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Searching for Articles published in November 2017.
Found 6 Results.

Don’t Ask – Don’t Tell in Job Interview?

Posted on November 16, 2017, Authored by Dean R. Dietrich, Filed under Employment

A number of states have passed legislation prohibiting an employer from asking a candidate for a new job about his or her salary history in other employment settings.  While such a law has not passed in the State of Wisconsin, there is clearly a ground swell of support for employers to stop asking salary history questions during a new employee interview.  The claim is that salary history information can lead to discrimination on the basis of sex by impacting the amount of salary that would be offered to a candidate and the potential disparate treatment of female applicants based upon a history of unequal salary levels.  There is also growing opposition to asking questions about arrest or conviction records of an applicant and delaying any consideration of criminal background records until making the final decision on hiring an applicant.  Both of these considerations limit the ability of a company to get background information on a candidate to ensure the best candidate for the position is selected. Employers need to consider the balancing test between gathering as much information as possible about a candidate compared to perpetuating pay differentials based on sex or preventing a reformed candidate from being considered for gainful employment after making judgment mistakes in the past.  Many states have said salary history should not be a part of the hiring process and employers are prohibited from asking about salary history of a candidate in the employment application materials or during the interview process.  It may be beneficial to ask the candidate what his/her salary expectations are for the position but avoid background information regarding current or past salary history in other employment positions held by the candidate. Asking about prior convictions is also subject to recent legislation in various cities throughout the country.  “Ban the Box” legislation has been adopted in various locations which prohibits the employer from asking if the candidate has been subject to previous convictions even if the question tries to limit the focus on prior convictions that substantially relate to the job being filled by the company.  The State of Wisconsin no longer asks that question on its employment application but such a “ban” has not been extended to other employers (either public or private) in the State.  Other employers may want to follow the lead of state government and open the door for convicted felons to be given the same consideration for a position as any other candidate.  Again, there is a balancing act between the desire of the company to obtain as much information as possible about potential employees compared to the desire to give convicted felons an opportunity to better themselves and become a successful employee after having “served their time” for the violation.  Employers need to decide how best to address the challenge of filling a position with limited candidates and the willingness to be flexible when considering the background of a particular candidate. The hiring process can be very challenging for an employer.  Today’s employee market is very tight and often an employer has to lower their expectations in order to find someone to fill a vacant position.  Limiting the information an employer receives during the application and interview process will make decisions more difficult but will also support community and societal goals.

