Embedded Files
By: Togrul Savalan
Who Is Covered
The Migrant and Seasonal Agricultural Worker Protection Act (MSPA) coverage provides protection without discriminating based on immigration status, and providing protection against it from violators of the act, of migrants hired by farm labor contractors who in turn are hired by those such as agricultural associations as migrant and seasonal farmworkers who may file complaints against anyone who violates the act by not doing among those such as providing appropriate information, housing and insurance, safe transportation, and providing pay (The migrant & seasonal agricultural worker protection act).
Key Rights and Protections
Protections Associated with Migrant Agricultural Workers:
Farm labor contractors, agricultural employers, and agricultural associations that recruit migrant agricultural workers must disclose to them in writing the following information:
The location, wage rate, nature of work, employment period, and work amenities, such as transportation and housing, and any associated fees, regarding agricultural
workers engaging in strikes, work stoppages, slowdowns, or other kinds of interruptions of operations.
The nature of agreement of utilizing the worker’s labor in exchange for commission or other benefits by a farm labor contractor, an agricultural employer, or an agricultural association
To determine if State workers’ compensation is provided, the name of the provider and the policyholder, the name and phone number of people to be notified in case of injury or death, and the notice period
Employers can disclose information by providing a photocopy of any notice of workers’ compensation insurance required by the state in which the laborer is employed.
Information on the worker’s compensation insurance must be provided when the migrant laborer is recruited, or at the earliest time before the start of employment, when not enough information is available
Farm labor contractors, agricultural employers, and agricultural associations employing migrant laborers must post in a visible location at the place of employment the Secretary of Labor issued poster stating the rights and protections under the act
Right of migrant laborers to receive, on request, written information on the location
from farm labor contractors, agricultural employers, and agricultural associations
Farm labor contractors, agricultural employers, and agricultural associations providing housing for migrant laborers must post in a visible location in the housing the terms and conditions of occupancy
Farm labor contractors, agricultural employers, and agricultural associations employing migrant laborers must keep and preserve information of wage distribution, including, if paid on a piecework basis, the number of units earned, hours worked, pay period earnings, sum and reasoning of withholding, and wage rate
Provide a migrant laborer for each pay period with a written statement on information on location, wage rate, nature of work, employment period, work amenities, and associated fees, strikes, and other work slowdowns, and workers’ compensation insurance information
Requires farm labor contractors for three years after employment to keep records of each migrant laborer, such as information on the period of employment, and provide it to other farm labor contractors, agricultural employers, and agricultural associations with which they previously had agreements
Farm labor contractors, agricultural employers, and agricultural associations cannot knowingly mislead migrant laborers on the location, wage rate, nature of work, and employment period
Information on location, wage rate, and nature of work shall be in a written form in English, Spanish, or other common language to non-English fluent or literate migrant farm laborers (2 U.S.C. § 201).
Farm labor contractors, agricultural employers, and agricultural associations must provide wages when they are due.
Farm labor contractors, agricultural employers, and agricultural associations cannot require migrant laborers to purchase only goods or services from the.m
Farm labor contractors, agricultural employers, and agricultural associations cannot, without justification, violate the terms of the working arrangement they made with migrant agricultural workers (2 U.S.C. § 202).
Each individual who owns or controls a facility or real property utilized for housing migrant agricultural workers must ensure the facility or real property complies with the applicable substantive Federal and State safety and health standards.
Until the State or local health authority or appropriate agency certifies that the facility or real property complies with applicable safety and health standards, and a copy of the certificate is posted on site, it cannot be used as housing for migrant agricultural workers.
Each individual must keep the original certificate for three years and make it available for inspection and review per section 512
If the State or local health agency, or the appropriate agency, has not conducted the requested inspection within at least 45 days before the facility or real property is used as housing, it may be used as housing.
This section doesn’t apply to those who, in the ordinary course of their business, provide housing to the general public and who, on the same or comparable terms and conditions as the general public, provide housing to migrant agricultural workers (2 U.S.C. § 203).
Protections associated with Seasonal Agricultural Workers:
Section III is similar to Section II, but with some key differences
Farm labor contractors, agricultural employers, and agricultural associations recruiting Seasonal Agricultural Workers shall provide in writing, in place of recruitment to workers, the following information:
The location, wage rate, nature of work, employment period, and work amenities, such as transportation and housing, and any associated fees, regarding agricultural workers engaging in strikes, work stoppages, slowdowns, or other kinds of interruptions of operations.
