An array of laws come into when farmers provide housing to their workers. These include zoning, federal Occupational Safety and Health Act (OSHA), and the federal Migrant and Seasonal Farmworker Protection Act.
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Look into the local zoning code
Most, if not all, zoning ordinances have something to say about housing and occupancy of residences. Some zoning laws include restrictions on how many people may in on the property or how many non-related people may live in a single residence. Zoning laws could also have limitations or prohibitions on temporary structures such as RVs, tents, and yurts. Bottom line, farmers who provide housing to their workers will need to look into their zoning ordinance to be sure their plans coincide with what is permitted. While farmers could play the game of wait and see, they run the risk of costly fines and disputes down the road. They could even be forced to take down a structure that doesn’t comply with the ordinance. One approach would be to get a copy of the ordinance and read it yourself. However, these ordinances are not always a fun and straightforward read. Farmers could also ask neighbors or other farmers who house workers. Or, they could call the local zoning office to ask their questions directly.
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Determine whether by providing housing to workers the farm is subject to the federal Occupational Safety and Health Act (OSHA)
Farmers must be aware that by providing housing to their workers, they may subject their farms to an inspection under the federal Occupational Safety and Health Act, commonly known as OSHA. Although OSHA is not generally enforceable against smaller farms, that exception does not apply when housing is provided in a “temporary labor camp.” Temporary labor camps are defined broadly. Basically, they include any housing that is provided to a temporary worker as a condition of employment. In other words, it’s a temporary labor camp if the worker for all intents and purposes has no other choice than to live in the housing provided by the farm based on the location or other circumstances of the job. For example, this could be the case if the farm is located in a rural area, and there’s practically no other affordable place nearby to live. If this is the case, the farmer will want to be sure that they are in full compliance with OSHA housing standards. Farmers wanting to learn more about OSHA enforcement when providing housing as well a basic overview of the housing standards can refer to Farmers’ Guide to In-Kind Wages. Some states also have their own OSHA laws with stricter enforcement policies than the federal law. Farmers who provide housing to their workers should contact their state’s department of labor to learn more about any state specific requirements.
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Determine whether the farm is subject to the federal Migrant and Seasonal Farmworker Protection Act
In addition, when a farmer provides housing to “migrant workers,” the farmer may subject the farm to the federal Migrant and Seasonal Agricultural Worker Protection Act (called the MSPA). Despite what many may believe, “migrant workers” are not limited to out-of-state or foreign workers. Migrant workers include anyone who must stay overnight away from their regular home in order to make it feasible for them to work on the farm. A migrant worker could be someone who regularly lives just an hour or two away from the farm, if such a lengthy drive makes it impractical for them to fulfill their obligations on the farm each day they’re required to work.
A few exemptions to the MSPA are available. Just as for the federal minimum wage, farms that have fewer than 500 man-days in each calendar quarter of the previous year are exempt. In addition, farms that are exclusively owned and run by a single farmer or his or her immediate family members (i.e. legal spouse, children (biological, step, adopted, foster), and parents) are also exempt. Finally,
if the housing provided is also provided to the general public, the farm is exempt from having to comply with the MSPA.
Farmers who provide housing to “migrant workers” and don’t meet one of the available exemptions must arrange for an inspection of the housing provided and obtain a certification of occupancy. They must do this each year. The farmer must also maintain certain housing conditions and follow recordkeeping and disclosure requirements. Farmers wanting to learn more about the applicability and requirements of the MSPA can refer to Farmers’ Guide to In-Kind Wages. In addition, like OSHA, some states have their own migrant and seasonal worker laws that may be stricter than the federal requirements. Farmers who provide housing to their workers should contact their state’s department of labor to learn more about any state specific requirements.