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cle liability insurance policies. The requirements concerning recordkeeping, housing and insurance have been cleared by OMB under control number 1215-0148.
(4) The Act provides that no farm labor contractor shall knowingly employ or utilize the services of aliens not lawfully admitted for permanent residence or who have not been authorized by the Attorney General to accept employment. Form WH-509 is an optional form which may be used to self-certify that the applicant is a citizen of the U.S. This form has been cleared by OMB under control number 1215-0091. (See § 500.59(a)(11)).
[48 FR 36741, Aug. 12, 1983; 48 FR 38380, Aug. 23, 1983]
§ 500.2 Compliance with State laws and regulations.
The Act and these regulations are intended to supplement State law; compliance with the Act or these regulations shall not excuse any individual from compliance with appropriate State law or regulation.
$ 500.3 Effective date of the Act; transition period; repeal of the Farm Labor Contractor Registration Act.
(a) The provisions of the Migrant and Seasonal Agricultural Worker Protection Act are effective on April 14, 1983, and are codified in 29 U.S.C. 1801 et seq.
(b) The Migrant and Seasonal Agricultural Worker Protection Act repeals the Farm Labor Contractor Registration Act of 1963, as amended, (7 U.S.C. 2041, et seq.), effective April 14, 1983.
(c) Violations of the Farm Labor Contractor Registration Act occurring prior to April 14, 1983, may be pursued by the Department of Labor after that date.
$ 500.4 Effect of prior judgments and final orders obtained under the Farm Labor Contractor Registration Act. The Secretary may refuse to issue or to renew, or may suspend or revoke, a Certificate of Registration under the Act, if the applicant or holder has failed to pay any court judgment obtained by the Secretary or any other person under the Farm Labor Contrac
tor Registration Act, or has failed to comply with any final order issued by the Secretary under the Farm Labor Contractor Registration Act. The Secretary may deny a Certificate of Registration under the Act to any farm labor contractor who has a judgment outstanding against him, or is subject to a final order assessing a civil money penalty which has not been paid.
§ 500.5 Filing of applications, notices and documents.
Unless otherwise prescribed herein, all applications, notices and other documents required or permitted to be filed by these regulations shall be filed in accordance with the provisions of subpart F of the regulations.
§ 500.6 Accuracy of information, statements and data.
Information, statements and data submitted in compliance with provisions of the Act or these regulations are subject to title 18, section 1001, of the United States Code, which provides:
Section 1001. Statements or entries
Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both.
$500.7 Investigation authority of the Secretary.
(a) The Secretary, either pursuant to a complaint or otherwise, shall, as may be appropriate, investigate and, in connection therewith, enter and inspect such places (including housing and vehicles) and such records (and make transcriptions thereof), question such persons and gather such information as he deems necessary to determine compliance with the Act, or these regulations.
(b) The Secretary may issue subpenas requiring the attendance and testi
mony of witnesses or the production of any evidence in connection with such investigations. The Secretary may administer oaths, examine witnesses, and receive evidence. For the purpose of any hearing or investigation provided for in the Act, the Authority contained in sections 9 and 10 of the Federal Trade Commission Act (15 U.S.C. 49, 50), relating to the attendance of witnesses and the production of books, papers, and documents, shall be available to the Secretary. The Secretary shall conduct investigations in a manner which protects the confidentiality of any complainant or other party who provides information to the Secretary in good faith.
(c) Any person may report a violation of the Act or these regulations to the Secretary by advising any local office of the Employment Service of the various States, or any office of the Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor, or any other authorized representative of the Administrator. The office or person receiving such a report shall refer it to the appropriate office of the Wage and Hour Division, Employment Standards Administration for the region or area in which the reported violation is alleged to have occurred.
(d) In case of disobedience to a subpena, the Secretary may invoke the aid of a United States District Court which is authorized to issue an order requiring the person to obey such subpena.
$ 500.8 Prohibition on interference with Department of Labor officials.
It is a violation of section 512(c) of the Act for any person to unlawfully resist, oppose, impede, intimidate, or interfere with any official of the Department of Labor assigned to perform an investigation, inspection, or law enforcement function pursuant to the Act during the performance of such duties. (Other Federal statutes which prohibit persons from interfering with a Federal officer in the course of official duties are found at 18 U.S.C. 111 and 18 U.S.C. 1114.)
§ 500.9 Discrimination prohibited.
(a) It is a violation of the Act for any person to intimidate, threaten, restrain, coerce, blacklist, discharge, or in any manner discriminate against any migrant or seasonal agricultural worker because such worker has, with just cause:
(1) Filed a complaint with reference to the Act with the Secretary of Labor; or
(2) Instituted or caused to be instituted any proceeding under or related to the Act; or
(3) Testified or is about to testify in any proceeding under or related to the Act; or
(4) Exercised or asserted on behalf of himself or others any right or protection afforded by the Act.
