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. Applying these laws to agricultural employees is often more complicated than applying the law to other industries because special exemptions and exceptions are provided for their employers. The complicated nature of laws and regulations for agricultural employers requires special vigilance to comply 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. 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 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 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 are available for agricultural employers to 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. Also, OSHA 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, as 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 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 must 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.
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.
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 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.
Pending Federal Labor Legislation
House of Representatives Bill 6637 – 117th Congress DIGNIDAD Act
The House of Representatives introduced the bill in February of 2022. It seeks to amend the Immigration and Nationality Act to make mandatory and permanent requirements relating to the use of an electronic employment verification system, and for other purposes. The bill was referred to the House subcommittee on Oversight, Management, and Accountability on February 9, 2022.
House of Representatives Bill 6250 – 117th Congress Protecting America’s Meatpacking Workers Act of 2021
The House of Representatives introduced the bill in December of 2021. It seeks to address conditions and safety in meat and poultry processing establishments. The bill provides funding for hiring additional OSHA inspectors and expands workplace safety and health requirements that apply to meat and poultry processing establishments. The bill was referred to the subcommittee on Livestock and Foreign Agriculture on January 4, 2022.
House of Representatives Bill 3194 – 117th Congress Fairness for Farm Workers Act
The House of Representatives introduced the bill in May of 2021. 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 was referred to the House Committee on Education and Labor on May 13, 2021.
House of Representatives Bill 1603 – 117th Congress Farm Workforce Modernization Act
The House of Representatives introduced the bill in March of 2021. It seeks to amend the Immigration and Nationality Act to establish a certified agricultural worker status for alien agricultural laborers who meet specific requirements. The bill would also allow for certified agricultural workers to apply for lawful permanent resident status once specific requirements are met, and makes various changes to the H-2A program. The bill passed the House on March 18, 2021 and was assigned to the Senate Committee on the Judiciary on March 22, 2021.
House of Representatives Bill 1571 – Dairy H-2A Eligibility Act
The House of Representatives introduced the bill in March of 2021. It seeks to expand the H-2A nonimmigrant visa category to include dairy workers. The bill was referred to the House Subcommittee on Immigration and Citizenship on May 18, 2021.