New Independent Contractor Rule Coming Soon!

By: Jeffrey K. Lewis, OSU Extension

The U.S. Department of Labor (“DOL”) has introduced a new independent contractor rule, aiming to provide clarity and guidance for both employers and workers. The classification of workers as employees or independent contractors has become increasingly complex in recent years, resembling an endless carousel ride for many businesses, particularly those in the agricultural sector that frequently hire part-time and seasonal help. The DOL’s new rule, published under the Fair Labor Standards Act of 1938 (“FLSA”), seeks to put an end to this perpetual uncertainty surrounding worker classification once and for all.

The FLSA establishes federal standards for overtime pay, minimum wage, and child labor. Ohio law explicitly aligns its interpretation of the term “employee” with that of the FLSA for wage and hour purposes. For the FLSA to apply to an agricultural employer, an employment relationship must be established. This entails determining whether a worker is classified as an employee or an independent contractor.

However, the FLSA itself is silent on how to exactly distinguish an independent contractor from an employee. So, for years the DOL relied on the court system to develop the standard for determining whether a worker should be classified as an employee or an independent contractor. The court system developed an “economic realities test” to help determine whether an employment relationship exists with a worker. The economic realities test is a totality of the circumstances test – which means all factors should be weighed evenly – and relies on six factors. These factors are:

  1. The nature and degree of control over the work;
  2. The individual’s opportunity for profit or loss;
  3. The permanency of the work relationship;
  4. Whether the work being performed is an integral part of the Employer’s business;
  5. The worker’s investment in facilities and equipment; and
  6. Skill and initiative.

For decades courts and the DOL have applied these factors, or a similar variation of them, to help define employee and independent contractor under the FLSA. However, courts across the country have applied the factors inconsistently and have given certain factors different degrees of weight.

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Suspected 2,4-D Resistant Waterhemp Population Discovered

Source:  ICM News, Iowa State University

We know the evolution of resistance in waterhemp populations happens faster than new herbicides are discovered, so the recent report of dicamba resistant waterhemp in Iowa by Bayer was not unexpected. Corteva has now reported the discovery of a suspected 2,4-D resistant waterhemp population in Iowa. These reports emphasize the need to use herbicides wisely and diversify weed management tactics beyond herbicides, especially as more farmers rely on herbicide group (HG) 4-based postemergence weed control in both corn and soybean.

The particulars

In late January 2024, Corteva reported the discovery of a suspected 2,4-D resistant waterhemp population in 2022 in Wright County, Iowa. A Corteva employee collected two samples of waterhemp seed, one from plants in the field and one from plants growing in the ditch adjacent to the field. While greenhouse testing with seed collected from plants in the field did not confirm resistance, plants grown from the ditch population are suspected to be 2,4-D resistant. The communication reported that the ditch had a multi-year history of 2,4-D application to manage broadleaf weeds. Corteva will continue evaluation of the populations in the greenhouse and the field. If resistance is confirmed in this population, it will become at least the fourth report of 2,4-D resistance in waterhemp, joining prior reports from Nebraska in 2009 (Bernards et al. 2012), Illinois in 2016 (Evans et al. 2019), and Missouri in 2018 (Shergill et al. 2018).

Iowa State University screened populations of waterhemp against several herbicides in 2019 at their 1X rates (Table 1). On average, waterhemp exhibited 17% survival to 2,4-D, 5% survival to dicamba, and 4% survival to glufosinate (Hamberg et al. 2023). We are rapidly losing herbicide options for postemergence control of waterhemp.

Best management practices to slow resistance development

Now is the time to evaluate how to improve weed management in fields. While herbicides will remain the primary tactic to manage weeds, farmers can implement several best management practices to slow herbicide resistance evolution and improve control of weeds like waterhemp.

