Checklist · Agriculture

Hiring a Farm Crew or Pursuing a Farmworker Claim: A Practical Checklist

29 U.S.C. § 1801

Type
Checklist
Jurisdiction
National
Date
2024-12-03
Topic
Agriculture

This checklist covers a farm labor operation from contractor selection through the season, and it covers the farmworker side too. It opens with the seven verifications that eliminate most of a grower's exposure and take an afternoon — registration with the right endorsements, vehicles actually looked at, housing with a current posted certificate, a sample of crew pay records with hours, sanitation in the field, a heat plan with acclimatization, and pesticide records a paramedic can find. It gives the disclosure requirement that must happen at recruitment and that the working conditions must then match, which is the most provable claim in the field and the one document usually missing. It provides an H-2A compliance sequence built around the three-quarters guarantee tracked weekly and corresponding employment verified before the season. It supplies piece-rate make-up computation, the three field hazards, a joint employment screen, and a worker claim sequence.

Hiring a Farm Crew or Pursuing a Farmworker Claim: A Practical Checklist

Agriculture > Farm Labor and Seasonal Agricultural Workers | Published 3 December 2024 - Updated 11 April 2026 | UpLaw - uplaw.us

Which sequence do you need?

☐ Selecting a contractor — Part 1. ⚠️ Two minutes to check registration; using an unregistered contractor is your violation. ☐ The seven verifications — Part 2. ⚠️ An afternoon, and it removes most of the exposure. ☐ Disclosure at recruitment — Part 3. ⚠️ The conditions must match what was promised. ☐ Housing and transportation — Part 4. ☐ Pay — Part 5. ⚠️ Hours must be recorded even on piece rate. ☐ H-2A — Part 6. ⚠️ Track the three-quarters guarantee weekly. ☐ Field hazards — Part 7. ☐ A worker claim — Part 8. ☐ Season-end review — Part 9.

⚠️ The framing that matters most: farmworkers were excluded from federal overtime, from part of the minimum wage, from the ordinary child labor rules, and from federal bargaining protection. Everything protective in this field was built on top of that gap rather than closing it — and the grower is usually a joint employer and the defendant with assets.

Part 1 — Contractor selection

☐ ⚠️ Registration certificate — current, and covering the activities actually performed. Number ______ Expires ______ • ☐ Recruiting ☐ Transporting (separately endorsed) ☐ Housing (separately endorsed) ☐ Driving employees individually certified Registration under 29 U.S.C. § 1801 and following, definitions at 29 U.S.C. § 1802, rules at 29 C.F.R. Part 500. ☐ ⚠️ Using an unregistered contractor is the grower's own violation. ☐ No layered subcontracting to an unregistered crew leader ☐ confirmed in writing ☐ spot-checked in the field ☐ ☐ Ask what the contractor actually owns — vehicles ☐ housing ☐ equipment ☐ other customers ☐ ⚠️ A contractor with a van and a phone will fail the economic reality test, which makes YOU a joint employer. Plan accordingly rather than hoping otherwise. ☐ Audit right over crew pay records negotiated ☐ and exercised ☐ ☐ Verification under 8 U.S.C. § 1324a is the contractor's obligation as hiring employer ☐ ⚠️ but a joint-employer grower inherits exposure it never performed.

Part 2 — The seven verifications

⚠️ An afternoon. A grower who does these has eliminated most of the exposure in this field.

☐ 1. Registration certificate and endorsements verified with the issuing agency ☐ ☐ 2. ⚠️ Vehicles you have actually looked at — seating for each passenger ☐ seat belts ☐ inspection ☐ driver licensing ☐ insurance at required levels ☐ (standards at 29 U.S.C. § 1841) Transportation is where the fatalities are, and it is the least inspected part of the operation. ☐ 3. ⚠️ Housing with a current certificate of occupancy, POSTED BEFORE ANYONE MOVES IN ☐ inspected by someone from your own organization ☐ (standards at 29 U.S.C. § 1823) ☐ 4. A sample of the crew's pay records with hours ☐ make-up payments computed ☐ ☐ 5. Field sanitation IN THE FIELD — potable water ☐ toilets ☐ handwashing ☐ within a reasonable distance ☐ reasonable opportunity to use ☐ restocked daily ☐ (29 C.F.R. Part 1928) ☐ 6. Heat plan — shade ☐ water ☐ rest at temperature thresholds ☐ ⚠️ acclimatization for new workers ☐ written emergency procedure ☐ (general duty at 29 U.S.C. § 654, framework 29 U.S.C. § 651) ☐ 7. ⚠️ Pesticide records a paramedic can find — application log ☐ product labels accessible ☐ restricted-entry intervals enforced against the harvest schedule ☐ decontamination supplies present ☐ (40 C.F.R. Part 170, under 7 U.S.C. § 136) Acute exposure outcomes turn on what the clinician is told, and the label information frequently never travels with the patient.

