[Farm Law editor’s note: the following piece is in draft pending academic peer review, and written as part of the series Farm Law: Owning, Managing and Transferring Farm Interests, sponsored by the North Carolina Tobacco Trust Fund Project # #583400-10363. Comments to rabrana2@ncsu.edu are welcome.]

Introduction
Labor not covered and regulated by the Immigration and Nationality Act (i.e. not working through the H-2A program) is subject to the requirements of Migrant and Seasonal Agricultural Worker Protection Act of 1983 (“MSPA”).[i] As noted above, the term “migrant” describes a person within the United States traveling away from their home to work and not returning home at the end of the work day. Though a large percentage of agricultural migrant labor are those born in a country other than the U.S., the term migrant does not refer to their immigration status.[ii]  The MSPA establishes various protections and working condition requirements for workers, as well as a registration for farm labor contractors who broker both migrant and H-2A labor.

Seasonal Workers
MSPA defines seasonal agricultural workers as “an individual who is employed in agricultural employment of a seasonal or other temporary nature and is not required to be absent overnight from his permanent place of residence.”[iii] This would include a legal U.S. resident providing labor to a farm during the growing season (i.e. not year-round as on a dairy farm). MSPA requires employers to provide employees information about place of employment, wages paid, farm labor to be performed, employment period, and whether workers’ compensation insurance is provided, and records of such must be maintained and an earnings statement issues to workers.[iv]  Also, MSPA prohibits withholding of wages due.[v]  Migrant workers are defined as a seasonal worker who must be absent overnight from home (the term specifically does not include labor provided under the Immigration and Naturalization Act (i.e. H-2A).[vi]  Migrant workers are provided the same information as seasonal workers, with the addition that housing must meet health and safety standards.[vii]

Farm Labor Contractors
Farm labor contractors are defined by the statute as “any person other than agricultural employers, their employees, or agricultural associations that recruit, solicit, hire, employ, furnish, or transport any migrant or seasonal agricultural worker for money or other valuable consideration.”[viii] Farm labor contractors who recruit and facilitate provision of H-2A labor to farm employers are subject to MSPA and required to register with the Department of Labor. The MSPA creates a situation of “joint employment” between labor contractor and employer. Joint employment essentially means that both the contractor and the farm employer are responsible for ensuring compliance with MSPA, and one is liable for the other’s failure.[ix]

Enforcement
MSPA is enforced by the Department of Labor, but also authorized a private right of action for aggrieved employees to take action for violations of MSPA. However, where the worker is provided workers’ compensation for injury (or death), such payments are the exclusive remedy.[x] (See workers’ compensation discussion below)

One recent study found that investigated violations of MSPA violations resulted in payment of $1.3 million in back wages to 2,300 employees, plus $2.9 million in civil penalties.[xi] As a cautionary note, labor contractors bore the largest share of agricultural violations found between 2005 and 2019. Though representing only 14% of agricultural labor hired, contractors accounted for 24% of violations.[xii] Joint employment exposes the farm operator to liability for these violations.

Endnotes
[i] 29 U.S.C. §§ 1801-1872

[ii] For a summary of recent data on character and demography of the agricultural workforce, see USDA Economic Research Service reports

[iii] 29 U.S.C. §1802(10)

[iv] 29 U.S.C. §1831(1)

[v] 29 U.S.C §1832 (1)

[vi] 29 U.S.C. §1802(8)

[vii] 29 U.S.C. §1823

[viii] 29 U.S.C. §1802(7)

[ix] See generally Fact Sheet #35: Joint Employment Under the Fair Labor Standards Act (FLSA) and Migrant and Seasonal Agricultural Worker Protection Act (MSPA)

[x] See generally 29 U.S.C §1854

[xi] Costa, D., Martin, P., Rutledge, Z., Fair Labor Standards Enforcement in Agriculture, Economic Policy Institute (December 15, 2020)

[xii] Costa, D. et al (EPI 2020)

Acknowledgments

Content loaded to Agricultural and Natural Resource Law portal, including narratives, workbooks, and presentations, is supported by various sources including The North Carolina Tobacco Trust Fund Commission (TTFC) (Grant award 2019-001-16).