The “On-Farm Workstays” Project __________________

On-Farm Mentors and Labor Law: Year-end Report, 2008

 

The information in this report is provided for informational purposes only and should not be construed as legal advice.   The information is current for 2008 and is subject to change.

 

INTRODUCTION

Over 400 Northeast farmers currently offer on-farm “workstay” opportunities.  A time-honored tradition, this is one way they get the help they need while passing along important farming skills.  NEWOOF, a regional trainee-matching service, has profiled these farmers through annual surveys.  80-90% rank “providing farm labor” as  “very important” or “the most important” reason for hosting trainees.  But many of these farmers are poorly informed about their standing as agricultural employers.  Many see themselves as educators hosting “interns” in exchange for labor.  Others believe that “space in the barn and all the veggies you can eat” is not pay.  While time a trainee spends in class or hands-on instruction can legitimately be considered “education,” the minute she performs work that contributes to a farm’s bottom line, she becomes an employee. For many farmers, this is an unpleasant surprise.  In an increasingly regulatory environment, they are at serious risk.

 

Why focus on this topic?  Experienced farmers have told us they want and need this information.[1]  And aspiring farmers have told us that “learning from folks who are actually doing it” is the way they prefer to learn.  Providing our next farming generation with the information and skills they need to succeed is critical.  This project seeks to support on-farm mentors in this important task by addressing a serious gap in employment information and practice.  We want to make this important information available to all trainee hosts and offer peer guidance to those who are open to self-assessment and willing – if not eager – to implement change.

 

Are trainees employees? On-farm mentors play an important role in helping to train the next generation of farmers.  Good mentors see themselves more as teachers than as employers. By hosting “trainees” on their farms, they agree to impart a wide range of farming knowledge and skills in exchange for needed help on the farm. Their “trainees” (often called “interns” or “apprentices”) similarly see themselves as students and may willingly accept little or no monetary compensation for the work they do, viewing their education as sufficient compensation. However, with rare exception, the law views on-farm mentors as employers and their “interns” or “apprentices” as employees.

 

Because labor law does not recognize a farm mentor/trainee relationship, mentors who want to comply must unravel a tangle of regulations to try to understand what is required of them.  While federal labor law applies nationwide, state labor laws are unique and local by-laws can add complications. Each individual farmer mentor’s case must be viewed in the context of its own location—both state and community.

 

The purpose of the Workstays Project is to educate mentors about existing labor laws and regulations[2] and to help them consider ways to design their “internships” or “apprenticeships” to both comply with existing law and to make it economically feasible to host trainees. Project leaders also hope that the lessons learned through the project may lay the groundwork for appropriate legislative changes and/or the creation of a system that recognizes the educational nature of the mentor/trainee relationship.

 

The cost of legally hosting a trainee, especially if the farmer does not have other farm labor, can be prohibitive for many mentors.  Many farmers who choose to be mentors have small-scale operations.  In some instances the cost can be mitigated if the farmer meets certain criteria and his/her state has certain exemptions for agricultural labor.  The Workstays Project focuses on three specific areas of labor law, all of which have cost implications:

 

,    Wage & Hour laws

,    Housing

,    Workers’ Compensation

 

This report summarizes key federal and state laws and regulations that affect on-farm mentors in Connecticut, Maine, Massachusetts, New Hampshire, New York, and Vermont. Research for the six remaining Northeast states is ongoing.  See the Appendix for print and electronic information resources for agricultural employers located in states addressed in this report.

 

WAGE & HOUR LAWS

 

Wage and hour laws were established to protect workers from exploitation and ensure that employees receive a minimum amount of compensation and be paid for working overtime.  Employers must be aware of both the federal and their own state’s minimum wage requirements.  To avoid paying minimum wage some on-farm mentors are tempted to call their trainees “independent contractors” or “volunteers.”  Both designations are for all intents and purposes illegal.  It is also very common for farmer mentors to offer “stipends” to trainees that, while acceptable to the trainee because of the educational trade-off, ignore wage and hour regulations.  However, in some states there are exemptions an agricultural employer may qualify for that will allow an on-farm mentor to pay an hourly rate that when calculated over a week or month equal a typical “stipend.”  Those on-farm mentors will, of course, also need to pay close attention to laws governing withholding taxes, payroll taxes, and reporting of wages to both the trainee and state and federal taxing authorities.