Using the Right Entity is Key to Successful Agribusiness

Posted on November 15, 2017, Authored by Amy E. Ebeling, Filed under Ag-Visor

Are you using the right business entity for your farm or other agribusiness?  I have worked with too many clients who have paid additional tax dollars or have been unable to achieve their succession planning goals due to their entity structure.  Learn from their mistakes.  Selecting and using the right entity is essential to a successful, profitable business.  An entity structure impacts legal liability, taxation, management or control, succession planning or transfer options, and a number of other issues.  Therefore, it is prudent that careful consideration be given to each of these issues before selecting an entity structure.  These issues should also be regularly re-evaluated to ensure the entity selection remains appropriate for ongoing business operations.  What are the entity structure options? In Wisconsin there are several different legal entity structures generally available to agribusinesses.  Only two of those structures, however, are generally recommended for use by agribusinesses – the business corporation and the limited liability company.  Both of these entity structures offer the most liability protection, receive favorable tax treatment, provide flexibility with respect to management, and furnish a variety of business planning or transfer options. How can an entity structure protect me from liability? Protection from legal liability is one of the greatest advantages of using a legal entity, but not all entities provide liability protection.  Certain entity structures can protect your personal assets from the creditors of your business operations.  For example, if an employee or independent contractor is injured on your farm, a proper legal entity could protect your personal assets from an injury lawsuit against your farm.  Again, business corporations and limited liability companies are best suited to provide legal liability protection.  Business owners should steer clear of sole proprietorships and certain partnerships as they do not provide any liability protection. The key to liability protection for business corporations and limited liability companies is adherence to the entity structure.  To adhere to the entity structure, the owners must engage in activities that show the business operation is separate from the owners, such as (1) keeping separate bank accounts so personal assets/fund are not co-mingled with business assets/funds; (2) making business decisions in accordance with the procedures set forth in the entity documents; and (3) keeping and maintaining records concerning those decisions and other business activities.  If the entity structure is not respected, the business will simply be treated as an “alter ego” of the owner and the liability protection will cease. Which entities provide favorable tax treatment? The most favorable tax treatment depends on the activities of the business and the desires/wishes of the owners.  Some entities are eligible for pass-through taxation in which only the owners pay the tax on the business’s income.  Other entities are subject to double taxation (i.e., both the entity and the owner pay tax on the income), but those entities may have more favorable tax rates, tax deductions, or fringe benefits.  For example, owners of pass-through entities generally pay self-employment tax on all business income, while double taxation entities pay lower employment taxes on salaries paid to owner‑employees.  Again, flexibility is key and both business corporations and limited liability companies may be taxed as either pass-through or double taxation entities, and which tax status is best depends on your particular circumstances. How can an entity help control management decisions? Management of a business is one of the largest factors in selecting an entity structure because the entity’s structure determines who has power over decisions, the amount of decision-making power of each owner, and what decisions, if any, can be made by non-owners.  For example, some owners may only own non-voting interests and have no ability to participate in management of the business.  Ownership structures with limited control can aid in the education and development of future owners of an agribusiness without putting the business at risk.  Careful consideration should be given to the management structure of an entity to ensure that the business is protected from poor decision-making. Succession planning or transfer options. Planning for the transition of an agribusiness is a complicated process that requires weighing legal, economic, and family dynamics factors.  Unfortunately, the transition process can be further complicated by the entity structure currently utilized by the business.  Certain entities provide more flexibility when transferring ownership from one generation to the next.  Selection and continued use of an entity structure should be carefully reviewed as current owners age and consider succession planning options and/or transfers to the next generation. In the end, choosing an entity structure is a thoughtful process that requires weighing the pros and cons.  Do not pay additional tax dollars or be forced to liquidate your operation because of your entity selection.  Choose carefully and seek the assistance of your trusted advisors when necessary.   Reprinted with permission by Badger Common'Tater

Extended Leave is an Accommodation – Maybe Not

Posted on November 20, 2017, Authored by Dean R. Dietrich, Filed under Employment

As the after effect of the recent Seventh Circuit Court of Appeals decision about extended leave as an accommodation continues to develop, a serious question is developing of whether an employer is obligated to give an extended leave to a person with a disability who has exhausted their twelve weeks of federal medical leave.  The Seventh Circuit Court of Appeals decision said that the Americans with Disabilities Act is not an automatic extended leave law and seemed to imply there was no duty to provide extended leave to an employee who suffers from a medical condition that is preventing the employee from returning to work after being off for twelve weeks to heal.  Court cases have clearly said an employer cannot have an automatic termination policy after an employee exhausts medical leave provided by the federal law, but it is certainly unclear whether an employer is obligated to grant continued unpaid leave to an employee who suffers from a medical condition that prevents the employee from returning to work.  There is growing support for the argument that a leave extending beyond the twelve weeks provided by FMLA is not an automatic reasonable accommodation to be given to the disabled employee. The limits of what constitutes a reasonable accommodation of granting additional time off is certainly unclear in light of this recent decision and the many statements being made by the human resource community.  I think it is safe to say that an employer would be obligated to grant an additional extension of the leave without pay for a very limited time if there is a strong prognosis from treating health professionals indicating the employee will be able to return to productive work with the company.  Where the line is to be drawn as to what constitutes a reasonable extended leave is certainly unclear and is subject to detailed consideration of every individual employee situation. Until we get clearer guidance from the courts, I believe that employers need to consider some type of extended leave beyond the twelve weeks of federal mandated family leave in those situations where an employee is going to be able to return to work in the near future.  The real question will become what does the near future mean.