Part 3 — Disclosure at recruitment

⚠️ Required at the time of recruitment, in a language the worker understands, and the conditions must then MATCH it. This is the most provable claim in the field and the document usually missing.

☐ Place of employment ______ ☐ Wage rates, including piece rates and any bonus ______ ☐ Crops and kinds of activities ______ ☐ Period of employment ______ ☐ Transportation terms and costs ______ ☐ Housing terms and costs ______ ☐ Existence of any strike or work stoppage ______ ☐ Any arrangement for a commission from a local merchant ______ ☐ In the worker's language ☐ In writing ☐ Copy retained by the grower ☐ Provisions at 29 U.S.C. § 1821 and 29 U.S.C. § 1822. ☐ ⚠️ If recruiting happened by phone through a family network, the disclosure still had to happen. It cannot be cured later. ☐ Exposure if omitted or mismatched: actual or statutory damages per violation, per worker, in federal court without exhaustion — 29 U.S.C. § 1854. ⚠️ A crew of forty with a disclosure violation and a housing violation produces a computable number without anyone proving a dollar of wage loss.

Part 4 — Housing and transportation

☐ Coverage screen — housing owned OR CONTROLLED by the employer, contractor, or anyone acting for them ☐ ⚠️ "Controlled" reaches a house whose rent you pay and a motel block-booked for a crew — structures operators frequently believe fall outside the statute. ☐ Certificate of occupancy current and POSTED before move-in ☐ Date ______ ⚠️ A camp inspected two seasons ago and reopened without inspection is a violation from the first night. ☐ Physical inspection — floor space per occupant ☐ beds ☐ separation of sleeping and cooking ☐ potable water ☐ toilets and showers at ratio ☐ hot water ☐ laundry ☐ screening ☐ heating ☐ refrigeration ☐ garbage ☐ pest control ☐ ☐ Charges — capped and reflecting actual cost where permitted at all ☐ ⚠️ free in H-2A ☐ no deduction that drives weekly pay below the minimum ☐ ☐ ⚠️ Eviction and lockouts — housing tied to employment is the sharpest coercion in the sector. Written notice before requiring anyone to leave ☐ State notice period for camp occupants checked ______ ☐ never condition occupancy on withdrawing a complaint ☐ See the landlord-tenant guide where the occupancy may be a tenancy. ☐ Season photographs of condition at start and end ☐ ☐ Vehicles — see Part 2, item 2. Additionally: capacity not exceeded ☐ no standing passengers ☐ hours of driving reasonable ☐ first aid kit ☐

Part 5 — Pay

☐ ⚠️ RECORD HOURS EVEN ON PIECE RATE. Piece rate does not require hours operationally, and that is exactly why the violation happens. ☐ Make-up pay computed weekly — piece earnings ÷ hours worked ≥ applicable minimum? ☐ ≥ adverse effect rate in an H-2A operation? ☐ Shortfall paid ______ ⚠️ The most common wage violation in agriculture. ☐ Compensable time captured: waiting for the crew bus ☐ riding to a distant block ☐ waiting for dew to dry ☐ moving between fields ☐ cleaning equipment ☐ mandatory pre-shift meetings ☐ ☐ Deductions reviewed — transportation ☐ housing ☐ equipment ☐ tools ☐ meals ☐ ⚠️ Several are impermissible where they primarily benefit the employer, and any deduction driving pay below the minimum is unlawful regardless of agreement. ☐ No commissions from a local merchant, store-at-camp arrangements, or check-cashing fees ☐ ☐ Crew leader pay-through — the grower pays a lump sum, the contractor distributes ☐ ⚠️ both are liable when the crew's share is short, and only one has records. ☐ ⚠️ Recordkeeping. Where records do not exist, a worker's reasonable estimate carries and the employer bears the burden of negating it. Absence of records is worse for you than bad records. ☐ Overtime — ⚠️ no federal overtime under the agricultural exemption at 29 U.S.C. § 213; check whether this State has enacted agricultural overtime ______ ☐ ⚠️ The exemption question that decides wage cases: is this operation handling the farmer's own crop (agriculture, exempt) or crops bought in (not agriculture, non-exempt, overtime real)? (rules at 29 C.F.R. Part 780) Answer ______ ☐ Enforcement exposure — minimum wage 29 U.S.C. § 206 ☐ overtime 29 U.S.C. § 207 ☐ liquidated damages and fees 29 U.S.C. § 216 ☐ employment status 29 U.S.C. § 203 ☐

Part 6 — H-2A compliance

Authorized at 8 U.S.C. § 1188, rules at 20 C.F.R. Part 655, enforcement at 29 C.F.R. Part 501.

