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LABOR LAWLABOR LAW

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Fair Labor Standards Act of 1938:Fair Labor Standards Act of 1938:

►What precipitated this law? What precipitated this law? (USDA Bulletin 550)(USDA Bulletin 550)

Poverty wages.Poverty wages. Child labor abuse.Child labor abuse. Sweat shops.Sweat shops. Company stores.Company stores.

►What did the law address? What did the law address? (USDA Bulletin 550, page 5)(USDA Bulletin 550, page 5)

Minimum wage.Minimum wage. Standard workweek.Standard workweek. Prescribed pay periods.Prescribed pay periods. Child laborChild labor

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Minimum Wage:Minimum Wage:(http://www.laborposter.com/site/federal.html)(http://www.laborposter.com/site/federal.html)

► Currently $7.25 an hour.Currently $7.25 an hour.► The minimum wage must be posted at the The minimum wage must be posted at the

primary work site. primary work site. ► The average full-time farm laborer in the The average full-time farm laborer in the

U.S. makes about $10.50 an hour.U.S. makes about $10.50 an hour.► In the general economy, $7.25/hr. x 172 In the general economy, $7.25/hr. x 172

hours per month = $1,247. Less 7.65% hours per month = $1,247. Less 7.65% social security tax = $1,152 take home social security tax = $1,152 take home pay per month.pay per month.

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What comprises wages?What comprises wages?(Idaho Code 44-1503)(Idaho Code 44-1503)

►Wage.Wage.► Tips.Tips.► Room & board = Room & board is not Room & board = Room & board is not

taxable to the employee if provided as a taxable to the employee if provided as a convenience to the employer. It, however, convenience to the employer. It, however, is tax deductible to the employer. is tax deductible to the employer. (Doane’s Tax Guide for Farmers, 0-(Doane’s Tax Guide for Farmers, 0-

9322050-3-9, page 142)9322050-3-9, page 142)

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Minimum Workweek:Minimum Workweek:(Idaho Code 44-1502)(Idaho Code 44-1502)

► Forty hours per week.Forty hours per week.►One and a half pay scale for everything One and a half pay scale for everything

greater than forty hours per week.greater than forty hours per week.

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Exempt Employees to Overtime Pay Exempt Employees to Overtime Pay Includes:Includes:

► Agriculture = includes:Agriculture = includes: Beekeepers.Beekeepers. Dairy.Dairy. Farm.Farm. Fish hatchery.Fish hatchery. Greenhouse.Greenhouse. Livestock. Livestock. Nursery.Nursery. Packing Shed.Packing Shed.

► An employee who performs covered work An employee who performs covered work during the week is covered for all hrs. during the week is covered for all hrs. during the week.during the week.

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When Exempt Employees are Covered by theWhen Exempt Employees are Covered by the Minimum Wage:Minimum Wage:

(Bulletin #1, page 1)(Bulletin #1, page 1)

► 500 man day test per quarter of the year. If 500 man day test per quarter of the year. If this is exceeded, the minimum wage applies this is exceeded, the minimum wage applies for the next tax year.for the next tax year. Working > one hour per day = one man Working > one hour per day = one man

day.day. Usually about eight full-time employees.Usually about eight full-time employees. Excluded are: Excluded are:

►Parents.Parents.►Spouse.Spouse.►Children.Children.►Immediate family living in the household.Immediate family living in the household.

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What about trade work?What about trade work?(Bulletin #2, page 7)(Bulletin #2, page 7)

►When farmer A’s employee is working for When farmer A’s employee is working for farmer B today, he goes on B’s man day farmer B today, he goes on B’s man day count.count.

► If the employee works for both greater than If the employee works for both greater than one hour in the day, he/she counts for both one hour in the day, he/she counts for both farmers.farmers.

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Also:Also:(Bulletin #1)(Bulletin #1)

► A contractor is responsible for their own crew. A contractor is responsible for their own crew. ► Room and board counts towards minimum wage. Room and board counts towards minimum wage.

You cannot count room and board against all You cannot count room and board against all members in the same household. members in the same household.

► Piece work rate must equal at least minimum Piece work rate must equal at least minimum wage.wage.

