Labor Standards in Agriculture

Labor Standards in Agriculture
U.S. Department of Labor Wage & Hour Division Rosalinda Haro Assistant District Director Gutberto Martinez Wage Hour Investigator The Fair Labor Standards Act (the FLSA) is the federal law of broadest application governing minimum wage, overtime pay and child labor. The Wage & Hour Division of the U.S. Department of Labor enforces the FLSA. In addition, the the Wage and Hour Division also enforces: The Family and Medical Leave Act The Migrant and Seasonal Agricultural Worker Protection Act The Employee Polygraph Protection Act The Garnishment Provisions of the Consumer Credit Protection Act The Davis-Bacon and Related Acts The McNamara-O’Hara Service Contract Act Temporary Worker Provisions of the Immigration and Nationality Act Field sanitation provisions of the Occupational Safety and Health Act Additional information on any of these laws is available from the Wage and Hour Division.

Agricultural Employer Compliance Responsibilities
Fair Labor Standards Act Migrant & Seasonal Agricultural Worker Protection Act Field Sanitation H-2A Temporary Agricultural Workers Four major laws governing the employment of workers in agriculture are administered by the Wage and Hour Division: The Fair Labor Standards Act ( FLSA) (29 U.S.C. 201, et. seq.) sets minimum wage, overtime, child labor, and record keeping standards for agricultural workers along with most other workers in the U.S. The Migrant and Seasonal Agricultural Worker Protection Act (MSPA) (29 U.S.C. 1801, et. seq.) requires registration by Farm Labor Contractors and sets rules governing the employment of migrant and seasonal agricultural workers. The Occupational Safety and Health Act (OSHA) (29 CFR ) sets field sanitation standards covering drinking water, hand washing, and toilet facilities in the field. Section 214 of the Immigration and Nationality Act (8 U.S.C. 1101, et. seq.) governs the admission and employment of temporary foreign workers in agriculture under the H-2A program. This presentation covers the FLSA requirements. Wage and Hour Division

Fair Labor Standards Act (FLSA)
The Fair Labor Standards Act (FLSA) sets standards for wages and overtime pay, which affect most private and public employment in the U.S. The FLSA requires employers to pay covered employees who are not otherwise exempt at least the federal minimum wage and overtime of one-and-one-half-times the regular rate of pay. For nonagricultural operations, except for a few exemptions, the FLSA: prohibits the employment of anyone under the age of 14 prohibits the employment of 14- and 15- year-olds in certain occupations restricts the hours that children under age 16 can work and forbids the employment of children under age 18 in certain jobs deemed dangerous. For agricultural operations, the FLSA prohibits the employment of children under age 16 during school hours and in certain jobs deemed too dangerous. Minors (age 12 and 13) may be employed in jobs not declared hazardous and outside of school hours with written parental permission or on the same farm where their parent is employed. Minors under the age of 12 are not permitted to work on farms subject to the minimum wage provisions of FLSA unless employed on a farm owned or operated by their parent where all employees are exempt from the minimum wage under 13(a)(6). Information about the FLSA can be obtained at or from local offices of the Wage and Hour Division.

Agriculture Includes farming in all its branches and among other things includes the cultivation and tillage of the soil, dairying, the production , cultivation, growing, and harvesting of any agricultural or horticultural commodities. 29 CFR : Section 3(f) of the FLSA contains a very comprehensive definition of the term “agriculture.” The definition has two distinct branches. “Primary” includes farming in all its branches. Listed as being included “among other things” in the primary meaning are certain specific farming operations such as cultivation and tillage of the soil, dairying the production, cultivation, growing and harvesting of any agricultural or horticultural commodities and the raising of livestock, bees, fur-bearing animals or poultry. If an employee is employed in any of these activities, he is engaged in agriculture regardless of whether he is employed by a farmer or on a farm. (29 CFR (b)) “Secondary” includes operations other those which fall within the primary meaning of the term. It includes any practices whether or not they are themselves farming practices, which are performed either by a farmer or on a farm as an incident to or in conjunction with such farming operations. (29 CFR (c)) Wage and Hour Division

Coverage “Coverage” refers to whether a business or worker is subject to the FLSA. “Covered” means subject to FLSA. “Not Covered” means not subject to FLSA. Coverage under the FLSA is broadly construed by the courts, while exemptions are narrowly construed. Exemptions are discussed later in the presentation. Wage and Hour Division

FLSA Coverage Two Types of Coverage
Enterprise Coverage: If an enterprise is covered, all employees (unless specifically exempt) of the enterprise are entitled to FLSA protections. Individual Coverage: Even if the enterprise is not covered, individual employees may be covered and entitled to FLSA protections. Enterprise coverage is determined by characteristics of the business. If enterprise coverage applies, then all persons employed in that business are covered by the FLSA. Individual coverage is determined by characteristics of the work performed by the individual worker. If individual coverage applies, then the individual worker is covered by the FLSA even if other employees are not covered. Wage and Hour Division

Enterprise Coverage Enterprise with:
At least two (2) employees handling goods that have moved in interstate commerce At least $500,000 a year in gross receipts If these two conditions are met, then all employees are covered Enterprise coverage is defined at Section 3(s)(1) of the FLSA. Wage and Hour Division