☐ Job order filed with the State workforce agency ☐ Temporary labor certification obtained ☐ ☐ Wage floor = highest of adverse effect wage rate ______ prevailing wage ______ bargaining rate ______ federal/State minimum ______ → applicable rate ______ ☐ Housing at no cost, inspected and approved before certification ☐ ☐ Transportation — inbound travel and subsistence reimbursed at 50% of the contract period ☐ outbound at the end ☐ daily housing-to-worksite free ☐ ☐ ⚠️ THREE-QUARTERS GUARANTEE — TRACK WEEKLY, NOT AT THE END Contract workdays ______ × 0.75 = ______ required · Offered to date ______ · Shortfall payable ______ Work must be offered for at least three-quarters of the workdays and PAID FOR whether or not the work exists. The most-violated term in the program, because weather, yield, and market conditions all cut the other way and the guarantee does not bend. ☐ Tools and equipment provided without cost ☐ ☐ Meals or cooking facilities, with any meal charge within the cap ☐ ☐ ⚠️ CORRESPONDING EMPLOYMENT — domestic workers doing the same work receive the same wages and benefits ☐ verified BEFORE the season ☐ The provision growers most often overlook, and it converts an H-2A violation into a claim by the domestic crew. ☐ Fifty percent rule — domestic applicants hired through half the contract period ☐ hiring log kept ☐ ☐ No preferential treatment of H-2A workers over qualified domestic applicants ☐ no displacement ☐ ☐ ⚠️ NO RECRUITMENT FEES ANYWHERE IN THE CHAIN — written confirmation obtained from every foreign recruiter ☐ A debt incurred abroad is invisible to you and fatal to your certification. ☐ No contract substitution — the crop, wage structure, and hours match what was recruited for ☐ ☐ Debarment exposure understood — ⚠️ a debarred employer cannot obtain certification for a period, which for a program-dependent operation is existential.

Part 7 — Field hazards

☐ Field sanitation — Part 2, item 5 ☐ ⚠️ Coverage thresholds exclude the smallest operations, which is where compliance is worst. ☐ Pesticides — 40 C.F.R. Part 170, product registration under 7 U.S.C. § 136: • ☐ Hazard training before entry ☐ Notification of treated areas ☐ Restricted-entry intervals enforced against the harvest schedule ☐ • ☐ Decontamination supplies ☐ Protective equipment for handlers ☐ • ⚠️ ☐ Emergency assistance including transportation AND information about the product applied, traveling with the patient ☐ Heat — ⚠️ acclimatization for new workers ☐ shade ☐ water ☐ paid rest ☐ (general duty, 29 U.S.C. § 654) A disproportionate share of heat fatalities occur in a worker's first days, before the body has adapted. The highest-risk person on any crew is the newest one, and the standard protections are exactly the ones a new worker is least likely to know to ask for. ☐ Child labor — ⚠️ agricultural rules are looser, but hazardous occupations orders still prohibit workers under sixteen from specified machinery, animals, agricultural chemicals, confined spaces such as silos and manure pits, and heights ☐ • ☐ Age records for everyone on the crew ☐ Written rule about who may be present in the field ☐ • ⚠️ A piece-rate structure that makes an extra pair of hands worth money to a family is where these violations come from — not from deliberate hiring.

Part 8 — A worker claim

☐ 1. ⚠️ Get the recruitment disclosure. If it does not exist, or the conditions did not match it, that is the claim — and it requires no proof of unpaid wages. (29 U.S.C. § 1821, 29 U.S.C. § 1822) ☐ 2. Contractor registration — registered? for the activities performed? at the time? ______ (29 U.S.C. § 1801, definitions 29 U.S.C. § 1802) ☐ 3. ⚠️ Joint employment screen. Who owned the land ______ the housing ______ the vehicles ______ Who supervised ______ set the piece rate ______ decided when the day ended ______ Economic reality test under 29 U.S.C. § 203. Most contractors fail it, which makes the grower the joint employer — and the defendant with assets. ☐ 4. Records — hours ☐ piece counts ☐ distributions ☐ deductions and purposes ☐ ⚠️ Absence is your asset; the burden shifts. ☐ 5. Housing and vehicles — certificate, inspection date, condition, occupancy, seat belts, insurance ☐ (29 U.S.C. § 1823, 29 U.S.C. § 1841) ☐ 6. Conditions — water, toilets, handwashing, shade, rest, and the distance to each ☐ (29 C.F.R. Part 1928) ☐ 7. Pesticides — application records, intervals, notification, and whether label information reached anyone treating an exposed worker ☐ ☐ 8. H-2A overlay — certification ☐ wage rate ☐ workdays offered vs. the guarantee ☐ domestic wage parity ☐ ☐ 9. ⚠️ Retaliation history — who complained, what happened, and WHO WAS NOT INVITED BACK. The last is hardest to prove and the most important thing that happened. ☐ 10. Immigration status is not a defense to unpaid wages. Hoffman Plastic Compounds v. NLRB limits back pay for work not performed in a labor relations context; it does not authorize nonpayment for work actually done ☐ (verification duty at 8 U.S.C. § 1324a) ☐ 11. Agency interpretation — ⚠️ after Loper Bright a court decides the meaning of the agricultural exemption and the MSPA definitions itself; the agency's long-standing reading is persuasive, not binding ☐ ☐ 12. Remedies to plead: statutory damages 29 U.S.C. § 1854 ☐ wage claims with liquidated damages 29 U.S.C. § 216 ☐ safety framework 29 U.S.C. § 651 ☐

