Employment Law Guide
Wages and Hours Worked: Worker Protections in Agriculture
DOL Agency Assistance
Updated: December 2016
Seasonal Agricultural Worker Protection Act (MSPA),
as amended(https://www.dol.gov/whd/regs/statutes/0001.mspa.htm) (29 CFR Part 500(/elaws/leave-dol.asp?exiturl=https://www.ecfr.gov/cgi/t/text/text-idx^Q^c=ecfr|amp;sid=48d6ee3b99d3b3a97b1bf189e1757786|amp;rgn=div5|amp;view=text|amp;node=29:220.127.116.11.1|amp;idno=29&exitTitle=www.ecfr.gov&fedpage=yes))
Who is Covered
The Migrant and Seasonal Agricultural Worker Protection Act (MSPA) is administered by the Wage and Hour Division (WHD). The Act safeguards most migrant and seasonal agricultural workers in their interactions with farm labor contractors, agricultural employers, agricultural associations, and providers of migrant housing. However, some farm labor contractors, agricultural employers, agricultural associations, and providers of migrant housing are exempt from the MSPA under limited circumstances.
The MSPA requires farm labor contractors, agricultural employers, and agricultural associations, who recruit, solicit, hire, employ, furnish, transport, or house agricultural workers, as well as providers of migrant housing, to meet certain minimum requirements in their dealings with migrant and seasonal agricultural workers. These requirements include:
- Farm labor contractor registration: Farm labor contractors
(and any employee who performs farm labor contracting functions) must register
with the Department of Labor before recruiting, soliciting, hiring, employing,
furnishing, or transporting any migrant or seasonal agricultural worker.
Agricultural employers and associations (and their employees) need not register
as farm labor contractors.
An agricultural employer or association using the services of a farm labor contractor must first verify the registration status of the farm labor contractor. This process includes determining that the contractor is properly authorized for all activities he or she will undertake. To verify registration status, call 1-866-4USWAGE (1-866-487-9243).
- Employment relationship: Under certain circumstances, the
Department of Labor may determine that an agricultural employer or association
that uses the services of a farm labor contractor is a joint employer of the
agricultural workers furnished by the farm labor contractor. In joint employment
situations, the agricultural employer or association is equally responsible with
the farm labor contractor for compliance with employment-related MSPA
obligations, such as the proper payment of wages.
- Disclosure: Employers must provide each migrant and seasonal
day-haul worker with a written disclosure at the time of recruitment that
describes the terms and conditions of his or her employment. When offering
employment, the employer must provide such disclosure to all seasonal workers
upon request. The disclosure must be written in the worker's language, as necessary or reasonable. The
employer must also post in a conspicuous place at the job site a poster setting
forth the rights and protections that the MSPA affords workers (See notices and
posters below). A housing provider must post or present to each worker a
statement of the terms and conditions of occupancy.
- Wages, supplies, and working arrangements: Each person
employing agricultural workers must pay all wages owed when due. Farm labor
contractors, agricultural employers, and associations are prohibited from
requiring workers to purchase goods or services solely from such contractor,
employer, or association, or any person acting as an agent for such a person. In
addition, no farm labor contractor, agricultural employer, or association may
violate the terms of the working arrangement without adequate justification.
- Housing safety and health requirements:
Each person who owns or
controls housing provided to migrant agricultural workers must ensure that the
facility complies with the Federal and state safety and health standards
covering that housing. Migrant housing may not be occupied until it has been
inspected and certified to meet these safety and health standards. The
certification of occupancy must be posted at the site.
- Transportation safety: Each vehicle used to transport
migrant or seasonal agricultural workers must be properly insured and operated
by a properly licensed driver. Each such vehicle must also meet Federal and
state safety standards.
- Employer protections: Farm labor contractors must comply
with the terms of any written agreement they make with an agricultural employer
- Enforcement: The Wage and Hour Division enforces the MSPA. During a MSPA investigation, Wage and Hour investigators may enter and inspect premises (including vehicles and housing), review and transcribe payroll and other records, and interview employers and employees.
The MSPA provides migrant agricultural workers and day-haul seasonal agricultural workers the right to receive written notice of the terms and conditions of their employment when recruited. In addition, it provides seasonal workers the right to receive such written notification upon the worker's request. The MSPA also requires employers of migrants and seasonal agricultural workers to adhere to the disclosed terms and conditions of employment. Certain exemptions and exclusions apply to these provisions.
The MSPA gives migrant and seasonal agricultural workers the right to file a complaint with the Wage and Hour Division, file a private lawsuit under the Act (or cause a complaint or lawsuit to be filed), or testify or cooperate with an investigation or lawsuit in other ways without being intimidated, threatened, restrained, coerced, blacklisted, discharged, or discriminated against in any manner.