Individual Coverage Workers who are engaged in: Interstate commerce;
Production of goods for commerce; Closely-related process or occupation directly essential to such production Essentially all field workers are individually covered by FLSA Individual coverage is determined by the work performed by the individual employee. Field workers are almost always covered by the FLSA because they are typically engaged in the production of goods for interstate commerce, and the crops will be sold and shipped to other states or countries. Individual coverage is determined on a workweek basis. If the employee performs any work that is individually covered, then all time spent working for the same employer during that workweek is covered. A workweek is 7 consecutive 24 hour periods determined by the employer. Wage and Hour Division

FLSA Minimum Wage Minimum wage of $7.25 per hour must be paid regardless of method of payment: hourly piece rate job rate day rate salary Covered, non-exempt employees must be paid not less than the minimum wage rate, currently $5.15 per hour, for all hours worked. The minimum wage rate must be paid regardless of how the pay is initially calculated. If the initial calculation does not equal the minimum wage rate, the employer must make up the difference. An example follows on the next slide. The minimum wage applies on an individual worker basis. It does not apply on a family or “gang rate” basis. Each individual worker in the family or work group must receive the minimum rate. Wage and Hour Division

FLSA Minimum Wage Example
Regular Rate = wages divided by hours worked Example: 300 boxes per week $1.25 per box 50 hours worked $375  50 hours = $7.50 per hour This example calculates the wage rate for a worker who is paid on a piece rate basis of $1.25 per box harvested: The worker completes 300 boxes in a 50 hour week. The worker’s rate of pay is therefore $7.50 per hour. [$375  50 hours = $7.50 per hour] EXAMPLE OF MAKE UP PAY: If the worker had completed only 200 boxes in a 50 hour week, then the worker’s rate of pay would only be $5.00 per hour [200 boxes x $1.25 per box = $250. $250  50 hours = $5.00 per hour]. The employer would need to pay $ in addition to the piece rate earnings in order to bring the regular rate up to the minimum wage rate. [$250 piece rate earnings + $ addition = $ total. $  50 hours = $7.25 per hour.] Wage and Hour Division

Wage Credits Board and lodging may be considered as wages if:
Credit does not exceed actual cost Credit does not include a profit Good accounting practices are used to determine cost Employer takes no credit when no cost is incurred Employers can take credit towards wages for the costs of board, lodging and other facilities provided to workers, but only if the facilities are furnished primarily for the benefit or convenience of the employee. Credit is not permitted where the primary benefit is to the employer’s business. Credit can never exceed the actual cost to the employer or include a profit to the employer. Wage and Hour Division

FLSA Overtime to be Paid
Time and one-half after forty hours must be paid in these cases: Certain packing/processing plants where goods are processed for more than one farmer Retail operations off the farm, for example nursery outlets Reforestation and Christmas trees Many covered workers in agriculture are exempt from FLSA overtime requirements. However, some workers must be paid time and one-half their regular rate of pay for all hours worked over 40 in a workweek. Covered workers who must be paid time and one-half overtime include: Workers in packing or processing plants where goods are processed for more than one farmer Workers in retail operations unless part of the farm Most logging and reforestation workers (29 USC 213(b)(28)) Most Christmas Tree operations (29 CFR ) A grower who operates a packing shed solely for his / her own crops does not have to pay overtime premium after 40 hours to packing shed employees. Overtime must be paid in any workweek when the grower packs for other growers. Wage and Hour Division

Deductions Not Allowed
Deductions from pay not allowed if: Deduction is for item that is for the employer’s benefit or convenience; and, Deduction reduces the employee’s earnings below minimum wage Deduction is from overtime pay The FLSA prohibits deductions from wages for the cost of any items which are considered primarily for the benefit or convenience of the employer if the deduction would reduce the employee’s earnings below the required minimum wage or overtime compensation. Examples of illegal deductions: tools used in the employee’s work; damages to the employer’s property by the employee; theft of the employer’s property by the worker or other individuals, or safety equipment required by law. When a worker is subject to overtime, deductions are treated differently in overtime workweeks than in non-overtime workweeks. Many states have laws limiting deductions from wages. Nothing in the FLSA overrides or nullifies any higher standard or more stringent provision set by state law. Wage and Hour Division

Exemptions Exemption means that certain requirements do not apply even if the business or worker is covered by the FLSA. The FLSA establishes a number of specific exemptions from its minimum wage, overtime, and child labor provisions. Exemptions are limited to the specific detailed facts and conditions recited in the law itself. An employee who is covered but exempt is NOT subject to the particular standard named in the exemption. Example: hand harvest workers in agriculture are usually covered under the FLSA, but they are exempt from overtime pay requirements. They need not be paid overtime premium after 40 hours. Wage and Hour Division

FLSA Minimum Wage and Overtime Exempt
Wage requirements do not apply when: Fewer than 500 man-days worked on the farm in every calendar quarter last year Worker is either the spouse, parent, child, brother or sister of the owner Local hand harvest worker paid a piece rate who worked fewer than 13 weeks last year FLSA section 13(a)(6) provides a complete exemption from both the minimum wage and overtime provisions of the Act. Man-day means any day during which an employee performs any agricultural labor for at least one hour. Example: 5 workers in the field for one day equals 5 man-days if each worked for at least one hour. Many different combinations will result in 500 man-days. The man-day test looks to the calendar quarters in the previous calendar year. The quarter(s) during the harvest season will usually have the highest man-day counts. The man-day count includes all workers at the site, both those employed by the grower and those employed by Farm Labor Contractors. Additional exemptions: Those principally engaged on the range in the production of livestock Local hand harvest laborers who: commute daily from their permanent residence; are paid on a piece rate basis in traditionally piece-rated occupations, and were engaged in agriculture less than thirteen weeks during the preceding calendar year Minors, 16 years of age or under, who are hand harvesters, paid on a piece rate basis in traditionally piece-rated occupations, employed on the same farm as their parent, and paid the same piece rate as those over 16. Wage and Hour Division

