For purposes of this part:
(a) Administrator means the Administrator of the Wage and Hour
Division, Employment Standards Administration, United States Department
of Labor, and such authorized representatives as may be designated by
the Administrator to perform any of the functions of the Administrator
under this part.
(b) Administrative Law Judge means a person appointed as provided in
title 5 U.S.C. and qualified to preside at hearings under 5 U.S.C. 557.
Chief Administrative Law Judge means the Chief Administrative Law Judge,
United States Department of Labor, 800 K Street, NW., Suite 400,
Washington, DC 20001-8002.
(c) Agricultural association means any nonprofit or cooperative
association of farmers, growers, or ranchers, incorporated or qualified
under applicable State law, which recruits, solicits, hires, employs,
furnishes, or transports any migrant or seasonal agricultural worker.
(d) Agricultural employer means any person who owns or operates a
farm, ranch, processing establishment, cannery, gin, packing shed or
nursery, or who produces or conditions seed, and who either recruits,
solicits, hires, employs, furnishes, or transports any migrant or
seasonal agricultural worker.
Produces seed means the planting, cultivation, growing and harvesting of
seeds of agricultural or horticultural commodities. Conditions seed
means the in-plant work done after seed production including the drying
and aerating of seed.
(e) Agricultural employment means employment in any service or
activity included within the provisions of section 3(f) of the Fair
Labor Standards Act of 1938 (29 U.S.C. 203(f)), or section 3121(g) of
the Internal Revenue Code of 1954 (26 U.S.C. 3121(g)) and the handling,
planting, drying, packing, packaging, processing, freezing, or grading
prior to delivery for storage of any agricultural or horticultural
commodity in its unmanufactured state.
(f) Convicted means that a final judgment of guilty has been
rendered by a court of competent jurisdiction from which no opportunity
for appeal remains.
(g) Day-haul operation means the assembly of workers at a pick-up
point waiting to be hired and employed, transportation of such workers
to agricultural employment, and the return of such workers to a drop-off
point on the same day. This term does not include transportation
provided by an employer for individuals who are already employees at the
time they are picked up nor does it include carpooling arrangements by
such employees which are not specifically directed or requested by the
employer, farm labor contractor or agent thereof.
(h)(1) The term employ has the meaning given such term under section
3(g) of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(g)) for the
purposes of implementing the requirements of that Act. As so defined,
employ includes to suffer or permit to work.
(2) The term employer is given its meaning as found in the Fair
Labor Standards Act. Employer under section 3(d) of that Act includes
any person acting directly or indirectly in the interest of an employer
in relation to an employee.
(3) The term employee is also given its meaning as found in the Fair
Labor Standards Act. Employee under section 3(e) of that Act means any
individual employed by an employer.
(4) The definition of the term employ may include consideration of
whether or not an independent contractor or employment relationship
exists under the Fair Labor Standards Act. Under MSPA, questions will
arise whether or not a farm labor contractor engaged by an agricultural
employer/association is a bona fide independent contractor or an
employee. Questions also arise whether or not the worker is a bona fide
independent contractor or an employee of the farm labor contractor and/
or the agricultural employer/association. These questions should be
resolved in accordance with the factors set out below and the principles
articulated by the federal courts in Rutherford Food Corp. v. McComb,
331 U.S. 722 (1947), Real v. Driscoll Strawberry Associates, Inc., 603
F.2d 748 (9th Cir. 1979), Sec'y of Labor, U.S. Dept. of Labor v.
Lauritzen, 835 F.2d 1529 (7th Cir. 1987), cert. denied, 488 U.S. 898
(1988); Beliz v. McLeod, 765 F.2d 1317 (5th Cir. 1985), and Castillo v.
