What Do You Tell Ol’ McDonald About His Accountant?
By: Brennan McElhone
Back in 1923, Walter Knott sold his produce, preserves and pies from a roadside stand on Route 39. Over the course of the next century, his must-see pitstop expanded until it became California’s Knott’s Berry Farm theme park. Farm laborers have an exemption from the Workers’ Compensation Act (the Act). Under O.C.G.A. § 34-9-2(a)(1), a “farm laborer” is defined as a laborer employed “in or about” the business of farming. That is a definition akin to, “everything in the world can be categorized as either an onion or not an onion.” It’s technically true, but it’s not especially helpful. When you and your client are in front of the State Board of Workers’ Compensation, where is the line between “in and about” and “out” of farm labor? Ignoring the jurisdictional issue, think about when the employees working at Walter’s berry farm would have transitioned from farm laborers exempt from the Act to traditional employees for Knott’s Berry Farm’s parent company, Cedar Fair L.P.? And how do you guide a client when their business is struggling to find its own distinction?
First, farm labor is when “agricultural labor” is done on a “farm.” But what’s “agricultural labor?” And why does “farm” have quotations around it? The infamous Gill v. Prehistoric Ponds offered a more concrete definition for both questions. After the Claimant’s thumb was bitten off – amongst other complications – by an alligator pursuant to his work at the self-described “farm,” Gill sought workers’ compensation benefits. Only after rising to the Court of Appeals was a final determination made. The Court of Appeals ruled an employee may perform agricultural labor without being a farm laborer because not all agriculture takes place on farms. Gill v. Prehistoric Ponds, Inc., 280 Ga. App. 629 (2006).
Second, is your client a farm? Here are the flags to look for. First, is the employment centered on the cultivation of the land? Second, is the employment focused on the production of stock, dairy products, poultry, fruit or fur-bearing animals? If the answer is a conclusive “yes” to both questions, then it’s safe to say the employee does not fall under the Act. However, it’s not uncommon for agricultural businesses to buttress their primary agricultural revenue with activities that are well outside the scope of traditional farming. Hayrides, holiday events, festivals, internships and summer camps could all fall under this category of revenue, and sometimes the inverse is true. There are businesses – wedding venues come to mind – that carry farm branding but could not be described as cultivators of the land, even if the business has some small-scale agriculture output. So, when the answer to those first two questions posed are not immediately apparent, the next questions are, “what is the nature of my client’s business?” and “what is the task that resulted in an employee’s injury?”
The business of farming includes more than just reaping and sowing. “Farming” includes the incidental enterprises that support the cultivation of the land, such as marketing or the transportation of goods. However, unlike the cultivation of land, “incidental enterprise” is not a sure-footed defense. In Georgia case law, an employee who drove a truck that delivered a farm’s crops was found to be a farm laborer because Glen Oak’s exclusively delt in the business of farming. Glen Oak’s Turf, Inc. V. Butler, 191 Ga. App. 840 (1989). But, in Lumber City Egg Marketers, Inc. V. Piercy, the court was more interested in the status of the employee, not the total activities of the employer. The status of the employee is especially critical because why someone is hired can make a tremendous difference. An independent contractor whose only responsibility is to facilitate the trade of a farm good is not a farm laborer, even when the work he does is packing chickens. J & C Poultry v. Reyes- Guzman, 227 Ga. App. 731, (1997).
What’s fun about the farm laborer exemption in workers’ compensation is every case that’s come before the Board has been given a wide field to argue both the status of the employee and the nature of the employer’s business, with the appellate courts looking into external statues and public policy considerations. What this ultimately means for you and your client is, should you assess whether a possible farm laborer exemption defense is present, be prepared to thoroughly explain what your client does, how your client’s business generates revenue and exactly what the injured employee’s task was when their injury occurred.
Attorney Contact Info
Brennan McElhone
brennan.mcelhone@swiftcurrie.com
404.888.6106