Author: Jennifer Friedel

Lifelong lessons in work ethic are often learned as a kid bailing hay on hot summer days. It’s summer, the kids are out of school, and many are looking for summer jobs. It’s a good time to take inventory of the measures agricultural operators need to take to keep minors safe and stay in compliance with state and federal child labor laws. In addition to the federal child labor laws discussed herein, there are likely additional state laws that should be fully explored and familiarized prior to employing a minor in an agricultural operation.  

When hiring youth to assist with farm chores, there are various factors that can affect what duties a minor may or may not legally perform. Prudent operators would certainly never intentionally assign dangerous farm tasks to minors. However, what the law considers “hazardous” may vary from even the most reasonable operators’ idea of dangerous. For instance, the law very specifically addresses whether a minor may assist with, or even ride on a tractor. Other common tasks such as feeding bulls, checking on calving cows, and spraying weeds or spreading fertilizer may or may not be permissible, depending on a number of factors.

The duties that a minor may perform on an agricultural operation varies depending upon their age. Under the Fair Labor Standards Act (“FLSA”), children under the age of 12 must have parental consent to work on a small farm (as defined by FLSA) and are exempt from federal minimum wage provisions. Children the age of 12 or 13 may work with parental consent or where the child’s guardian is also employed. If 14 years of age, a minor may work without parental consent but only in non-hazardous agricultural jobs. Once a minor reaches the age of 16, they may perform any farm job including those deemed hazardous by the Secretary of Labor. Minors that are 16 or older may also work at any time, including during school hours, while youth under age 16 may only work outside of regular public school hours, even if home schooled, unless employed by their parents or guardian. There are also limitations on the number of hours minors may work, depending upon their age and whether school is in session in the local public school district.

The Secretary of Labor has identified 11 categories of duties deemed “hazardous” that minors under the age of 16 may not perform. Those range from operating a tractor with over 20 PTO horsepower to entering a pen or yard with male breeding stock or with pigs or cows that have recently given birth, to handling agricultural chemicals which include the word “danger” or “poison” with skull and crossbones or “warning” on the label. A full list of these hazardous activities as well as other federal laws regarding the employment of minors in agriculture, can be found in the U.S. Department of Labor’s (“DOL”) Child Labor Bulletin 102. Exemptions to these hazardous activity prohibitions may apply to minors employed by their parents or enrolled in certain formal training or vocational programs. 

While federal law does not require a work permit for minors employed in agriculture, some states may require one. The DOL maintains a comparison of federal and state requirements of child labor laws that is searchable by state here. However, even where not required, it may be prudent to request a state issued age certification in order to protect employers from unintentional violations of the federal age requirements. 

There may be no better place to learn the value of hard work than a farm or ranch. When providing opportunities to minors, be prudent, ensure you’re in compliance, and keep our youth safe. Don’t forget to keep the lemonade flowing. 

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Friedel, Jen. “What to Know About Employing Minors in the Summer and Beyond.” Southern Ag Today 3(25.5). June 23, 2023. Permalink

Photo by Stephen Andrews

For well more than a decade, every year has brought a new wave of WOTUS uncertainty. At all but the stroke of midnight to close out 2022, the EPA announced the final revised WOTUS rule which is set to take effect this spring, 60 days after publication in the Federal Register. If headlines about WOTUS over the past decade have confused you, fear not. You’re not alone. The two steps forward – one step back progression of the hunt for WOTUS clarity follows a switchback trail of previous and current administrations. Despite this brand-new rule, the uncertainly might not be over just yet.

Since the inception of the modern-day Clean Water Act (“CWA”), enforcement agencies and citizens alike have been seeking to define “water of the United States” in an effort to determine where federal jurisdiction of a body of water begins and ends under the CWA. Sparing the dirty details, there have been four WOTUS eras worthy of mention here.

