Farmers Get Primerin Ag Labor Law

Sean High, a staff attorney at the Penn State Center for Agricultural and Shale Law, speaks Wednesday at the Adams County Ag Center.

GETTYSBURG, Pa. — Some employment laws have special provisions for agriculture, while in other cases farms are treated like any other business.

To stay legal, farmers must watch how they classify and pay workers, according to Sean High, a staff attorney at the Penn State Center for Agricultural and Shale Law.

High spoke Wednesday at the Adams County Ag Center.

The first challenge is to identify whether the worker is an employee or an independent contractor.

Employees are generally managed much more closely than contractors.

High said his grandfather gave his tobacco harvesters somewhat detailed instructions on how to cut and spear the leaves. “That is an employee if you are that specific,” he said.

Instructions for a contractor would be minimal, High said.

Contractors, unlike employees, can hire subcontractors to work in their place, he said.

Contractors usually train their own employees, which could make it difficult for farmers to hire harvesters as contract employees.

“So many times, workers show up without the training necessary” to pick fruit, High said.

Employees generally earn an hourly, weekly or piece-rate wage. Contractors are generally paid a flat fee or the cost of time and materials, High said.

Employees generally work regularly, while contractors, such as custom harvesters, usually do occasional, as-needed work, High said.

Employees are likely to receive insurance, sick pay and vacation. Contractors are not, he said.

To eliminate as much ambiguity as possible, farmers can use contracts to establish the terms of employment.

Because a contract is legally binding, “you get to make your own law in a contract,” High said.

A contract is not written for the parties who sign it as much as for the judge who will interpret the document if there is a dispute, he said.

Contracts do not have to be particularly complex, but they can clarify whether the worker is an employee or contractor, High said.

Statutes define certain workers as employees, including drivers who are hired to distribute meat, vegetables and fruit, he said.

Traveling salesmen, such as representatives who visit restaurants and grocery stores to take orders for a farmer, are also employees by statute, High said.

Farmers can have unpaid interns, but the experience must be focused on educating the person.

The business cannot derive an immediate advantage from the intern and may at times even be impeded by the intern.

“This probably isn’t a great option for your business,” High said.

Apprenticeships could be an option for some farms.

In an apprenticeship, workes are hired at relatively low wages and get pay increases as their proficiency increases.

The arrangement can be beneficial for both the farm and the worker, High said.

Registered apprenticeships must be filed with the U.S. Department of Labor, and a business would usually collaborate with a third party, High said.

Ultimately, the job title does not matter as much as the nature of the work and the compensation.

If the worker looks like an employee to the courts, the person is an employee, High said.

Workers may turn in employers if they feel they are not being handled properly, so “sometimes it’s better to err on the side of caution” when classifying workers, High said.

Foreign workers hired under the H-2A visa program fall under a separate set of regulations defining their employment relationship with the farm, High said.

Farmers, like all business owners, must report new employee hirings to the state or federal government. Farmers do not need to report when they hire contractors, he said.

The reporting requirement is designed to catch people who say they cannot pay child support because they are unemployed, High said.

Farms are exempt from minimum wage and overtime rules if they use fewer than 500 man days of ag labor in the calendar year, High said.

A man day is when a worker performs at least one hour of work in a day, he said.

Lancaster County strawberry growers have a very short harvest season, so they often try to hire a bunch of people.

If they hire too many people, though, they might cross the 500 man-day threshold, forcing them to pay minimum wage and overtime, High said.

It can be easy to go over the limit.

A farm that employs seven workers five days a week for 13 weeks accumulates 455 man days. If the farm adds another employee for that period, it will have 520 man days.

There are several other agricultural exemptions to minimum wage rules. The exemptions are designed to help small, family-owned farms, High said.

Pennsylvania courts have interpreted time on the job to include time spent putting on and taking off protective gear used during work. That’s important to note for farmers whose employees apply pesticides, he said.

High is planning to develop fact sheets on several of the topics discussed at the meeting to help farmers navigate labor issues.