Labor – An Overview
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. Application of these laws to agricultural employees is often more complicated because special exemptions and exceptions are provided for their employers. The complicated nature of laws and regulations for agricultural employers requires special vigilance to maintain compliance with the myriad of requirements.
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. Farm labor contractors (FLC) are defined by the statute 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 that are away from home overnight and those that live near the work site.
While the MSPA does not grant farmworker to right to join a union, it does require 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 at the time the workers are recruited. Payroll records must be kept by the contractor and agricultural employer and a written earnings statement must be given to each employee.
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 a set of criteria that evaluate the relationship between the employer and the workers for evidence of the economic realities of the relationship between the farm worker and the grower. If it is determined that the farm worker is economically dependent upon the grower, then joint employment is likely to exist. Factors include such things as 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 MSPA is enforced by the Department of Labor, but it also creates a private right of action. The private action allows an 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 sweeping 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 the production of goods and services for interstate commerce.
Until 1966, the FLSA excluded all farmworkers. Now, agricultural employers are exempt from certain requirements of the FLSA. Under FLSA, agriculture is defined as farming and all its branches, such as raising livestock or poultry, and any practices performed by a farmer or on a farm as an incident to or in conjunction with such farming operations. Regulations and case law further define agricultural employees as persons employed in farming, by a farmer, or on a farm. The exemptions for agricultural employers are different for each broad coverage area of the FLSA.
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 that are 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. Packers and processors of produce that work with multiple farms’ crops are not covered by this exemption.
Agricultural employers are allowed to hire children for agricultural labor below the general legal minimum age applicable to other industries. Outside of school hours, children fourteen and older may be hired, twelve and thirteen-year old children 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 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 heathy 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, and employees must follow all rules and regulations that apply to that employee’s conduct.
Agriculture is covered under the OSHA in 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 are available for agricultural employers to remove them from coverage under the Act. 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 time period. Also, the Act was amended to prevent the Occupational Safety and Health Administration from spending any funds to enforce any regulations that would apply to the agriculture operations that employ ten or fewer people like mentioned above.
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 the pesticides.
As part of its regulation, the EPA has issued a Worker Protection Standard (“WPS”) and a Certification of Pesticide Applicators Standard (“CAS”) in order to protect the safety of workers potentially exposed to pesticides, and reduce the amount 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 operations that produce agricultural plants, businesses that apply pesticides for operations that produce agricultural plants, and crop advisor businesses. The WPS requires employers to reduce workers’ exposure to pesticide 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 must be certified before they may apply or supervise the application of restricted use pesticides. Restricted use pesticides are identified by the EPA. The certification programs are carried out by state agencies, 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 family 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 as part to exercise more control over the influx of foreign agriculture workers in 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.
The Immigration and Nationality Act as amended by IRCA also creates the current H-2A program. This program allows agricultural employers that have a shortage of qualified domestic workers to import nonimmigrant aliens into the United States. These workers are permitted to remain only temporarily for the purpose of seasonal agricultural work.
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. Agricultural laborers are specifically excluded from the definition of covered employees. There is no federal protection for agricultural laborers to form organizations in an effort to promote their interests; however, state laws may confer such a right to farm workers.
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 in a manner similar to other employers.
The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 requires states to compile directories of new hires in order 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 things 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.
This bill was introduced to the House of Representatives in February of 2019. It seeks to amend the Fair Labor Standards Act of 1938 to provide increased labor law protections for agricultural workers. The bill would amend the FLSA and the MSPA by removing the exemptions currently allowed for agricultural employers regarding paying minimum wage and overtime wages.
The bill makes it unlawful for an employer to request more or different documents than are required under federal law, to refuse to honor documents tendered that on their face reasonably appear to be genuine, to refuse to honor documents or work authorization based upon the specific status or term of status that accompanies the authorization to work, or to reinvestigate or reverify an incumbent employee’s authorization to work. If the employee is asked, the bill gives the authority to the employee to file a complaint with the Division of Labor Standards Enforcement.
Currently there is a bill that has been introduced to the Senate in January 2017. The bill amends the immigration and Nationality Act to revise requirements for employers and the government with regard to visas for nonimmigrants rated H-1B which is specialty occupation and the L-1 which is the transfer of the worker to the US from abroad. There is a requirement of an advanced degree from a US institution to be first priority. This is to reduce fraud and abuse in certain visa programs for temporary workers.