(b) A migrant or seasonal agricultural worker who believes, with just cause, that he has been discriminated against by any person in violation of this section may, no later than 180 days after such violation occurs, file a complaint with the Secretary alleging such discrimination.
ministrative Law Judge means the Chief Administrative Law Judge, United States Department of Labor, 800 K Street, NW., Suite 400, Washington, DC 20001-8002.
(c) Agricultural association means any nonprofit or cooperative association of farmers, growers, or ranchers, incorporated or qualified under applicable State law, which recruits, solicits, hires, employs, furnishes, or transports any migrant or seasonal agricultural worker.
(d) Agricultural employer means any person who owns or operates a farm, ranch, processing establishment, cannery, gin, packing shed or nursery, or who produces or conditions seed, and who either recruits, solicits, hires, employs, furnishes, or transports any migrant or seasonal agricultural worker. Produces seed means the planting, cultivation, growing and harvesting of seeds of agricultural or horticultural commodities. Conditions seed means the in-plant work done after seed production including the drying and aerating of seed.
(e) Agricultural employment means employment in any service or activity included within the provisions of section 3(f) of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(f)), or section 3121(g) of the Internal Revenue Code of 1954 (26 U.S.C. 3121(g)) and the handling, planting, drying, packing, packaging, processing, freezing, or grading prior to delivery for storage of any agricultural or horticultural commodity in its unmanufactured state.
(f) Convicted means that a final judgment of guilty has been rendered by a court of competent jurisdiction from which no opportunity for appeal remains.
(g) Day-haul operation means the assembly of workers at a pick-up point waiting to be hired and employed, transportation of such workers to agricultural employment, and the return of such workers to a drop-off point on the same day. This term does not include transportation provided by an employer for individuals who are already employees at the time they are picked up nor does it include carpooling arrangements by such employees which are not specifically directed or
requested by the employer, farm labor contractor or agent thereof.
(h)(1) The term employ has the meaning given such term under section 3(g) of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(g)) for the purposes of implementing the requirements of that Act. As so defined, employ includes to suffer or permit to work.
(2) The term employer is given its meaning as found in the Fair Labor Standards Act. Employer under section 3(d) of that Act includes any person acting directly or indirectly in the interest of an employer in relation to an employee.
(3) The term employee is also given its meaning as found in the Fair Labor Standards Act. Employee under section 3(e) of that Act means any individual employed by an employer.
(4) The definition of the term employ includes the joint employment principles applicable under the Fair Labor Standards Act. Joint employment under the Fair Labor Standards Act is joint employment under the MSPA.
(i) The term joint employment means a condition in which a single individual stands in the relation of an employee to two or more persons at the same time. A determination of whether the employment is to be considered joint employment depends upon all the facts in the particular case. If the facts establish that two or more persons are completely disassociated with respect to the employment of a particular employee, a joint employment situation does not exist.
(ii) Questions will often arise under the Act as to whether individuals employed by a farm labor contractor are also jointly employed by another person engaged in agriculture (including any person defined in the Act as an agricultural employer or an agricultural association). Such joint employment relationships are common in agriculture and have often been addressed by the Federal courts. See Hodgson v. Okada, 472 F. 2d 965, Hodgson v. Griffin and Brand, 471 F. 2d 235, Mitchell v. Hertzke, 234 F. 2d 183, United States v. Rosenwasser, 323 U.S. 360, Rutherford Food Corporation v. McComb, 331 U.S. 722, 67 S. Ct.
1473, Real v. Driscoll Strawberry Associates, Inc., 603 F. 2d 748, Mednick v. Albert Enterprises, Inc., 508 F. 2d 297, and Usery v. Pilgrim Equipment Company, Inc., 527 F. 2d 1308. In determining whether such a joint employment relation exists the courts have cited the broad definition of employ in the Fair Labor Standards Act which includes to suffer or permit to work. The factors considered significant by the courts in these cases and to be used as guidance by the Secretary, include, but are not limited to, the following:
(A) The nature and degree of control of the workers;
(B) The degree of supervision, direct or indirect, of the work;
(C) The power to determine the pay rates or the methods of payment of the workers;
(D) The right, directly or indirectly, to hire, fire, or modify the employment conditions of the workers;
(E) Preparation of payroll and the payment of wages.
(i) Farm labor contracting activity means recruiting, soliciting, hiring, employing, furnishing, or transporting any migrant or seasonal agricultural worker.
(j) Farm labor contractor means any person-other than an agricultural employer, an agricultural association, or an employee of an agricultural employer or agricultural associationwho, for any money or other valuable consideration paid or promised to be paid, performs any farm labor contracting activity.
(k) Farm Labor Contractor Certificate of Registration or Certificate of Registration means the certificate issued by the Administrator which permits a farm labor contractor to engage in farm labor contracting activities.
