Migrant & Seasonal Agricultural Workers Protection Act (MSPA)

Written by Staff Writer

Migrant and seasonal agricultural workers are protected under this act in terms of wages, recordkeeping, transportation, housing, and disclosures. This act, administered by the U.S. Department of Labor's Wage and Hour Division, is especially important to agricultural employers, farm labor contractors, and any other agricultural organizations that hire migrant or seasonal workers. The Wage and Hour Division maintains a list of registered certificate holders, including the certificate's expiration date.

The Wage and Hour Division defines a farm labor contractor as "a person (other than an agricultural employer or an agricultural association) who receives a fee or other valuable consideration for performing farm labor contracting activities"; farm labor contracting activity as "recruiting, soliciting, hiring, employing, furnishing, or transporting of any migrant or season agricultural workers"; a migrant agricultural worker as "a person employed in agricultural work of a seasonal or other temporary nature who is required to be absent overnight from his or her permanent place of residence"; and a seasonal agricultural worker as "a person employed in agricultural work of a seasonal or other temporary nature who is not required to be absent overnight from his or her permanent place of residence."

Before an employer can hire a farm labor contractor, four things must be completed:

• Contractors must obtain a certificate of registration from the US Department of Labor, which is detailed more below
• Contractors must provide written terms and conditions of the potential position
• Contractors must create and preserve payroll records, providing each employee with a statement of earnings
• Any housing or transportation arrangement must be discussed and agreed a upon

Employers must also comply with these wage, recordkeeping, transportation housing and disclosure laws:

• At the time of recruitment or during the offer of employment to a seasonal or migrant worker, the employer must explain the terms and conditions of employment in writing
• At the worksite, have worker protections laws posted and ensure the worker is aware of his or her rights
• Provide workers with an itemized statement of earnings and deductions
• Pay each worker when wages are due
• If housing is provided, it must comply with federal and state health and safety standards, and the house cannot be occupied until it has a certificate of approval posted on site
• If transportation is provide, the worker must be licensed properly and the vehicle must meet federal and state insurance requirement standards
• Obey working arrangement terms
• The payroll record of each employee should be kept for three years
• Employer is not allowed to force workers to purchase services or goods from a contractor, employer, or associate
• Employer and employee must not break the contract without due cause
• Employer is subjected to inspections from Wage and Hour Division

If any MSPA protected worker believes an employer is violating any of the above rights, he or she can file a complaint to the Wage and Hour Division, file a lawsuit or testify in a lawsuit without fear of being discriminated against for such an action.

Application Requirements

Before performing anything that qualifies as a "farm labor contracting activities," a Certificate of Registration must be obtained. Applicants must submit a completed Form WH-530 or Form WH-535.

Form WH-530 is designed for farm labor contractors (FLC). The DOL defines a farm labor contractor as:

• “a person or business who recruits, solicits, hires, employs, furnishes, or transports migrant or seasonal agricultural workers for money or other benefit”;
• “not an agricultural employer, agricultural association, or employee of an agricultural employer or association; and not subject to the exemption criteria found in 29 U.S.C. § 213(a)(6)(A) and 29 C.F.R. 500.30.”

Farm labor contractor employees must use Form WH-535 instead. The DOL defines a farm labor contractor employee (FLCE) as:

• “an employee of a registered farm labor contractor; and”
• “seeking to perform farm labor contracting activities solely on behalf of your employer.”

Furthermore, you may be required to submit Form WH-540 to amend or correct an existing Certificate of Registration. You can also use that form to request a duplicate certificate. All three forms are available in English and Spanish.

All applications for FLC or FLCE Certificates of Registration must be submitted to:

U.S. Department of Labor
Wage Hour Division
National Farm Labor Certificate Processing
90 Seventh Street Suite 11-100
San Francisco, CA 94103

Additional documentation or forms may be required based on the specifics of your desired authorization.

Once the application is submitted, the applicant must wait for approval and obtain his or her Farm Labor Contractor (FLC) or Farm Labor Contractor Employee (FLCE) Certificate of Registration before engaging in labor contractor activities.

More information on the form can be found on the Wage and Hour Division website.

Fair Labor Standards Act

Another act relevant to migrant and seasonal workers is the Fair Labor Standards Act, which exempts farm workers from overtime pay, but requires employers to pay minimum wage on farms that have seven or more full-time workers. This act also includes provisions for children, since youth under the age of 16 cannot work during school hours or perform certain dangerous jobs. Exceptions are made for children who work on small, family farms.

For more information about the Fair Labor Standards Acts overtime provisions, click here.

For more information about the Fair Labor Standards Acts minimum wage provisions, click here.

For more information about child labor laws, click here.

Immigration and Nationality Act (INA)

The Immigration and Nationality Act, a federal law, regulates the employment of foreign workers in the United States. The INA establishes a framework of work authorizations that permits foreign nationals to work in the United States under specific circumstances.

The INA also requires employers to fulfill certain obligations to these authorized alien workers. An employer must confirm the eligibility of potential employees with an I-9 form. Failure to submit a form for each employee and to keep it on record for at least a year may result in penalties.

The most common type of authorization issued for agricultural labor is the H-2A visa. Employers who hire such employees must provide certification that there are not qualified U.S. workers willing and able to do the work.

For more information about the INA, you can visit the Immigration and Nationality Act page.

OSHA and Migrant Workers

On occasion, compliance workers from OSHA will conduct investigations about migrant labor conditions. As a regular course of business, Wage and Hour Division officers are presented with migrant workers health and safety conditions that may be in violation of OSHA standards. There is an open policy of exchange between these two agencies to facilitate fair employer-migrant worker relationships.

You can find interpretative guidance, forms, and fact sheets about labor laws that apply to seasonal farm workers on the MSPA website.