2003 Handbook of Employment Regulations Affecting Florida Farm Employers and Workers: Migrant and Seasonal Agricultural Worker Protection Act (MSPA) [Federal]
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2003 Handbook of Employment Regulations Affecting Florida Farm Employers and Workers: Migrant and Seasonal Agricultural Worker Protection Act (MSPA) [Federal]

   

2003 Handbook of Employment Regulations Affecting Florida Farm Employers and Workers: Migrant and Seasonal Agricultural Worker Protection Act (MSPA) [Federal]1

Leo C. Polopolus, Michael T. Olexa, Fritz Roka, and Carol Fountain2

Purpose

The Migrant and Seasonal Agricultural Worker Protection Act (MSPA) establishes federal standards specific to farmworkers. (No other U.S. industry has a labor standard that applies solely to its workforce.)

The original intent behind MSPA was to ensure that migrant and seasonal workers received information and standards on pay rates and deductions, working conditions, insured transportation, and employment activities.

Who Must Comply

MSPA applies to any agricultural employer:

Definitions

"The definition of the term employ includes the joint employment principles applicable under the Fair Labor Standards Act. The term joint employment means a condition in which a single individual is regarded under law as an employee of two or more persons at the same time."

A determination of whether the employment is to be considered joint employment depends on all the facts in that particular case.

If the facts establish that two or more persons are completely disassociated with respect to the employment of a particular employee, a joint employment situation does not exist. When employers share responsibility for activities set out in the following factors or in other relevant facts, this is an indication that these employers are not completely disassociated with respect to the employment and that the agricultural worker may be economically dependent on both persons.

If it is determined that a farm labor contractor is an independent contractor, it still must be determined whether or not the employees of the farm labor contractor are also jointly employed by the agricultural employer/association. Joint employment under the Fair Labor Standard Act is joint employment under MSPA.

In determining whether or not an employment relationship exists between the agricultural employer/association and the agricultural worker, the ultimate question to be determined is the economic reality of whether the worker is so economically dependent upon the agricultural employer/association as to be considered his/her/its employee.

Factors to be considered in determining whether or not an employment relationship exists include:

Disclosure Requirements

MSPA requires employers to disclose a variety of employment terms and conditions to migrant and seasonal workers. The disclosure burden is greater for employers with migrant workers. All disclosures must be in English, Spanish, or another language understood by the workers. The United States Department of Labor (DOL) has disclosure forms available in English, Spanish, and Haitian Creole. Farm labor contractors must also provide a written disclosure statement to workers, regardless of the type of worker.

Among the requirements:

Farm labor contractors, agricultural employers, and agricultural associations are all subject to MSPA's disclosure requirements. Using DOL Form WH-516 is recommended.

Disclosure must cover these items:

Following Congressional action with the Adams Fruit Bill in 1996, disclosure requirements pertaining to Workers' Compensation were substantially expanded. Growers must disclose whether Workers' Compensation is provided and, if so, the name of the Workers' Compensation insurance carrier, the name of the policy holder, the name and telephone number of each person who must be notified of an injury or death, and the time period within which the notice must be given. Optional Form WH-516 has been revised accordingly.

The Workers' Compensation disclosure requirement can alternatively be met by the employer providing the worker with a photocopy of any notice regarding Workers' Compensation insurance required by state law.

When properly used, the disclosure form can be a useful tool for employers in hiring/replacing workers. Generally, stating on the disclosure form that no guarantees exist as to the length of employment (season) and employment activities and practices protects the employer from breach of contract claims.

Note: The MSPA regulations prescribe fines and penalties for false or misleading statements (29 C.F.R. 500.77). An employer who promised one rate of pay in the WH-516, but pays another, lower rate may be assessed penalties not only for showing a false rate of pay, but may also be assessed back wages for the difference in the two rates. The same occurs for deductions. An employer who does not list specific deductions from pay for items such as picking sacks or transportation costs will be penalized for not disclosing this information and will be required to refund the deductions.

Exemptions

The two major MSPA exemptions are the family farm and small business exemptions. A farm operator must meet only one of the two tests, not both. If he or she meets the test for a family business, even though he or she hires over 500 man-days of labor, he or she is exempt from MSPA. (A man-day is any day in which one nonfamily worker works one hour.)

