(a) Whether a crew leader or a labor contractor is the employer of
the workers he supplies is a question of fact. The tests here are the
same as those used to determine whether a sharecropper or tenant is an
independent contractor. A crew leader who merely assembles a crew and
brings them to the farm to be supervised and paid directly by the
farmer, and who does the same work and receives the same pay as the
crewmembers, is an employee of the farmer, and both he and his crew are
counted as such and paid accordingly if the farmer is not exempt under
the 500 man-day test. The situation is not significantly different if
under the same circumstances, the crew is hired at so much per acre for
their work. This is in effect a group piecework arrangement.
(b) The situation is different where the farmer only establishes the
general manner for the work to be done. Where this is the case, the
labor contractor is the employer of the workers if he makes the day-to-
day decisions regarding the work and has an opportunity for profit or
loss through his supervision of the crew and its output. As the
employer, he has the authority to hire and fire the workers and direct
them while working in the fields. Complaints by the farmer about the
quality or quantity of the work or about a worker are made to the
contractor or his representatives, who takes whatever action he deems
appropriate. His opportunity for profit or loss comes from his control
over the time and manner of performance of work by his crew and his
authority to determine the wage rates paid to his workers.
(c) There is also the common and general practice of an individual
who performs custom work such as crop dusting or grain harvesting and
threshing or sheepshearing. In the typical case this contractor has a
substantial
investment in equipment and his business decisions and judgments
materially affect his opportunity for profit or loss. In the overall
picture, the contractor is not following the usual path of an employee,
but that of an independent contractor.
For example: A sheepshearing contractor who operates in the
following manner is considered an independent contractor and therefore
an agricultural employer in his own right--he operates his own equipment
including power supply from his own trucks or trailers, boards his
shearing crew and has complete responsibility for their work and
compensation, has complete charge of the sheep from the time they enter
the shearing pen until they are shorn and turned out, and contracts with
the rancher for the complete operation at an agreed rate per head.
(d) Whether or not a labor contractor or crew leader is found to be
a bona fide independent contractor, his employees are considered jointly
employed by him and the farmer who is using their labor if the farmer
has the power to direct, control or supervise the work, or to determine
the pay rates or method of payment. (Hodgson v. Okada (C.A. 10), 20 W.H.
Cases 1107; Hodgson v. Griffin & Brand (C.A. 5) 20 W.H. Cases 1051;
Mitchell v. Hertzke, 234 F. 2d 183, 12 W.H. Cases 877 (C.A. 10).) In a
joint employment situation, the man-days of agricultural labor rendered
are counted toward the man-days of such labor of each employer. Each
employer is considered equally responsible for compliance with the Act.
With respect to the recordkeeping regulations in 29 CFR 516.33, the
employer who actually pays the employees will be considered primarily
responsible for maintaining and preserving the records of hours worked
and employees' earnings specified in paragraph (c) of Sec. 516.33 of
this chapter.
[37 FR 12084, June 17, 1972, as amended at 38 FR 27521, Oct. 4, 1973]
