Transportation

Transportation of Employees

Two federal laws set safety standards for the transportation of agricultural employees: the Interstate Commerce Act (ICA) and the Migrant and Seasonal Agricultural Worker Protection Act (MSPA). The transporting of non-agricultural employees is not covered by either act. However, several regulations of the federal Occupational Safety and Health Administration cover the transportation of employees. As California has an agreement to administer OSHA standards, those provisions are reviewed in this section under the Cal/OSHA standards. The California Vehicle Code also regulates vehicles that transport employees.

Wage-and-hour issues arising from the transportation of employees are reviewed in the Wage and Hour section of this Guide starting on page 25.

Below are the provisions regulating the transportation of employees from a safety standpoint:

Interstate Commerce Act (ICA) Regulations: Section 204(3a) of the ICA regulates the transportation of farm workers by motor vehicle. The ICA is administered by the Federal Motor Carrier Safety Administration, a unit of the U.S. Department of Transportation (DOT).

The ICA exempts from regulation the transportation of farm workers where such transportation is:

-- By a common carrier

-- Within the boundary of one state

-- For any distance of less than 75 miles

-- By automobile or station wagon

-- By a person transporting members of his or her own family

Regulations on the transportation of farm workers are designated as Part 398 of Title 49 of the Code of Federal Regulations. A copy may be obtained from the Federal Motor Carrier Safety Administration, 201 Mission Street, Suite 2100, San Francisco CA 94105 (telephone: 415-744-3088).

Migrant and Seasonal Agricultural Worker Protection Act (MSPA): By regulation, the U.S. Department of Labor (DOL) has adopted the DOT's rules, as noted above, plus additional provisions for other transportation covered by the MSPA.

Where the agricultural employer or FLC "uses or causes to be used" a vehicle for the transportation of a migrant or seasonal agricultural worker (no matter who is operating it), then the MSPA's transportation provisions apply. This can occur where the agricultural employer or FLC (or a supervisor) tells only workers with vehicles who give other workers rides--rather than telling every worker--where to report for work the next day (or later in the same day where workers move from field to field). In that type of situation, the agricultural employer or FLC becomes responsible for ensuring compliance with the MSPA's transportation provisions.

In contrast, agricultural employers and FLCs may, without subjecting themselves to the MSPA's transportation provisions, encourage workers to make carpooling arrangements among themselves. Also, workers may ride with crew leaders as long as the agricultural employer or FLC has no part in the arrangement and the crew leader is simply another employee and not an agent of the employer (as are supervisors and foremen). A carpooling arrangement does not exist, however, where a foreman or supervisor is involved in the transportation arrangement.

FLC Transportation of Workers: The DOL identifies on an FLC's certificate of registration the maximum number of workers the FLC may transport and requires proof of adequate insurance and compliance with vehicle safety standards.

An FLC must identify each vehicle to be used, or caused to be used, for the transportation of any migrant or seasonal agricultural worker during the period for which registration is sought. The FLC must provide written proof that every such vehicle under the FLC's ownership or control complies with MSPA's vehicle safety and insurance requirements.

Here is a summary of the MSPA regulations on the transportation of covered agricultural workers by the type of vehicle used:

Vehicles covered under regulations developed by DOL: These vehicles must comply with the regulations developed by the DOL (see "Vehicle Safety Regulations Developed by DOL" below):

1. Passenger automobiles and station wagons used to transport covered workers.

2. Vehicles other than passenger automobiles or station wagons (e.g., vans or buses) used to transport covered workers less than 75 miles round trip.

3. Pickup trucks used only for transportation when transporting passengers only within the cab.

Exempt vehicles: These vehicles are not subject to the vehicle safety standards under the MSPA:

1. Agricultural machinery and equipment while performing planting, cultivating, or harvesting activities, while being used in the care of livestock, and transportation incidental to these activities.

2. The vehicle of an individual worker when the only other passengers are members of the worker's immediate family.

3. Carpooling arrangements. The DOL says a bona fide carpooling arrangement is one that:

a. is voluntary among the workers and uses one or more of their vehicles;

b. yields for the worker providing the vehicle no more than the cost of its operation;

c. is not specifically directed or requested by an agricultural employer, farm labor contractor (FLC) or agricultural association; and

d. does not include an FLC as a participant.

Rules Which Apply to All Vehicles: These regulations apply to any vehicle when transporting workers.

1. Any vehicle used to transport workers must meet applicable vehicle safety standards prescribed by the Secretary of Labor and by other federal and state agencies.

