Dairy Management & The Law: Protecting against undercover animal rights investigationsPrint
By Attorney David L. Cook
Since 2005, more than two dozen undercover videos have been released in more than 10 states relating to animal agriculture. Last month’s article (“Fighting back against undercover animal rights investigations”) dealt with fighting back once a video has been released. This month’s article deals with methods to protect your operation and prevent undercover videos from being produced in the first place.
For many years private industry has been the subject of undercover operations where the goal is to obtain information for the competitive advantage of another. This practice is generally known as industrial espionage, and these attempts to obtain trade secrets are illegal under both state and federal law.
While animal rights activists generally do not seek trade secrets or information to gain a competitive advantage in an economic sense, make no mistake – the goal of their attempts to infiltrate the agricultural industry is to destroy animal agriculture.
In most states, employment (unless governed by contract or collective bargaining agreement) is considered employment-at-will. As such, an employee may be fired for any reason – good, bad, or indifferent – so long as the reason for the discharge is not discriminatory or illegal in nature. Prohibited bases for discharging an employee may vary from state to state, but generally include race, national origin, age, gender or sexual orientation.
Hiring new employees
In today’s environment, dairy operators are wise to screen employees to identify individuals who are members of or sympathetic to the views of animal rights organizations. It is perfectly appropriate and legal to ask in an employment interview or on an application if a prospective employee is a member of or supports animal rights organizations. Dairy operators should also find out if a prospective employee is living in a permanent housing situation, how long they have been in the area, and if they have previous experience in agriculture. Obtaining a detailed job history will expose an employee without any prior experience in animal agriculture. These may all be warning factors for individuals involved with undercover operations.
In addition, agricultural employers should require all employees to sign a non-disclosure and confidentiality agreement which includes a prohibition against taking or distributing photographs or video of any aspect of their employment. The agreement should include a clause for liquidated damages. Should an employee violate the confidentiality agreement, they may then be subject to possible legal action and liable for damages.
Security and surveillance
Dairy operations should include security and surveillance systems. All employees should be trained regarding acceptable and unacceptable behavior. Employees should also be empowered and expected, as part of their employment obligations, to report any deviation whatsoever from established policies and principals related to animal health and safety. Likewise, employees should be encouraged and expected to report if they witness co-workers making videos or taking pictures. If an employee has been identified who is suspected of breaching health and safety protocols, they must be dealt with immediately.
If an employee is terminated or leaves for any reason, they should be reminded of the confidentiality agreement and asked specifically if they have taken any photos or videos during their employment. If they have taken photos or videos, all copies should be turned over. Be aware that disgruntled employees often seek information to the detriment of their employer, typically in the last month of their work. Be aware of such employees and ensure that they are not at risk of disclosing sensitive information.
Have ‘crisis’ plan in place
Finally, establish a contingency and crisis management plan that would go into effect if an undercover operation were to become known. Even with the best laid plans and prevention, things can go wrong. That is why it is important to develop a strategy in the event that a breach occurs. This plan should consider losses to your competitiveness and your reputation and most importantly, disruption of your markets and customer base. This is necessary, because even following practices which greatly reduce the risk of espionage may not always prevent an undercover operation.
• David L. Cook is an attorney with the law firm of LeClair/Ryan, with offices in seven states and Washington, D.C. The firm has represented large and small dairy operations for nearly 20 years. Contact him via phone 585-270-2114 or email David.Cook@leclairryan.com. Visit www.leclairryan.com.