Under the family business exemption, a person who engages in a farm labor contracting activity on behalf of a farm that is owned or operated exclusively by that person or by an immediate family member is exempt from MSPA.

Immediate family members include spouses, children, stepchildren, parents, stepparents, brothers, and sisters. The exemption does not apply if anyone other than those people engages in MSPA activities (recruiting, soliciting, hiring, employing, furnishing, or transporting), even if it is at the direction of an immediate family member.

Note: The DOL contends that a referral from the Jobs and Benefits Center breaches the family exemption.

The family business exemption also does not apply if a licensed or unlicensed farm labor contractor is used at any time during the year.

The small business exemption exempts from MSPA coverage agricultural employers who did not use more than 500 man-days of agricultural labor during any calendar quarter of the previous year. All labor performed on the farm, whether seasonal or full-time, counts toward calculation of the 500 man-day test.

In a joint employment relationship, the man-days worked are counted toward each employer for purposes of the man-day test.

Other MSPA exemptions include:

Posting Requirements

The yellow MSPA poster (DOL Form 1376) must be posted in a conspicuous place where migrant and seasonal workers are employed. This poster outlines workers' rights and protections. In joint employment situations, both parties are equally responsible for displaying the poster. The poster should be secured so it cannot easily be removed.

Where there might be a language problem, DOL Form WH-516, the yellow MSPA poster (Form 1376), and Form WH-521 (housing) must be in a language spoken by the workers. The DOL's Wage and Hour Division also has Form WH-501 (wages and payroll available in Spanish), but it is an optional form.

Farm Labor Contractors

Farm labor contractors (FLC) must be registered for all activities in which they will be engaged before being engaged in those activities. This includes registration for license to hire and employ, as well as housing, transportation, and driving authorization.

The FLC's license should indicate all activities likely to be performed and all housing and vehicles authorized to use. Employees of FLCs engaged in such activities must be licensed as well.

FLCs and their registered employees must carry their certificates of registration at all times and upon request exhibit the certificates.

FLCs must seek to amend their certificates of registration each time changes occur in address, vehicles, and/or housing to be used.

Copies of all payroll records of FLCs must be provided to the grower, processor, or packer for each place of employment.

A licensed employee of an FLC may have what is known as an "E" certificate. This type of license means that the individual may only work on behalf of the FLC shown on his or her license. The individual with an "E" certificate may not work for, or represent any other FLC, nor work as an FLC in his or her own right.

Anyone using an FLC who will be transporting should closely check that all transportation vehicles to be used are listed on the license. The transportation authorization also has its own expiration date and it is usually different from that of the license itself. Most FLCs meet the insurance requirements for transportation authorization by having Workers' Compensation. The name of the policy holder is on the bottom of the FLC's federal license. The contractor and Workers' Compensation holder should be in the same name, unless the grower using the FLC will provide the Workers' Compensation coverage. In that case, the name of the growers as well as the Workers' Compensation holder will be on the federal license.

If the FLC is providing housing, the name of the facility and location will be indicated on the FLC federal license.

Wage and Payroll Records

Employees must be given complete wage statements when paid (no less than semi-monthly).

FLCs and/or agricultural employers must produce for each employee specific information (Form WH-501). The following information must be made, kept, and preserved for three years:

Housing Safety and Health Standards

Driver, Vehicle, and Insurance Requirements

These regulations apply to farm labor contractors and growers who provide transportation of any migrant or seasonal agricultural worker. These regulations do not cover tractors, harvesting, or similar equipment while the equipment is engaged in planting, cultivating, or harvesting.

Car Pooling. New DOL regulations (May 1996) explain how car-pooling situations are treated where neither the grower nor FLC has anything whatsoever to do with arrangements between individual workers and an unregistered person who uses his or her own vehicle to transport workers:

Vehicle Standards. Transportation standards apply whether on the farm or on the road. DOL has standards in effect that cover passenger automobiles, station wagons, and the cabs of pick-ups regardless of the distance they travel in connection with transportation of migrant or seasonal workers and regardless of the type of workers carried. These regulations apply also to other vehicles if the round-trip distance over which migrant or seasonal workers are transported is less than seventy-five miles and if the vehicle is not used for a day-haul operation.