2. A driver of any vehicle transporting workers must have a valid motor vehicle operator's license.

3. Where an agricultural employer or association specifically directs or requests an FLC to use the FLC's vehicle to do a task, such direction constitutes a joint responsibility with the FLC for assuring that the vehicle meets the MSPA's insurance and safety provisions.

Vehicle Insurance Requirements: Except where an approved liability bond is established or the transportation of workers is fully covered by workers' compensation insurance, an FLC, agricultural employer or agricultural association must purchase and maintain liability insurance coverage for any vehicle used to transport migrant or seasonal agricultural workers. The policy liability limits must be in an amount of at least $100,000 for each available seat, subject to a limit of $5 million.

Insurance against damage to or loss of property of others must also be maintained. The policy must provide at least $50,000 coverage for loss or damage in an accident. An employer of migrant or seasonal agricultural workers that does not obtain liability insurance, but instead relies on its workers' compensation insurance to cover them for bodily injury or death, still must obtain this insurance.

Vehicle Safety Regulations Developed by the DOL: Vehicles covered by regulations developed by the DOL must meet specific safety standards. Generally these standards are similar to the regulations governing the equipment for passenger vehicles under the California Vehicle Code. Here is a summary of the equipment covered by DOL regulations:

1. External lights, brakes, tires, steering, horn, mirrors, windshield/windshield wipers, fuel system, exhaust system, and handles/latches.

2. Ventilation: windows must be operational.

3. Loading of vehicles not to exceed manufacturer's gross weight rating.

4. A seat fastened to the vehicle must be provided for each rider, except where transportation is primarily on private farm roads and the trip is less than 10 miles. One trip may have numerous stops.

5. Passenger compartments must be free of openings, rusted areas or other defects that are likely to result in injury to riders.

A copy of the DOT standards adopted by the DOL may be obtained from district offices of the DOL's Wage and Hour Division (WHD). When requesting them, specify 29 CFR Part 500.105. They are also available online at http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_500/29CFR500.105.htm.

State Statutes and Regulations: California laws regulating the transportation of employees are found mainly in the Vehicle Code (VC) and Cal/OSHA General Industry Safety Orders.

Farm Labor Vehicles: A vehicle designed, used or maintained for the transportation of nine or more farm workers in addition to the driver is a farm labor vehicle. A farm labor vehicle must be inspected annually by the California Highway Patrol (CHP).

A Vehicle Inspection Certificate must be displayed in the farm labor vehicle. Contact the CHP for an inspection.

As required by law, the California Department of Motor Vehicles developed specifications for a display sticker that must be clearly displayed on every farm labor vehicle. The display sticker lists the inspection certification date and the "800" telephone reporting system required by California Vehicle Code Section 2429.

Every farm labor vehicle must be identified as follows:

(1) Markings.

(A) The words "FARM LABOR VEHICLE" shall be displayed on each side of each farm labor vehicle in uppercase lettering on a sharply contrasting background. Letters shall be a minimum of 1.5 inches in height and clearly legible from a distance of 50 feet during daylight hours.

(B) The words "TO REPORT VIOLATIONS" in uppercase characters and the toll-free telephone number "1-800-TELL CHP" must be displayed on the exterior on each side of each farm labor vehicle on a sharply contrasting background. Characters must be a minimum of 1 inch in height and may be displayed on one or two lines.

(2) Interior Notice. A farm labor vehicle notice in English and Spanish, furnished by the CHP, must be displayed in the interior of each farm labor vehicle in a location visible to the passengers. The required notice, Farm Labor Vehicle Notice, CHP 408C (New 12-99), must be completed by an authorized CHP employee to indicate the maximum number of passengers the vehicle may to transport and the vehicle license number. The notice must also advise the reader of the toll-free CHP telephone number where violations relating to the operation of farm labor vehicles may be reported.

For other requirements, see page 82.

Vehicle Inspections: Vehicles, even vehicles other than Farm Labor Vehicles, used by an FLC to transport employees must be inspected. Either DOL Form 514a (for passenger cars or station wagons) or Form WH-514 (for all other vehicles) must be completed for each vehicle.

