hartfordYears ago, I recall having a friendly conversation with another attorney in Connecticut where the topic turned to the notion of “At Will” employment.

When we couldn’t settle on an answer, we moved on to talking about whether the Hartford Whalers would ever come back.

I think we had a better answer for that question: Probably not.

But this is an employment law blog, not a sports one, so let’s get back to the topic.

Employment-at-will is, from a legal perspective, the notion that an employer may discharge an employee without restriction, that is, for any reason or no reason, without incurring any liability to the employee.

Simple enough, right?

Well, not quite. First off, Connecticut recognizes two major exceptions to this doctrine:

  1. The termination cannot violate an important public policy;
  2. The termination cannot breach an implied contract of employment if one as formed.

And, it should be noted, that there is the obvious exception that the termination cannot violate any other state or federal law — such as the laws prohibiting discrimination.

This again sounds simple enough, but in discussions with employers, there is another topic that comes up — fairness.  In other words, employers typically are wise the ask themselves whether a termination under the circumstances is “fair”.

Now that can mean a lot of things in a lot of situations.  For example, suppose an employer hires an employee, but 3 weeks later the employer loses a major contract and needs to layoff ten employees.  It may not be exactly “fair” to terminate this newly hired employee, but if the employer may be being “fair” by laying off newly hired employees first.

Sometimes, the “fairness” question is framed slightly differently.  Suppose you have a newly hired employee who is late to work a few times in the first 30 days and then shows up to work under the influence of alcohol.  Can you simply terminate the employee then?

Under most circumstances, yes, and most people would say this is fair because the employer is simply holding the employee accountable under its rules and a new employee shouldn’t get a lot of free passes.

But now suppose you have a 20 year employee who has an exemplary record of service.  The employee has no record of tardiness or misbehavior, but after a March Madness weekend, shows up at late to work with bloodshot eyes.  It should be noted, though, that a week before, the employee had complained to his boss that the machine he was working on seemed in need of repair.

Under the employment-at-will doctrine, the employers still has the same right to terminate the employee, but I think most people would think this situation ought to be looked at differently.  If the employer proceeds with the termination, it’s possible that it opens itself up to a threat of a claim.

Why? Because while the employment-at-will doctrine still applies, a judge or fact-finding would also then ask the same question — does this termination seem “fair”?

If the answer to that question is “no”, then judges and juries will look for alternative explanations.  Here, one could argue that it was the employee’s complaint that was the motivating factor in the termination and the employee was being retaliated against for complaining.  Otherwise, the termination seems a bit “unfair”.

That type of logic may not be “fair” either, but it goes to show that the employment at will doctrine should not simply be relied on in all circumstances.

I’ve yet to have an employer just say, “I didn’t have a reason for firing the employee. I just felt like it.” That may work under the “at will doctrine” but in the real world, it probably wouldn’t fly.

For employers, always try to look at your decisions through a neutral prism.  Or better yet, ask yourself: What would my neighbor think about this? If the termination seems unfair under those circumstances, it may be a clue to re-think your decision.

 

presentsIf you like to open your presents on Christmas Eve, the U.S. Department of Labor is for you. Last night, the DOL posted the final revised rule on overtime on its website ahead of its planned announcement this afternoon.

What a gift for employment lawyers!  Needless to say, I was up late unwrapping all my “gifts.”

Remember: These changes apply only to the so-called white-collar exemptions: Executive, Administrative and Professional.  So, if the employee falls within a different exemption, this rule does not apply.

And, as I’ll explain below, for Connecticut employers, the challenges are just beginning.  The rule applies to all employers covered by the FLSA (FLSA covers employers engaged in interstate commerce and gross volume of $500,000.00 in sales) but Connecticut employers will also have to worry about state law as well.

Here are the highlights (the DOL has released a chart comparing all the changes as well):

  • As expected, the new rule changes the salary basis to $47,476 annually ($913/week) — slightly less than the proposed rule last year. In plain English, anyone who makes less than this amount must be paid overtime for any hours over 40 in a work week — regardless of his or her duties.
  • This threshold will change every three years, and will be tied to the salary level at the 40th percentile of earnings of full-time salaried workers in the lowest-wage Census Region, currently the South.
  • The new rule makes no changes to the duties test.   If an employee had duties that fell within the executive exemption, for example, they will still be exempt — that is, if their minimum salary now meets the threshold of $47,476.
  • The rule increases the “highly compensated employee” exception to the exemption to $134,004 – and that too will change every three years. (But note that Connecticut law does not have such an exception.)
  • The rule becomes effective December 1, 2016. Note that December 1 is a Thursday, so employers will have to make sure that the entire pay period is compliant with the new rule.
  • The new rule will now permits employers to use non-discretionary bonuses and incentive payments (including commissions) to satisfy up to 10 percent of the new standard salary level.  This is a brand new element and should help employers meet that threshold (a bit).

