(a) General. The Act provides protections for migrant and seasonal
agricultural workers irrespective of whether
they are employed by a farm labor contractor, an agricultural employer
or an agricultural association, or, in the case where there is joint
responsibility, by more than one of these persons. The Act's provisions
include standards relating to vehicle safety, housing safety and health,
disclosure of wages, hours and other conditions of employment, and
recordkeeping. When any person not otherwise exempt from the Act
recruits, solicits, hires, employs, furnishes or transports workers,
that person is required to comply with the applicable protective
provisions of the Act. In addition, any person not specifically exempt
from coverage of the Act (irrespective of whether that person is an
agricultural employer, an agricultural association or farm labor
contractor) who owns or controls a facility or real property which is
used as housing for any migrant agricultural workers must ensure that
the facility or real property complies with all substantive Federal and
State safety and health standards made applicable to that type of
housing. (See Sec. 500.132)
(b) Wage related protections. Joint employment under the Fair Labor
Standards Act, which establishes responsibility for the maintenance of
payroll records, payment of wages and posting of notices under that law,
is joint employment under MSPA for establishing responsibility for the
maintenance of records, payment of wages and the posting of required
posters under MSPA. In such joint employment situations the
responsibility for assuring these MSPA protections may be carried out by
one of the joint employers. While under a joint employment relationship
all joint employers are equally responsible for assuring that the
appropriate protections are provided, the creation of such a joint
employment relationship does not also require unnecessary duplication of
effort as, for example, in relation to the posting of posters (see
Secs. 500.75(e) and 500.76(e)) or the provision of an itemized written
statement of the worker's pay (see Sec. 500.80(d)). Failure to provide
protections coming within the joint employment relationship, however,
will result in all joint employers being responsible for that failure.
(c) Transportation related protections. Responsibility for
compliance with the motor vehicle safety and insurance provisions of
section 401 of the Act and Secs. 500.100 through 500.128 of these
regulations is imposed upon the person or persons using or causing to be
used, any vehicle for transportation of migrant or seasonal agricultural
workers. As stated in these regulations, the transportation safety
provisions do not include certain car pooling arrangements.
Additionally, these regulations do not impose responsibility on an
agricultural employer or agricultural association for a farm labor
contractor's failure to adhere to the safety provisions provided in
these regulations when the farm labor contractor is providing the
vehicles and directing their use. However, when an agricultural employer
or agricultural association specifically directs or requests a farm
labor contractor to use the contractor's vehicle to carry out a task for
the agricultural employer or agricultural association, such direction
constitutes causing the vehicle to be used and the agricultural employer
or agricultural association is jointly responsible with the farm labor
contractor for assuring that the vehicle meets the insurance, and safety
and health provisions of these regulations. In all cases a person using
a farm labor contractor is required to take reasonable steps to
determine that the vehicle used by the farm labor contractor is
authorized to be used for transportation as prescribed in section 402 of
the Act and Sec. 500.71 of these regulations.
(d) Housing related protections. Responsibility for compliance with
the housing safety and health provisions of section 203 of the Act and
Secs. 500.130 through 500.135 of these regulations is imposed upon the
person (or persons) who owns or controls a facility or real property
used as housing for migrant agricultural workers. Any agricultural
employer or agricultural association which has a farm labor contractor
operate housing which it owns or controls is responsible, as well as the
farm labor contractor, for insuring compliance with the housing safety
and health provisions of these regulations. When the owner or operator
of the housing is not an agricultural employer, agricultural
association or farm labor contractor, the owner is responsible for that
housing meeting the safety and health provisions under the Act and these
regulations. This is subject to the exclusion stated in Sec. 500.131 of
these regulations which provides that the housing safety and health
requirements do not apply to any person who, in the ordinary course of
that person's business, regularly provides housing on a commercial basis
to the general public and who provides housing to any migrant
agricultural worker of the same character and on the same or comparable
terms and conditions as provided to the general public.