 

Is my trainee agricultural labor?  This is the first question a mentor must ask to determine what hourly rate is required.  In many cases the answer is “no” or “not always.”  The Fair Labor Standards Act (FLSA) is a federal law that includes some exemptions for agricultural or farm labor.  The federal definition of agricultural labor (which most states also adopt) does not include many activities that today’s small diversified farms engage in, such as value added processing, retail sales or agri-tourism.  Therefore, to qualify as agricultural labor a farmer may need to limit the work the trainee does.  If the trainee does qualify as farm labor the farmer will be exempt from:

 

,     Paying overtime

,     Paying federal unemployment taxes if total farm wages are under  $20,000 in any calendar quarter of the previous year

                          

If the trainee is agricultural labor and the farmer does not have more than 500 “man-days” of agricultural labor in a year (roughly equivalent to seven employees employed full-time in a calendar quarter) the farmer will be exempt from paying federal minimum wage.  However, the farmer must still comply with state minimum wage laws.  As an example of the differences in state laws, Massachusetts has a minimum agricultural wage while New York requires agricultural labor to be paid at the general state minimum wage.  Other states exempt farm workers from state minimum wage entirely.  See the Appendix for a more detailed discussion of the 500 Man-Day exemption rules and documentation requirements.

 

If the trainee does not qualify as agricultural labor, minimum wage and overtime laws apply and the farmer has to pay both federal and state unemployment taxes if farm wages exceed $1,500 in any calendar quarter.  If a trainee qualifies as agricultural labor in some weeks and not others, the employer must pay minimum wage and overtime in the weeks the trainee does not qualify.  The 2008 federal minimum wage is $6.55/hour.

 

See the chart below for applicable state wage and hour laws.

 

 

State

 

Wage & Hour Regulations

 

 

CT

 

Connecticut does not have a separate minimum wage for agriculture or an exemption for agriculture except that minors working in agriculture may be paid at 85% of the state minimum wage.  Thus, even if exempt from federal minimum wage, most agricultural workers in CT must be paid the state minimum wage which in 2008 is $7.65/hr and will increase to $8.00/hr January 1, 2009.

 

Non-agricultural workers not otherwise exempt must also be paid the state minimum wage.

 

There are limited allowances that an employer may make against minimum wage for housing and meals.  An employer can also charge an employee rent for housing as long as the amount is reasonable and as long as the employer recognizes the rent as income. 

 

Connecticut has a School-to-Career Program, targeted to high school students, through which students may be able to participate in unpaid internships.  Students engaged in approved internships are not considered to be employees.  Employers may also host college students who are enrolled in sanctioned programs in their schools as unpaid interns.  It is incumbent on the employer to obtain documentation that the students are in sanctioned programs in order for them not to be considered employees.

 

 

ME

 

Maine does not have a separate agricultural minimum wage, but individuals employed in agriculture, except when employed for or on a farm with over 300,000 laying hens, are exempt from state minimum wage.  So agricultural workers will be paid federal minimum wage unless exempt under FLSA, in which case no minimum wage will apply.  

 

Wages may include reasonable costs to the employer furnishing food and lodging.  Food and lodging must actually be used by the employee, clearly shown on the employee statement and wage records, and approved by the Bureau of Labor Standards.

 

“Farmer” is listed as an “apprenticeable occupation” by Maine’s DOL.  However, there is no indication that a farmer agreeing to become a registered program sponsor would receive exemptions to minimum wage, or other labor laws.

 

Non-agricultural workers not otherwise exempt will be paid at the state minimum wage, which as of 10/1/08 was $7.25/hr.

 

MA

 

 

Massachusetts has an agricultural minimum wage of $1.60/hr.  Thus, if agricultural workers are exempt from federal minimum wage under FLSA, they may be paid no less than $1.60/hr. 

 

Non-agricultural workers, unless otherwise exempt, must be paid the state minimum wage, which in 2008 was $8.00/hr.

