Federal Farm/Forestry Labor Contractor Certification

STATE OF WASHINGTON
EMPLOYMENT SECURITY DEPARTMENT
WORKFORCE INVESTMENT ACT
POLICIES AND PROCEDURES
DATE: 12-02-91 Revised
NUMBER: 4065

This document has been formatted for use on this web site. It contains hyperlinks that enable the user to jump directly to specific areas within the document or to related documents. The information and guidance it contains has not been revised. There are definitions for terms that may be unfamiliar. This communication applies only to ESD staff, however, Workforce Development Councils (WDCs) and partner agencies are welcome to use the information when developing local policies and procedures.

SUBJECT: Federal Farm/Forestry Labor Contractor Certification

ORIGINATOR: WIA Title III (Wagner-Peyser) (Labor Exchange Unit)

BACKGROUND

The U.S. Department of Labor, Employment Standards Administration, has the responsibility for administration and enforcement of the MSPA. All persons proposing to engage in farm/forestry labor contracting activities, except when contracting solely within a 25 intrastate-mile radius of such person's permanent place of residence and for not more than thirteen weeks per year, must obtain a federal Farm Labor Contractor's (FLC) Certificate of Registration. This requirement must be met by any person other than an agricultural employer, an agricultural association, or an employee of an agricultural employer or association who, for any money or other valuable consideration paid or promised to be paid, recruits, solicits, hires, employs, furnishes or transports any migrant or seasonal agricultural worker.

Regardless of where the federal FLC certificate was issued, each contractor must also obtain a Washington license to legally provide farm/forestry labor contractor services in Washington State. All FLCs must comply with both federal and state requirements (see Policies and Procedures document number 7027-4, Washington Farm/Forestry Labor Contractor License).

Persons who are employed by a Farm Labor Contractor (FLC), and perform some or all of the duties cited above as an agent or subcontractor, must obtain a federal Farm/Forestry Labor Contractor Employee (FLCE) Certificate of Registration and a Washington State License (see Policies and Procedures document number 7027-4, Washington Farm/Forestry Labor Contractor License).

Certificates of Registration may not be transferred or assigned. Initial certificates expire twelve months from the date of issuance. Certificates of renewal expire within 24 months of issuance. All actions performed under a certificate are the responsibility of the original registrant and she/he can be deemed legally liable/responsible for all such actions in a court of law.

POLICY

Local Service Delivery Sites Responsibilities | Comparison of Federal and State Programs

It is the policy of the Employment Security Department to provide services to farm/forestry labor contractors that are consistent with the federal Migrant and Seasonal Agricultural Worker's Protection Act (MSPA) of 1983 (29 CFR Part 500) as amended in 1989.

NOTE: Contractors must also be licensed as specified in Washington's RCW 19.30 and WAC 296-310 as amended (see Policies and Procedures document number 7027-4, Washington Farm/Forestry Labor Contractor License).

PROCEDURES

Local Service Deliver Sites Responsibilities

In accordance with 29 CFR Part 500, local service delivery sites (primarily those in agricultural areas) will assist applicants for federal registration by assisting them in the legislated requirements they must fulfill and in the completion of specified forms. The assistance may include providing appropriate forms from the following list:

Form WH-510 MIS, Application For A Farm Labor Contractor Certificate of Registration--two (2) copies (Attachment 1);
An FD-258, Fingerprint Card must accompany application form WH-510 MIS. The fingerprinting may be done at any law enforcement agency. The agency doing the fingerprinting shall furnish the FD-258 Fingerprint Cards to applicants (Attachment 2) ;
Form WH-512, Application for a Farm Labor Contractor Employee Certificate of Registration (only if FLC intends to have an employee who will do contractor duties) (Attachment 3);
Automobile Liability Certificate of Insurance and Form WH-514a, Vehicle Mechanical Inspection Report for Transportation-- three (3) of these forms (only if FLC will transport workers) (Attachment 4);
Form WH-515, Doctor's Certificate--three (3) copies (only if FLC will transport workers) (Attachment 5);
Form WH-516, MSPA Worker Information -- three (3) at each job change when no local service delivery sites job-order referral is used (original for the worker, first copy for the employer, second copy for the contractor, -- in English or Spanish (Attachment 6); and
EMSX 1024 304 is a federal statement of "Department of Labor Protection for Farm workers" in English and Spanish which should be given to each contracted worker (Attachment 7).

