Ginners and producers need to keep on top of changing regulations relating to employees, particularly migrant workers, and maintain careful documentation of pay, safety, and other areas related to those workers.
Failure to do so could be expensive, says Ann Margaret Pointer, attorney and agricultural labor specialist with Fisher & Phillips, Atlanta, who advises the Southern Cotton Ginners Association on issues relating to the industry.
“There are many ways businesses, individuals who run them, and supervisory personnel are responsible for compliance with state/federal labor laws and can incur liability,” she said at the SCGA summer meeting at Branson, Mo. “They include discrimination laws, minimum wage laws, migrant/seasonal worker laws, OSHA laws, and others.”
And she said, corporate structure does not necessarily protect personal assets in a legal action.
Some things ag business owners/employers should be aware of, Pointer says:
• A new I-9 form (U.S. Citizenship and Immigration Services) became effective April 3 this year. All U.S. employers must complete and retain a Form I-9 for each individual they hire for employment in the United States.
This includes citizens and non-citizens. On the form, the employer must examine the employment eligibility and identity document(s) an employee presents to determine whether the document(s) reasonably appear to be genuine and relate to the individual, and record the document information on the Form I-9. If employers don’t use the form, they may be subject to civil money penalties.
“The immigration debate is heating up in Washington again,” Pointer says, “and there is a strong impetus in Congress to punish those who hire illegals, with a renewed focus on applying criminal penalties to employers who knowingly hire illegals.”
Electronic systems/software are now available for storing I-9 forms and related documents; the systems can be fully integrated with E-Verify, and they provide reminders of expiring documents and other relevant information.
“To the extent you’re dependent upon a migrant crew, be alert to the fact that the government is actively looking for illegals,” Pointer says, “Be sure you’re complying with all regulations and have the necessary documentation.”
• Employers need to comply with requirements of the Fair Labor Standards Act (FSLA) and the Migrant and Seasonal Agricultural Worker Protection Act (MSPA).
“These two federal statutes define employment so broadly they can have a wide-ranging impact,” Pointer says.
Additionally, many states have instituted laws that exceed requirements of the federal statutes, she notes, “and it is incumbent on you as an employer to ensure that you are following labor law applicable in your state.”
While cotton ginning has had at least partial exemptions from minimum wage and overtime regulations, Pointer says the Wage and Hour Division may try and change the interpretation of regulations that have been in place since 1974 and 1977.
“There has been “a real fracas” in Texas over this, she says. “You need to document everything related to wages paid, overtime, and bonuses and keep this information in your files.”
Bonuses are increasingly an important area where the government is going to be looking, she says; if a bonus is not “a complete surprise,” it will likely be considered part of regular wages and should be calculated as such.
The Department of Labor has been “looking for ways to interpret regulations more stringently,” Pointer says. “They’ve “gone back into the attics and archives of agricultural associations, so it’s more important than ever that you have extensive records and documentation.”
• MSPA and H2A (agricultural temporary worker) regulations are “defining jobs in more formal ways than ever before.”
These terms and conditions become contractual and enforceable in federal court, Pointer says. “You should incorporate work rules in the job description and have it in writing.
There are also rules for drivers, vehicle safety, and insurance requirements, housing and health safety requirements, housing inspections, etc., and employers should plan for compliance in “at least English and Spanish.”
Notices must be posted conspicuously at the place of employment, “generally in multiple places,” and must be in the workers’ languages.
Under all these laws, there are specific protections for those who file complaints.
OSHA standards apply specifically to many agricultural operations, Pointer notes, but even if there is not a standard that applies specifically to a particular operation, “You still need to have safety training and monitoring procedures in place under the General Duty Obligations clause.
“Under this clause, ‘hazards’ that are the subject of specific standards for non-agricultural industries can result in OSHA citations where the hazard is recognized, has caused or is likely to cause death or serious physical harm, and there is a feasible method to correct or abate the hazard.”
Even though only certain regulations apply to agriculture, particularly where there are ANSI, ASE, and other professionally-developed safety standards, OSHA citations still may be issued, Pointer says. “Moreover, OSHA citations have been issued for failure to operate equipment in accordance with the manufacturer’s directions.
“If equipment or a work practice creates a hazard risk, keep up with and implement your industry’s ways of working safely, train employees to work safely, and maintain the equipment so it can be safely operated.”
Online publications, Webinars, and other information related to labor, OSHA, and other ag issues may be accessed at http://www.laborlawyers.com.