Monday, September 26, 2016

The “Agriculture” Exemption From The Requirement To Pay Overtime Wages

The Fair Labor Standards Act of 1938 (FLSA) (29 U.S.C. §§201, et seq.) as originally enacted, was intended to alleviate some of the more harmful effects of the Great Depression.  In particular, the Act was intended to raise the wages and shorten the working hours of the nation's workers.  Since 1938, the FLSA has been amended frequently and extensively.  It is very complex and not all of it pertains to agriculture. In today’s blogpost, we examine the FLSA exemption from the requirement to pay the minimum wage, whether non-workday activities must be compensated, and the exemption to pay overtime wages to employees that are engaged in “agriculture” activities.

Under the FLSA, an agricultural employer who uses 500 man-days or more of agricultural labor in any calendar quarter of a particular year must pay the agricultural minimum wage to certain agricultural employees in the following calendar year.  A “man-day” is a day during which an employee performs any agricultural labor for more than an hour, and all ag employees count in the 500 man-days test.  29 U.S.C. §203(e)(3)).  The minimum wage must be paid to all agricultural employees except: (1) members of the employer's immediate family, unless the farm is incorporated; (2) local hand-harvest, piece-rate workers who come to the farm from their permanent residences each day, but only if such workers were employed less than 13 weeks in agriculture in the preceding year; (3) children, age 16 and under, whose parents are migrant workers, and who are employed as hand-harvest piece-rate workers on the same farm as their parents, provided that they receive the same piece-rate as other workers; and (4) employees engaged in range production of livestock. Where  the  agricultural  minimum  wage  must  be  paid  to   piece-rate employees, the rate of pay for  piece-rate  work must be sufficient to allow a worker reasonably to generate that rate of hourly income.

The FLSA also requires covered employers to compensate employees for activities performed during the workday.  But, the FLSA does not require that compensation be paid to employees for activities performed outside the workday such as walking, riding or traveling to and from the actual place of performance of the employee’s principal activity, and for activities which occur before and after the employee’s principal activity.  On the question of whether an employee is entitled to compensation for time spent waiting at stations where required safety and health equipment is distributed, donned and doffed, and traveling to and from these stations to work sites at the beginning and end of each workday, the U.S. Supreme Court has ruled that such activities are indispensable to an employee’s principal activity and are, therefore, a principal activity itself.   IBP, Inc. v. Alvarez, et al., 546 U.S. 21 (2005).  However, the Court ruled that unless an employee is required to report at a specific time and wait to don required gear, the time spent waiting to don gear is preliminary to the first principal activity of the workday and is not compensable unless compensation is required by the employment agreement or industry custom and practice.

On the overtime issue, as noted above, the FLSA requires payment of an enhanced rate of at least one and one-half times an employee’s regular rate for work over 40 hours in a week.  However, an exemption denies persons employed in agriculture the benefit of mandatory overtime payment. 29 U.S.C. §213(b)(12).  The 500 man-days test is irrelevant in this context. In addition, there are specific FLSA hour exemptions for certain employment that is not within the FLSA definition of agriculture. 

But, just what exactly is “agriculture” for purposes of the exemption from paying overtime wages?  The agricultural exemption is broad, defining “agriculture” to include “farming in all its branches and the production, cultivation, growing, and harvesting of...horticultural commodities and any practices performed by a farmer or on a farm as an incident to or in conjunction with farming operations.”  There are numerous cases on the issue, including a recent one from Connecticut. 

In the Connecticut case, the plaintiff worked at a small farm, originally commuting to the farm from his home, where he assisted the resident caretaker. When the resident caretaker died, the plaintiff moved to the farm and assumed full responsibility for caring for the animals and grounds. At the farm were several retired racehorses, a mule, a donkey, two llamas, two cows, about 20 chickens, ten ducks, twenty pigeons and a dog. Also, on the farm was the deceased caretaker’s 1,000-pound pig. The plaintiff fed the animals twice daily, took them from the stable to pasture, sprayed the horses with fly spray and groomed them, and also check on the horses at night. The plaintiff also drove the farm truck to buy food and supplies for the all of the livestock. The plaintiff was also responsible for the animals’ medical care by lining up veterinarians. On a daily basis, the plaintiff called the owner to report on the animals. The plaintiff also maintained the farm grounds by shoveling snow, mowing grass, trimming trees, and controlling weeds. The plaintiff had some assistance in these tasks, but remained on the farm on a constant basis to care for the animals. After the owner died, the plaintiff filed a claim against the owner’s estate for overtime pay under the FLSA.  As noted above, the FLSA requires overtime pay for works hours exceeding 40 hours per week, but a worker who works in “agriculture” for a small agricultural operation is exempt from the overtime requirements. The court examined the FLSA definition of “agriculture” and noted that it includes “farming in all its branches and among other things includes…the raising of livestock, bees, fur-bearing animals, or poultry, and any practice…performed on a farm as an incident to or in conjunction with such farming operation.”  Based on that definition, the court held that the plaintiff was engaged in the primary agricultural practice of raising livestock, which the FLSA defines as “cattle, sheep, swine, horses, mules, donkeys, and goats.” The court also noted that the FLSA regulations define “raising” of livestock as “the breeding, fattening, feeding, and general care of livestock.” The court also held that the balance of the plaintiff’s work on the farm that did not involve feeding and general care of the animals also qualified for the agriculture exemption because they were performed on the farm and were incidental to the farming activities. 

The case is Chhum v. Anstett, No. 3:15-cv-00900 (JAM), 2016 U.S. Dist. LEXIS 104463 (D. Conn. Aug. 9, 2016).

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