Vehicle Drivers: Drivers of any vehicle must possess the appropriate licence for the vehicle driven. The driver of a farm labor vehicle must hold a Class B license with a farm labor vehicle driver endorsement. The driver must take and pass a farm labor vehicle course approved by the Department of Education and obtain a medical certification before being licensed as a farm labor vehicle driver. Further, Class B drivers are subject to the Department of Motor Vehicles (DMV) Employer Pull Notice Program. Obtain registration information and forms at any DMV office. Or, write or call:

Department of Motor Vehicles

DL Information Service Unit

PO Box 944231

Sacramento, CA 94244

(916) 657-6346

or obtain information and forms on the Internet by visiting: http://www.dmv.ca.gov/vehindustry/epn/epnformlist.htm

See also California Driver License chart at http://www.dmv.ca.gov/pubs/cdl_htm/lic_chart.htm

Farm Labor Vehicles: A farm labor vehicle (FLV) is any motor vehicle (including a bus) designed, used, or maintained for the transportation of nine or more farm workers, in addition to the driver, to or from a place of employment or employment-related activities. A vehicle carrying only members of the immediate family of the owner or driver, or a vehicle regulated by the state Public Utilities Commission, is not an FLV. (VC § 322.)

An FLV driver must possess a class B driver license and a certificate issued by the Department of Motor Vehicles and a medical certificate issued within the past two years. (VC §§ 12519 & 12804.9(b)(2)(D).) For other requirements, see page 82.

Farm Labor Vehicle Equipment: Here is a brief summary of the equipment that an FLV must have. For more detailed information, see title 13, California Code of Regulations, section 1242 et seq. These regulations may be viewed by accessing the regulation search page on the Web site of the California Office of Administrative Law at http://ccr.oal.ca.gov/Templates/CCR/Sectem.htm. Except where otherwise noted, the section numbers cited below refer to that source.

1. Seats: The driver's seat must be positioned so he sits in a natural position, has a clear view ahead, a clear view of mirrors, and adequate leg room for operation of foot controls. The seat must be adjustable, and the adjustable parts must be secured with a locking device. (§ 1270(a).)

Seating accommodations for each passenger must provide a space with a depth of at least 10 inches, a width of 16 inches, and a height (measured from the floor) of 15-19 inches for the seat and 32 inches for the top of the seatback. Aisles between facing seats must be at least 24 inches wide. Headroom, measured from the ceiling to the top of the cushion at least 7 inches from the interior side wall, must be at least 39 inches (except for seats installed by the original chassis manufacturer). Each seat cushion must be fastened to the seat frame by at least two positive locking devices at the front or rear of the cushion.

The passenger compartment must be enclosed to a height of at least 46 inches or equipped with other equally-effective means to prevent passengers from falling off the vehicle. Seat frames and backs must be rigidly constructed and maintained to ensure structural safety and resistance to displacement of any component in the event of an accident. For the purpose of establishing passenger capacity, weight per person is calculated at 150 pounds. (§ 1270(c).)

All passenger seating positions in an FLV must meet federal motor vehicle safety standards--that is, they must have properly-installed forward-facing seating that meets or exceeds the vehicle manufacturer's specifications. (VC § 31406.)

2. Seatbelts: An FLV must be equipped with a seatbelt assembly complying with federal motor vehicle safety standards at each passenger position. (VC §§ 27315 & 31405.) (VC § 31405é)(2).)

3. Fire Extinguisher: An FLV must carry a fully-charged fire extinguisher, with UL label and at least a 4B:C rating. (§ 1242.)

4. First-Aid Kit: An FLV must carry a 10-unit first-aid kit that is readily visible, accessible and plainly marked. Its contents must be protected from dirt and moisture. (§ 1243.)

5. Spare tires must be securely mounted on an FLV by tire carriers or other means. (§ 1244.)

6. Brakes must comply with the provisions of title 13, California Code of Regulations, section 1245. A bus may have a manual or automatic device for reducing braking effort on the front wheels. The manual means may be used only when operating on roads with adverse conditions, such as wet, snowy, or icy roads. (VC § 26311(b).)

7. Towing equipment must be maintained in good condition. The lower half of a fifth wheel must be securely fastened to the frame with U-bolts to prevent it from shifting on the frame. (§ 1247.)

8. Fuel systems must be free of leaks, securely mounted, and properly supported to minimize vibration, and have other than gravity feed. Containers must be sealed by a cap or plug of non-combustible material. (§ 1253.)

9. Ventilation must be adequate for any weather condition. Ventilator openings must be screened. (§ 1260.)

10. Exhaust systems must minimize entry of gases into passenger compartment. Discharge must be below passenger compartment and beyond the rear or side of the body, but not near any exit, entrance, or window. (§ 1261.)

