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Preparing for Migrant and Seasonal Employment

March 3, 2011

United States Department of Labor (USDOL) plans continuing enforcement activities in agriculture to review compliance with federal laws, including Fair Labor Standards Act and Migrant and Seasonal Agricultural Worker Protection Act. Last year's experiences indicate an increased focus on migrant housing inspections by USDOL are likely as a result of  limited inspection activities of Michigan Department of Agriculture (MDA).  MDA enforcement activity generally provided for identification of issues and opportunity for employers to cure issues identified.  USDOL enforcement may follow the same process, but issues identified in an initial audit may result in citations and penalties.  In addition to pre-occupancy maintenance and updating, employers should also develop a routine inspection and maintenance schedule to assure compliance throughout occupancy.USDOL also investigates wage and hour practices including record keeping, minimum wage and overtime obligations. 

Record Keeping
Employers should review practices to confirm that all worker hours are accurately recorded from the beginning to the end of the workday.  Two issues that surfaced repeatedly during investigations were that 1) employers did not capture the start time for field workers and 2)  workers were not completely relieved of duty during lunch periods.  Recently, USDOL has indicated employers must confirm that workers do not actually perform work during lunch periods, even if employer work rules and training require workers to take lunch periods.  Employers should consider practices that will allow this confirmation or consider including lunch periods within hours worked if employers cannot secure the workers were not actually working.

Minimum Wage
Minimum wage issues tend to occur most often in piece rate pay situations.  USDOL reviews minimum wage on a weekly basis, and employers should similarly review employment data weekly and add amounts necessary to pay workers minimum wages. ($7.40/hour in Michigan).  USDOL also reviews carefully any deductions from pay that reduce compensation below the minimum wage.  Required tax withholdings are the only permitted reduction below minimum wage.  All other deductions, even if workers agree, may not lower compensation below the minimum wage.  Additionally, USDOL reviews deductions to determine whether the expense is for the benefit of the employer or employee in assessing whether the deduction is appropriate. 

Overtime
Agriculture is exempt from overtime for primary agricultural activities and secondary activities completed by a farmer, on a farm or incident to farming operations.  USDOL has narrowly interpreted this definition, particularly with regard to secondary activities such as packing and maintenance work.  Accordingly, if an agricultural employer packs products grown by others, the employer does not qualify for the agricultural exemption and workers must be paid overtime on all hours over 40 per week including those completed in primary agriculture activities such as picking at the average hourly wage for the worker that week. 

As the growing season approaches, employers who rely on migrant and seasonal agricultural workers should review and update their employment policies, practices and documents. Employment laws are only one piece of the puzzle.  In addition to a variety of legal requirements, many growers are governed by customer social responsibility policies adding more sometimes contradictory requirements.  Growers are best advised to review practices in consideration of employment, worker safety, food safety, customer codes of conduct and good agricultural practices requirements to develop a comprehensive system to achieve compliance and operational objectives.

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