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Hiring Farm Workers Basics

Answers to frequently asked questions about hiring farm workers.

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Understanding farm employment law will help you build better relationships with the people who work on your farm. Noncompliance carries significant financial risks for the farm, as penalties can be hefty under this area of law. Each farm should carefully consider how employment law affects their operation.

Do I need to pay at least the minimum wage to everyone working on my farm?

The answer is an unqualified yes, if the worker performs any non-agricultural labor. Broadly, agricultural labor is the production and marketing of crops and/or livestock. Other tasks, like processing, packaging, marketing, or hosting farm events, may be considered non-agricultural labor.  The distinction gets complicated in a hurry, and we offer a detailed explanation in our Farmers’ Guide to Hiring Obligations. We tell you what the minimum wage is in your state in our Selected Essentials in Farm Employment Law resource for each state.

What if the farm assigns only agricultural labor to workers? Things get complicated. Many state (and federal) laws do not require farms to pay the minimum wage to agricultural laborers; however, these rules only apply to farms up to a certain size or threshold. Get the specific rule for minimum wage regarding agricultural workers in your state under the minimum wage section of our Selected Essentials in Farm Employment Law resource for your state.

Need support in applying minimum wage rules to your farm? Take our Advanced Employment Law Course online for the step-by-step help you need.

Do I have to purchase workers’ compensation for everyone working on my farm?

If the farm assigns any non-agricultural labor to workers, the answer is very likely to be yes. Most states require that businesses provide workers’ compensation to all workers. However, if the farm assigns only agricultural labor, it’s possible the farm will not be required to purchase workers’ compensation. Some states do not require farms to buy workers’ compensation for ag laborers. Get the specific rule for workers’ compensation regarding agricultural workers in your state under the workers’ comp section of our Selected Essentials in Farm Employment Law resource for your state.

For more in-depth background on why workers’ compensation exists, why some farms choose to buy it even when it’s not required, any how to manage your premium costs and more, read the workers’ compensation chapter of our Farmers’ Guide to Hiring Obligations.  Workers’ compensation can be an invaluable risk management tool for all farmers. For example, if an employee is covered by workers’ compensation, that employee cannot sue the farmer regarding the injury. By contrast, farmers who carry only a liability policy for worker injuries are sued by their injured workers (or their health insurance companies) regularly.

Get the information you need to make an informed action plan on workers’ compensation in our Farmers’ Guide to Hiring Obligations, workers’ compensation chapter.

Need support or more direction in thinking through workers’ compensation for your farm? Consider taking our Advanced Employment Law Course online for the step-by-step help you need.

Can I treat some of the people who work on my farm as independent contractors?

Hiring independent contractors can help farmers save on payroll and workers’ compensation costs. But, if the worker is legally an employee, you could face penalties, fines, and the responsibility for back pay and back taxes at both the state and federal levels.

To determine whether a worker is an employee or independent contractor, both the states and the federal government use various “tests” to apply the law to specific situations. Although these tests vary from jurisdiction to jurisdiction, they generally hinge on how much control the worker has over their own work, equipment, and financial situation. The more control a worker has over their own circumstances, the more likely they’re an independent contractor.

Read a brief summary of the most common factors used in determining if a worker is an independent contractor in the Classification section our Selected Essentials in Farm Employment Law resource for your state (to be updated with state-specific tests soon).

Explore detailed information on the common factors used in classification of workers in our Farmers’ Guide to Classifying Workers.

Need support or more direction in assessing independent contractors for your farm? Consider taking our Advanced Employment Law Course online for the step-by-step help you need.

I’ve heard that many farms have interns or apprentices working for them. Is this a good idea? What laws apply?

Internships and apprenticeships can be valuable for workers and farmers alike, but employment laws that apply to farm work—like minimum wage, workers’ compensation, and tax laws— generally also apply to interns and apprentices. Unless a farm has done detailed research and carefully assembled their program, intern- and apprenticeships are generally employment and employment laws apply.

In very limited circumstances, it is possible to have an intern who is not an employee. In a nutshell, the internship needs to be like a classroom learning experience and the farmer can’t gain any economic benefit from it. Generally, if the productive work of the farm business is being accomplished, the farm is considered to gain an economic benefit, and the worker is likely an employee. Also, the experience must be for the benefit of the intern rather than the employer and the intern must understand the position is not employment.

Gain a detailed understanding of the complex legal situation that is internships/apprenticeships by reading our Farmers’ Legal Guide to Intern and Volunteer Programs

Need support or more direction in applying the rules to your farm? Consider taking our Advanced Employment Law Course online for the step-by-step help you need.

I’ve heard farms aren’t allowed to have volunteer workers. Is that true?

Legally speaking, a for-profit business cannot have a volunteer. The law defines an employee as someone who is permitted to work for the business. A person allowed to work for a farm thus becomes an employee and their employer is subject to employment laws concerning them—including minimum wage, workers’ compensation, and payroll tax requirements.

Of course, sometimes people come to the farm but aren’t doing the work of the farm business. A farm might have CSA members coming out to the farm solely to pick for themselves. Sometimes, farmers allow volunteers to pick surplus fruit and vegetables for redistribution through food banks or other charities. In those situations, the law is unlikely to see those visitors as workers. This is because the farm is not in the business of picking food for charitable organizations, so the work of the business is not being done.

Things get trickier with “worker share” arrangements with CSA members or other community members and friends where labor time is required in exchange for farm products. In that context if workers are picking tomatoes that will go into CSA boxes, that is likely the work of the business. Those arrangements are likely to be seen as employment relationships, which means that many federal and state employment laws could apply.

Sort out the details for your operation with our Farmers’ Legal Guide to Intern and Volunteer Programs which explains the legal risks of having interns and volunteers working on farms.

Need support in building a legally resilient workforce? Consider taking our Advanced Employment Law Course online for the step-by-step help you need.

I provide housing and/or food to some of the people who work on my farm as part of their wages. Do I need to pay payroll taxes for this? Are there other requirements to follow?

If you pay workers through in-kind payments like meals and housing, there are a host of rules to consider. Some farms must follow strict rules about how to assign a dollar value to the meal, housing, or other form of payment. State laws often limit the items that qualify as payment. For example, many states will not allow wage payments in the form of groceries, although they do allow prepared meals as payment. And you need to keep detailed records. In-kind arrangements often must be in writing, signed by both the employer and the employee.

In-kind arrangements are taxable just like regular wages, with some exemptions for payroll taxes when noncash wages are paid for agricultural labor. Because of the complexity of claiming this exemption, and because using the exemption carries the risk of an audit by the Internal Revenue Service, we strongly recommend that any farmer choosing to take advantage of the exemption seek the help of an attorney or accountant along the way.

Providing housing may subject you to federal Occupational Safety and Health Act (OSHA) inspections, as well as Migrant and Seasonal Agricultural Worker Protection Act (MSPA) requirements that set specific housing standards.

For through federal and (forthcoming) state specific information on the allowability, valuation, and tax aspects of in-kind wages, check out our Farmers’ Guide to In-Kind Wages.

Our  Selected Essentials in Farm Employment Law resources will be updated with state-specific rules soon.

You may need to speak with an attorney about in-kind payments if these are a feature of your workforce strategy. 

DISCLAIMER: This guide does not provide legal advice or establish an attorney-client relationship between the reader and author. Consult an attorney for advice specific to your situation and the state in which you operate.