Farm Labor Contractors

Responsibilities of a Grower Using an FLC

Before engaging an FLC, a grower must inspect the FLC's license to see if it reasonably appears on its face to be genuine. Second, the grower must get from the FLC a copy of the license and then keep it for three years after the contract's termination. Third, the grower must verify the FLC's license by contacting an FLC verification unit established by the state Labor Commissioner.

The grower must perform the verification by the close of the third business day after the day on which the grower engaged the FLC. The verification unit must respond to the verification request within 24 hours of receiving it. Meanwhile, the grower may receive services from the FLC and is not liable for violations of the FLC if it turns out the FLC's license is not valid, in which case the grower must cease using the FLC's services upon receiving notice of its invalidity.

The same duties apply to an FLC who engages the services of another FLC. A grower or FLC who fails to take these steps faces both criminal penalties and civil liability. A grower or FLC who violates any of these requirements is guilty of a misdemeanor punishable by a fine of up to $1,000 and/or imprisonment in the county jail for up to six months. Further, a grower or FLC using the services of an unlicensed FLC without taking the required steps faces liability for worker claims directly resulting from a violation of any state law regulating wages, housing, pesticides or transportation committed by the unlicensed FLC.

Independent Contractor Reporting

Any business (service-recipient) that prepares an IRS form 1099-MISC relating to payments made to an independent contractor (service-provider) as compensation for services must file with the Employment Development Department (EDD) using form DE 542, Report of Independent Contractors, information for the contractor and the contractor's services. Service-provider means a natural person (that is, not a corporation, partnership or other entity) who is not an employee of the service-recipient and who received compensation or executes a contract for services performed for that business.

The report must be submitted to the EDD within 20 days of the first payment that is $600 or more in any year to the service-provider and include this information: (1) the service-provider's full name, address, and social security number; (2) the service-recipient's name, business name, address, and telephone number; (3) the service-recipient's federal employer identification number, California state employer account number, social security number, or other identifying number as required in consultation with the Franchise Tax Board; (4) the date the contract is executed, or if no contract, the date payments in the aggregate first equal or exceed $600; and (5) the total dollar amount of the contract, if any, and the contract expiration date.

For each failure to comply with this reporting requirement (unless the failure is due to good cause), the EDD may assess a penalty of $24, or $490 if the failure is due to conspiracy between the service-recipient and service-provider not to supply the required report or to supply a false or incomplete report.

A fact sheet and forms are available from the EDD at http://www.edd.ca.gov/taxrep/txicr.htm

Land-Management Services

In California, agricultural land is often managed by a firm that does not own or lease it. These firms include companies typically referred to as vineyard management or orchard management operators. Because California law defines the term farm labor contractor more broadly and contains narrower exceptions from it than does federal law, the state Division of Labor Standards Enforcement (DLSE) often deems such land-management companies (LMCs) as FLCs under California law, even though they are not so deemed under federal law.

Migrant and Seasonal Agricultural Worker Protection Act (MSPA)

Coverage Under the MSPA

The Migrant and Seasonal Agricultural Worker Protection Act (MSPA) is a far-reaching law, containing severe penalties for non-compliance. Knowing whether you are covered by the MSPA and which of your employees are protected by the law can be difficult to determine. Here is a logic tree to help you analyze your exposure:

Employer Coverage:

A. Is your business an agricultural association? "Agricultural association" means any nonprofit or cooperative association of farmers, growers, or ranchers, incorporated or qualified under applicable State law.

If yes, go to step L (page 53) under "Employee Coverage - Migrant or Seasonal Agricultural Workers."

If no, go to item B.

B. Are you an agricultural employer? "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.

If yes, go to item E.

If no, go to item C.

C. Do you provide custom combine, hay harvesting, sheep shearing or custom poultry operations? "Custom combine, hay harvesting, or sheep shearing operation" means the agricultural services and activities involved in combining grain, harvesting hay and shearing sheep, respectively, that are provided to a farmer on a contract basis by a person who provides the necessary equipment and labor and who specializes in providing those services and activities. A custom poultry operation provides custom poultry harvesting, breeding, debeaking, desexing, or health services, and its are not regularly required to be away from their permanent place of residence other than during their normal working hours.

If yes, stop, you are exempt from the MSPA.

If no, go to item D.

D. Are you a farm labor contractor? "Farm labor contractor" means any person--other than an agricultural employer, an agricultural association, or an employee of an agricultural employer or agricultural association--who, for any money or other valuable consideration paid or promised to be paid, performs any farm labor contracting activity. Farm labor contracting activities include recruiting, soliciting, hiring, employing, furnishing, or transporting any migrant or seasonal agricultural worker.

