Farm Commons

Show Notes: In this episode, we’re back with our director Rachel Armstrong for Part 5 to discuss COVID-19’s impacts on workers on the farm through diversification into farmstand sales and delivery, as well as social distancing practices. Employment law is the gift that keeps on giving and our lively conversation covers important employment law considerations when combining other businesses’ products with your own and home delivery, which may require overtime pay and workers’ compensation. We also explain unemployment insurance as it relates to the farm, wrapping up with a response to the question – “Can I require social distancing on my farm?” For more information on these and other employment law considerations, check out our resources Farm Employment Law: Know the Basics and Make them Work for Your Farm and Managing the Risks of Interns and Volunteers. ​Disclaimer: The above communications are delivered for educational purposes only and do not constitute the rendering of legal advice.

Show Notes: In this episode, we discuss the legal mechanics of online sales platforms and CSA agreements as part of special coverage on COVID-19’s effects on farm businesses with Sarah Vaile, Farm Commons' Staff Attorney. Sarah: There’s no denying the magnitude of havoc that COVID-19 is wreaking across our globe, and on the farmers that we here at Farm Commons work hard to serve. We all know what’s going on. It goes without saying, but just to recap for anyone who’s been stuck under a rock or on Mars these past few weeks…The way we are able to access our food has drastically changed, and means farmers have to change the way they sell their farm products. Restaurants are mostly closed for dining in and grocery stores, while open, are now scary places to be in. The threat of catching the coronavirus looms large, and is on every shopper’s mind as they touch a head of broccoli or a carton of milk – who else has touched it, and are the dreaded COVID germs lurking there, ready to infect? Even farmers markets, potentially safer, being in the open air and carrying food handled only by known persons in the local community, feel questionable in this landscape of fear. Eva: With all the policy changes around public gatherings, retails operations, and social distancing, what are farmers to do with regards to sales? Sarah: I asked myself this question at the farmers market yesterday morning, as I looked around at all the beautiful mixed greens, kale and spinach, huckleberries, wild mushrooms, bunches of beets, bouquets of brightly colored flowers and sunflower sprouts that farmers spent so much time and energy and blood, sweat and tears to produce, and gather and grow and harvest. I felt so much sadness thinking that this might all go to waste as the usually bustling market was but a shadow of its former self, with only the most diehard amongst us showing up to make our purchases. Then I remembered, farmers are the most ingenious, inventive, resourceful people I know. This is proving to be true as we find our way through this strange new world of social distancing and masks, Purell and rubber gloves. The online farm sales platform Barn2Door says in its website article about tips for farm sales during the COVID-19 crisis that online farm sales have increased 10x and in some cases even 20x in the recent weeks. Barn2Door encourages farmers to keep up the online momentum, and do what they can to make it easy for customers, something they’ve become accustomed to thanks to Amazon, Netflix etc. Offer locations in town for customers to pick up farm products and better yet, deliver right to their door. Offer a “bundle” of farm products such as milk, bread and other staples, which are delivered on a weekly basis. Farmers are quickly learning how to shift their business models, and their responsiveness to the changing needs of customers, and an ever-changing situation, will keep them in business. Eva: At Farm Commons, we have great guides available for farmers who sell wholesale, providing guidance as they enter into contracts with grocery stores, restaurants, schools, governments and other such traditional, brick and mortar vendors. But, what about when farmers enter into contracts with online platforms such as Barn2Door, Farmingo or Harvie? Are the legal considerations of these sales platforms different than say, through a farmers market?  