(December 2020)
The Migrant and Seasonal Agricultural Worker Protection Act (MSAWPA) was enacted by legislation in 1983. It regulates hiring and employment activities of agricultural employers, farm labor contractors, and associations that use migrant and seasonal agricultural workers. It contains provisions similar to those of the Farm Labor Contractor Registration Act of 1963 that it replaced. It prescribes wage protections, housing and transportation safety standards, farm labor contractor registration requirements, and disclosure requirements. The Department of Labor's Wage and Hour Division administers this law.
MSAWPA has special child-labor regulations. Children under 16 years of age cannot work during school hours or in certain jobs considered too dangerous. However, children employed on their family farms are exempt from these regulations.
The Occupational Safety and Health Administration (OSHA) developed special safety and health standards that apply to some types of agricultural operations. The Immigration and Nationality Act requires employers that use temporary foreign workers on specific types of visas to obtain a labor certificate from the Employment and Training Administration (ETA). It certifies that there are not enough able, willing, and qualified citizen employees to do the work. The ETA's Wage and Hour Division enforces the visa program's labor standards protection.
MSAWPA contains four specific requirements for agricultural employers.
MSAWPA defines a number of key terms that reveal the range of its coverage. Detailed information is available by contacting the nearest office of the Wage and Hour Division, U.S. Department of Labor, and consulting 29 Code of Federal Regulations and Title 29, United States Code. The following are the defined terms:
The agricultural employer who uses the services of a farm labor contractor to obtain workers may be considered a joint employer of those workers. The MSAWPA rules require that the agricultural employer verify that the labor contractor has been authorized for all activities and even provides a phone number the employer can use to verify.
When that farm labor contractor has not been authorized, the Department of Labor may determine that the agricultural employer is a joint employer of the workers.
Employers and contractors under MSAWPA are required to provide workers with statements that address their employment conditions. Each farm labor contractor, agricultural employer, or agricultural association that recruits migrant or day-haul workers must give each worker certain information. The information includes the following:
This information must also be provided in writing to any seasonal worker who requests it in a language he or she understands. Certain records must be prepared and maintained for at least three years for each employee and must include the following information:
Workers must be paid every two weeks or twice a month. Each employee must receive a detailed wage and earnings statement in a language he or she understands. Farm labor contractors must also furnish wage records to each agricultural employer or agricultural association. The employers or associations that receive those records must keep them for at least three years after the employment period ends.
Wage and Hour Division administrators or representatives of the U.S. Department of Labor may enter a facility at any time to inspect it for employment conditions, practices, and employment records, as well as to investigate to determine if there are any violations. In addition, OSHA compliance officers can also inspect and investigate if they have information about violations or noncompliance with MSAWPA. Violations carry both criminal and civil penalties in addition to administrative sanctions. Persons whose rights have been violated are also permitted to bring legal action against the alleged violators. They may file suit in any Federal District Court that has jurisdiction over the parties involved. Suits may be filed regardless of the amount contested, the citizenship of the parties involved, and whether or not all administrative remedies available under MSAWPA have been used. The court may appoint an attorney to represent the plaintiff and may grant awards up to $10,000 to each plaintiff for each violation assessed. Other equitable forms of relief are available when the violations are intentional.
The Migrant and Seasonal Agricultural Worker Protection Act does not stand in the place of or supersede any state workers compensation program. In fact, it supports state programs and provides federal enforcement of migrant and seasonal agricultural workers' rights. In addition, it offers federal protection when an employee sustains bodily injury due to intentional violations of the Act.
State programs are usually the primary remedy. However, this Act provides coverage when the state does not address it or when the state remedy is insufficient. An employee may file a claim under both state and federal programs, but the state program is primary, and the federal program only supplements it or picks up the excess. The United States Supreme Court affirmed this in its decision in Adams Fruit Co. v. Barrett, 494 U.S. 638, 110 S. Ct. 1384, 108 L.Ed.2.d.585 (1990). In this case, a group of migrant workers collected payments and benefits under the applicable state workers compensation program and then also filed a claim under MSAWPA for benefits. The claim stated that the employer had intentionally violated MSAWPA because it did not properly maintain the vehicle used to transport them. This led to their bodily injuries. The Supreme Court ruled that in such cases, filing a state claim did not preclude protection under the Act, although the award for benefits could be offset by the state reimbursement.
WC 00 01 11–Migrant and Seasonal Agricultural Worker Protection Act Coverage Endorsement deletes Exclusion 12 under Part Two–Employers Liability Insurance, C. Exclusions. It excludes coverage for workers that this Act covers.
This endorsement applies to only the work subject to MSAWPA described in Item 4. on the Information Page or on the endorsement schedule. It makes the policy apply to that work as though it was a state listed in Item 3.A. on the Information Page. It covers damages payable under MSAWPA or amendments made to it during the policy period.
Internet and other users interested in further information about the Migrant and Seasonal Agricultural Worker Protection Act of 1983 or related subjects can contact the Department of Labor at 1-866-487-9243, 1-866-487-3652 or at WHD-Public@dol.gov.
MSAWPA is the major federal law that deals with agricultural employment. It protects migrant and seasonal farm workers in pay, work, and work-related conditions. It also requires farm labor contractors to register with the U.S. Department of Labor to assure equitable treatment of and necessary protection for farm workers.
The following are the major components of MSAWPA:
The law requires those that use a farm labor contractor's services to verify that the contractor has a valid certificate of registration and conducts business legally. The law also prescribes criminal and civil penalties and administrative sanctions against violators.
The amended regulation that addresses joint employment has been strengthened by focusing closely on tests the courts established and by clarifying certain concepts. As a result, agricultural employers and associations that use the services of farm labor contractors should be familiar with the provisions of MSAWPA and other similar or related labor laws.