Givens, 704 F.2d 181 (5th Cir.), cert. denied, 464 U.S. 850 (1983). If
it is determined that the farm labor contractor is an employee of the
agricultural employer/association, the agricultural workers in the farm
labor contractor's crew who perform work for the agricultural employer/
association are deemed to be employees of the agricultural employer/
association and an inquiry into joint employment is not necessary or
appropriate. In determining if the farm labor contractor or worker is an
employee or an independent contractor, the ultimate question is the
economic reality of the relationship--whether there is economic
dependence upon the agricultural employer/association or farm labor
contractor, as appropriate. Lauritzen at 1538; Beliz at 1329; Castillo
at 192; Real at 756. This determination is based upon an evaluation of
all of the circumstances, including the following:
(i) The nature and degree of the putative employer's control as to
the manner in which the work is performed;
(ii) The putative employee's opportunity for profit or loss
depending upon his/her managerial skill;
(iii) The putative employee's investment in equipment or materials
required for the task, or the putative employee's employment of other
workers;
(iv) Whether the services rendered by the putative employee require
special skill;
(v) The degree of permanency and duration of the working
relationship;
(vi) The extent to which the services rendered by the putative
employee are an integral part of the putative employer's business.
(5) The definition of the term employ includes the joint employment
principles applicable under the Fair Labor Standards Act. The term joint
employment means a condition in which a single individual stands in the
relation of an employee to two or more persons at the same time. A
determination of whether the employment is to be considered joint
employment depends upon all the facts in the particular case. If the
facts establish that two or more persons are completely disassociated
with respect to the employment of a particular employee, a joint
employment situation does not exist. When the putative employers share
responsibility for activities set out in the following factors or in
other relevant facts, this is an indication that the putative employers
are not completely disassociated with respect to the employment and that
the agricultural worker may be economically dependent on both persons:
(i) If it is determined that a farm labor contractor is an
independent contractor, it still must be determined whether or not the
employees of the farm labor contractor are also jointly employed by the
agricultural employer/association. Joint employment under the Fair Labor
Standards Act is joint employment under the MSPA. Such joint employment
relationships, which are common in agriculture, have been addressed both
in the legislative history and by the courts.
(ii) The legislative history of the Act (H. Rep. No. 97-885, 97th
Cong., 2d Sess., 1982) states that the legislative purpose in enacting
MSPA was ``to reverse the historical pattern of abuse and exploitation
of migrant and seasonal farm workers * * *,'' which would only be
accomplished by ``advanc[ing] * * * a completely new approach'' (Rept.
at 3). Congress's incorporation of the FLSA term employ was undertaken
with the deliberate intent of adopting the FLSA joint employer doctrine
as the ``central foundation'' of MSPA and ``the best means by which to
insure that the purposes of this MSPA would be fulfilled'' (Rept. at 6).
Further, Congress intended that the joint employer test under MSPA be
the formulation as set forth in Hodgson v. Griffin & Brand of McAllen,
Inc. 471 F.2d 235 (5th Cir.), cert. denied, 414 U.S. 819 (1973) (Rept.
at 7). In endorsing Griffin & Brand, Congress stated that this
formulation should be controlling in situations ``where an agricultural
employer * * * asserts that the agricultural workers in question are the
sole employees of an independent contractor/crewleader,'' and that the
``decision makes clear that even if a farm labor contractor is found to
be a bona fide independent contractor, * * * this status does not as a
matter of law negate the possibility that an agricultural employer may
be a joint employer * * * of the harvest workers'' together with the
farm labor contractor. Further, regarding the joint employer doctrine
and the Griffin & Brand formulation, Congress stated that ``the absence
of evidence on any of the criteria listed does not preclude a finding
that an agricultural association or agricultural employer was a joint
employer along with the crewleader'', and that ``it is expected that the
special aspects of agricultural employment be kept in mind'' when
applying the tests and criteria set forth in the case law and
legislative history (Rept. at 8).
(iii) In determining whether or not an employment relationship
exists between the agricultural employer/association and the
agricultural worker, the ultimate question to be determined is the
economic reality--whether the worker is so economically dependent upon
the agricultural employer/association as to be considered its employee.
(iv) The factors set forth in paragraphs (h)(5)(iv)(A) through (G)
of this section are analytical tools to be used in determining the
ultimate question of economic dependency. The consideration of each
factor, as well as the determination of the ultimate question of
economic dependency, is a qualitative rather than quantitative analysis.
