Farmers need a plan to help them comply with the myriad number of federal, state and local rules that govern migrant and seasonal workers, says Dan Bremer, a Georgia labor consultant and owner of AgWorks, Inc.
One such plan or outline, prepared by Bremer's firm, is and always will be a “work in progress,” supported by an on-going effort to insure that every aspect of labor law compliance is included, clarified and measured by the plan, he says.
Bremer's plan is divided into the following categories: licenses, recruiting, disclosure, transportation, housing, field sanitation, wages and record keeping. This plan, he says, lists only minimal compliance, and he recommends exploring means of providing workers with a higher level of protections and benefits.
Anyone who supplies workers to a grower must be licensed, says Bremer. The relationship between a grower and the farm labor contractor (FLC) who supplies labor almost always is considered “joint employment” by the U.S. Department of Labor (USDOL), and the grower is jointly liable for any non-compliance by the contractor.
An individual or a business may be the licensed FLC. Anyone — including subcontractors — who works for an FLC who is furnishing, recruiting, employing, soliciting, hiring or transporting workers must be registered with the USDOL as an FLC or farm labor contractor employee (FLCE).
Any FLC or FLCE who drives must be Driving Authorized (DA) and must keep of a copy of his Doctor's Certificate with him while he is operating the vehicle. Another copy should be kept on file at the office. Any FLC/E who transports workers must have all vehicles he or she drives listed on the FLC registration card. In addition, a copy of the vehicle inspection should be kept in the vehicle along with a copy of the current certification of Workers' Compensation and insurance coverage. Depending on the size and type of vehicle, a Commercial Driver's License may be required.
If an FLC provides housing, the particular housing must be listed on the card. A copy of the housing inspection/approval for that location should be posted in the housing and kept on file.
Copies of all documents supplied to the USDOL's FLC Registration Section should be kept on file in your office, and any changes to that information should be reported to the USDOL within 10 days. Fingerprint cards are good for only three years.
If a company or corporation is registered as an FLC, the owner plus any employee who performs any named activity must be registered as an FLCE. Also, an FLCE can work only for the FLC with whom he or she is registered. FLCE registration isn't transferable to other FLC's.
Additionally, if you or your employees — as non-citizens — recruit in a foreign country — there may be visa and licensing requirements governing your business activities.
To verify an FLC, growers should receive a copy of the FLC license, all FLCE licensees who are driving on their land, state FLC/E licenses and any notices to the USDOL of changes made to the current license. This should be furnished to all entities using the services of the FLC.
Any person, whether a U.S. citizen or resident alien, who recruits workers must be registered as an FLC or FLCE, unless the grower is recruiting himself/herself for his or her own operation. Disclosure of wages, working conditions, benefits and terms/conditions must be made at the point of recruitment.
Farm labor contractors and/or third-party recruiters working on behalf of a grower will not allow unreasonable charges to be made as a condition to be recruited for an agricultural job. In addition, all Equal Employment Opportunity guidelines must be followed when recruiting and hiring U.S. workers.
For verification, FLC's will supply an affidavit stating that to the best of that contractor's knowledge, either no workers were charged a fee to be recruited, or the amount of the fee to gather workers, and that the contractor has complied with all EEOC laws in the recruitment of U.S. workers.
Disclosure, says Bremer, must be made at the point of recruitment, and it must be written in the language of the potential worker. Disclosure must include the following: location(s) of employment by county and state, wage rates (minimum, prevailing and/or piece), job duties, period of employment, all costs to the worker, Workers' Compensation information, statement of any strikes or work stoppages and other arrangements that may benefit the employer.
For verification, the contractor should supply a copy of the disclosure form to the grower using the services of the FLC. the contractor also should supply the grower with an affidavit that all workers are given this disclosure in writing at the time of recruitment.
Workers may carpool, according to Bremer. If the grower or contractor provides transportation, the following apply:
The FLC/E's registration card must be Transportation and Driving Authorized, and the driver must have a current, applicable driver's license. A Commercial Driver's License is required if driving a vehicle with a passenger capacity of 15 or more.
The vehicle must be inspected, and a copy of that inspection report must be kept in the vehicle at all times.
Proof of insurance (state minimum with Workers' Compensation and $50,000 property damage) must be in the vehicle at all times. If Workers' Compensation is not carried by the grower or contractor, a minimum of $100,000 per seat liability insurance with a maximum of $5 million is required.
Over-crowding of the vehicle is not required.
A worker must ride in a seat, not in the back of a truck.