When Being a Good Neighbor Can Expose You to Liability

Posted on November 2, 2017, Authored by Joseph M. Mella, Benjamin E. Streckert, Filed under Ag-Visor

In Wisconsin, we have a strong tradition of landowners opening up their land to snowmobile clubs, hunters, trappers, cross-country skiers, and other members of the public. While giving visitors the chance to enjoy the outdoors is a great thing owners can do for their neighbors, it does come with risk. What if a snowmobiler crashes into a downed tree blocking the trail on your land?  Are you, as the owner, liable? Wisconsin law provides a safe zone for landowners in situations like this one, but property owners must still be mindful of the law so as to avoid losing the statutory protections. Landowner Duties In general, landowners owe certain duties to those they allow on their property, including for recreational purposes. These duties can include obligations to inspect the property to make sure that it is safe for the types of activities in which visitors hope to engage, to fix any unsafe conditions, and to warn visitors of any dangerous conditions that cannot be remedied. Failing to meet this fairly high bar could give a visitor who is injured on the property grounds to sue the owner for damages. The Wisconsin legislature recognized that, in many situations, repaying landowners who generously volunteer their properties for public use with this sort of potential for liability was not good public policy. With this in mind, it enacted what is commonly known as the Wisconsin Recreational Immunity Statute (“WRIS”). WRIS Protections The WRIS generally provides that private property owners will not be held liable for death or injury caused by a person engaging in a recreational activity on their property. It also says that, with regard to any person who enters an owner’s property to engage in a recreational activity, an owner does not have any of the usual duties to: keep the property safe for recreational activities; inspect the property for potential hazards; or give warning of an unsafe condition, use, or activity on the property. The statute defines “recreational activity” as “any outdoor activity undertaken for the purpose of exercise, relaxation or pleasure,” including hunting, fishing, trapping, camping, four wheeling, snowmobiling, cross-country skiing, hiking, and “any other outdoor sport, game or educational activity.” With such broad protections, the WRIS gives landowners peace of mind that allowing members of the public onto their land will not expose them to liability for injuries people may suffer or require them to spend time making sure the property is safe for the public. However, the WRIS protections can be lost if owners are not careful. Exceptions The WRIS’s exemption from liability for death or injuries occurring on someone’s property is lost if any one of the following exceptions applies: During the year in which the injury occurs, the property owner receives a total of $2,000 or more of money, goods, or services in payment for use of his or her land.  Therefore, if a landowner receives $2,000 from the local snowmobiling club to run trails through her land, she may be held liable for injuries that occur on her land. The WRIS provides that some “payments” are not included in the $2,000 limit. For example, a gift of wild game or other products resulting from recreational activity (berries, firewood, etc.) are permissible and do not count toward the limit. Similarly, a payment of $5 or less per person per day for permission to gather any “product of nature,” and any donation made for the management and conservation of the land’s resources are excluded as well. The death or injury is caused by a property owner’s malicious act or malicious failure to warn visitors about an unsafe condition. An act or failure to warn is malicious if it “results from hatred, ill will, or a desire for revenge or is inflicted under circumstances where insult or injury is intended.” Merely not knowing about a dangerous condition or acting recklessly is not enough to lose WRIS protections. The death or injury occurs to a social guest who has been specifically invited by the property owner and the accident occurs:  (1) on platted land; (2) on residential property; or (3) within 300 feet of a building on property that is classified as commercial or manufacturing. The WRIS protections are primarily aimed at large tracts of vacant or agricultural land. Therefore, when neighboring hunters or the local snowmobile club come knocking at your door this fall, the WRIS should give you some peace of mind regarding potential liability; but, at the same time, you need to be mindful of its exceptions, especially when it comes to accepting payment. If you have questions regarding the extent of potential liability, it never hurts to reach out to an attorney.   © 2017 Agri-View.  Madison, WI.  Reprinted with permission.

