September, 25, 2015 Des Moines, IA. 12:45 3:30 p.m. AGRICULTURAL WORKERS PROTECTION ACT (AWPA)

Transcription

1 September, 25, 2015 Des Moines, IA 12:45 3:30 p.m. AGRICULTURAL WORKERS PROTECTION ACT (AWPA) Presented by Christine Sensenig Partner Sensenig Law Firm, P.A. The Agricultural Workers Protection Act (AWPA) is a federal law dealing exclusively with agricultural employment/seasonal labor that addresses pay, working, and working conditions. This session will review employment laws affecting agricultural employers and the requirements of those laws. It will review what employers must disclose to potential agricultural workers and discuss the definitions of independent contractor and joint employment and how AWPA impacts those. The session will also discuss the extent of coverage available to cover claims arising from AWPA and how to control the risks arising from the act. Copyright 2015 International Risk Management Institute, Inc. 1

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3 Christine Sensenig Partner Sensenig Law Firm, P.A. Christine Sensenig, a partner with the firm, graduated from the University of Florida Levin College of Law. She has been in practice for over 18 years and has conducted many seminars on compliance with the myriad of laws affecting employers. She conducts Form I-9 audits, advises about workers compensation matters, including return to work and the interaction between workers compensation and the Americans with Disabilities Act, the Family Medical Leave Act, and now the Genetic Information Non-Discrimination Act. She assists with the preparation of handbooks and then training both staff and management to reduce potential exposure when claims of harassment, discrimination, and retaliation arise. She investigates claims of harassment, discrimination, and retaliation from the making of the claim through the EEOC/FCHR process and then through litigation in the state and federal courts. Ms. Sensenig is active in the Sarasota community. She served as treasurer for 3 years and president for 2 years of the Sarasota County Gator Club, the local University of Florida Alumni Association. She s helped raise tens of thousands of dollars in funds to aid local students who are attending the University of Florida. Ms. Sensenig has served on the Board of the Sarasota Chapter of the Florida Association of Women Lawyers and received the President s Service Award for service above and beyond expectations. She currently serves on the Board of the Federally Qualified Health Center in Sarasota/North Port and the Women s Resource Center. She is a member of the Sarasota County Bar, Florida Bar, and American Bar Association and is also a member of the Labor and Employment Section of each of those organizations. Ms. Sensenig was recognized by her peers as a Florida Legal Elite lawyer in Florida Trend Magazine in 2009, 2010, 2011, 2012, 2013, and

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5 Agricultural Workers Protection Act (AWPA) Migrant and Seasonal Protection Act (MSPA) Presented by Christine R. Sensenig, Esquire Sensenig Law Firm P.A. 1 Sensenig Law Firm P.A. Christine R. Sensenig, Esquire 2055 Wood Street, Suite 103 Sarasota, FL Phone (941) Facsimile (941) csensenig@senseniglawfirm.com 2 5

6 Labor Laws Affecting Agricultural Employers Fair Labor Standards Act (FLSA) Agricultural Worker Protection Act (AWPA or MSPA) Immigration Reform and Control Act (IRCA and IIRAIRA) Occupational Safety and Health Act (OSHA) Tax responsibilities And let s not forget FMLA, Title VII, ADA, ADEA, workers compensation, health insurance/ppaca, and other laws 3 FLSA What does this federal law regulate? Minimum wage Requires employers, unless exempt, to pay all employees at least the federal minimum wage Maximum hours Requires employers, unless exempt, to pay time-and-a-half for all hours worked over 40 in a workweek Child labor Restricts employing children under 16 Record keeping Employers must keep records of all hours worked by nonexempt employees 4 6

7 Why Should Agricultural Employers Follow the Minimum Wage Provisions of the FLSA? Potential $10,000 fines and 1-month imprisonment for second conviction of willfully violating provisions Liability for unpaid wages and an equal amount as liquidated damages plus attorney fees and costs Piece rate, as used in agriculture, must at least meet the federal minimum wage rate; if the minimum wage is not met through a piece rate method, a buildup rate must be used to ensure payment of minimum wage. FLSA claims are usually excluded from EPLI coverage. Can you think of any exceptions or other available coverages to offer your Ag clients? 5 Who Is Affected by the Maximum Hour/Overtime Provisions of the FLSA in Agriculture? The FLSA exempts all employment in agriculture, EXCEPT in a packing shed or processing plant that handles produce for more than one farm. 6 7

