Understanding the difference between non-agricultural and agricultural labor is essential because how labor is defined on a farm determines if you must meet certain employment obligations under the federal Fair Labor Standards Act (FLSA) and related state statutes. The rules for minimum wage, overtime, and other worker protections depend on the type of labor assigned. Let’s explore the federal government’s definition of agricultural labor, which controls federal law and is influential to the states.
Unfortunately, the law is always written with some degree of ambiguity. At times this is purposeful; it allows for flexibility as societal circumstances change. Other times, this is simply a result of language being inherently imprecise. No matter the reason, the result is that a fair amount of interpretation is involved in understanding the law.
When looking for legal answers on your own, it is helpful to start by reading the statute (quoted below). Once you’ve done that, you will likely still be confused. Don’t despair, though; you have somewhere to turn. A group of court opinions asking a similar question is called, collectively, case law. And, lucky for us, case law asking the question we’ve posed, “what is agricultural labor?” does exist! Our court system essentially collects examples of conflicts and sorts them out, determining where a rule applies or doesn’t. To predict whether the work on your farm should be classified as agricultural, it helps to find a court that has considered the particular type of labor you are trying to categorize or extrapolate from the available examples.
As we work through this case law here, we will find geographically scattered and factually unique circumstances. From this tangle, we must glean general rules that inform our decision-making. It is a tall order, but this guide will help you on this journey!
As we said earlier, the statute’s text is the best place to start. It is an extended definition that we will spend the rest of this guide helping you unravel.
“Agriculture” includes farming in all its branches and among other things includes the cultivation and tillage of the soil, dairying, the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities…, the raising of livestock, bees, fur-bearing animals, or poultry, and any practices (including any forestry or lumbering operations) performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market.
This definition has two distinct parts; judges have labeled them the primary and secondary meanings of agriculture. Primary agricultural labor falls under traditional conceptions of farming: growing, tending, and harvesting crops or raising livestock. Of course, a farming operation requires jobs beyond these principal ones, and some of this other work will qualify as secondary agricultural labor if sufficiently related to the primary activities.
To get our initial bearings, we will establish what jobs are firmly in the agricultural labor category, followed by those that clearly aren’t. After defining those opposing poles, we will dive into the murky middle ground of farm jobs that aren’t clearly in either camp. All along, we’ll sort through court-decided examples and share some tools to help you categorize the jobs unique to your farm.
Clearly Agricultural Labor
What is the purpose of the work?
Non-agricultural work done on a farm doesn’t automatically become crowned as agricultural simply by virtue of the work’s location. The purpose of the work must be considered. If the goal is to engage in growing and harvesting activities, ditch digging, grading, or heating a broiler could all become agricultural labor. However, yard work around the farm’s residence is not agricultural despite its similarity to many activities on the farm. Same tools, same actions (weed removal, mowing, raking, etc..), but a different labor classification because of the purpose of the activity.
One general principle that helps delineate these examples is ownership of the operation doing the work. If the ditch digging were done by an independent ditch digging company, that labor does not magically become agricultural just because that company is working on a farm one day. That would lead to the ludicrous conclusion that the company’s employees would be subject to minimum wage protections while working along a roadside, but they would not be covered on the days they spent on a farm. However, suppose the farmer assigns a farm worker to dig or trench a ditch on the farm instead (assuming here for drainage purposes to control erosion on the farm to protect crops). In that case, that same labor is agricultural labor.
However, if the unlucky ditch-digging farm worker is next assigned landscaping duties around the farmer’s private home on the farm property, his work shifts to non-agricultural. Even though the work assigned is likely physically identical to work done on the farm, the purpose is not to grow or harvest crops. The purpose is to beautify a private residence. It is important not to rely only on the type of work but to consider the work’s end goal.
For example, heating broilers conjures an image of railroad workers more than farm laborers, but if the broiler is used to sterilize greenhouse soil, this work is deemed agricultural. The purpose query alone has its limits, however. Work done towards the goal of growing and raising crops, but that is “merely preliminary,” is non-agricultural. For work to be preliminary, it is often also done by a third party; the operation’s owner is not a farmer. Independent soil testing, botanical genetics research, or insecticide spraying by a company dedicated to that service would be non-agricultural. The purpose and ownership tests work in conjunction; you need both for the work to be considered agricultural.
Therefore, a company that partially owns a farm (1/3rd interest) but whose purpose is primarily to construct boxes and ship produce from the farm is not an agricultural employer. Ownership without an agricultural purpose does not exempt the employer from FLSA worker protections. At the same time, a company whose sole work is to remove compost from mushroom houses is an agricultural employer. The company in this case is owned for a specific purpose—to prepare beds for the propagation of mushrooms. Even though they don’t directly grow or harvest the mushrooms, their employees still engage in agricultural labor.
