Preparing For Seasonal Agricultural Labor

by Varnum LLP

The U.S. government's expected focus on immigration and employment law enforcement in 2013 will continue to significantly impact agricultural employers. In 2012, the U.S. Immigration and Customs Enforcement, Homeland Security Investigations completed random and directed work authorization compliance audits often leaving employers with limited options of E-Verify or repeated audits and searching for workable immigration solutions for seasonal workers. In addition to routine audits and citations, the U.S. Department of Labor (USDOL) imposed "hot goods" sanctions across the country last year stopping produce in its tracks. With no change in administration and no legislative relief, agricultural employers need to plan to meet their worker needs and assure compliance.

The unauthorized status of many agricultural workers creates risks of liability and worker unavailability. While Deferred Action for Childhood Arrivals (DACA) provides the opportunity for temporary work authorization for qualifying 15 to 30 year-olds, many agricultural workers in the U.S. do not qualify and have no other path to work authorization. The only immigration program currently available to agricultural employers is the H-2A program which is complex and makes employers targets for government and worker enforcement actions. Farmers need to carefully assess labor needs and implement recruitment or H-2A plans early to secure necessary seasonal workers.

In completing recruitment functions, agricultural employers must comply with the Migrant and Seasonal Worker Protection Act (MSAWPA). MSAWPA requires agricultural employers, farm labor contractors and those deemed to be acting on their behalf to disclose in writing the terms and conditions of anticipated employment. USDOL has increased investigation and enforcement related to the recruitment requirements. Often, USDOL imposes contractual-like obligations for any terms claimed by workers as a result of the recruitment process. Accordingly, employers should review their practices and documents, develop 2013 disclosure documents, review farm labor contractor registration requirements, and design a communication plan to assure those authorized to recruit for the employer or farm labor contractor are equipped with the written terms and conditions of employment to distribute at the time of recruitment.

Employers should also use their off season to prepare employment practices necessary to assure employment law compliance. We continue to experience USDOL audits and child labor, minimum wage, record keeping and housing safety citations. Despite some USDOL officers' indications of an opportunity to cure deficiencies, USDOL typically issues citations without an opportunity for the employer to remedy or explain the situation. Employers may present contrary evidence or facts placing the issues in context during appeals but any reversal or negotiation of the citation often comes too late to avoid the legal and customer costs created by USDOL citations. In addition, employers in 2012 were subject to "hot goods" enforcement actions preventing the sale and distribution of perishable goods allegedly produced in violation of the Act and then faced difficulties with attempts to define the scope of the enforcement or resolve the violations. This strict scrutiny enforcement is expected to continue in 2013 so that employers should be careful and thorough in implementing policies and vigilant in compliance practices when the season arrives.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Varnum LLP | Attorney Advertising

Written by:

Varnum LLP

Varnum LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.