Farm workers in America are protected by unique labor laws. The Fair Labor Standards Act (FLSA) ensures minimum wage and working-condition standards for most agricultural employees. When it comes to H-2B labor, employers must comply with specific requirements.
Who Is Considered to Be a Farm Worker?
A farm worker is any person who participates in farming, which is any activity that falls under the FLSA’s definition of agriculture. A primary farming activity serves to grow, cultivate or otherwise produce an agricultural or horticultural commodity. Examples include:
- Cultivating soil
- Growing and harvesting
- Raising livestock
This definition extends to all phases of production, including market preparation and final delivery. Livestock-related work must be direct, such as breeding, feeding, fattening or generally caring for animals. Farm labor laws may or may not cover certain secondary or preliminary activities, such as:
- Pasture aeration
- Roller chopping
The distinction really depends on the ultimate purpose of the work and whether the labor is incidental to or in conjunction with a primary activity. For instance, clearing land that you don’t intend to use for farming would likely not be considered an agricultural activity.
Farm Worker Wage Rights
All agricultural employees must be paid the federal minimum wage or more even if the employer pays a piece rate instead of an hourly rate. Additionally, workers must be paid time and a half for any hours in excess of 40 per week. However, there are some exceptions.
- The employer does not use more than 500 man days of labor in a calendar quarter.
- A worker is an immediate family member of his or her employer.
- A worker is employed exclusively for livestock production.
- Hand harvesters commute to the job, are paid a piece rate and work on the farm less than 13 weeks during a calendar year.
Employers are also required to maintain full payroll records. Each record must include employee information, job function, wage rate, regular hours worked, overtime hours worked, payment dates, period terms and all additions and deductions.
Farm Working Conditions
Farm employers who choose to offer transportation or employee housing must provide the following.
- Â A separate bed for each person and a separate seat for each passenger
- Hot and cold water
- A minimum of one shower for every 10 workers
- An adequate heating system
- Sanitary bathroom and kitchen facilities with no infestation
- Easy access to first aid kits
- Licensed drivers, current insurance, functioning vehicles and seat belts as required by law
The United States extends H-2B working visas to nonimmigrants who wish to enter the country to perform temporary, nonagricultural work on a seasonal, intermittent or one-time basis. Common areas include national parks, construction sites, ski resorts, hotels and theme parks. The following guidelines apply to employers who hire H-2B employees.
- Employment terms, requirements and working conditions for an H-2B employee must not be less favorable than those for a U.S. employee performing or seeking the same job.
- Working conditions must comply with all local, state and federal laws.
- Contract terms must clearly and accurately state employment dates, the number of requested positions and the reason for needing temporary work.
- Workers must be paid the prevailing or minimum wage, whichever is higher.
- Paychecks must reflect all applicable state and federal deductions.
- Workers cannot be required to pay an employer’s costs to secure the H-2B labor certification.
- Employers must secure a new certificate when transferring an H-2B employee outside the original intended area of work.
- Employers must keep accurate and complete employment records.
- If a worker is dismissed early, the employer must provide return transportation to the worker’s home country.
Migrant and Seasonal Agricultural Worker Protection Act
This act from 1983 addresses hiring migrant or seasonal agricultural workers. If you’re an employer wishing to hire temporary farm labor, be sure to double-check the specific requirements for your industry or state. When in doubt, consult an attorney.
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