The USDOL also released guidance for non-profits and higher education to address concerns in those areas.  Those employers should review that guidance specifically.

For Connecticut employers, though, take a deep breath before jumping in.  Connecticut has its own state law and regulations that are now in conflict with this federal rule. And as the CTDOL notes in its guide to wage & workplace laws: “The laws that provide the higher or stricter standard shall apply.”

What does that mean here? We’ll have to wait and see if the Connecticut Department of Labor updates its guidance for starters.  It is challenging for Connecticut to update its regulations so, for now, we can only hope that the CTDOL might at least shed some light on how it might enforce the state rules. (There is a helpful chart that it has used in the past, for example, that could be updated.)

But here, on first glance, are three other items of concern I have for now:

  1. The salary test in Connecticut does not contain an allowance to consider nondiscretionary bonuses.  Will that change (at least as a matter of enforcement) now that the federal regulations allow employers to consider that? And how should the deduction rule be applied in such an instance? Would Connecticut recognize an increased salary basis but without such bonuses as the more “protective” of the law?
  2. The CTDOL has previously recognized a “no man’s land” (its words) where the interaction of the rules is confusing; how will it deal with a similar (and much larger) no man’s land where the salary is higher, but the duties test has been met?
  3. Connecticut does not have an exemption for highly compensated employees. The new federal rule does not change state law and thus the HCE exemption will still not apply here.  Will the CTDOL reconsider that in light of the increased threshold at a federal level?

What’s the Takeaway for Employers in Connecticut?

For employers in Connecticut, do not just blindly adopt the new federal rule into your workplace.

For example, increasing the base salary to avoid overtime obligations under the federal rule may not matter if the employee does not meet the duties test under Connecticut law for the same exemption.

This is one of those situations that will require a case-by-case look at specific positions and the interaction between state and federal law.  Unfortunately, you’ll probably want to consult heavily with various HR consultants or lawyers specializing in employment law.

So, as a said before, stay calm. You can do this.  You have until December.

 

What’s in a name?

Not a Wendy’s Burger.

To a recent Superior Court decision, everything. But only if you have been represented by counsel. Confused? Let’s backup for a second.

A prerequisite to filing a discrimination claim in state court is that the employee file the same claim before the Commission on Human Rights and Opportunities.  This includes, in most cases, naming all of the parties (or Respondents, in this case) to the claim at the agency level.

But courts have fashioned an exception to this filing rule where a named Respondent and the heretofore unnamed party have an “identity of interests.” Courts have outlined a series of factors to be considered under this “identity of interests” exception.

Here’s where things get interesting, as this recent case demonstrates.

Suppose the employee was represented by counsel at the agency level.  Does that change the rule?

The Superior Court in Harrelle v. Wendy’s Old Fashioned Hamburgers of New York, Inc.,  said yes, the rule is inapplicable in that situation.  It cited another unpublished case, Marks v. Cogswell, from 2011 which stated “Courts have consistently held that this identity of interests exception to the requirement that defendants be named in the preceding CHRO complaint only applies when the plaintiff was not represented by counsel before the CHRO.” Of course, because the case is unpublished, you’ll only find it on specialty legal sites.

In any event, it’s an important, if overlooked, exception to the “identity of interests” exception and employers who are dealing with new parties in a lawsuit ought to invoke it whenever possible.

Over the past month, after the Supreme Court’s Hobby Lobby decision, much has been made in the press about how it is unprecedented for the court to consider a company’s religious beliefs in making its decisions.

The issue of taking into account a corporation’s religious belief in the workplace has been also catapulted to the center of the discussion regarding consideration of the Employment Non-Discrimination Act (ENDA), a bill which would prohibit discrimination in employment on the basis of sexual orientation on a federal level.

Some are now asking that ENDA, if passed, have an exception for religious organizations.  In response, a number of prominent civil rights groups have withdrawn their support for the bill.

