The U.S. Department of Labor (DOL) has recently issued an update to the definition of what constitutes joint employer liability. While the new ‘four-factor balancing test’ updates the regulation officially, the criteria of the test have been what DOL has been using as its general enforcement practice. The most common instance where this change in regulatory enforcement would be seen in the agricultural industry is in the relationship between a farmer and a farm labor contractor (FLC).
“Growers need to be thinking very carefully about the farm labor contractors that they engage because they can be held responsible for the conditions and treatment of workers,” said AgSafe President and CEO Amy Wolfe. “This new simplified definition will take effect for all employers effective March 12.”
The four criteria for determining joint liability include when a grower is involved in the hiring or firing of an FLC employee or maintains any employment records for an FLC employee. Other instances of liability include if a grower is supervising or controlling an FLC employee’s work schedule, their conditions of employment, or if the grower determines the FLC employees’ rate and method of payment.
“Two of the elements of the definition, in particular, are where I see many growers are going to find themselves on the line for joint liability,” Wolfe noted. “That is dictating and directing employees’ schedules, conditions of employment, or directing their work; or determining employee’s method and rate of pay. Those are both really common practice that what we currently see.”
The updated joint employer liability guidelines from DOL are on top of the similar requirements established by the California Labor Commissioner’s Office, which function independently of the other. Instances in which a grower is found to be jointly liable could result in being cited at both the state and federal level. Wolfe described some of the circumstances where a grower could be facing joint responsibility.
“Should the employee not be paid proper wages, should they not be given their breaks, should they get hurt on the job. If there’s any negative or adverse action towards the employee…then the Department of Labor can hold both the grower and the farm labor contractor responsible for that adverse behavior, those adverse conditions for the worker,” said Wolfe.
Listen to the interview below.
About the Author