 

 

NH

 

New Hampshire does not have a separate agricultural minimum wage, but individuals employed in agriculture are exempt from state minimum wage.  So agricultural workers will be paid federal minimum wage unless exempt under FSLA, in which case no minimum wage will apply.

 

Non-agricultural workers, unless otherwise exempt, must be paid the higher of the federal or state minimum wage, which as of 9/1/08 was $7.25. 

 

No deductions from wages may be made for meals and lodging for agricultural workers.

 

 

NY

 

 

New York does not have a separate minimum wage for agriculture or an exemption from state minimum wage for agricultural workers except for those employers whose total cash remuneration paid to all persons employed on the farm in the previous year is under $3,000.  Thus, even if exempt from federal minimum wage, most agricultural workers in NY must be paid the state minimum wage, which in 2008 was $7.15/hr, even if they are exempt for federal minimum wage under FLSA.

 

A specific credit may be granted toward the minimum wage for meals and/or lodging provided by the employer.  

 

Payments in kind (e.g., farm products for consumption by the employee) acceptable to the employee may be considered part of the minimum wage, but shall not be valued at more than the farm market value at the time such payments were made.

 

There is no exemption from minimum wage for student-learners except for the limited number of student-learners in Commissioner of Labor-approved vocational education training programs in agriculture sponsored by recognized educational, nonprofit or governmental agencies or authorities.

 

 

VT

 

Vermont does not have a separate agricultural minimum wage, but individuals employed in agriculture are exempt from state minimum wage.  So agricultural workers will be paid federal minimum wage unless exempt under FSLA, in which case no minimum wage will apply.

 

Non-agricultural workers, unless otherwise exempt, must be paid the state minimum wage, which was $7.68 in 2008 and will increase to $8.06 as of 1/1/09.

 

 

 


EMPLOYEE HOUSING

 

One of the ways on-farm mentors typically compensate trainees is to provide housing, often in temporary or permanent structures located on their farms.  These accommodations, while perfectly acceptable to most trainees, may not adhere to regulations set out by federal and/or state agencies for housing employees. 

 

Employee housing is governed by the Migrant and Seasonal Workers Protection Act (MSWPA) and OSHA, as well as by local zoning and building code regulations.  Trainees who do not return to their own permanent residence at night may be considered migrants, and their housing on the farm may be considered a “temporary farm labor camp.”  Farmers who qualify for MSWPA’s 500 Man-Day exemption are exempt from MSWPA regulations but are still subject to OSHA regulations.  However, if a farmer has employed 10 or fewer persons at all times during the past twelve months and is not currently maintaining a temporary labor camp, the farm qualifies as an “exempt workplace” under OSHA’s small farm exemption.  This means that the farm operation is exempt from OSHA enforcement activity (i.e., inspection, etc.) but does not mean that the farm is exempt from the regulations themselves. Some states have state OSHAs that have additional regulations, and the farm labor camp definition appears to vary from state to state. 

 

It appears that a farmer may avoid the burden of complying with OSHA housing regulations if a trainee lives in the farmer’s home or if the trainee rents accommodations off the farm.  If living in the farmer’s home, local zoning regulations and building codes would still apply.  Of course, if a trainee returns to his permanent home at night (i.e., is a “local,”) housing regulations do not apply.

 

State

Federal & State Governing Bodies for

Employee Housing

 

CT

 

MSWPA and OSHA. Connecticut’s state OSHA regulates only state and municipal employees, so employee housing on farms is governed solely by federal OSHA regulations.

 

 

ME

 

MSWPA and OSHA. Maine does not have a state OSHA for private sector workplaces so employee housing on farms is governed solely by federal OSHA regulations.

 

 

MA

 

MSWPA, OSHA and MA Department of Public Health. In MA registration of a farm labor camp is made through application to the MDPH, which enforces OSHA regulations.   If housing only one employee, registration is not required.

 

 

NH

 

MSWPA and OSHA. New Hampshire does not have a state OSHA, so employee housing on farms is governed solely by federal OSHA regulations.