A joint statement issued by several organizations, including the ACLU, said the following:

ENDA’s discriminatory provision, unprecedented in federal laws prohibiting employment discrimination, could provide religiously affiliated organizations – including hospitals, nursing homes and universities – a blank check to engage in workplace discrimination against LGBT people. The provision essentially says that anti-LGBT discrimination is different – more acceptable and legitimate – than discrimination against individuals based on their race or sex.

Here’s the thing, rightly or wrongly, the notion of a religious exemption in an employment discrimination law isn’t unprecedented; Connecticut passed one 23 years ago.

And it hasn’t been amended since.

I can now hear from many of you: Wait, what?

Yes, right there in Conn. Gen. Stat. Section 46a-81p is a specific exemption for religious corporations to the prohibition of sexual orientation employment discrimination.

The provisions of sections 4a-60a and 46a-81a to 46a-81o, inclusive, shall not apply to a religious corporation, entity, association, educational institution or society with respect to the employment of individuals to perform work connected with the carrying on by such corporation, entity, association, educational institution or society of its activities, or with respect to matters of discipline, faith, internal organization or ecclesiastical rule, custom or law which are established by such corporation, entity, association, educational institution or society.

Now, before you start reading “religious corporation” to include companies like Hobby Lobby, the answer may not be that simple.

For one thing, the sexual orientation anti-discrimination laws don’t define what they are explicitly; elsewhere in state law there is a reference however, to “religious corporations” and societies.  Conn. Gen. Stat. § 33-264a states that: “Three or more persons uniting for public worship may form a corporation or a voluntary association. Such a corporation shall be called a religious corporation and such a voluntary association shall be called a religious society.”

So perhaps including a company like a Hobby Lobby into this definition may not fit.

But what IS meant by “religious corporations” in this particular section on employment law? How do courts define it? Is it just a church or something more, like an organization’s for-profit bookstore? Well, I haven’t located a court case that has confronted the issue head on.

The Connecticut Supreme Court has only cited the statute by off-handed refereces that the legislature made an exemption for “religious organizations.”  But that too is a bit odd, because the word “organizations” isn’t in the statute itself. (See, for example, the court’s use in Patino v. Birken Manufacturing.)

I’ve taken a look at the bill analysis from the Office of Legislative Research from its passage in 1991 and it isn’t all that helpful. It states merely that “the bill exempts religious organizations from these employment provisions but only as to their employment of people to carry out their work.” (There’s that use of “organizations” again.)  An earlier version of the bill had a narrower exemption too, but that was expanded through a bill amendment at the time.

The Connecticut legislature has considered amendments, over time, that would, for example, put the sexual orientation anti-discrimination laws into the more general provisions prohibiting discrimination, but even this year’s Senate Bill 385, which would make that type of change, would keep the language of the “religious corporation” exemption as is.

I suppose that the lack of litigation on the state’s law exempting “religious corporations” from compliance with the anti-discrimination law may be indicative of its general acceptance here in Connecticut or its narrow application. And perhaps a court looking at this will find that for-profit corporations are just inherently different than religious ones and that the use of the language here precludes a broader interpretation.

But I suspect that the lack of discussion of this exemption is also due to the fact that many people are unaware of its existence or the specific language of the exemption either.

Either way, in light of the Hobby Lobby decision from the Supreme Court, perhaps we will see the Connecticut General Assembly revisit this statute. While an exemption for a “religious corporation” may have been a necessary compromise in 1991 at the time of the bill’s original passage, I wonder if legislators believe it should be construed as broadly as some might argue after Hobby Lobby.

After all, if corporations are “people” too, it’s not that far of a leap for someone to argue that they can be “religious corporations” as well.

As the temperature starts to dip this week and our thoughts start turning from fall to winter, so starts slow climb up the absenteeism ladder.

Around many workplaces, flu shot clinics are starting to pop up.  Not surprisingly, studies show that flu shots reduce the rate of absenteeism.  (Employees who get vaccinated get sick less — go figure!)

The Connecticut Department of Public Health has a whole website devoted to employers who wish to run a flu clinic. And the CDC has lots of information like the button below.

Learn about Who Needs A Flu Vaccine.
http://www.cdc.gov/flu/protect/whoshouldvax.htm

But can an employer mandate that employees get a flu shot? Around Connecticut, numerous healthcare institutions started instituting mandatory vaccinations for their workers…and the local press made it a big issue.

Lost in that so-called debate, however, was the clear-cut guidance that came out from the Commission on Human Rights and Opportunities.  In an article last December, the CHRO said unequivocally that there was no issue with mandatory flu shots.