If yes, go to item K (page 52) under "Farm Labor Contractor Coverage."

If no, go to item E.

E. Are you a family business? A family business is any individual who engages in a farm labor contracting activity on behalf of a farm, processing establishment, seed conditioning establishment, cannery, gin, packing shed, or nursery, that is owned or operated exclusively by such individual or an immediate family member of such individual, if such activities are performed only for such operation and exclusively by such individual or an immediate family member, but without regard to whether such individual has incorporated or otherwise organized for business purposes.

If yes, stop, you are exempt from the MSPA.

If no, go to item F.

F. Are you a small business? A small business is any person, other than a farm labor contractor, for whom the man-days exemption for agricultural labor is applicable. That exemption applies to an agricultural employer who did not, during any calendar quarter of the preceding calendar year, use more 500 man-days of agricultural labor. "Man-day" means any day during which an employee performs agricultural labor for not less than one hour. Agricultural labor performed by an employer's parent, spouse, child, or other member of his immediate family--i.e., step-children, foster children, step-parents, foster parents, brothers, and sisters-is not counted as man-days. The man-days of agricultural labor rendered in a joint employment relationship are counted toward the man-days of such labor of each employer for purposes of the man-day test.

If yes, stop, you are exempt from the MSPA.

If no, go to item G.

G. Are you a common carrier? A "common carrier" by motor vehicle is one that holds itself out to the general public to engage in transportation of passengers for hire, whether over regular or irregular routes, and that holds a valid certificate of authorization for such purposes from an appropriate local, State or Federal agency.

If yes, stop, you are exempt from the MSPA.

If no, go to item H.

H. Are you a labor organization? A labor organization is an organization as defined in section 2(5) of the Labor Management Relations Act (29 U.S.C. 152(5)) or as defined under applicable State labor relations law.

If yes, stop, you are exempt from the MSPA.

If no, go to item L (page 53).

I. Are you a nonprofit charitable organization, or a public or private nonprofit educational institution?

If yes, stop, you are exempt from the MSPA.

If no, go to item J.

J. Are you involved in seed production? Seed production exemption: (1) Any person whose principal occupation or business is not agricultural employment, when supplying full-time students or other individuals whose principal occupation is not agricultural employment to detassel, rogue, or otherwise engage in the production of seed and to engage in related and incidental agricultural employment, unless such full-time students or other individuals are required to be away from their permanent place of residence overnight or there are individuals under eighteen years of age who are providing transportation on behalf of such person.

If yes, stop, you are exempt from the MSPA.

Farm Labor Contractor Coverage:

K. Do you engage in farm labor contractor activities within a 25-mile intrastate radius of your permanent place of residence and for not more than 13 weeks per year? "Twenty-five mile intrastate radius" means that engagement in a farm labor contracting activity may not go beyond a 25-mile intrastate geographical radius. Once this limit is exceeded, the exemption no longer applies, and the person becomes subject to the requirements of the MSPA. A person who uses lines of communication (such as U.S. Postal Service, telephone, or advertising) to recruit, solicit, hire, or furnish workers over a distance greater than 25 miles from his permanent residence or from across a State line for agricultural employment is also engaged in a named activity beyond the specified limit of the exemption and is subject to the MSPA. In the case of a corporation its permanent place of residence for these purposes shall be a single designated location.

"For not more than 13 weeks per year" means that farm labor contracting activities may not be engaged in for more than 13 weeks in a year. The number of weeks of contracting activity during the prior year is also a factor. When the limit of weeks for the exemption is exceeded in a calendar year, the person is subject immediately to the MSPA and is also presumed subject to the MSPA in the next calendar year, unless it can be shown that the tests are met.

If yes, stop, you are exempt from the MSPA.

If no, go to item L below under "Employee Coverage - Migrant or Seasonal Agricultural Workers."

Employee Coverage - Migrant or Seasonal Agricultural Workers:

L. Do you employ any Migrant Agricultural Workers? "Migrant agricultural worker" means an individual who is employed in agricultural employment of a seasonal or other temporary nature, and who is required to be absent overnight from his permanent place of residence. Permanent place of residence, with respect to an individual, means a domicile or permanent home. Permanent place of residence does not include seasonal or temporary housing such as a labor camp. The term permanent place of residence for any nonimmigrant alien is that individual's country of origin. (See "Migrant agricultural worker" exemption below).

If yes, the MSPA covers your migrant agricultural workers. See "Overview of MSPA Requirements" below. Go to item M below.