FLSA Overtime Exempt Workers employed solely in agriculture need NOT be paid overtime Examples: Field workers Tractor operators Loaders and drivers Farm office personnel Employees who work exclusively in agriculture for the entire workweek are not due overtime. If an employee performs any nonexempt work in a workweek the exemption is lost for the entire workweek. For example, an employee who works in the field harvesting crops is sent to a packing shed, where crops for more than one farmer are packed (the work in the packing shed is subject to overtime) for one day, all work in that workweek becomes subject to overtime. see also Section 3(f) and 13(b)(12) of the FLSA Wage and Hour Division

FLSA Record Keeping Records for each employee
Name, address and social security number Date of birth for anyone under age 19 Hours worked per day and week Rate of pay Gross wages All deductions FLSA record keeping standards are established at FLSA Section 11 (c) and Regulations 29 CFR Part 516. Wage and Hour Division

FLSA Child Labor Child Labor provisions of the FLSA are discussed in a separate presentation Wage and Hour Division

Compliance Assistance Materials
Fair Labor Standards Act 29 C.F.R. Part 780 Fact Sheet No. 012 Agricultural Employers Under The Fair Labor Standards Act (FLSA) Fact Sheet No. 040 Federal Child Labor Laws in Farm Jobs Wage and Hour Division

Migrant & Seasonal Agricultural Workers Protection Act
Presented by the U.S. Department of Labor Wage & Hour Division This presentation covers the legal obligations under the Migrant and Seasonal Agricultural Workers Protection Act. There are three other primary laws administered by the Wage and Hour Division of the U.S. Department of Labor that affect agricultural employers. Those laws are: The Fair Labor Standards Act Field Sanitation Standards in the Occupational Safety and Health Act H-2A Provisions of the Immigration and Nationality Act Other laws that can apply in agriculture and are administered by the Wage and Hour Division are not covered in this presentation. Laws not covered in this presentation include: The Family and Medical Leave Act The Consumer Credit Protection Act The Employee Polygraph Protection Act Information about all the laws administered by the U.S. Department of Labor can be obtained at

The Migrant & Seasonal Agricultural Workers Protection Act (MSPA)
The Migrant and Seasonal Agricultural Workers Protection Act (MSPA) was enacted in The purpose of this Act is: To address issues that are detrimental to migrant and seasonal agricultural workers; To require Farm Labor Contractors to register; and, To assure necessary protections for migrant and seasonal agricultural workers, agricultural associations and agricultural employers.

MSPA Overview Coverage Joint Employment Registration Disclosure
Records Wages Safe Transportation Safe Housing Exemptions This presentation will cover nine key areas and will define the responsibilities for Farm Labor Contractors, Agricultural Employers and Agricultural Associations. Wage and Hour Division

MSPA Coverage MSPA applies to: Farm Labor Contractors (FLC)
Agricultural Employers (AGER) Agricultural Associations (AGAS) Housing Providers (HP) The Migrant and Seasonal Agricultural Worker Protection Act (MSPA) provides employment-related protections to migrant and seasonal agricultural workers. Every non-exempt farm labor contractor, agricultural employer, and agricultural association who engages in specific named activities must comply. MSPA exemptions will be discussed later in the presentation. A Farm Labor Contractor means any person who performs any farm labor contracting activity for a fee or valuable consideration, but does not include an agricultural employer or agricultural association. An Agricultural Employer means any person who owns or operates a farm, ranch, processing establishment, cannery, gin, packing shed or nursery; or who produces or conditions seed. An Agricultural Association means any non-profit or cooperative association of farmers, growers or ranchers, incorporated or qualified under applicable state law. Housing providers (anyone who owns or controls a labor camp or real property that is used to house migrant agricultural workers) must also comply with MSPA housing requirements. “Agricultural Employment” means employment in any service or activity included within the provisions of section 3(f) of the Fair Labor Standards Act, or section 3121(g) of the Internal Revenue Code of 1954 (26 U.S.C. 3121(g)) and the handling, planting, drying, packing, packaging, processing, freezing, or grading prior to delivery for storage of any agricultural or horticultural commodity in its unmanufactured state. (29 CFR (e)) Wage and Hour Division

MSPA Coverage - AGERs, and AGAS’
AGERs, and AGAS’ are subject to MSPA if they: Furnish Recruit Employ Solicit Hire Transport AGERs and AGAS’ are subject to MSPA if they perform any of the following activities with migrant and/or seasonal agricultural workers: Furnish: supply or provide workers; Recruit: enlist, hire, or engage services of migrant or seasonal agricultural workers; Employ: as defined by the FLSA, including to suffer or permit to work (see 29 CFR 785.6, & ); Solicit: approach with a request or plea regarding employment; Hire: engage the services of a person in return for payment; and, Transport: carry or cause to be carried migrant and seasonal agricultural workers from one place to another via motor vehicle. Any person who transports migrant or seasonal agricultural workers for a fee is subject to the transportation requirements of MSPA even if not the workers’ employer. A good way to remember if anyone is performing these activities is to remember the acronym F-R-E-S-H…T. Wage and Hour Division

