MIGRANT AND SEASONAL WORKER PROTECTION

MIGRANT AND SEASONAL WORKER PROTECTION In 1983, in response to the growing concern over abuses of migrant workers in the agricultural industry, Congress enacted the Migrant and Seasonal Agricultural Workers Protection Act (the MSAWPA or the Act ). The Act applies to almost all entities that employ agricultural workers on a temporary or seasonal basis. If a winery uses migrant or seasonal workers to harvest grapes or to process grapes purchased from another vineyard, the MSAWPA will likely apply. Failure to comply with the Act can lead to substantial penalties and even criminal sanctions. Because the potential liability is so high, it is important to know what the MSAWPA requires and to comply with it. There is also a Washington statute that provides protection to migrant and seasonal workers and imposes liability for violations of the statute. The general provisions of the federal and state laws are listed below. 1. Exemptions. FEDERAL LAW Although the MSAWPA is quite broad, several types of agricultural operations are exempt from the Act. The exemptions most likely to apply to a winery are as follows. a. Family Business. If your business is owned or operated exclusively by you or an immediate family member, the MSAWPA does not apply. However, if anyone besides an immediate family member recruits, hires, or transports the workers (even driving workers from their residences to the fields or winery) 1, the exemption is lost. b. Small Business. If, during the previous calendar year, your business did not use more than 500 man days of agricultural labor during any calendar quarter, 2 the MSAWPA does not apply. A man-day is any day an employee works at least one hour in agricultural labor (i.e., if five employees each work one hour during the day, five man-days have been used). Even if an operation is exempt from the MSAWPA, the operation is still subject to the state laws, and there are no exemptions under state law. 1 Soto v. McLean, 20 F. Supp. 2d 901 (E.D.N.C. 1988). 2 29 USCA 213(a)(6)(A); Aviles v. Kunkle, 765 F. Supp. 358 (S.D. Tex. 1991), vacated 978 F.2d 201, reh g denied. 1

2. Workers Covered by the MSAWPA. The MSAWPA distinguishes between migrant and seasonal workers, although there is little difference in the protection given to the two groups. Migrant workers are those who are employed on a seasonal or temporary basis and are required to be absent overnight from their permanent places of residence. Seasonal workers are the same as migrant workers, except they are not required to be absent from their permanent residences overnight. Immediate family members of the agricultural employer are not covered employees. 3 3. Requirements of the MSAWPA. a. Must Register with the U.S. Department of Labor. Any person who engages in farm labor contracting must have a certificate of registration from the U.S. Department of Labor (the DOL ) specifying which activities the person is authorized to perform. Farm labor contracting includes recruiting, soliciting, hiring, employing, furnishing, or transporting any migrant or seasonal agricultural worker. This definition is quite broad and requires anyone who employs migrant or seasonal agricultural workers to register unless the employer is exempt from the MSAWPA. b. Must Inspect Farm Labor Contractor s License. A farm labor contractor is anyone other than an agricultural employer who engages in any farm labor contracting activity. Generally, farm labor contractors are those who provide workers for another s agricultural operation. All farm labor contractors must be licensed by the DOL. Any person who utilizes the services of a farm labor contractor must take reasonable steps to determine that the contractor has a valid license. It is reasonable to rely on possession of a certificate issued by the DOL or on independent confirmation from the DOL. c. Must Disclose the Terms and Conditions of Employment. i. Migrant Workers. Every person who recruits a migrant worker must disclose in writing to the worker a substantial amount of information at the time the worker is being recruited. Recruits is a broad term that includes preemployment discussions but does not include mere hiring in the absence of recruitment, as when workers seek employment without solicitation by the employer. 4 The required disclosure includes: place of employment; 3 29 USCA 1802(8)(B)(i). 4 Elizondo v. Podgorniak, 70 F. Supp. 2d 758, 776-77 (E.D. Mich. 1999). 2

wages (including piece rates if applicable); crops and kind of activities the worker will be doing; period of employment; the transportation, housing, and other benefits provided to the employee and the cost to be charged for such benefits; the existence of a strike or other concerted work stoppage; whether any business in the area has an agreement to pay a commission to the employer for any sales the business receives from the worker; and whether state workers compensation or state unemployment insurance is provided. If workers compensation is provided, the name of the policyholder of the insurance and the name and phone number of each person who must be notified of injury or death, and the time period within which notice must be given. 5 ii. Seasonal Workers. This same information only needs to be given to seasonal workers upon request at the time the offer of employment is made. d. Must Post Federal Laws in a Conspicuous Place. The employer must also post in a conspicuous place a poster provided by the DOL that sets forth the workers statutory protections. All of the disclosure information must be provided in writing in English. When necessary and reasonable, this information must also be provided in a language common to migrant agricultural workers. Additional posting requirements apply to any person or organization that owns or controls a facility or real property used for housing migrant workers. This posting must include: 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; 5 29 USCA 1821(a)(8). 3

