Audry Thompson, staff attorney with the Penn State Center for Agricultural & Shale Law, recently reviewed the Fair Labor Standards Act (FLSA), enacted in 1938, which sets minimum wage, overtime, recordkeeping and child labor standards.
Thompson explained that FLSA requires an employment relationship. “The law keeps the definition vague and broad,” she said. “It defines ‘employee’ as any individual employed by an employer.” Congress chose vague terminology because they foresaw technology changes and wanted to avoid obsolescence.
An employment relationship considers the employer’s control of the work’s manner, the employee’s opportunity for profit or loss, the employee’s investment in equipment or materials and whether the employee utilizes helpers. It also considers special skills and the permanence of the working relationship and whether the work is an integral part of the employer’s business.
There are two types of FLSA coverage: enterprise coverage, under which all employees are entitled to FLSA coverage; and individual coverage, in which the enterprise is not covered but individual employees are entitled to FLSA protections.
Enterprise coverage includes enterprises engaged in commerce or production of goods for commerce with at least $500,000 of commercial sales and business and have two or more employees. Individual coverage considers the individual’s activities and is based on a work week.
A work week is defined as a “fixed and regularly occurring interval of seven consecutive 24-hour periods.” The time period can begin at any day or time established by the employer – it doesn’t have to coincide with the calendar week.
“Once the work week has been set, it commences each week on the same day and at the same hour,” said Thompson. “Changing the work week for the purpose of escaping requirements of the act is not permitted.”
Employers must keep complete records for each employee including (but not limited to) hourly rate, daily and weekly work hours, deductions and date of payment.
Most businesses will fall under individual coverage. “Even if they don’t have $500,000 of commercial sales and business,” Thompson said, “if they have an employee who is engaged in commerce or production of goods for commerce, the activities fall under FLSA.”
If a business falls under FLSA, employers must pay minimum wage. The current federal minimum wage of $7.25/hour has been in effect since 2009. The FLSA Provisions for Agriculture provides exemptions from minimum wage requirements, overtime pay requirements and child labor provisions.
“The burden is always on the employer to show exemption,” said Thompson. “The presumption is that FLSA applies, and the employer must show otherwise.”
Exempted minimum wage and overtime apply to an employer’s immediate family members, employers using fewer than 500 man-days, hand-harvest laborers and hand-harvest laborers 16 years or younger. A “man-day” is any day during which an employee performs any ag labor for at least one hour and does not include the work of family members.
Regarding family members, if the employee is a parent, spouse, child or other member of the employer’s immediate family, the employer is exempt from paying them FLSA minimum wage for overtime work.
FLSA includes exemptions for agriculture, describing agriculture as “farming in all its branches; cultivation and tillage of soil; dairying; production, cultivation, growing and harvesting of any agricultural or horticultural commodities; the raising of livestock, bees, fur-bearing animals or poultry; and forestry or lumbering operations.”
Also included are secondary practices, defined as “performed by a farmer or on a farm as an incident to or in conjunction with such farming operations including preparation for market, delivery to storage or to market or to carriers for transportation to market.”
“Practices under this second branch, to be considered exempt, must relate to the farmer’s own farming operation and not to farming operations of others,” said Thompson. “This comes into play if a farmer is processing crops grown by other farmers.”
Particularly important under FLSA are child labor laws. “Youth ages 16 to 17 may not work in particularly hazardous occupations,” said Thompson. “They are restricted under FLSA as to when and how long they can work. Youth ages 14 to 15 may only work in some occupations deemed non-hazardous … and may only work outside of school hours. Fourteen- and 15-year-olds may work no more than three hours on a school day, including Fridays, and no more than eight hours on a non-school day, no more than 18 hours during a week when school is in session and no more than 40 hours a week when school is not in session.”
In general, youth under 13 cannot be employed other than for light chores.
Youths 14 – 15 can perform non-hazardous jobs outside of school hours, and youths 12 – 13 can participate in non-hazardous jobs outside of school on farms that also employ their parents with parents’ permission. There are no prohibitions on hours or tasks for youths 16 and older; however, youths 16 – 18 may not work in hazardous occupations.
Youths under 16 may not operate a tractor over 20 hp or connect/disconnect implements or parts. “They can’t operate corn pickers, grain combines, hay mowers, forage harvesters or hay balers,” said Thompson. “They can’t operate feed grinders, crop dryers, forage blowers, auger conveyers or the unloading mechanism of a non-gravity-type self-unloading wagon or trailer.”
Also deemed particularly hazardous to youth under 16 are operating a power post hole digger or driver, a non-walking rotary tiller, trencher, earth-moving equipment, forklifts or power-driven circular, band or chain saws.
Child laborers may not work inside a fruit, forage or grain storage designed to retain an oxygen-deficient or toxic atmosphere; an upright silo within two weeks after silage has been added or when a top unloading device is in operating position; in or around manure pits; or in a horizontal silo while operating a tractor for packing purposes.
Youths under 16 may not handle or apply agricultural chemicals categorized under FIFRA as Category 1 toxicity as identified by the word “poison” and the presence of skull and crossbones on the label, or Category 2 as identified with the word “warning” on the label.
“This prohibition includes cleaning and decontaminating equipment, disposing or returning empty containers or serving as a flagman for aircraft applying such chemicals,” said Thompson. “Children under 16 … may not transport or apply anhydrous ammonia.”
Thompson reminded farmers that state laws can supersede federal requirements if the state laws are more restrictive, and a state may not allow for less worker protection than the FLSA.
by Sally Colby