MSPA Coverage - FLCs FLCs are subject to MSPA if they, for a fee or other consideration: Furnish Recruit Employ Solicit Hire Transport FLCs are subject to MSPA if they perform any of the following activities with migrant and/or seasonal agricultural workers for a fee or other consideration: Furnish: supply or provide workers; Recruit: contact, refer, entice, enlist, or hire migrant or seasonal agricultural workers; Employ: as defined by the FLSA, including to suffer or permit to work (see 29 CFR 785.6, & ); Solicit: approach with a request or plea regarding employment; Hire: engage the services of a person in return for payment; and, Transport: carry or cause to be carried migrant and seasonal agricultural workers from one place to another via motor vehicle. A good way to remember if anyone is performing these activities is to remember the acronym F-R-E-S-H…T. Wage and Hour Division

MSPA Agricultural Workers
Migrant Agricultural Worker Required to be away overnight from permanent residence Seasonal Agricultural Worker Not required to stay overnight away from permanent residence (local resident). A Migrant Agricultural Worker is employed on a seasonal or temporary basis and is required to be away from his or her permanent place of residence overnight. (29 CFR (p)). A Seasonal Agricultural Worker is employed on a seasonal or temporary basis and is NOT required to stay overnight away from his or her permanent place of residence. Local workers who live in the area year round are considered seasonal workers. (29 CFR (r)). “On a seasonal or other temporary basis” is defined in 29 CFR (s). Wage and Hour Division

Joint Employment Employment of an individual by two or more employers (including AGERs, AGAS, & FLCs) who simultaneously benefit from the work of the employee. All joint employers are responsible for assuring workers are employed in compliance with all applicable laws, including MSPA. Neither the legislation nor the regulations allow the presumption of joint employment. Joint employment must be determined on the particular facts in each situation. Joint employment is important when wage issues are in question. When joint employment exists it is the responsibility of both employers to meet the requirements of all applicable laws and regulations, including payment of all wages due. Wage and Hour Division

Joint Employment Factors
Which parties have the authority to direct, control or supervise the workers or work? Which parties can, directly or indirectly, hire, fire or modify employment conditions? Who determines pay rates and method of payment? There is no set test or checklist for joint employment. All of the factors must be considered before a determination can be made. Under MSPA, the determination typically involves AGERs / AGAS’ and FLCs. Some of the factors are: 1. Whether parties have the authority to direct, control or supervise the workers or work. * Does the AGER / AGAS have the power, alone or through the FLC, to direct, control or supervise the workers or the work? * Does the AGER / AGAS receive status reports on the crop activities? How often? * Does the AGER / AGAS visit the field? * Does the AGER / AGAS intervene in the crop activities? * Does the AGER / AGAS present, require or attend training on the crop activities? * Does the AGER / AGAS set the start and stop times? * Does the grower oversee field and / or crop activities? 2. Whether parties can, directly or indirectly, hire, fire or modify employment conditions. * Does the AGER / AGAS, directly or indirectly, supervise in the field? * How does the AGER / AGAS pay the FLC? * What are the terms of the contract between the AGER / AGAS and the FLC? 3. Who determines pay rates and method of payment? *Does the AGER / AGAS have the power to, directly or indirectly, determine pay rates or the method of payment? * Does the AGER / AGAS set the rate of pay for the FLC’s crew? * Who pays the workers? Wage and Hour Division

How permanent is the relationship and how long has it been in existence? Are the workers doing repetitive or rote tasks taking little skill or training? To what extent are the activities performed by the workers integral to the overall business operation of the AGER? 4. How permanent is the relationship and how long has it been in existence? * Has the FLC been coming back every year? * Does FLC only work for one AGER / AGAS? * Does the AGER / AGAS approve of other jobs before the FLC can work? 5. Are the workers doing repetitive or rote tasks requiring little skill or training (for example: picking tomatoes or onions)? 6. To what extent are the activities performed by the workers integral to the overall business operation of the AGER / AGAS? * Is the task being performed by the crew essential and necessary for the growers overall business operation? For example, an AGER / AGAS cannot raise and sell crops unless the crop is harvested; therefore, workers performing the harvest are essential and necessary to the overall business objective of the AGER / AGAS. On the other hand, hiring a crew to maintain the fences around the field may be important but is not an essential step in taking a crop to market. Wage and Hour Division

Who owns the property where the work is performed? Could FLC make payroll without the AGER? 7. Who owns the property where the work is performed? 8. Could FLC make payroll without the AGER / AGAS? * Is the FLC economically dependent on the AGER / AGAS to meet the payroll? * What party is in financial control of the employees? Wage and Hour Division

Who performs “typical” agricultural employer functions? Preparing payroll Issuing pay checks Paying FICA and other taxes Providing workers compensation Providing housing/transportation Providing tools, equipment for the job 9. Who performs “typical” agricultural employer functions? * Does the AGER / AGAS undertake responsibilities in relation to the worker(s) which are commonly performed by employer, such as preparing and/or making payroll records, preparing and/or making payroll records, preparing and/or issuing pay checks, paying FICA taxes, providing workers’ compensation insurance, providing field sanitation facilities, housing or transportation, or providing tools and equipment or materials required for the job? In summary, the determination of whether or not a joint employment relationship exists can only be made by examining all of the facts in each situation. Wage and Hour Division