Sarah: The considerations are different because what these virtual sales platforms do is different than the brick and mortar stores. Like I said, what these platforms offer varies from company to company, but mostly they offer the ability for farmers to sell online – in other words, they provide a landing spot, online, where customers can see the farm products that are available, select what they want, and pay for it. This is very different from a traditional wholesale arrangement where, say, the grocery store, for example, actually takes possession of the broccoli and kale, physically handles it, decides where to place it within the display areas in the store, prices it and so on. Typically the online platform never actually takes physical possession of the farm products, and is not responsible for actually getting the products into the hands of the customers. What the online platform typically does, instead, is provide the software ingenuity that attempts to mimic, virtually, the experience of the customer going into the grocery store and doing the shopping in person. It replicates this experience, as best as possible, in an online setting. The platform also offers the means for the customers to purchase the products easily, through secure payment options. Something a lot of these sites do is the marketing, which involves using a whole set of tools to create a robust online and social media presence for their farm clients. They also handle a lot of the logistics and other administration of sales such as creating invoices and coordinating deliveries. Eva: What are key questions should farmers be asking when pursuing these new sales platforms?  Sarah: The activities involved in selling farm products online are different than brick-and-mortar and therefore the legal considerations are different too. Oregon State University’s Center for Small Farms and Community Food Systems has developed a helpful guide for selling local food during the COVID-19 crisis. It includes a list of online sales platforms and a list of questions to ask when contacting these different companies to determine if they are the right fit. These questions are also helpful in thinking through the legal considerations of these arrangements, which basically entail being clear about what I, the farmer, am agreeing to do for the vendor, and what the vendor is agreeing to do for me. You need to talk about money. One of the single most important issues to cover for sure. You need to get clarity around what it will cost you, the farmer, to use the platform. You’ll want to know what the fee structure is. Is it a one-time set up fee upfront and that’s it or do they take a percentage of every single sale? Is there a discount to you once you reach a certain sales volume maybe? Then you’ll also want to understand how customers pay for your products. Are credit and debit card fees charged to customers or is this something that you, the farmer, have to cover? What are those fees and when and how are they collected? Can customers pay by check or cash on delivery? Can customers pay with EBT or food stamps? Is there a way for you to offer customers discounts, coupons, and promotions? How long does it take for customer payments to deposit into your farm’s bank account? How is sales tax handled on the platform?  You also want to know if this a company you can trust. Do they have a lot of experience? How is their reputation? You might want to ask how long has their online sales platform has been in use and find out how many farmers do they currently serve. You’ll want to find out how easy it will be to get started, as this is, well, really an emergency situation that requires urgent attention – you need to get online and to your customers right now. You’ll want to find out the details around what it will really take to get started, and if there’s a wait because of the current increase in demand for online sales platform services. You also want to get a handle on the issue unique to farms and your farm products. What is the process for providing all the information to the vendor about what farm products you have for sale? How will you update your product list and pricing? Will you be able to set inventory limits so that you don’t oversell products? Is it possible to create pack lists directly from the sales platform? How about labels for your farm products? Does the platform provide any assistance around the logistics of delivering farm products?  Then there are the technology questions. How will the online sales platform integrate with your current website? How does the customer interface work? Is the platform easy to use on a Smartphone? Is it possible to integrate the platform with your existing accounting software? What kind of IT support does the company provide when all of this gets too confusing? Having an online sales platform has an added bonus of capturing sales data in one place, electronically. But, you might want to ask, How is my farm’s sales data used and/or shared? And, if this is something you might do only temporarily, What happens to my farm’s sales data if I stop using your platform?  Many of these questions can be found in demo videos or FAQs on the platform website, but others can only be answered through talking directly to someone from the company, and they usually are readily available to talk to you. Like most software programs and other online tools, they will ordinarily include a contract for you to sign, online. It can feel tedious to read through the whole contract, but like any contract, it’s a good idea to take the time to read it and understand what you are agreeing to. And always ask. If there’s something you don’t understand, do take the time to get an explanation. Even in these times of crisis, where it feels like you have no time to read the fine print. Eva: Many farms are also shifting to the CSA - community supported agriculture