Charles Krich, principal attorney for the Connecticut Commission on Human Rights and Opportunities, says this corporate policy [of mandatory flu shots] does not violate constitutional rights. It also does not qualify as discrimination.

“About a hundred years ago, the Supreme Court said the state absolutely has the right to require vaccinations of people to protect the public health,” Krich explained.

Despite the undisputed public health benefits to such a policy, State Senator Joe Markley introduced a bill earlier this year into the Connecticut General Assembly that would ban such mandated vaccinations.  Thankfully, the bill went nowhere. 

Employers should, however, still be mindful of federal laws that mandate some accomodation of an employee’s religious beliefs and may, on a case-by-case basis, consider some flexibility.

Many hospitals have created a system to analyze requests for exceptions to the policy and created an exception as follows:  “Those who cannot receive the flu vaccine, whether for religious or medical reasons, will be required to properly wear a protective surgical mask over their mouth and nose when within 6 feet of any patient and when entering a patient room during the influenza season.”

Employers with unions and collective bargaining agreements should also be mindful that some have argued that mandatory flu shots should be a bargained-for term of employer. Last year, the NLRB ruled that a hospital did not violate the federal labor laws when instituting a mandatory policy over the objections of the nurses’ union.  But that decision relied on a broad “management rights” provision so employers should have their own situation reviewed by their labor counsel.

 

The Connecticut Supreme Court today ruled (in a decision that will be effective August 2, 2011) that the ministerial exception found under the First Amendment bars certain employment related claims brought against religious institutions.

Ministerial Exception Applies to More Than Churches

The court’s unanimous decision in Dayner v. Archdiocese of Hartford can be downloaded here.

In doing so, the Court explicitly adopts the rule found in the Second Circuit in Rweyemamu v. Cote — a case I discussed back in 2008 here.

That rule requires a court to consider whether: “1) the employment relationship is religious in nature; and 2) if so, whether adjudicating the particular claims and defenses in the case would require the court to intrude into a religious institution’s exclusive right to decide matters pertaining to doctrine or its internal governance or organization. ”

In this case, the court said that the claims must fail. Victory to the religious employer.

For religious institutions in the state, this case is a must read and will clarify the standards that will (or will not) apply to reviewing employment decisions it makes.   The case — which concerns the dismissal of a religious school principal — will have a more wide-ranging impact than you must first think about.

The case applies to ministerial exception to more than simply discrimination-type claims. Rather, the court applied it equally to common-law tort and contract claims as well.

The case has a lot of interesting tidbits – including some buried in footnotes — and I hope to point out a few of them in an upcoming post. Until then, religious institutions in the state have some new required reading.

Ministerial Exception

Employees who are terminated by their employers are typically eligible for unemployment compensation in Connecticut unless an exception applies.

"Wilful Misconduct" is one of the limited exceptions (in Conn. Gen. Stat. 31-236), but it is not an easy exception to reach. A new decision from the Connecticut Appellate Court (to be officially released on March 22nd) illustrates a case, however, where that standard was met and can provide some guidance to employers as to the types of cases that may qualify as "wilful misconduct".

(The statute uses "wilful" but the common usage today is "willful"; both are interchangeable.)

In Joseph v. Administrator, Unemployment Compensation Act (download here), the employee was discharge for alleged insubordination and for actions arising from two e-mails that he sent.  Specifically, the Plaintiff worked as a senior accountant for 18 months. When a new supervisor came on board, he accused the prior supervisor of fraud.  The new supervisor met with employee in a counseling session a month later, but the employee did not follow her instructions. 

After further counseling, he continued to persist in a manner that did not follow her instructions. Just a few days after that, he refused to attend a department meeting and sent the supervisor an e-mail stating that he thought the company was "trying to set him up". 

After some further counseling and a few weeks, the employee responded to the supervisor stating, ‘‘you do not have the technical accounting skills to be a supervisor and that will be your downfall.’’  The same day that further e-mails were exchanged, the employee was fired. 

At the unemployment compensation office, the appeals referee first found that such conduct was "wilful misconduct" noting that the standard is generally whether the conduct is "spontaneous
or deliberate".  Here, the referee concluded that the e-mail remarks "were offensive. He did not send them during a heated discussion, and no mitigating circumstances excused his conduct. He merely did not want to follow [the supervisor]’s directions. The [plaintiff] directed these e-mails to [her] to personally insult her and undermine her supervisory authority.