Who Must Register Farm Labor Contractors (FLCs) and Farm Labor Contractor Employees (FLCE) if they furnish, recruit, employ, solicit, hire, or transport for a fee or other valuable consideration prior to performing work AGERs, AGAS’ and employees of AGERs and AGAS’ need not register A purpose of MSPA is to insure that all covered FLC’s register with the U.S. Department of Labor prior to performing any of the contracting activities for a fee or other valuable consideration. If an FLC performs any one of the following named activities - furnish, recruit, employ, solicit, hire or transport (F.R.E.S.H...T) - for a fee or other valuable consideration, they must register as an FLC with the U.S. Department of Labor. When an employee of an FLC, often a foreman or supervisor, performs any of the contracting activities (F.R.E.S.H…T) on behalf of the FLC, they must also register with the U.S. Department of Labor. This also includes driving. Farm Labor Contractor Employee (FLCE) “...means a person who performs farm labor contracting activity solely on behalf of a Farm Labor Contractor holding a valid certificate of registration and is not an independent Farm Labor Contractor who would be required to register under the Act (MSPA) in his own right.” (29 CFR (l)) Wage and Hour Division

Registration Process Applicant must submit an Application for Farm Labor Contractor or Farm Labor Contractor Employee Certificate of Registration (Form WH-530). There is no cost to applicant. Additional information is required before authorization will be issued for Driving, Housing, or Transporting. All applicants must submit a form WH-530 to their respective registration office (see next slide). When the applicant requests an application from a registration office, a packet will be sent out which includes the WH-530 and a finger print card to assist the U.S. Department of Labor in conducting a background check on the applicant. If the FLC plans to Transport, Drive or House workers, then additional information must be submitted with the application in order to receive authorization. FLCEs who intend to drive must have proper authorization. The FLC/FLCE must have U.S. Department of Labor authorization BEFORE performing any contracting activities. Wage and Hour Division

Registration Offices Where to apply?
If the applicant’s permanent place of residence is in Alaska, Arkansas, Arizona, American Samoa, California, Colorado, Guam, Hawaii, Idaho, Louisiana, Montana, Nevada, New Mexico, North Dakota, Oregon, South Dakota, Texas, Utah, Washington, or Wyoming, the application should be sent to: U.S. Department of Labor – Wage Hour Division Western Farm Labor Certificate Processing 90 Seventh Street Suite San Francisco, CA 94103 Telephone: (415) Where can you apply? The Philadelphia office takes applicants from Connecticut, Delaware, District of Columbia, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Puerto Rico, Rhode Island, Vermont, Virgin Islands, Virginia and West Virginia and can be reached at (215) The Chicago office takes applications from Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Missouri, Nebraska, Ohio and Wisconsin and can be reached at (312) The Dallas office takes applications from Arkansas, Colorado, Louisiana, Montana, New Mexico, North Dakota, Oklahoma, South Dakota, Texas, Utah and Wyoming and can be reached at (972) The San Francisco office takes applications from Alaska, American Samoa, Arizona, California, Guam, Hawaii, Idaho, Nevada, Oregon and Washington and can be reached at (415) The State of Florida Department of Labor takes applications from Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina and Tennessee and can be reached at (850) In some states the State Employment Services Office can assist FLC’s with their applications. Wage and Hour Division

Registration Offices All other applicants should send the application to: U.S. Department of Labor – Wage Hour Division Southeast Farm Labor Certification Processing P.O. Box 56447 Atlanta, GA Telephone: (404) Wage and Hour Division

Registration Authorizations
HA - Housing Authorized HU - Housing Unauthorized TA - Transportation Authorized TU - Transportation Unauthorized DA - Driving Authorized DU - Driving Unauthorized HA - Housing authorized. The location of the housing that the migrant agricultural workers will be living must be listed on the registration card. If the correct location of the housing is not listed, the housing is not authorized even though HA may be shown on the card. TA - Transportation authorized. The actual vehicles used to transport the agricultural workers must be listed on the registration card. If the correct vehicle is not listed, the transportation is not authorized even though TA may be shown on the card. DA - Driving authorized. The driver of any vehicle used to transport seasonal or migrant agricultural workers must have either an FLC or FLCE registration card with DA. In addition, the driver must have a valid state drivers license and a doctor’s certificate certifying fitness to drive. Wage and Hour Division

Proof of Registration FLC / FLCE must carry the registration card at all times FLC / FLCE must present the card upon request All persons using the services of an FLC must ensure valid registration The FLC must have the registration card with them while performing any of the named activities. They must also present their valid registration card upon request to all persons with whom they deal as an FLC or FLCE. It is the AGER’s obligation to make sure that all FLCs that they are using for any of the named activities are properly registered to perform those activities either by examining the registration card presented by the FLC or by contacting the Central Registry - 1 (866) 4US-WAGE. Insert a registration card graphic Wage and Hour Division

Disclosure Required Every FLC, AGER, and AGAS must disclose information to migrant and seasonal workers. All agricultural employers who are subject to MSPA must disclose the conditions of employment to the workers. See 29 CFR (for migrant agricultural workers) and 29 CFR (for seasonal agricultural workers) Wage and Hour Division

Methods of Disclosure Employment conditions must be disclosed in the language of the worker and must be posted at the site of employment: Migrant workers must receive written disclosure at time of recruitment Seasonal workers must receive verbal disclosure at time of hire and must be provided written disclosure upon request. Disclosure must be made at the time of recruitment or hire, whichever comes first. A migrant worker must be GIVEN a written disclosure of the conditions of employment. A seasonal worker must be TOLD about the conditions of employment. If a seasonal worker requests a written copy of the conditions of employment, then the employer must provided it to them. Disclosure of the conditions of employment must be done in a language that is common to the worker. Wage and Hour Division