► You cannot pay < minimum wage and give a You cannot pay < minimum wage and give a bonus late in the season to make up the bonus late in the season to make up the difference.difference.

► Meal time is non-work time unless they work Meal time is non-work time unless they work during the meal. during the meal.

► Time spent driving to work doesn’t count even if Time spent driving to work doesn’t count even if the farmer provides the transportation.the farmer provides the transportation.

► Time spent driving other employees to work by Time spent driving other employees to work by an assigned driver does count.an assigned driver does count.

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Child Labor Laws in Agriculture:Child Labor Laws in Agriculture:(Bulletin #1)(Bulletin #1)

►Must be at least 16 years of age to work Must be at least 16 years of age to work during school hours in a hazardous job.during school hours in a hazardous job.

► 14 – 15 years old in non-hazardous jobs 14 – 15 years old in non-hazardous jobs outside school hours for the school district in outside school hours for the school district in which the child is living while employed.which the child is living while employed.

► 12 – 13 years old in non-hazardous jobs 12 – 13 years old in non-hazardous jobs outside school hours with written parental outside school hours with written parental consent or where the parent or guardian is consent or where the parent or guardian is employed.employed.

► 10 – 11 years old living locally for no more 10 – 11 years old living locally for no more than eight weeks between June 1 and than eight weeks between June 1 and October 15. Must be outside of school hours October 15. Must be outside of school hours and applies to hand harvested crops.and applies to hand harvested crops.

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Garnishment:Garnishment:(Bulletin #1, page 14)(Bulletin #1, page 14)

► The lessor of:The lessor of: 25% of disposable earnings.25% of disposable earnings. Thirty times the minimum wage.Thirty times the minimum wage.

Pay periods must be:Pay periods must be:

► At least once a month.At least once a month.

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When separated from employment, pay must When separated from employment, pay must be rbe rendered by the earlier of:endered by the earlier of:

(Idaho Code 45-606)(Idaho Code 45-606)

► The next payday.The next payday.►Within ten days.Within ten days.►Within 48 hours excluding weekends or Within 48 hours excluding weekends or

holidays under written demand.holidays under written demand.

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Withholding of Wages:Withholding of Wages:(Idaho Code 45-609)(Idaho Code 45-609)

►Only if required by law.Only if required by law.► The employer has written authorization from The employer has written authorization from

the employee.the employee.

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Immigration Reform Control Act of 1986:Immigration Reform Control Act of 1986:(Handbook for Employers)(Handbook for Employers)

► I-9, Section #1:I-9, Section #1: For all employees hired for For all employees hired for remunerationremuneration

after 11/6/1986.after 11/6/1986. Have the employee fill out Section #1. If Have the employee fill out Section #1. If

they cannot read or write, you can fill out they cannot read or write, you can fill out the information, but they must sign it.the information, but they must sign it.

You must then fill out the preparer section You must then fill out the preparer section and sign it.and sign it.

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Immigration Reform Control Act of 1986 Immigration Reform Control Act of 1986 Continued:Continued:

► Within three business days:Within three business days: Have the employee submit one document Have the employee submit one document

from List A (identity and eligibility), or one from List A (identity and eligibility), or one document from List B (identity) and one document from List B (identity) and one document from List C (eligibility).document from List C (eligibility).

If a document cannot be provided within 3 If a document cannot be provided within 3 business days, a receipt for documentation business days, a receipt for documentation may be used. The actual document must be may be used. The actual document must be produced within 90 days. Cross out the word produced within 90 days. Cross out the word receipt & its number, enter the new document receipt & its number, enter the new document number & initial the date and change.number & initial the date and change.

If a potential employee cannot provide If a potential employee cannot provide documents or receipts, you cannot legally hire documents or receipts, you cannot legally hire them.them.

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Immigration Reform Control Act of 1986 Immigration Reform Control Act of 1986 Continued:Continued:

► You may recertify an old employee on an old You may recertify an old employee on an old I-9:I-9: Provided 3 years has not expired.Provided 3 years has not expired. If the authorization document has If the authorization document has

changed:changed:►Record the date of rehire.Record the date of rehire.►Record the document title, number, Record the document title, number,

and expiration date.and expiration date. Sign and date section #3.Sign and date section #3.

