England farms.  We want to be sure the rule works for farmers here in our region.

New Produce Safety Requirements under FSMA

The Food Safety Modernization Act (FSMA) was signed into law in 2011 and required the FDA to write new regulations to create standards for produce safety, called the Produce Safety Rule.  The Produce Safety Rule went into effect on January 26, 2016. The Rule established new standards for the growing, harvesting, packing, and holding of produce for human consumption. Compliance is phased in over a several-year period starting January 2018. This is the first time that farms have had to follow federal food safety regulations.

The FDA recently released a draft guidance on the Produce Safety Rule, which is intended to assist farmers in understanding and implementing the Rule.  The guidance provides a broad range of recommendations on how to meet the requirements of the Rule and some real-life examples. For example, it outlines how to determine whether produce or farms may be eligible for exemptions from certain requirements of the Rule.  However, the guidance is not yet final, and the public was invited to provide comments on how to improve it.

CLF and FLPC Comments Address Needs of New England Farmers

In partnership with FLPC, CLF submitted comments on the Produce Safety Rules draft guidance.  Our comments focused on the impact of the Produce Safety Rule on the small, diversified and sustainable farm practices common to New England.

We made recommendations to make the rules clearer and make implementation easier for New England farmers. For example, our comments requested clearer guidance for gleaners who harvest food from farms for donation. We also recommended that gleaning activities be exempt from the Produce Safety Rule.  In addition, our comments requested more clarification on the status of specific biological soil amendments, including worm castings and vermicomposting, foliar fertilizer, and agricultural tea.

The full comments submitted to the FDA can be viewed here.

The Legal Food Hub is working to help farmers understand how to comply with new requirements under FSMA. Check out a recent webinar on the Produce Safety Rule here.

By Lauren Moore

For busy and hardworking small farmers and food entrepreneurs, even a full twenty-four hours in a day is often too short to finish all the tasks that must get done to keep a farm or business running smoothly. It can be especially difficult to find the time and money to address the array of complicated legal issues that farmers and food entrepreneurs often face, such as protecting a business name or complying with food safety rules.

The Legal Food Hub understands how hard folks in our local food system are working to provide local produce and food products across New England. In response, we have been expanding our educational offerings to provide farmers and food entrepreneurs with practical information and resources for both identifying and dealing with common legal issues.

As part of this initiative, we recently held a Winter Webinar Series to demystify some key legal issues for farmers and food entrepreneurs. Topics covered ranged from how to manage student loan debt to how to pay farm employees. Here’s a roundup of the webinars:

• Words Matter: Protecting Your Trademarks and Copyrights: Presented by Mary Rose Scozzafava, a Senior Fellow at CLF and former Partner at WilmerHale, this webinar walks you through how to choose and register your business name as a trademark and provides tips on avoiding pitfalls and protecting your market brand. Watch the webinar here.
• Entity Governance for Non-Profits: Developed by the Transactional Law Clinics of Harvard Law School, this webinar explores key legal considerations and best practices for non-profit and charitable organizations. Watch the webinar here.
• Selected Topics from the FSMA Produce Safety Rule: Presented by attorney Sumana Chintapalli, and Lori Pivarnik from the University of Rhode Island, this webinar provides a brief discussion of portions of the Food Safety Modernization Act Product Safety Rule that are particularly relevant to farmers and food businesses. Watch the webinar here.
• Legal Considerations of Agricultural Easements: Presented by Beth Boepple of BCM Environment and Land Law, this webinar discusses key legal issues related to agricultural easements that farmers and other landowners may encounter. Watch the webinar here.
• Employment Law for Farmers in Rhode Island: Presented by Erica Kyzmir-McKeon, a Senior Fellow and attorney at CLF, and attorney Gina A. DiCenso, this webinar provides an overview of common employment law issues, including how farmers must pay their employees, what time off employees are entitled to, and the legal distinctions between unpaid interns, registered apprentices, and volunteers. Watch the webinar here.
• Student Loan Basics for Farmers: Presented by Erica Kyzmir-McKeon, CLF Senior Fellow and attorney, and Deanne Loonin, attorney with the Project on Predatory Student Lending at the Legal Services Center of Harvard Law School, this webinar discusses the different types of student loans and how borrowers can deal with them. Topics include managing repayment, avoiding or getting out of loan default, and loan cancellation. Watch the webinar here.

As farmers start their growing season, the team at the Legal Food Hub will keep working to help farmers and food entrepreneurs flourish by providing the tools to identify and address legal issues. If you’re a farmer or food entrepreneur with a legal question or problem, we encourage you to reach out to us at legalfoodhub@clf.org or 1-844-LAW-GROW. Together, we can build a more resilient local food system.

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 www.legalfoodhub.org and check out our employment law resources here.

See how other states are dealing with Agricultural Employment Law:

New York may join 4 states requiring farmworker overtime pay

Requiring overtime on New York farms would raise labor costs 17%

Agriculture reacts to California’s new overtime laws

Lawsuit seeks to extend overtime pay for Washington farm workers

Liz Sharpe JD Candidate, 2020, Seton Hall University

The Portland Press Herald announced that the Legal Food Hub is a 2019 winner of a Source Maine Sustainability Award. The Herald highlighted the work that Dave McConnell of Portland law firm Perkins Thompson performed for Crooked Face Creamery. The creamery’s owner, Amy Rowbottom, successfully trademarked her business’ name and logo with McConnell’s assistance.

You can read the full story here.