Applicants should deliver or mail completed forms to:

United States Department of Labor
Employment Standards Administration
Wage and Hour Division
1111 Third Avenue, Suite 600
Seattle, WA 98101-3212
Phone (206) 553-1914

Lists of federally certified contractors and their employees are updated and distributed on a monthly schedule.

Local service deliver sites may request lists, forms or assistance from the Agricultural Recruitment and Support Unit. Forms attached to this document may be copied.

Comparison of Federal and State Programs

There are some differences and similarities between the federal and state programs that should be noted:

RCW 19.30 and WAC 296-310, as amended, apply to all farm labor contractors operating within the state of Washington. A federally registered FLC may have a subordinate FLCE who is federally registered to act as an agent or subcontractor, but Washington State has no such classification and requires that each contractor and employee(s) have individual license(s).
Federal registration as a farm labor contractor under the MSPA applies in all instances except when the contractor is operating within 25 intrastate-miles of the contractor's permanent residence and for not more than thirteen weeks per year. The exemption regarding miles and weeks, cited for federal certified contractors, is not included in Washington law.
State-registered farm/forestry labor contractors must be bonded or have an Assignment of Account or Time Deposit with L&I. State licensed farm labor contractors must pay an annual license fee. There are no similar federal requirements.
Federal certificates and state licenses have different periods of validity and must both be valid when the work is performed.

NOTE: Specific information concerning the state program can be found in Policies and Procedures document number 7027-4, Washington Farm/Forestry Labor Contractor License.

DEFINITIONS

Farm Labor Contractor (FLC) - Any person, other than an agricultural employer, an agricultural association, or an employee of an agricultural employer or association, who, for any money or other valuable consideration paid or promised to be paid, performs any farm labor contracting activity.

NOTE: An exemption exists for a person who engages in this activity solely within a 25 intrastate-mile radius of such person's permanent place of residence and for not more than thirteen weeks per year.
Farm Labor Contractor Employee (FLCE) - A federally registered FLC may delegate farm labor contracting activities to an immediate subordinate providing that the immediate subordinate is federally registered as an FLCE. The FLC is legally liable/responsible for the activities, as subcontractors or agents, of his/her FLCE subordinates.
Farm Labor Contracting Activity - Recruiting, soliciting, hiring, employing, furnishing, or transporting any migrant or seasonal agricultural worker.
Agricultural Worker - An individual who is employed in agricultural employment of a seasonal or other temporary nature. The term "migrant" means that the worker must travel to the work site and is required to be absent overnight from her/his permanent place of residence. Such overnight absence is not required of a "seasonal" worker.
Agricultural Employment - The handling, planting, drying, packing, packaging, processing, freezing, or grading prior to delivery for storage of any agricultural or horticultural commodity in its unmanufactured state.

NOTE: This definition was expanded by judicial decree in 1987, to include all predominantly manual forestry work, including but not limited to tree planting, brush cleaning, precommercial tree thinning, and forest fire fighting.
Person - Any individual, partnership, association, joint stock company, trust, cooperative, or corporation.
Agricultural Employer - any person who owns or operates a farm, ranch, processing establishment, cannery, gin, packing shed, or nursery; or who produces or conditions seed; and who either recruits, solicits, employs, furnishes, or transports any migrant or seasonal agricultural worker.

NOTE: The Department of Labor is expected to include items from the underlined portion of definition 5, to emphasize consistency, in future distributions of definition 7.

REFERENCES

The Workforce Investment Act (WIA) of 1998, Public Law 103-220 (WorkSource); the Wagner-Peyser Act as amended by WIA (Labor Exchange); and the Code of Federal Regulations (CFR), Title 20, Chapter V, Part 652 (Labor Exchange), Parts 653 and 654 (MSFWs), Part 655 (H-2A), and Title 29, Part 500 (MSPA).

SUPERSEDES

This communication cancels and supersedes Policies and Procedures document number 7022, dated August 4, 1986.

WEB SITE

http://www.wa.gov/esd/policies/

DIRECT INQUIRIES TO:

Oscar Trevino
Employment Security Department
Employment and Career Development Division
P.O. Box 9046, Mail Stop 6000
Olympia , WA 98507-9046
E-Mail: otrevino@esd.wa.gov
Telephone: (360) 438-4653
Fax: (360) 438-4014

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