Source: USDOL, 11/19/18

Working with Farm Labor Contractors
Many growers turn to farm labor contractors (FLCs) to meet their labor needs. Though contracting with an FLC who can provide these workers can be a good option, employers should carefully consider a number of items when selecting their FLC. 

Who is an FLC? According to the Migrant and Seasonal Agricultural Worker Protection Act (MSPA), a Farm Labor Contractor (FLC) is someone who, for money or other valuable consideration paid or promised to be paid, recruits, solicits, hires, employs, furnishes or transports migrant and/or seasonal agricultural workers. 

Registered FLCs only
Before performing any farm labor contracting activity, a farm labor contractor must register with the U.S. Department of Labor (DOL) and obtain a certificate of registration. Prior to providing any housing or transportation, a farm labor contractor must be specifically authorized by DOL to provide housing or transportation to migrant or seasonal agricultural workers. Persons employed by farm labor contractors to perform farm labor contracting activities also must register with DOL. Farm labor contractors and farm labor contractor employees who perform farm labor contractor activities must carry proof of registration and show it to workers, agricultural employers, agricultural associations, and any other person with whom they deal as contractors. Agricultural associations, agricultural employers, and their employees are not considered farm labor contractors and do not have to register. However, before they engage the services of any farm labor contractor, they must take reasonable steps to ensure that the contractor has a DOL certificate of registration valid for the services to be performed. To inquire about the validity of a certificate, call the Wage and Hour Division’s toll-free number 1-866-4USWAGE (1-866-487-9243). 

Violations Common Among FLCs
The DOL’s Wage and Hour Division enforces the MSPA and the labor provision of the H-2A visa program. Some violations commonly found among FLCs include: 

• Failure to pay proper wages. FLCs must pay workers their wages when due, and give workers itemized, written statements of earnings for each pay period, including any amount deducted and the reasons for the deduction. FLCs participating in H-2A must pay the highest of the adverse effect wage rate (AEWR), the prevailing hourly rate or piece rate, the agreed-upon collective bargaining wage, or the Federal or State minimum wage to all covered workers, pay for workers’ inbound/outbound transportation to and from their home countries, and may not make any deductions from the workers’ wages unless specified in the written disclosure. Deductions relative 2 to an H-2A employer’s expenses in obtaining H-2A certification are prohibited. Also, workers who complete 50% of the work contract period must be reimbursed for reasonable inbound transportation and subsistence costs from the point of recruitment to the place of employment, unless the H-2A employer has previously advanced such costs for these expenses or otherwise provided such transportation and subsistence directly to the worker. 

• Failure to comply with the requirement to recruit U.S. workers. Under H-2A, employers must demonstrate the need for a specific number of H-2A workers in order for the Department of Labor to certify that there are not sufficient U.S. workers qualified and available to perform the labor involved in the petition and that the employment of the foreign worker will not have an adverse effect on the wages and working conditions of similarly employed U.S. workers. In addition to contacting certain former U.S. employees and coordinating recruitment activities through the appropriate State Workforce Agency, employers are required to engage in positive recruitment of U.S. workers. H-2A employers must provide employment to any qualified, eligible U.S. worker who applies for the job opportunity until 50 percent of the period of the work contract has elapsed. Employers must offer U.S. workers terms and working conditions which are not less favorable than those offered to H-2A workers. 

• Unsafe housing and/or failure to provide meals or cooking facilities. Each person or organization which 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. H-2A employers must provide housing at no cost to H-2A workers and to workers in corresponding employment who are not reasonably able to return to their residence within the same day. If the employer elects to secure rental (public) accommodations for such workers, the employer is required to pay all housing-related charges directly to the housing’s management. H-2A employers are also required to either provide each covered worker with three meals per day, at no more than a DOL-specified cost, or to furnish free and convenient cooking and kitchen facilities where workers can prepare their own meals. 

• Unsafe transportation and/or improperly licensed drivers. Agricultural associations, agricultural employers, and farm labor contractors must assure that vehicles used or caused to be used by a farm labor contractor, agricultural employer, or agricultural association to transport workers are properly insured, are operated by licensed drivers, and meet federal and state safety standards. H-2A employers must provide daily transportation between the workers’ living quarters and the employer’s worksite at no cost to covered workers living in employer-provided housing. Employer-provided transportation must meet all applicable safety standards, be properly insured, and be operated by licensed drivers 

You may be a “joint employer”
A grower who uses an FLC to obtain workers may be considered under the law also to be the employer of those workers, known as being a joint employer. Joint employment means than 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 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 employer violates these provisions, both can be held liable for any back wages and/or civil money penalties that may be assessed. Under common law of agency, a grower who uses H-2A labor contractors to obtain workers may be considered to be a joint employer if relevant factors disclose sufficient definitional characteristics of being an employer. 

Only contract with reputable FLCs 
The Wage and Hour Division may suspend, revoke, or withhold renewal of farm labor certificates for farm labor contractors who have committed multiple violations under the Migrant Seasonal Protection Act (MSPA), fail to pay back wages due, or fail to comply with a final order requiring the payment of a civil money penalty as a result of a violation. Furthermore, employers who use the services of an unregistered farm labor contractor may be subject to civil or criminal remedies under MSPA. Employers are encouraged to review the MSPA ineligible farm labor contractor and H-2A debarment lists prior to contracting for labor. 

Educate Yourself
The Division offers multiple compliance assistance resources to provide employers the tools they need to comply with the law.
• Migrant and Seasonal Agricultural Worker Protection Act

• H-2A 
• GAP Connections, Working with Farm Labor Contractors

The Division encourages employers to contact them to find out about upcoming compliance assistance events, to request information, or to ask specific questions. All calls are confidential. You may reach the Wage and Hour Division during normal business hours at 866-4US-WAGE. You will be directed to the office nearest you, and will be able to speak with a trained representative. Additional information is available at www.dol.gov/whd .