Labor Standards in Agriculture Presented by the U.S. Department of - - PowerPoint PPT Presentation

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Labor Standards in Agriculture

Presented by the U.S. Department of Labor Wage & Hour Division

Seattle District Office

May 2016 David Miljoner, Assistant Director, Seattle Office

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Fact Sheet # 44: Visits to Employers

 WHD is responsible for administering

and enforcing a number of federal laws which set basic labor standards, among them:

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Compliance Responsibilities

 Fair Labor Standards Act  * * Child Labor in Agriculture  Migrant & Seasonal Agricultural

Worker Protection Act

 Occupational Safety and Health Act

(OSHA) (citation) sets field sanitation

 Section 216 of the Immigration and

Nationality Act (H-2A)

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Visits to Employers

An investigator from WHD may conduct an investigation to determine whether these laws apply to an employer. If the employer is subject to these laws, the investigator will verify that workers are paid and employed properly according to the laws administered, and that youths under age 18 are employed as provided by the child labor provisions.

The WHD does not require an investigator to previously announce the scheduling of an investigation, although in many instances the

investigator will advise an employer prior to opening the investigation.

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Visits to Employers

 The investigator has sufficient latitude to initiate

unannounced investigations in many cases in order to directly observe normal business operations and develop factual information quickly.

 An investigator may also visit an employer to provide

information about the application of, and compliance with, the labor laws administered by WHD.

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Why is an employer selected for an investigation?

 The WHD conducts investigations for a number of

reasons, all having to do with enforcement of the laws and assuring an employer’s compliance. WHD does not disclose the reason for an investigation. Many are initiated by complaints All complaints are

confidential

 In addition to complaints, WHD selects certain types

• f businesses or industries for investigation.

 Regardless of the reason all are conducted in

accordance with established policies and procedures.

 FS

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I nvestigation Procedures

 Section 11(a) of the FLSA authorizes representatives

• f the Department of Labor to investigate and gather

data concerning wages, hours, and other employment practices; enter and inspect an employer’s premises and records; and question employees to determine whether any person has violated any FLSA provision

 The WHD investigator will identify himself/herself and

present official credentials. The investigator will explain the investigation process and the types of records required during the review.

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I nvestigation Steps

 Examination of records to determine which laws or

exemptions apply.

 Examination of payroll and time records, and taking

notes or making transcriptions or photocopies

 Interviews with certain employees in private.  Meet with the employer and/or a representative of

the firm who has authority to reach decisions and commit the employer to corrective actions if violations have occurred

 Employers may be represented by their accountants

• r attorneys at any point

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What enforcement remedies are available ?

 The FLSA gives the Department of Labor

(“Department”) the authority to :

 recover back wages and liquidated damages (to be

paid to employees)

 o assess civil money penalties (to be paid to the

government), in instances of minimum wage,

• vertime, and other violations.

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What enforcement procedures are provided under the laws?

 The Department makes every effort to

resolve most compliance issues

• administratively. If appropriate, the

Department may litigate and/or recommend criminal prosecution.

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Administrative procedures

 Supervise the payment of unpaid compensation owed

to any employee(s).

 • In lieu of litigation, the Department may seek back

wages, liquidated damages, and civil money penalties, if applicable, through settlements with employers.

 • Civil money penalties may be assessed for child

labor violations, repeat and/or willful violations of FLSA minimum wage or overtime requirements, and

• ther violations under the MSPA.

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Litigation procedures

 Litigation procedures:  • The Department may file a lawsuit in U.S. District

Court

 • The Department may seek a U.S. District Court

injunction to restrain violations of the law,

 • The Department may seek an order for payment of

civil money penalties from a U.S. Department of Labor Administrative Law Judge.

 • An employee may file a private suit to recover back

wages, an equal amount in liquidated damages, plus attorney’s fees and court costs. • The FLSA provides that DOL may seek a U.S. District Court order to h hi f h ff d d

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Litigation procedures

 • An employee may file a private suit to recover back

wages, an equal amount in liquidated damages, plus attorney’s fees and court costs.

