The MSPA
The Migrant and Seasonal Worker Protection Act (MSPA) and its regulations establish standards for the wages, hours, and transportation of migrant and seasonal agricultural workers. Employers are also required to make certain disclosures and keep records. Certification of farm labor contractors (FLCs) has been delegated to the State of Illinois (29 C.F.R § 500.158).
Some direct farm business may choose to use an FLC to obtain migrant or seasonal workers. FLCs recruit, pay, and transport workers to the location where the labor is needed. In return, the direct farm business pays the FLC a fee. FLCs must be registered with the Illinois Department of Labor pursuant to the Illinois Farm Labor Contractor Certification Act. The direct farm business should ensure that any FLC it employs is registered.
If the owner/operator of a family business does the recruiting of the workers for the benefit of the business, instead of contracting with an FLC, the family business is not required to register as a farm labor contractor (29 C.F.R. § 500.30(a)). Small businesses (other than agricultural labor contractors) also are exempt if the business did not use more than 500 man-days of seasonal or migrant labor during any quarter of the preceding year (29 C.F.R. § 500.30(b)). An employee of a registered farm labor contractor must obtain a Farm Labor Contractor Employee Certificate of Registration (29 C.F.R. § 500.40).
An employer not otherwise exempt from the act, and FLCs, must disclose certain information to the employee at the time of recruitment, including: the location of the work; wage rates; the type of work involved; the period of employment; any transportation or housing to be provided and how much this will cost the employee, if anything; whether workers' compensation or unemployment benefits are provided, and if so, disclosure of the insurance company's information; whether the operation is the target of a strike; and, any arrangement whereby the employer is to receive a commission from another establishment for sales made to workers (29 U.S.C.§ 1821(a); 29 C.F.R § 500.75(b)). The employer must post and maintain a poster provided by the Department of Labor outlining employee rights under the MSPA (id. § 1821(b); 500.75(c)). The employer must provide the terms of employment in writing (id. § 500.75(d)). If housing is provided, the employer must disclose in writing, or post in a conspicuous place, the terms of such housing (id. § 1821(c); 500.75(c). Payroll records must be kept (id. § 1821(d); 500.80). Information must be provided to the worker in his/her own language, where necessary and reasonable (id. § 1821(g); 500.78). Any transportation provided must comply with vehicle safety standards and be insured (id. § 500.100, .121). Any housing that is provided must comply with federal health and safety standards and must be certified as such (id. § 500.130, .135)
The MSPA prohibits employers from requiring that migrant or seasonal workers purchase goods or services solely from their employer (29 U.S.C. § 1829(b); 29 C.F.R. § 500.73).
H-2A Visas
The Immigration and Nationality Act (8 U.S.C. § 1101(a)(15)(H)(ii)(a)) and regulations (8 C.F.R. § 214.2(h)(5) (INA regulations) and 20 C.F.R. § 655.90-655.215 (Department of Labor Regulations)) provide for the H-2A visa program for the recruitment of foreign agricultural workers when a seasonal shortage of domestic workers occurs. The Department of Labor maintains a website that provides step-by-step instructions on how the program works, including links to forms.
The MSPA does not apply to workers employed under the H-2A visa program. H-2A employees are protected by provisions of other federal laws such as the FLSA and OSHA.
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