Labor – An Overview
Background
Many complex state and federal laws have been enacted since the depression era in an effort to protect workers in all industries. These laws regulate many aspects of employment, including wages, working conditions, immigration, and employment opportunities. Applying these laws to agricultural employees is often more complicated than applying the law to other industries due to the unique requirements to qualify as an agricultural laborer and because special exemptions exist for agricultural employers. The complicated nature of laws and regulations for agricultural employers requires special vigilance to comply with the myriad of requirements.
Taxes and Ag Labor
Federal income taxes treat agricultural labor different from other kinds of labor. One of the largest contentions in the agricultural industries is determining when a worker qualifies as an employee or an independent contractor. This distinction can determine whether the laborer or the employer is responsible for paying taxes on the employee’s income for each fiscal year the laborer works with the employer. Misclassifying employees as independent contractors can impose heavy financial penalties for the employer, including up to 100% of the employer’s required withholding and 40% of the employee’s income tax. If the IRS determined that the employer intentionally misclassified their worker, the penalties can be even higher.
Because of the cyclical nature of agricultural work, another concern to agricultural employers is how income taxes for temporary workers are treated. For example, taxes for H2-A foreign temporary laborer’s income are not required to be withheld from the H2-A laborer’s income. However, if both employer and temporary employee agree, they can opt into an income withheld employment structure. If the employer and temporary worker both agree to withhold federal income tax from the laborer, the income taxes are treated differently depending on whether the H2-A laborer is a resident or non-resident temporary alien.
Migrant and Seasonal Agricultural Worker Protection Act
The Migrant and Seasonal Agricultural Worker Protection Act of 1983 (“MSPA”), 29 U.S.C. §§ 1801-1872, was enacted to protect migrant and seasonal workers and is the primary agricultural labor statute. The MSPA establishes, in part, wage and working condition requirements and requires the registration of farm labor contractors. The statute defines farm labor contractors (FLC) as any person other than agricultural employers, their employees, or agricultural associations that recruit, solicit, hire, employ, furnish, or transport any migrant or seasonal agricultural worker for money or other valuable consideration. The only workers covered by MSPA are persons engaged in seasonal or temporary agricultural employment. The Act also distinguishes between workers who are away from home overnight and those that live near the worksite.
While the MSPA does not grant farmworkers the right to join a union, it requires employers to disclose terms of employment, obtain certain licenses through the United States Department of Labor, and comply with federal housing laws. In addition, FLCs are required to register with the United States Department of Labor before they perform any labor contracting activities. If the FLC provides transportation or housing for the employees, verification of vehicle safety and adequate vehicle insurance are required to be reported.
Under the Act, workers must be provided with information about wages, hours, workers’ compensation, working conditions, and housing. This information must be supplied by the labor contractor or the employer when the workers are recruited. The contractor and agricultural employer must keep payroll records and give each employee a written earnings statement.
The statute and regulations also allow the creation of “joint employment.” Joint employment makes employers liable for violations of MSPA even when the employees are hired through an independent farm labor contractor. The creation of joint employment is determined by criteria that evaluate the relationship between the employer and the workers for evidence of the economic realities of the relationship between the farmworker and the grower. If it is determined that the farmworker is economically dependent upon the grower, then joint employment is likely to exist. Factors include the power to hire or fire, wage determination, permanency of the work, the skill required to perform work, and the location of the work.
The Department of Labor enforces the MSPA. MSPA also creates a private action allowing the aggrieved party to file suit in any federal district court with jurisdiction over the parties, regardless of the amount in controversy, citizenship of the parties, or whether the parties have exhausted their administrative remedies.
Fair Labor Standards Act
The Fair Labor Standards Act of 1938 (“FLSA”), 29 U.S.C. §§ 201-219, is a comprehensive federal statute that sets minimum wages, requires overtime wages, restricts child labor, and mandates some record-keeping by employers. The FLSA covers employees of employers engaged in interstate commerce directly or engaged in producing goods and services for interstate commerce. Until 1966, the FLSA excluded all farm workers. Now, agricultural employers are exempt only from certain requirements of the FLSA. Under the FLSA agricultural labor is split into two categories: primary and secondary agriculture. Primary agriculture includes all aspects of what is generally thought of as agriculture: cultivation, harvesting, raising livestock. Secondary agricultural includes activities on a farm to support primary agricultural work like tree removal, dirt work, or irrigation management. Regulations and case law further define agricultural employees as persons employed in farming, by a farmer, or on a farm. In some cases, even administrative positions on farms may qualify as secondary agricultural labor. The exemptions for agricultural employers are different for each broad coverage area of the FLSA.
The FLSA also provides guidelines to determine when a worker is either an employee or an independent contractor for agricultural labor. The distinction determines whether the worker is entitled to certain benefits from the employer and also has different tax implications for the employer and employee. The Department of Labor’s six-part test looks at how involved management is in the success of the work, which party has invested money towards the labor, the length of time for the employment, how much control the employer has on the labor of the employee, how integral the work is to the employer’s overall business, and the skill required to accomplish the labor. An independent contractor might be a custom harvester or a farrier, workers responsible for bringing their own tools to a job while also setting the schedule of the work while an employee might be a live-on-farm laborer or an intern.