 • The FLSA provides that DOL may seek a U.S.

District Court order to prevent the shipment of the affected goods.

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Criminal prosecution

 Employers who have willfully violated the law may be

subject to criminal penalties, including fines and imprisonment.

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Retaliation is prohibited

 Employees who have filed complaints or provided

information cannot be discriminated against or discharged on account of such activity. If adverse action is taken against an employee for engaging in protected activity, the affected employee or the Secretary of Labor may file suit for relief, including reinstatement to his/her job, payment of lost wages, and damages.

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Fair Labor Standards Act (FLSA)

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FLSA Overview

 Minimum Wage-$7.25 per hour  Overtime - after 40 hours per week  Child labor  Recordkeeping provisions

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Coverage

 “Coverage” refers to whether a

business or worker is subject to the FLSA.

• “Covered” means subject to FLSA.
• “Not Covered” means not subject to FLSA.

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FLSA Coverage

 Two Types of Coverage

• Enterprise Coverage: If an enterprise is

covered, all employees of the enterprise are entitled to FLSA protections.

• Individual Coverage: Even if the enterprise

is not covered, individual employees may be covered and entitled to FLSA protections.

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Enterprise Coverage

 Enterprise with:

• At least two (2) employees
• At least $500,000 a year in gross receipts

 If these two conditions are met, then all

employees are covered

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Individual Coverage

 Workers who are engaged in:

• Interstate commerce;
• Production of goods for commerce;
• Closely-related process or occupation

directly essential (CRADE) to such production

 Essentially all field workers are

individually covered by FLSA

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FLSA Minimum Wage

$7.25 per hour

• Minimum rate must be paid

regardless of method of payment: –hourly –piece rate –job rate –day rate –salary

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FLSA Overtime to be paid

 Time and one half after forty hours

must be paid in these cases:

• Certain Packing/Processing plants

– Where goods are processed for more than one farmer

• Retail operations off the farm

– Example: nursery outlets

• Reforestation and Christmas Trees

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Deductions not allowed

 Deductions from pay not allowed if:

• Deduction is for item that is for the

employer’s benefit or convenience; and,

• The deduction reduces the employee’s

earnings below minimum wage,

• r
• The deduction is from overtime pay

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Examples

 Examples of deductions not allowed:

• Tools required to do the work
• Damages to employer property
• Theft of employer property
• Safety equipment required by law

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Exemptions

 Exemption means that certain

requirements do not apply even if the business or worker is covered by the FLSA.

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Wage requirements do not apply

 When:

• Fewer than 500 man days on the farm in

every calendar quarter last year

• Worker is either the spouse, parent, child,

brother or sister of the owner

• Local hand harvest worker paid a piece

rate who worked fewer than 13 weeks last year

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FLSA Overtime Exempt

 Workers employed solely in agriculture

need NOT be paid overtime

 Examples:

– Field workers – Tractor operators – Loaders and drivers – Farm office personnel

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FLSA Record Keeping

 Records for each employee

• Name, address and social security number
• Date of birth for young workers
• Hours worked per day and week
• Rate of pay
• Gross wages
• All deductions

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Compliance Assistance Materials

 Fair Labor Standards Act  29 C.F.R. Part 780  Fact Sheet No. 012 Agricultural

Employers Under The Fair Labor Standards Act (FLSA)

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The child labor rules that apply to agricultural employment depend on the age of the young worker and the kind of job to be performed. The rules are the same for all youth, migrant children as well as local resident children. Children under 16 may not work when school is in session. In addition, the Secretary of Labor has declared that certain jobs in agriculture are too hazardous for anyone under 16 to perform.

Child Labor in Agriculture

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Parental Exemption

The FLSA contains an exemption from the agricultural youth employment provisions which allows minors of any age to work at any time in any job on a farm owned or operated by their parent

• r a person standing in place of their

parent.