(1) Farm labor contractor employee who is required to obtain a Certificate of Registration as an employee of a farm labor contractor means a person who performs farm labor contracting activity solely on behalf of a farm labor contractor holding a valid Certificate of Registration and is not an independent farm labor contractor who would be required to register under the Act in his own right.
(m) Farm Labor Contractor Employee Certificate or Farm Labor Contractor Employee Certificate of Registration or Employee Certificate means the certificate issued by the Administrator to an employee of a farm labor contractor authorizing the performance of farm labor contracting activities solely on behalf of such farm labor contractor and not as an independent farm labor contractor who would be required to register in his own right.
(n) Illegal alien means any person who is not lawfully admitted for permanent residence in the United States or who has not been authorized by the Attorney General to accept employment in the United States.
(0) Immediate family includes only:
(3) Parents, stepparents, and foster parents; and
(4) Brothers and sisters.
(p) Migrant agricultural worker means an individual who is employed in agricultural employment of a seasonal or other temporary nature, and who is required to be absent overnight from his permanent place of residence. (1) Migrant agricultural worker does not include:
(i) Any immediate family member of an agricultural employer or a farm labor contractor; or
(ii) Any temporary nonimmigrant alien who is authorized to work in agricultural employment in the United States under sections 101(a)(15)(H)(ii)(a) and 214(c) of the Immigration and Nationality Act.
(2) Permanent place of residence, with respect to an individual, means a domicile or permanent home. Permanent place of residence does not include seasonal or temporary housing such as a labor camp. The term permanent place of residence for any nonimmigrant alien is that individual's country of origin.
(q) Person means any individual, partnership, association, joint stock company, trust, cooperative, or corporation.
(r) Seasonal agricultural worker means an individual who is employed in agricultural employment of a sea
sonal or other temporary nature and is not required to be absent overnight from his permanent place of residence:
(1) When employed on a farm or ranch performing field work related to planting, cultivating, or harvesting operations; or
(2) When employed in canning, packing, ginning, seed conditioning or related research, or processing operations, and transported, or caused to be transported, to or from the place of employment by means of a day-haul operation.
(i) Seasonal agricultural worker does not include:
(A) Any migrant agricultural worker; (B) Any immediate family member of an agricultural employer or a farm labor contractor; or
(C) Any temporary nonimmigrant alien who is authorized to work in agricultural employment in the United States under sections 101(a)(15)(H)(ii)(a) and 214(c) of the Immigration and Nationality Act.
(ii) Field work related to planting, cultivating or harvesting operations includes all farming operations on a farm or ranch which are normally required to plant, harvest or produce agricultural or horticultural commodities, including the production of a commodity which normally occurs in the fields of a farm or ranch as opposed to those activities which generally occur in a processing plant or packing shed. A worker engaged in the placing of commodities in a container in the field and on-field loading of trucks and similar transports is included. Nursery, mushroom and similar workers engaged in activities in connection with planting, cultivating or harvesting operations are intended to be covered. An individual operating a machine, such as a picker, or tractor is not included when performing such activity.
activity to another, while employed in agriculture or performing agricultural labor, is employed on a seasonal basis even though he may continue to be employed during a major portion of the year.
(2) A worker is employed on other temporary basis where he is employed for a limited time only or his performance is contemplated for a particular piece of work, usually of short duration. Generally, employment, which is contemplated to continue indefinitely, is not temporary.
(3) On a seasonal or other temporary basis does not include the employment of any foreman or other supervisory employee who is employed by a specific agricultural employer or agricultural association essentially on a year round basis.
(4) On a seasonal or other temporary basis does not include the employment of any worker who is living at his permanent place of residence, when that worker is employed by a specific agricultural employer or agricultural association on essentially a year round basis to perform a variety of tasks for his employer and is not primarily employed to do field work.
(t) Secretary means the Secretary of Labor or the Secretary's authorized representative.
(u)(1) Solicitor of Labor means the Solicitor, United States Department of Labor, and includes attorneys designated by the Solicitor to perform functions of the Solicitor under these regulations.
(2) Associate Solicitor for Fair Labor Standards means the Associate Solicitor, who, among other duties, is in charge of litigation for the Migrant and Seasonal Agricultural Worker Protection Act (MSPA), Office of the Solicitor, U.S. Department of Labor, Washington, DC 20210.
(3) Regional Solicitors means the at
(s) On a seasonal or other temporary torneys in charge of the various rebasis means:
(1) Labor is performed on a seasonal basis where, ordinarily, the employment pertains to or is of the kind exclusively performed at certain seasons or periods of the year and which, from its nature, may not be continuous or carried on throughout the year. A worker who moves from one seasonal
gional offices of the Office of the Solicitor.
(v) State means any of the States of the United States, the District of Columbia, the Virgin Islands, the Commonwealth of Puerto Rico, and Guam. State agency means a State agency vested with all powers necessary to cooperate with the U.S.