The Fair Labor Standards Act (FLSA) covers almost all employees engaged in agriculture and provides them minimum wage, record keeping, and labor standards protections (including regulations typically referred to as "wage and hour" 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 labor laws and H-2B workers rights.
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, farm labor laws do not regulate 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.
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:
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.
Agriculture employers must keep accurate and complete payroll records. There isn't a required form for these records, but the records must include:
Farm Labor Laws and 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.
An employer seeking authorization to employ H-2B workers must:
Additionally, working conditions and terms must comply with all applicable federal, state, and local employment laws, including health and safety laws.
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.
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.
H-2B workers should keep a record of hours worked and wages paid.
Get Legal Help Protecting Your Rights Under U.S. Farm Labor Laws
U.S. farm labor labor laws can be confusing, especially to farm workers visiting the country on a visa and unfamiliar with the legal system and immigration laws. But all workers have certain rights, such as those requiring a minimum wage and safe working conditions. If you believe your rights as a farm worker have been violated, you shoiuld speak with an employment law attorney.