the charges to be made for housing and utilities; and the meals to be provided and the charges to be made for them. e. Must Keep Records for Three Years. The employer must keep and preserve records for three years about the following: the basis on which the wages were paid, the number of piecework units earned, the number of hours worked, total pay-period earnings, specific sums withheld and the reasons for such withholding, and the net pay. This information must also be provided in writing to the worker for each pay-period. Even if the workers are being paid on a piece-rate basis, they must still be paid the equivalent of the federal minimum wage. Thus it is important that the employer keep accurate records of the hours worked and wages paid in order to prove that the workers were being paid at least the minimum wage. f. Must Ensure That Housing and Vehicles, if Provided, Meet Federal and State Safety Standards. If the employer provides housing, or transportation to and from the workplace, the MSAWPA regulations provide detailed specifications regarding safety, health, and insurance. These should be consulted as needed. The following types of transportation are not subject to the requirements of MSAWPA: transportation on tractors, combines, harvesters, pickers, or other similar machinery and equipment if the worker is actually engaged in the planting, cultivating, or harvesting of any agricultural commodity; bona fide carpooling arrangements where the workers make all of the arrangements themselves, use their own vehicles, and are not specifically directed or requested by the employer to participate; and transportation when the only other occupants of the person s vehicle are members of his or her immediate family. 4. Penalties For Violating the MSAWPA Are Substantial. Anyone who willfully and knowingly violates the MSAWPA is subject to criminal sanctions of up to one year in prison and a fine up to $1,000, or both. For subsequent violations, the individual can receive up to three years in prison and a fine of up to $10,000. In addition, civil penalties of up to $1,000 for each violation may be assessed by the DOL. The MSAWPA also allows the employees to sue if the employer intentionally violated any provision of the Act. Intentionally merely means that the person consciously committed the 4

act that violated the MSAWPA (i.e., the act was not accidental or involuntary). Ignorance of the law does not prevent an act from being intentional. The wronged employee may sue to recover the actual damages suffered or up to $500 per plaintiff per violation. In egregious cases, plaintiffs may also recover for emotional distress damages. 6 If a class action is certified, the maximum award will be $500,000 plus equitable relief. WASHINGTON LAW All farm labor contractors must be licensed by the state. Washington s Farm Labor Contractor Act (RCW ch 19.30) substantially parallels federal law and requires farm labor contractors to obtain a license from the Department of Labor and Industries; 7 in addition, contractors are required to maintain automobile liability insurance and post a surety bond. Contractors are required to disclose to agricultural employers the amount of the security bond and the existence and amount of any claims against the bond. Any agricultural employer who knowingly uses the services of an unlicensed farm labor contractor will be held personally, jointly, and severally liable with the contractor for a criminal penalty of up to $5,000 and civil penalties of up to $1,000 per violation, plus damages, costs, and attorneys fees. This means that even though the farm labor contractor is ultimately liable, the agricultural employer is also liable and must pay the full amount if the contractor does not have sufficient resources. To avoid liability, an agricultural employer may rely upon the contractor s license or the Department of Labor and Industries representation that the contractor is licensed. In 1995, the Washington legislature enacted RCW 70.114A, which provides for the health and safety of migrant and seasonal workers living in temporary worker housing operations. The law applies to temporary worker housing that consists of five or more dwelling units, or any combination of dwelling units that house ten or more occupants. The statute defines temporary workers as agricultural employees employed intermittently and not residing year-round at the same site. Operators are defined as persons holding legal title to the land on which temporary worker housing is located or having the lawful control or supervision over the temporary worker housing. The Department of Health and Department of Labor and Industries are jointly responsible for establishing and enforcing minimum standards for temporary worker housing operations. Chapter 246-358 of the Washington Administrative Code sets forth rules adopted by the Department of Health for constructing and operating temporary worker housing. Part L of Washington Administrative Code, Chapter 296-307 similarly establishes minimum health and safety requirements for temporary worker housing. Operators with ten or more occupants are required to be licensed. Smaller operators are not required to be licensed, but must comply with the standards set forth in the regulations. The regulations cover all aspects of migrant worker housing, including cooking facilities, toilets, laundry facilities, and water supply. Temporary worker housing operations are subject to inspection and the state agencies can cite operators for violations of the minimum health and safety standards. However, upon application, operators may be issued variances from the requirements of the standard when another means of providing equal protection is provided. 6 Martinez v. Shinn, 992 F.2d 997, 999 (9th Cir. 1993). 7 Escobar v. Baker, 814 F. Supp 1491 (W.D. Wash 1993). 5

The state and federal laws governing migrant and seasonal workers supplement, but do not replace, the various labor and employment laws governing workers in general. These include wage and hour laws, discrimination and harassment, union organizing and a host of other laws. A migrant and seasonal workforce often includes families. This can result in employment of younger workers. Employers can hire minor workers for agricultural jobs but should be aware of the special laws that apply in such situations. There are unique rules for minors on wages, hours, breaks, and prohibited jobs. For more information on hiring minor workers for agricultural jobs in Washington, see http://www.lni.wa.gov/workplacerights/teenworkers/agri/default.asp. CONCLUSION Under either federal or state law, if you are paying someone else to provide temporary workers, you must make sure that person is licensed by both the state and the federal government, and you must keep a copy of the license for your records. Federal law imposes additional requirements of disclosure of information to the workers, and these requirements should be adhered to. The law in this area is not completely clear, and the courts will liberally construe the law to protect the workers. With that in mind, if there is any question about the applicability of the laws or whether you have complied with the laws, err on the side of caution. 6