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Once young persons turn 16 years old, they may perform any job in agriculture. A minor 14 or 15 years old may work in agriculture,

• n any farm, but only outside of school hours and in

non-hazardous jobs. A minor 12 or 13 years of age may work in agriculture on a farm outside of school hours and in non-hazardous jobs, but only if a parent has given written permission or if a parent is working on the same farm as his or her child.

Minimum Age Standards

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If the minor is younger than 12, he or she may work in agriculture only on small farms that are not required to pay the Federal minimum wage. The minor must have parental permission and may only be employed outside

• f school hours in non-hazardous jobs.

Under the FLSA, a “sm all ll farm ” is exempt from the minimum wage requirements if it did not use more than 500 “man days” in any calendar quarter during the preceding year.

Minimum Age Standards

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Minimum Age Standards

The FLSA still contains provisions that permit local minors who are 10 and 11 years of age to be employed to hand harvest short-season crops outside school hours for no more than 8 weeks between June 1 and October 15 if their employer has obtained a special waiver from the Secretary of Labor.

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Permitted Occupations

Minors under age 16 may engage

in many activities involved in agriculture.

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Hazardous Occupations

The Secretary of Labor has prohibited employment in certain agricultural

• ccupations for minors under the

age of 16.

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Hazardous Occupation No. 1

Bans operating tractors with in excess

• f 20 Power-Take-Off (PTO)

horsepower

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Hazardous Occupation No. 2

Bans operating or helping to operate pickers, combines, mowers and other implements

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Exemption from Hazardous Occupations Nos. 1 and 2

14- and 15-year old minors who hold certificates of completion from the 4-H Federal Extension Service Training Program for either tractor operation or machine operation may work in the

• ccupations for which they have been

trained.

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Hazardous Occupation No. 3

Bans operating (or helping to

• perate) trenchers, forklifts, potato

combines or power-driven saws

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Hazardous Occupation No. 4

Bans work with certain animals in farmyards, pens or stalls

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Hazardous Occupation No. 5

Bans felling timber with a diameter

• f over 6 inches

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Hazardous Occupation No. 6

Bans working from ladders or scaffolds at heights over 20 feet

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Exemption from Hazardous Occupations Nos. 1 through 6

14- and 15-year old student-learners

enrolled in vocational agricultural programs are exempt from Hazardous Occupations Nos. 1 through 6 when certain requirements are met.

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Hazardous Occupation No. 7

Bans driving a vehicle transporting

passengers or riding on a tractor

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Hazardous Occupation No. 8

Bans working inside certain storage structures and in manure pits

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Hazardous Occupation No. 9

Bans handling certain agricultural

chemicals

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Hazardous Occupation No. 10

Bans handling blasting agents

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Hazardous Occupation No. 11

Bans handling anhydrous ammonia

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Tips for Employers

Remember, hired farmworkers may

not waive the child labor requirements for their own children.

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Tips for Employers

Verify ages of young employees Know the child labor requirements Train managers on the child labor requirements Give minor employees information on the child labor requirements

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More Employer Tips

Review time records for minors Post warning labels on prohibited equipment Make compliance important Encourage minors to say “no” if asked to do something prohibited

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Compliance Assistance Materials - Child Labor

 The Fair Labor Standards Act  The Regulations 29 CFR 570  Child Labor Bulletin 102  Handy Reference Guide  Child Labor Advisor  Fact Sheet 40  Poster

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The Migrant & Seasonal Agricultural Workers Protection Act (MSPA)

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MSPA Overview

 Coverage  Joint Employment  Registration  Disclosure  Records  Wages  Safe Transportation  Safe Housing  Exemptions

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Disclaimer



This presentation is intended as general information only and does not carry the force of legal opinion.



The Department of Labor is providing this information as a public service. This information and related materials are presented to give the public access to information on Department of Labor programs. You should be aware that, while we try to keep the information timely and accurate, there will often be a delay between official publications of the materials and the modification of these pages. Therefore, we make no express or implied guarantees. The Fed

eder eral Register

and the Code

e of Fed eder eral Reg egulat ions remain the official source

for regulatory information published by the Department of

• Labor. We will make every effort to keep this information

current and to correct errors brought to our attention.