Minimum wage and overtime requirements do not apply to employers that did not use more than 500 man-days of agricultural labor during any calendar quarter of the preceding calendar year. A man-day is any day during which an employee performs at least one hour of agricultural labor. Immediate family members of the agricultural employer, certain hand harvesters paid on a piece-rate, and employees primarily engaged in range production of livestock are also not covered by the minimum wage or overtime requirements.
Generally, all employees employed in agriculture are exempt from the overtime wage requirements. This exemption does not cover packers and processors of produce that work with multiple farms’ crops.
Agricultural employers can hire children for agricultural labor below the general legal minimum age applicable to other industries. Children fourteen and older may be hired to work outside of school hours, children twelve to thirteen may be hired with parental permission, and children under twelve may be hired on their parents’ farm or with parental permission on a farm that falls below the 500-man-day employment requirement.
The FLSA provides the minimum standards that apply to employers. However, the statute requires compliance with other laws, which allows for the enforcement of state and local laws that may provide greater protections for agricultural workers than are contained in the FLSA.
Occupational Safety and Health Act
The Occupational Safety and Health Act of 1970 (“OSHA”), 29 U.S.C. §§ 651-678, assures safe and healthy working conditions through the enforcement of workplace standards, provision of research and information in the field of occupational safety and health, and aid to state programs that assure safe and healthful working conditions. Under OSHA, a farmer has a legal responsibility to ensure safe and healthy working conditions for its employees. Generally, employers must furnish employees with employment and workplaces free from recognized hazards that could cause death or serious injury and follow legal standards of occupational safety and health. Employees must follow all rules and regulations that apply to that employee’s conduct.
OSHA covers agriculture in the areas of temporary labor camps, tractor roll-over protection, guarding of farm field equipment, storage of anhydrous ammonia, field sanitation, hazard communication, cadmium usage, logging operations, and grain handling facilities. Two exemptions available for agricultural employers remove them from coverage under OSHA. First, immediate family members of the farm employer are not considered employees and thus are not covered. Second, Congress has repeatedly included language in Department of Labor appropriations bills to exclude agricultural workers in operations that have had ten or fewer employees, excluding family members, within the last twelve months unless a temporary labor camp was maintained during the same period. Additionally, OSHA has been amended to prevent the Occupational Safety and Health Administration from spending any funds to enforce any regulations that would apply to the agriculture operations mentioned above that employ ten or fewer people.
Federal Insecticide, Fungicide, and Rodenticide Act
The Federal Insecticide, Fungicide, and Rodenticide Act of 1947 (“FIFRA”), 7 U.S.C. §§ 136-136y, is a broad statute regulating the use of pesticides through a risk-benefit analysis. It mandates that pesticides be registered and labeled before use. When used according to its label instructions, the pesticide must perform its intended function while not causing unreasonable risk to human health or the environment. The Environmental Protection Agency (“EPA”) regulates the registration and labeling of pesticides.
As part of its regulation, the EPA has issued a Worker Protection Standard (“WPS”) and a Certification of Pesticide Applicators Standard (“CAS”) to protect the safety of workers potentially exposed to pesticides and reduce the number of pesticide injuries and poisonings. The WPS has a broad application and covers most agricultural employers, including owners or managers of operations that produce agricultural plants, operators who hire workers for agricultural plant operations, businesses that apply pesticides for agricultural plant operations, and crop advisor businesses. The WPS requires employers to reduce workers’ exposure to pesticides through work restrictions during application, exclusion from treated areas, pesticide use consistent with the label, and directions and information for supervisors and workers. Retaliation against workers who attempt to comply with the safety requirements is also prohibited.
The CAS requires that workers be certified before they may apply or supervise the application of restricted use pesticides. The EPA identifies restricted use pesticides. State agencies carry out the certification programs, but the programs must meet EPA approval.
The WPS covers all pesticide use unless a specific exception or exemption exists. These include exceptions for certain government pest control, application on livestock or in livestock areas, application on noncommercial plants, and exemptions for farm owners and their families of some entry restrictions, certain notice and information requirements, and emergency assistance provisions.
The states generally enforce the safety requirements and licensing programs if they have met EPA approval. State laws may also provide more stringent protections for workers.
Immigration Reform and Control Act
The Immigration Reform and Control Act of 1986 (“IRCA”), Pub. L. No. 99-603, 100 Stat. 3359 (1986) (amending various sections of 8 U.S.C.), limits unauthorized immigration into the United States and was enacted to exercise more control over the influx of foreign agriculture workers into the country. The statute creates employer sanctions for the employment of unauthorized aliens. All employers are required to verify the employment eligibility status of employees. Employers must examine approved documents to determine if the potential employee is properly identified and authorized to work in the United States. Once verified as eligible, employers may not discriminate against employees based on citizenship or national origin.
