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.

Background
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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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.

Ohio Farmland Leasing Update webinar is March 1

As we enter the 2024 crop season, it’s time for an update on economic and legal information that affects Ohio farmland leasing. Join our Farm Office team members on March 1, 2024 from 10 a.m. until noon for a special edition of our Farm Office Live webinars.  In the Ohio Farmland Leasing Update, we’ll share the latest information on these leasing topics:

  • Cash Rent Outlook – Key Issues and Survey Data
  • Negotiating Capital Improvements on Leased Farmland
  • Dealing with Conservation Practices in a Farmland Lease
  • Executing and Recording Farm Leases
  • Legal updates and new Farmland Leasing Resources

Our speakers for the webinar include:

  • Barry Ward, Leader, OSU Production Business Management
  • Peggy Hall, Attorney, OSU Agricultural & Resource Law Program
  • Robert Moore, Attorney, OSU Agricultural & Resource Law Program

There is no cost to attend the Ohio Farmland Leasing Update, but registration is necessary unless you’re already registered for our Farm Office Live webinars.  To register, visit go.osu.edu/register4fol.

Weekly Commodity Market Update

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

This Week’s Topics:

  • Market recap
  • Penciling out profit
  • South American production
  • South American second crop planting
  • Managing production cost
  • Corn acreage to fall
  • Reports to watch

This week Will and Ben look at falling crop prices across the board and what it’ll take to stabilize.

Market recap (Changes on week as of Monday’s close):

  • March 2024 corn down $0.05 at $4.40
  • December 2024 corn down $.01 $4.74
  • March 2024 soybeans down $.29 at $11.94
  •  November 2024 soybeans down $.17 at $11.80
  • March soybean oil down 2.61 cents at 45.55 cents/lb
    – March soybean meal down $1.50 at $354.30/short ton
  • March 2024 wheat down $.06 at $5.93
  • July 2024 wheat down $.03 at $6.09
  • March WTI Crude Oil up $2.13 at $76.78/barrel

Weekly Highlights

  • US Gross Domestic Product grew 3.3% in the fourth quarter of 2023- down from the 4.9% in the third quarter but well above the 2% growth expected. Taking out the sharp recovery after the pandemic in 2020. The 3rd and 4th quarters are the strongest two quarters back-to-back since 2014.
  • Core Inflation at 0.2 month over month was right inline with expectations and core inflation year over year of 2.6% was as expected.
  • The housing market continues to run hot- with New home sales at 664,000 up from last month and expectations and pending home sales up to a huge number of 8.3% in December- the largest number since June 2020.
  • It was another fairly risky week for US commodities. Open interest positions increased across the board for Chicago wheat (2.7%), Corn (5.7%), soybeans (6.5%), soybean oil (3.7%), soybean meal (3.4%), cotton (10.7%), and rough rice (0.4%).
  • Producers and Merchants increased their net positions of corn adding to the small net long while also adding net positions of soybeans shrinking their small net short. Producers and Merchants sold off net wheat contracts adding to the net short in Chicago wheat.
  • Managed money traders sold off another 4,743 contracts of Chicago corn while selling 15,045 contracts of soybeans to increase the net short there as well. Managed accounts added 26,518 contracts of cotton futures to take the small net short into a net long.
  • US crude oil stocks excluding the strategic petroleum reserve were down another 388 million gallons while gasoline stocks increased 206 million gallons on a 5% week over week reduction in gasoline demand.
  • As expected, US ethanol production pulled back to 240 million gallons- down from 310 million gallons the week prior due to the cold snap in the US. Even with the drastic drop in ethanol production-ethanol stocks increased due to the drop in gasoline demand and blending.
  • Exports sales were lower this week nearly across the board and bearish for soybeans. Only SRW wheat posted week over week gains.
  • Weekly grain and oilseed export inspections for the week were neutral for corn and soybeans, while bearish for wheats and grain sorghum. Corn, HRW and HRS wheats were the only commodities up week over week.

When farm animals escape, who’s liable?

Source: Peggy Kirk Hall, Attorney and Director, Agricultural & Resource Law Program

Recent collisions involving cattle on Ohio roadways raise the question of who is liable when a farm animal causes a roadway accident?  Ohio’s “animals at large law” helps answer that question. It’s an old law that establishes a legal duty for owners and keepers of farm animals to contain their animals.  The law states that an owner or keeper shall not permit their animals to run at large “in the public road, highway, street, lane, or alley, or upon unenclosed land.”  But as with many laws, the answer to the question of “who’s liable” under the law is “it depends.”  Here’s how the law works.

