1. USDOL-Wage and Hour Division
9/27/2017
LABOR MANAGEMENT
USDOL-Wage and Hour Division

2. Common Violations Failure to disclose working conditions
9/27/2017
Common Violations
Failure to disclose working conditions
Failure to keep employer records (no record of the basis on which wages were paid, daily or weekly hours worked, nor record of tax deductions and net pay)
Failure to provide wage statements
Failure to meet Inbound/Outbound Transportation Requirements
Utilizing the services of an unregistered Farm Labor Contractor(FLC) / Farm Labor Contractor Employee (FLCEs)
Illegal fees assessed
Failure to meet transportation safety requirements (tires unsafe, no safety kits, and no brake lights)

3. Overall Violations for Discussion
1) Failure to Disclose Working Conditions
2) Failure to Provide Wage Statements
3) Utilizing services of an Unregistered FLC/FLCE
4) Failure to Provide Safe Transportation
5) Illegal Fees assessed
6) FLC’s as H2A Labor Contractors and Common Issues

4. QUESTION?
When and how does the USDOL- Wage and Hour Division select who they visit?

5. ANSWER
The WHD conducts investigations for a number of reasons, all having to do with enforcement of the laws and assuring an employer’s compliance. In addition to complaints, WHD selects certain types of businesses or industries for investigation. The WHD targets low-wage industries, for example, because of high rates of violations or egregious violations, or the employment of vulnerable workers. The objective of targeted investigations is to improve compliance with the laws in those businesses, industries, or localities.  
For more information please review USDOL- Wage and Hour Fact Sheet # 44

6. 1) Disclosure
Every Agricultural Employer, Agricultural Association and Farm Labor Contractor (FLC) must disclose information to Migrant and Seasonal Workers at the time of recruitment.
Employment conditions must be disclosed in the language of the worker and must be posted at the site of employment.
Migrant workers must receive written disclosure at time of recruitment.
Seasonal workers must receive verbal disclosure at time of hire and seasonal workers must be provided written disclosure upon request.

7. 1) Items to be Disclosed Rates of pay and other benefits
Period of employment
Place of employment
Crops
Worker’s compensation insurance
Any costs for transportation, housing or other benefits
* For more information: Review pages in the 2016 Labor Management Guide

8. QUESTION?
If a grower has several workers doing the same or similar job duties could he/she complete a disclosure form once and make copies to handout to all workers?  Is there an advantage or concern to being more specific or more general in the description of “kinds of work activities?

9. ANSWER
If the workers in question were all hired under the same terms, completing the same duties, and receiving the same benefits then yes a copy of the disclosure form can be provided to all workers.  There is always an advantage to being more detailed and specific when completing the description of “kinds of work activities” in the event there is a dispute related to those activities and the grower is called into question.

10. 2) Wage Statements
Employer must provide a wage statement every payday that includes:
Complete employee wage and payroll information
Name and address of Employer
EIN or Social Security number of Employer
Employers must:
Pay the rate disclosed, promised or contracted
Pay not less than minimum wage
Pay at least semi-monthly
Deposit and report taxes withheld
Agricultural employers should ensure these
measures are taking place when
hiring an FLC.

11. 2) Wage Statements Employers may not take deductions:
Unless they are disclosed to the workers.
If the charges create a profit for the employer (even if disclosed).
For cigarettes or alcohol without a permit.
*For more information: Review pages 15-18
of the 2016 Labor Management Guide

12. 3) FLC and FLCE Registration
Farm Labor Contractors (FLCs) and Farm Labor Contractor Employees (FLCE) must register with the Department:
if they furnish, recruit, employ, solicit, hire, or transport for a fee or other valuable consideration
This registration must be done prior to performing such activities
FLC must carry the registration card at all times
FLC must present card to Agricultural Employer and the Agricultural Employer must ensure FLC’s valid registration by verifying the FLC can legally do all tasks requested.
Check USDOL-WHD website for validity:
Debarred FLCs:
* For more information: Review checklist on pages of the 2016 Labor Management Guide

13. QUESTION?
What should a grower do if they come across a person who is providing farm labor contractor services but is not registered?

14. ANSWER
First, do not hire the person.  It is a violation to hire an unregistered farm labor contractor and the grower could be held liable for any violations that contractor causes while employed by the grower.  Second, inform USDOL- Wage and Hour Division so that we can assist in getting the contractor legally registered.
For more information please review USDOL- Wage and Hour Fact Sheet # 49

15. QUESTION?
Are grower associations such as the North Carolina Grower's Association or the Agricultural Workforce Management Association exempt from FLC registration but still subject to MSPA and H-2A requirements?

16. ANSWER
Agricultural associations are not considered farm labor contractors and do not have to register. However, before they engage the services of any farm labor contractor, they must take reasonable steps to ensure that the contractor has a DOL certificate of registration valid for the services to be performed. 
For more information please review USDOL- Wage and Hour Fact Sheet # 49.