Animal Waste Emissions from Large Concentrated Animal Feeding Operations: EPA, under the guns of the U.S. Court of Appeals for the District of Columbia and the EPA Office of Inspector General, Issues Interim Guidance to Farmers

Posted on November 14, 2017, Authored by ,

Introduction Let me be Captain Obvious here. When the title is that long, the topic, including its context and history, is convoluted. Let’s start at the end, work our way toward the beginning, and come full circle. On October 26, 2017, the U.S. Environmental Protection Agency (EPA) issued a press release announcing an interim guidance for reporting air emissions of hazardous substances in excess of reportable quantities from animal waste at farm operations. This interim guidance is titled “CERCLA and EPCRA Reporting Requirements for Air Releases of Hazardous Substances from Animal Waste at Farms.” See https://www.epa.gov/epcra/cercla-and-epcra-reporting-requirements-air-releases-hazardous-substances-animal-waste-farms. It alerts farmers of the November 15, 2017, deadline for reporting air emissions and includes links to Frequent Questions and resources for calculating emissions, including ammonia and hydrogen sulfide from, among others, large dairy farms. The purpose of the interim guidance is to assist farms in complying with requirements to report releases of hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Emergency Planning and Community Right-to-Know Act (EPCRA). CERCLA (also referred to as Superfund) and EPCRA are federal environmental statutes that require certain notifications of releases of “hazardous substances” and “extremely hazardous substances”, respectively, above a specified “reportable quantity” (RQ) within any 24-hour period. Both statutes establish 100 pounds as the RQ for ammonia and hydrogen sulfide. The Frequent Questions portion of the interim guidance points out: * reporting must be made to the National Response Center (NRC) at 1.800.424.8802, staffed by the U.S. Coast Guard, which serves as the point of contact for reporting environmental releases to federal agencies; * the reportable release should be reported as an “initial continuous release notification”; * a written “continuous release report” should be submitted to the EPA Regional Office (for Wisconsin, Michigan, Illinois, Indiana, and Ohio) (EPA Region 5, 77 West Jackson Boulevard, Chicago, IL 60604-3507); * a follow up written report should be submitted one year later to the EPA Regional Office; * the reports should be made for ammonia (NH3) and hydrogen sulfide (H2S); * notification should not be made to the State Emergency Planning Commission (SERC) or the Local Emergency Planning Committee (LEPC) under EPCRA based on a legal interpretation EPA is asserting that air emissions from animal waste constitute “routine agricultural operations” that are not subject to the reporting requirement under EPCRA; * normal application of fertilizers and pesticides should also not be reported under EPCRA because they are clearly exempt, except for spills or accidents that release hazardous substances in excess of applicable RQs; * farms that are participating in EPA’s 2005 Animal Waste Feedings Operations Air Compliance Agreement do not need to report releases at this time (but they will need to do so by a later date to be established); * an extension of the November 15, 2017, reporting date cannot be requested; * releases can be estimated by completing the form titled “Dairy Operations – Continuous Release Report – Emergency Planning and Community Right-to-Know Act (EPCRA) (Revisions dated January 13, 2009), which is linked to the interim guidance; * circumstances could warrant additional continuous release reporting for: ** “statistically significant increase” (SSI) notification for a change to previously reported release notification, such as an increased number of animals, or ** a significant change or disruption of waste handling systems or procedures; * See “Reporting Requirements for Continuous Releases of Hazardous Substances, A Guide for Facilities on Compliance”. Statutory and Regulatory Context A long history underlies the reporting of air emissions of hazardous substances from animal waste. The statutory framework lies at the intersection of the Clean Water Act (CWA), the Clean Air Act (CAA), CERCLA, and EPCRA. The CWA, enacted in 1972, defined a “point source” as, among others, a “confined animal feeding operation.” EPA regulations that implement the CWA define an “animal feeding operation” (AFO) as a lot or facility where animals have been, or will be, stabled or confined and fed or maintained for a total of 45 days or more in any 12-month period and where crops, vegetation, forage growth, or post-harvest residues are not sustained in the normal growing season over any portion of the lot or facility. AFOs may constitute CAFOs (concentrated animal feeding operations) based on herd size as “Large CAFO”, “Medium CAFO”, or by designation as “Small CAFOs.” See “NPDES Permit Writer’s Manual for CAFOs, Chapter 2 – AFOs and CAFOs.”  