Items to be Disclosed Rates of pay and other benefits
Period of employment Place of employment Crops Worker’s compensation Transportation arrangements Housing conditions Rates of pay: All rates must be disclosed. If the rate changes or is going to change, then the employer must disclose this. Period and Place of employment: Due to the seasonal nature of this industry, the period and place of employment may periodically change. Again, the employer must be aware of the changes (short periods, extended periods, intermittent periods) and disclose them accordingly. Crops: All crops and kinds of work activities that the employee will work on must be disclosed. Workers Compensation: If workers’ compensation is provided, the employer must disclose in writing the insurance carrier’s name, address and telephone number or provide a copy of any workers compensation notice required by State law. Transportation: If transportation is provided, the terms, conditions and charges must be disclosed. Housing: If housing will be provided, the location, terms, conditions and charges must be disclosed. All of the conditions surrounding the housing (i.e. cost) must be included in the disclosure. Wage and Hour Division

Payroll Records Information to be kept:
Name, permanent address and social security number Method of payment Number of hours and units (if piece rate) Total pay period earnings Deductions and purpose of sums withheld Net pay AGERs / AGAS’ and FLCs must maintain pay records for 3 years. FLC must give copies of pay records to the AGER / AGAS or other FLC for all work performed for that person. AGER / AGAS or other FLC must keep pay records provided by the FLC for three years. Wage and Hour Division

Wage Statement Every payday, the employer must provide wage statement that includes: Complete employee wage and payroll information Name and address of employer EIN or Social Security number of employer Employers subject to MSPA must provide a wage statement (check stub or receipt) to all employees. The check stub or receipt must have: Complete wage and payroll information for the employee (i.e. rates, hours, pieces, deductions, etc.). Name and address of the employer. The employer identification number (EIN) or Social Security Number (SSN). The SSN is usually applicable to FLCs who have not obtained an EIN. All of these items must be printed on the check stub or receipt when it is given to the employee. Wage and Hour Division

Wage Requirements Employers must:
Pay the rate disclosed, promised or contracted Pay not less than minimum wage Pay at least semi-monthly Deposit and report taxes withheld See also 29 CFR Wage and Hour Division

Deductions from Wages Employers may not take deductions:
Unless they are disclosed in writing to the workers If the charges create a profit for the employer (even if disclosed in writing) For cigarettes or alcohol (unless the employer is licensed to sell these) An employer may not deduct anything from an employee’s wages unless it is disclosed in advance. For example: If an employer wants to deduct from the employee's wages the cost for gas to transport the workers to the field, it must be disclosed at the time the employee is recruited or hired. If the amount to be deducted is disclosed in advance, it would be legal if the amount deducted is the actual cost and does not reduce the employee’s wages below Federal minimum wage. Excessive charges that create a profit for the employer are illegal. Using our previous example: If the transportation charges for the ride to work are excessive and create a profit for the employer, then it is illegal. If the employer charges $5 per day per person for the ride to work and transports 20 workers in the van per day, then this yields $100 per day in revenue for the employer. If the employer is realizing a profit because the actual cost is less than $100 per day, the deduction is illegal. Wage and Hour Division

MSPA Transportation When agricultural workers are transported, MSPA requires: Safe and properly insured vehicles Authorization to transport for FLC Authorization to drive for FLC/FLCE Separate authorization for driving and transporting AGERS / AGAS’ and FLCs have transportation obligations under MSPA. All transporters (both AGERs / AGAS’ and FLCs) must assure that the vehicles used meet Federal safety standards. At the time of registration, the FLC must obtain authorization to transport. FLCs or FLCEs who drive must have prior authorization. Transporting and driving require separate authorizations. Wage and Hour Division

MSPA Transportation Agricultural employers can be jointly responsible for transportation safety when they direct, request or cause the transportation. More than one employer can be responsible for transportation at the same time. If an employer directs, requests or causes the transportation to take place, that employer is responsible for ensuring safety of the vehicles. For example: If an AGER decides that he does not want a lot of vehicles around the crops at the time of harvest, and the AGER requires the contractor to transport the workers in a bus in order to minimize the number of vehicles near his crops, the AGER has directed, requested, or caused transportation and is responsible for meeting MSPA safety standards. The AGER would be held jointly liable for any violations. Wage and Hour Division

Safe Vehicles Required
U.S. Department of Labor standards apply to cars, vans and station wagons making intrastate trips less than 75 miles U.S. Department of Transportation (DOT) standards apply to all other vehicles Written proof of compliance with vehicle safety standards is required If the transportation is by car, van or station wagon and the distance traveled is less than 75 miles, the U.S. Department of Labor standards are used to determine if the vehicle is safe. The U.S. Department of Labor has a list of standards to be used in this type of inspection. For all other forms of transportation, such as busses, the DOT standards must be used for inspecting a vehicle. A mechanic’s report may establish proof of vehicle safety and inspection. Many State Highway Patrol/State Trooper units offer inspection services and will issue a certificate stating that the vehicle has been inspected and is safe. Wage and Hour Division

Driver’s License Required
Every driver must be properly licensed in order to operate the vehicle used for transporting workers. To be properly licensed, the driver must have: A valid, current driver’s license A commercial driver’s license (CDL) if required for the vehicle A doctor’s certificate (WH-515) MSPA requires that ALL drivers have a doctor’s certificate. This means that the driver must be physically fit to drive the vehicle. A doctor must make that determination. The doctor’s certification is valid for 36 months. Wage and Hour Division