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Immigration Reform Control Act of 1986 Immigration Reform Control Act of 1986 Continued:Continued:

► If a minor under age 18 cannot provide one If a minor under age 18 cannot provide one document from List A or List B:document from List A or List B: The parent or guardian must do section The parent or guardian must do section

#1, and write “individual under age 18” in #1, and write “individual under age 18” in the employee signature space.the employee signature space.

The parent or guardian must complete the The parent or guardian must complete the preparer section.preparer section.

You should write “individual under age You should write “individual under age 18” after the words “document number.”18” after the words “document number.”

The minor must present a List C The minor must present a List C document.document.

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Immigration Control Act of 1986 Continued:Immigration Control Act of 1986 Continued:

► You do not need to fill out an I-9 for:You do not need to fill out an I-9 for: Casual domestics (housecleaners or Casual domestics (housecleaners or

babysitter)babysitter) Individuals hired prior to 11/6/1986.Individuals hired prior to 11/6/1986. Independent contractors.Independent contractors. Employee leasing.Employee leasing.

►Maintain I-9’s for:Maintain I-9’s for: Three years after the date of hire or one Three years after the date of hire or one

year after the employment ends, year after the employment ends, whichever is later.whichever is later.

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Immigration Reform Control Act of 1986 Immigration Reform Control Act of 1986 Continued:Continued:

► Fines:Fines: Failure to have an I-9 ($375 per employee).Failure to have an I-9 ($375 per employee). Failure to complete I-9 ($375 to $1,000 per Failure to complete I-9 ($375 to $1,000 per

employee).employee). Knowingly hiring illegals (fine to $3,000 per Knowingly hiring illegals (fine to $3,000 per

employee and/or six months in jail).employee and/or six months in jail).► Most common mistakes:Most common mistakes:

No I-9.No I-9. Waiting over 3 business days to complete I-Waiting over 3 business days to complete I-

9.9. Telling them what documents to submit.Telling them what documents to submit.

► Document review:Document review: If the document looks genuine, accept it.If the document looks genuine, accept it. Photocopying of documents is okay.Photocopying of documents is okay.

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Uniformed Services Employment & Re-Uniformed Services Employment & Re-employmentemployment Act: Act:

► Applies to:Applies to: Reservists.Reservists. National Guard personnel.National Guard personnel. Those reporting for physicals.Those reporting for physicals.

►Have the right to:Have the right to: Be re-employed upon their return to the same Be re-employed upon their return to the same

job, seniority, status, vacation, and pay.job, seniority, status, vacation, and pay.►Not be denied a promotion during military absenceNot be denied a promotion during military absence► Can’t be demoted or fired without cause for 1 yearCan’t be demoted or fired without cause for 1 year► Reservists can’t be demoted or fired within six Reservists can’t be demoted or fired within six

months of their return from training w.o. cause.months of their return from training w.o. cause.

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Uniformed Services Employment & Uniformed Services Employment & Reemployment Reemployment Act ContinuedAct Continued::

►Hospital dischargees must apply with 90 Hospital dischargees must apply with 90 days of release.days of release.

► Reservists and guard personnel on active Reservists and guard personnel on active duty > 90 days must apply within 31 days duty > 90 days must apply within 31 days from release.from release.

► Reservists and guard personnel on weekend Reservists and guard personnel on weekend or annual training must return to work at the or annual training must return to work at the completion of reasonable travel time home completion of reasonable travel time home from training or hospitalization related to from training or hospitalization related to the training.the training.

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Uniformed Services Employment and Uniformed Services Employment and Reemployment Reemployment Act Continued:Act Continued:

► Re-employment qualifications:Re-employment qualifications: Must be qualified for the job.Must be qualified for the job. If not qualified, the employer must try to If not qualified, the employer must try to

assign the employee to a similar job.assign the employee to a similar job. Probationary employees are extended the Probationary employees are extended the

same rights.same rights. Veterans in temporary jobs are not Veterans in temporary jobs are not

entitled to re-employment.entitled to re-employment. Re-employment of veterans as a Re-employment of veterans as a

disruption to the current workforce is not disruption to the current workforce is not grounds for non-compliance.grounds for non-compliance.