model, can you tell us more about that model? Sarah: The shift from selling in brick-and-mortar stores (or open air farmers markets) to selling farm products via online storefronts is all about making it easier for your customers to buy your products. Shifting to a CSA model is another way farms are shifting their sales models to make it easier for their customers in these COVID times. I’m sure most of you listening right now are familiar with the CSA model but for those who may not be, CSA stands for Community Supported Agriculture. The basic framework of the community supported agriculture or CSA model is that customers sign up to become “members” of the farm’s CSA program, and these members pay money upfront, before the farming season even begins, to receive a share of farm products usually on a weekly basis throughout the farming season. Typically the farmers dole out their products into boxes for each of their members, who all receive the same kind and quantity of produce and other farm goods. The customers pick up their CSA box at a designated location, sometimes on the farm, sometimes at a drop point in town, at a designated time each week. Eva: Why do you think CSA is a good fit for farmers and consumers during this time of COVID-19? Sarah: This is a really workable model in ordinary times, and is attractive for both farmer and customer – the farmer gets money upfront during the lean times of winter and early spring, and can adequately plan what to grow based on CSA demand. The customer gets a steady supply of fresh, nutrient-packed local farm products throughout the season. The CSA model provides security for both farmer and customer. In the COVID times, this security is even more welcome. Plus, like the online storefront, the CSA model offers the ability to get farm fresh products without having to go to the store. It’s a win-win for everyone. Eva: What are important legal considerations farmers should pay attention to with CSAs? Sarah: There are some legal considerations with the CSA model that farmers should be aware of as they look to shift to this model. One is: How much risk are the customers taking on in this arrangement? Another great feature of the CSA model for the farmer is that in a typical CSA model, the customer shares the farmer’s risk. What I mean by that is that farming is a risky business. There’s no guarantee that what the farmer plants in the spring is going to make it to bountiful harvest time. Natural disasters happen. Disease sets in. Predators sometimes don’t mind fences. Your customers have paid a pretty penny in the beginning of the year to be able to share in the expected harvest later. But what if there’s no harvest to share in? In the traditional CSA model, the farmer says, “I’m so sorry but I used all your cash, dear member, to buy all the seed and pay my workers to plant the seeds and weed and water and who knew there’d be a tornado that wiped this all out. Thanks for investing in my farm and taking this risk. We’ll try again next year.” In that model, the member is out of luck – no cash, no food. Many people will be willing to enter into an arrangement like that, understanding that farming can be risky, but usually they will get their food in the end. They don’t mind investing in small-scaled, organic agriculture despite the fact that they may lose out in the short-term. However, if this is not communicated clearly to the CSA members, and the tornado happens and the members get no food, you can be certain that you will have some disgruntled members. So, to avoid this misunderstanding and bad result, farmers should be clear about how risk is being shared, and whether refunds will or will not be issued if there’s no farm product to share with members. Farmers can choose to share risk any way they wish – it just needs to be communicated clearly to members. Another consideration is around the legal right to farm product. This issue surfaces when CSA members don’t pick up their CSA box within the designated pick-up window. Say that pickup time is every Thursday in the park between 4-7pm. What happens when a member misses that window and their CSA share is left in the park after dark? Legally speaking, who does it belong to now? The answer is whoever the farmer and member agreed it belongs to. If the farmer never clearly communicates the answer to the member before this happens, this can lead to extreme frustration and disappointment for the customer. The member who realizes at 8pm that night that they didn’t get their box, may be very sad to learn that their box has been donated to the local food bank. Eva: What Farm Commons resources should farmers look to? Sarah: Farm Commons has a great resource for farmers looking to shift to the CSA model. On our website you can find a CSA Member Agreement Workbook. It contains a lot of helpful guidance to create a member agreement as well as sample agreements from simply online forms to more comprehensive contracts appropriate for a brochure or other written form.  Disclaimer: The above communications are delivered for educational purposes only and do not constitute the rendering of legal advice.

