Without a doubt agriculture is an important component of our economy. You may or may not know that many farm owners resort to using farm labor contractors to hire and manage workers in their farms. But, who are they?
The U.S. Legal website defines a farm labor contractor (FLC) as a person who performs any farm labor contracting activity for money or other valuable consideration paid (or promised to be paid). A farm labor contractor is not the same as an agricultural employer, an agricultural association or a farm employee. Basically, a farm labor contractor recruits, transports, supplies, supervises and/or manages agricultural workers for a fee. Farm labor contractors operate as intermediaries between farmworkers and agricultural employers by recruiting and supplying labor to U.S. farms, and can facilitate quick hiring for high seasons, such as harvest time. California’s Farm Labor Contractors Association indicates that the use of FLCs has grown by 50% in the last 10 years, and the highest percentages of FLC’s are Hispanics.
Every year farm labor contractors place thousands of migrant and seasonal workers on farms across the United States. There are several steps to becoming a farm labor contractor that are regulated by the U.S. Department of Labor (DOL), though additional requirements may vary by state. However, there most common practice is filling a DOL application using the Form WH-350.
When a farmer decides to hire a FLC, they must ensure that he or she is licensed to perform contracting work. If not, employees can file lawsuits against the farmer. Nowadays, farm are adjusting to a time of more regulations and increased liability for labor law and immigration violations by shifting recruitment and hiring responsibilities to FLC intermediaries.
Being a FLC is not an easy task. The Migrant and Seasonal Agricultural Worker Protection Act (MSPA) was created to protect these workers by establishing employment standards for wages, housing, transportation, disclosures, and recordkeeping.
Generally, FLCs manage the money and paperwork between the worker and the farmer: tracking hours worked, crops harvested, and wages paid. They also are responsible for verifying immigration status to providing workers’ compensation. Integral pieces of their job include:
- Providing each employee with worker rights statement
- Providing each employee a written agreement on terms and conditions of employment
- Paying employees promptly, including ensuring benefits
- Complying with field sanitation and housing health, safety or habitability requirements
- Documenting payroll, checks, and certifications
- Keeping up with any applicable state law clauses
At times farmers join FLCs and become joint employers. A joint employers is when two or more employers hire an employee, and the employee’s hours worked are aggregated and considered as one employment: including for purposes of calculating whether overtime pay is due. When a joint employer relationship is created, both employers are liable for any violations of applicable labor and employment laws even if one employer is more involved in the daily tasks of employee supervision. When farmers enter into this type of relationship with FLCs it may put them at risk. Why? Farmers may become liable if FLCs do not comply with employment laws, leaving the farmer exposed to a lawsuit.
FLCs usually pay their employees at piece rate, which ensures that farmworkers will work quickly. The problem paying by the piece rate is that it often does not meet required minimum wage levels. In far too many cases, farmworkers have been victims of wage theft. Employers have fallen in violation for not providing a final paycheck after resignation or dismissal, not paying for full hours worked, docking wages for damage to farm equipment, and due to personnel policies which don’t comply with the law.
The importance of establishing who the employer is allows clarity and accountability in complying with the law. AFOP Health & Safety Programs encourages employers to incorporate fair business practices when hiring farmworkers. At the end of the day, an employee that is appreciate and respected is the productive employee every farmer should want in their fields.