The board affirmed the decision adding ‘‘[i]n the case before us, the employer discharged the [plaintiff] immediately after he sent his supervisor two highly insulting and demeaning e-mail messages questioning her accounting and supervisory abilities. . . . [W]e find that the [plaintiff’s] refusal to follow the company’s format and his attempt to undermine his supervisor’s authority by challenging her ability to supervise constituted wilful misconduct.’’  The employee then went to the Connecticut Superior Court, which dismissed the appeal.

On appeal to the Connecticut Appellate Court, the court issued a "per curiam" decision on willful misconduct noting that its review was limited to whether the decision was an abuse of discretion. Here, the court said it was not:

The employer’s] decision to terminate the plaintiff’s employment was precipitated
by the plaintiff’s sending disparaging e-mails to [his supervisor]. The appeals referee concluded, and the board agreed, that the e-mails that the plaintiff sent to [the supervisor] insulted her personally and undermined her supervisory authority, and, therefore, his actions rose to the level of wilful misconduct in the course of employment. There is sufficient evidence in the record to support this finding.

What’s the Takeaway for Employers?

Insubordination is still a very legitimate ground for termination and insulting e-mails to a supervisor is as well. Putting the two together in this instance was enough for the court to say that it rose to the level of willful misconduct. If employers have the same circumstance, don’t assuming that objecting to unemployment compensation is a lost cause. Under the right circumstances, courts will support the employer’s decision.

"The United States is recommending U.S. citizens defer all non-essential travel to Bahrain."

Have you seen this headline? It’s from 20 years ago.

But strangely, that same headline made a reappearance this week. Don’t remember the last time it happened? Well, you should because a major Connecticut Supreme Court case arose out of it. 

And that case may have a significant impact on how Connecticut employers handle employees in the Middle East, and and in Japan.

In Parsons v. United Technologies, a helicopter pilot was allegedly assigned to work to provide training at Bahrain’s main military base, which was going to serve as the main staging area for allied warplanes after Iraq had invaded Kuwait.  

Allegedly, "the plaintiff became aware of a travel advisory issued by the United States Department of State (State Department), which was in force throughout the relevant period and provided in part: ‘Due to the Iraqi military invasion of Kuwait and continuing unstable conditions in the region, the Department of State advises all Americans to defer all non-essential travel to … Bahrain….’"

A few days later, the pilot wrote a memo that said that he refused to travel to Bahrain "because of the perceived threat to his health, safety and welfare, evidenced in part by the State Department travel advisory and in part by news reports about the situation in the Persian Gulf region generally. Within two hours of the plaintiff’s refusal, the defendant terminated the plaintiff’s employment and removed him from the building under security escort."

He sued alleging wrongful discharge.  The Superior Court struck that count of the complaint stating that "the statutes cited by the plaintiff do not express a public policy which would prohibit an employer from requiring an employee to travel to a foreign country where there may be some type of instability or military threat."  The Connecticut Supreme Court overturned that decision.

In doing so, the Court held: 

As a result of our careful review of the language, history, and public policy underlying the statutory provisions cited by the plaintiff in support of his claim, we conclude that this body of law expresses a clear and defined public policy requiring an employer who conducts business in Connecticut to provide a reasonably safe workplace to its employees.

The court continued:

We do not find support for the trial court’s conclusion that, even if the relevant statutes do establish a public policy requiring employers to provide a safe workplace, the policy only applies to a workplace that is: (1) located in Connecticut; and (2) controlled, maintained, or owned by the employer. …

Rather than expressing a safe workplace requirement that is limited to the confines of the state and to a work site exclusively controlled by the employer, these statutes simply and firmly prohibit employers who conduct business in Connecticut from exposing their employees to known hazards while they are performing their duties. A Connecticut employer is not relieved of the obligation to provide a safe workplace to its employees because that employer decides to send an employee to a work site outside Connecticut over which the employer has no control. The only relevant inquiry is whether the employer directed the employee to work in a place or condition that poses an objectively substantial risk of death, disease or serious bodily injury to the employee.

The 1997 decision has a good bit of resonance today and raises substantial questions.  Can an employee refuse to go to Bahrain today because the conditions pose an "objectively substantial risk of death, disease or serious bodily injury" just because of the travel advisory? 

And what about Japan? Can an Connecticut employee refuse an assignment to Japan because the potential for radioactivity poses the same or similar substantial risk? 