The nature of agreement of utilizing the worker’s labor in exchange for commission or other benefits by a farm labor contractor, an agricultural employer, or an agricultural association (3 U.S.C. 301).
No information on safety and health regarding housing
Protections associated with both Migrant and Seasonal Agricultural Workers (Motor vehicle safety):
Applies to the transportation of any migrant or seasonal agricultural workers
The section doesn’t apply to transportation on tractors, combines, harvesters, pickers, or similar machinery and equipment utilized by workers in planting, cultivating, or harvesting of agricultural goods or care of livestock or poultry
When using or causing to be used any vehicle providing transportation that applies to the section, agricultural employers, agricultural associations, and farm labor contractors must:
Ensure the vehicle complies with applicable state and local safety standards
Ensure drivers have a valid, appropriate state license
Have an insurance policy or liability bond insuring agricultural employers, Agricultural associations, or farm labor contractors against liability from damage to people or property caused by owning, operating, or causing to be operated a vehicle transporting migrant or seasonal agricultural workers
The Secretary of Labor shall determine the coverage of protections to migrant and seasonal agricultural workers, by considering factors such as:
Type of vehicle, its passenger capacity, distance, type of road, and highway carried
by the vehicle, and the extent of the burden placed on migrant and seasonal agricultural
Workers
Standards on how agricultural employers, agricultural associations, and farm labor contractors must ensure compliance with safety standards, licenses, and insurance set by the Secretary of Labor are in addition and not superseding part 11 of the Interstate Commerce Act or a successor provision of subtitle IV of Title 49 United States Code, or other independent applicable transportation regulations, and whose violation is considered a breach of the act
In the event of failure to set standards on how agricultural employers, agricultural associations, and farm labor contractors ensure:
The vehicle complies with applicable state and local safety standards
Drivers have a valid, appropriate state license
Have an insurance policy or liability bond insuring the agricultural employers, Agricultural associations, or farm labor contractors against liability from damage to people or property caused by owning, operating, or causing to be operated a vehicle transporting migrant or seasonal agricultural workers
By the date of the effect of the act by the Secretary of Labor for any reason,
It is deemed, until superseded by standards set by the Secretary, that the Secretary sets the standards on transportation of migrant and seasonal laborers under section 204 (a) (3a) of the Interstate Commerce Act to apply reasonably and appropriately without regard to the mileage and limitation boundaries set in the section.
The Secretary of Labor shall determine the required level of insurance by at least considering:
Type of vehicle, its passenger capacity, distance, type of road, and highway carried
by the vehicle, and the extent of the burden placed on migrant and seasonal agricultural
Workers
And similar agricultural worker transportation requirements under state law
If agricultural employers, agricultural associations, or farm labor contractors employing migrant or seasonal workers provide them with workers' compensation coverage for cases of bodily injury or death, the following apply:
Employers only require an insurance policy bond if the circumstance of the transportation is not covered under state law
The Secretary of Labor, under the discretion of issuing rules and regulations in enforcing the act, no later than the effective day of the act under section 511, shall determine standards required for the implementation of section 401
Changes to this discretion shall be made in consideration of section 401 (4 U.S.C. § 401).
Enforcement provisions
The willful and knowing violation of the act and its regulations will result in a fine of no more than $1,000 or a sentence of no more than one year in prison, or both.
Multiple violations will result in fines of no more than $10,000 or a sentence of no more than three years, or both.
If a farm labor contractor violates paragraphs 1 or 2 under section 274A (a) of the Immigration and Nationality Act, is refused issuance of renewal, or fails to obtain a certificate of registration, or the certificate is suspended or revoked:
The farm labor contractor, upon conviction, is fined no more than $10,000 or sentenced to no more than three years or both (5 U.S.C. § 501).
The Secretary of Labor, upon determining the violation of the act or regulations under the act, can request a temporary or permanent injunctive relief from any appropriate district court of the U.S. (5 U.S.C. § 502).
The party harmed by the farm labor contractor, agricultural contractor, agricultural association, or other persons' violation of the act may file a suit in any appropriate district court with jurisdiction over the involved parties.
