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Wages and Hours Worked: Worker Protections in Agriculture
Updated: September 2009
Seasonal Agricultural Worker Protection Act (MSPA),
Who is Covered
The Migrant and Seasonal Agricultural Worker Protection Act (MSPA) is administered by the Wage and Hour Division (WHD). The Act safeguards most migrant and seasonal agricultural workers in their interactions with farm labor contractors, agricultural employers, agricultural associations, and providers of migrant housing. However, some farm labor contractors, agricultural employers, agricultural associations, and providers of migrant housing are exempt from the MSPA under limited circumstances.
The MSPA requires farm labor contractors, agricultural employers, and agricultural associations, who recruit, solicit, hire, employ, furnish, transport, or house agricultural workers, as well as providers of migrant housing, to meet certain minimum requirements in their dealings with migrant and seasonal agricultural workers. These requirements include:
The MSPA provides migrant agricultural workers and day-haul seasonal agricultural workers the right to receive written notice of the terms and conditions of their employment when recruited. In addition, it provides seasonal workers the right to receive such notification upon the worker's request. The MSPA also requires employers of migrants and seasonal agricultural workers to adhere to the disclosed terms and conditions of employment. Certain exemptions and exclusions apply to these provisions.
The MSPA gives migrant and seasonal agricultural workers the right to file a complaint with the Wage and Hour Division, file a private lawsuit under the Act (or cause a complaint or lawsuit to be filed), or testify or cooperate with an investigation or lawsuit in other ways without being intimidated, threatened, restrained, coerced, blacklisted, discharged, or discriminated against in any manner.
Recordkeeping, Reporting, Notices and Posters
Notices and Posters
Posters. Each farm labor contractor, agricultural employer and agricultural association, that is subject to the MSPA and that employs any migrant or seasonal agricultural worker is required to post a poster explaining the rights and protections for workers required under the MSPA, such as the Migrant and Seasonal Agricultural Worker Protection Act (MSPA) poster.
The poster must be posted in a conspicuous place at each place of employment. There are English/Spanish(http://www.dol.gov/whd/regs/compliance/posters/mspaensp.htm), English/Haitian(http://www.dol.gov/whd/regs/compliance/posters/mspaencr.htm), English/Vietnamese,(http://www.dol.gov/whd/regs/compliance/posters/mspaenViet.pdf) and English/Hmong(http://www.dol.gov/whd/regs/compliance/posters/mspaenHmong.pdf) versions of the poster, all of which can be printed from the Web.
There are no size requirements for these posters. Employers are encouraged to make the poster available in languages other than English.
Notice for terms and conditions of housing. Each person or organization that owns or controls a facility or real property used for housing migrant workers must comply with federal and state safety and health standards. A written statement of the terms and conditions of occupancy must be posted at the housing site where it can be seen or be given to the workers. The written statement must include the following information on the terms and conditions of occupancy of such housing:
If the terms and conditions of occupancy are posted, the statement must be displayed and maintained during the entire period of occupancy. If the terms and conditions of occupancy are provided to the worker through a statement (rather than through a posting), this statement must be provided to the worker prior to occupancy. Employers may use a DOL form, WH Form 521 – Housing Terms and Conditions (PDF)(http://www.dol.gov/whd/forms/wh521.pdf), to satisfy this requirement.
Notice of employment terms. Each farm labor contractor, agricultural employer, and agricultural association that recruits any migrant agricultural worker must provide the following information at the time of recruitment, while seasonal workers must be given the information when they are offered work, in writing, if requested. The information required to be disclosed includes the following information:
Note: If workers' compensation is provided, this information must include the name of the workers' compensation insurance carrier, the name of the policyholder, the name and telephone number of each person who must be notified of an injury or death, and the time period within which such notice must be given. This requirement in the section above may be satisfied by giving the worker a photocopy of any workers' compensation notice required by state law.
Payroll statements for workers. In addition to making records of payroll information (see Recordkeeping section below), the farm labor contractor, agricultural employer and agricultural association must provide each migrant or seasonal agricultural worker a written statement of this information. This information must be provided at the time of payment for each pay period which must be no less often than every two weeks (or semi-monthly). In addition to the payroll information specified below, such statement shall also include the employer's name, address, and employer identification number assigned by the Internal Revenue Service. In the case of a worker who is jointly employed, only one of the two joint employers needs to provide a written statement to the workers.
