Legal Minefield Awaits Ag Employers
SALEM, Ore. — A labor law attorney has warned Oregon dairymen that more employee lawsuits are targeting business owners as well as their firms.
"It's not just the company being sued but the individual as well," attorney Amanda Gamblin said Tuesday at the Oregon Dairy Farmers 2014 Convention.
The strategy is meant to put the grower's assets at risk, since they're often separate from the farm corporation, she said.
The trend of personally naming business owners in lawsuits is on the rise because plaintiffs believe it confers more negotiating leverage, Gamblin said.
To counter this method, dairies and other small businesses need to ensure legal defense is included in their insurance policy, she said.
Both the company and its owner should be protected in the event of litigation, Gamblin said.
Some general insurance policies exclude coverage for wage and hour lawsuits, so farmers should find a policy that includes them, she said.
Gamblin recommended having at least $1 million in liability coverage, as litigation can get expensive.
"There will be a lot more peace of mind," she said.
One of her clients recently won a employment case after three years of "ridiculously complex" litigation and a four-week jury trial, she said.
Though the employer was ultimately victorious, the legal defense costs came to $500,000, Gamblin said. "That would devastate most small business clients. It would put them under."
In light of a recent "ag protection" legislative proposal in Idaho, Gamblin said Oregon dairies should be aware of the legal situation in their state.
Under the Idaho proposal, employees who lie to a farmer to get hired and try to obtain video footage of animal abuse would be subject to criminal penalties.
Oregon not only lacks such a law, but farmers could face lawsuits if they fire a "whistle blower" or bar such a worker from employment, Gamblin said.
Farmers need to do their homework when vetting applicants and check their references, she said.
The employee handbook should also stress that lying on an employment application is grounds for termination, Gamblin said.
In the event of a firing, the grower should document that the worker had lied on the application and not for whistle-blowing, she said.
Oregon is theoretically an "at will" employer state, in which workers can be fired for any reason, she said.
The reality is much more complicated, as the Oregon legislature has carved out a long list of exemptions to the "at will" law, Gamblin said.
"There are so many exceptions to the ‘at will' rule it has been swallowed," she said.
In effect, this means employers must show that they fired workers for a reason that's not exempted, she said.
Juries will tend to believe a worker's accusations unless the employer can prove otherwise with paperwork, Gamblin said.
"If you write nothing down, the jury will just assume it's for one of those reasons you're not allowed to fire," she said.
Dairies can also avoid legal and public relations problems regarding animal abuse by installing cameras, or even fake cameras, Gamblin said.
"Nobody is in this mess if they prevent animal cruelty in the first place," she said.
As published, Capital Press, February 25, 2014