A migrant agricultural worker is an individual who is employed in agricultural employment of a seasonal or other temporary nature, and who is required to be absent overnight from his permanent place of residence. 29 USC 1802 . The term migrant can apply to both foreign and domestic workers. Many North Carolina farmers depend on the seasonal assistance that migrant workers provide in operations including tobacco, forestry, seafood, and numerous other crops.
Legal Status of Workers
Wage and Labor Requirements
This act sets North Carolina standards for migrant housing and requires all farm operators to submit an application for pre-occupancy inspection before migrant housing can be occupied. The State Department of Labor and the local health department conduct inspections pursuant to this law.
Immigration and Nationality Act (INA), 8 U.S.C. 1101, et seq.
The INA is a Federal law that was enacted to address the issues of employment eligibility, employment verification, and nondiscrimination. Under this Act employers may only hire individuals who are legal US citizens or are aliens authorized to work in the US. This Act also protects workers (US Citizens and aliens) from discrimination in hiring or discharge on the basis of national origin and citizenship status.
The Fair Labor Standards Act (FLSA), 29 U.S.C. 201, et seq.
The FLSA created a national minimum wage and concerns issues such as overtime pay and child labor. When first enacted this Act did not apply to all agricultural workers but was subsequently amended to extend its standards to agricultural workers. The United States Department of Labor enforces the requirements set out in the FLSA.
The Migrant and Seasonal Agricultural Worker Protection Act (MSPA), 29 U.S.C. 1801, et seq.
This MSPA is a Federal law that was enacted to protect migrant and seasonal workers on issues related to pay and working conditions. Under this Act farm labor contractors are required to register with the U.S. Department of Labor. The act also sets requirements related to housing, earning and deduction statements, transportation, and the disclosing of information to migrant workers.
Must housing provided to migrant workers have air conditioning and heating?
If the outside temperature falls below 50 degrees Fahrenheit then the housing unit must have heating equipment that is capable of maintaining a temperature of 65 degrees Fahrenheit. If the housing will only be occupied from May 15th to September 1st then no heating equipment is required. Air conditioning is not required. N.C.G.S. § 95-225(e).
What type of kitchen facilities are required in migrant housing?
Clean and sanitary food preparation and eating areas must be provided. The facility must have a stove with at least one burner per five people and no less than two burners total. Additionally the facility must have a refrigerator with .75 cubic feet per person, a table, and a sink with running hot and cold water. Storage facilities that are free of vermin must be provided and surfaces with which food or drink come in contact must be easily accessible for cleaning, and shall be nontoxic, resistant to corrosion, nonabsorbent, and free of open crevices. N.C.G.S. § 95-225(g) .
Must I furnish the bedrooms in migrant housing?
Each migrant must be provided a bed that includes a mattress in good repair with a clean cover. N.C.G.S. § 95-225(h) .
Is migrant housing in North Carolina subject to inspection?
Yes, before migrant housing can be occupied the facility must be inspected by the local department of health and the Department of Labor of North Carolina. Individuals who would like to provide migrant housing must request a preoccupancy inspection at least 45 days before the housing will be occupied. A request must be made either to the Department of Labor of North Carolina or to the local health department. The local health department is responsible for inspecting the migrant housing and determining its compliance. The local health department will then forward their results to the operator and the Department of Labor of North Carolina. The Department of Labor then inspects and certifies the results of the inspection with the operator. N.C.G.S. § 95-226(a).
Where can an application for preoccupancy inspection be obtained?
Blank copies of forms for applying for preoccupancy inspection are available at local health departments and agricultural extension offices. The application for inspection must include the name, address, and telephone number of the operator; the location of the migrant housing; the anticipated number of migrants to be house in the migrant housing; and the anticipated dates of occupancy of the migrant housing. N.C.G.S. § 95-226(b).
Are there any exceptions to inspection?
Yes. The facilities may be occupied on a provisional basis if the operator applied for a preoccupancy inspection at least 45 days prior to occupancy and an inspection is not conducted at least four days prior to the anticipated occupancy. The provisional occupancy will be revoked if the operator does not correct deficiencies found during inspection. N.C.G.S. § 95-226(d).
What if I have applied for a preoccupancy inspection and migrants arrive early?
If an operator has applied for an inspection pursuant to this Article and one or more migrants arrives in advance of the arrival date stated in the application, the operator shall notify the Department of Labor of North Carolina within two working days of the occupancy of the migrant housing. N.C.G.S. § 95-226(e).
Can I conduct my own inspection?
If an operator receives a preoccupancy inspection rating from the Department of Labor of North Carolina of one hundred percent (100%) compliance for a particular migrant housing unit for two consecutive years, in the third year the operator may conduct the preoccupancy inspection for that particular migrant housing unit himself or herself. Operators must register the housing with the Department of Labor of North Carolina at least 45 days prior to occupancy. The local health department will still inspect the housing for water quality, sanitation, and sewer standards. The operator may only conduct their own inspection for one year and the following year they must request a preoccupancy inspection following the standard rules. N.C.G.S. § 95-226(f).