Recordkeeping, Reporting, Notices and Posters
Notices and Posters
Posters. Each farm labor contractor, agricultural employer and agricultural association, that is subject to the MSPA and that employs any migrant or seasonal agricultural worker is required to post a poster explaining the rights and protections for workers required under the MSPA, such as the Migrant and Seasonal Agricultural Worker Protection Act (MSPA) poster.
The poster must be posted in a conspicuous place at each place of employment. There are English/Spanish(https://www.dol.gov/whd/regs/compliance/posters/mspaensp.htm), English/Haitian(https://www.dol.gov/whd/regs/compliance/posters/mspaencr.htm), English/Vietnamese, and English/Hmong(https://www.dol.gov/whd/regs/compliance/posters/mspaenHmong.pdf) versions of the poster, all of which can be printed from the Web.
There are no size requirements for these posters. Employers are encouraged to make the poster available in languages other than English.
Notice for terms and conditions of housing. Each person or organization that owns or controls a facility or real property used for housing migrant workers must comply with Federal and state safety and health standards. A written statement of the terms and conditions of occupancy must be posted at the housing site where it can be seen or be given to the workers. The written statement must include the following information on the terms and conditions of occupancy of such housing:
- The name and address of the farm labor contractor, agricultural employer, or agricultural association providing the housing
- The name and address of the individual in charge of the housing
- The mailing address and phone number where persons living in the housing facility may be reached
- Who may live at the housing facility
- The charges to be made for housing
- The meals to be provided and the charges to be made for them
- The charges for utilities
- Any other charges or conditions of occupancy
If the terms and conditions of occupancy are posted, the statement must be displayed and maintained during the entire period of occupancy. If the terms and conditions of occupancy are provided to the worker through a statement (rather than through a posting), this statement must be provided to the worker prior to occupancy. Employers may use a DOL form, WH Form 521 – Housing Terms and Conditions (PDF)(https://www.dol.gov/whd/forms/wh521.pdf), to satisfy this requirement.
Notice of employment terms. Each farm labor contractor, agricultural employer, and agricultural association that recruits any migrant agricultural worker must provide the following information at the time of recruitment, while seasonal workers must be given the information verbally when they are offered work, and in writing, if requested. The information required to be disclosed includes the following information:
- The place of employment (with specifics, such as the name and address of the employer or the association)
- The wage rates (including piece rates) to be paid
- The crops and kinds of activities on which the worker may be employed
- The period of employment
- The transportation, housing, and any other employee benefits to be provided, if any, and any costs to be charged for each
- Whether state workers' compensation or state unemployment insurance is provided
- Whether there is a strike or other concerted work stoppage at the place of employment
- Whether the person has an arrangement with any establishments in the area to receive a commission or other benefit from any sales by such establishment to the workers
Note: If workers' compensation is provided, this information must include the name of the workers' compensation insurance carrier, the name of the policyholder, the name and telephone number of each person who must be notified of an injury or death, and the time period within which such notice must be given. This requirement in the section above may be satisfied by giving the worker a photocopy of any workers' compensation notice required by state law.
Payroll statements for workers. In addition to making records of payroll information (see Recordkeeping section below), the farm labor contractor, agricultural employer and agricultural association must provide each migrant or seasonal agricultural worker a written statement of this information. This information must be provided at the time of payment for each pay period which must be no less often than every two weeks (or semi-monthly). In addition to the payroll information specified below, such statement shall also include the employer's name, address, and employer identification number assigned by the Internal Revenue Service. In the case of a worker who is jointly employed, only one of the two joint employers needs to provide a written statement to the workers.
Responsibilities of Joint Employers. Agricultural employers who use the services of a farm labor contractor may be in a situation of joint employment with the contractor in regard to the employees. Joint employment means that an individual is employed by two or more persons at the same time. Where a joint employment relationship exists, each of the employers must ensure that the employee receives all employment-related rights granted by the MSPA, such as accurate and timely disclosure of the terms and conditions of employment, written payroll records, and payment of wages when due. If either party fails to comply with the law, both parties may be held liable. For more detail on joint employment see the Wage and Hour Division Fact Sheet #12: Agricultural Employers Under the Fair Labor Standards Act(https://www.dol.gov/whd/regs/compliance/whdfs12.pdf) and Wage and Hour Division Fact Sheet #35: Joint Employment and Independent Contractors Under the Migrant and Seasonal Agricultural Worker Protection Act(https://www.dol.gov/whd/regs/compliance/whdfs35.pdf).
Field Sanitation Standards. In addition, the Occupational Safety and Health Act’s field sanitation standards require covered agricultural establishments to provide toilets, potable drinking water, and hand-washing facilities to hand-laborers in the field; to provide each employee reasonable use of the above; and to inform each employee of the importance of good hygiene practices. For more information on the field sanitation standards see the Wage and Hour Division Fact Sheet #51: Field Sanitation Standards under the Occupational Safety and Health Act(https://www.dol.gov/whd/regs/compliance/whdfs51.pdf).
