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Farm Workers and H-2B Workers Rights

The Fair Labor Standards Act (FLSA) covers almost all employees engaged in agriculture and provides them minimum wage, record keeping, and labor standards protections. Additionally, the Wage and Hour Division of the Department of Labor has the responsibility to ensure H-2B workers are employed in compliance with H-2B labor certification requirements. Continue below for a discussion of farm workers and H-2B workers rights.

See FindLaw's Wage and Hour Laws section for related articles.

Farm Workers

Coverage

Virtually all employees engaged in agriculture are covered by the FLSA and provided certain labor protections. The FLSA defines "agriculture" as:

...the cultivation and tillage of the soil, dairying, the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities (including commodities defined as agricultural commodities), the raising of livestock, bees, furbearing 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.

However, agriculture doesn't include work performed on a farm which isn't incidental to or in conjunction with such farmer's farming operation. Additionally, it doesn't include operations performed off a farm if performed by employees employed by someone other than the farmer whose agricultural products are being worked on.

Agricultural employees can't be paid less than the federal minimum wage, unless they're exempt from minimum wage as noted below. This is true whether the employer pays by the hour or by a piece rate. Farm workers must be provided a written statement of earnings and all deductions from pay. Additionally, farm workers must be provided written information regarding their wages and working conditions in a language they can understand.

Exemptions

Employees who are employed in agriculture, as that term is defined in the FLSA, are exempt from the overtime pay requirements. They don't have to be paid time and one half their regular pay rate for hours worked over 40 per week.

An agriculture employer who didn't use more than 500 "man days" of agricultural labor in any calendar quarter of the preceding calendar year is exempt from the minimum wage and overtime requirements of the FLSA for the current calendar year. A "man day" is defined as any day during which an employee performs agricultural work for at least one hour.

Additional exemptions from the FLSA's minimum wage and overtime requirements apply to the following:

  • Agricultural employees who are immediate family members of their employer
  • Employees principally engaged on the range in the production of livestock
  • Local hand harvest laborers who commute daily from their permanent residence, are paid on a piece rate basis in traditionally piece-rate occupations, and were engaged in agriculture less than 13 weeks during the preceding calendar year
  • Non-local minors, 16 years old or under, who are hand harvesters, paid on a piece rate basis in traditionally piece-rate occupations, employed on the same farm as their parent, and paid the same rate as those over 16

Safety and Health

Any housing or transportation provided by the employer must be safe. Housing requirements include, but aren't limited to, a bed for each person, hot and cold running water, heating, no signs of infestation, first aid kits, sanitary bathrooms, at least one shower for every 10 people, and a clean kitchen area. Transportation requirements include, but aren't limited to, a separate seat for each passenger, properly working parts of the vehicle, seatbelts when required by state law, licensed drivers, and required amount of vehicle insurance. Farm workers must be provided a safe workplace and safe drinking water, toilets, and handwashing facilities at the job at no cost.

Recordkeeping

Agriculture employers must keep accurate and complete payroll records. There isn't a required form for these records, but the records must include:

  • The employee's full name and social security number;
  • Address, including zip code;
  • Birth date, if younger than 19;
  • Sex and occupation;
  • Time and day of week when the employee's workweek begins;
  • Hours worked each day;
  • Total hours worked each workweek;
  • Basis on which employee's wages are paid;
  • Regular hourly rate;
  • Total daily or weekly straight-time earnings;
  • Total overtime earnings for the workweek (agricultural employees are exempt from overtime pay requirements);
  • All additions to or deductions from the employee's wages;
  • Total wages paid each pay period;
  • Date of payment and the pay period covered by the payment.

H-2B Workers

The H-2B provisions of the Immigration and Nationality Act provide for the admission of nonimmigrants to the U.S. to fill temporary non-agricultural jobs. The Wage and Hour Division of the Department of Labor has the responsibility to ensure H-2B workers are employed in compliance with H-2B labor certification requirements.

Job Opportunity

An employer seeking authorization to employ H-2B workers must:

  1. Offer terms and working conditions normal to U.S. workers similarly employed in the area of intended employment, which aren't less favorable than those offered to H-2B workers.
  2. Offer a job opportunity to H-2B workers that is a bona fide, full-time temporary position with qualifications consistent with normal and accepted qualifications required by non-H-2B employers in the same or comparable occupations.
  3. Truly and accurately state the dates of temporary need, reason for temporary need, and number of positions being requested for labor certification.

Additionally, working conditions and terms must comply with all applicable federal, state, and local employment laws, including health and safety laws.

Wages

H-2B workers must be paid the higher of either the statutory minimum wage or the prevailing wage for the area of intended employment during the approved H-2B labor certification period.

Additionally, employers must make all lawful deductions from H-2B workers' paychecks that are required by law, including federal and state taxes. On the other hand, employers can't require H-2B workers to pay, directly or indirectly, anything related to obtaining labor certification.

Notice

Employers can't place H-2B workers outside the area of intended employment without obtaining a new temporary labor certification from the Department of Labor. In addition, employers are required to provide return transportation to H-2B workers' home country if the workers are dismissed before the end of the authorized period of stay.

Records

H-2B workers should keep a record of hours worked and wages paid.

Considerations

Most agricultural employers are also subject to the Migrant and Seasonal Agricultural Worker Protection Act. The Act provides additional protections for migrant and seasonal agricultural workers. For more information, see FindLaw's Wage and Hour Laws section. If you need help understanding the various protections discussed above, or legal assistance, you can contact a labor attorney.

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