11. Speedometer and odometer must maintained in good working condition, visible to driver, and illuminated at night. (§ 1262.)

12. Operator identification must be displayed on both sides of the FLV and legible from a distance of 50 feet. (§ 1256(c).)

13. Interior lights must be on buses operated at night. (§ 1263.)

14. Passenger compartment, if separated from driver, must have a means to get driver's attention, such as a buzzer or other signaling device. (§ 1264.)

15. Entrances and exits: Buses manufactured after September 1, 1973, must meet federal manufacturing standards in effect at the time. Buses manufactured before that date must be equipped with at least one emergency door on the left side of vehicle and behind the driver, or an emergency door on the rear center of the bus, or escape windows of the push-out type. See regulation for other requirements, including signage. (§ 1268.)

16. Tool and Equipment Storage: Cutting tools or tools with sharp edges carried in the passenger compartment of a farm labor vehicle must be placed in securely-latched containers that are firmly attached to the vehicle. All other tools, equipment and materials carried in the passenger compartment must be secured to the vehicle and may not obstruct an aisle or emergency exit. (VC § 31407.)

Pickup, Flatbed and Dump Trucks Except for the situations noted below, no person may ride in or on the back of a pickup truck or flatbed motortruck on a highway. Similarly and subject to the same exceptions, no person driving a pickup or flatbed truck on a highway may transport anyone in or on the back of the truck. (VC section 23116.)

Exceptions: A person may ride in or on the back of a pickup or flatbed truck if the person is:

1. Secured by a restraint system that conforms to federal motor vehicle safety standards.

2. Being transported in the back of a truck or flatbed motortruck owned by a farmer or rancher, if that vehicle is used exclusively within the boundaries of lands owned or managed by that farmer or rancher, including the incidental use of that vehicle on not more than one mile of highway between one part of the farm or ranch to another part of that farm or ranch;

3. Being transported in an emergency response situation (i.e., where measures must be taken to prevent injury or death to persons or to prevent, confine or mitigate damage or destruction to property) by or pursuant to the direction or authority of a public agency; or

4. Being transported in a parade that is supervised by a law-enforcement agency, and the speed of the truck while in the parade does not exceed eight miles per hour.

Trucks: Trucks used primarily or regularly for the transportation of workers must have:

1. Seats securely fastened to the vehicle;

2. If a motortruck, a railing or other suitable enclosure on the sides and end of the vehicle extending at least 46 inches above the floor of the vehicle; and

3. Steps, stirrups, or other equivalent devices so placed and arranged that the vehicle may be safely mounted and dismounted. (VC § 34100.)

Carrier or Employer Responsibility: These duties are specified in sections 1229 to 1232 of Title 13 of the California Code of Regulations:

1. The responsible employer or operator must ensure that the driver is properly certificated and capable of safe operation of the vehicle and may not knowingly permit driving in violation of statutes or regulations.

2. The responsible employer or operator must also ensure that the vehicle is properly equipped and is in safe operating condition.

3. A vehicle damaged in an accident shall not be moved until inspected by a qualified person.

4. A vehicle designated as "out-of-service" by a law enforcement official shall not be operated until repaired.

5. Vehicles must be annually inspected by the California Highway Patrol (CHP). A "Vehicle Inspection Approval Certificate" issued by the CHP must be displayed in a visible certificate holder in each vehicle.

6. The employer must arrange for periodic safety checks, adequate preventative maintenance procedures, receipt of driver reports, action to correct deficiencies reported, and records of service provided.

The owner or any other person employing or otherwise directing the driver of any vehicle may not cause the vehicle to be operated upon a highway in any manner contrary to law. (VC § 40001(a).)

Cal/OSHA: Cal/OSHA regulates the transportation of employees when transported exclusively on private property. Under Cal/OSHA General Industry Safety Order sections 3700-3703 (found in title 8, California Code of Regulations), one may drive a vehicle while transporting workers only if he holds a valid operator's license for the appropriate class of vehicle being driven.

The General Industry Safety Orders issued by Cal/OSHA specify the equipment for vehicles used to transport employees. GISO section 3702(q) allows employees to be transported in the back of a flatbed, pickup, or dump truck as long as:

1. The employees sit on the truck bed;

2. Barriers or guardrails around the perimeter of the truck bed prevent employees from falling;

3. Pickup tailgates are closed or an equivalent closure is provided;

4. If a dump truck, the body is secured or the hoist lever is locked, and tailgate is closed; and

5. Employees do not ride on the top of side rails, the top of the cab, running boards, fenders, the hood, or with their legs hanging over the end or sides.