Payroll records. Each farm labor contractor, agricultural employer, and agricultural association that employs migrant or seasonal agricultural workers must make and keep the following records for each worker:
- Name, permanent address, and Social Security number
- Basis on which wages are paid
- Number of piecework units earned, if paid on a piecework basis
- Number of hours worked
- Total pay period earnings
- Specific sums withheld and the purpose of each sum withheld
- Net pay
Each farm labor contractor, agricultural employer, and agricultural association that employs migrant or seasonal agricultural workers must keep all payroll records for each worker for a period of three years. When a farm labor contractor employs migrant or seasonal agricultural workers for an agricultural employer, agricultural association, or other farm labor contractor, the employer must also provide these payroll records for each employee. The person receiving these records must maintain them for a period of three years.
Certificate of registration. Any person acting as a farm labor contractor is required first to obtain a Certificate of Registration authorizing each such activity. For more details, see the Instructions for Form WH-530: Application for a Farm Labor Contractor or Farm Labor Contractor Employee Certificate of Registration. The phrase "farm labor contracting activity" means recruiting, soliciting, hiring, employing, furnishing, or transporting any migrant or seasonal agricultural worker.
Any employee of a registered farm labor contractor who performs farm labor contracting activities solely on behalf of such contractor, and who is not an independent contractor, must obtain a Farm Labor Contractor Employee Certificate of Registration authorizing each such activity. The employee's certificate must show the name of the farm labor contractor for whom the activities are to be performed. The contractor whose name appears on the employee's certificate must hold a valid certificate of registration covering the entire period shown on the employee's certificate.
Each registered farm labor contractor and farm labor contractor employee must carry the certificate of registration card at all times when performing farm labor contracting activities and must show the card, upon request, to anyone with whom he/she intends to deal as a farm labor contractor.
Section 110 of the 1977 Mine Act established a maximum civil penalty for each violation of an MSHA mandatory health or safety standard or violation of the Act. The Mine Act also established civil penalties for failing to correct a violation for which a citation was issued; discriminatory conduct under Section 105(c) of the Act; and smoking or carrying smoking materials, matches, or lighters. Section 8 of the 2006 MINER Act established a maximum civil penalty for a “flagrant” violation and established minimum civil penalties for unwarrantable failure violations and increased civil penalties for operators who fail to timely notify MSHA of certain accidents.
On July 1, 2016, the U.S. Department of Labor (DOL) issued an interim final rule to adjust the amounts of civil penalties assessed or enforced in the DOL’s regulations
The Federal Civil Penalties Inflation Adjustment Act of 1990 as amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Inflation Adjustment Act) requires agencies to adjust the levels of civil monetary penalties with an initial catch-up adjustment, followed by annual adjustments for inflation. The DOL is required to calculate the catch-up and subsequent annual adjustments based on the Consumer Price Index for all Urban Consumers. The new penalty levels, which include MSHA civil penalties, are effective no later than August 1, 2016.
The provisions of Sections 110(c) and 110(d) of the Mine Act are among the most stringent levels of enforcement action available to MSHA to ensure compliance with the Mine Act and related standards. Under these provisions, MSHA is authorized to propose the assessment of a civil penalty against a director, officer, or agent of a corporate operator who knowingly orders, authorizes, or carries out a violation of a mandatory safety or health standard, or to pursue criminal proceedings against an operator or a corporate director, officer, or agent who willfully violates a mandatory safety or health standard. MSHA conducts investigations under Sections 110(c) and 110(d) to establish the facts and circumstances surrounding certain violations of the Mine Act or of mandatory safety or health standards in order to determine whether the violations were knowing or willful in nature. In general, the violations reviewed include those involving imminently dangerous situations and a high degree of negligence or reckless disregard. Criminal investigations may also result from reports of alleged violations of Section 110(f) (false reporting) or Section 110(h) (equipment misrepresentation). If evidence of a willful violation is found, the case is referred to the Department of Justice.
Relation to State, Local, and Other Federal Laws
The Mine Act does not give MSHA the authority to cede its responsibilities to states or any other political subdivisions. The Mine Act does not preempt state mine safety and health laws, except insofar as they may conflict with the Mine Act or MSHA's regulations. States may have more stringent health and safety standards.
Compliance Assistance Available
The Department of Labor provides employers, workers and others with clear and easy-to-access information and assistance on how to comply with the Migrant and Seasonal Agricultural Worker Protection Act. Information about farm labor contractor applications is available from the nearest State Workforce Agency office at 1-866-4USADOL (1-866-487-2365) or Wage and Hour Division office.
The Employment Law Guide is offered as a public resource. It does not create new legal obligations and it is not a substitute for the U.S. Code, Federal Register, and Code of Federal Regulations as the official sources of applicable law. Every effort has been made to ensure that the information provided is complete and accurate as of the time of publication, and this will continue. Later versions of this Guide will be offered at www.dol.gov/compliance or by calling our Toll-Free Help Line at 1-866-4-USA-DOL (1-866-487-2365) (1-866-487-2365).