 

 

NY

 

MSWPA, OSHA and NY Department of Safety and Health.  In NY a farmer must register a “temporary labor camp” if 5 or more employees are living in such housing.  A person who comes into the state to work and does not go home at night is considered a migrant.

 

 

VT

 

MSWPA, OSHA and VOSHA (Vermont Occupational Safety and Health).  Vermont has adopted federal OSHA and enforces OSHA regulations, so employee housing on farms is governed by VOSHA.

 

WORKERS’ COMPENSATION

 

Workers’ compensation insurance provides benefits to employees for occupational injuries or disease and thus provides important worker protection. However, the premiums can be quite expensive.  Workers’ compensation insurance laws are state-based.  In all the states we have researched to date workers’ compensation is mandatory for farm workers except in very limited instances (see chart below).

 

Workers’ compensation insurance is perhaps the most burdensome cost for on-farm mentors because there are virtually no exceptions and because there usually are minimum premiums.  Thus, a farm with one trainee (employee) may pay the same premium as one with two or three employees.  It is also important to note, however, that farmers are not being singled out here.  All small businesses with one or two employees face the same expense.

 

Premiums are based on payroll, the type of job, and the employer’s experience rating.  Thus, premiums are likely to be higher for new employers that have no track record than for those who have a good record of employee safety.

 

 

State

Workers’ Compensation Requirements & Agricultural Exceptions

 

CT

 

Required for all employees, no exceptions

 

 

ME

 

Required except for:

a)    Employers who have employees engaged in agriculture or aquaculture as seasonal or casual laborers, if the employer maintains at least $25,000 in employers’ liability insurance, with at least $5,000 in medical coverage.

b)    Employers of six or fewer agricultural or aquacultural laborers, if the employer maintains employers’ liability insurance of at least $100,000 multiplied by the number of full time equivalent employees and has at least $5,000 in medical payments coverage.

 

 

MA

 

Required for all employees, no exceptions.

 

 

NH

 

Required for all employees, no exceptions.  In addition, workers’ compensation insurance must be purchased prior to hiring and employers are subject to the New Hampshire safety program regulations that are part of workers’ compensation law.

 

 

NY

 

Required for all employees except farm workers whose employer paid less than $1,200 for farm labor in the preceding calendar year. It is important to note that in all for-profit businesses part-time employees, borrowed employees, leased employees, family members and volunteers are included under the workers’ compensation law. Also included are unpaid student interns. 

 

NY workers’ compensation law also requires employers to provide disability insurance to employees to cover injury or illness off the job.  There is an exception for farm laborers (i.e., field workers).

 

 

VT

 

Required except for people engaged in agriculture or farm employment for an employer whose aggregate payroll is less than $2,000 in a calendar quarter.

 

 

CONCLUSION

 

Almost without exception, on-farm trainees – interns, apprentices – are employees.  Farmers contemplating whether to host trainees need to consider both the costs of providing safe and legal workstays and the risks involved in failing to do so.  A farmer who already has other employees, and thus has employee recordkeeping systems in place, and a track record in the workers’ compensation system, will likely find employer-related costs of adding a trainee less burdensome than a farmer who is becoming an employer for the first time.  By careful planning of a trainee’s work schedule and duties, a farmer may be able to reduce some costs such as paying overtime and, depending on the state, may be able to offer a wage that reflects the trainee’s lack of experience.  But most on-farm mentors will not be able to avoid the cost of workers’ compensation insurance.  And all on-farm mentors will need to consider the cost of the time they give to educating trainees who are not students in any legal sense, and who are not likely to provide long-term benefits to the farm once they are trained.  Potential on-farm mentors will want to fully consider their motivations for having trainees, and how the costs to host trainees will affect their bottom line.   

Questions?  Contact the On-farm Workstays Project,

New England Small Farm Institute, info@smallfarm.org


 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

APPENDIX

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Print and Electronic Information Resources for Ag Employers:

Connecticut, Maine, Massachusetts, New Hampshire, New York, Vermont

 

 

General & Federal Information

Don’t Become a U.S. Department of Labor Target:  Practical Compliance for the Ag/Hort Employer.  Gemplers, 2000. 

