Published: by Farm Employers Labor Service
Copyright 2009 Farm Employers Labor Service (FELS_®)

Table of Contents

Farm Labor Contractors

 ·  Responsibilities of a Grower Using a Farm Labor Contractor (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.

Top

 ·  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

Top

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.

Top

 ·  Migrant and Seasonal Agricultural Worker Protection Act (MSPA)

Top

 ·  ·  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:

Top

 ·  ·  ·  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 56) 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 56) 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 56).

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.

Top

 ·  ·  ·  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."

Top

 ·  ·  ·  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.

Top

 ·  ·  ·  Additional Definition of Terms:

Top

 ·  ·  ·  ·  "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.

Top

 ·  ·  ·  ·  "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.

Top

 ·  ·  ·  ·  "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.

Top

 ·  ·  ·  ·  "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).

Top

 ·  ·  ·  ·  "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.

Top

 ·  ·  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.

Top

 ·  ·  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.

Top

 ·  ·  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.

Top

 ·  ·  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.

Top

 ·  ·  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.

Top

 ·  ·  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.

Top

 ·  Specific Requirements for Farm Labor Contractors

Top

 ·  ·  Checklist of Farm Labor Contractor (FLC) Requirements

Here is a quick overview of the requirements for an FLC. A thorough explanation of each of these requirements follows this checklist.

* Register with state Employment Development Department and obtain an Employer Number

* Register with state Franchise Tax Board and obtain a Taxpayer Identification Number

* Register with federal Internal Revenue Service and obtain a Taxpayer Identification Number

* Obtain workers' compensation insurance

* Obtain Farm Labor Vehicle Certificate for vehicles used to transport nine or more employees

* Have each vehicle transporting employees inspected and a U.S. Department of Labor (DOL)

Form WH-514 or Form WH-514a completed for each vehicle.

* Each driver of a Farm Labor Vehicle must have a Class B license and a Farm Labor Vehicle endorsement

* Each driver of any vehicle must have a medical certification

* Obtain necessary bonding

* Obtain necessary bodily injury and property damage insurance if transporting agricultural workers

* Obtain three sets of fingerprints for each person applying for a federal registration (one set required) and state license (two sets required)

* Register as an FLC with the U.S. Department of Labor

* Apply for a state FLC license

* Register with the county Agricultural Commissioner in each county in which you will be doing business as an FLC

* Provide to each crew leader, foreman, and supervisor information and training on applicable laws and regulations governing worker safety, pesticide safety, and terms and conditions of agricultural employment

Top

 ·  ·  Employer Tax Registration Requirements

Top

 ·  ·  ·  California Employer Identification Number: An employer who becomes subject to California's employment-tax laws must register with the Employment Development Department (EDD) (within 15 days after paying wages) to obtain an identification number, the state equivalent of a federal identification number. This number can be obtained by filing with EDD a DE-1 AG, Registration Form for Agricultural Employers. Along with the identification number, the employer also receives information about all state-required employment taxes and reporting requirements.

Request form DE 1 AG from your local EDD office,

or write: EDD

805 R Street

Sacramento, CA 95814-6497

or call: (888) 745-3886 or (916) 322-2835

or fax: (916) 928-5910

or visit on the Internet: http://www.edd.ca.gov/Payroll_Taxes/Forms_and_Publications.htm
Submit to EDD your employment taxes (i.e., Unemployment Tax and State Disability Tax) using the number assigned to you by EDD.

More information can be obtained by writing to Employment Development Department, Box 826880, Sacramento, CA 94280-0001, or by contacting the local Employment Tax District Office listed in the State Government section of the white pages of the telephone directory under "Employment Development Department." For federal identification number information, contact the Internal Revenue Service.

Top

 ·  ·  California Franchise Tax Board: Register with California Franchise Tax Board for the withholding of personal income taxes. Write or call for information and registration forms to:

Franchise Tax Board

1912 I Street

Sacramento, CA 95814

1-(800) 338-0505 (forms)

1-(800) 852-5711 (information)

Obtain forms on the Internet at:

http://www.ftb.ca.gov/forms/index.shtml

 ·  ·  ·  Internal Revenue Service (IRS): Register with Internal Revenue Service (IRS) and get a federal Employer Identification Number. Use Form SS-4 for this purpose. Obtain this form from any IRS walk-in office, call 1-(800) 829-3676, or download the form from the Internet at: http://www.irs.gov/pub/irs-pdf/fss4.pdf. Submit to IRS federal employment taxes (i.e., Social Security Taxes and Personal Income Taxes) using the Taxpayer Identification Number assigned to you by IRS.