In this episode, we explore legal mechanics of online sales platforms and CSA agreements as part of special coverage on COVID-19’s effects on farm businesses.

In this episode, we explain key worker considerations for diversifying sales and social distancing on the farm as part of a special coverage series on COVID-19’s effects on farm businesses.

In this episode, we explain key worker considerations for diversifying sales and social distancing on the farm as part of a special coverage series on COVID-19’s effects on farm businesses.

In this episode, we explore legal mechanics of online sales platforms and CSA agreements as part of special coverage on COVID-19’s effects on farm businesses.

Show Notes: In this episode, Eva, Rachel, and Sarah discuss key legal considerations for farmers diversifying into collective distribution programs, farmstand sales, and product delivery in response to COVID-19’s changes to marketing channels. Let’s say we have a farm that used to sell to restaurants and at farmers markets, and those channels have now closed due to COVID-19 suppression actions. The farmer here needs to figure out how to get their product into customers’ hands. Popular options right now that we’re seeing are opening an on-farm farmstand, co-distribution with other farms through online sales and delivery, and converting to a community supported agriculture (CSA) model. When opening a farmstand, the action step for farmers is to look into local zoning and health safety regulations, paying special attention to any grocery store type rules that might apply (e.g. time and temperature controls for certain products, cooler functionality, etc.). For co-distribution with other farms through online sales and home delivery, the action step is to look into the zoning code for the delivery destination to see if when stepping into commercial distribution and sales and zoning codes are being violated. When converting to a CSA, zoning codes can also restrict where product distribution occurs, e.g. folks could get in trouble for having a drop site at their house. If this is the case, look into distributing in commercial areas or working with drop-site home owners to research their zoning code. For more information on managing these legal risks when diversifying farm enterprises, check out our resources Adding Value to Farm Products: The Legal Issues, Building a Legally Resilient CSA Workbook, and Hosting Safer, More Legally Secure On-Farm Events. ​Disclaimer: The above communications are delivered for educational purposes only and do not constitute the rendering of legal advice.

Show Notes: In this episode, Eva and Rachel discuss important considerations for farmers who want to health screen employees on the farm with temperature checks and what to be wary of regarding unemployment and discrimination. Many farmers are just as concerned with what the COVID-19 pandemic means for food safety, employee equity issues aside. Say you’ve done the best you can to offer sick time but you are still worried about exposure for you, fellow employees, and customers. Say you want to protect your workplace by screening – can you ask about social contacts they’ve had? Can you take their temperature at the door? It’s hard to say. Employers can’t require employees to undergo a medical examination unless necessary for job performance, and taking a temperature is an examination. Normally, a temperature of 98.6 isn’t necessary to perform most jobs. Where is the line? And what will you do when folks are running a temperature? Maybe it’s from COVID-19, but maybe not. Will you send them home? With or without pay? If it’s without, you are risking dismissing them opening you up to potential discrimination claims.   So, can you force an employee to stay home? Can you prohibit them from coming to work? Well, that’s usually called firing someone, so see what we said above! But, can you send them home for the day? Send them home for 14 days? If you are sending someone home without pay, you are likely firing them… We need to take a step back and think about how the law looks at these issues. Farm workers are generally at will employees. If a worker isn’t under a contract, they are at will (assuming you aren’t in Montana). What is at will? It means the employer can fire an individual worker at any time and for any legal reason. “For any legal reason” means unless a reason is illegal, a person can be let go. You can let a person go for any number of reasons: e.g. you don’t like their performance.So, why are we asking this question? What are we afraid of? We are afraid of two things. First, a claim of discrimination. We want to be able to show we didn’t discriminate against someone on the basis of a protected class. Protected classes? It’s a legal term. The state and federal government tell us on what bases we may discriminate and on which we may not. For example, can a farm let a woman go because she becomes pregnant? No, that’s illegal. The second thing is unemployment insurance. Persons let go through no fault of their own are eligible for unemployment. The business is worried that the person will collect unemployment. What’s wrong with that? It causes the employer’s unemployment tax rate to go up. But let’s get back to the issue at hand. You have a worker who isn’t practicing social distancing. You know they went out to a big party last week. Can you let them go?  Is it discriminatory? Maybe. Was it a party for a religious holiday? Was it a baby shower? A fight is possible. Can they collect unemployment insurance? Well… Most farm workers are not eligible for unemployment benefits anyways but let’s set that aside… They are eligible if they were dismissed through no fault of their own. Going to a party has little to do with work so likely this threshold is met. If you asked them not to? Well, we’re getting dicey here. We don’t have thorough policy for a pandemic. We don’t normally allow businesses to tell employees what they can and can’t do in their personal lives. So long as it doesn’t create a safety issue on the job. You’re taking a risk if you do it. You’re also taking a risk if you don’t. Bottom line is having people go home without pay because of their medical condition or social practices outside of work is risky. You minimize that risk if you give them their pay and they keep their job. You can also consider modifying the job to eliminate risk, e.g. asking an unwell employee to work on inventory and packing orders rather than selling at market or delivering orders. You can also lay people off. Just remember what we’re afraid of – discrimination and unemployment insurance. For more information on farm unemployment, read our Hiring a Farm Employee: Tax and Paperwork Checklist for Illinois, Iowa, Michigan, Minnesota, New Hampshire, Ohio, Pennsylvania, Vermont, Wisconsin, and other states. ​Disclaimer: The above communications are delivered for educational purposes only and do not constitute the rendering of legal advice.