Immigration and Nationality Act
The Immigration and Nationality Act, as amended by IRCA, created the current H-2A program, Pub. L. No. 100-525, 8 U.S.C. § 1188 (1988). This program allows agricultural employers with a shortage of qualified domestic workers to import nonimmigrant aliens into the United States. These workers are permitted to remain only temporarily for seasonal agricultural work. Employers must pay H-2A employees special rates that vary by the area they are employed in and provide housing and transportation from housing to the jobsite. H-2A workers must be guaranteed employment contracts for at least 75% of the total hours of the work period specified by the contract. In 2024 the Biden administration enacted the “final rule,” extending certain protections to H-2A workers, which were later challenged in federal courts. The final rule was then blocked in multiple states, which led to challenges where farm workers in different states were subject to different rules. In 2025, the Trump administration’s Department of Labor announced it would suspend enforcement of the “final rule” to end this confusion.
National Labor Relations Act
The National Labor Relations Act of 1935 (“NLRA”), 29 U.S.C. §§ 151-169, protects the rights of workers to participate or not participate in organizations that attempt to collectively bargain for the mutual aid and protection of workers. The impact of this statute on agricultural labor is through a broad exclusion. The definition of covered employees specifically excludes agricultural laborers. There is no federal protection for agricultural laborers to form organizations to promote their interests; however, state laws may confer such a right to farmworkers.
State Workers’ Compensation Laws
Workers’ compensation laws are designed to provide employees with immediate benefits in the case of an accident or work-related illness and to limit employer liability from negligence lawsuits. These laws are unique to each state, and each state’s coverage of agricultural workers may be voluntary or mandatory and may or may not have some exemptions for certain employers.
Other State and Federal Statutes
Many other state and federal labor statutes apply generally to all employers, most of which provide agricultural employers no special exemptions and therefore affect agricultural employers like other employers. Some states have even created their own administrative boards to oversee agricultural employment disputes. The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 requires states to compile directories of new hires to facilitate the collection of delinquent child support.
The Family and Medical Leave Act of 1993 allows employees to take a certain amount of unpaid leave from work for covered family or medical reasons. Generally, employers must continue health insurance coverage during the leave, and upon return the employee must be given the original or an equivalent job. The law only applies to employers with fifty or more employees during twenty or more weeks in the current or previous year.
Both state and federal equal employment opportunity statutes prohibit discrimination by employers against employees for such characteristics as gender, race, color, religion, national origin, age, or disability. The federal statutes generally apply only to larger employers.
The major federal employment tax laws, Federal Insurance Contributions Act, Federal Unemployment Tax Act, and Federal Income Tax Codes generally apply to all employers. These tax laws require employers to withhold wages from employees, match certain funds withheld from employee wages, and forward these withheld and matching funds to the United States Treasury. Certain information collection and notification are also required of employers. Agricultural employers may have special rules regarding their duties under these laws based on the type of agricultural work performed, the amount of wages paid, or the number of employees.
Federal Regulatory Authority
In labor, administrative agencies such as USDA/FDA/EPA have been given authority by Congress to create regulations implementing the requirements of the federal law. In 2024, the Supreme Court of the United States issued two rulings that are expected to have a major impact on how judges decide cases challenging those regulations and that agency authority.
Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244 (2024) overruled the long-standing doctrine of deference established in Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). Chevron deference was a two-step process that clarified how and when federal courts should defer to an agency regulation interpreting a statute. Chevron only applied in situations where a court had determined that the statutory language the agency was interpreting was ambiguous. If it was ambiguous, the court would consider whether the agency’s interpretation of the statutory language was “reasonable”. If it was reasonable, the court was required to defer to the agency’s interpretation. If it was not, the court would overrule the interpretation.
Loper Bright formally overturned Chevron. In a 6-3 decision, the Supreme Court held that “courts may not defer to an agency interpretation of the law simply because a statute is ambiguous[.]” Following the ruling, courts are instead required to exercise independent judgment in determining whether an administrative agency has acted within its statutory authority. Courts may still seek guidance from the agencies involved, but courts will no longer be required to defer to an agency’s interpretation of a statute.
In Corner Post, Inc. v. Bd. of Governors of the Fed. Rsrv. Sys., 144 S. Ct. 2440 (2024), the Supreme Court extended the period of time during which a party may file a lawsuit challenging federal agency actions. According to 28 U.S.C.S. § 2401(a), the six-year statute of limitations began to run when an administrative agency’s action was “final.” In Corner Post, the Supreme Court ruled that an action becomes “final” when a plaintiff suffers an injury, rather than when a “final regulation” is released. This ruling expands the potential for plaintiffs to challenge federal agency rules and regulations that have been final for over six years.
While the full effect of these two rulings remains to be seen, it is highly likely that the agricultural industry will be impacted by the Supreme Court’s decisions. Importantly, the rulings fundamentally change how courts will resolve lawsuits challenging agency regulations for misinterpreting the agency’s statutory authority. Impacts are most likely to be felt in areas of the law, such as labor, dominated by statutes with relatively ambiguous language where Congress has relied on agency regulations to fill in specifics.