Top

 ·  ·  Insurance and Bonding Requirements

Top

 ·  ·  ·  Workers' Compensation Insurance Coverage: All employers must have workers' compensation insurance or receive state approval to self-insure for the required benefits. Employers without workers' compensation insurance or authorization to be self-insured face significant criminal and civil penalties. Many insurance companies offer policies providing workers' compensation benefits.

For information on self-insured plans, write: Manager, Self-Insurance Plans, 2848 Arden Way, Suite 105, Sacramento, CA 95825.

Top

 ·  ·  ·  Vehicle Liability Insurance: Vehicle liability insurance is required for each vehicle used to transport agricultural employees. This includes even those vehicles not owned by you but that are nonetheless used to transport your employees.

If employees are transported in a vehicle only in the course of employment, then both state and federal employment laws consider workers' compensation insurance as adequate coverage for bodily injury.

California Vehicle Code section 16451, however, requires all vehicles to carry basic bodily injury and property damage insurance. The minimum coverage requirement for vehicles carrying 15 or fewer passengers is $15,000/$30,000 for bodily injury. For more than 15 passengers, Vehicle Code section 16500 requires a minimum coverage of $30,000/$60,000 for bodily injury.

If employees are ever transported in a situation where they would not be covered by workers' compensation insurance, then bodily injury coverage of at least $100,000 per seat, up to a maximum of $5 million per vehicle, must be maintained under the federal Migrant and Seasonal Agricultural Worker Protection Act. Further, that law requires all vehicles used in covered transportation to carry at least $50,000 in property damage coverage.

Top

 ·  ·  ·  Farm Labor Contractor Bonding: Bond amounts required to obtain an FLC license are:

$25,000 for annual payrolls of up to $500,000

$50,000 for annual payrolls between $500,000 and $2 million

$75,000 for annual payrolls of more than $2 million

Top

 ·  ·  Farm Labor Contractor Registration and License Requirements

Top

 ·  ·  ·  General: Federal registration and a state license are required before one may operate as a farm labor contractor (FLC). The United States Department of Labor, Wage and Hour Division (WHD), registers FLCs. The California Department of Industrial Relations, Division of Labor Standards Enforcement (DLSE), licenses FLCs, including day haulers (i.e., persons transporting farm workers for a fee).

Top

 ·  ·  ·  Federal Registration: Every FLC doing business in California, and every person performing contracting duties for an FLC, must be registered with the WHD. Registration applications are available at the local office of the U.S. Department of Labor and are usually available at local offices of the California Employment Development Department.

There is no charge for registration, nor is there an exam to take. Because proof of federal registration must be shown when you apply for your state FLC license, register with the U.S. Department of Labor before applying for your state FLC license. To register, complete FLC Application (DOL Form WH 510).

Here are some tips on registering with the DOL as an FLC:

1. In block 1, do not check "Consolidated Federal-State" boxes, because you must complete the state application as a separate process.

2. Use the same business and personal names in the registration form as you will use in your state license application. The state will verify your federal registration and will reject your state application if the names do not match. In block 3, enter your business name. In block 4, enter the name of the owner or a corporate officer or, in the case of a partnership, one of the partners. Do not enter a P.O. Box number; use only a street address.

3. If you answer "Yes" to question 9 (transportation), 10 (driving) or 11 (housing), you must submit the appropriate attachments such as Farm Labor Vehicle Certificate, Doctor's Certificate, or housing permits.

Each person, including a leased or bus-company driver, who transports employees for you must complete a separate registration Form WH-512 and submit it to the Department of Labor. Each driver must show his or her state driver's license number and send a medical certificate with the registration form.

If you will be transporting employees, and the transportation is not covered by your workers' compensation insurance, you must secure either a surety bond or bodily injury insurance in an amount of at least $100,000 per seat in the vehicle, up to $5 million per vehicle. Further, in all cases each vehicle must be covered by at least $50,000 of property damage insurance or its equivalent.