Insurance Requirements
All vehicles used for transporting agricultural workers must have proper insurance. The transporter must have either Liability and property insurance $100,000 per seat not to exceed $5,000,000 per vehicle or Worker’s compensation coverage in effect with $50,000 property damage Insurance requirements: The vehicle must be insured at $100,000 per seat as designed by the vehicle manufacturer. This level of insurance is to include both liability and property damage, or Worker’s compensation coverage with $50,000 property damage. In order for this option to be exercised, the worker’s compensation insurance must be supplemented with $50,000 in property damage insurance. The worker’s compensation insurance must cover the activity of transporting agricultural workers. Simply having worker’s compensation insurance is not enough. The insurance carrier must cover the transportation activity. If a worker’s compensation insurance carrier does not cover a certain activity, then the U.S. Department of Labor will consider the vehicle NOT insured. For example: Many transporters are near state lines, and their worker’s compensation insurance covers only activity that occurs within the state where they are located. If the transporter takes employees across state lines there would be no insurance coverage. If an FLC is working in more than one state and uses workers compensation (wc) to meet insurance requirements, he must obtain wc in each state where work is to be performed. Wage and Hour Division

Carpooling The MSPA transportation requirements do not apply to bona fide carpooling arrangements. A bona fide carpooling situation CANNOT exist if the FLC, FLCE, AGER or AGAS directs, requests or participates in the arrangement of the carpool. A car pool is not bona fide if: FLC, AGER, AGAS assists by paying for gas Vehicle owner is paid more than other workers FLC, AGER, or AGAS provides vehicle FLC has arranged for purchase of vehicle Recreational vehicles or buses are used The driver’s right to work is assured by his willingness to drive Wage and Hour Division

Common Problems No fixed seats on vehicles Insufficient insurance
Improper or no license for driver Vehicle safety problems - broken windshield, brake lights not working, bald tires, etc. Overloaded vehicle Overloaded vehicles have been the key factor in recent accidents and over-turned vans. See 29 CFR (b)(3)(vi) Wage and Hour Division

Housing Safety & Health
MSPA housing standards only apply to migrant agricultural workers AGERs, FLCs, and AGAS’ and housing providers are responsible for housing safety and health when they own or control the property The responsibility for housing safety and health compliance lies with the person(s) who owns and/or controls the housing or real property. A housing provider is someone who owns a facility or real property which is used as housing for migrant agricultural workers and is not otherwise subject to MSPA. There is an exclusion from MSPA housing safety and health standards for innkeepers . The innkeeper exclusion applies when housing is provided to migrant agricultural workers on the same basis and terms as provided to the general public. Hotels, motels, and apartment buildings may qualify for the innkeeper exclusion. See also: Section 203(c) of MSPA Wage and Hour Division

Housing Safety and Health
Permit must be obtained and posted prior to occupancy Terms and conditions of the housing must be posted at the housing site Housing must meet safety and health standards Housing must meet all substantive Federal and State safety and health standards. Prior to occupancy of the housing by migrant workers, the housing must be inspected by the appropriate State or local health authority or Federal agency. Each state and county is different when it comes to official inspection. Depending on location, the State, county or city may have housing standards different from the ETA or OSHA standards. Therefore, the owner and/or person who controls the housing needs to be aware of these requirements. A violation of state or local standards is a violation of MSPA housing requirements. The responsibility lies with the owner and/or person who controls the housing to make sure that it has been inspected and has the proper permits before it is occupied. The terms and conditions of the housing must be posted for the occupants to read in a language they understand. Housing inspections are conducted by the the U.S. Department of Labor : The Employment and Training Administration (ETA) standards will be used for housing built prior to April 1980. The Occupational Safety & Health Administration (OSHA) standards will be used for housing built after April 1980. Wage and Hour Division

Shelter Protection from the elements 50 square feet of sleeping space per occupant Beds and storage for each occupant Floors smooth and tight Proper ventilation Windows that open All openings screened Cooking facilities Compliance with all state and local codes Protection from the Elements: Holes in walls, ceilings and windows allow the elements to enter the shelter. During extreme cold or hot spells this a health hazard. Proper Ventilation: Rooms that are not properly ventilated can be a health hazard. For example, airborne diseases and or lethal gases (stove or propane) can create a very dangerous situation when there is inadequate ventilation. Wage and Hour Division

Site Clear of debris & uncontrolled weeds on grounds Adequate drainage Adequate size to prevent overcrowding Water Supply Safe drinking water 35 gallons per person each day Adequate drainage: Standing water outside the facility may be an indication of inadequate drainage. This is a health hazard since it breeds insects and draws vermin. Adequate size: Housing providers must not add more people to the site than it was originally intended and licensed to house. Wage and Hour Division

Toilet Facilities Adequate for the capacity of the camp Access without passing through sleeping rooms Provided for each sex Well ventilated Lighted day and night Adequate supply of toilet paper Maintained in a sanitary condition Provided for each sex: Many housing sites have only one gender occupying the facility. When there are families or facilities with many people, and the site has both male and female occupants, the owner and/or person who controls the housing must insure that there are toilet facilities for both men and women. Toilet Facilities lighted day and night: Often the toilet facilities are not in the building where the employees are housed; therefore, the need for lighting is extremely important and can be a major hazard if not provided. Wage and Hour Division

