Farm Labor Contractors Federal vs. State Registration Presented by - - PDF document

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Farm Labor Contractors Federal vs. State Registration Presented by Lindsey Weidenbach, Partner Farm Labor Contractors—Federal Law

• Migrant and Seasonal Agricultural Worker Protection Act (MSPA)
• Generally, the MSPA applies to any person (or business) who recruits,

solicits, hires, employs, furnishes, or transports migrant or seasonal agricultural workers (the MSPA refers to these activities as "farm labor contracting activities").

• Covers:
• safety and health standards for migrant worker housing,
• transportation safety,
• disclosing the terms and conditions of employment to migrant and

seasonal agricultural workers,

• properly paying covered workers, and
• making and keeping accurate payroll records.
• (From http://www.dol.gov/whd/forms/fts_wh530.htm)

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Farm Labor Contractors—Federal Law

• Any person, an agricultural association, or an employee of an

agricultural employer or agricultural association,

• Other than an agricultural employer,
• Who, for any money or other valuable consideration paid or

promised to be paid,

• Performs any farm labor contracting activity.
• 29 U.S.C. 1802(7).

Farm Labor Contracting Activity

• Recruiting, soliciting, hiring, employing, furnishing, or

transporting

• Any migrant or seasonal agricultural worker.
• 29 U.S.C.1802(6).

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Agricultural Employer

• Any 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. 29 U.S.C. 1802(2).

Migrant Agricultural Workers

• Those employed in agricultural work of a seasonal or temporary

nature who cannot return to their permanent residence at night because of the distance involved. 29 U.S.C. 1802(8). Seasonal agricultural workers also are employed in agricultural work of a seasonal or temporary nature, but are able to return to their permanent residence at night. 29 U.S.C. 1802(10).

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Agricultural Employment

• Employment in any service or activity included within the

provisions of section 3(f) of the Fair Labor Standards Act

• f 1938 (29 U.S.C. 203 (f)), or section 3121 (g) of title 26

and the handling, planting, drying, packing, packaging, processing, freezing, or grading prior to delivery for storage of any agricultural or horticultural commodity in its unmanufactured state. 29 U.S.C. 1802(3).

Agriculture

• Includes farming in all its branches and among other

things includes the cultivation and tillage of the soil, dairying, the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities, the raising of livestock, bees, fur-bearing 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

• perations, including preparation for market, delivery to

storage or to market or to carriers for transportation to market.

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Agricultural Labor

• (1) on a farm, in the employ of any person, in connection with cultivating the soil, or

in connection with raising or harvesting any agricultural or horticultural commodity, including the raising, shearing, feeding, caring for, training, and management of livestock, bees, poultry, and fur-bearing animals and wildlife;

• (2) in the employ of the owner or tenant or other operator of a farm, in connection

with the operation, management, conservation, improvement, or maintenance of such farm and its tools and equipment, or in salvaging timber or clearing land of brush and other debris left by a hurricane, if the major part of such service is performed on a farm;

• (3) in connection with the production or harvesting of any commodity defined as an

agricultural commodity in section 15(g) of the Agricultural Marketing Act, as amended (12 U.S.C. 1141j), or in connection with the ginning of cotton, or in connection with the operation or maintenance of ditches, canals, reservoirs, or waterways, not owned or operated for profit, used exclusively for supplying and storing water for farming purposes;

• Section 3121(g) of title 26

Agricultural Labor (cont.)

• (4) (A ) in the employ of the operator of a farm in handling, planting, drying, packing, packaging,

processing, freezing, grading, storing, or delivering to storage or to market or to a carrier for transportation to market, in its unmanufactured state, any agricultural or horticultural commodity; but only if such

• perator produced more than one-half of the commodity with respect to which such service is performed;
• (B) in the employ of a group of operators of farms (other than a cooperative organization) in the

performance of service described in subparagraph (A), but only if such operators produced all of the commodity with respect to which such service is performed. For purposes of this subparagraph, any unincorporated group of operators shall be deemed a cooperative organization if the number of operators comprising such group is more than 20 at any time during the calendar year in which such service is performed;

• (C) the provisions of subparagraphs (A) and (B) shall not be deemed to be applicable with respect to

service performed in connection with commercial canning or commercial freezing or in connection with any agricultural or horticultural commodity after its delivery to a terminal market for distribution for consumption; or

• (5) on a farm operated for profit if such service is not in the course of the employer’s trade or business.
• As used in this subsection, the term “farm” includes stock, dairy, poultry, fruit, fur-bearing animal, and

truck farms, plantations, ranches, nurseries, ranges, greenhouses or other similar structures used primarily for the raising of agricultural or horticultural commodities, and orchards.

• Section 3121(g) of title 26

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Agricultural Employers Excluded

• 29 C.F.R. 500.1(d) of the MSPA: Agricultural employers

and their employees do not need to obtain a Certificate of Registration as a farm labor contractor in order to engage in farm labor contractor activities even if the workers they

• btain are utilized by other persons or on the premises of

another.

• Washington State Supreme Court: The MSPA draws a

clear distinction between the two definitions and “unmistakenly precludes an agricultural employer from also qualifying as a farm labor contractor when it engages in farm labor contractor activity.”

