With the growing season underway and food insecurity still high, many organizations and farms are looking at gleaning opportunities this summer. We wrote about some of the legal complications of volunteer labor in a previous newsletter article and just having “returned” (not really, everything’s still online!) from the International Gleaning Symposium, we wanted to spend time shedding a bit more light on those complexities.
Spending an afternoon in the field, enjoying camaraderie with other folks while gathering still-good vegetables and fruits for community members with fewer resources to enjoy sounds delightful to many people. Fruits and vegetables that are under- or over-ripe, have cosmetic issues, or are wrong sized for the market are often still welcome by consumers. Sometimes, the buyer has simply exhausted the market for the product or doesn’t care to sell any more at going prices, despite it being perfectly good. What could be wrong with volunteers saving perfectly good produce, legally speaking? The good news is that in its traditional sense, there’s nothing wrong with this picture!
Generally speaking, gleaning organizations are organized as nonprofits dedicated to hunger relief and use volunteers to gather product from farmers. Nonprofits have wide latitude to use volunteers without worry of a minimum wage or other employment law violation. But, this latitude has its limits. The most common stumbling block for well-meaning nonprofits occurs around the issue of payment for the crops. Many food bank type organizations have a budget to secure healthy food options for their clients. With local farms having healthy fruits and vegetables in abundance, it makes great sense to provide the area’s hard-working farmers with compensation. In other instances, the gleaning organization is collecting fruits and vegetables that are perfectly marketable, but the farmer is happy to sell the product to the food bank instead (perhaps at a discount).
Where the farmer is being paid for the product, things get sticky. According to the law, anyone performing the work of a for-profit business must be treated as an employee and employment laws must be followed (unless the situation qualifies for treatment as an independent contractor). From a legal perspective, a farm is in business to harvest and sell its crops. So, anyone who does the labor of harvesting marketable crops for which the farmer is paid is doing the work of the farm. They are likely employees.
Although there is no question that the volunteers are doing the work on behalf of a nonprofit organization, the task being accomplished is the work of the farm. A nonprofit gleaning organization that recruits, places, and manages the “volunteers,” may be unwittingly creating an employment hazard for the farm. If a lawsuit is filed, the farm business is the one on the hook for violation of employment laws, because it was the farm’s work being accomplished.
Of course, the good folks out there volunteering their time for a noble cause are probably not the type to turn around and sue the farm for a minimum wage violation! But at the same time, each farm and each nonprofit organization deserves to understand the state of the law. When people understand legal risks accurately, they have the power to choose the best path forward for themselves.
The laws around volunteers are complex, and Farm Commons is eager to get our comprehensive guide “Farmers’ Legal Guide to Volunteer and Intern Programs” into our community. It gives all the details in terms of how nonprofit and for-profit entities can safety and securely create a volunteer or an intern program for their operation.
For more information about the laws and policies surrounding gleaning, see the Vermont Law School Center for Agriculture and Food Systems’s National Gleaning Project. For more information about gleaning on an international scale, see the Association of Gleaning Organizations. Oh and wait! We have a podcast on gleaning that’s just been released. Listen here.