EXCEPTION: One or two employees may be permitted to ride on the bed of a truck that does not comply with 2, 3, and 4 above as long as they stand or sit immediately behind the cab, holding on to suitable grabirons that are rigidly fastened to the truck.

Liabilities Relative to Transportation: Accidents involving employees while commuting between home and the workplace in their own vehicles can sometimes create certain liabilities.

Generally, under California law, employees are entitled to workers' compensation benefits as the exclusive remedy for injuries and illnesses that arise from their employment and are sustained in the course of that employment.

As a general rule, an injury incurred by an employee while going to work from home or while coming home from work is not covered by workers' compensation law. However, exceptions exist to this so-called going-and-coming rule.

One such exception of special note to agricultural employers is where, to get the job done, employees must bring their own vehicles to work or ride in co-workers' vehicles during the workday. This exception applies whether the requirement is directly imposed by the employer or is merely implied due to workplace circumstances.

Another exception to the going-and-coming rule is where an employee is performing a "special mission" directed by the employer on the way to work or while returning home from work. To fall within the exception, the mission or errand must be "substantial," meaning one requiring the employee to commute at a time different from the normal commute time.

An agricultural employer that uses, or causes to be used, a vehicle to transport a migrant or seasonal agricultural worker must ensure that the vehicle conforms to vehicle safety and insurance standards issued under the federal Migrant and Seasonal Agricultural Worker Protection Act (MSPA) and to other applicable laws. An agricultural employer must also ensure that the driver of any such vehicle has a valid license to operate the vehicle.

Tractor-Driver Licensing Requirements: Here is a summary of tractor-driver license requirements:

Transporting Employees: While tractors are not generally used to transport passengers, they may be used to transport employees (passengers) if they have suitable seats. Tractors may be used to transport passengers by pulling a suitable trailer for passengers.

The Migrant and Seasonal Agricultural Worker Protection Act (MSPA) and the California Division of Occupational Safety and Health (Cal/OSHA) regulate employee transportation.

Under the MSPA, a driver of any vehicle transporting workers must have a valid motor vehicle operator's license. This applies to both on- and off-the-road transportation.

Cal/OSHA regulates the transportation of employees when hauled exclusively on private property. Under Cal/OSHA General Industry Safety Order sections 3700-3703, one may drive a vehicle while transporting employees only if the driver holds a valid operator's license for the appropriate class of vehicle being driven.

Operation on Public Highways: The California Vehicle Code regulates vehicle equipment and licensing while used on public roads. Vehicle Code section 36300 provides that any person, while driving or operating an implement of husbandry incidentally operated or moved over a highway, is not required to obtain a driver's license. However, a driver's license is required:

1. While the tractor is being used to draw a farm trailer carrying farm produce between farms or from a farm to a processing or handling point and return.

2. While operating an automatic bale wagon along a highway for a total distance greater than one mile from the point of origin of the trip.

3. While operating a combination of vehicles that includes an implement of husbandry at a speed in excess of 25 miles per hour or towing any implement of husbandry as follows:

A. A spray or fertilizer applicator rig used exclusively for spraying or fertilizing in the conduct of agricultural operations.

B. A trailer or semitrailer which has a maximum transportation capacity in excess of 500 gallons of anhydrous ammonia,

C. A trap wagon.

The California Highway Patrol offers a booklet with more information. Titled Registration Enforcement Manual (publication number HPM 82.5), the publication costs $5.40 plus California sales tax. Call (916) 375-2101.

Transportation Provided by Supervisors: Supervisors who give employees rides to and from work in their own vehicles create several potential problems.

The first problem arises where the supervisor requires employees to ride with him and to pay for the rides. This is a kickback; in Spanish, it is called mordida (the bite). It is a violation of state law to require an employee to pay anything of value to be hired or remain employed. Since the supervisor is the employer's agent, the employer would be liable for the violation.

A second concern would be injuries to third parties while transporting employees. The employer would be liable for an accident caused by the supervisor's negligence.

A third concern is meeting the vehicle safety, insurance requirements and driver qualification requirements the MSPA imposes for employee transportation. Especially where an employer is unaware that a supervisor is transporting employees, the employer can't monitor the supervisor's activities.

Finally, if employees must ride with their supervisor, then the time spent traveling to and from work must be compensated.