First, commonly referred to as the “Pre-2015 Rule,” the WOTUS rule in place since the 1980s was constructed through regulation and the implementation of key agency memoranda shaped by seminal judicial opinions.^[1] The second era of mention began in 2015, when the EPA and Army Corps of Engineers (the “Corps”) issued a new rule, also known as the “Clean Water Rule” which was broader in application and was simultaneously praised as a long-overdue revision of the WOTUS rule, and also criticized as a gross overreach of authority. Due in part to legal challenges, the EPA and the Corps delayed implementation of the 2015 Clean Water Rule until 2020. Meanwhile, in 2019, the Trump administration repealed the 2015 Clean Water Rule and in 2020, proposed yet another new WOTUS rule, the “Navigable Waters Protection Rule,” or “NWPR,” the third mentionable WOTUS era.

The NWPR reversed course from the 2015 Rule, narrowing the scope of WOTUS and federal jurisdiction under the CWA by setting forth four categories of waters falling under CWA jurisdiction which included territorial seas, traditionally navigable waters and interstate waters; tributaries and lakes, ponds, impoundments directly or indirectly contributing surface water to traditionally navigable waters; and wetlands adjacent to these. Once again, litigation quickly took center stage. The NWPR was short-lived as President Biden’s administration sought to provide a workable, more stable definition of WOTUS and nix the never-ending uncertainty that has plagued the CWA since its inception.

The fourth and current era officially began on December 30, 2022, when the EPA and the Corps finalized the latest WOTUS rule. Under the new final rule, using the Pre-2015 Rule as a foundation, tributaries and impoundments as well as wetlands adjacent to traditionally navigable water that are either “relatively permanent” or have a “significant nexus” to traditionally navigable waters will fall under the CWA’s jurisdiction. The new rule sets forth that its “relatively permanent standard” refers to “relatively permanent, standing or continuously flowing waters” connected to traditionally navigable waters or waters with a “continuous surface connection to such relatively permanent waters.” The rule also defines a “significant nexus” as where waters “either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of traditional navigable waters, the territorial seas, or interstate waters.” Finally, the new rule states that “adjacent wetlands” are those which have a “continuous surface connection to a relatively permanent, standing or continuously flowing water” connected to traditionally navigable waters “or must either alone or in combination with similarly situated waters significantly affect the chemical, physical, or biological integrity” of traditionally navigable waters, territorial seas or interstate waters.^[2]WOTUS clarity, in large part, hinges on these defined terms and the ability of these terms to be readily identified and applied. 

In its release of the new rule, the EPA also published a “Fact Sheet for the Agricultural Community” which sets forth the agricultural exemptions from CWA jurisdiction and specific exclusions in the final rule. Among the exemptions are “normal farming, silviculture, and ranching activities” with examples listed; construction of farm or stock ponds or irrigation ditches and maintenance of drainage ditches; and construction or maintenance of farm roads in accordance with best management practices. Prior converted cropland also remains excluded from the final rule so long as it is available for agricultural commodity production, such as crop production, haying, grazing, agroforestry, or idling land for conservation uses.^[3]

Currently, the nation awaits the Supreme Court’s decision in Sackett v. EPA, wherein the Supreme Court is asked to determine the proper test for determining which wetlands constitute WOTUS. The Supreme Court is expected to announce its decision early this spring. The anticipated ruling has the potential to affect the latest WOTUS final rule and send the EPA and Corps back to the writing room or alternatively, to affirm the appropriateness of the new rule as written. For today, a new WOTUS rule reigns. Time will tell whether the hunt for WOTUS clarity is over or whether litigation, both new and old, will keep WOTUS in the trenches

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^[1] See SWANCC v. U.S. Army Corps of Engineers, 531 US 159 (2001), and Rapanos v. U.S., 547 US 715 (2006).

^[2] EPA, Pre-Publication Final Rule Notice: Revised Definition of ‘Waters of the United States.’” 6560-50-P (December 2022) pp. 9-10. 

^[3] EPA, “Final Rule: Revised Definition of ‘Waters of the United States’ Fact Sheet for the Agricultural Community December 2022.”

Author: Jennifer Shaver Friedel, J.D.

