[Code of Federal Regulations]

[Title 29, Volume 3]

[Revised as of July 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 29CFR500.20]



[Page 14-19]

 

                             TITLE 29--LABOR

 

         CHAPTER V--WAGE AND HOUR DIVISION, DEPARTMENT OF LABOR

 

PART 500_MIGRANT AND SEASONAL AGRICULTURAL WORKER PROTECTION--Table of 

Contents

 

                      Subpart A_General Provisions

 

Sec.  500.20  Definitions.



    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.



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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;



[[Page 16]]



    (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



[[Page 17]]



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



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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



[[Page 19]]



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]



                  Applicability of the Act: Exemptions