Available from Gemplers, Inc., 100 Countryside Drive, P.O. Box 270, Belleville, WI 53508.  Phone orders:

1-800-382-8473 (Item No. 16500)

 

How to Avoid an OSHA Nightmare: A Guide for Ag/Hort Employers. Gemplers, 1999.  Available from Gemplers, Inc.  See above.  (Item No. 10544)

 

Labor and employment law blog. 

Informative monthly blog for human resource professionals on a host of employment issues.  See December 2007 issue in the archives a discussion of “When Are Trainees Considered Employees? - Six Rules To Follow”.  www.laborandemploymentlawblog.com

 

Labor Law Compliance: A Working Guide for Ag/Hort Employers. Gemplers, 2001.

Available from Gemplers, Inc.  See above.  (Item No. 10481)

 

The Legal Guide to Direct Farm Marketing.  Neil Hamilton.  Des Moines, IA.  1999.  Available from Drake University Agricultural Law Center, Des Moines, IA  50311.

 

“Negotiating the Legal Maze to Volunteer Service – 1998”.  www.ed.gov/inits/americareads/resourcekit/Negotiating/wagehours.html

 

Summary of Federal Laws & Regulations Affecting Agricultural Employers. 

Jack Runyan.  Food & Rural Economics Division, USDA Economic Research Service, 2000.  Agricultural Handbook 719. 

Downloadable at: http://www.ers.usda.gov/publications/ah719.

 

US Department of Labor. 

Information on federal wage and hour laws.   www.dol.gov. 

 

Occupational Safety and Health Administration (OSHA).

OSHA is the main federal agency charged with the enforcement of safety and health legislation, including housing for agricultural workers.  www.osha.gov.

 

Internal Revenue Service. 

Federal tax information for small businesses including tax related responsibilities for employers.  www.irs.gov/businesses/small

 

Connecticut

Connecticut Department of Labor. 

Information one-stop for both employers and job seekers.  On the website click on the “Employer Services” link to get information on a variety of employer topics including wage and hour laws, unemployment insurance, new hire reporting, and CT School-to-Career Program.  www.ctdol.state.ct.us.

 

 

 

State of Connecticut Workers’ Compensation Commission. 

The WCC administers workers’ compensation law in Connecticut.  For information on the law go to their website at www.wcc.state.ct.us.

 

Maine

Maine Department of Labor.

Information one-stop for employers, workers and job seekers.  On the website click on the “For Employers” link to get information on a variety of employer topics including wage and hour laws, unemployment insurance, and workplace safety.

www.maine.gov/labor.

 

Maine Workers’ Compensation Board. 

The MWCB is responsible for ensuring compliance with Maine’s workers’ compensation laws.  Their website includes a link to the Bureau of Insurance which maintains a listing of authorized workers’ compensation insurance carriers.   www.maine.gov/wcb.

 

Maine Apprenticeship Program.

The Maine Apprenticeship Program assists in setting up structured yet flexible training programs designed to meet the specific needs of Maine employers through on-the-job training (OJT) and related classroom instruction.  “Farmer” is an apprenticeable occupation in Maine.  www.maine.gov/labor/apprenticeship.

 

Massachusetts

Massachusetts Department of Labor, Division of Occupational Safety. 

Administers workplace health & safety programs and works with Attorney General’s Office in enforcement of wage & hour laws.  www.mass.gov/dos

 

Massachusetts Office of Attorney General.

Enforces workplace rights laws.   Wage & hour poster available for download.  www.ago.state.ma.us

 

Massachusetts Department of Labor, Department of Industrial Accidents.  Responsible for overseeing Workers’ Compensation system in MA.  www.mass.gov/dia

 

The Workers’ Compensation Rating and Inspection Bureau Massachusetts. 

A private, non-profit association of insurers licensed by MA Division of Insurance as a rating organization for workers’ compensation in the state. www.wcribma.org

 

Massachusetts Department of Revenue. 

State tax information for small businesses including tax related responsibilities for employers & reporting of new hires. www.mass.gov/dor

 

Massachusetts Department of Workforce Development, Division of Unemployment Assistance. 