Director, Land Use-Value Assessment Program

Professor of Practice

Virginia Tech

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Friedel, Jennifer. “The Navigability of WOTUS.” Southern Ag Today 3(2.5). January 13, 2023. Permalink

Photo by Max Parada: https://www.pexels.com/photo/stones-on-the-river-13932592/

In 2019, a series of class-action lawsuits were filed against JBS, National Beef Packing, Tyson, and Cargill, commonly known as “The Big Four” packers on behalf of direct purchasers, producers, and indirect purchasers as separate classes seeking class certification. These suits allege that The Big Four violated the Sherman Act, the main federal law protecting free market competition and prohibiting restraint on interstate commerce. In addition, these suits alleged violations of 25 different states’ antitrust laws and 21 states’ consumer protection laws totaling 48 claims in a single suit. The suits alleged that The Big Four have a tight oligarchy for both slaughter capacity and processed beef sales and that The Big Four conspired to artificially deflate the beef supply and drive up the cost of boxed beef. The suits also name a market forecasting service, Agri Stats, as a defendant. In 2021, JBS settled with the direct purchaser class only, for $52.5M, agreeing to provide “extensive cooperation” to plaintiffs in proving their claims against the other defendants. 

In June and July of 2022, Sysco Corporation, along with other grocers and food distributors, filed similar lawsuits against The Big Four, alleging violations of the Sherman Act and conspiracy to artificially deflate cattle market prices while simultaneously causing boxed beef prices to soar. Sysco’s complaints quote a former employee witness who purported to have first-hand knowledge of the alleged conspiracies. 

A search of public access court records shows 11 associated cases to Sysco’s suit against The Big Four. Two of the cases have already consolidated multiple suits with similar claims. As the U.S. Department of Justice continues its investigation of these allegations quietly, the litigation is heating up. The Defendants publicly and vigorously deny the allegations, and all testified before Congress in April of 2022, unequivocally denying any conspiracy as alleged between them. There’s a lot of smoke around this issue, and time will tell if it’s a smoke screen or an inferno. For now, the larger agriculture community is following closely as the poultry and swine industries wait in the wings. 

Friedel, Jennifer. “Sysco Becomes Latest Beef Packer Antitrust Claimant“. Southern Ag Today 2(31.5). July 29, 2022. Permalink

As the New Year begins, tax documents are spread across kitchen tables, pulled from basement boxes, amassed in spreadsheets, and stuffed in mailboxes to CPAs across America. As the saying goes, there are two certainties in life: death and taxes. One is dreaded and the other is often neglected. As a global pandemic extends another season and reminders of our health and longevity flash across headlines, this is your friendly reminder that while you’re digging up those tax documents, revisit your estate plan. An uncomfortable truth is that if you neglect to do your estate planning, the state will do it for you. A comprehensive estate plan includes succession planning, a very different beast from estate planning. A succession plan sets forth how your enterprise (i.e. farm) will continue operating after you are no longer running the business. However, doing one without the other is like rowing a boat without an oar. 

To get the most out of your estate planning effort, do these things every year: 

1. Review your executor(s), beneficiaries, trustee(s), guardian(s), personal representative(s), and other appointed roles under your estate planning documents; 
2. Review your assets, accounts, life insurance policies, and charitable giving wishes; 
3. Discuss with your CPA the benefits and limitations on gifting assets during your lifetime; 
4. Ensure that your estate plan and succession plan compliment, and do not conflict, with each other; 
5. Ensure that your durable power of attorney and living will are consistent with your wishes. 

Some of the most voluminous estate plans may fail to adequately provide for a testator’s desires if they aren’t routinely revisited and updated. Reconsider a plan that leaves your estate planning to others, such as your children or other heirs. Your assets are your responsibility. Leaving difficult decisions to your heirs can leave them vulnerable to discourse and overwhelmed, particularly when they are aggrieved. A relevant, thorough, and thoughtful estate plan may be the best gift you could ever leave behind.

Friedel, Jennifer. “Revisit Your Estate Plan“. Southern Ag Today 2(3.5). January 14, 2022. Permalink