4. If you answered "Yes" to question 11, you must also complete the form "Statement of Intent to Comply With Housing Requirements of the Migrant and Seasonal Agricultural Worker Protection Act" on page 3.

5. Submit with your FLC Application one set of fingerprints (DOL Form FD-258.)

6. Send all of the above to:

U.S. Department of Labor

Wage and Hour Division

71 Stevenson Street, Room 905

San Francisco, CA 94105

Top

 ·  ·  ·  State Farm Labor Contractor License Requirements:

Top

 ·  ·  ·  ·  State License: Every FLC doing business in California must be licensed by the DLSE. Information on California's FLC licensing requirements can be obtained by writing to: DLSE, Licensing Section, P.O. Box 420603, San Francisco, CA 94142.

Top

 ·  ·  ·  ·  Responsibilities of a Grower or FLC 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.

Top

 ·  ·  ·  ·  Application: To become licensed by the state as an FLC, you must complete license application Form DLSE 401. The form is available at:

Department of Industrial Relations

Division of Labor Standards Enforcement - Licensing

455 Golden Gate Avenue, 8th Floor East

San Francisco, CA 94102

Phone: (415) 703-4854

or

770 East Shaw Avenue, Suite 312

Fresno, CA 93710

Phone: (559) 248-1893

The cost of the application process is:

New application filing fee $ 10

(Filing fee is not required when an application is timely filed)

Examination fee $100

Annual license fee (expires on the day before the birth date of owner

or the day before the annual anniversary of the corporation) $500

($50 of the annual fee is deposited into Farmworker Remedial Account.)

(Fees are not prorated; full amount must be paid at the time of application.)

Answer all questions, and date and sign the application. An incomplete application will be returned to you, delaying its processing.

Here are tips on completing the application:

1. Mail your renewal application to DLSE at least 90 days before your license's expiration date. The FLC Licensing Unit processes new and renewal applications on a first-come, first-served basis.

2 Use the same name (both business and personal) that you used to register with the U.S. Department of Labor. The state receives from DOL a list of federally registered FLCs. If your business and personal names on that list do not match those as indicated on your state application, the state will reject it. The first name of all persons listed should be given in full. Do not use initials.

3. Use only a street address as your business address, not a P.O. Box number or your accountant's address on the application.

4. If you are renewing your license, use your state license "FL" number on the application.

5. In question 9, in the box "Birth date:" enter the birth date of the individual owner, the birth date of the oldest general partner or, if a corporation, the date of incorporation.

6. In question 21, list only those persons who are or have been licensed by the state as FLCs and who will be performing farm labor contracting activities (i.e., supervising, recruiting, solicitation, hiring, transporting). Also provide the federal registration number for each of these individuals.

7. In question 24, if you will be doing only "day hauling" activities, check the "No" box; otherwise check the "Yes" box.

8. In box 25 ("If yes, how will employees be paid?"), do not check "Other." FLCs must pay workers at least weekly.

9. Answer question 37 frankly. The DLSE will eventually discover any record of a conviction. Even if you have a conviction, you may still be approved for a license.

Enclose these items with your application:

1. The corporate seal, if any, must be affixed to the application. If the corporation is incorporated in another state, enclose a "Statement of Domestic Stock Corporation" with the application.

2. A Personal Record [Form DLSE 301-B (Rev. 1/87)] must be completed by the individual owner, by all general partners if a partnership, or by all corporate officers if a corporation, and by each person with managing responsibility in the business.

3. Two Affidavits of Character (Form DLSE 301-A) must be completed for each individual for whom a Personal Record is required. The persons executing the affidavits should be over 18 years of age and not related to the applicant.

4. A Farm Labor Contractor Bond (Form DLSE 402) must be executed by a bonding company. The original must be submitted with the FLC License Application. All signatures (both that of the bonding company representative and that of the principal [license applicant]) must be notarized. The name of the legal entity shown on the bond must be the same as that of the entity applying for the license.

5. Two Fingerprint Cards (Form BID-7) each must be completed for an individual applicant, for each general partner of a partnership, or for each corporate officer of a corporation, and for each person acting in a managerial capacity in the business.

The personal information requested on the fingerprint cards should be completed by the applicant. The fingerprints should be taken by an official fingerprint technician employed by the local police department or sheriff's office.

