Definition of The MSPA (Migrant and Seasonal Agricultural Worker Protection Act)
The MSPA is a federal regulation — the Migrant and Seasonal Agricultural Worker Protection Act of 1983. This law provides instructions to employers regarding the wages, transportation, housing, and recordkeeping requirements for migrant and seasonal agricultural workers.
What is the MSPA?
Agricultural work is an incredibly tough occupation. Farmers and workers must contend with the backbreaking work of harvesting crops while dealing with extreme temperatures. Farmers who employ workers often hire migrant and seasonal workers.
These employers must comply with federal and state legal mandates or face criminal and civil penalties for disobeying the law. One of the primary federal laws for farm workers is the Migrant and Seasonal Agricultural Worker Protection Act of 1983 (MSPA).
The MSPA sets standards for:
- Wages (employers must pay agricultural workers the FLSA-required minimum. However, they are exempt from the overtime pay requirement)
- Transportation to and from the job site
- Disclosures and recordkeeping
Employers that must comply with the MSPA include:
- Agricultural employers
- Agricultural associations
- Farm labor contractors
- Migrant housing providers
However, some agricultural employers are exempt from MSPA compliance in certain circumstances:
- Family businesses
- Small businesses that use 500 or fewer “man-days” of labor in any quarter of the previous year; a man-day means that a non-family member worked at least 1 hour.
- Some tobacco and seed operations
- Labor unions
MSPA protections do not apply to independent contractors.
Employer requirements under the MSPA
Seasonal day-haul and migrant workers must be provided with a written disclosure explaining the conditions and terms of employment when they are recruited for the job. The disclosure must be in the worker’s language if necessary or reasonable. This helps to prevent workers from being enticed to start work on a job only to find out that the actual terms of employment are different than what was initially presented.
Payroll and general operational requirements
Migrant and seasonal agricultural workers must be provided with a payroll statement that includes the employer’s:
- Employer identification number (EIN)
Pay stubs must show the earnings and deductions each pay period. The information must be provided at the time of payment.
Employers must pay agricultural workers all owed wages when they’re due.
Employers must keep payroll records for 3 years.
Agricultural employers who use a farm labor contractor are sometimes viewed as joint employers of the workers supplied by the contractor. They are responsible for compliance with the employment portion of the MSPA.
Vehicles used to transport migrant or seasonal agricultural workers must be insured and operated by a licensed driver. Vehicles must meet state and federal safety standards.
Employers cannot require that workers purchase goods or services exclusively from the employer or a contractor.
Employers must post a notice in a conspicuous place at the job site that explains workers’ rights and protections under the MSPA.
Providers of migrant agricultural housing must comply with state and federal safety and health standards. They must give workers a statement of the occupancy terms and conditions, which must be posted where workers can read it.
Potential liability for joint employment is a concern in the agricultural industry. Agricultural employers who use a farm labor contractor are sometimes viewed as joint employers of the workers supplied by the contractor. Joint employers are responsible for compliance with the employment portion of the MSPA, such as the proper payment of wages.
Farm labor contractors must register with the U.S. Department of Labor (DOL) under the MSPA. The statement must include, among other things:
- A description of the farm labor activities
- Identification of the vehicles used to transport migrant workers
- Identification of property used to house the workers
Why is the MSPA important to small businesses?
The MSPA allows migrant and seasonal agricultural workers to file a complaint with WHD (the wage and hour division of the DOL) or file a private lawsuit regardless of citizenship status. Additionally, employers cannot retaliate against workers for exercising their rights under federal law.
Non-exempt farm labor contractors, agricultural employers, and agricultural associations exempt from the MSPA can be penalized under the Fair Labor Standards Act for improper wage payment.
What is the history of the MSPA?
The 1983 enactment of the regulation assists migrant and seasonal farm workers. It replaced the Farm Labor Contractor Registration Act that, critics said, did not provide protection to farm workers because of poor enforcement.
The U.S. Department of Labor’s Wage and Hour Division (WHD) enforces the MSPA. Enforcement means that WHD has the authority to:
- Inspect the workplace, including vehicles and housing
- Review payroll records
- Interview employers and employees
Non-compliance can result in fines, penalties, and injunctions. Prosecution for non-compliance can be civil or criminal. Serving up to 3 years in prison can be a result of criminal charges. Non-compliance by farm labor contractors can result in the revocation or suspension of their certificates and the inability to register for future certifications.
WHD recovered $159,000 in February 2022 from an Idaho potato farmer that violated the MSPA. Federal investigators said the farm:
- Threatened to send H-2A workers “back to Mexico”
- Failed to meet housing safety standards
- Did not disclose all the conditions of employment
- Chose not to provide wage statements
- Refused to pay wages on time
Workers who want to complain under the MSPA can file a claim with WHD. They can also file a lawsuit under the MSPA in federal court. The workers do not have to meet several of the typical requirements for a federal lawsuit.
For example, workers claiming MSPA violations can file in federal court without meeting the:
- Amount in controversy requirement. Generally, federal lawsuits must involve a dispute of at least $75,000.
- Citizenship requirement
- Exhaustion of all administrative remedies requirement under the MSPA
The MSPA also prohibits employers from retaliating against whistleblowers.
Other terms related to MSPA that can help you
- Agricultural: According to the SBA, agricultural businesses include businesses engaged in the legal production of food and fiber, ranching, and raising of livestock, aquaculture, and all other farming and agricultural-related industries.
- FLSA: The Fair Labor Standards Act (FLSA) covers 4 main areas of employment law: wages, employee job classification, overtime, and child labor.
- Joint employer: According to the NLRB (National Labor Review Board), a business is a joint employer of another employer’s employees if the 2 employers share or codetermine the employees’ essential terms and conditions of employment. A company is also a joint employer if it possesses and exercises substantial direct and immediate control over one or more essential terms and conditions of employment of another employer’s employees.
- Seasonal Worker: A person who, during the preceding 12 months, worked at least an aggregate of 25 or more days or part of days in which some work was performed in farm work, earned at least 50% of his/her earned income from farm work, and was not employed in farm work year-round by the same employer. For the purposes of this definition only, a farm labor contractor is not considered an employer. Non-migrant individuals who are full-time students are excluded.
- Migrant Worker: A seasonal farm worker who had to travel to do the farm work so that he/she was unable to return to his/her permanent residence within the same day. Full-time students traveling in organized groups rather than with their families are excluded.
Summary of the definition of MSPA
The MSPA provides important protections for migrant and seasonal workers. Workers can bring lawsuits under the MSPA regardless of citizenship status. The range of penalties for non-compliance includes civil and criminal prosecution. HR professionals and agricultural employers should familiarize themselves with the MSPA and its compliance requirements.
Similar glossary terms you must know
- DOL (Department of Labor)
- NLRB (National Labor Review Board)
- Pay Periods
- Time and attendance recordkeeping
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