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Workplace Searches:Workplace Searches:(Bulletin 5, page 8)(Bulletin 5, page 8)

►Have your authority defined in your policy Have your authority defined in your policy manual. This policy should state that manual. This policy should state that lockers are subject to search.lockers are subject to search.

► Post signs.Post signs.► Supply locks.Supply locks.► Establish reasonable grounds for a search.Establish reasonable grounds for a search.► Apply your search policy uniformly.Apply your search policy uniformly.► Consider using a private security company.Consider using a private security company.► Spell out your penalty for refusal to consent Spell out your penalty for refusal to consent

to a search.to a search.

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Civil Rights Act of 1964, Title VII:Civil Rights Act of 1964, Title VII:(Bulletin #6)(Bulletin #6)

► 1984 guidelines. They do not have the force of 1984 guidelines. They do not have the force of law, but are used as a benchmark by judges.law, but are used as a benchmark by judges.

► Sexual harassment:Sexual harassment: Submission to a sex act is a condition of Submission to a sex act is a condition of

employment.employment. Submission or rejection is used for Submission or rejection is used for

employment decisions affecting the employment decisions affecting the individual.individual.

Such expectations create an intimidating, Such expectations create an intimidating, hostile, or offensive working environment.hostile, or offensive working environment.

The courts have held an activity can The courts have held an activity can constitute sexual harassment if it is unduly constitute sexual harassment if it is unduly directed at any sexual group.directed at any sexual group.

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Civil Rights Act of 1964, Title VII Continued:Civil Rights Act of 1964, Title VII Continued:► Examples of sexual harassment:Examples of sexual harassment:

Subtle suggestions for sexual activity.Subtle suggestions for sexual activity. Unnecessary patting or pinching.Unnecessary patting or pinching. Friendly arms around the shoulder.Friendly arms around the shoulder. Offers of money for sex.Offers of money for sex. Demanding sexual activity by implied Demanding sexual activity by implied

threats concerning the individuals job status.threats concerning the individuals job status. Demanding sexual activity by promises for Demanding sexual activity by promises for

preferential treatment regarding the job.preferential treatment regarding the job. Accidental or deliberate brushes or touches.Accidental or deliberate brushes or touches. Assault or molestation.Assault or molestation.

► The guidelines do not prohibit relations The guidelines do not prohibit relations between employees, they address unwelcome between employees, they address unwelcome conduct.conduct.

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Civil Rights Act of 1964, Title VII Continued:Civil Rights Act of 1964, Title VII Continued:

► Employer compliance:Employer compliance: Address the issue in the policy manual.Address the issue in the policy manual. Express strong disapproval in training Express strong disapproval in training

sessions and evaluation reports.sessions and evaluation reports. Develop appropriate sanctions.Develop appropriate sanctions. Inform employees of their rights under Title Inform employees of their rights under Title

VII.VII. Develop training sessions.Develop training sessions. Not to dismiss an employee for filing a Not to dismiss an employee for filing a

complaint.complaint.► Complaints must be filed within 180 day of the Complaints must be filed within 180 day of the

alleged incident.alleged incident.

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Civil Rights Act of 1964, Title VII Continued:Civil Rights Act of 1964, Title VII Continued:

► Employer is responsible for:Employer is responsible for: Actions of its agents.Actions of its agents. Actions of its supervisors = even if the Actions of its supervisors = even if the

acts were prohibited.acts were prohibited. Actions of its employees = if the employer Actions of its employees = if the employer

knew or should have known of the activity.knew or should have known of the activity. Actions of non-employees = if the Actions of non-employees = if the

employer knows or should have known of employer knows or should have known of the conduct and fails to take immediate the conduct and fails to take immediate corrective action.corrective action.

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Family & Medical Leave Act:Family & Medical Leave Act:(Bulletin #7)(Bulletin #7)

► Up to 12 weeks of unpaid leave within a 12 month Up to 12 weeks of unpaid leave within a 12 month period.period. The employer can require that sick leave or The employer can require that sick leave or

vacation be utilized first.vacation be utilized first.► Reasons for taking leave:Reasons for taking leave:

Care for a child, or placement, or adoption, or Care for a child, or placement, or adoption, or foster care.foster care.

