Growers responsible for farm labor

As the pool of farm labor in the United States continues to shrink, more growers are looking to foreign, temporary labor as a possible solution. In this final part of a two-part report, Dan Bremer of AgWorks, Inc., in Lake Park, Ga., looks at some of the problems farmers face in finding and maintaining a stable workforce. Bremer, who is retired from the U.S. Department of Labor, currently works with growers throughout the Southeast in providing seasonal farm workers and in complying with government regulations.

Once a grower has found a farm worker, he or she is responsible for everything that happens to that worker, says Dan Bremer, a Georgia labor consultant. “You're responsible for everything that happens on your farm. If you allow a farm labor contractor to bring in 15 illegal aliens, and that farm labor contractor doesn't pay directly, the federal government or the legal aid lawyers will come to you for restitution. The farm labor contractor is gone, and you'll be responsible for wages, housing, transportation and possibly the status of your workers.

“If a farm labor contractor pulls up to your place in a van filled with 26 people, he has violated a federal law that there can be one person to each seat, and the fine is about $1,000 per person for each person over capacity. But the federal government will levy the fine against you if the farm labor contractor pulls up to your farm,” says Bremer.

Growers also are responsible for paying minimum wage to their farm workers, says Bremer. In addition, growers are responsible for providing adequate housing for the workers, he adds.

“If you're responsible, there should be a strategic plan to get yourself into compliance. This will help to insure that you have a stable workforce, and that you won't be paying out all of your money in fines and court costs,” he says.

If you're a grower, you can hire and pay your farm workers, you can use the H2A seasonal/temporary worker program or you can hire a farm labor contractor, says Bremer.

“If you're the grower, and you're the one who finds the workers, you are not required to have any type of license. If any other full-time worker on the farm does the hiring, then he or she must have a license.

“You are required to tell everyone that you recruit how much you'll be paying them, where they will be working and what they will be doing. Federal law applies to you, and one of these laws includes disclosure. The government is getting very ‘touchy’ about this disclosure business. And if you go out into the community and hire someone, you're required to give them a piece of paper that tells them where they will work and what they will do,” says Bremer.

Vehicles used by the grower to transport workers must carry liability insurance of $100,000 per seat, notes Bremer, or the grower must have workers' compensation.

“Many growers don't have workers' compensation, and I don't know why not,” he says. “It's about 5 percent, and it's usually money well spent. Workers' compensation becomes an exclusive remedy. If someone is hurt on your farm, and you have workers' compensation, the doctor or hospital is paid, and the worker gets 66 2/3 percent of his or her wages for time missed from work. If you don't have workers' compensation, then there's not an exclusive remedy. The worker can hire a plaintiff's attorney and sue you. If they get hurt on your farm, you could lose your farm.”

If a grower wants to build farmer labor housing on the farm, there are rules that must be followed, says Bremer. If the grower is working through the federal government's H2A program, adequate, decent housing must be provided before foreign workers arrive on the farm.

Growers must receive an I-9 form from the farm worker, says Bremer. “Every employer in the United States must fill out an I-9 on every employee. It's worse to turn someone away based on their documents than to hire someone who has a document containing errors. As soon as you turn someone away, there could be a claim of discrimination. The I-9 law wasn't meant to identify illegal aliens. It was written to protect you from knowingly hiring illegal aliens. You're protected if you take their documents.”

In the H2A program, a foreign worker can go to a farm on a visa and work for several months before returning home, says Bremer. “Everything is 100 percent legal. You have to work with your state government, the U.S. Department of Labor, the INS and the U.S. Department of State. That's a lot of red tape, and there are people who can help you to work through it.

“The minimum wage in the H2A program is $6.83 per hour. If you pay 40 cents per bucket to your workers, then it still must equal $6.83 per hour. You also must pay for their transportation from their country of origin to your farm, and you must pay for their return trip home. Also, you're required by law to provide free and decent housing to each and every worker. There are no taxes to be paid on these workers. But, the government likes to ‘pick on’ H2A employers, and you'll probably be investigated if you're working through this program.”

If you use a farm labor contractor, you should insure that everything is in order, says Bremer. Farm labor contractors are required to have a license, he says.

“As a grower, you're obligated by law to see that license. Look at the license before you hire them. You'll be fined if you don't. Farm labor contractors also must give disclosure in their recruitment. Make sure you see what they've told the workers.

“If they told the worker he'd receive $10 per hour, and he's only making $5 per hour, then you as the grower are responsible for that other $5.”

In summary, says Bremer, the grower is responsible. “There's a whole law that applies to you, and you're ultimately responsible for everything that happens on your farm. You need a plan for farm labor. If you're going out and hoping that 50 workers will show up, that won't happen in 2002. If you're looking for more than two to three people in a year, you need to find a legal way of getting labor on your farm.”

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