Agricultural Employers Excluded: Case

• California case Phillip D. Bertelsen, Inc. v. Agricultural Labor Relations

Board.

• Employer was a “dual status” employer: a farmer or orange grove

management company that also provided labor to other growers. Bertelsen owns and farms some acreage, provides full farm management services for other acreage, and provides only harvesting labor at still other acreage.

• “[B]y the plain terms of the statute, one cannot be a farm labor

contractor if one is an agricultural employer.” Bertelsen at 771. “Agricultural employers need not obtain certificates of registration in

• rder to engage in labor contracting activities, even if the workers they
• btain are utilized by other persons or on the premises of another.” Id.

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Agricultural Employers Excluded: Case

• Washington Case: Saucedo v. NW Management and

Realty Services, Inc.

• Court: MSPA “unmistakenly precludes an agricultural

employer from also qualifying as a farm labor contractor when it engages in farm labor contractor activity.”

Washington State Law: Farm Labor Contractors Act RCW 19.30

• “Person” includes any individual, firm, partnership, association, corporation, or unit
• r agency of state or local government.
• “Farm labor contractor” means any person, or his or her agent or subcontractor,

who, for a fee, performs any farm labor contracting activity.

• Farm labor contracting activity” means recruiting, soliciting, employing,

supplying, transporting, or hiring agricultural employees.

• “Agricultural employer” means any person engaged in agricultural activity,

including the growing, producing, or harvesting of farm or nursery products, or engaged in the forestation or reforestation of lands, which includes but is not limited to the planting, transplanting, tubing, precommercial thinning, and thinning

• f trees and seedlings, the clearing, piling, and disposal of brush and slash, the

harvest of Christmas trees, and other related activities.

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Washington State Law: License Required

• No person shall act as a farm labor contractor until a license to

do so has been issued to him or her by the director, and unless such license is in full force and effect and is in the contractor's

• possession. The director shall, by regulation, provide a means of

issuing duplicate licenses in case of loss of the original license

• r any other appropriate instances. The director shall issue, on a

monthly basis, a list of currently licensed farm labor contractors.

• RCW § 19.30.020

Exceptions

• …This chapter shall not apply to … any common carrier or full

time regular employees thereof while transporting agricultural employees, nor to any person who performs any of the services enumerated in subsection (3) of this section only within the scope of his or her regular employment for one agricultural employer on whose behalf he or she is so acting, unless he or she is receiving a commission or fee, which commission or fee is determined by the number of workers recruited, or to a nonprofit corporation or organization which performs the same functions for its members. …

• RCW § 19.30.010

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Saucedo v. NW Management and Realty Services, Inc.

• Issue: Whether or not NWM was a farm labor contractor for state purposes.
• NWM argued it was not a farm labor contractor because, for federal purposes,

the definition of farm labor contractor specifically excludes those who qualify as an agricultural employer.

• The Court disagreed stating, “[u]nlike the federal Agricultural Workers

Protection Act, the FLCA does not specifically exclude ‘agricultural employers’ from the definition of ‘farm labor contractor.’”

• MSPA draws a clear distinctions between the two definitions and

“unmistakenly precludes an agricultural employer from also qualifying as a farm labor contractor when it engages in farm labor contractor activity.”

• Under this interpretation of the federal statute, when a person or entity that

qualifies as an “agricultural employer” recruits, solicits, hires, employs, furnishes, or transports any migrant or seasonal agricultural worker, they are not a farm labor contractor.

Farm Labor Contractors:

Federal vs. State Law

Federal Law

• Migrant and Seasonal Agricultural Worker Protection Act (MSPA). 29

U.S.C. 1801.

• Any person (or business) except agricultural employers who recruits,

solicits, hires, employs, furnishes, or transports migrant or seasonal agricultural workers must register as a farm labor contractor. State Law

• RCW 19.30 et seq., Farm Labor Contractor Act (FLCA)
• Anyone who recruits, solicits, employs, supplies, transports, or hires

agricultural employees for a fee must register as a farm labor contractor.

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Conclusion

• Agricultural employers who also act as farm

labor contractors are required to register as farm labor contractors under Washington State law but are not required to register under federal law.

WA farm labor contractor licensing

• You will need:
• A Washington State business license from the Washington State Business Licensing Service.
• A completed Farm Labor Contractor license application form (F700-014-000)
• Tax compliance certifications.
• A surety bond or cash deposit (minimum bond amount required).
• $5,000 for 1 – 10 employees.
• $10,000 for 11 – 50 employees.
• $15,000 for 51 – 100 employees.
• $20,000 for 100 or more employees.
• Proof of auto liability insurance, if you plan to provide transportation to workers.
• Minimum coverage required:
• $50,000 injury or damage to property; and
• $100,00 for injury or damage, including death, to any one person; and
• $500,00 for injury or damage, including death, to more than one person.

(From http://lni.wa.gov/WorkplaceRights/Agriculture/FarmLabor/GetLicensed/default.asp)

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Questions?

Lindsey Weidenbach Jeffers, Danielson, Sonn & Aylward, P.S. 2600 Chester Kimm Rd. Wenatchee, WA 98801 Phone: (509) 662-3685 Email: lindseyw@jdsalaw.com