Not discriminating based on the parties' amount of controversy, citizenship, or exhaustion of any provided alternative administrative remedies
If a court deems so, it may appoint an attorney for the complainant and commence the action
The court is allowed to consider whether an attempt to resolve the issues in dispute was made prior to litigation
If the court finds an intentional violation of the act or regulations under the act by the respondent, it may award damages up to and including an amount equal to the actual damages, or statutory damages up to $500 per plaintiff per violation, or other equitable relief
For determining statutory damages due by the respondent, multiple violations of a single provision of the act or regulations under the act are considered a single violation
If the complaint is a class action, the court will award no more than the lesser of up to $500 per plaintiff per violation, or up to $500,000, or other equitable relief
Civil actions under chapter 83 of title 28 of the United States Code can be appealed
This applies in spite of other provisions of the act, where the States ’ workers ’ compensation law is the exclusive remedy, if applicable, to migrant and seasonal agricultural workers for bodily damage or death
The exclusive remedy of filing a suit in any district court of the United States having jurisdiction over the parties involved:
Prevents the recovery of actual damages for loss from injury or death
It does not prevent recovery for the status of damages or equitable relief:
Except that such relief does not include back or front pay or in any manner, direclty or indirectly
Also directly or indirectly does not expand or change the recovery of damages from under or the rights conferred under State worker’s compensation law
If the Court finds that a worker is prevented from claiming actual damages due to its coverage under State workers’ compensation law, and that:
The defendant knowingly requiring or allowing drivers to transport agricultural workers under the influence of alcohol or controlled substances defined in section 102 of the Controlled Substances Act, violated regulations set by the Secretary of Labor, or under failure to do so, the Interstate Commerce Act, section on transporting migrant labor
And violation resulting in injury or death of a migrant or seasonal agricultural worker, out of and during their employment
Defendant willfully disabled or removed, or consciously failed to provide the safety device prescribed by the Secretary of Labor
And a violation resulting in injury or death of a migrant or seasonal agricultural worker
Defendant at the time of the violation was also an unregistered farm labor contractor, also violating the provision not allow operation without a certificate of registration
Or a person without reasonably taking steps in determining the contractor's possession of a valid certificate of registration knowingly allowed them to operate
The court will award no more than $10,000 per plaintiff per violation, and purpose of determining the amount of statutory damages awarded to the plaintiff, multiple violations of a single provision are deemed as a single violation
In case of a class action, the court will award no more than $10,000 per plaintiff or up to $500,000 for all plaintiffs
If determined under the State worker’s compensation law that it is not applicable to a claim of bodily injury or death of a migrant or seasonal agricultural worker
The statute of limitations for bringing action for actual damages for such bodily injury or death resulting from a violation of regulations set by the Secretary of Labor, by knowingly requiring or allowing drivers to transport agricultural workers under the influence of alcohol or controlled substances defined in section 102
Will be paused for the duration pending the State worker’s compensation claim for the bodily injury or death
The statute of limitations for actions for other actual or statutory damages, or equitable relief arising out of the same transaction or occurrence as the bodily injury or death of the migrant or seasonal agricultural worker will be paused for the duration of the pending of the State worker’s compensation claim for the bodily injury or death (5 U.S.C. § 504).
No one is allowed to intimidate, threaten, restrain, coerce, blacklist, discharge, or discriminate in any manner against migrant or seasonal agricultural workers, or justifiably file a complaint or institute or cause to be instituted
Any proceeding under or related to the act, or has or about to testify in such proceedings, or for justifiably exercising on their or others' behalf any rights under the act
If a migrant or seasonal agricultural worker justly believes that they have been discriminated against by a violator can file a complaint alleging it within 180 days after the violation occurred
The Secretary of Labor will investigate in a manner they deem appropriate, and if a violation is found, will take action against the violator in an appropriate U.S. district court who have jurisdiction for cause shown to restrain for violation and order all appropriate relief, including rehiring or reinstating, with back pay or damages (5 U.S.C. § 505).
What Workers Should Know
The MSPA’s protections aim to ensure that migrant and seasonal agricultural workers receive accurate information about the nature of their work, access safe housing and transportation, and have insurance coverage in the event of any incident, guaranteed pay, and job safety (The Migrant and Seasonal Agricultural Worker Protection Act).
