The Trump administration has nixed some Obama-era policies regarding joint employers, but that doesn’t absolve farmers of liability for the actions of their labor contractors.
Most recently, the National Labor Relations Board voted 3-2 to overturn a previous ruling that increased the likelihood companies would be considered joint employers.
When companies are deemed joint employers, they’re mutually responsible for ensuring compliance with the National Labor Relations Act.
Under the Obama-era ruling from 2015, a company would be considered a joint employer of a contractor’s workers if it could potentially exercise control over employment decisions, even if that control wasn’t “direct and immediate.”
Now that NLRB is under Republican control due to an appointment by President Donald Trump, the board has revoked that earlier decision, which means companies must actually impose “direct and immediate” control over workers to be considered joint employers.
However, this reversal does not apply to agriculture because the industry is exempt from the National Labor Relations Act.
Instead, the relationship between farmers and their workers is governed by the Fair Labor Standards Act and the Migratory and Seasonal Agricultural Worker Protection Act.
Under those statutes, it’s basically impossible for farmers to be considered anything but joint employers of workers hired by labor contractors, said Tim Bernasek, an attorney specializing in agricultural law with the Dunn Carney law firm.
That’s due to such legal precedents as Torres-Lopez v. May, a 9th U.S. Circuit Court of Appeals ruling from 1997, he said.
In that case, Adelaida Torres-Lopez filed a lawsuit against Robert May, an official with Bear Creek Farms in Oregon, for allegedly paying below the minimum wage and other violations during cucumber harvest.
Originally, a federal judge ruled that Bear Creek Farms wasn’t a joint employer with Ag-Labor Services, a contractor, because May’s supervision of the workers was minimal, he didn’t directly pay them and he wasn’t responsible for hiring and firing, among other factors.
The 9th Circuit overturned that ruling, finding that the farm was a joint employer because May had control over the harvest schedule, ensured workers performed tasks correctly and adjusted compensation to the labor contractor based on their work time.
Other aspects of the agreement also indicated Bear Creek Farms was a joint employer, such as its ownership of the land and equipment and the importance of the harvest to its overall business, according to the 9th Circuit.
Under this legal precedent, it’s difficult to imagine any farmer not being a joint employer unless he was willing to completely disengage from any harvest decisions, Bernasek said.
“No farmer is ever going to do that, ever,” he said.
Earlier this year, the Trump administration also withdrew an Obama-era policy that broadened the types of business relationships that would make companies joint employers under the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act.
While this may affect the U.S. Department of Labor’s enforcement, it does not protect farmers from private lawsuits, Bernasek said.
“Just because DOL changes its view of joint employment, it doesn’t change the case law,” he said.
For that reason, growers must continue to closely monitor their labor contractors to ensure they’re paying the minimum wage, providing meal and rest breaks and properly keeping records, among other requirements, Bernasek said. “You can be held liable for any misdeeds under their watch,” he said.