17. 4) Transportation Safety
Properly licensed driver
Current and valid driver’s license
Larger vehicles may require commercial driver’s license (CDL)
Doctor’s certificate (WH-515)
When agricultural workers are transported, MSPA requires:
safe vehicles
authorization to transport for FLC for each vehicle
authorization to drive for FLC/FLCE
separate authorization for driving and transporting

18. 4) Transportation Safety
Agricultural employers can be jointly responsible for transportation safety
When they direct, request, or cause transportation
Example: Agricultural employer requires that FLC transport workers to the field in vans rather than have so many cars in the field.
* For more information: Review pages in the 2016 Labor Management Guide

19. QUESTION?
If a grower or someone in the growers family drives the workers into town or from field to field do they need a doctors certificate?

20. ANSWER
Under H-2A Employer-provided transportation must meet all applicable safety standards, be properly insured, and be operated by licensed drivers. The Migrant and Seasonal Agricultural Worker Protection Act (MSPA) and regulations require–subject to certain limited exemptions–any farm labor contractor, agricultural employer, or agricultural association (or their employees) providing certain types of transportation to migrant and seasonal agricultural workers to have a legible doctor’s certificate (or copy thereof) on file at the principal place of business for every driver employed or used. In addition, the regulations provide for each driver to have the certificate (or copy thereof) in his or her possession while driving migrant or seasonal farm workers subject to the Act. Failure to carry the certificate, or a legible copy thereof, results in the driver not being authorized to transport migrant and seasonal agricultural workers at that time and may result in the assessment of a civil money penalty.
For more information please review USDOL- Wage and Hour Fact Sheets # 26 and #50.

21. 5) Illegal Fees
Under the H-2A program, only deductions required by law or disclosed in the contract are permitted.
Some workers hired by H-2ALCs/FLCs are being required to pay large sums of money in order to secure work in the U.S. and enter the country
Indentured Servitude
Human Trafficking
Force, fraud, or coercion
Under the H-2A program, the employer must pay all the recruitment and visa costs

22. 6) FLCs as H-2A Employers
When a Farm Labor Contractor (FLC) obtains certification from the US Government to bring in “guest workers” under the H-2A program, the FLC becomes an H-2ALC, or H-2A Labor Contractor.
An H-2ALC is an employer who is not a fixed-site employer, and who in addition to employing, may recruit, solicit, hire, furnish, house, or transport any worker subject to the H-2A regulations.
*For more information: Review pages 8-11of the Labor Management Guide

23. 6) H-2A Labor Contractors
An H-2ALC must first obtain a certificate of registration – or “FLC card” – showing the activities they are authorized to perform, such as authorization to house (HA), transport (TA), or drive (DA), prior to submitting an H-2A application.

24. 6) H-2A Labor Contractors
An H-2ALC may apply for H-2A employees through the same method as an H-2A fixed-site employer, but with additional requirements.
They are limited to a single area of intended employment per application.
They must identify the name and location of the jobsite as well as the crops to be harvested.
They must provide a surety bond.
They must provide a copy of each contract with each fixed-site employer connected with the job order.
Additionally, H-2ALCs must demonstrate that the housing where the workers will live, whether provided by the fixed-site grower or by the H-2ALC, has been properly inspected and approved for occupancy, and must also assure that the transportation provided by either the fixed-site agricultural business or the H-2ALC meets the H-2A requirements.

25. FLC and FLCE Cards FLCE Driving Authorized FLCE Driving Unauthorized
DA Expiration
FLC
Transp.
Housing
Driving Authorized (DA)
FLC
Transp.
Housing
Driving Un-Authorized

26. 6) H-2ALC’s & Joint Employment
You may be considered a joint employer of the H-2ALC’s workers, based on your level of control of those workers, so if the H-2ALC you chose isn’t following all of the rules and regulations outlined by the U.S. Department of Labor, you may run into problems.
Request all documentation from the H-2ALC
Copy of the FLC card and FLCE card(s)
Copy of the 790 H-2A contract;
Copy of vehicle insurance policy showing sufficient coverage under the regulations; and
Copy of driver license for all individuals transporting workers
Once the work begins, insist on reviewing the H-2ALC’s time and payroll records for accuracy.
Hiring an H-2ALC should not be viewed as a way of distancing yourself from the workers harvesting your crop.

27. 6) H-2ALC Documentation
Although USDOL-Wage and Hour does not require you to verify this documentation, we suggest you request to see:
The ETA-790 H-2A job order which will have the grower's worksite and possible housing site listed;
A valid FLC certification and supporting documents;
Proof of insurance on vehicles;
A valid driver’s license for all individuals transporting workers;
Housing certificates, FLC provided or grower provided;
Valid pesticide certification;
Examples of payroll records, and proof of fair pay;
Proper surety bond;
Professional references, such as letters from other growers testifying to the FLC’s work quality.
Make copies of these documents for your records. If any of these documents are missing, the problems that arise may be yours.

28. 6) Common Issues with H-2ALCs
Falsifying ETA-790 Job Orders
Grower’s names
Housing locations
Number of workers needed
Illegal fees charged to workers
Not paying workers Adverse Effect Wage Rate (AEWR)
No records, wage statements or paystubs
False report of worker abandonment

29. U.S. Department of Labor-Wage and Hour Division
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