Another example that will flesh this out even more: mechanics. Farmers need mechanics to run their agriculture business smoothly, but mechanics aren’t growing or harvesting crops. The analysis begins with the purpose and ownership questions: is the purpose of this mechanic solely to maintain and repair farm equipment for a particular farm? Or does this mechanic repair all types of motorized tools and vehicles for any number of clients? Does this mechanic independently own her own shop? If a farmer employs the mechanic to repair and maintain that farmer’s fleet of vehicles and tools, then that mechanic is an agricultural laborer—anything beyond that in non-agricultural.
That example illustrates the process you would take to analyze questionable labor on a farm. If a farmer assigns work that might or might not be agricultural, it is helpful to ask these questions about the work:
- Is the operation assigning the work a farm and not an independent entity?
- If it is a farm, is the purpose of the operation to prepare beds, grow crops, raise animals or harvest crops (i.e., agricultural)?
- If it is a farm and the purpose of the operation is agricultural, is the purpose of the specific work assigned to prepare to grow crops, grow crops, raise livestock, and/or harvest crops?
If the answers to the last two questions are both yes, then the labor is likely agricultural.
And “likely” is about as definitive as we can get with a guide like this. This is a process of understanding where the law has been and predicting where it will go. The method relies on analogy and isn’t always conclusive. We need to discuss a few more nuanced situations to illustrate the contours of agricultural labor, so continue reading!
Once it’s decided that the assigned work is clearly agricultural, for example, the employees in question grow and cultivate crops, the purpose question disappears. The farmer can grow with any method or for any purpose. They can raise crops as experiments rather than for sale. They can grow crops and harvest them before they are mature, as in the case of bean sprouts, seedlings, mushroom spawn, or seeds, and the labor to do so is still agricultural. Even though wild foraging is not agricultural labor, transplanting wild plants and cultivating them brings the formerly wild plants back under the umbrella of agriculture.
What processing is agricultural?
After the product is grown, it needs to be harvested and prepared for market. Harvesting is defined in federal regulations as “the process of making a growing crop a possession.” Everything, from picking fruit to digging up a tree grown in a nursery, counts as agricultural labor. This labor is straightforward; and clearly agricultural. Some conflicts have arisen around the question of on-farm transportation from the field where the crop is cut to an on-farm pack shed. This type of transportation is still agricultural labor. The statute explicitly names transportation to market as agricultural, but anything beyond on-farm transportation or delivery to market is non-agricultural.
Livestock “harvesting” is a bit different. There’s a discussion below on slaughtering and butchering as preparation for market, an activity that is protected as agricultural labor in the statutory text. But for now, let’s set your mind at ease about those non-meat livestock commodities: milk, wool, eggs, or honey. Collecting any of these in their raw state is agricultural harvesting.
Early in this text, we told you that processing would likely be non-agricultural labor. There are very limited exceptions to this rule. If the processing is superficial and done by the farmer who grew or raised the product, it will likely be considered agricultural labor. On the other hand, if the processing is thorough and changes the physical or chemical nature of the product, even if done by the farmer that grew or raised the product, then it will likely be considered non-agricultural labor. Can the processing be considered simple “preparation for market”? Or is the processing adding value to the agricultural commodity? If a farm assigns processing work on farm, these questions must be asked:
- Is this a product the farmer grew and harvested?
- Is the farming operation the same operation as the one that will process the agricultural commodity?
- If both answers are yes, then is the processing only a slight alteration of the commodity? Will it be physically and chemically more or less the same as before the process?
If the farmer grew the product and only made slight alterations to it, then that farmer is likely assigning only agricultural labor. Use the examples provided here to compare to the processing done on the farm in question to help determine the nature of the work.
Dairy production is overtly included in the statute’s primary definition of agriculture and covers the care of milking cows or goats, putting milk in containers, cooling it, and storing it. Even separating cream from milk and making butter or cheese are all agricultural labor, but only if the farmer employer in question also produced the milk used in this processing.
Independent slaughterhouses are always considered non-agricultural employers, but on-farm slaughterhouses that kill and butcher are usually deemed agricultural. Processing sugarcane into raw sugar is regarded as non-agricultural processing. Similarly, making jam or syrups from the fruit you’ve grown is a complex process that is non-agricultural labor. The resulting fruit is fundamentally different, and the product is more valuable than the fruit itself. On the other hand, live cows are not marketable; a farmer must kill and butcher to sell the livestock.
