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DOL Requires Agricultural Employers to be Specific

July 7, 2011

The Migrant and Seasonal Agricultural Worker Protection Act (MSAWPA) requires covered agricultural employers to disclose, in writing, certain information to prospective and current workers. The United States Department of Labor (DOL) enforces the requirements of MSAWPA. Current Western District of Michigan DOL enforcement activity interprets the disclosure requirements to require a higher level of specificity. For example, DOL has cited growers for describing wages offered as "minimum wage" rather than specifically stating "$7.40 per hour." DOL is also requiring detailed explanations of productivity standards and growers' compliance review and enforcement methods. In addition, DOL has cited growers who failed to disclose bonus structure details if growers traditionally paid bonuses, explaining that if growers historically paid bonuses, growers would likely pay bonuses in the current year and therefore should disclose bonus details as terms and conditions of employment under MSAWPA disclosure requirements. Agricultural employers should carefully review their employment practices and assure MSAWPA disclosures accurately reflect the terms and conditions of employment.

As a result of DOL's recent interpretation and enforcement, Varnum has revised our template disclosure documents to prompt employers to include more specificity on these issues. Our template documents may be downloaded at Template Documents. Please be advised that these forms are not intended to be used "as is" and must be customized for your operation. Please contact Kimberly Clarke if you would like assistance customizing your disclosures.

Agricultural Youth Employment Best Practices

As Michigan agricultural employment begins, growers should be prepared with their employment documents and processes to accept applications and hire seasonal workers. Please remember to review applications and interview workers as you make your decisions to hire based on work related considerations such as experience and ability to perform the job. While growers need to be vigilant to not employ children in violation of the child labor laws, Michigan's discrimination law prohibits discrimination based on age without definition. Accordingly, employer minimum age rules or employment decisions that are more restrictive than child labor laws may be argued to violate the Michigan anti-discrimination law. While it is currently unclear how courts would respond to such arguments, a job-relatedness approach is a best practice. Employers should review the qualifications of candidates against the duties required by the employer’s available positions, including whether the positions may be hazardous occupations, whether the positions are agricultural or non-agricultural, whether cross-functionality between positions is required, the number of hours per week the positions may entail, and the other relevant aspects of the jobs, to select workers that are best-qualified to meet their employment needs. By focusing on job requirements, employers can demonstrate legitimate, job-related and non-discriminatory reasons for their selection decisions.

Potential Impact of Mandatory E-Verify on Seasonal Employers

As the Federal legislature considers a mandatory E-Verify bill and state and local laws are enacted to require employers to utilize E-Verify, seasonal employers should consider the impact of their employment processes on the potential E-Verify requirements. While there are proposals to exempt or delay implementation of E-Verify for seasonal agricultural workers, the current E-Verify system requires E-Verify processing of all new hires and rehires. While E-Verify guidance on this issue is limited, E-Verify officers confirm employers must process rehires through the E-Verify system even if a new I-9 would not be required. Accordingly, seasonal employers would need to continually employ workers to avoid E-Verify requirements under the current law and program interpretations.

Warning about False Certificates of Identification

Employers have recently received letters or certificates issued by a private organization that purports to confirm a prospective employee's identity and constitute a List B document for Form I-9 purposes. The organizations issuing these documents appear to be interpreting the Form I-9, List of Acceptable Documents, to include documents issued by any U.S. entity. This is an incorrect interpretation of the law. ID cards, certificates, or letters issued by private organizations are not acceptable documentation for Section 2 of the Form I-9.

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