More Dairy Probes Possible As U.S. Department of Labor Initiates Seasonal Worker Investigation
Jul 29, 2013
Think your dairy is exempt from temporary worker laws? A highly unusual federal investigation of a California dairy signals that more DOL activity may be on the way.
By Anthony P. Raimondo, attorney
The U. S. Department of Labor (DOL) is responsible for the enforcement of federal labor laws, including wage and hour laws. The primary law that the DOL enforces is the Fair Labor Standards Act (FLSA), which sets forth minimum wage, overtime, recordkeeping and related requirements. Federal minimum wage is $7.25 per hour, and the FLSA requires overtime after 40 hours in a week.
Compliance with the FLSA is relatively simple for most dairy producers, because employees who work in the care and handling of livestock and employees who work in the fields raising crops are exempt from FLSA overtime. As a result, dairies have not been the focus of DOL investigations and enforcement activities in recent years.
But this may be changing. In the last few years, DOL has considered agriculture to be a target of its enforcement activities. The law that has been the primary focus of these activities is the Migrant and Seasonal Agricultural Worker Protection Act (MSPA). MSPA places detailed compliance obligations on farm labor contractors and agricultural employers, and regulates recruitment, payment of wages, housing and transportation. MSPA applies any time that agricultural workers are engaged in work of a "seasonal or other temporary nature." In seasonal crops, MSPA investigations, enforcement and compliance responsibilities are a way of life. Employers have faced significant challenges with regard to regulations covering housing and transportation.
But the dairy industry has largely been spared the burden of MSPA compliance and the inevitable DOL visits that come along with it because dairy work is not seasonal, and the perception has been that MSPA does not apply. Within the last month, a California dairy has been targeted with a MSPA investigation, with DOL very interested in inspecting the housing. This is a highly unusual step, and there are some concerns that this investigation may be the first in a move to look more closely at MSPA application in the dairy industry.
The fact is that many dairies are likely subject to MSPA, at least partially. For example, while dairy work is not seasonal, it is not uncommon for dairies to farm feed crops and to hire seasonal workers in those operations. The dairy will have to comply with MSPA to respect to those workers.
Even workers who are employed through most or all of the year can be considered "seasonal" if they move from seasonal activity to seasonal activity throughout the year. For example, an employee who plants during part of the year, cultivates during another part of the year, and harvests during another part of the year is considered a "seasonal" employee even if the employee is never laid off during the year. In addition, many dairies retain custom harvesters or other outside service providers to plant and harvest feed crops. These service providers may be "farm labor contractors" who must be licensed under MSPA.
The biggest gray area is employees who spend almost all of their time engaged in dairy work, but simply lend a hand in seasonal farming when needed. The law remains unsettled with respect to the status of an employee who has enough dairy work to keep him employed full time year round, but who does some small amount of work in seasonal agricultural work as well. At this point, it appears that DOL will treat such individuals as non-seasonal, but there has been little or no legal guidance on this point.
Dairy producers should keep their eyes and ears open for DOL activity in their area, and should be prepared for the possibility that they will be investigated. These investigations will likely include questions designed to determine if MSPA applies. Producers should be aware and prepared to deal with these questions.
The goal of this article is to provide employers with current labor and employment law information. The contents should not be interpreted or construed as legal advice or opinion. For individual responses to questions or concerns regarding any given situation, the reader should consult with Anthony Raimondo at McCormick Barstow LLP in Fresno at (559) 433-1300.