Growing Magazine - January, 2014

FEATURES

Overview of Ag Labor Laws

By Dorothy Noble


Tomatoes by Fotokostic; onions by Fotosenmeer; farm market by littleny; irrigation by Egon Zitter; peppers in field by Avatar_023; shovel by Konstantin Sutyagin; beans by Danylo Samiylenko; and apples/ladder by V. J. Matthew, all via shutterstock.com.

To keep agricultural operations running, employees must be available, knowledgeable and trained. In addition, employers must comply with an assortment of laws directly affecting or relating to employees, managers and owners.

The major federal laws regulate employment eligibility, health, safety, taxes and wages.

Most of these federal acts are complicated and can be confusing. Within these acts, moreover, the details matter. Some have exemptions or partial exemptions for agriculture that can depend on specific circumstances. The exceptions are not necessarily consistent among regulations. Definitions can also vary according to the particular law.

Individual states have legislation in place that addresses many of these same areas. Where federal and state laws differ, the higher standard applies.

Because a cursory review can be misleading, these regulations demand study. Farmers' groups, land-grant university extension services, trade associations, and state agriculture and labor departments often offer significant assistance. Each associated federal agency or department has a website that explains the requirements of the laws.

Although industry leaders continue to express the pressing need for legal guest workers, immigration reform is not yet a reality. Nevertheless, several federal laws currently regulate migrant and seasonal labor. Other laws regulating U.S. citizens' right to safe working conditions and fair employment often have specific portions relating to agriculture.

Immigration and Nationality Act (INA)

Administered by the U.S. Department of Labor's (DOL) Employment & Training Administration Office of Foreign Labor Certification, the INA covers agricultural employers who seek to hire temporary agricultural workers under H-2A visas. The work must be temporary or seasonal and for a time period of less than one year. The prospective employer must have attempted to find U.S. workers that are able, willing, qualified and available. The employer must state that alien employment will not adversely affect the wages and working conditions of similarly employed U.S. workers. Further, the employer must continue to recruit U.S. workers even after H-2A workers have been hired.

H-2A workers must be paid special rates, which vary by locality, and must be provided housing and transportation to the job site if the employment requires them to be away from their residence overnight. Also, H-2A workers must be guaranteed employment for at least 75 percent of the work hours specified in the contract.



This cranberry harvest in New Jersey requires special apparel, as well as trained workers.
Photo by Keith Weller, court esy of USDA.

Employers must keep detailed records, including pay by crop, hours worked and hours refused, the pay basis, total earnings by period and deductions.

The DOL advises H-2A program users to frequently consult updates posted at http://www.foreignlaborcert.doleta.gov.

Immigration Reform and Control Act (IRCA)

Under the IRCA, employers may hire only people who may work legally in the U.S. This means citizens and nationals of the U.S. and authorized aliens. Employers must verify and determine employee eligibility, and obtain the employee's social security number or the authorization number issued by the Immigration and Naturalization Service.

Within three days of hiring, the employer must complete the Employ-ment Eligibility Verification form (I-9). U.S. Citizenship and Immigration Services (USCIS) revised this form in March 2013. A 70-page handbook, available at http://www.uscis.gov/i-9, provides guidance on the identification process and instructions on completing and retaining the I-9 form. Numerous webinars and videos are also on the site.

The I-9 form need not be submitted to USCIS or to U.S. Immigration and Customs Enforcement, but must be available for inspection by officials from the DOL, Department of Homeland Security, or Department of Justice.

Migrant and Seasonal Agricultural Worker Protection Act (MSPA)

Administered by the Wage and Hour Division (WHD) of the DOL, this act establishes protective standards related to wages, housing, transportation, disclosures and record-keeping.

The law requires farm labor contractors (FLCs) to register with the DOL. An FLC, who is paid, recruits, solicits, hires, employs, furnishes or transports migrant and/or seasonal agricultural workers, or provides housing to such workers. Agricultural employers, associations and their employees are not included in the FLC term.