The factors are not to be applied as a
checklist. No one factor will be dispositive of the ultimate question;
nor must a majority or particular combination of factors be found for an
employment relationship to exist. The analysis as to the existence of an
employment relationship is not a strict liability or per se
determination under which any agricultural employer/association would be
found to be an employer merely by retaining or benefiting from the
services of a farm labor contractor. The factors set forth in paragraphs
(h)(5)(iv)(A) through (G) of this section are illustrative only and are
not intended to be exhaustive; other factors may be significant and, if
so, should be considered, depending upon the specific circumstances of
the relationship among the parties. How the factors are weighed depends
upon all of the facts and circumstances. Among the factors to be
considered in determining whether or not an employment relationship
exists are:
(A) Whether the agricultural employer/association has the power,
either alone or through control of the farm labor contractor to direct,
control, or supervise the worker(s) or the work performed (such control
may be either direct or indirect, taking into account the nature of the
work performed and a reasonable degree of contract performance oversight
and coordination with third parties);
(B) Whether the agricultural employer/association has the power,
either alone or in addition to another employer, directly or indirectly,
to hire or fire, modify the employment conditions, or determine the pay
rates or the methods of wage payment for the worker(s);
(C) The degree of permanency and duration of the relationship of the
parties, in the context of the agricultural activity at issue;
(D) The extent to which the services rendered by the worker(s) are
repetitive, rote tasks requiring skills which are acquired with
relatively little training;
(E) Whether the activities performed by the worker(s) are an
integral part of the overall business operation of the agricultural
employer/association;
(F) Whether the work is performed on the agricultural employer/
association's premises, rather than on premises owned or controlled by
another business entity; and
(G) Whether the agricultural employer/association undertakes
responsibilities in relation to the worker(s) which are commonly
performed by employers, such as preparing and/or making payroll records,
preparing and/or issuing pay checks, paying FICA taxes, providing
workers' compensation insurance, providing field sanitation facilities,
housing or transportation, or providing tools and equipment or materials
required for the job (taking into account the amount of the investment).
(i) Farm labor contracting activity means recruiting, soliciting,
hiring, employing, furnishing, or transporting any migrant or seasonal
agricultural worker.
(j) Farm labor contractor means any person--other than an
agricultural employer, an agricultural association, or an employee of an
agricultural employer or agricultural association--who, for any money or
other valuable consideration paid or promised to be paid, performs any
farm labor contracting activity.
(k) Farm Labor Contractor Certificate of Registration or Certificate
of Registration means the certificate issued by the Administrator which
permits a farm labor contractor to engage in farm labor contracting
activities.
(l) Farm labor contractor employee who is required to obtain a
Certificate of Registration as an employee of a farm labor contractor
means a person who performs farm labor contracting activity solely on
behalf of a farm labor contractor holding a valid Certificate of
Registration and is not an independent farm labor contractor who would
be required to register under the Act in his own right.
(m) Farm Labor Contractor Employee Certificate or Farm Labor
Contractor Employee Certificate of Registration or Employee Certificate
means the certificate issued by the Administrator to an employee of a
farm labor contractor authorizing the performance of farm labor
contracting activities solely on behalf of such farm labor contractor
and not as an independent farm labor
contractor who would be required to register in his own right.
(n) Illegal alien means any person who is not lawfully admitted for
permanent residence in the United States or who has not been authorized
by the Attorney General to accept employment in the United States.
(o) Immediate family includes only:
(1) A spouse;
(2) Children, stepchildren, and foster children;
(3) Parents, stepparents, and foster parents; and
(4) Brothers and sisters.
(p) Migrant agricultural worker means an individual who is employed
in agricultural employment of a seasonal or other temporary nature, and
who is required to be absent overnight from his permanent place of
residence.
(1) Migrant agricultural worker does not include:
(i) Any immediate family member of an agricultural employer or a
farm labor contractor; or
(ii) Any temporary nonimmigrant alien who is authorized to work in
agricultural employment in the United States under sections
101(a)(15)(H)(ii)(a) and 214(c) of the Immigration and Nationality Act.
(2) Permanent place of residence, with respect to an individual,
means a domicile or permanent home. Permanent place of residence does
not include seasonal or temporary housing such as a labor camp. The term
permanent place of residence for any nonimmigrant alien is that
individual's country of origin.
(q) Person means any individual, partnership, association, joint
stock company, trust, cooperative, or corporation.
(r) Seasonal agricultural worker means an individual who is employed
in agricultural employment of a seasonal or other temporary nature and
is not required to be absent overnight from his permanent place of
residence:
(1) When employed on a farm or ranch performing field work related
to planting, cultivating, or harvesting operations; or
(2) When employed in canning, packing, ginning, seed conditioning or
related research, or processing operations, and transported, or caused
to be transported, to or from the place of employment by means of a day-
haul operation.
