Migrant Legal Action Program

Employment Issues

Migrant farmworkers are very often overworked and underpaid. They perform backbreaking work which feeds this nation. Unfortunately, farmworkers often are not covered by
protective labor laws to the same extent other workers are covered. This page provides some basic information on employment issues for farmworkers.

Fair Labor Standards Act

The federal Fair Labor Standards Act of 1938 (FLSA) was enacted more than 73 years ago to provide minimum wage, maximum hour, and child labor protections for workers.
It does not cover all workers, and originally excluded coverage for all agricultural workers. In fact, it was not until 1966, almost 30 years after enactment, that FLSA was
amended to include minimum wage and child labor protections for agricultural workers, but at a lower guaranteed wage and a lower minimum age than other workers. In the
late seventies, agricultural workers were finally brought up to the same minimum wage levels as other workers in three stages over a three year period. Even today,
agricultural workers are still not entitled to overtime protections.

The definition of “agricultural workers” is very broad. Agriculture has two principal definitions. The first includes farming in all its branches, and the second includes practices
that are incidental to or connected with farming.

FLSA requires employers to keep records about the workers’ hours and wage rates. The employer is required to record for each worker the name, address, gender,
occupation, and number of man-days worked each week or month. The employer must also indicate whether the employee is immediate family, a hand-harvest laborer, or
involved in the range production of livestock. Both farmers and crewleaders have to keep records. The employers have to keep records for all workers, including minors.
There is no private cause of action for violating the recordkeeping requirements. The U.S. Department of Labor is the only entity that can enforce these requirements.

The minimum wage requirement cannot be waived by any custom, contract, or collective bargaining agreement. However, FLSA only protects against the minimum wage.
If the employer does not deliver the promised wage, but it is still above the minimum wage, the worker has no recourse under FLSA. For enforcement of payment of wages
that exceed the federal minimum wage, farmworkers must turn to the Migrant and Seasonal Agricultural Worker Protection Act (see below).

Migrant and Seasonal Agricultural Worker Protection Act (AWPA)

The Migrant and Seasonal Agricultural Worker Protection Act, or AWPA, was passed in 1983 to provide protections for migrant and seasonal farmworkers concerning pay,
working conditions, and work-related conditions. The law replaced the Farm Labor Contractor Registration Act (FLCRA) which was originally enacted in 1963.

AWPA defines “employers” to include three categories: agricultural employers, who own or operate entities such as farms or ranches; agricultural associations, which are
non-profit or cooperative associations of farmers; and farm labor contractors (including crewleaders or labor agencies that recruit or transport migrant workers). Farm labor
contractors are required to register with the U.S. Department of Labor and to obtain a certificate before performing labor contracting activities (29 U.S.C. §1811). Agricultural
employers or agricultural associations that use the services of a farm labor contractor to furnish workers must verify that the farm labor contractor is government-certified.
The Secretary may revoke a farm labor contractor’s registration certificate if the contractor violates any AWPA provision (§1813).

Under AWPA, all three categories of employers are prohibited from knowingly giving false or misleading information to a worker, from requiring a worker to purchase any
goods solely from the employer, and from violating the terms of any working agreement with a worker. In addition, employers are required to disclose certain information in
writing to each farmworker, including the place and period of employment, the wage rates to be paid, whether the employer will provide transportation, housing, or any other
employee benefit, and what amount, if any, the farmworker will be charged for these benefits. The contractor or employer must also post in the workplace an announcement
of the rights and duties created by AWPA. These disclosures and postings must be made in the language understood by the farmworker (§1821).

The law requires employers to pay farmworkers the wages disclosed and agreed upon, to keep records of wages paid to each employee, and to provide each worker with
an itemized statement of his or her hours, wages, and any sums withheld for every pay period. (§§ 1821-22, 1831-32). If an employer covered by AWPA wishes to provide
housing or transport workers, the certificate must state that the housing or transportation meets minimum habitability and safety standards. With respect to transportation,
the employer must ensure that all vehicles are safe, that each driver is licensed, and that it is properly insured (§§1841-42). Housing must meet all federal, state and local
health and safety standards (§ 1823).

The Department of Labor has the authority to impose criminal and civil penalties on those who violate AWPA and to seek injunctions barring future violations (§§1851-52).
However, the Department cannot sue for money damages. AWPA provides a private right of action to farmworkers who wish to bring suits for money damages against the
employers themselves.