Whether or not someone is a valid independent contractor is a very individualized determination and it will depend on many factors. So, I can’t really answer your questions. But, I can try to give you a little more guidance, so here goes:

Paying employees by the task probably won’t do much to make them an independent contractor. How you pay them doesn’t necessarily affect the factors that make someone an independent contractor because you can still control their performance in terms of assigning tasks, setting time schedules, and benchmarking their performance. It’s the independent contractor’s ability to make their own decisions about how to accomplish a project, not just a task, and their ability to work for others at their own leisure that tends to validate their status.

Whether you need to cover an independent contractor with workers comp insurance will depend on your individual situation and your state’s workers comp laws. As for vehicle issues, I can’t really answer those questions because there are many variables to consider. But, I can suggest that if a worker is using a farm-owned vehicle in the first place, they may not be an independent contractor. Independent contractors control their work and generally provide their own equipment to accomplish that work.

I hope that helps.

What if an independent contractor gets hurt on the farm?Workman’s comp?Home insurance?
What if they were working with an employee of the farm?
What about an independent contractor driving a farm vehicle and gets hit in traffic?
What if while driving the truck he gets a ticket for a bad headlight or cracked windshield?

First, the disclaimer: I can’t actually say whether or not the farm you are referring to is inside or outside the legal requirements without knowing all the details- I can’t undertake that process because that’s practicing the law and I’m still a law student! But, I can provide some more information.

What I’m describing is the federal law. States may, and many do, have laws that are more restrictive than federal law. No state may pass laws that are less restrictive than federal law. So I don’t know what New Mexico laws are regarding internships, but I can say they are at least as restrictive as described.

I also have to make a distinction between internships and apprenticeships. They are very DIFFERENT under the law. Although most farmers think they are the same thing. I have a post coming out very soon at the National Young Farmers’ Coalition website on internships and I’ll repost that here in a few days. In a couple weeks, I’ll put up a post about accounting for food or other tangible goods as part of wages. Initially, it sounds like your internship/apprenticeship would have provided you enough monetary and non-monetary compensation to make minimum wage. So, that’s good! Everything is probably fine for the farm you worked at.

The unfortunate reality is that many, many farm internships/apprenticeships do not comply with federal law. But, many many other industries also don’t comply with federal law regarding their internships- there must be thousands and thousands of internships in the country that aren’t in compliance. Yes, most enforcement agencies look the other way or don’t bother with apprentice/intern regulations unless there’s a problem. If the employers/employees were investigated they could be responsible for a lot of back wages and back taxes. Will they be investigated? It’s probably unlikely. Things do happen though. Here’s an article about a farm “intern” in Oregon who sued his farm employer:
http://tilth.org/education-research/in-good-tilth-magazine/articles/2008/19iii/outlawing-farming-internships

Because non-complying internships are the norm, most people don’t know they don’t comply. As the old saying goes, “A law is only as good as its enforcement.” But, I do think everyone should be aware of what the legal requirements are. Offering food or housing in lieu of wages is a good strategy to get above minimum wage- look for more on that later!

Thanks for reading!
-Rachel

I am surprised by this post. Are these statutes national or state-specific? The fact is, the internship program I worked at in New Mexico, which taught me most everything I know about farming at this time, is exactly what you are saying is illegal here: below minimum wage pay (I think we worked it out that it was about $6.50 an hour, plus a lot of free food and other non-monetary perks) in return for education. I guarantee they did not get any kind of the exemptions you mentioned above, there is more than enough cheap farm labor to be gotten in this area if they had wanted/were forced to go that route. And it’s not like this internship is a secret or ‘under the radar’…the farm is involved in the local agricultural community and is in the process of organic certification, it has open farm tours, it explains and promotes its internship program at local conferences/classes/presentations and on its website, etc. Are you saying that technically all of this is illegal, and New Mexico is letting it slide, or looking the other way, or something like that? And that conceivably someone with a vendetta against this farm could get them in trouble or get the program shut down by calling them on it?

I like this farm I am referring to, so I am not going to identify it in case it would get in trouble, but I would like to know how this reconciles with what you have said here. Thanks.

You are very right- it’s difficult to know exactly what “fair” really is when it comes to leasing land, or even to pricing your produce or hiring your workers. My best advice would be that you have to go with your gut. If it doesn’t feel right to you, then it’s probably not fair. Certainly, if you get into a deal that you don’t think is fair, resentment might make the relationship difficult to manage anyways.

For me personally, I would not allow a landowner to take produce for him or herself. Personally, I think that’s too open-ended and misunderstandings are bound to happen. You are running a business. Nobody lets someone just take things off the shelf for free because they own the building. Perhaps you could say “$20 per week of produce, let me know a week in advance what you’d like,” or something more defined like that. A percentage of profits is at least more clearly defined, but as you say, he’s not contributing to inputs. It all depends on what he gets from having you on the land. If his tax benefit is pretty sweet, there’s no need for him to get more. But, if he rents it to you for $1 and the tax benefit is meager, then a percentage of profits might be reasonable.

Oftentimes, it’s good to stick with what everyone else is doing just so you have somewhere to start with. If most farmers rent for a dollar, contribute all inputs and keep all profits, that’s where I’d start. As the landowner/renter relationship develops you’ll have a better understanding of what works for you both.

The questions you bring up in this article are exactly the same ones we have. My family and I are looking to lease land to farm vegetables organically in New Mexico (Albuquerque area), and although we have asked around and tried to utilize our local food and farming connections, the university’s law library, etc., we still don’t really have a good idea of what a ‘fair’ land leasing or crop sharing agreement would look like. It is difficult to know if you are getting a fair deal, asking too much, or if it is just right.

Some farmers I know have secured leases to farm the land for free or $1 a year, and that’s it; they pay for everything they put in, and they keep everything they get out (the main advantage to the landowner comes in being able to keep their water rights, which are very scarce down here, and being able to claim hefty tax exemptions or reductions for agricultural use of their property – and of course having their land enriched as you explained). The lease we are currently looking into is similar to this, except that the landowner sounds interested in taking some produce for himself and his family (no problem), and possibly sharing in a percentage of profits if we sell (is this fair? he is not interested in sharing costs of inputs, but on the other hand it is his land). We have not yet met any landowners who seem to want to take a more invested role, as you are talking about, where they share more deeply in both the costs and profits of the land. Maybe this is something that becomes more important on a large-scale lease, not just a couple of acres that would just be sitting fallow otherwise.

In any case, my question is, do you have any further insight on this matter, or any advice on where we should look for more information and a better idea of what we should push for, how to draw up our lease agreement, etc.? I appreciate the blog and have subscribed, hopefully it will give insight on the legal side of things as we get deeper into the farming profession. Thanks, and hope to hear back.