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FLSA, originally enacted in 1938, guarantees most workers a minimum wage for each hour worked.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 current federal minimum wage is $7.25 per hour (as of July 24, 2009). Previously, the federal minimum wage of $5.15 per hour had not been raised since 1997, leaving a significant proportion of farmworkers below the poverty line and unable to meet the basic costs of living.
Most states have also enacted minimum wage laws. View the state minimum wages map (January 2012).
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. There are no restrictions on agricultural work being done by children as young as 12 years old early in the morning or late into the night. Nor does the FLSA contain any restrictions on the number of hours worked per day or per week by young farmworkers (except that no work can be done during school hours). The law's protections against the hazards of students working in shopping malls are stronger than the protections against children working in agriculture where toxic pesticides, heavy machinery and other hazards threaten their future. In addition, agricultural employers' ability to employ low-cost child labor (often "off the books") helps to perpetuate adult farmworkers' low rates of pay, which in turn prevents farmworkers from earning enough to obtain child care or prohibit their children from working in the fields.
Migrant and Seasonal Agricultural Worker Protection Act of 1983 (AWPA/MSPA)
The Migrant and Seasonal Agricultural Worker Protection Act 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. Its roots are in a 1963 law that was enacted in the wake of Edward R. Murrow's shattering documentary film about farmworkers Harvest of Shame, aired by CBS during Thanksgiving in 1960.
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.
Congress enacted AWPA in 1983 to replace an earlier law, the Farm Labor Contractor Registration Act of 1963 (FLCRA). FLCRA focused on regulating farm labor contractors, who were notorious for refusing to pay workers their wages and subjecting farmworkers to debt peonage and even slavery. In enacting AWPA, the legislature established labor law obligations on the part of the growers who employ farmworkers even if the growers use the services of farm labor contractors. Some growers have claimed that they do not "employ" any farmworkers and therefore need not comply with the minimum wage or other labor laws; such growers contend that the labor contractor is the sole "employer" of the farmworker. In some instances, growers contend that farmworkers are "independent contractors" and not "employees" at all. To address such problems, Congress also adopted a broad definition of employment relationships so that in most cases a farmworker is an "employee" and the grower who uses a FLC is responsible, as a joint employer with the FLC, for providing farmworkers with AWPA's labor protections. The law is administered and enforced by DOL's Wage and Hour Division, and through lawsuits in federal courts that may be filed by farmworkers.
In the past, agricultural employers have sought Congressional intervention to substantially weaken AWPA's protections and enforcement. These companies generally lobby through trade associations, such as the National Council of Agricultural Employers, the American Farm Bureau Federation, state Farm Bureaus, the California Grape and Tree Fruit League and other commodity-based organizations. Such groups make various arguments, including that compliance with AWPA is onerous, that it "unfairly singles out agriculture," that the enforcement of the law is heavy-handed, and that they are competing in a global economy where many countries have even fewer protections for workers. 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.