Migrant and Seasonal Agricultural Worker Protection Act
STOP! You may be subject to the Migrant and Seasonal Agricultural Worker Protection Act even if you do not have any migrant or seasonal employees, and even if you have year-round (NOT seasonal) work! Yes! You might be subject to the Migrant and Seasonal Agricultural Worker Protection Act (“MSPA”)!
An employer subject to MSPA is an agricultural employer who has migrant or seasonal workers. But don’t get hung up on the terms “MIGRANT” AND “SEASONAL!” Under the law, those terms have different meanings, with regard to some agricultural commodities, than what you commonly understand the terms “migrant” and “seasonal” to mean.
To illustrate: I have an adult son who works on a mushroom farm. He was born and raised in the United States and in fact he has never been outside of the United States. He works 6 days a week, 50 or 52 weeks a year. He is a “seasonal agricultural worker” under the MSPA because mushroom farms are considered “seasonal” under the MSPA, even when they are year-round operations employing local residents (not “migrants”).
Surprised? Well, I’d rather you be surprised NOW than when the Department of Labor shows up on your doorstep…
Are you an “agricultural employer?” You are an agricultural employer under the MSPA if you own or operate a farm, ranch, processing establishment, cannery, gin, packing shed or nursery, or produce/condition seed, and you either recruit, solicit, hire, employ, furnish or transport any “migrant” or “seasonal” agricultural worker.
You may be subject to MSPA if you or someone you pay (such as a Farm Labor Contractor) recruits, solicits, hires, employs, furnishes or transports agricultural workers for work on a “farm.” A “farm” includes stock, dairy, poultry, fruit, fur-bearing animal, and truck farms, plantations, ranches, nurseries, ranges, greenhouses or horticultural commodities and orchards.
Speaking of Farm Labor Contractors — Do you know if you have any? That guy who performs services for your farm — if those services include any services in connection with planting, cultivating or harvesting, the placing of commodities in a container in the field, or on-field loading of trucks, your service provider is a Farm Labor Contractor subject to MSPA. So, too, are the day-haul operators who provide workers in canning, packing, and other processing operations.
And yes, you really do need to care about whether the Farm Labor Contractor (“FLC”) is subject to MSPA.
Why? Because you may be in a “joint-employment” relationship with that FLC. Your accountant didn’t think so? Don’t go by IRS standards and what your accountant thinks is or is not a joint employer. Joint employment under MSPA is a completely different animal than joint employment under the Internal Revenue Code. What you don’t know CAN hurt you!
Need to know more about the MSPA, and how it might affect your agricultural operation?
Before the DOL comes knocking on your door, fill out this contact form and I’ll send you my e-paper on the MSPA. Or give us a call at 484-734-0786 or 855-LAW-FARM.