The MSPA requires workers to be paid when due and provided with earnings statements that explain any deductions. Migrant housing must comply with federal and state safety and health standards. Transportation vehicles must be insured and operated by licensed drivers and meet safety standards. Requirements are detailed in fact sheets 49 and 50, available at http://www.dol.gov/whd/mspa/index.htm.

Some exemptions in the MSPA include small businesses and less than 13 weeks of employment. Visit http://www.dol.gov/whd/regs/statutes/0001.mspa.htm for information on definitions and exceptions.



This skilled employee at Harvest Valley Farms near Pittsburgh knows just how much to trim sweet onion tops for quality sales.
Photos by Bob Ferguson, unless otherwise noted.

Fair Labor Standards Act (FLSA)

The FLSA establishes standards for minimum wages, overtime pay, record-keeping and child labor. It mandates the federal minimum wage, currently $7.25 an hour. However, some states have imposed a higher minimum wage. Information is available at http://www.dol.gov/whd/minwage/america.htm. The FLSA does not require vacation, holiday, severance or sick pay, or premium pay for holiday or weekend work. Rest periods are not required. However, some states impose some of these requirements.

Agricultural employees are exempt from the overtime requirement of the FLSA. Exemptions from the minimum wage include: immediate family members; piece-rate, hand-harvest workers who commute and are employed less than 13 weeks; and an employer using less than 500 man-days in any calendar year (a man-day is defined as any day during which an employee performs agricultural work for at least one hour). Also, youth under 20 years of age may be paid a minimum of $4.25 per hour for the first 90 consecutive days, unless the employee displaces other workers. After 90 days, $7.25 per hour applies.

Local youths 10 and 11 years old may hand-harvest short-season crops outside of school hours for no more than eight weeks between June 1 and October 15 if their employers obtain waivers from the secretary of labor. Youths 12 to 15 years old may work outside school hours in nonhazardous jobs only. Those under 12 must have parental consent and work on farms where no employees are subject to the minimum wage. Those aged 12 and 13 may work on farms that employ their parent(s) or with written parental consent. Those aged 14 and 15 do not need written parental consent. Youths age 16 and over may work in any farm job at any time. Guidance is advised, and many states have youth rules. The state labor offices are listed at http://www.dol.gov/whd/contacts/state_of.htm.

Some hazardous occupations designated by the secretary of labor include: operating a tractor of over 20 PTO hp, or connecting or disconnecting an implement or its parts to or from such a tractor; operating or working with a corn picker, potato digger, power post-hole digger, power post driver, forklift, potato combine, or power-driven circular, band or chain saw; working from a ladder or scaffold at a height of over 20 feet; and handling or applying toxic agricultural chemicals identified by the words "danger," "poison" or "warning," or a skull and crossbones on the label. A more comprehensive list appears on fact sheet 40. Numerous fact sheets are available at http://www.dol.gov/WHD/fact-sheets-index.htm.

These restrictions do not apply to youths employed on farms operated or owned by their parents. There are certain exemptions applicable to 14 and 15-year-olds who are in vocational agricultural programs or have completed 4-H or vocational training.

The Affordable Care Act amended the FLSA to provide break time for nursing mothers to express breast milk in an acceptable location. Fact sheet 73 has details.

Family and Medical Leave Act (FMLA)

The FMLA entitles eligible employees to take unpaid, job-protected leave for specified family and medical reasons. In general, the act provides 12 workweeks of leave in a 12-month period for the birth of a child and its care within one year; the placement with the employee of a child for adoption or foster care and care for the newly placed child within one year; caring for a family member with a serious health condition; and a serious health condition of the employee.

The expansion of this act in March 2013 provided for any qualifying exigency arising out of the fact that the employee's spouse, child or parent is a military member on covered active duty. The act provides 26 workweeks of leave in a 12-month period to care for a covered service member with a serious injury or illness if the eligible employee is one of the relatives named above or next of kin. Covered active duty involves deployment. National Guard members are included. More details can be found at http://www.dol.gov/whd or by calling 866-487-9243. Fact sheet 28M reports the military provisions.