Care for a spouse or parent with serious illness.Care for a spouse or parent with serious illness. Employee’s health condition that makes it Employee’s health condition that makes it

impossible for them to do their job.impossible for them to do their job. Exigency created when a spouse, son, daughter, Exigency created when a spouse, son, daughter,

or parent is on or called to active duty.or parent is on or called to active duty.► Up to 26 weeks of unpaid leave to care for a spouse, Up to 26 weeks of unpaid leave to care for a spouse,

son, daughter, or parent injured or ill from active son, daughter, or parent injured or ill from active duty. duty.

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Family & Medical Leave Act Continued:Family & Medical Leave Act Continued:

► Eligibility Eligibility (Bulletin #8)(Bulletin #8)

Employer must have > 50 employees Employer must have > 50 employees within a 75 mile radius working each day within a 75 mile radius working each day during a 20 week period during the during a 20 week period during the previous or current year. previous or current year.

Employee must have worked during the Employee must have worked during the last 12 months and worked at least 1,250 last 12 months and worked at least 1,250 hours the previous year.hours the previous year.

Employers must display a poster Employers must display a poster regarding FMLA rights or be subject to a regarding FMLA rights or be subject to a $100 fine.$100 fine.

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Family & Medical Leave Act Continued:Family & Medical Leave Act Continued:

► Advance Notice:Advance Notice: 30 days notice involving foreseeable 30 days notice involving foreseeable

requests.requests. Employer can request a medical certification.Employer can request a medical certification. Employer can request a 2Employer can request a 2ndnd doctor’s opinion, doctor’s opinion,

provided the employer covers the cost.provided the employer covers the cost.► Protection of Benefits:Protection of Benefits:

Maintain the employee’s health benefit.Maintain the employee’s health benefit. Return the employee to same job, pay, and Return the employee to same job, pay, and

benefits, if possible.benefits, if possible.► Enforcement:Enforcement:

Employee can sue for lost wages, attorney Employee can sue for lost wages, attorney fees.fees.

Appeal can be made to the Wage and Hour Appeal can be made to the Wage and Hour Division of the Department of Labor.Division of the Department of Labor.

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Equal Pay Act of 1963:Equal Pay Act of 1963:(Grower Magazine, May 2006)(Grower Magazine, May 2006)

► Requires all employers covered under FLSA Requires all employers covered under FLSA to provide equal pay for equal work, to provide equal pay for equal work, regardless of gender.regardless of gender. Exceptions are granted for:Exceptions are granted for:

►Seniority.Seniority.

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Age Discrimination Act of 1967:Age Discrimination Act of 1967:(The Grower Magazine, May 2006, page 32)(The Grower Magazine, May 2006, page 32)

► Amended in 1986 and 1990.Amended in 1986 and 1990.► Prohibits private and public employers from Prohibits private and public employers from

discriminating against employees 40 years discriminating against employees 40 years of age or older.of age or older.

► An exception exists where a bona fide age An exception exists where a bona fide age qualification is justified.qualification is justified.

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Pregnancy Discrimination Act of 1978:Pregnancy Discrimination Act of 1978:(The Grower Magazine, May 2006, page 32)(The Grower Magazine, May 2006, page 32)

►Deals with employment discrimination due Deals with employment discrimination due to pregnancy, childbirth, and related to pregnancy, childbirth, and related medical conditions.medical conditions.

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Americans With Disabilities Act of 1990:Americans With Disabilities Act of 1990:(The Grower Magazine, May 2006, page 32)(The Grower Magazine, May 2006, page 32)

► Prohibits employment discrimination based Prohibits employment discrimination based upon physical or mental disabilities or upon physical or mental disabilities or chronically ill.chronically ill.

► Requires employers to make reasonable Requires employers to make reasonable accommodations.accommodations.

► Applies to employers with 15 or more Applies to employers with 15 or more employees.employees.

► Employer must demonstrate that the Employer must demonstrate that the physical or mental disability is not and physical or mental disability is not and cannot be acceptable for the job.cannot be acceptable for the job.

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Civil Rights Act of 1991:Civil Rights Act of 1991:(The Grower Magazine, May 2006, page 32))(The Grower Magazine, May 2006, page 32))

► Requires employers demonstrate that Requires employers demonstrate that assigned tasks are job related and assigned tasks are job related and consistent with business needs.consistent with business needs.