8 FLSA and Child Labor All children under 16 are protected by this law, except employees who are 14 or 15 years old and not employed in a hazardous occupation : Except employees 12 or 13 years old who have written consent of parents or are employed on the same farm as parents Except employees under 12 years old who have written parental consent on farms where the minimum wage provisions do not apply Except children of any age, working at any time, on farms owned or operated by their parents 7 FLSA: Hazardous Occupations The following are considered hazardous occupations, forbidden to children under 16 hired to work on the farm: Operating, connecting, or disconnecting implements from a tractor Operating machinery, including combines, mowers, balers, dryers, augers, and power equipment, earth moving equipment, forklifts, and power driven saws Working with stud animals, a sow with suckling pigs, or a cow with a newborn calf Forestry activities on timber with a diameter of over 6 inches Working from a ladder or scaffold over 20 feet high Driving a bus, truck, or automobile to transport passengers, or riding on a tractor as a passenger or helper Working inside a storage facility for fruit, forage or grain, a manure pit, or a horizontal silo Handling or applying toxic agricultural chemical identified by the words Handling or using explosives Transporting, transferring, or applying anhydrous ammonia These prohibitions DO NOT APPLY to children employed on farms owned or operated by their parents. 8 8

9 Migrant and Seasonal Agricultural Worker Protection Act, Commonly Known as AWPA or MSPA Federal law dealing exclusively with agricultural employment/seasonal labor Protects migrant and seasonal farmworkers Addresses issues of: Pay Working Work-related conditions 9 The AWPA Governs A Person who owns or operates a farm, ranch, processing establishment, cannery, gin, packing shed or nursery, or who produces or conditions seed, and who either recruits, solicits, hires, employs, furnishes or transports any migrant or seasonal agricultural worker. 10 9

10 AWPA Protections and Requirements Farm labor contractors must register with Department of Labor AND the appropriate state agency. Farm labor contractor designates any person who, for a fee, employs workers to render personal services in connection with the production of any farm products to, for, or under the direction of a third person, or who recruits, solicits, supplies, or hires workers on behalf of an employer engaged in the growing or producing of farm products and who, for a fee, provides in connection therewith one or more of the following services: furnishes board, lodging, or transportation for those workers; supervises, times, checks, counts, weighs, or otherwise directs or measures their work; or disburses wage payments to these persons. If you use the services of a farm labor contractor, you must take reasonable steps to determine that they have a valid certificate of registration. 11 Federal FLC Requirements In order to legally operate as farm labor contractors, individuals and companies must register with the US Department of Labor. There are special registration requirements for farm labor contractors that intend to house, transport, or drive a migrant or seasonal agricultural worker. The instructions for the application can be found at The application itself can be found at

11 Under the AWPA, Ag Employers MUST Disclose the Following Information to Potential Ag Workers Disclose the terms and conditions of employment to each migrant worker in writing at the time of recruitment and to each seasonal worker when employment is offered, in writing if requested Post information about worker protections at the work site Pay each worker the wages owed when due and provide each with an itemized statement of earnings and deductions Ensure that housing, if provided, complies with substantive federal and state safety and health standards Ensure that each vehicle, if transportation is provided, meets applicable federal and state safety standards and insurance requirements and that each driver be properly licensed Comply with the terms of any working arrangement made with the workers Make and keep payroll records for each employee for 3 years 13 How Does the AWPA Define the Terms Independent Contractor and Joint Employment? The law has borrowed these terms from the FLSA, where they were developed by the courts under the very broad definition of employ ( to suffer or permit to work ). The concept of joint employment is included within the employment relationship, but the status of independent contractor is not considered employment

12 What Does the Term Independent Contractor Mean in the AWPA Context? An independent contractor is an individual who performs services but is not an employee of the person utilizing the services. Independent contractors are not covered by MSPA protections that apply to employees. 15 How Does One Determine If an Individual Is an Independent Contractor in the Agricultural Context? This is done by examining whether the individual (who may be either a farm labor contractor or a worker) is economically dependent upon the person who utilizes his/her services. If the individual is economically dependent upon that person, that individual is an employee

13 (continued) Simply being licensed as a farm labor contractor does not in itself make the farm labor contractor an independent contractor. He/She may be an employee of the person utilizing his/her services. If the farm labor contractor is an employee of the person utilizing his/her services, the workers in the crew are also employees of that person. The determination of independent contractor status is based on all of the circumstances, including the following: The nature and degree of the alleged employer s control as to the manner in which the work is performed The alleged employee s opportunity for profit or loss depending upon his/her managerial skill The alleged employee s investment in equipment or materials required for the task, or the alleged employee s employment of other workers Whether the services rendered by the alleged employee require special skill The degree of permanency and duration of the working relationship The extent to which the services rendered by the alleged employee are an integral part of the alleged employer s business 17 What Does the Term Joint Employment Mean and How Does It Relate to the AWPA? Joint employment means than 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 MSPA, such as accurate and timely disclosure of the terms and conditions of employment, written payroll records, and payment of wages when due