Will my housing facilities be inspected after occupancy?
Generally housing facilities will only be inspected before occupancy however operators may be subject to a post occupancy inspection if a facility was subject to an annual preoccupancy inspection and was found to not be 100% in compliance, an operator was assessed a civil penalty by the Department of Labor during a previous year for violations, a preoccupancy inspection was not conducted, or as a response to a referral from a federal, State, county, or local government official, or any person with firsthand knowledge of an alleged violation. N.C.G.S. § 95-226(g).
Can a migrant worker waive or modify their rights to housing under the Migrant Housing Act of North Carolina?
No, the housing rights under the Migrant Housing Act of North Carolina cannot be waived or modified. N.C.G.S. § 95-228.
What will happen if during inspection my migrant housing is determined to be uninhabitable?
If housing is determined to be uninhabitable but is not reasonably expected to cause death or serious injury then the migrants may remain in the housing for a reasonable period (not to exceed 14 days) while the operator locates alternative housing or makes necessary repairs to the housing. The alternative housing provided to the migrant workers must be at the same rate or less than the rate paid by the migrants for the uninhabitable housing. If during inspection the housing could reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated, the migrants shall not be allowed to stay in the housing, and alternative housing shall be provided by the operator at the same rate or less than the rate paid by the migrants for the uninhabitable housing. N.C.G.S. § 95-229.1.
Does the MSPA apply to farm labor contractors?
The MSPA includes a section on farm labor contracting activities and applies to any person who will engage in any farm labor contracting. The following individuals are exempt from the act and from the registration requirement: family businesses which include individually owned businesses, small businesses, labor organizations as defined in section 2(5) of the Labor Management Relations Act ( 29 U.S.C. 152(5)), nonprofit charitable organizations, public or private nonprofit educational institutions, and persons who engage in farm labor contracting solely within a twenty-five mile radius of that person’s permanent residence for no more than 13 weeks per year. For a full list of exemptions see 29 U.S.C. 1803.
What does the MSPA require farm labor contractors to do?
The MSPA requires all farm labor contractors to register with the US Department of Labor, disclose information about wages, hours, and working conditions to migrant workers, provide statements of earnings and deductions, and make sure housing and transportation meets safety, health, and insurance standards. For more information about the MSPA and its requirements click here.
What type of information must I provide to migrant workers when I am recruiting them?
At the time of recruitment the following information must be provided to migrant workers:
- the place of employment;
- the wage rates to be paid;
- the crops and kinds of activities on which the worker may be employed;
- the period of employment;
- the transportation, housing, and any other employee benefit to be provided, if any, and any costs to be charged for each of them;
- the existence of any strike or other concerted work stoppage, slowdown, or interruption of operations by employees at the place of employment;
- the existence of any arrangements with any owner or agent of any establishment in the area of employment under which the farm labor contractor, the agricultural employer, or the agricultural association is to receive a commission or any other benefit resulting from any sales by such establishment to the workers; and
- whether State workers’ compensation insurance is provided, and, if so, the name of the State workers’ compensation insurance carrier, the name of the policyholder of such insurance, the name and the telephone number of each person who must be notified of an injury or death, and the time period within which such notice must be given. 29 U.S.C. 1821(a).
Must I post any type of information at the employment site?
Yes, a poster provided by the Secretary of Labor stating the rights and protections of workers under the MSPA must be placed in a conspicuous place. Additionally if housing is provided the terms and conditions of occupancy must either be posted in a conspicuous place or must be provided to each employee who is provided by housing. 29 U.S.C. 1821(b)-(c).
What types of records must I keep during the employment of migrant or seasonal workers?
Employers of migrant workers must keep records of the following information for three years:
- the basis on which wages are paid;
- the number of piecework units earned, if paid on a piecework basis;
- the number of hours worked;
- the total pay period earnings;
- the specific sums withheld and the purpose of each sum withheld; and
- the net pay; and
- employers must provide to each worker for each pay period, an itemized written statement of the above information. 29 U.S.C. 1821(d).
Must I provide information to migrant employees in any language other than English?
Yes, information provided to migrant workers at the time of recruitment, the terms and conditions of housing, and employment records must be provided, as necessary and reasonable, in Spanish or other language common to migrant agricultural workers who are not fluent or literate in English. 29 U.S.C. 1821(g).
What is an H-2A worker under the INA?
An H-2A worker is a temporary, non-immigrant worker that is allowed to enter the United States for the purpose of completing agricultural related work. For more information about hiring H-2A workers and the regulations that must be followed click here.
How much am I required to pay H-2A workers?
Under the H-2A Program, the employer must offer, recruit at, and pay a wage that is the highest of the Adverse Effect Wage Rate (AEWR) in effect at the time the job order is placed, the prevailing hourly or piece rate, the agreed-upon collective bargaining rate (CBA), or the Federal or State minimum wage. North Carolina’s AEWR for 2010 is $9.59. Click here for more information.