Information on employer state unemployment insurance contributions. www.mass.gov/dua

 

New Hampshire

New Hampshire Department of Labor.  Monitors employers, workers’ compensation, and insurance carriers to insure they are in compliance with NH Labor Laws ranging from minimum wage, overtime, safety issues and workers’ compensation.  www.labor.state.nh.us.

 

New Hampshire Department of Employment Security. 

Services for job seekers and employers including unemployment compensation and reporting of new hires.  www.nh.gov/nhes/employer.

 

New Hampshire Department of Education, School-to-Work. 

Information on unpaid internships and other school-to-work activities for secondary and post-secondary students in NH.  www.ed.state.nh.us/education/doe/organization/adultlearning/Career%20Development/schooltowork.htm.

 

New York

New York Department of Labor.  Information for employers on state minimum wage laws, state unemployment insurance, and safety and health regulations. The Department is responsible for ensuring that employers comply with New York labor laws.

www.labor.state.ny.us. (Main website)

www.labor.state.ny.us/workerprotection/laborstandards/farm_labor.shtm. (Division of Labor Standards minimum wage requirements for farm labor and links to related forms)

www.labor.state.ny.us/workerprotection/safetyhealth/DOSH_INDEX.shtm. (Division of Safety and Health)

 

Workers’ Compensation Board. 

Information about workers’ compensation and the Disability Benefits Law.

www.wcb.state.ny.us.

 

Vermont

Vermont Department of Labor. 

Information for employers on state minimum wage laws, state unemployment insurance, safety and health regulations, and workers’ compensation.

www.labor.vermont.gov.

 

A Legal Guide to the Business of Farming in Vermont. Center for Sustainable Agriculture, University of Vermont Extension, 2006.  Available from UVM at www.uvm.edu/sustainableagriculture.

 

 

 

 

 

 

 

 

 

 

 

 

 


“Agricultural” Work & the 500 Man-Day Exemption Under the Fair Labor Standards Act  (page 1 of 3)

 

 

Agricultural work.  As defined by The Fair Labor Standards Act (FLSA), “agricultural work” involves “farming and all its branches… [including] the cultivation and tillage of the soil, dairying, the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities…., the raising of livestock, bees, fur-bearing animals or poultry, and any practices (including forestry or lumbering operations) performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market, delivery to storage or to market or to carriers of transportation to market.”    (Section 3 (f) of the FLSA)

 

Under certain provisions of FLSA, agricultural employers are exempt from paying minimum wage and overtime for documented “agricultural work” performed by their employees.  Eligibility for these important exemptions requires week-by-week documentation that each employee has been engaged solely in “agricultural work.”

 

Non-agricultural work.  Not all activities performed on a farm are considered agricultural. Under certain circumstances, one or more of your employees may not qualify as agricultural labor in any given week, depending on the nature of the work you ask them to perform.  Use the check list below to determine whether any of your employees are performing work that is “non-agricultural.”

 

During any given weekly pay period:        

 

Have any of my employees spent any of their work time engaged in

marketing (e.g. selling at farmer’s market or staffing a farmstand)?      Y     N                         

Have any of my employees worked in a packing shed that handles

produce for more than my farm?                                                                 Y      N

 

Have any of my employees worked in a processing plant that

handles products for more than my farm?                                                 Y      N

           

Have any of my employees engaged in other non-agricultural

activities while performing paid work for me?                                          Y      N

 

If you answered Yes” to any of these questions, the employee engaged in non-agricultural work must receive minimum wage and overtime pay for the entire week during which the non-agricultural work was performed.

 

If you answered “No” to all of these questions, all your employees have been engaged solely in agricultural work and you are exempt from paying them overtime for work performed during that week.  If you also qualify for the 500 Man-Day exemption, you are also exempt from paying federal minimum wage.  State minimum wage laws may still apply.