Occupational Safety and Health Act

Under the provisions of this act, an employer must provide a workplace free of recognized hazards. The Occupational Safety and Health Administration (OSHA) has issued several specific regulations for agriculture, as well as standards on agricultural and vehicle hazards. Rollover protective structures and protective enclosures for wheel-type tractors must meet performance tests. The general standards cover hazards such as heat, ladders, equipment and machinery, unsanitary conditions and PTO shafts. These can be reviewed at http://1.usa.gov/1fUcVu4 and http://1.usa.gov/19Ve4AU.

Fact sheet 51 describes field sanitation standards, which include providing potable water, toilets and hand-washing facilities maintained in accordance with public health sanitation practices. These standards apply to agriculture establishments employing 11 or more workers on any one day during the previous year to perform "hand labor" field work.

Since the mid-1970s, the farming appropriations rider has prohibited OSHA-appropriated funds from being used for regulations applying to farm operations with 10 or fewer employees.

Federal Insecticide, Fungicide and Rodenticide Act

Administered by the Environmental Protection Agency (EPA), this act establishes standards for pesticide controls and worker protection standards (WPS). Owners of agricultural establishments and immediate family members are exempt from many of the WPS requirements.

The rules differentiate between workers and handlers. Both workers and handlers must be trained before they begin work and at least once every five years. For their workers, employers must provide pesticide safety, decontamination supplies and emergency assistance. Nursery workers must be kept at least 100 feet away from areas being treated. Workers may not be allowed to enter a treated area or contact anything treated during the restricted entry intervals. The extent of oral warnings and postings depends on the requirements denoted on the pesticide label.

Handlers cannot apply a pesticide that contacts anyone other than trained handlers wearing the required personal protective equipment (PPE). Sight or voice contact must be made at least every two hours with anyone handling pesticides that bear a skull and crossbones on the label. Constant contact must be maintained with a greenhouse handler performing fumigation tasks. Trained, equipped handlers must inspect equipment before each use. PPE must be clean, inspected and repaired as needed, and stored in a pest-free area or discarded if contaminated. Respirators must fit and be replaced when necessary.

A 141-page manual on how to comply is available at http://www.epa.gov/agriculture/htc.html.

Federal Insurance Contributions Act (FICA)

The FICA requires employers to withhold Social Security and Medicare taxes from wages. As of this writing, the rate for Social Security is 6.2 percent for both the employer and the employee, totaling 12.4 percent. The rate for Medicare is 1.45 percent for both the employer and the employee, totaling 2.9 percent. The Social Security tax has a wage base limit of $113,700. An additional Medicare tax is imposed on employee wages over $200,000, but this is not matched by the employer.

H-2A visa workers are not statutory employees, and therefore are not subject to Social Security, Medicare or federal income taxes.

IRS Publication 51, Agricultural Employer's Tax Guide (http://www.irs.gov/publications/p51), presents information for the required withholding of federal income tax. Also, clarification is given for employer and family member status. For example, a crew leader who furnishes and pays employees may be the employer liable for the taxes, and a spouse may or may not be an employee subject to Social Security and Medicare taxes. Employers must use electronic funds transfer for all federal tax deposits; the required timetable appears in the publication.

Federal Unemployment Tax Act (FUTA)

With state unemployment systems, the FUTA provides for unemployment compensation. Information on state unemployment agencies is available at http://www.servicelocator.org/OWSLinks.asp. A comparison of the state laws appears at http://1.usa.gov/1bwETHX.

Only employers pay the FUTA tax. In general, the employer can take a federal tax credit against the amounts paid into the state funds.

The FUTA requirements are complex. For instance, the nature of the agricultural work performed by a crew leader's workers can be a factor in determining whether that leader is considered an employer. Consequently, you should review IRS Publication 51; Publication 15, Employer's Tax Guide; and Publication 15-A, Employer's Supplemental Tax Guide. These can be accessed at http://www.irs.gov, along with tools such as IRS Tax Topics.

The author is a writer/researcher specializing in agriculture.