1. Southern Cotton Ginners Association, Inc. 2008 Summer Meeting What Gins Can and Must Do on Key Labor and Immigration Issues I-9s, FLSA, MSPA, Discussion of H-2A Options, and a Brief Discussion of OSHA Issues July 29, 2008 / Updated August 4, 2008 Ann Margaret Pointer

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6. Joint Employment and Respondeat Superior  Who has your wallet and check-writing authority? Supervisors and sometimes other employees Maybe contractors under joint-employment and other legal theories

7. IRCA Basics: What’s Forbidden  Knowingly hire an alien who is not authorized to work  Hire any individual without verifying identity and work authorization  Continue the employment of a person if the employer knows or should know the person is not authorized to work

8. IRCA Basics: What’s Forbidden  May not require any specific permitted document or combination of documents for I-9 purposes  May not require more or different documents than are minimally required  May not refuse to accept documents that reasonably appear to be genuine on their face

9. IRCA Basics: Penalties Fine per unauthorized alien —  $275 to $2,200First Violation  $2,200 to $5,500Second Violation  $3,300 to $11,000Third + Criminal Sanctions Likely after First Violation

10. IRCA Basics: Penalties  I-9 paperwork violations result in penalty of $110 to $1,100 for each form  Document abuse discrimination violations result in a fine of $110 to $1,100  Recent fines at high end of range

11. Revised I-9 Form  New form must be used starting December 26, 2007  Certain documents may no longer be used

12. http://www.uscis.gov/files/nativedocuments/m-274.pdf

13. I-9 — Section 1  Employee must complete Section 1 before work commences

14. I-9 — Section 2 Completed by Employer  Employer must complete Section 2 by the end of 3rd day  Employer must examine and record the documents  Employer must examine the original document, not a photocopy

15. I-9 — Section 2 Completed by Employer  The employer must certify that the documents: reasonably appear to be genuine; relate to the individual; and authorize the individual to work

16. I-9 — Rehired Employees  New I-9 form not required for persons rehired within three years

17. Retention of I-9 Forms  I-9 forms must be retained for three years from the date work commences and for one year from the date employment terminates  If you do not meet both tests, do not throw out the form  This means an employer must have a form for every single current employee hired after November 6, 1986

18. Definitions — FLSA & MSPA  Employ — Includes any activity in which a person is suffered or permitted to work. – children – people not on payroll — head of family

19. FLSA Overtime Exemption (Primary Agriculture)  Tilling Soil, Planting, Cultivating, Weeding, Irrigating, Fertilizing, Pruning, Spraying, etc.  Employer need not be farmer

20. FLSA Overtime Exemption (Secondary Agriculture)  Employees in non-field jobs (driver, mechanic, clerk)  Employed by farmer AND engaged only in that farmer’s farming operations (even if off the farm) OR  Employed on a farm AND engaged only in that farm’s farming operations (even if employer not a farmer)

21. FLSA Partial Overtime Exemption for Employees Who Provide Certain Services “Necessary and Incidental to” Cotton Ginning Section 13(h)  Not more than 14 workweeks in the aggregate in any calendar year  Employed exclusively to provide services necessary and incidental to ginning of cotton in establishment primarily engaged in such ginning  If employees paid 1-1/2 times regular rate for “hours worked”: over 10 in any work day or over 48 in any work week  Promised bonuses likely part of “regular” rate

22. FLSA Partial Overtime Exemption Commercial Cotton “Ginning” for Market Section 13(i)  Not more than 14 weeks in 52 consecutive weeks  For gins in county where cotton grown in commercial quantities  If employees paid 1-1/2 times regular rate for “hours worked”: over 10 in any work day or over 48 in any work week  Promised bonuses likely part of “regular” rate

23. Hours “Off the Clock”  The “Matching Problem”  Crossing Out Hours  Early Starts and Late Stops  Equipment Breakdowns  Unauthorized Hours — “hours worked”

24. FLSA / MSPA / or Applicable H-2A Wage  Pay for “all hours worked,” all piece-rate production  Make-up pay to highest of FLSA / State minimum if inadequate piece-rate earnings — $6.55 / State minimum or applicable H-2A wage  No matching wages or hours worked to piece-rate production wages  Arriaga / De Luna / Decatur Hotels / Brickman

25. Definitions  MSPA “Agricultural Employment” — Employment in any service or activity included within the provisions of Section 3(f) of the FLSA or Section 3121(g) of the Internal Revenue Code 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. 29 C.F.R. § 500.20(e)

26. H-2A Definitions  H-2A “Agricultural Employment” — Employment in any service or activity included within the provisions of Section 3(f) of the FLSA or Section 3121(g) of the Internal Revenue Code and the pressing of apples for cider on a farm, of a temporary or seasonal nature. 8 U.S.C. § 1101(a)(15)(H)(ii)(a)

27. MSPA  MSPA applies to all U.S. migrant and seasonal agricultural workers of H-2A employers, unless the employer is exempt from MSPA.

28. H-2A  U.S. employees of H-2A employers in “corresponding employment” to H-2A jobs are also covered by and must be provided all benefits, employment protections and rights of H-2A regulations and H-2A job order/contract.

29. H-2A  A practical effect is that all terms and conditions of employment, the H-2A job order/contract and MSPA 516 information must be available and provided to U.S. workers in “corresponding employment” at the time they are recruited if they are non-local workers and no later than the first day of employment if they are local workers.  Plan for compliance in at least English and Spanish.

