How Do Federal Labor Laws Apply to Agricultural Employers?

Brandon originally presented this topic in a webinar and discussion hosted by The National Agricultural Law Center.

The agricultural industry is one of the most heavily regulated industries in the employment space. Its vital role and economic significance place agriculture in a league of its own where it is exempt from many labor laws that apply broadly in other employment sectors. Agricultural employers should understand how these exemptions work and what protections and rights apply to agricultural workers.

What Laws Exempt Farm Workers?

Agricultural workers have historically been excluded from some federal labor laws, such as the Fair Labor Standards Act (FLSA) and the National Labor Relations Act (NLRA). This does not mean those laws have no application in the agricultural employment space. Rather, the laws apply differently to issues concerning minimum wage, overtime pay and the right to organize.

For example, certain exemptions to the FSLA allow agricultural employers to pay lower minimum wages to some workers and in some circumstances allow more lenient child labor regulations. While the NLRA protects the rights of many workers to form labor unions and engage in collective bargaining, it excludes certain agricultural workers from these protections. This exclusion doesn’t block agricultural employees from organizing, nor does it prevent the federal government from enforcing the laws that do apply in the agricultural space. Instead, these laws apply in different ways that relate to the essential nature of the work at issue.

The Fair Labor Standards Act establishes minimum wage requirements for employees who are engaged in agricultural labor or services. Employees who are engaged in agriculture are generally not entitled to receive overtime compensation. By contrast, employees who complete non-agricultural work (even within the agricultural space) are eligible for overtime pay and can seek redress if that compensation is not paid. 

The Equal Pay Act (EPA) prohibits wage discrimination based on gender. Agricultural workers are covered by this law, but exceptions may apply based on the types of job duties at issue.

The Family and Medical Leave Act (FMLA) protects the jobs of eligible employees who take unpaid leave for certain family or medical reasons. However, smaller agricultural employers — those with fewer than 50 employees — are exempt from these requirements.

What Federal Protections Apply to Farm Workers?

1. The Occupational Safety and Health Act (OSHA) sets health and safety standards for workplaces, including agricultural settings. Agricultural employers must comply with certain OSHA regulations to ensure the safety of their workers. Key compliance areas that agricultural employers should review include housing, heat related illnesses, noise and hydration.
2. Title VII of the Civil Rights Act prohibits employment discrimination based on race, color, religion, sex or national origin. Agricultural employers should watch for the following issues:
   • Discrimination claims based on national origin
   • Citizenship discrimination claims that U.S. citizens make against employers who hire foreign labor
3. The Immigration and Nationality Act (INA) regulates the employment of foreign workers in the U.S. The INA sets requirements for obtaining temporary work visas, including the agriculture-specific H-2A visa. The INA also regulates other guest-labor visa programs like the H-2B visa program.
4. Under the FLSA, most nursing employees have the right to reasonable break time and a place, other than a bathroom, that is shielded from view to express breast milk while at work. This right is available for up to one year after the child’s birth and applies to agricultural employees.
5. Many agricultural employers are obligated to supply housing and living conditions that comply with federal, state and local standards. Ensuring access to safe and decent housing for workers should be a top priority for employers. In understanding the laws governing housing and living conditions — from what housing camps need to look like to what hotels can be rented to house workers — there are three major bodies of regulation to consider:
   • OSHA Housing Standards for Rental and Public Accommodations
   • H-2A Housing Standards for Rental and Public Accommodations
   • MSPA Housing Standards for Rental and Public Accommodations
6. The Migrant and Seasonal Agricultural Worker Protection Act (MSPA) aims to address the challenges faced by those who often work in temporary or seasonal agricultural jobs and may migrate across different states to follow crop harvesting and planting seasons. It contains eight relevant provisions employers should understand:

• • Disclosure rules require employers to provide workers with written terms and conditions of their employment, including wages, job duties, transportation and housing.
  • Workers’ protections establish basic rights for workers, including the right to a safe working environment and the right to be free from discrimination.
  • Farm labor contractor registrations require anyone involved with recruiting or hiring agricultural workers to register as a farm labor contractor with the Department of Labor.
  • Mandatory recordkeeping requires employers to keep accurate records for each worker.
  • Transportation protections ensure that employer-provided transportation is safe.
  • Housing standards ensure that employer-provided housing is safe and sanitary.
  • Agricultural labor contractor surety bonds require labor contractors to obtain a surety bond to protect workers in case the contractor fails to meet their obligations to pay wages.
  • Anti-retaliation provisions bar employers from retaliating against workers who assert their rights under the law or cooperate with investigations.

Agricultural worker protections are expanding across all levels of government, with the Department of Labor leading the charge through significant new employee-focused regulations. As agricultural employers face added scrutiny and employee access to guest-worker programs grows, employers involved in the food-supply chain need to ensure compliance to maintain their critical labor force.

Please contact Brandon Davis or any member of Phelps’ Labor and Employment team with questions or for advice and guidance.