 

 

Adapted from “The On-Farm Mentor’s Guide” ©2006 New England Small Farm Institute, Belchertown, MA www.smallfarm.org

 

 

“Agricultural” Work & the 500 Man-Day Exemption  (page 2 of 3)

 

The Fair Labor Standards Act (FLSA) 500 Man-Day Exemption applies to agricultural work.  It frees small-scale agricultural employers from several requirements, including:

 

·         Paying federal minimum wage and overtime for agricultural work, although you must pay the state agricultural minimum wage (if any).

·         Complying with the wage and reporting requirements of the Migrant and Seasonal Agricultural Worker Protection Act (MSAWPA).

·         Complying with MSAWPA housing regulations, although you must comply with OSHA housing regulations if trainees or other employees live on your farm.

           

To qualify for the 500 Man-Day Exemption, an agricultural employer must be able to prove that he or she has not hired help for more than 500 man-days of agricultural labor during any calendar quarter during the preceding calendar year. For the purposes of this exemption, a man-day is defined as “any day during which an employee performs agricultural labor for not less than 1 hour.”

 

The burden of proof of eligibility falls on the employer.  To track this information, you will need to keep careful records of the hours per day that each employee performs agricultural work. You can simplify this task by asking each employee to sign in and sign out each day and compile the information at the end of every week, month, and then quarter. As with so many other recordkeeping functions, it’s imperative to make it a routine. Otherwise, you are likely to fall behind on it. If you decide to claim this exemption, you’ll need the documentation to support your claim.

 

Below is a sample chart to showing the compilation of the number of days in each quarter DURING THE PREVIOUS YEAR that each employee performed agricultural work for at least one hour, as well as a final calculation for the year.

 

 

                                                Man-Days Worked per Quarter

                                                          for the Previous Year

 

 

Quarter 1

Quarter 2

Quarter 3

Quarter 4

Total

Employee:

(1/1 – 3/31)

(4/1 – 6/30)

(7/1 – 9/30)

(10/1 – 12/31)

(1/1 – 12/31)

 

 

 

 

 

 

Employee #1

25

78

52

-0-

155

Employee #2

10

78

52

35

175

Employee #3

-0-

14

78

-0-

92

 

 

 

 

 

 

Totals:

35

170

182

35

422

 

This farmer qualifies for the 500 Man-Day exemption because her employees, as a group, performed agricultural work for fewer than 500 man-days during any calendar quarter of the previous year.

 

 

Adapted from “The On-Farm Mentor’s Guide” ©2006 New England Small Farm Institute, Belchertown, MA www.smallfarm.org


“Agricultural” Work & the 500 Man-Day Exemption (page 3 of 3)

 

To document eligibility for the 500 Man-Day exemption, you can use a sheet similar to the one below to keep track of the number of hours, each day, that each of your employees performs agricultural and non-agricultural work on your farm.  When calculating man-days, count only those days on which an employee was employed for an hour or more of agricultural work.

 

Week Beginning: ________________________________________________________

 

Hours of Agricultural Labor Worked Per Day

 

 

Employee #1:

Employee #2:

Employee

#3:

Employee #4:

Employee #5:

Employee

#6:

Total #

Hours

Day #1

 

 

 

 

 

 

 

Day #2

 

 

 

 

 

 

 

Day #3

 

 

 

 

 

 

 

Day #4

 

 

 

 

 

 

 

Day #5

 

 

 

 

 

 

 

Day #6

 

 

 

 

 

 

 

Day #7

 

 

 

 

 

 

 

Week

Total Hrs

 

 

 

 

 

 

 

Total

Man-Days

 

 

 

 

 

 

 

 

 

Hours of Non-Agricultural Labor Worked Per Day

 

 

Employee #1:

Employee #2:

Employee

#3:

Employee #4:

Employee #5:

Employee

#6:

Total #

Hours

Day #1

 

 

 

 

 

 

 

Day #2

 

 

 

 

 

 

 

Day #3

 

 

 

 

 

 

 

Day #4

 

 

 

 

 

 

 

Day #5

 

 

 

 

 

 

 

Day #6

 

 

 

 

 

 

 

Day #7

 

 

 

 

 

 

 

Week

Total Hrs

 

 

 

 

 

 

 

 

Adapted (as revised) from “The On-Farm Mentor’s Guide” ©2006  New England Small Farm Institute, Belchertown, MA www.smallfarm.

