3/30/2016 Farm Labor Contractors Federal vs. State Registration Presented by Lindsey Weidenbach, Partner Farm Labor Contractors — Federal Law Migrant and Seasonal Agricultural Worker Protection Act (MSPA) • Generally, the MSPA applies to any person (or business) who recruits, • solicits, hires, employs, furnishes, or transports migrant or seasonal agricultural workers (the MSPA refers to these activities as "farm labor contracting activities"). Covers: • safety and health standards for migrant worker housing, • transportation safety, • disclosing the terms and conditions of employment to migrant and • seasonal agricultural workers, properly paying covered workers, and • making and keeping accurate payroll records. • (From http://www.dol.gov/whd/forms/fts_wh530.htm) • 1
3/30/2016 Farm Labor Contractors — Federal Law • Any person, an agricultural association, or an employee of an agricultural employer or agricultural association, • Other than an agricultural employer , • Who, for any money or other valuable consideration paid or promised to be paid, • Performs any farm labor contracting activity. • 29 U.S.C. 1802(7). Farm Labor Contracting Activity • Recruiting, soliciting, hiring, employing, furnishing, or transporting • Any migrant or seasonal agricultural worker. • 29 U.S.C.1802(6). 2
3/30/2016 Agricultural Employer • Any person who owns or operates a farm, ranch, processing establishment, cannery, gin, packing shed or nursery, or who produces or conditions seed, and who either recruits, solicits, hires, employs, furnishes, or transports any migrant or seasonal agricultural worker. 29 U.S.C. 1802(2). Migrant Agricultural Workers • Those employed in agricultural work of a seasonal or temporary nature who cannot return to their permanent residence at night because of the distance involved. 29 U.S.C. 1802(8). Seasonal agricultural workers also are employed in agricultural work of a seasonal or temporary nature, but are able to return to their permanent residence at night. 29 U.S.C. 1802(10). 3
3/30/2016 Agricultural Employment • Employment in any service or activity included within the provisions of section 3(f) of the Fair Labor Standards Act of 1938 (29 U.S.C. 203 (f)), or section 3121 (g) of title 26 and the handling, planting, drying, packing, packaging, processing, freezing, or grading prior to delivery for storage of any agricultural or horticultural commodity in its unmanufactured state. 29 U.S.C. 1802(3). Agriculture • Includes farming in all its branches and among other things includes the cultivation and tillage of the soil, dairying, the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities, the raising of livestock, bees, fur-bearing animals, or poultry, and any practices (including any forestry or lumbering operations) performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market. 4
3/30/2016 Agricultural Labor (1) on a farm, in the employ of any person, in connection with cultivating the soil, or • in connection with raising or harvesting any agricultural or horticultural commodity, including the raising, shearing, feeding, caring for, training, and management of livestock, bees, poultry, and fur-bearing animals and wildlife; (2) in the employ of the owner or tenant or other operator of a farm, in connection • with the operation, management, conservation, improvement, or maintenance of such farm and its tools and equipment, or in salvaging timber or clearing land of brush and other debris left by a hurricane, if the major part of such service is performed on a farm; (3) in connection with the production or harvesting of any commodity defined as an • agricultural commodity in section 15(g) of the Agricultural Marketing Act, as amended (12 U.S.C. 1141j), or in connection with the ginning of cotton, or in connection with the operation or maintenance of ditches, canals, reservoirs, or waterways, not owned or operated for profit, used exclusively for supplying and storing water for farming purposes; Section 3121(g) of title 26 • Agricultural Labor (cont.) (4) (A ) in the employ of the operator of a farm in handling, planting, drying, packing, packaging, • processing, freezing, grading, storing, or delivering to storage or to market or to a carrier for transportation to market, in its unmanufactured state, any agricultural or horticultural commodity; but only if such operator produced more than one-half of the commodity with respect to which such service is performed; (B) in the employ of a group of operators of farms (other than a cooperative organization) in the • performance of service described in subparagraph (A), but only if such operators produced all of the commodity with respect to which such service is performed. For purposes of this subparagraph, any unincorporated group of operators shall be deemed a cooperative organization if the number of operators comprising such group is more than 20 at any time during the calendar year in which such service is performed; (C) the provisions of subparagraphs (A) and (B) shall not be deemed to be applicable with respect to • service performed in connection with commercial canning or commercial freezing or in connection with any agricultural or horticultural commodity after its delivery to a terminal market for distribution for consumption; or ( 5) on a farm operated for profit if such service is not in the course of the employer’s trade or business. • As used in this subsection, the term “farm” includes stock, dairy, poultry, fruit, fur -bearing animal, and • truck farms, plantations, ranches, nurseries, ranges, greenhouses or other similar structures used primarily for the raising of agricultural or horticultural commodities, and orchards. • Section 3121(g) of title 26 5
3/30/2016 Agricultural Employers Excluded • 29 C.F.R. 500.1(d) of the MSPA: Agricultural employers and their employees do not need to obtain a Certificate of Registration as a farm labor contractor in order to engage in farm labor contractor activities even if the workers they obtain are utilized by other persons or on the premises of another. • Washington State Supreme Court: The MSPA draws a clear distinction between the two definitions and “ unmistakenly precludes an agricultural employer from also qualifying as a farm labor contractor when it engages in farm labor contractor activity .” Agricultural Employers Excluded: Case California case Phillip D. Bertelsen, Inc. v. Agricultural Labor Relations • Board . • Employer was a “dual status” employer: a farmer or orange grove management company that also provided labor to other growers. Bertelsen owns and farms some acreage, provides full farm management services for other acreage, and provides only harvesting labor at still other acreage. • “[B]y the plain terms of the statute, one cannot be a farm labor contractor if one is an agricultural employer.” Bertelsen at 771. “Agricultural employers need not obtain certificates of registration in order to engage in labor contracting activities, even if the workers they obtain are utilized by other persons or on the premises of another.” Id . 6
3/30/2016 Agricultural Employers Excluded: Case • Washington Case: Saucedo v. NW Management and Realty Services, Inc. • Court: MSPA “ unmistakenly precludes an agricultural employer from also qualifying as a farm labor contractor when it engages in farm labor contractor activity .” Washington State Law: Farm Labor Contractors Act RCW 19.30 “ Person ” includes any individual, firm, partnership, association, corporation, or unit • or agency of state or local government. “ Farm labor contractor ” means any person, or his or her agent or subcontractor, • who, for a fee, performs any farm labor contracting activity. Farm labor contracting activity ” means recruiting, soliciting, employing, • supplying, transporting, or hiring agricultural employees. “ Agricultural employer ” means any person engaged in agricultural activity, • including the growing, producing, or harvesting of farm or nursery products, or engaged in the forestation or reforestation of lands, which includes but is not limited to the planting, transplanting, tubing, precommercial thinning, and thinning of trees and seedlings, the clearing, piling, and disposal of brush and slash, the harvest of Christmas trees, and other related activities. 7
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