(i) Seasonal agricultural worker does not include:
(A) Any migrant agricultural worker;
(B) Any immediate family member of an agricultural employer or a
farm labor contractor; or
(C) Any temporary nonimmigrant alien who is authorized to work in
agricultural employment in the United States under sections
101(a)(15)(H)(ii)(a) and 214(c) of the Immigration and Nationality Act.
(ii) Field work related to planting, cultivating or harvesting
operations includes all farming operations on a farm or ranch which are
normally required to plant, harvest or produce agricultural or
horticultural commodities, including the production of a commodity which
normally occurs in the fields of a farm or ranch as opposed to those
activities which generally occur in a processing plant or packing shed.
A worker engaged in the placing of commodities in a container in the
field and on-field loading of trucks and similar transports is included.
Nursery, mushroom and similar workers engaged in activities in
connection with planting, cultivating or harvesting operations are
intended to be covered. An individual operating a machine, such as a
picker, or tractor is not included when performing such activity.
(s) On a seasonal or other temporary basis means:
(1) Labor is performed on a seasonal basis where, ordinarily, the
employment pertains to or is of the kind exclusively performed at
certain seasons or periods of the year and which, from its nature, may
not be continuous or carried on throughout the year. A worker who moves
from one seasonal activity to another, while employed in agriculture or
performing agricultural labor, is employed on a seasonal basis even
though he may continue to be employed during a major portion of the
year.
(2) A worker is employed on other temporary basis where he is
employed for a limited time only or his performance is contemplated for
a particular piece of work, usually of short duration. Generally,
employment, which is
contemplated to continue indefinitely, is not temporary.
(3) On a seasonal or other temporary basis does not include the
employment of any foreman or other supervisory employee who is employed
by a specific agricultural employer or agricultural association
essentially on a year round basis.
(4) On a seasonal or other temporary basis does not include the
employment of any worker who is living at his permanent place of
residence, when that worker is employed by a specific agricultural
employer or agricultural association on essentially a year round basis
to perform a variety of tasks for his employer and is not primarily
employed to do field work.
(t) Secretary means the Secretary of Labor or the Secretary's
authorized representative.
(u)(1) Solicitor of Labor means the Solicitor, United States
Department of Labor, and includes attorneys designated by the Solicitor
to perform functions of the Solicitor under these regulations.
(2) Associate Solicitor for Fair Labor Standards means the Associate
Solicitor, who, among other duties, is in charge of litigation for the
Migrant and Seasonal Agricultural Worker Protection Act (MSPA), Office
of the Solicitor, U.S. Department of Labor, Washington, DC 20210.
(3) Regional Solicitors means the attorneys in charge of the various
regional offices of the Office of the Solicitor.
(v) State means any of the States of the United States, the District
of Columbia, the Virgin Islands, the Commonwealth of Puerto Rico, and
Guam. State agency means a State agency vested with all powers necessary
to cooperate with the U.S.
Department of Labor for purposes of entering into agreements to carry
out the Act as provided in section 513 thereof.
(w) Temporary nonimmigrant alien means a person who has a residence
in a foreign country which he does not intend to abandon and who comes
temporarily to the United States, with approval of the Attorney General,
to perform temporary service or labor.
(x) The Wagner-Peyser Act is the Act of June 6, 1933 (48 Stat. 113;
codified in 29 U.S.C. 49 et seq.), providing, inter alia, for the
establishment of the U.S. Employment Service. Employment Service of the
various States means a State agency vested with all powers necessary to
cooperate with the U.S. Employment Service under the Wagner-Peyser Act.
(y) The Immigration and Nationality Act (INA) as amended by the
Immigration Reform and Control Act of 1986 (IRCA) to effectively control
unauthorized immigration to the United States and for other purposes, is
set out in 8 U.S.C. 1101 et seq.
[48 FR 36741, Aug. 12, 1983; 48 FR 38374, Aug. 23, 1983, as amended at
54 FR 13329, Mar. 31, 1989; 56 FR 54708, Oct. 22, 1991; 62 FR 11747,
Mar. 12, 1997]