OSHA Regulations for Employee Housing (page 1 of 2)

 

The federal Occupational Safety and Health Act of 1970 created the Occupational Safety and Health Administration within the Department of Labor as well as the National Institute for Occupational Safety and Health (NIOSH) within the Department of Health and Human Resources.  The Act is intended to assure safe and healthful working conditions for U.S. workers.  As a general rule, every employer must comply with OSHA.  However, there are exemptions for agricultural employers that very well might apply to you.

 

First, OSHA regulations include a “family member exemption.”  Your immediate family members (parent, spouse, child) employed as agricultural workers in your farming operation are not considered employees under OSHA and are excluded from OSHA oversight.  OSHA regulations also include a “small farm exemption.”  If you employ 10 or fewer employees and do not maintain a “temporary or seasonal labor camp,” your agricultural operation is an “exempt workplace.”  It’s important to note that these “exemptions” do not release you from your legal obligation to provide employees with safe and healthful living and working conditions as specified in OSHA regulations.  They mean only that OSHA or DOL officials do not have the right to conduct unannounced compliance visits to your farm.  Moreover, because OSHA’s “small farm exemption” is voted annually, it’s important to check each year to make sure that it’s still in place.

 

Note that you are not exempt from OSHA regulations if trainees live in separate quarters on your farm – a temporary labor camp.  This means that you can be inspected without notice. 

 

Some states have OSHA regulations that supersede the federal Act.  In the Northeast region, Vermont and Maryland are the only states that have standards that apply to agricultural workers.  Connecticut, New Jersey, and New York have state standards for public sector employees, but farm employees are not included in this category.  If you live in Vermont or Maryland, learn what your state standards require; otherwise, assume that the federal standard applies to you.

 

Use the worksheet on the next page to determine if your trainee housing complies with federal OSHA regulations.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

NOTE:  This information is offered for educational purposes only and should not be construed as legal advice.

 

 

OSHA Regulations for Employee Housing  (page 2 of 2)

 

Mentors who house trainees on their farms in quarters other than their own homes are subject to Occupational Safety and Health Administration (OSHA) housing requirements.  Use the following checklist to make sure that you are in compliance.  Please note that in many cases, state OSHA regulations supersede federal ones, so it’s important to check with your state Department of Labor to learn if it regulates trainee housing in your state, possibly as a “farm labor camp.” If your state does not have its own regulations, you must comply with the federal regulations.

 

 

Employee Housing Questionnaire

 

  Does your trainee housing:

 

      Meet local and state codes?                                                                              Y     N

 

      Have a certificate of occupancy posted on the premises along with a

      written statement of the terms and conditions of occupancy?                     Y     N

 

      Meet all applicable state and federal safety and health standards?                        Y     N

 

      Have a distance of at least 500 feet between livestock and the kitchen?   Y     N

 

      Have floors made of materials other than dirt?                                               Y     N

 

      Have screened windows?                                                                                  Y     N

 

      Have automatically closing doors?                                                                  Y     N

 

      Have sanitary cooking areas that meet all applicable codes,           

      regulations, and ordinances?                                                                           Y     N                                     

      Have drinking water that meets all applicable codes,          

      regulations, and ordinances?                                                                           Y     N                               

 

     Have bathrooms that meet all applicable codes,        

      regulations, and ordinances?                                                                           Y     N                               

 

     Have bathrooms cleaned daily?                                                                        Y     N

 

      Have first-aid facilities that have been approved by a health authority

      And that are staffed by a person trained to administer first aid?                 Y     N

 

      Is your trainee housing sited well away from swampy areas?                      Y     N

 

  If you answered yes to all of the above, your trainee facilities comply.

 

 

 

 

Adapted from “The On-Farm Mentor’s Guide” ©2006 New England Small Farm Institute, Belchertown, MA www.smallfarm.

 



[1] Developing training materials on how to “research and comply with start-up and ongoing legal and regulatory requirements” scored highest in a regional survey of on-farm mentors’ stated educational and training needs.

[2]  Northeast SARE LNE 07-255.