Show Notes: In this episode, Eva and Rachel discuss key legal considerations of sick leave policies for farms who may have sick employees and/or employees with sick family members/kids at home because school is cancelled. A few states and localities have obligations to provide paid sick leave to employees. In that case, the law will state to whom it must be provided (full time, part time, worked for at least 90 days, etc), and for what reasons (only personal illness, illness of a family member, doctor visits, etc). The vast majority of farms are under no state or local obligation to provide sick leave. Therefore, the discretion of the employer plays a huge role with the ability to define to whom, when, for what the sick leave policy applies. Employers also play a big role even when there is a state/local law. The state/local law sets a baseline, but many employers deviate from it or add additional rules. For unpaid sick leave, there is a federal law requiring some businesses to offer employees unpaid sick leave: the Family Medical Leave Act (FMLA). Some states also have their own versions of FMLA. It’s really a prohibition on firing someone from a company because they or their family gets sick. It guarantees a job, not their job. It guarantees access to health insurance, but not with the employer's usual contribution. It's good for 12 weeks, but after that an employee can be fire. FMLA doesn't often apply to farms, as it applies if there's 50 or more employees and for employees who have been working for more than one year. There are also state and federal laws that require some accommodation, including time off to deal with sickness. Folks may have heard of the Americans with Disabilities Act (ADA), which prohibits employees from being fired because they have a disability which can include having an illness. If an employee is in the hospital with COVID-19, you can bet they are protected under the ADA. But still, this isn’t like having sick leave.  For farms, unpaid sick leave is also at the discretion of the employer for the most part. The bottom line is that farm employers have a lot of flexibility. If they did or want to offer paid sick leave, they can, and they can set the parameters. If they don’t want to offer paid sick leave, they can offer unpaid sick leave, also with a lot of discretion to when/how. It's worth noting that if employees don’t have access to paid leave, they are incentivized to come to work sick, which can be a bad situation for folks dealing with food and customers. Many farm and food related workers aren’t making enough money to go without pay, which also incentivizes workers to come when sick. So, this becomes an issue of equity and fairness, as much as policy. The most important thing to be wary of with your sick leave policy is don’t let discretion cause you to be inconsistent in how you apply your policies. Create a policy and apply it in the same way to every worker. For those considering revising or implementing a new sick leave policy, read our Sample Farm Employee Handbook. The resource does double duty in that it provides sample language on the left column and a checklist of considerations on the right column. Farmers will find it easy to adapt to your own operation's needs. ​Disclaimer: The above communications are delivered for educational purposes only and do not constitute the rendering of legal advice. 

In this episode, we explain health screening and unemployment on the farm in response COVID-19 as part of special coverage on the outbreak's effects on farm businesses.

In this episode, we explain legal considerations for farmstands, collective distribution, and farm deliveries as part of special coverage on COVID-19’s effects on farm businesses.

In this episode, we explain legal considerations for farmstands, collective distribution, and farm deliveries as part of special coverage on COVID-19’s effects on farm businesses.

In this episode, we explain health screening and unemployment on the farm in response COVID-19 as part of special coverage on the outbreak's effects on farm businesses.

In this podcast episode, our executive Director, Rachel Armstrong, shares updates on what Farm Commons is working on and what to expect from us in 2020. We also discuss our new Farmer Solutions Sessions program, upcoming workshops, the new In-Kind Wage guide, and hot topic legal issues, including planning for employees and considerations for drafting a lease. Tune in here or find us on iTunes! 

In this podcast episode, our executive Director, Rachel Armstrong, shares updates on what Farm Commons is working on and what to expect from us in 2020.