By Judy Parker, photo by Jean Yates
The other day, Jean and I were talking about the upcoming 2014 harvest in Oregon. We were talking about horror stories in previous harvests — last year’s typhoon, the birds in 2009, the hail in 2005 — when it struck me that the worst horror story is yet to come. I can’t imagine something more business-affecting and long-reaching than a lawsuit brought against a winery for improper application of employment laws.
I’m talking here about the use of so-called “free labor” to pick and sort grapes. Under Oregon state and federal law, there’s no such thing as “free.”
Let’s talk about two typical classes of “free labor” folks — harvest trainee interns and the casual volunteer.
Under federal law, a harvest trainee can work for an employer and gain experience (rather than a paycheck) only under very narrow circumstances:
- Training is similar to that which would be provided in a vocational school;
- The training is for the benefit of the individual trainee;
- The trainee does not displace regular employees, but instead work under their close supervision;
- The employer providing the training derives no immediate advantage of the activities that the individual does;
- The trainee is not necessarily entitled to a job at the end of the training period; and
- The employer and the individual both understand that the individual is not entitled to wages for the training time.
My immediate concern is # 4 — I can’t think of a single winery or vineyard which wouldn’t derive an immediate advantage from free labor.
There’s another group of folks who “help out” during harvest in exchange for a couple of bottles of wine at the end of a busy weekend. They call themselves volunteers and wouldn’t ever consider themselves employees. But federal law says that people can only be volunteers for governmental or nonprofit entities. No one can volunteer for a commercial entity. There’s no “my favorite club member wants to help out” exemption under federal or state law. If someone is doing work for you, if they are under your direction and control, if they are helping your business — they are likely employees and you face severe consequences for not treating them accordingly.
The risks are huge — back wages, possibly back overtime, and time spent away from what matters most to you — making quality wines. Another significant risk to consider: what if your “free labor” injures someone else or herself on your land while doing things on your behalf? You could potentially be legally responsible. And don’t anticipate that a strong waiver of liability will protect you — a clever personal injury attorney can argue that you knew your winery was an unsafe location.
There’s no such thing as “free labor,” but one thought to avoid these employment issues is to structure harvest work as a “therapeutic activity,” getting in touch with the land. If your free labor pays you for taking part, you can likely argue that the participants are receiving the benefit (rather than the winery or vineyard owners).
Jean: I like “therapeutic activity” — sounds like something you’d see on Portlandia. But it might work?
Don’t forget — you can’t avoid a typhoon, you can’t scare away all the birds, you can’t put up a tarp to catch all the hail, but you can prevent employment issues like this from happening — either pay folks minimum wage or don’t have them work for you.
J.A. Parker Law Firm LLC
The Winemakers’ Lawyer
UPDATE: Here’s an article about a winery in CA that went out of business after using volunteers – fined to bankruptcy.