14 How Can One Determine Whether Joint Employment Exists? This is done by examining all the facts in a particular case and examining the realities of the economic relationships between the workers and the alleged employers. The ultimate question is whether the agricultural work is economically dependent upon more than one person. Depending on the facts in each case, the joint employers could be any combination of the grower, the processor, the association, and the farm labor contractor (provided he/she is an independent contractor). Joint employment is not presumed to exist in agriculture, and no one fact or set of facts will necessarily result in a joint employment determination. In making the determination, the following facts must be considered: 19 How Can One Determine Whether Joint Employment Exists? (cont d) Whether the agricultural employer/association has the power, either alone or through control of the farm labor contractor to direct, control, or supervise the worker(s) or the work performed. (Such control may be either direct or indirect, taking into account the nature of the work performed and a reasonable degree of contract performance oversight and coordination with third parties.) Whether the agricultural employer/association has the power, either alone or in addition to another employer, directly or indirectly, to hire or fire, modify the employment conditions, or determine the pay rates for the worker(s) The degree of permanency and duration of the relationship of the parties in the context of the agricultural activity at issue The extent to which the services rendered by the worker(s) are repetitive, rote tasks requiring skills that are acquired with relatively little training 20 14

15 How Can One Determine Whether Joint Employment Exists? (cont d) Whether the activities performed by the worker(s) are an integral part of the overall business operation of the agricultural employer/association Whether the agricultural employer/association s premises, rather than on premises owned or controlled by another business entity Whether the agricultural employer/association undertakes responsibilities in relation to the worker(s) that are commonly performed by an employer, such as preparing and/or making payroll records, preparing and/or issuing paychecks, paying Federal Insurance Contributions Act (FICA) taxes, providing workers compensation insurance, providing field sanitation facilities, housing, or transportation, or providing tools and equipment or materials required for the job (taking into account the amount of the investment) 21 Violations of the AWPA Will Result in Criminal sanctions for knowing and willful violations of the AWPA: Fine up to $1,000 and prison for up to 1 year Criminal sanctions for subsequent violations of the AWPA: Fine of up to $10,000 and prison for up to 3 years Liability in lawsuits by Ag workers Civil sanctions Fine of up to $1,000 for each violation (can be applied per person) Administrative sanctions Farm labor contractors are subject to having their current certificate revoked and future applications for certificates denied. Is there any coverage available for the criminal or civil sanctions above? 22 15

16 Immigration Reform and Control Act (IRCA) The purpose of the IRCA and its subsequent reforms is to control unauthorized immigration to the United States. IRCA has two basic purposes: verifying employees to ensure that they are eligible to work in the United States and prohibiting discrimination with respect to hiring, recruitment, referral for fee, or discharging on the basis of national origin. Is there any insurance coverage available to cover a failure to properly verify employment eligibility? 23 IRCA and Unlawful Employment of Aliens As for continuing employment, IRCA provides that: It is unlawful for a person or other entity after hiring an alien for employment... to continue to employ the alien in the U.S. knowing the alien is (or has become) an unauthorized alien with respect to such employment. Employment practices liability insurance (EPLI) and discriminatory practices could again be implicated. 8 U.S.C. 1324a(A)(2) 24 16

17 Form I-9 Retention Requirements Employers are required to retain the fully completed form for: 3 years from date of hire or 1 year after the date employment ends, whichever date is later. In the case of an Immigration and Customs Enforcement audit, is there any coverage for failure to have properly retained the Form I-9? 25 Tax Responsibilities for Ag Employers Potential tax responsibilities include Income tax withholding Social Security and Medicare (FICA) Federal Unemployment Tax Self-employment Tax Is there any coverage available for an employer s failure to properly withhold or pay taxes? 26 17

18 FMLA, Title VII, ADA, and Ag Employers The Family Medical Leave Act, or FMLA, allows employees to take unpaid leave for certain family and medical reasons if that employer employs 50 or more employees and the affected employee has worked more than 1,275 hours in the prior year. Does EPLI cover FMLA claims? Title VII, which prohibits employers from discriminating against individuals based on race, color, religion, sex, or national origin, applies to employers with 15 or more employees. Does EPLI cover claims under Title VII or other state civil rights acts? The Americans with Disabilities Act (ADA), which prohibits employers from discriminating against individuals based on disability, applies to employers with 15 or more employees. Does EPLI cover claims under the ADA? 27 ADEA, Workers Compensation, and Other Laws Impacting Ag Employers The Age Discrimination in Employment Act, ADEA, which prohibits employers from discriminating against individuals based on age, applies to employers with 20 or more employees. Does EPLI cover ADEA claims? Various state workers compensation acts: for example, in Florida, an Ag employer MUST purchase workers compensation insurance if that Ag employer employs more than four persons Is there any coverage, other than workers compensation insurance, that an Ag employer should consider for protection against work-related injury claims? Health insurance under the Patient Protection and Affordable Care Act (PPACA)? If an Ag employer is covered by the FMLA in other words, if an Ag employer has 50 or more employees under the rubric of PPACA offering health insurance is mandatory, or the employer will be fined under PPACA

19 29 QUESTIONS? 30 19

20 Sensenig Law Firm P.A. Chris Sensenig, Esquire 2055 Wood Street, Suite 103 Sarasota, FL (941)