Avoid Labor Law Violations

Robert Moore

Producers with labor intensive operations face multiple challenges in managing their labor force. They not only have to find and manage the labor but they also must stay in compliance with the many labor laws and regulations. One of the more prominent of these laws is the Fair Labor Standards Act (FLSA).

The FLSA is the federal law which sets minimum wage, overtime, recordkeeping, and child labor standards. Any employer who utilized more than 500 “man days” of agricultural labor in any calendar quarter of the preceding calendar year is subject to FLSA. A “man day” is defined as any day during which an employee performs agricultural work for at least one hour.

The FLSA requires that workers be paid 1 ½ times their regular rates of pay for any hours worked over 40 in one week except for certain classes of exempt employees. Workers that are engaged in agriculture are one of these exempt classes. Agriculture is defined in the FLSA as farming when performed by a farmer or on a farm as an incident to or conjunction with such farming operations. Farmers can find themselves in violation of FLSA due to inadvertently having an employee that is not engaged in agriculture due to the aforementioned definition.

For example, a sweet corn grower also has a packing operation on his farm. Both the sweet corn operation and the packing operation require a large amount of labor and thus the farmer is subject to FLSA. The workers that produce and pick the sweet corn are obviously engaged in agriculture and is thus exempt from FLSA overtime pay requirements. The workers packing the sweet corn are also likely exempt because their activity is incident to the primary farming operation of growing sweet corn. Therefore, the grower does not need to pay 1 ½ wages for overtime.

The problem arises when the farmer buys sweet corn from other area farmers to run through his packing operation. Now, the workers are packing sweet corn that is not incident to their employer’s operation but is part of another farmer’s operation. The workers are now probably not exempt under FLSA. Any work over 40 hours/week would need to be paid at 1 ½ regular rate. Any employee engaged in packing the other farmer’s sweet corn, even if for only a very short time, will likely not be exempt from FLSA. Other employees that may not be exempt from FLSA might include retail workers at a farm market, employees hauling grain or produce for another farmer, and/or those involved in agri-tainment.

Any producer subject to FLSA must pay workers at least minimum wage rate. Only immediate family members and some local piece rate workers are exempt from the minimum wage requirements.

Enforcement of FLSA is carried out by the Department of Labor’s Wage and Hour Division Investigators. When investigators encounter violations, they recommend changes in practices to bring the producer within compliance and the payment of back wages to employees. Willful violations may be prosecuted criminally and violators fined up to $10,000. Producers who repeatedly violate minimum wage or overtime pay requirements are subject to penalties up to $1,000 per violation. A 2-year statute of limitations exists for the recovery of back pay unless the violation was willful, in which case the statute of limitation is 3 years.

Employers are required to keep records on wages, hours and other employment related data as required under the Department of Labor regulations. Most of the labor records are information that is ordinarily kept in the normal course of business already.

Producers subject to FLSA should take the time to be sure they in compliance. Non-compliance may mean an unexpected payment of back labor to many or all employees and possibly even a fine. The Department of Labor has several publications available to assist producers with becoming and staying compliant. Also, attorneys and other advisors knowledgeable in agricultural labor law are good sources of reference.

Back to Publications