Part 9 — Season-end review

☐ All disclosures retained, matched against actual conditions ☐ ☐ Hours and make-up payments reconciled for every worker ☐ ☐ Housing photographed at close; certificate expiration calendared for next season ☐ ☐ Vehicle inspection and insurance renewals calendared ☐ ☐ Contractor registration expiration calendared with a 90-day reminder ☐ (rules at 29 C.F.R. Part 500) ☐ H-2A — final three-quarters reconciliation ☐ outbound transportation provided ☐ corresponding employment audited ☐ ☐ Injuries, heat events, and pesticide exposures reviewed for pattern; controls adjusted ☐ ☐ Child labor — age records complete for everyone who worked ☐ ☐ Anti-retaliation — reporting channel that does not run through the crew leader ☐ and a check on who was not rehired, and why ☐ ☐ ⚠️ Understand the enforcement posture: directed investigations rather than complaints, certification debarment, housing inspections, private statutory damages actions, and hot goods — produce harvested in violation barred from interstate commerce, which for a perishable crop is total loss within days.

Part 10 — The exemption map, in one place

⚠️ You cannot advise in this field without knowing which protections were never extended. Fill this in for the operation in front of you before anything else.

☐ Federal overtime — ⚠️ does not apply to employees employed in agriculture (29 U.S.C. § 213). State overtime for agriculture in this jurisdiction? ______ ☐ Federal minimum wage — applies, except on a small farm below the man-days threshold, and to certain hand-harvest piece workers ☐ Threshold analysis attached ______ ☐ Federal bargaining protection — ⚠️ agricultural laborers are excluded from the definition of "employee" (29 U.S.C. § 152). State agricultural labor relations act? ______ This is why concerted activity in the fields carries no federal reinstatement remedy, and why the practical protection is the anti-retaliation provision of MSPA rather than labor law. ☐ Child labor — separate and looser agricultural standards ☐ hazardous occupations orders still binding ☐ ☐ Safety standards — general duty under 29 U.S.C. § 654 ☐ agricultural standards at 29 C.F.R. Part 1928 ☐ appropriations riders limiting inspection of the smallest farms ☐ ☐ The definition that controls all of it — 29 C.F.R. Part 780: • Primary agriculture — farming in all its branches, on a farm ☐ • Secondary agriculture — practices performed by a farmer or on a farm, as an incident to or in conjunction with THAT farming operation ☐ • ⚠️ The trap: the same packing shed is agriculture for the farm's own crop and not agriculture for a neighbor's crop bought in. Mixed weeks defeat the exemption for the whole week. • Purchase records for bought-in product requested ☐ obtained ☐ analyzed by week ☐

Part 11 — Evidence to preserve on either side

⚠️ Most of this evidence exists for weeks and then does not. Whichever side you are on, collect it during the season.

☐ Piece tickets, punch cards, and tally sheets — photographed daily ☐ ☐ The crew leader's own notebook ☐ ⚠️ In many operations it is the only record of hours that exists. ☐ Text messages and voice notes from recruitment — ⚠️ this is where the promised wage lives when no written disclosure exists ☐ ☐ Photographs of housing, water containers, toilets, shade structures, and vehicles, with dates ☐ ☐ Weather data for heat-illness and dew-delay questions ☐ ☐ Pesticide application logs and the corresponding harvest dates ☐ ☐ The bus manifest or ride list — establishes who worked which day when no payroll does ☐ ☐ Bank records and check-cashing receipts ☐ ⚠️ Cash payment is not a defense; it is an evidentiary problem for the employer. ☐ Names and phone numbers of workers who left mid-season ☐ ⚠️ They are the witnesses with nothing to lose, and they are unreachable by December.

Related Documents