When is the labor of selling agriculture?
Finally, we’ve arrived at selling the product. When is selling non-agricultural labor? As it turns out, quite often. The act of transporting product triggers a shift toward non-agricultural labor. The statute explicitly protects delivery to market, but anything beyond that strays into the non-agricultural territory. Delivering to a farmer’s market is agricultural labor but working at the farmer’s market stand or selling to an independent grocery store is non-agricultural. Predictably, however, sales that do not require transportation off farm-owned premises, like on-farm sales at a roadside stand, remain agricultural. Thus, there’s a case holding that a farm-owned flower shop where only the farmer’s flowers are arranged and sold is still agricultural labor, despite being miles from the greenhouses where the flowers are grown.
A key to this part of the analysis is whether what is being sold was grown by the farmer. If the farmer grew the commodities and sells them on their own property, then the work remains agricultural. Involving third parties by buying extra products to sell or relying on them for a market often destroys the agricultural FLSA exemption. The proportionate number of outside commodities one sells does factor into whether your employees are agricultural or not. A “mere presence” of other grower’s products or an intermittent purchase to make up for unforeseen shortages does not turn previously agricultural labor into non-agricultural labor.
Determining the exact amount that would shift the labor into a different classification is difficult. One court case tells us that ½% of outside commodities do not make the packing operation non-agricultural; another states that 20% of 3rd party rice in the packhouse does. So, we still have quite a range that isn’t clearly in either camp. If a farmer buys 20% or more of an outside product, you are assigning non-agricultural labor. If they buy less than 20% outside product, they could still assign non-agricultural labor without realizing it. Only if the outside product a farmer procures is minimal should they feel confident their work remains agricultural.
If the methods used to sell and market your commodities ride the line between agricultural and non-agricultural labor, ask these questions:
- Were any products purchased from other suppliers?
- If there were other products purchased, was it only to make up for a shortfall?
- Or, on the other hand, is there routinely a substantial amount (20% of stock, or more) of outside product purchased for resale?
- Does the farmer own the location where their product is sold?
If no outside products are bought, and the farmer owns the location where the product is sold, then the labor is likely agricultural. However, if outside product is purchased for resale, a question remains about whether the labor can be considered agricultural. Remember, one case drew a clear line at 20% of product. If outside product for sale at an on-farm location only makes up 1-19% of the stock, it will be difficult to determine if that labor would be considered agricultural or not. An attorney could render an opinion, or the farmer could treat these employees as non-agricultural to preemptively manage that risk.
What about state law?
This guide deeply delves into federal law, but we have not touched on individual state laws! Some states have more restrictive definitions of agricultural labor. Others have more expansive definitions. For example, currently, Massachusetts has a definition of agricultural labor that restricts it to only field-based activities; any post-harvest work is non-agricultural and subject to minimum wage and overtime protections. On the other hand, Vermont’s definition of agricultural labor does include selling at a farmer’s market. The lesson is that you must also consult state laws when organizing your labor into agricultural and non-agricultural categories.
After reading this guide, if you are still unsure where farm labor falls, it might be wise to consult an attorney to help correctly make that determination. An attorney can look at a farmer’s exact situation, research the law in depth, and give a professional opinion on whether the court would find particular employees are performing agricultural labor and are thus owed at least the non-agricultural minimum wage. The downside, of course, is that attorney consultation costs money, and few attorneys have expertise in this niche area of law.
If you don’t want to go down the path of more research and potentially hire an expert to do the research for you, there is another option. Farmers can play it safe by treating all the labor they assign as non-agricultural. This would mean farmers choose to pay at least the minimum wage for ALL work, no matter its classification. Now I know, even though it’s easy to say, it’s hard to do. Many farms struggle with the resources to pay to market wages, and their own labor as owners may be earning less than the minimum wage.
Farmers who can’t take that route could minimize their risk exposure by clearly delineating agricultural work from non-agricultural work. Where unsure, classify the work as non-agricultural. If interested in this middle path, then farmers have to be very aware of the following: on the federal level, assigning any non-agricultural labor during a workweek nullifies the agricultural exemption for that entire workweek. That means if a farmer assigns a single hour of processing fruits into jam, the person who did that work is owed at least the minimum wage for the entire week in question, even if all the other work that person completed was clearly agricultural. Because of this rule, if a farmer is unable to meet minimum wage obligations, it would be best to carefully group non-agricultural work by weeks rather than spreading it out over the entire season. Alternatively, a farmer could hire different crews for field work and processing work.
This determination is complex, but with the information here you have a start in deciding which direction to go for your farm or ranch business.