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Hiring Policies

Hiring Policies

Freedom of Association & Collective Bargaining #

AJP standards (3.1) require that employers recognize employees’ freedom of association and rights to collective bargaining. Freedom of association refers to the right of workers to band together and join or form organizations as they choose, without interference or reprisal. Closely related is collective bargaining, which refers to workers’ right to collectively raise work-related concerns, negotiate terms of their employment, and lodge complaints or grievances without any employer reprisals. This can be on an individual basis, in small groups, or collectively. It can be informal, such as workers simply coming to the employer or supervisor with concerns or requests, or formal such as unionization and related collective bargaining, or anything in between - all based on the wishes and decisions of the employees themselves. Workers may also choose to include third-party worker advocates in these negotiations. These rights are not currently protected for many farm workers under federal law, although they are protected in some states.

Note: These rights are protected for most other statutory employees under the National Labor Relations Act, but the NLRA specifically excludes farmworkers and domestic workers (a result of congressional efforts to preserve racial apartheid in the US South during and after the New Deal era).

At-Will Law #

At-will law (present in every state except Montana) allows employers to fire workers at any time, for almost any reason. AJP Standards require that worker discipline and terminations be only for just cause. If an employer fires a worker arbitrarily, that is cause for losing Food Justice Certification. Standard 3.1.14. See our Model Handbook for Employees for an example policy and more discussion of “at will” vs. “just cause.”

There are actually many, many limits to At Will law, contrary to the expansive, intimidating language used in the employer-friendly handbooks. An employer cannot discriminate against a worker for a whole list of reasons that include race, ethnicity, or age. An employer cannot fire a worker for getting sick or injured. In fact, there are many, many minor exceptions that are little publicized and cover particular situations and classes of employees. Nevertheless, unless the farm has clear written policies outlining a process for terminating workers, a written contract, or a union contract, employers can effectively fire employees as they please because most workers are unable or unwilling to mount a legal challenge in court.

Employers that adopt “at will” employment policies are advised to do so out of fear that the employer could be sued for discrimination. Courts can interpret employee handbooks as promises to follow the written procedures they contain; so if an employer does not follow their own defined processes, the court may believe that a worker was fired for discriminatory reasons. At-will theoretically gives workers the freedom to leave at any time too, but the power in this arrangement is very much with the employer.

Most templates for farm employee handbooks repeatedly insist on “at will” policies and threaten that employees can be fired at any time for any reason. This is intimidating to employees, to say the least. At Will policies are not required by law: At Will is merely optional, and such policies are imposed primarily in low-wage, precarious lines of employment, where employers jealously guard their unilateral power over workers. About half of all US employees are covered by “just cause” agreements, and farm employers can choose to make such agreements with their workers, too.

When an employer enters into a “just cause” agreement with employees, the written policies for discipline and termination, as well as clear expectations for work performance and behavior, are the employer’s protection against lawsuits. The employer should keep record of every evaluation and warning and be able to show good reason for disciplinary action or termination if necessary.

Note: The history of At Will law demonstrates clearly the power dynamics at play. The 13th Amendment to the constitution outlawed slavery and explicitly gave workers the right to leave any job at will. Employers, especially the railroads, abhorred this new-found freedom of workers and enlisted friendly Supreme Court justices to impose an employer-biased At Will doctrine. The US is the only developed nation that allows At Will termination.

See also:

Note that the AJP and the AJP Toolkit do not offer professional legal advice. Seek guidance from a lawyer for clarification of your legal obligations and liabilities.

No discrimination or favoritism #

AJP standards require that farmers not discriminate against any employee or prospective employee in hiring, wages, benefits, or any other capacity, on the basis of race, creed, color, national or ethnic origin, nationality, gender, gender identity, age, handicap or disability (including HIV status), union or political activity, immigration status, citizenship status, marital status, or sexual orientation, or practice favoritism in assigning work. Standard 3.1.5. Certain classes of discrimination are also illegal. While legal protections are inconsistent between jurisdictions, the AJP standards are more expansive.