This presentation focuses on preventive practices for farms to prevent undercover surveillance including hiring practices, ongoing training, notice of prohibited devices, participation in voluntary certifications and animal handling programs, record keeping, and protection of public image.

1. Counseling the Livestock
Operator To Prevent &
React to Undercover Surveillance
New York State Bar Association
Committee on Animals and the Law
“Ag Gag” Laws
March 25, 2015
By Cari B. Rincker, Esq.

2. Who I Am
• Grew up on a beef cattle
farm in Illinois
– Advanced degrees in
animal science
• Chair of the ABA, General
Practice, Solo & Small
Firm Division’s Agriculture
Law Committee
• Client bases ranges from
livestock producers & food
entrepreneurs to mid-size
agri-businesses

3. Preventative Practices for Farms
• Different Stages
– Hiring Practices
– Upon Hiring
– Ongoing Programs
• Protection of Public
Image
• Record Keeping
• Reaction to a Breach

4. Hiring Practices
• Interviewing
Practices
• Background Checks
• Notice of Prohibited
Devices

5. Interviewing Practices
• Get to know your job
applicants
– Review the resume
– Ask probative
questions
– Ask for references
– Ask about educational
history

6. Interviewing Practices
• Check references
– Check online and call the
main number for the
business vs. relying on the
phone number provided by
applicant
– Check website to see if
legitimate business
– Confirm periods of
employment with the
reference

7. Interviewing Practices
• Establish Procedures
– Phone interview first
– Then send reference
form to applicant
– References should
be provided in
written format
– Check references
– If no discrepancies,
then in-person
interview

8. Interviewing Practices
• If discrepancies are
reported at the written
stage:
– Receive clarification
from the applicant;
– Possible use of a credit
reporting agency; or,
– Notify the applicant that
employment will not be
offered

9. Background Checks
• Background checks are
considered consumer
reports
• Farm employers who
wish to run
background checks
must comply with the
Fair Credit Reporting
Act (“FCRA”)

10. Background Checks
• Farm employers must provide written disclosure
to the applicant “that a consumer report may be
obtained for employment purposes.”
– This must be provided before the report is requested
– This disclosure must be a stand-alone document and
cannot be included as part of the application form
• Applicant must authorize procurement of the
report in writing 15 U.S.C. § 1681(b)(2).

11. Background Checks
• Farm employers may have to disclose
the background check/consumer report
to the applicant
– Disclosure required by employers who
intend to take adverse action (such as
rejection of applicant or termination of
existing employment) based on
information in consumer report
– In such cases, employer should provide
copy of report and written description of
applicant’s rights in relation to the report.
See 15 U.S.C.A. § 1681(b)(3).

12. Background Check
• If adverse action is taken on applicant, a notice
must be provided to the applicant or employee
providing:
– Contact information for
the reporting company;
– Statement that an adverse
action was not a decision of
the reporting company; and,
– Information on the right to
dispute the report.

13. Background Check
• Livestock operations should check the laws on
background checks in their state.
– Some state laws may not be preempted by FCRA and may
forbid the use of credit reports for employment purposes
• California
• Colorado
• Connecticut
• Hawaii
• Illinois
• Maryland
• Oregon
• Vermont
• Washington

14. Notices of Prohibited Devices
• Notice of prohibited
devices and acts should
be included in the
employment application
and posted at the
workplace.

15. Notices of Prohibited Devices
If livestock producer is
in a state with an “ag
gag” law, then notice
language should match
statute

16. Notices of Prohibited Devices
• Notices should list
specific devices that are
prohibited, if any,
including smart phones,
cameras or video
cameras.

17. Notices of Prohibited Devices
Notice should state that
permission to make any
recording must be
made from the
employer in writing.

18. Notice of Prohibited Devices
Notice may designate that
any recordings taken on
the premises are property
of the livestock operation
and any recordings must
be turned over to the
livestock operation

19. Notice of Prohibited Devices
Livestock operation
should make employees
aware of the serious
nature of any recordings
on the premises

20. Upon Hiring
• Employee Handbook
• Employee Contract/
Independent
Contractor Agreement
• Non-Disclosure
Agreement

21. Ongoing Programs
• Regular training on animal
handling techniques
• Farms should consider
their own undercover
surveillance
• Participation in voluntary
animal welfare programs
and trainings

22. Training
• Depending on the
operation, training on
animal handling practices
should be done at regular
intervals
• When the training
concludes, have the
employees “sign off”
stating that they
participated in the training
and understand the animal
handling practices
This is me taking a blood sample
at the University of Illinois research
farm for my masters degree.

23. Training
• Livestock operations should
work with a cooperative
extension agent to help
develop sound animal
handling practices for their
operation
– New York – Cornell
Cooperative Extension
– Illinois – University of Illinois
– Texas – Texas A & M University I’m with my father on our farm

24. Farm’s Own Undercover Surveillance
• Make sure the animal
handling practices are
being implemented
properly
• Help ensure proper
equipment is available
• To see if employees act
differently when the
“boss” isn’t around

25. Participation in Voluntary Training and
Animal Welfare Programs
• New York State Cattle
Health Assurance
Program (“NYSCHAP”)
– Other states have similar
programs
• Milk & Dairy Beef
Quality Assurance
Program
My family’s farm

26. Voluntary Certification & Third Party
Verification Programs
• American Humane Certified by the American
Humane Association
• Animal Welfare Approved by the Animal
Welfare Institute
• United Egg Producers Certified
• Certified Humane Certification Program from
the Humane Farm Animal Care
For more info
http://awic.nal.usda.gov/farm-animals/animal-welfare-audits-and-certification-programs/animal-welfare-audits-and-2

27. Protection of Public Image
• Website
• Social Media
• Community involvement
• Opening barn doors to
the public – either
virtually and/or farm
tours
• Public relations
consultant

28. A Word on Record Keeping
• Farms should consider keeping as much documentation that
they can on everything they are doing right to care for their
animals each day. This will be useful in court for any defense
against animal cruelty charges.
– Feeding records
– Veterinary care
– Consultations with an extension specialist
– Observations on body conditions scores
– Training employees or independent contractors on animal handling
techniques
– Consider memorializing proper animal handling techniques in the
employee handbook
– Videos and photographs

29. Reaction to a Breach
• Establishing procedures for documenting the
occurrence and the actions taken to retrieve
employer property are critical.
– Policies should establish
efficient mechanisms for
determining the contents
of the recording device and
suspected employees should
not be held longer than
necessary.

30. Reaction to a Breach
• Get a team put
together before an
incident.
– Public relations
person
– Attorney

31. Oh, P.S. – I Just Wrote a Book
Cari B. Rincker & Patrick B.
Dillon, “Field Manual: Legal
Guide for New York Farmers
& Food Entrepreneurs”
(2013)
Available at
http://www.amazon.com/Fi
eld-Manual-Legal-Farmers-
Entrepreneurs/dp/1484965
191

32. Please Stay in Touch
535 Fifth Avenue, 4th Floor
New York, NY 10017
(212) 427-2049
cari@rinckerlaw.com
www.rinckerlaw.com
@CariRincker @RinckerLaw
www.facebook.com/rinckerlaw
http://www.linkedin.com/in/caririncker