Responsibilities of Joint Employers. Agricultural employers who use the services of a farm labor contractor are almost always in a situation of joint employment with the contractor in regard to the employees. Joint employment means that an individual is employed by two or more persons at the same time. Where a joint employment relationship exists, each of the employers must ensure that the employee receives all employment-related rights granted by the MSPA, such as accurate and timely disclosure of the terms and conditions of employment, written payroll records, and payment of wages when due. If either party fails to comply with the law both parties may be held liable. For more detail on joint employment see the Wage and Hour Division Fact Sheet #12: Agricultural Employers Under the Fair Labor Standards Act(http://www.dol.gov/whd/regs/compliance/whdfs12.pdf) and Wage and Hour Division Fact Sheet #35: Joint Employment and Independent Contractors Under the Migrant and Seasonal Agricultural Worker Protection Act(http://www.dol.gov/whd/regs/compliance/whdfs35.pdf).
Field Sanitation Standards. In addition, the Occupational Safety and Health Act’s field sanitation standards require covered agricultural establishments to provide toilets, potable drinking water, and hand-washing facilities to hand-laborers in the field; to provide each employee reasonable use of the above; and to inform each employee of the importance of good hygiene practices. For more information on the field sanitation standards see the Wage and Hour Division Fact Sheet #51: Field Sanitation Standards under the Occupational Safety and Health Act(http://www.dol.gov/whd/regs/compliance/whdfs51.pdf).
Payroll records. Each farm labor contractor, agricultural employer, and agricultural association that employs migrant or seasonal agricultural workers must make and keep the following records for each worker:
Each farm labor contractor, agricultural employer, and agricultural association that employs migrant or seasonal agricultural workers must keep all payroll records for each worker for a period of three years. When a farm labor contractor employs migrant or seasonal agricultural workers for an agricultural employer, agricultural association, or other farm labor contractor, the employer must also provide these payroll records for each employee. The person receiving these records must maintain them for a period of three years.
Certificate of registration. Any person acting as a farm labor contractor is required first to obtain a Certificate of Registration authorizing each such activity. For more detail see the Instructions for Form WH-530: Application for a Farm Labor Contractor or Farm Labor Contractor Employee Certificate of Registration, Registration Requirements Under the MSPA(http://www.dol.gov/whd/forms/fts_wh530.htm). The phrase "farm labor contracting activity" means recruiting, soliciting, hiring, employing, furnishing, or transporting any migrant or seasonal agricultural worker.
Any employee of a registered farm labor contractor who performs farm labor contracting activities solely on behalf of such contractor, and who is not an independent contractor, must obtain a Farm Labor Contractor Employee Certificate of Registration authorizing each such activity. The employee's certificate must show the name of the farm labor contractor for whom the activities are to be performed. The contractor whose name appears on the employee's certificate must hold a valid certificate of registration covering the entire period shown on the employee's certificate.
Violations of the MSPA may result in civil money penalties, back wage assessments, and revocations of certificates of registration. Violations may also result in civil or criminal actions instituted by the Department of Labor against any person found in violation of the Act. Civil money penalties up to $1,000 may be assessed for each violation. Criminal conviction for first time violators may result in one year in prison and a $1,000 fine; repeat convictions can result in up to three years in prison and $10,000 in fines. In addition, individuals whose MSPA rights have been violated may seek civil money damages in federal court.
Relation to State, Local, and Other Federal Laws
MSPA supplements any state or local laws. Compliance with MSPA does not excuse violation of applicable state laws or regulations.
Compliance Assistance Available
The Department of Labor provides employers, workers and others with clear and easy-to-access information and assistance on how to comply with the Migrant and Seasonal Agricultural Worker Protection Act. Compliance assistance related to the Act - including fact sheets, explanatory brochures, and regulatory and interpretative materials - is available on the Compliance Assistance “By Law”(http://www.dol.gov/compliance/laws/comp-msawpa.htm) Web page. Information about farm labor contractor applications is available from the nearest State Workforce Agency office at 1-866-4USADOL (1-866-487-2365) or Wage and Hour Division office(http://www.dol.gov/whd/america2.htm).