After the fingerprint cards are completed and signed by both the applicant and the fingerprint technician, they must be submitted to the Labor Commissioner's office.

6. A Workers' Compensation Certificate of Insurance must be included. Every employer in California with one or more employeesfull-time or part-timemust have workers' compensation insurance coverage. Have your insurance carrier prepare a Workers' Compensation Certificate of Insurance that names the State Labor Commissioner, Division of Labor Standards Enforcement, Licensing and Registration, as a policy certificate holder. Do not have the carrier mail the certificate directly to DLSE because it may arrive before your application and get misplaced. Have the carrier mail the certificate to you, and then you mail it with your application.

The certificate of insurance must show, as applicable, an individual owner's full name, all partners' full names, or the name of the corporation, whichever is applicable, along with any business (dba) name(s), full current business address (physical address must be shown; you may also include a P.O. Box number), policy number, and the effective and expiration dates of the policy. Do not give another person's address, such as a bookkeeper's. You must give your own address.

If you live in another state and plan to work in California, your workers' compensation insurance certificate must show "California operations."

7. A Declaration (Form DLSE 405) must be completed and included. Or, write a letter stating you will inform the Labor Commissioner of any change of address and are designating the Labor Commissioner to accept service of summons in any action against you as it relates to your activities as an FLC.

8. California Labor Code Sections 1695(a)(6) and 1696.4 require an FLC who, in connection with his or her operations as an FLC, transports persons in any vehicle owned or operated by the FLC, to carry vehicle liability insurance on each vehicle owned or operated by the FLC. The insurance on each vehicle must be in the amounts of at least $15,000/$30,000 for bodily injury and $5,000 for property damage, as required by Vehicle Code Sections 16054.2 and 16056.

(As noted above, however, higher amounts are required by other laws or in other situations; i.e., at least $100,000 per seat up to $5 million per vehicle bodily injury coverage if transporting farm workers in a situation where workers' compensation insurance does not apply, and $50,000 property damage coverage for all transportation covered by the federal farm worker protection law.)

9. Ask your insurance carrier to send to you a Certificate of Insurance showing coverage for your motor vehicles. Send the certificate with your application. Do not have the carrier send it to DLSE, as it may arrive before your application and be misplaced by DLSE.

If you transport persons as described above, an FLC License cannot be issued until this certificate is received.

10. An IRS Form 8821 (Tax Information Authorization) must be completed. Follow the instructions carefully. Send the original form to the IRS with a copy of your state license application to:

IRS Service Center

Attn: DLSE Licensing

PO Box 24015, Stop #8434

Fresno, CA 93779

Enclose a copy of the completed IRS Form 8821 with your application.

Before you will be issued a license, you must file and pay all taxes due.

When you mail your application and attachments to DLSE, send the original form and attachments, not copies (except for IRS Form 8821).

Top

 ·  ·  ·  ·  Farm Labor Contractor Examination: The farm labor contractor license examination is administered in English and Spanish in writing, not orally. The applicant must correctly answer at least 85 percent of the questions on the examination within four hours. The examination may be taken a maximum of three times in a calendar year.

The examination requires a demonstration of knowledge of the laws and regulations regarding wages, hours and working conditions, penalties, employee housing and transportation, collective bargaining, field sanitation, and safe work practices related to pesticide use, including all of the following subjects:

1. Field reentry regulations.

2. Worker pesticide safety training.

3. Employer responsibility for safe working conditions.

4. Symptoms and appropriate treatment of pesticide poisoning.

The Labor Commissioner may renew a license without requiring the applicant for renewal to take the examination if the Labor Commissioner finds the applicant has:

1. Passed the examination during the immediately preceding two years;

2. Not been found during the prior year to be in violation of any applicable law or regulation; and

3. For each year since the license was obtained, enrolled and participated in at least eight hours of relevant educational classes, chosen from a list of approved classes prepared by the Labor Commissioner.

Top

 ·  ·  ·  ·  Continuing Education: Each farm labor contractor must enroll and participate in at least eight hours of relevant educational classes each year. The classes must be chosen from a list of approved classes prepared by the Labor Commissioner.