Laundry, hand washing and bathing One hand washing basin to 6 occupants One shower head to 10 occupants One laundry tub to 30 occupants One slop sink Floors non-slip, proper drainage Hot and cold running water Maintained in sanitary condition These standards are under the OSHA standards. Housing built before April, 1980, is subject to Employment and Training Administration (ETA) standards. ETA standards differ in the following: One hand washing basin to 15 occupants (instead of 6). One shower head to 15 occupants (instead of 10). One laundry tub to 25 occupants (instead of 30) Wage and Hour Division

Lighting At least one ceiling type light per room One electrical outlet per room In accordance with state and local codes Refuse Disposal Fly-tight trash container Garbage container kept clean Emptied twice a week Electrical: Improper and exposed electrical wiring is a frequent cause of violations. The improper use of outlets, exposed wires and multiple extension cords are serious safety hazards. Fly tight trash container: In agricultural areas, housing will often be located close to animals and/or live stock. This environment combined with normal trash generated by the housing site can attract flies and other insects. Keeping the garbage in a closed container that is kept clean and emptied regularly will reduce the health hazards that come from flies and insects. Wage and Hour Division

Kitchen and dining hall Maintained according to state and local codes Adequate to size of camp Central mess facilities must be separate from sleeping quarters Proper refrigeration of food Insect and rodent control Prevent infestation of animals, insects, vermin or pests Kitchen separated from sleeping quarters: The use of gas and/or propane stoves and hot plates is common but can be a safety hazard if not properly used and/or maintained. Some states prohibit the use of propane stove indoors. Insects and Rodents: Overall cleanliness and maintenance of a facility is crucial. The lack of maintenance can allow infestation by unwanted animals, insects or pests. Many animals and pests carry dangerous diseases, and they pose a direct health risk to the occupants of any facility Wage and Hour Division

First Aid Adequate first aid facilities Readily accessible at all times Sewage disposal facilities Connect to public sewers when available Wage and Hour Division

Communicable diseases must be reported to appropriate local health authorities: Report any individual with communicable disease Report any camp outbreak of illness An example of a communicable disease is chicken pox. Wage and Hour Division

MSPA Exemptions Family Business Exemption Small Business Exemption
When the contracting activity is performed solely by the owner or another person who is an immediate family member of the owner Small Business Exemption When the farm uses fewer than 500 man-days in every calendar quarter of the previous year Does NOT apply to FLCs. MSPA does not apply if an exemption applies. Agricultural operations are often family-owned and operated. When all of the activities (furnish, recruit, employ, solicit, hire or transport, F.R.E.S.H…T) are solely performed by the owner or his/her immediate family member, then the family business exemption applies. Utilization of an FLC or non-family member in any named activity whatsoever will automatically disallow the exemption. Small farms are exempt from MSPA. A small farm is defined as one that used fewer than 500 man-days on the farm in every calendar quarter in the previous year. Man-day means any day during which an employee performs agricultural labor for at least one hour. For example: Five workers in the field for one day equals five man-days if they worked at least one hour. 5 workers work on Monday at least 1 hour = 5 man-days 5 workers work Tuesday -Friday at least 1 hour= 20 man-days Total for the week = 25 man-days 13 weeks x 25 man-days=325 man-days for the calendar quarter The test for 500 man-days looks to the calendar quarters in the previous year. The count includes all employees engaged in agricultural labor at the site, including those of any FLC. Wage and Hour Division

MSPA Exemptions 25 mile / 13 weeks Custom Poultry
Any person (FLC or AGER) who engages in contracting activities within a 25 mile intrastate radius of his permanent residence and for not more than 13 weeks per year Custom Poultry Non-migrant poultry workers employed in operations involving catching, breeding, debeaking, desexing or health services The 25 mile and 13 week tests are connected. In order to be exempt, the person who engages in the contracting activities (F.R.E.S.H…T) must do so for no more than 13 weeks AND within a 25 mile intrastate radius from their permanent residence. Example: FLC Joe Doe has only one contract per year. If he contracts with an AGER for the harvest of his farm and it only takes 10 weeks and it is only 20 miles from Joe Doe’s place of residence, then Joe is exempt. Joe is not required to comply with the MSPA requirements. Intrastate trips are also key to this test. If FLC Joe Doe crosses the state line the exemption is not applicable and he must comply with MSPA. This custom poultry exemption only applies to non-migrant workers. If there is even one migrant worker in the entire crew, then the exemption is lost for the employer. Wage and Hour Division

Compliance Assistance Materials
Migrant and Seasonal Agricultural Workers Protection Act 29 C.F.R. Part 500 Fact Sheet No. 035 Joint Employment and Independent Contractors Under the Migrant and Seasonal Agricultural Worker Protection Act Fact Sheet 040 Federal Child Labor Laws in Farm Jobs Wage and Hour Division

ADDITIONAL INFORMATION
Visit the WHD homepage at: Call the WHD toll-free information and helpline at Use the DOL interactive advisor system - ELAWS (Employment Laws Assistance for Workers and Small Businesses) at: Call or visit the nearest Wage and Hour Division Office Wage and Hour Division

Disclaimer This presentation is intended as general information only and does not carry the force of legal opinion. The Department of Labor is providing this information as a public service. This information and related materials are presented to give the public access to information on Department of Labor programs. You should be aware that, while we try to keep the information timely and accurate, there will often be a delay between official publications of the materials and the modification of these pages. Therefore, we make no express or implied guarantees. The Federal Register and the Code of Federal Regulations remain the official source for regulatory information published by the Department of Labor. We will make every effort to keep this information current and to correct errors brought to our attention. Wage and Hour Division

Labor Standards in Agriculture

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Labor Standards in Agriculture

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