In addition to the above, CFR 500.104 and 105 provide detailed rules for transporting workers.
For verification, the FLC will furnish the grower with a copy of the following for each and every vehicle used to transport workers for any entity using the services of the FLC: vehicle inspection report, doctor's certificate for each driver, copy of FLCE card of each driver, copy of driver's license of each driver, and copy of insurance.
Any grower or contractor who provides housing must comply with all OSHA regulations found at Title 29 Subtitle B Chapter XVII Part 1910 Subpart J Sec. 1910.142, which governs temporary labor camps.
Any grower who houses workers will apply for pre-occupancy inspection by the USDOL 45 days prior to the need for workers who will live in the housing. Of, if the FLC provides housing, the FLC will inform the grower that housing is being provided and furnish a copy of the inspection report and a copy of the certificate of occupancy to the grower. Or, the FLC will provide the grower with an affidavit stating that no housing is being provided, and the workers are responsible for their own housing.
Field sanitation rules found at Title 29, Sec. 1928.110 govern the provision of drinking water, hand washing and toilet facilities while workers are in a field. Drinking water must be sufficient for the number of workers, and it must be cool, potable and available from single-use drinking cups or fountains.
Hand-washing facilities must include water, soap and single-use, individual towels. Toilets must be available — one toilet for every 20 workers — and must conform to OSHA specifications. Toilet paper must be available in quantities sufficient to the number of workers who use the facility.
The grower is responsible for field sanitation compliance, and the FLC will give the grower a signed and dated copy of the “Field Sanitation Inspection Report.”
All growers and/or FLC's must pay no less than the Federal Minimum Wage or, if using the H2A system, the USDOL-determined Adverse Effect Wage Rate. Further, Migrant and Seasonal Agricultural Worker Protection Act (MSPA)-covered growers and contractors are obligated to pay the higher of: the wage (hourly and/or piece rate) as disclosed to the worker, the wage (hourly and/or piece rate) as advertised during domestic recruitment, the wage(s) set forth in the contract under which the worker was employed, USDOL-determined prevailing wage/Adverse Effect Wage Rate, or the Federal Minimum Wage.
All growers or contractors must deduct and pay all applicable federal, state and local taxes. Other deductions may be made from employee's wages only if the deductions: were disclosed; do not bring the worker's hourly rate below the federal minimum wage or the prevailing wage, whichever is applicable; and are at actual cost.
If the grower packs any product other than his own — grown on his land — overtime, at time and one-half, must be paid after 40 hours are worked by the employee.
Hours worked/paid include: total of all hours between the start and top time; time spent loading tools, water, equipment, product, etc.; time spent sharpening tools or filling gas tanks/motors; time spent riding and/or waiting if workday has begun; and for drivers, the workday begins when he/she performs the daily vehicle inspection and includes all time spent transporting workers to and from their destinations, as well as time spent waiting.
All growers or FLC's must pay all compensable hours during the week the hours are earned.
If the FLC pays the workers, the FLC will give a copy of the payroll for each worker — each week — to the grower.
The grower and/or contractor must insure that the following posters are displayed in the language and size required by the appropriate regulations: Fair Labor Standards Act (FLSA), Migrant and Seasonal Agricultural Workers Protection Act (MSPA); Medical Family Leave Act (FMLA) if more than 50 employees; Equal Employment Opportunity (EEO); Occupational Safety and Health Act (OSHA); Workers' Compensation information; Environmental Protection Agency-required posters; and state-required posters, such as unemployment insurance.
Actual hours worked must be recorded on a daily basis for each employee, and all new hires of U.S. workers shall be reported in the method required by the state in which the hire occurred.
The following shall be computed and posted daily for each worker and kept available for three years: stop and start times, total hours worked each day, units/pieces produced, and basis of pay. Also, the following shall be recorded weekly for each worker and kept available for three years: total hours/pieces; wage rate(s) and/or piece rates, gross pay, itemized deductions, net pay, employee's name, employee's permanent address, and employee's Social Security number.
Each worker shall be provided a pay stub containing all of the previous items listed and the employer's name, permanent address and EIN/IRS numbers. All FLC's must furnish their grower-clients with all payroll records as required by MSPA regulations.
The FLC will furnish a copy of the “Records Required Verification Report” to the entity.
The information in this plan, says Bremer, is only an attempt to provide guidance, and growers should consult the U.S. Department of Labor for official information. If the agricultural employer participates in the H2A program, other guidelines also will apply. For additional information, contact Bremer at 1-800-280-8063.