Common Violations
Some of the common violations include: wage theft, unsafe housing conditions, interfering with the investigation/interviews of workers (WHD News Release: Judge orders Darryl Howes Farms to stop misclassifying migrant workers as independent contractors and comply with the FLSA and the MSPA [04/07/2014]), unsafe transportation (Farm labor contractor pays $56K in penalties for violating migrant worker, immigration laws after a vehicle accident that injured 14 workers in Maine; (U.S. Department of Labor finds overtime and transportation safety violations by Oceanside, California, Agricultural Company), misclasifying migraint workers as indepedent contractors (WHD News Release: Judge orders Darryl Howes Farms to stop misclassifying migrant workers as independent contractors and comply with the FLSA and the MSPA [04/07/2014]), and using child labor (Recent Child Labor Violations Highlight Need for Critical Labor Reforms).
Where to Get Help
Department of Labor number for Migrant and Seasonal Agricultural workers: +1(866)-487-9243 (Phone numbers by topic).
The National Migrant and Seasonal Head Start Association offers help to family members of migrant and seasonal agricultural workers (National Migrant and Seasonal Agricultural workers (National migrant and seasonal Head Start Association).
The National Association of Community Health Centers supports health centers that provide healthcare for migrant and seasonal agricultural workers (Migratory and Seasonal Agricultural Workers, 2023).
The Farmworker Justice provides legal advocates for the rights of migrant and seasonal agricultural workers, by providing support to organizations and lawyers who provide legal support and can help reach out to legal resources (Promoting a safe and stable farm workforce).
Migrant Legal Aid both advocates and provides legal services to ensure the protection of the rights of migrant and seasonal agricultural workers (Protecting migrant farmers' jobs, 2022).
Sources
Department of Labor. (n.d.). The migrant & seasonal agricultural worker protection act. DOL. https://www.dol.gov/agencies/whd/laws-and-regulations/laws/mspa#title_5
Department of Labor. (n.d.-a). Phone numbers by topic. DOL. https://www.dol.gov/general/contact/contact-phone-topics
National Migrant and Seasonal Head Start Association. (n.d.). National Migrant and Seasonal Head Start Association. NMSHSA. https://nmshsa.org/
National Association of Community Health Centers. (2023, July 5). Migratory and seasonal agricultural workers. NACHC. https://www.nachc.org/topic/migratory-and-seasonal-agricultural-workers/
Farmworkers Justice. (n.d.). Promoting a safe and stable farm workforce. FJ. https://farmworkerjustice.org/en
Migrant Legal Aid. (2022, April 1). Protecting migrant farmers’ jobs. Migrant Legal Aid. https://migrantlegalaid.org/legal-services-at-migrant-legal-aid/migrant-legal-aid-protecting-migrant-farmers-jobs/
Department of Labor. (n.d.-a). WHD News Release: Judge orders Darryl Howes Farms to stop misclassifying migrant workers as independent contractors and comply with the FLSA and the MSPA [04/07/2014]. DOL. https://www.dol.gov/newsroom/releases/whd/whd20140407#:~:text=The%20violations%20include%20failure%20to,at%20866%2D4US%2DWAGE.
Department of Labor. (n.d.-b). Farm labor contractor pays $56K in penalties for violating migrant worker, immigration laws after a vehicle accident that injured 14 workers in Maine. DOL. https://www.dol.gov/newsroom/releases/whd/whd20210708
Department of Labor. (n.d.-e). U.S. Department of Labor finds overtime and transportation safety violations by Oceanside, California, Agricultural Company. DOL. https://www.dol.gov/newsroom/releases/whd/whd20190214-5
Department of Labor. (n.d.-f). WHD News Release: Judge orders Darryl Howes Farms to stop misclassifying migrant workers as independent contractors and comply with the FLSA and the MSPA [04/07/2014]. DOL. https://www.dol.gov/newsroom/releases/whd/whd20140407#:~:text=The%20violations%20include%20failure%20to,at%20866%2D4US%2DWAGE.
American Immigration Lawyers Association. (n.d.). Recent Child Labor Violations Highlight Need for Critical Labor Reforms. Recent child labor violations highlight need for critical labor reforms. https://www.aila.org/recent-child-labor-violations-highlight-need-for-critical-labor-reforms
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