Legal Issues in Agricultural Labor and the Impact of COVID-19
Explore legal issues in agricultural labor, including wage regulations, workplace injury coverage, employment discrimination, and the effects of COVID-19. Details on the Families First Coronavirus Response Act, Emergency Paid Sick Leave Act, and Emergency Family and Medical Leave Expansion Act are provided, along with exemptions for small businesses.
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Issues in Modern Agricultural Labor Wage and hour regulation under Federal Law Available domestic labor pool and immigration policy Proper classification of labor as employees Workplace Injury coverage Employment discrimination Coronavirus (Covid-19 Pandemic) Affected Public: Private Sector: businesses or other for-profits, farms, and not-for-profit institutions: State, Local and Tribal governments; and individuals or households.
Paid Medical Leave under Families First Coronavirus Response Act (Public Law 116-127) April 1 to December 31, 2020 Regulations released 4-6-2020 (85 FR 19326) Farms under 500 employees are included Possible exemption for < 50 employees Employee Count = FTE + PTE Normally, the Family and Medical Leave Act (FMLA) requires certain employers with 50 or more workers to provide up to 12 weeks of unpaid job-protected leave for specified family and medical reasons. Employers are reimbursed through quarterly payroll tax withholdings
FFCRA Component 1 Emergency Paid Sick Leave Act (EPSLA) Employer provides 80 hours paid sick leave for FTE (= 2 weeks) (PTE = normal work hours over 2 weeks) ( 826.21) 100% pay for sick employee with COVID-19 symptoms and awaiting diagnosis or quarantined (by government or health care provider), up to $511 daily ($5,110 total 2/3 pay for employee providing care for another person who is sick or quarantined, up to $200 daily ($2,000 total ) Includes H-2A ( all employees are counted ) Calculation of Pay ( 826.22) Regular wage rate or federal/state minimum wage (whichever is higher)
FFCRA Component 2 Emergency Family and Medical Leave Expansion Act (EFMLEA) Employer provides up to 10 weeks of unpaid, job- protected leave, at 2/3 pay, to care for the employee s child if the school or other child-care provider is closed due to COVID-19. Employee must have been employed 30 days On employer payroll for period of 30 days prior to request leave EPSLA and EFMLEA combined Up to 10 weeks if son or daughter out of school due to closure OR child-care not available First two weeks EPSLA, balance is EFMLEA
Small Business Exemption [ 826.40(b)(1)] Exemption: applied for by businesses < 50 employees Leave would result in the small business's expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity Leave would entail a substantial risk to the financial health or operational capabilities of the business because of their specialized skills, knowledge of the business, or responsibilities OR There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the Employee or Employees requesting leave Employer makes determination ( self-certifies )
Employer Liability for Act of Employee Common Law principle of Respondeat Superior: the master is liable for the servant Generally for acts within employee s scope of work An employee s negligent act is attributed to the employer Only applies to scope of work activity Unless proven that employer has reason to know or does not enforce deviations during work day Accident en route to work not attributed to employer Employee of LLC can obligate assets of LLC, but not the owners of the LLC No protection for sole proprietor or partnership
Scope of Work General concept that determines tort liability in various employment settings (compensation, workplace injury, tort liability injury to others, etc.) Also important as measure of legal compensation requirements Includes Time at workplace (or on duty) Breaks (but not designated lunch break ) Checking emails at home Phone calls on commute Suiting up into specialized gear (but not simple workclothes) Does not include Commute Side trips while on duty (personal errands)
Farm Laborer (state guideance) "Whether an employee is a farm laborer depends, in a large degree, upon the nearness of his occupation to the planting, cultivation, and harvesting of crops In determining whether an employee is a farm laborer, emphasis is placed on the nature of the employee's work rather than the nature of the employer's business. (Quoting Hinson v. Creech, 286 N.C. 156, 158, 209 S.E.2d 471, 473 (1974). (Bailey v. Roberts Prot. & Investigations (N.C. App., 2011))
Fair Labor Standards Act Federal Minimum Wage: $7.25/hour States may go higher Overtime requirement (above 40 hours) 1.5x regular pay Hours Worked required to be on premises, on duty or prescribed workplace Child Labor restrictions Certain jobs under 14 years old (e.g. newspaper delivery) Lower minimum wage first 90 days Must display poster FLSA poster in workplace
Fair Labor Standards Ag Exemptions Agricultural employees who are immediate family members of their employer Those principally engaged on the range in the production of livestock (no cowboys in NC!) Local hand harvest laborers who commute daily from their permanent residence, are paid on a piece rate basis in traditionally piece-rated occupations, and were engaged in agriculture less than thirteen weeks during the preceding calendar year Non-local minors, 16 years of age or under, who are hand harvesters, paid on a piece rate basis in traditionally piece- rated occupations, employed on the same farm as their parent, and paid the same piece rate as those over 16.
Farm Labor FLSA Exemptions Minimum wage and Overtime: Any employer in agriculture who did not utilize more than 500 "man days" of agricultural labor in any calendar quarter of the preceding calendar year is exempt from the minimum wage and overtime pay provisions of the FLSA for the current calendar year. A "man day" is defined as any day during which an employee performs agricultural work for at least one hour.
Farm Labor Defined Packers on Farm 26 USCS 3121 [Title 26. Internal Revenue Code; Subtitle C (4) (A) in the employ of the operator of a farm in handling, planting, drying, packing, packaging, processing, freezing, grading, storing, or delivering to storage or to market or to a carrier for transportation to market, in its unmanufactured state, any agricultural or horticultural commodity; but only if such operator produced more than one-half of the commodity with respect to which such service is performed
Typical FLSA Ag Problems Record Keeping: Not keeping/maintaining records of the names and permanent addresses of temporary agricultural employees, dates of birth of minors under age 19, or hours worked by employees being paid on a piece rate basis. Failing to pay overtime to employees whose jobs are related to agriculture but which do not meet the definition of agriculture contained in the Act. Agricultural employers who utilize 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 both the contractor and the farmer are responsible for complying with the minimum wage, overtime, recordkeeping, and youth employment provisions of the law. If either party fails to comply with the law both parties may be held liable.