30. MSPA / H-2A  Incorporate Work Rules into Job Order / MSPA 516 and provide them to workers.

31. Form WH-516 MSPA Disclosures in Workers’ Language  At the time of recruitment, information contained in this form must be disclosed in writing in the workers’ language to all migrant and day-haul workers. For seasonal workers, this information must be disclosed when an offer of employment is made, but written disclosure is only necessary when requested. Rodriguez v. Jackson, 110 Lab. Cases ¶ 35,137 (D. Ariz. 1987) (spreading the word = recruitment) 29 C.F.R. § 500.75 and § 500.76

32. Sample Items Required on MSPA WH-516 Disclosures Sheet  The place of employment — address and name  The wage rates to be paid — detailed, including planned deductions  The crops and kinds of activities  The period of employment — accurate/ approximate  The transportation and other employee benefits and any costs  Worker comp

33. Overview MSPA Requirements Applicable to Farm Labor Contractors (“FLC”)  An FLC must be registered for all activities in which he will be engaged before he engages in those activities.  Basic registration/license to hire, employ, etc., as well as housing, transportation and driving authorization. Metzler v. Lykes Pasco Inc., 972 F. Supp. 1438, 1442 (S.D. Fla. 1997) 29 C.F.R. § 500.40-.62

34. Overview MSPA Requirements Applicable to Farm Labor Contractors (“FLC”)  Copies of all payroll records for each place of employment must be furnished to the grower, processor or packer to whom workers are furnished.  Note: Crewleaders have additional responsibilities as well, which are covered below with respect to growers. 29 C.F.R. § 500.60(a)

35. Yellow MSPA Poster  Must be posted at the place of employment in a conspicuous place.  Generally multiple places.  Must be in the workers’ language. 29 C.F.R. § 500.75(c), § 500.76(d) and § 500.78

36. Driver, Vehicle Safety and Insurance Requirements Applicable to Migrant and Seasonal Agricultural Workers  Regulations apply to farm labor contractor, crewleader and grower transportation of any migrant or seasonal agricultural worker where they use or cause any vehicle to be used for providing transportation.  Do not cover tractor-driving while harvesting.  DOL standards also do not apply to completely voluntary local worker carpooling where workers only contribute to cost of operation of vehicle. 29 C.F.R. § 500.100; 29 C.F.R. § 500.103 Saintida v. Tyre, 783 F. Supp. 1368, 1378 (S.D. Fla. 1992)

37. Driver, Vehicle Safety and Insurance Requirements Applicable to Migrant and Seasonal Agricultural Workers  Standards deal with vehicle safety, insurance and driver licensing and qualifications. 29 C.F.R. § 500.100-.128

38. Housing Safety and Health Standards Applying to Migrant Agricultural Workers  Apply to anyone who owns or controls a facility used for housing for any migrant agricultural workers.  ETA or OSHA standards. 29 C.F.R. § 500.130-.135 and 29 C.F.R. § 1910.140 or 20 C.F.R. § 654.404

41. No retaliation / no blacklisting for complaints, testimony, etc. FLSA / H-2A / MSPA

42. OSHA — 29 C.F.R. Standards Specifically Applicable to Agriculture  Field Sanitation – 1928.110  Anhydrous ammonia – 1910.111(a) and (b)  Labor camps – 1910.142  Slow-moving vehicles – 1910.145  Logging – 1910.266  Cadmium – 1910.1027  Hazard Communication – 1910.1200  Retention of DOT markings, placards, and labels – 1910.1201  Roll-over protective structures – 1928.51  Guarding farm field equipment, farmstead equipment, and cotton gins – 1928.57

43. Besides the Specific OSHA Standards Applicable to Agriculture, Do Cotton Ginners Have Other Duties under OSHA?  Yes. Under the so-called “general duty” section of OSHA, often referenced as Section 5(a)(1).

44. OSHA General Duty Obligations Each employer must furnish employment and a place of employment free from recognized hazards that are causing or are likely to cause death or serious physical harm....

45. OSHA General Duty Obligations Under the “general duty” clause, “hazards” that are the subject of specific standards for non-agricultural industries CAN result in OSHA citations where the hazard is recognized, has caused or is likely to cause death or serious physical harm, and there is a feasible method to correct or abate the hazard.

46. OSHA General Duty Obligations Example: Forklifts and the OSHA general duty clause. Although the OSHA standard for forklifts (powered industrial trucks), 29 C.F.R. § 1910.178, does not apply to agriculture and was expressly declared inapplicable to agriculture when it was published, agricultural employers have been cited under OSHA for hazards associated with forklift operation under the “general duty” clause.

47. OSHA General Duty Obligations What kinds of forklift hazards have been cited as violations of general duty? 1.Failure to train employees operating or working around lifts or to enforce safety rules 2.Failure to conduct safety inspections of lift 3.Operation of lift without non-skid foot pedal 4.Operation of lift that had holes drilled in tines 5.Operation of lift without using seat belt 6.Failure to have regular maintenance schedule, which OSHA concluded created hazard of carbon monoxide poisoning These requirements technically drawn from American National Standards Institute or American Society of Mechanical Engineers standards, not regulations.

48. OSHA General Duty Obligations OSHA Lesson? Even though only certain regulations apply to agriculture particularly where there are ANSI, ASME, and other professionally developed safety standards, citations may be issued. Moreover, there are OSHA citations that have been issued for failure to operate equipment in accordance with the manufacturer’s directions.

49. OSHA General Duty Obligations Practical OSHA Lesson? If equipment or a work practice creates a hazard risk:  Keep up with and implement your industry’s ways of working safely.  Train employees to work safely.  Maintain equipment so it can be safely operated.

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