The law applies to both owners and “keepers.”  The animals at large law places responsibility on both the owners and the “keepers” of the animals.  The reference to “keepers” can expand the duty to someone other than the animal owner.  Ohio courts have interpreted the “keeper” language to include a person “who has physical care or charge” of the animal or has “some degree of management, possession, care, custody or control” over the animal.  Whether someone is a “keeper” is a fact specific determination made on a case-by-case basis.

Animals that must be contained.  Several years ago, Ohio legislators added poultry to the list of animals an owner must prevent from running at large.  The full list of animals an owner or keeper must contain now includes horses, mules, cattle, bison, sheep, goats, swine, llamas, alpacas, and poultry.

The law creates both civil and criminal liability.  There are two potential outcomes to violating the animals at large law.   The first is civil liability for “negligently permitting”  animals to run at large.  The owner or keeper who does so is responsible for all damages resulting from injury, death, or loss to a person or property caused by the animal.  The second is criminal liability.  An owner or keeper who “recklessly” permits the animals to run at large can be charged with a fourth degree misdemeanor.

An owner’s negligent conduct creates civil liability.  An owner can be liable for “negligently permitting” animals to run at large, but what does “negligently permitting” mean?  Courts have answered this question by stating that the law requires “negligent conduct” by the owner or keeper and that failing to exercise “ordinary care” to contain animals would be negligent conduct.  As an example, a court determined that an owner who leaned a gate against a barn opening without fastening the gate to the barn or to any fence posts did not exercise ordinary care to contain his cattle.  But the law allows an owner to rebut the presumption that the animals were out because of the owner’s negligent conduct.  An owner can offer proof of “ordinary care” taken to contain the animal, such as maintaining fences, locking gates, or checking animals regularly.  If the owner had exercised reasonable care and the animals escaped for other reasons, such as being spooked by a storm or a gate left open by someone else, the owner might not be liable for the animals running at large. Whether the owner or keeper “negligently permitted” the escape would be a fact specific determination, made on a case-by-case basis.

Reckless conduct can result in criminal charges.  In the example above, the court determined that the owner who merely leaned a gate up against the barn opening behaved “recklessly.”  Legally, recklessness is acting with complete disregard to the consequences.  Reckless behavior can lead to a criminal charge against the animal owner, with a maximum jail sentence of 30 days and a fine of up to $250.

Reducing liability risk under the animals at large law

  1. Regular management practices.  In the court cases that apply Ohio’s animals at large law, the owner or keeper’s management practices are critically important to a liability determination.  Animal owners and keepers can reduce liability risk by following routine management practices and documenting those practices, which include:
  • Regularly checking and maintaining fences.
  • Locking gates.
  • Inspecting and maintaining stalls and similar enclosures.
  • Checking and counting animals regularly, and immediately after a storm or similar event.
  • Installing cameras.
  • Training employees to follow management practices.

2. The fence matters.  It’s also important to build a sufficient fence.  OSU Extension offers helpful resources on fencing in this video on fencing systems by Educator Ted Wiseman and this article on common fencing mistake posted by the OSU Sheep Team.  Be aware that another Ohio law requires a new boundary line fence for livestock to be a certain type of fence.  Ohio’s “partition fence law” requires a new boundary line fence for containing livestock to be:

“a woven wire fence, either standard or high tensile, with one or two strands of barbed wire located not less than forty-eight inches from the ground or a nonelectric high tensile fence of at least seven strands and that is constructed in accordance with the United States natural resources conservation service conservation practice standard for fences, code 382.” If adjacent owners agree in writing, a new line fence to contain livestock can also be a barbed wire, electric, or live fence.

3. Insurance and business entities.  Insurance is necessary risk management tool for farm animal owners and keepers.  It’s important to review all animals and animal activities with an insurance provider and ensure adequate liability coverage.  In some situations, using a separate business entity like a Limited Liability Company might be helpful for liability purposes.  Animal owners and keepers should consult with insurance and legal advisors to determine individual insurance and legal needs.

Ohio’s animals at large law is in Ohio Revised Code Chapter 951.  Ohio’s partition fence law is in Ohio Revised Code Chapter 971.