Farm Labor Laws and H-2A Worker Rights

The Fair Labor Standards Act (FLSA) covers agricultural workers' rights and mandates minimum wage and labor standard protections. The Wage and Hour Division (WHD) of the U.S. Department of Labor (DOL) also ensures that H-2A workers are employed in compliance with H-2A labor certification requirements.

Farm workers have rights just like other workers. Contact a local employment law attorney if you need help understanding your rights. An attorney can help resolve disputes and ensure fair treatment.

The H-2A program allows U.S. employers to bring foreign nationals to the U.S. to fill temporary agricultural jobs. Read on to learn more about farm labor laws and H-2A workers' rights.

What Is the Difference Between H-2A and H-2B Programs?

Both H-2A and H-2B visa programs are for work of a temporary or seasonal nature. But, there are key differences in the type of work they allow:

• H-2A is for agricultural work, such as harvesting, planting, and livestock herding.
• H-2B is for non-agricultural work, such as in construction, hospitality, landscaping, and tourism.

Both H-2A and H-2B visas require a Foreign Labor Certification (FLC) from the DOL before the U.S. Citizenship and Immigration Services (USCIS) can approve the visa. 

There are other differences between these two programs, including annual cap, wage rates, and employer housing and transportation requirements.

This article discusses the H-2A program and how it relates to farm workers.

Farm Workers' Coverage

Most agricultural workers are covered by the FLSA. Farm workers' coverage under the FLSA extends to essential labor protections. It addresses things like work hours, workdays, and wage rates. It stipulates that agricultural employees can't receive compensation below the federal minimum wage unless specific exemptions apply.

Whether remunerated on an hourly basis or through a piece rate, growers must ensure compliance with minimum wage standards. Unlike an hourly wage, a piece rate compensates employees based on the quantity of units or pieces they produce or complete rather than the number of hours worked.

The FLSA also mandates that farm workers receive a written statement detailing earnings and deductions from pay. Employers are obligated to provide written information about wages and working conditions at their place of employment in a language comprehensible to the farm workers. This ensures that details related to compensation and working conditions are effectively communicated to foreign workers.

Overtime Pay: Agricultural Labor Exemptions

Employees working in agriculture are exempt from overtime pay requirements. They don't have to be paid time and one-half their regular rate of pay for hours worked over 40 per week.

An agriculture employer who didn't use more than 500 "man-days" of agricultural labor in any calendar quarter of the preceding calendar year is exempt from the minimum wage and overtime requirements of the FLSA for the current calendar year. A "man-day" is defined as any day during which an employee performs agricultural work for at least one hour.

Exemptions from the FLSA's minimum wage and overtime requirements apply to the following:

• Agricultural employees who are immediate family members of their employer
• Employees primarily on the range in the production of livestock
• Local hand harvest laborers who commute daily from their permanent residence, are paid on a piece rate basis in traditionally piece-rate occupations, and were engaged in agriculture for less than 13 weeks during the preceding calendar year
• Non-local minors, 16 years old or under, who are hand harvesters, paid on a piece rate basis in traditionally piece-rate occupations, employed on the same farm as their parent, and paid the same rate as those over 16

Safety and Health Regulations

Any housing or transportation provided by the employer must be safe. Employer-provided housing requirements include, but aren't limited to:

• One bed for each person
• Hot and cold running water
• Heating
• No signs of infestation
• First aid kits
• Sanitary bathrooms
• At least one shower for every 10 people
• A clean kitchen area

Transportation requirements include, but aren't limited to:

• A separate seat for each passenger
• Properly working parts of the vehicle
• Seatbelts, when required by state law
• Licensed drivers
• Vehicle insurance

Farmworkers must also be provided a safe workplace and safe drinking water, toilets, and handwashing facilities at the worksite at no cost.

Recordkeeping for Farm Labor

Agriculture employers must keep accurate and complete payroll records. There isn't a required form for these records, but the records must include:

• Employee's full name and Social Security Number
• Address, including zip code
• Birthdate (if younger than 19)
• Sex and occupation
• Time and day of week when the employee's workweek begins
• Hours worked each day
• Total hours worked each workweek
• Basis on which employee's wages are paid
• Regular hourly rate
• Total daily or weekly straight-time earnings
• Total overtime earnings for the workweek (agricultural employees are exempt from overtime pay requirements)
• All additions to or deductions from the employee's wages
• Total wages paid each pay period
• Date of payment and the pay period covered by the payment

Temporary Labor for Non-Agricultural Jobs

The H-2B provisions of the Immigration and Nationality Act provide for the admission of nonimmigrant workers, typically under an H-2b visa, to the U.S. to fill temporary nonagricultural jobs. The Wage and Hour Division of the Department of Labor is responsible for ensuring H-2B workers are employed in compliance with H-2B labor certification requirements.

Job Opportunities for Temporary Work

An employer seeking authorization to employ H-2B workers must:

1. Offer terms and working conditions normal to U.S. workers similarly employed in the area of intended employment, which aren't less favorable than those offered to H-2B workers

2. Offer a job opportunity to H-2B workers that is a bona fide, full-time temporary position with qualifications consistent with normal and accepted qualifications required by non-H-2B employers in the same or comparable occupations

3. Truly and accurately state the dates of temporary need, the reason for temporary need, and number of positions being requested for labor certification

Working conditions and terms must also comply with all applicable federal, state, and local employment laws. This includes laws on health and safety standards.

Wages for H-2B Workers

H-2B workers must be paid the higher of either the statutory minimum wage or the prevailing wage for the area of intended employment during the approved H-2B labor certification period.

Employers must also make all lawful deductions from H-2B workers' paychecks required by law, including federal and state taxes. But employers can't require H-2B workers to pay, directly or indirectly, anything related to obtaining labor certification.

Employer Requirements for Temporary Workers

Employers can't place H-2B workers outside the area of intended employment without obtaining a new temporary labor certification from the Department of Labor. Employers are also required to provide return transportation to H-2B workers' home country if the workers are dismissed before the end of the authorized period of stay.

Records for H-2B Employment

H-2B workers should keep a record of hours worked and wages paid. The DOL provides a factsheet outlining requirements for record retention.

Get Legal Help Protecting Your Rights Under U.S. Farm Labor Laws

U.S. immigration and labor laws can be confusing, especially for farm workers visiting the country on a visa and unfamiliar with the legal system and immigration laws. But all workers have certain rights, like the right to a minimum wage and safe working conditions.

If you believe your employer has violated your rights as a farm worker, speak with an employment law attorney. An attorney can help you understand your legal options.