Top

 ·  ·  Laws Relating to Farm Labor Contractor Employment of Employees

Top

 ·  ·  ·  FLC Supervisors: The actions of a farm labor contractor's supervisor are controlled by law. While the FLC supervisor is not the employer, the law attributes the actions of the supervisor to the FLC and will hold the FLC responsible for the supervisor's activities. Farm labor contractors need to train their supervisors and monitor their actions so they will represent the FLC business in a manner that won't jeopardize the business. Here are the laws your supervisors must know and obey:

Top

 ·  ·  ·  Worker Recruitment: You, or any person acting for you, may not make any false or misleading statement-oral or written- about the terms, conditions or existence of employment. You may not accept a fee from any applicant for employment or any kind of registration fee or make any false statement to workers that they have to pay a transportation fee to get or keep a job. You may not send workers to a job site unless you already have an order to supply labor there. If you drive workers to a job site and there is no work available as promised, you must pay them the agreed-upon rate of pay for all the time spent traveling to the job site and all the time traveling back. If there is a strike or a lockout at a place of employment, you must tell your workers about it before you take them there.

Before you hire workers, you must tell them where they will be employed, the wage rates, the kinds of crops they will work on, their work duties, and the expected length of employment. You must also tell them about any charges for transportation or housing or other benefits and whether you will receive a commission from sales of a store owned by the grower. Workers may not be required to buy goods or services solely from a contractor or a grower or any person acting for them.

You must post a notice that states the rights of workers under the federal Migrant and Seasonal Agricultural Worker Protection Act. Form WH-516 - Worker Information is used by employers to disclose employment information at time of recruitment.

Top

 ·  ·  ·  Grounds for Losing a Farm Labor Contractor License: Your state license may be denied or revoked if you:

1. Violate any law governing farm labor contractors, such as those pertaining to safety and health or payment of wages.

2. Make a false statement in your application or if you are not the real party in interest on the application.

3. Let an employee, without the proper license and certification, drive a farm labor vehicle.

4. Knowingly employ a person who is not eligible to be employed in the United States.

5. Knowingly let persons of bad character, prostitutes, gamblers, inebriates or procurers visit your premises.

7. Sell or plan to sell liquor on your business premises.

Top

 ·  ·  ·  Penalties: Except where otherwise provided, a violation by any person of these state laws is punishable as a misdemeanor by a fine of up to $1,000 and/or six months imprisonment in a county jail. (Labor Code §1697(a).)

Top

 ·  ·  ·  Penalties for Failures to Pay Wages: An FLC or grower using an FLC, or other person acting either individually or as an officer, agent, or employee of such a grower or FLC, who knowingly and willfully fails, or causes a failure, to pay wages is guilty of enhanced misdemeanor penalties that include:

1. Imprisonment in a county jail for up to 30 days and/or a fine of from $1,000 to $5,000.

2. Upon a conviction for a violation committed within three years after a conviction for a prior violation, imprisonment in a county jail for not more than six months and/or a fine of at least $10,000.

3. Upon a conviction for a violation committed within five years of a second conviction pursuant to item 2 above, imprisonment in a county jail for up to six months and/or a fine of at least $25,000.

A person prosecuted under these penalties may not be prosecuted under any other law if the prosecution would be based upon the same set of facts.

Further, the Labor Commissioner must, upon a first conviction, revoke the license of the convicted FLC, who then is ineligible for a license for one year from the date of revocation. Upon a second conviction as discussed in item 2 above, the Labor Commissioner must revoke the license of the convicted FLC, who then is ineligible for a license for two years from the date of revocation. Upon a third conviction as discussed in item 3 above, the Labor Commissioner must revoke the license of the convicted FLC, who then is forever ineligible for a license. (Labor Code §1695.7(c)(3) and (f).)

Top

 ·  ·  County Agricultural Commissioner Registration

An FLC must register at the start of each year with the County Agricultural Commissioner in each county where the FLC will perform farm labor contracting services. To register, an FLC must:

1. Show FLC's federal Farm Labor Contractor Certificate of Registration and California Farm Labor Contractor License.

2. Complete and file County Farm Labor Contractor Registration Form AWM 000 (2/99).

3. Pay the annual registration fee of $75 year.

Top

 ·  Migrant and Seasonal Agricultural Worker Protection Act (MSPA)

Top

 ·  ·  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 the logic tree that starts on page ? to help you analyze your exposure. See specific FLC requirements under MSPA, starting on page 58.

Top

 ·  ·  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.