https://www.epa.gov/npdes/npdes-permit-writers-manual-0 The CAA prohibits releases of hazardous substances to the atmosphere above certain thresholds in the absence of, and within the terms of, air emissions permits issued by the EPA or its state-delegated authority. CERCLA requires notification to the federal government (through the NRC) of releases of such substances in excess of RQs during any 24-hour period, while EPCRA requires that notification for extremely hazardous substances to state and local agencies, the SERC and LEPC, respectively. As noted above, ammonia and hydrogen sulfide are such substances under both statutes, and they have the same RQ threshold: 100 pounds. One Group’s Over-regulation is Another Group’s Under-regulation Congress provided for citizen’s suits under the CWA, the CAA, and EPCRA. The idea is that government might not have the time or resources to fully enforce the law, and in the absence of governmental enforcement, individuals and advocacy groups may serve as “private attorneys general.” Successful actions may result in the award of their attorney’s fees and costs. Citizen’s suits have been brought against farmers for air emissions from animal waste, including some in Wisconsin, seeking farms to be permitted under the CAA and for monetary penalties for failure to notify of emissions in excess of RQs. Citizen’s suits may be precluded, however, where the EPA or its state-delegated agency, enforce those laws, which includes entering into settlement agreements that shield the participants from third party lawsuits. A hallmark of citizen’s suits of that nature are generous emissions estimates as calculated by the expert witnesses hired by the advocacy groups. The National Academy of Sciences (NAS) concluded in 2003 that accurate AFO emissions estimates were needed to determine health and environmental impact and to assess control measures. See “Air Emissions from Animal Feeding Operations: Current Knowledge, Future Needs, National Research Council (2003). In 2005 the EPA entered into a settlement agreement with representatives from the egg layers, broiler chickens, swine, and dairy cattle sectors. This 2005 Air Compliance Agreement allowed individual farmers from those sectors to participate by paying a fee and agreeing to allow their farms to be used for air emissions studies to develop science-based methods for estimating emissions that could be used at individual farms. In return the participating farmers would receive protection from citizen’s suits during the study period. Over $15 million was spent on the National Air Emissions Monitoring Study (NAEMS) conducted by a consortium of land grant universities with strong agricultural programs, such as Purdue, Texas A&M, North Carolina State, and the University of California at Davis. A goal of the study would lead to the establishment of emissions estimation methods (EEMs) for the various sectors taking into account differences in climate and ventilation methods. So, for example, a dairy farm in Wisconsin would be able to use a science-based method to calculate emissions of ammonia, hydrogen sulfide, volatile organic compounds, total suspended particulates, and large and small particulate matter (PM10 and PM2.5) from its operation. The dairy farmer would then have a scientific basis on which to determine whether an air emissions permit is required under the CAA and whether notification should be made under CERCLA and EPCRA. Who Needs Science, Anyway? The land grant universities did their job, albeit slowly. It was up to the EPA, however, to develop the EEMs. The agency’s results can be described charitably as desultory. Thirty six EEMs were to have been developed. EPA developed eight draft EEMs, which it submitted to EPA’s Science Advisory Board (SAB) for review. The SAB expressed concerns about the validity of the drafts.  