US Labor Law for Farmworkers
Farmworkers frequently encounter abusive labor practices at the hands of unscrupulous employers. Workers all too often labor for employers who skirt the minimum wage laws or practice other forms of wage theft, work under unhealthy or dangerous conditions, or are made to live in grossly substandard housing. Employment abuses in agriculture are difficult to address because farm work is not covered by many important labor protections enjoyed by most other workers in this country. Nonetheless, farmworkers do rely on some of the provisions of the federal Fair Labor Standards Act (“FLSA”) and the Migrant and Seasonal Agricultural Worker Protection Act (“AWPA”) to provide minimum levels of worker protections. These laws and their impact on the lives of farmworkers are described in some detail below.
The Fair Labor Standards Act (FLSA)
FLSA, originally enacted in 1938, guarantees most workers a minimum wage for each hour worked. FLSA also provides for overtime pay by requiring that most employees who work more than 40 hours in a workweek be paid one and one-half times the regular rate of pay for each hour over forty hours per week. FLSA further requires employers to comply with recordkeeping requirements, including maintaining payroll records for employees
Until 1966, the FLSA excluded farmworkers. FLSA now applies the minimum wage and recordkeeping provisions to most agricultural workers and employers. Agricultural workers who are paid on a piecework basis rather than an hourly basis are entitled to receive the minimum wage — their average earnings should be sufficient to yield an average hourly wage at least equivalent to the minimum wage. The overtime pay provisions of FLSA, however, are still not applicable to farmworkers. Further, the many agricultural workers employed on smaller farms — any farm that employs fewer than roughly seven workers in a calendar quarter — are not even protected by the minimum wage provisions of the FLSA.
The FLSA has child labor protections that offer less protection to agricultural workers than to all other workers. Under the law, for tasks designated by DOL as “hazardous,” there is a minimum age of 18 years for all industries except agriculture, which has a minimum age of 16 for such tasks, even though agriculture is one of the three most dangerous industries. In other ways, the child-labor protections in agriculture are lower than in other industries. For example, for most jobs the normal minimum age is 16 years (with few exceptions), but in agriculture it is 14 years (with many exceptions). Moreover, there are fewer restrictions in agriculture on the number of hours that children are permitted to work.
Migrant and Seasonal Agricultural Worker Protection Act of 1983
The Migrant and Seasonal Agricultural Worker Protection Act (AWPA/MSPA)is the principal federal employment law for farmworkers. While the law does not grant farmworkers the right to join labor unions or access to collective bargaining, it does contain some important protections.
AWPA includes the following requirements: agricultural employers must disclose terms of employment at the time of recruitment and comply with those terms; employers, when using farm labor contractors (“FLCs” or “crewleaders”) to recruit, supervise or transport farmworkers, must confirm that the FLCs are registered with and licensed by the U.S. Department of Labor; providers of housing to farmworkers must meet local and federal housing standards; and transporters of farmworkers must use vehicles that meet basic federal safety standards and are insured. Like FLSA, AWPA does not apply to smaller employers.
In the past, agricultural employers have sought Congressional intervention to substantially weaken AWPA’s protections and enforcement. These companies generally lobby through trade associations and other commodity-based organizations. Legislative proposals have attempted to lower safety requirements for the transportation and housing of farmworkers, weaken enforcement mechanisms, and narrowly define employment relationships so that many growers could not be held responsible as “employers” for labor violations. The agricultural employers’ demands for changes in AWPA are unjustified. Instead of being weakened, AWPA and the enforcement of AWPA should be strengthened.