These are the questions that Connecticut employers with overseas business are having to face now. They’re not easy questions to answer and depend on the particular facts and circumstances of each situation. 

But regardless, employers faced with such questions should tread carefully before they terminate an employee based on their refusal to go to such a place and should seek legal guidance.

There’s a reason for the expression: Those who cannot remember the past are condemned to repeat it.

Don’t be one of those employers.

This morning, I served as a guest on the terrific "Where We Live" program that airs daily on WNPR.  You can listen to the broadcast here.  It’s difficult to recap a one-hour broadcast in a short blog post so here are a few of my random observations and thoughts after today’s session. 

  • To some callers, the issue of child labor is an educational one — namely kids should be allowed to work so they get can understand the value of money and develop a strong work ethic.  Indeed one caller talked about how he had his kids (including an 8 year old) working on a brownfields site with machetes clearing land.  But lost in the conversation is the difference between giving kids some experience (fishing, for example) and making them do tasks we’d commonly view as work.  Where is the line to be drawn?
  • It remains to be seen whether a "parental exception" to child labor laws is something that will have any political backing in next year’s session. Representative Linda Scofield (D-Simsbury) called in to say that she might try to introduce something again but until more legislators view this as a priority, it’s hard to think that this will gain any traction.
  • Do you legislate to protect the worst-case scenarios even if a few incidents don’t really merit government intervention? So far, Connecticut has taken a strong approach only carving out some limited exceptions. 
  • Are 13 year old babysitters really violating state law?  The state’s website suggests yes, but that would put a lot of babysitters out of business. In the real world, these types of incidents are not policed by the Department of Labor. 
  • What you didn’t hear on the broadcast is that the computer system between the host and producer was down.  This led to the producers writing caller names and towns on paper and taping them to a window (see the picture above). The fact that you couldn’t tell this was going on is a testament to how good the host, John Dankosky, is.
  • Never underestimate the number of people who listen to NPR; I’m truly amazed at how many people tune in for a 9 a.m. show (replaying at 7 p.m.).

So what do you think? Are the state’s child labor laws too strict? Or do they strike the right balance between protecting kids and keeping them safe, and ensuring that they get some experience when they are older?

(Here are some photos taken by Chion Wolf from today’s session. My sincere thanks to her for permission to use these photos. )

Connecticut has a proud history of farms. Many, like Lyman Orchards, have been passed down for many generations. (And if you’ve never visited Lyman Orchards, don’t miss out on their Corn Maze and apple orchards for the next several weeks. I visited it recently and highly recommend stopping by.)

For many of these farms, the growing season is short, which is why some of the wage & hour rules for farms are a bit different.  Indeed, overtime rules in Connecticut specifically do not apply to "agricultural" employees.  (Conn. Gen. Stat. Sec. 31-76i(k) is the specific provision if you’re looking for it.)

But what exactly is "agriculture"?

Turns out, it’s probably much broader than you think.  In fact, you have to look elsewhere in the statutes for that definition.  It is found in the very first statute, Conn. Gen. Stat. 1-1(q), which states, in part: 

[T]he words "agriculture" and "farming" shall include cultivation of the soil, dairying, forestry, raising or harvesting any agricultural or horticultural commodity, including the raising, shearing, feeding, caring for, training and management of livestock, including horses, bees, poultry, fur-bearing animals and wildlife, and the raising or harvesting of oysters, clams, mussels, other molluscan shellfish or fish; the operation, management, conservation, improvement or maintenance of a farm and its buildings, tools and equipment, or salvaging timber or cleared land of brush or other debris left by a storm, as an incident to such farming operations; the production or harvesting of maple syrup or maple sugar, or any agricultural commodity, including lumber, as an incident to ordinary farming operations or the harvesting of mushrooms, the hatching of poultry, or the construction, operation or maintenance of ditches, canals, reservoirs or waterways used exclusively for farming purposes; handling, planting, drying, packing, packaging, processing, freezing, grading, storing or delivering to storage or to market, or to a carrier for transportation to market, or for direct sale any agricultural or horticultural commodity as an incident to ordinary farming operations, or, in the case of fruits and vegetables, as an incident to the preparation of such fruits or vegetables for market or for direct sale.

So, under this broad definition, everyone from horse breeders, to maple sugar houses (you know about places like the Lamothe Sugar House, right?) to those who freeze blueberries from local farms, are exempt from paying workers overtime. 

Thus, whenever agriculture is implicated in your business, be sure to see if the overtime rules actually apply to your workers.