If no, go to item M below under "Employee Coverage - Migrant or Seasonal Agricultural Workers."

M. Did you employ any Seasonal Agricultural Workers? "Seasonal agricultural worker" means an individual who is employed in agricultural employment of a seasonal or other temporary nature and is not required to be absent overnight from his permanent place of residence (see "seasonal or other temporary basis" below):

(1) When employed on a farm or ranch performing field work (see "Field Work" below) related to planting, cultivating, or harvesting operations; or

(2) When employed in canning, packing, ginning, seed conditioning or related research, or processing operations, and transported, or caused to be transported, to or from the place of employment by means of a day- haul operation.

If yes, the MSPA covers your migrant agricultural workers. See "Overview of MSPA Requirements" below.

If no, your employees are not covered by the MSPA.

Additional Definition of Terms:

"Migrant agricultural worker" exemption:

Migrant agricultural worker does not include:

(1) Any immediate family member of an agricultural employer or a farm labor contractor; or

(2) Any temporary nonimmigrant alien who is authorized to work in agricultural employment in the United States (known as H-2A workers) of the Immigration and Nationality Act.

"Seasonal or other temporary basis" defined:

"On a seasonal or other temporary basis" means:

(1) Labor is performed on a seasonal basis where, ordinarily, the employment pertains to or is of the kind exclusively performed at certain seasons or periods of the year and that, from its nature, may not be continuous or carried on throughout the year. A worker who moves from one seasonal activity to another, while employed in agriculture or performing agricultural labor, is employed on a seasonal basis even though he may continue to be employed during a major portion of the year.

(2) A worker is employed on other temporary basis where he is employed for a limited time only or his performance is contemplated for a particular piece of work, usually of short duration.

"Field Work" defined:

(1) Field work related to planting, cultivating or harvesting operations includes all farming operations on a farm or ranch that are normally required to plant, harvest or produce agricultural or horticultural commodities, including the production of a commodity that normally occurs in the fields of a farm or ranch as opposed to those activities that generally occur in a processing plant or packing shed. A worker engaged in the placing of commodities in a container in the field and on-field loading of trucks and similar transports is included.

(2) Nursery, mushroom and similar workers engaged in activities in connection with planting, cultivating or harvesting operations are intended to be covered. (However, see "Seasonal or other temporary basis does not include" below.)

(3) An individual operating a machine, such as a picker, or tractor is not included when performing such activity.

"Seasonal or other temporary basis" does not include:

(1) Generally, employment that is contemplated to continue indefinitely is not temporary.

(2) On a seasonal or other temporary basis does not include the employment of any foreman or other supervisory employee who is employed by a specific agricultural employer or agricultural association essentially on a year round basis.

(3) On a seasonal or other temporary basis does not include the employment of any worker who is living at his permanent place of residence, when that worker is employed by a specific agricultural employer or agricultural association on essentially a year round basis to perform a variety of tasks for his employer and is not primarily employed to do field work (see "Field Work" above).

"Seasonal agricultural worker" does not include:

(1) Any migrant agricultural worker;

(2) Any immediate family member of an agricultural employer or a farm labor contractor; (Immediate family includes only: (1) A spouse; (2) Children, stepchildren, and foster children; (3) Parents, stepparents, and foster parents; and (4) Brothers and sisters.) or,

(3) Any temporary nonimmigrant alien who is authorized to work in agricultural employment in the United States under the Immigration and Nationality Act.

Overview of MSPA Requirements:

The MSPA provides employment-related protections to migrant and seasonal agricultural workers. Every non-exempt farm labor contractor, agricultural employer, and agricultural association that "employs" workers must:

1. Provide to migrant workers written disclosure of the terms and conditions of employment at the time of recruitment (must provide disclosure to seasonal workers upon request);

2. Post information about worker protections at the worksite;

3. Pay workers the wages owed when due and provide an itemized statement of earnings and deductions;

4. Comply with the terms of any working arrangement made with the workers and,

5. Make and keep for three years payroll records for each employee.

The protections do not apply to individuals who are independent contractors rather than employees.

Joint Employer Relationship: Agricultural workers can have more than one employer at the same time. Each "joint employer" is responsible for all employer obligations under the MSPA, but the MSPA does not require the unnecessary duplication of effort. Thus, employer responsibilities may be carried out by only one of the joint employers. However, the failure to provide the required protections will result in joint liability for all joint employers.