Vehicles used for day-haul and vehicles used or intended to be used for transportation of migrant or seasonal agricultural workers for a round-trip distance greater than seventy-five miles must meet the regulations issued by the Interstate Commerce Commission. These include driver qualification and driving standards, as well as vehicle standards.

Qualification of Drivers

Driving of Motor Vehicles

Vehicle Use Restrictions. Vehicles transporting workers include only buses, trucks without trailers attached, and one semi-trailer attached to a truck tractor with no other trailer attached. Closed vans without windows or ventilation may not be used. Trucks must meet compartment requirements: fixed seats, ventilators, etc.:

Note: Any driver operating a vehicle with sixteen or more passengers must have a Commercial Driver's License (CDL). (See EDIS document FE418 , Transportation - Motor Carrier Safety Regulations for Transporting Migrant Farm Workers [Federal].)

Also, DOT Physical Examination Form CO-730, valid for twenty-four months, is an acceptable substitute for Form WH-515.

Insurance and Liability Bond Requirements

Neither farm labor contractors nor agricultural employers may transport any migrant or seasonal agricultural worker nor his or her property in any vehicle unless they have insurance policies or liability bonds in effect at specified minimum levels based on seating capacity of each particular vehicle. Vehicle liability cannot be less than $100,000 for each seat, but the total insurance is not required to be more than $5,000,000, regardless of the seating capacity of the vehicle. Insurance requirements may be met by having Workers' Compensation insurance, a certificate of liability insurance in the seat-based required amount covering transportation of all passengers who are not employees and workers whose transportation is not covered by Workers' Compensation insurance, property damage insurance in the minimum amount of $50,000 for the property of others, or a general liability policy for the same protection. Also, the grower should be insured, if possible, in the crew leader's insurance certificate. Under the 1996 Adams Fruit Bill, Workers' Compensation is defined as sole relief and workers may not seek additional damage claims against their employer.

Grower Obligations Regarding Registration

No grower or packer subject to the law may utilize a farm labor contractor's services to supply migrant or seasonal agricultural workers unless he or she first takes reasonable steps to determine that a contractor possesses a valid certificate of registration authorizing activities for which the contractor may be utilized. To check a labor contractor's status, telephone the Division of Professions of the Florida Department of Business and Professional Regulation in Tallahassee.

Where you know or would reasonably be expected to know that a labor contractor with whom you are dealing is providing housing or transportation to his or her crew members, you must ascertain that he or she has transportation and housing registration certificates for the vehicles and housing he or she is using. Under the law, he or she must have a valid certificate before he or she engages in any covered activity. All paperwork should be complete before recruiting workers and certainly before crew members move into housing controlled by the crew leader or begin work.

Enforcement

Criminal Sanctions

U.S. Department of Labor Enforcement

Private Right of Action by Workers Represented by Legal Aid Attorney or Private Attorneys

Any person claiming violation of the Act or regulations by a farm labor contractor or agricultural employer or other person (including housing owner or person who controls housing) may file suit in Federal District Court. Upon a finding that the defendant violated the Act without bodily injury or death, each plaintiff may be awarded actual damages or statutory damages of up to $500 per violation. If the MSPA violation caused death or bodily injury and there is Workers' Compensation coverage and applicability, the employee may recover under the Workers' Compensation law and sue for MSPA statutory damages and equitable relief. Statutory liability for most violations is $500 per violation. However, in the amendments passed in 1995, Congress allowed the possibility of up to $10,000 for certain violations of the transportation safety provisions of the Act.

Liability, in a class action not involving a $10,000 statutory claim, limits Court awards to no more than the lesser of up to $500 per plaintiff/violation, or up to $500,000 damages or equitable relief. For violations where $10,000 statutory penalties are available, multiple infractions of a single provision of the Act constitute only one violation for purposes of determining available statutory damages. A $500,000 cap on class action damages applies in addition to Workers' Compensation remedies. Full judgment may be collected against any joint employer/defendant found liable.