The remaining 28 EEMs have remained undeveloped. As for dairy, EPA developed a draft EEM for ammonia from dairy lagoons/basins, although the data combined dairy waste emissions with swine waste emissions. Planned EEMs for dairy for hydrogen sulfide and volatile organic compounds remain undeveloped. The whole story of the delays, failures, and erosion of institutional knowledge and expertise are told by the EPA’s Office of Inspector General. See “Eleven Years After Agreement, EPA Has Not Developed Reliable Emission Estimation Methods to Determine Whether Animal Feeding Operations Comply With Clean Air Act and Other Statutes”, Report No. 17-P-0396 (September 19, 2017). https://www.epa.gov/office-inspector-general/report-eleven-years-after-agreement-epa-has-not-developed-reliable-emission. Exemption. What Exemption? On the theory that Congress never intended animal waste emissions to be governed by the statutes it passed, the EPA proposed in December 2007 a rule that would exempt AFOs from CERCLA and EPCRA reporting obligations. See “CERCLA/EPCRA Administrative Reporting Exemption for Air Releases of Hazardous Substances from Animal Waste,” 72 Federal Register 73,700 (proposed December 28, 2007) (Proposed Rule). The EPA finalized the Proposed Rule on December 18, 2008. 73 Federal Register at 76,948 (Final Rule). Both environmental groups and industry groups challenged various aspects of the Final Rule. On April 11, 2017, United States Court of Appeals for the District of Columbia issued its decision holding that Congress did not authorize the EPA to create a reporting exemption for AFOs. The exemption is void. By creating that exemption in the Final Rule, EPA exceeded its authority. Waterkeeper Alliance, et al. v. EPA, No. 09-1017 consolidated with No. 09-1104 (April 11, 2017).  (It should go without saying that Congress could create the exemption, but then that would require Congress to act. Conclusion We’ve now come full circle, back to the EPA’s interim guidance issued on October 26, 2017, in advance of the November 15, 2017, reporting date. For those AFOs that participated in the 2005 Air Compliance Agreement, another deadline will be set for some time most likely in 2018. Those that did not participate, however, should pay close attention to EPA’s press release, interim guidance, and continuous monitoring reporting forms which incorporate a simple (simplistic?) mathematical formula for estimating ammonia and hydrogen sulfide emissions. AFOs that come close to 100 pounds of ammonia or hydrogen sulfide should follow the notification procedure under CERCLA. Will relying upon the EPA’s advice to skip notifying the SERC and LEPC effectively insulate AFOs from citizen’s suits under EPCRA based on EPA’s interpretation that animal waste air emissions fall under “routine agricultural practices” which are not encompassed by that statute? Will Congress step in and create the exemption that EPA asserts Congress impliedly intended when CERCLA was enacted back in 1980 and EPCRA in 1986? Moreover, the EPA has promised to release before the end of 2017 a best management practices manual for the reduction of animal waste emissions on which it has collaborated with the USDA. Owners and operators of AFOs should follow this issue closely. Post Script  As this legal update is being readied for distribution, the latest word is that a postponement of the November 15 reporting date to mid-January 2018 might soon be announced. We are also informed that EPA intends to revise the written continuous release reporting form to delete reference to reporting under EPCRA. We believe that farmers should assume the November 15 date will remain firm and provide verbal notification to the NRC if they suspect their operations generate 100 pounds of ammonia or hydrogen sulfide per day, but refrain from submitting the written notification to the EPA Regional Office until the new continuous release reporting form becomes available.

Deadline for Reporting Animal Waste Air Emissions Postponed

Posted on November 22, 2017, Authored by Robert J. Reinertson, Filed under Ag-Visor

Last week, Attorney Russell Wilson of Ruder Ware issued a legal update about EPA’s deadline of November 15, 2017 for reporting excessive air emissions of hazardous substances from animal waste at farm operations.  In that article Russ also reported on the possibility the deadline might be postponed.  That possibility has now become reality.  EPA has announced that farmers with continuous releases of hazardous substances do not have to submit their initial continuous release notification to EPA until further notice.  EPA also advised that farmers who have started the reporting process should stop until it issues further guidance.  EPA is placing a hold on the reporting requirement until the U.S. Court of Appeals for the District of Columbia Circuit issues a final order implementing its April decision which held that EPA does not have the authority to create a reporting exemption for animal feeding operations. EPA advises farmers to check its website, www.epa.gov, regularly for updates.  For more information on the background of the air emissions reporting rule, see Russ’ legal update here.