  1. Choose an effective herbicide program for the weed spectrum present on a field-by-field basis.
    1. Use full rates of effective residual herbicides and plant into a weed-free seedbed.
    2. Include overlapping residual herbicides and multiple effective herbicide groups in postemergence applications to provide longer waterhemp control. Consult manufacturers for specific tank-mix recommendations.
    3. Make timely applications and choose appropriate adjuvants, nozzles, application volume, etc.
    4. Scout fields 7-10 days after postemergence herbicide applications to evaluate weed control.
  2. Use a diversity of weed management tactics, including chemical, mechanical, and cultural options. Narrow row spacing, cover crops, more diverse crop rotations, and tillage are effective tactics to suppress waterhemp.
  3. Control weed escapes prior to seed production to reduce future weed populations and prevent resistance from spreading.
  4. Reduce influx of weed seed into crop fields by managing weeds in field edges and cleaning equipment between movement from problematic fields to clean fields. The detection reported here indicates the threat of weeds in field edges.

Weekly Commodity Market Update

Brownfield’s Weekly Commodity update featuring former OSU Extension Ag Economist Ben Brown.

This Week’s Topics:

  • Market recap
  • Crop market continues general fall
  • Added trade support?
  • USDA Ag Outlook Forum bearish
  • Reports to watch

This week Will and Ben track falling crop prices and where they might be headed.
Market recap (Changes on week as of Monday’s close):

  • March 2024 corn down $0.12 at $4.20
  • December 2024 corn down $.08 $4.62
  • March 2024 soybeans down $.08 at $11.85
  • November 2024 soybeans down $.09 at $11.59
  • March soybean oil down 1.45 cents at 45.99 cents/lb.
  • March soybean meal up $3.50 at $350.00/short ton
  • March 2024 wheat down $.27 at $5.66
  • July 2024 wheat down $.29 at $5.66
  • March WTI Crude Oil up $.86 at $77.97/barrel

Weekly Highlights

  • Two separate measures of inflation came in hotter than anticipated. The Consumer Price Index came in at 3.1% year over year vs expectations of 2.9%. Similarly, the Producer Price Index came in at 0.9% month over month vs expectations of 0.1% increase and -0.1% in January.
  • Weekly CTFC data showed that open interest in Chicago Futures and Options was down 2.3% for Chicago Wheats, up 2.1% for corn and up 1.4% for soybeans.
  • Managed money traders continue to sell Chicago corn and soybean contracts. The net short for corn increased 16,597 contracts which took them over the philosophical threshold of 300,000 contracts. The record was set in April 2019 at just over 322,000 contracts. Managed money was also a seller of Chicago soybeans by 4,200 contracts to 134,500 contracts. The record for soybeans was May 2019 at just under 190,000 contracts.
  • Crude oil stocks excluding the strategic petroleum reserve increased 505 million gallons for the week leaving them 7% below last year. Gasoline stocks declined 153 million gallons but 2% higher than this same week last year. Distillate stocks were down 80 million gallons and are 5% higher than last year. West Texas Intermediate Oil prices are creeping back up to $80 per barrel after reaching the low $70 range in early February.
  • Ethanol production increased again this week to 318 million gallons. Corn used for ethanol production exceed the same period last year by 97 million bushels. Ethanol stocks increased 43 million gallons.
  • The National Oilseed Processors Association reported soybean crush numbers that disappointed the market. Soybean crush for January came in at 185.8 million bushels- four million less than the trade had anticipated, although still a January monthly record. Even though soybean crush was lower, soybean oil stocks also grew and were above all expectations implying January soybean oil use was rather bearish.
  • At USDA’s annual Agricultural Outlook Forum, the agency released their first balance sheets for 2024/25 marketing year. The numbers were bearish to new crop supplies but not as bearish as many in the industry were anticipating.
  • US grain and oilseed export sales were mixed last week. For corn- export sales of 51.4 million bushels were a 9-week high while soybean sales of 13.0 million bushels and wheat sales of 12.8 million bushels were both on the low end of expectations. There were net cancelations of grain sorghum sales amounting to 100,000 bushels for the current year and cancelations of all 2.4 million bushels of 2024/25 sales. There are no grain sorghum commitments for next year at this point after reaching 7.5 million bushels a few weeks ago.