Discrimination Prohibited

No one may intimidate, threaten, restrain, coerce, blacklist, discharge, or discriminate against any migrant or seasonal worker because he or she, with just cause, filed a complaint, testified about a complaint, or exercised any right or protection under MSPA. A worker who is so discriminated against may obtain back pay, damages, and other relief.

Additional Information

Responsible Agency

Florida Labor Contractor REGISTRATION is obtained from the local offices of the

Florida Department of Business and Professional Regulation
Division of Professions
Post Office Box 1698
Tallahassee, FL 32302-1698
(850) 488-3131
http://fcn.state.fl.us/dbpr

For local offices, see the telephone directory for

Farm Labor Contractor COMPLIANCE AND ENFORCEMENT is by the

U.S. Department of Labor
ESA Wage and Hour Regional Office
61 Forsyth Street, Room 6M12
Atlanta, GA 30303
(404) 562-2092
http://www.doleta.gov/regions/reg03

For local offices, see the telephone directory for

Farm Labor Specialists are located at the following offices:

http://www.dol.gov/esa/contacts/whd/america2.htm#Florida


3444 McCrory Place, Suite 155
Orlando, FL 32803-3712
(407) 648-6471

4905 West Laurel Avenue, Suite 300
Tampa, FL 33607
(813) 228-1242

10300 Sunset Drive, Room 255
Miami, FL 33173-3083
(305) 598-6607 [English]
(305) 598-7471 [Spanish]

3728 Phillips Highway, Suite 219
Jacksonville, FL 32207
(904) 232-2489

Footnotes

1. This is EDIS document FE407, a publication of the Department of Food and Resource Economics, Florida Cooperative Extension Service, Institute of Food and Agricultural Sciences, University of Florida, Gainesville, FL. Published July 2003. This information is included in Circular 1200, Handbook of Employment Regulations Affecting Florida Farm Employers and Workers. First published February 1992 as Circular 1043. Revised December 2002 as Circular 1200. Please visit the EDIS website at http://edis.ifas.ufl.edu.

2. Leo C. Polopolus, Professor Emeritus, Department of Food and Resource Economics, University of Florida, Gainesville, FL; Michael T. Olexa, Professor, Department of Food and Resource Economics, University of Florida, Gainesville, FL; Fritz Roka, Associate Professor, Department of Food and Resource Economics, Southwest Florida Research and Education Center, Immokalee, FL; and Carol Fountain, Assistant Editor, Department of Food and Resource Economics, University of Florida, Gainesville, FL; Florida Cooperative Extension Service, Institute of Food and Agricultural Sciences, University of Florida, Gainesville, FL.


This document is designed to provide accurate, current, and authoritative information on the subject. However, since the laws, administrative rulings, and court decisions on which it is based are subject to constant revision, portions of this publication could become outdated at any time. This publication is distributed with the understanding that the authors are not engaged in rendering legal or other professional advice, and the information contained herein should not be regarded as a substitute for professional advice. For these reasons, the utilization of these materials by any person constitutes an agreement to hold harmless the authors, the Institute of Food and Agricultural Sciences, and the University of Florida for any liability claims, damages, or expenses that may be incurred by any person as a result of reference to or reliance on the information contained in this publication.


The Institute of Food and Agricultural Sciences (IFAS) is an Equal Opportunity Institution authorized to provide research, educational information and other services only to individuals and institutions that function with non-discrimination with respect to race, creed, color, religion, age, disability, sex, sexual orientation, marital status, national origin, political opinions or affiliations. For more information on obtaining other extension publications, contact your county Cooperative Extension service.

U.S. Department of Agriculture, Cooperative Extension Service, University of Florida, IFAS, Florida A. & M. University Cooperative Extension Program, and Boards of County Commissioners Cooperating. Larry Arrington, Dean.



Copyright Information

This document is copyrighted by the University of Florida, Institute of Food and Agricultural Sciences (UF/IFAS) for the people of the State of Florida. UF/IFAS retains all rights under all conventions, but permits free reproduction by all agents and offices of the Cooperative Extension Service and the people of the State of Florida. Permission is granted to others to use these materials in part or in full for educational purposes, provided that full credit is given to the UF/IFAS, citing the publication, its source, and date of publication.