The Migrant and Seasonal Agricultural Worker Protection Act (MSPA) covers the activities of farm labor contractors and agricultural employers who employ migrant or seasonal agricultural workers. The law is enforced by the Wage and Hour Division of the U.S. Department of Labor.

MSPA Requirements for Farm Labor Contractors: The MSPA requires every person doing business as an FLC to:

1. Possess a certificate of registration specifying which farm labor contracting activities the FLC is authorized to perform (e.g., recruiting, transporting, or housing of agricultural workers).

2. Use only persons who possess a valid certificate of registration when hiring employees (i.e., crew bosses) to perform farm labor contracting activities. An FLC is liable for the acts of his employees, no matter whether the employee is registered.

3. Carry the certificate of registration at all times while performing farm labor contracting activities.

4. Notify the DOL within 30 days of each change of permanent place of residence, information on new vehicles used to transport workers, or information on the use of another housing facility for workers.

5. Give to each grower to whom the FLC furnishes workers copies of all payroll records made by the FLC regarding those workers with respect to the work they performed for the grower.

6. Obtain at each place of employment and make available for inspection to every worker the FLC furnishes for employment a written statement of conditions of such employment.

MSPA Requirements for All Entities: Any person or entity covered by the MSPA, including growers who recruit or employ migrant agricultural workers or seasonal agricultural workers, must adhere to these rules:

1. Specified information must be disclosed in writing to recruited migrant agricultural workers and day-haul seasonal agricultural workers when they are recruited. (For seasonal agricultural workers other than day-haul workers, the information must be disclosed in writing only upon the worker's request when an offer of employment is made to the worker.)

Also to be disclosed are the name of the workers' compensation insurance carrier, the name(s) of the policy holder(s), the name and telephone number of each person who must be notified of an injury or death, and the time period within which the notice must be given. This disclosure requirement may be met by giving the worker a photocopy of any workers' compensation insurance notice required by State law. California Labor Code sections 3550 and 3551 require employers to post and to give to each new employee by the end of the first pay period specified workers' compensation information.

2. In a conspicuous place at the place of employment, a poster specifying the rights and protections afforded to workers under the MSPA must be posted.

3. Anyone who provides housing for a migrant agricultural worker must post in a conspicuous place at the site of the housing or present to workers a statement of the terms and conditions, if any, of occupancy of such housing.

4. Specified payroll records must be made and kept for three years and an itemized written statement must be provided to each worker each pay period. A grower who receives from an FLC a copy such payroll records must keep them for three years (see item 5 under "Requirements for Farm Labor Contractors," above).

5. No FLC or grower may knowingly provide false or misleading information to any migrant agricultural worker or seasonal agricultural worker about the terms, conditions or existence of agricultural employment and housing required to be disclosed by the MSPA.

6. All information required to be disclosed in writing must be in English or, as necessary and reasonable, in Spanish, or another language common to migrant agricultural workers or seasonal agricultural workers who are not fluent or literate in English.

7. No person employing migrant agricultural workers or seasonal agricultural workers may:

a. Fail to pay wages when due;

b. Require workers to purchase goods or services solely from the FLC or grower; or

c. Violate the terms of any working agreement made with any migrant agricultural worker or seasonal agricultural worker.

Contracts for Labor or Services

The California Labor Code allows employees to recover actual damages through a civil action and imposes civil penalties against a person or entity that enters into a contract for labor or services with a construction, farm labor, garment, janitorial, or security guard contractor, where the person or entity knows or should know that the contract does not provide funds sufficient to allow the contractor to comply with all applicable laws and regulations governing the labor or services to be provided.

There is a rebuttable presumption affecting the burden of proof that there has been no such violation where the labor contract or material change to the labor contract is in a single document meeting 10 specified requirements. The person or entity hiring the contractor must keep a copy of the written contract for at least four years after its termination.

Penalties: Anyone who violates the MSPA may be fined up to $1,000 or sentenced to prison for a term up to one year, or both. Upon a subsequent conviction the person may be fined up to $10,000 or sentenced to prison for a term up to three years, or both.

Private Right of Action: Any worker aggrieved by a violation of the MSPA or any regulation under it by a farm labor contractor, agricultural employer or any other person may file suit in U.S. District Court. If the court finds that the respondent intentionally violated any provision of the MSPA, the court may award damages up to and including an amount equal to the amount of actual damages, or statutory damages of up to $500 per plaintiff per violation. However, multiple infractions of a single provision of the MSPA constitute only one violation for the purpose of determining the amount of statutory damages due a plaintiff.

If the complaint is certified as a class action, the court may award up to $500 per plaintiff per violation, up to a maximum of $500,000.