Under federal law the determination of whether two employers are joint employers in the agricultural setting is made under so-called “regulatory” and “non-regulatory” factors. The former are set forth in regulations under the Migrant and Seasonal Worker Agricultural Protection Act (AWPA or MSPA) and the latter are set forth in case law.
The court, in denying the farm summary judgment on the basis that the two other defendants are independent contractors and that the farm is not a joint employer, found under both state and federal law that a reasonable trier of fact could find that the farm is a joint employer under both the economic realities test and under the two non-common law definitions of “employ” under the IWC orders.
The court has done an excellent job sorting through the submitted evidence and analyzing it under state and federal law. I see no reason to duplicate the effort of the court and I agree with its opinion that. However, I do believe some additional observations are in order. First, the fact that the two employers have operated rent-free on the farm’s property for almost 20 years is a strong indication of the intertwined natures of these companies and the dependence that both the workers and the contractors have and have had on the farm. Indeed, the failure to charge any rent has allowed the two employers to charge lower fees than what other farm labor contractors charge—37.5% instead of the industry standard 40% to 45%. Moreover, the farm has relied almost exclusively on the agricultural services company for more than 20 years for its cultural work in the fields, which in 2008 represented 75% of its business. Finally a key factor to be emphasized is that the farm’s personnel are in the fields essentially on a daily basis overseeing the quality of the contractor’s work and directing employees if necessary.
It is the right to control and not the actual exercise of direct control of the work that is relevant to the joint employment inquiry. While the MSPA regulations do allow for “contract performance oversight,” the facts in this case, and the fact that Delano Farms personnel are regularly in the fields directing work and providing training, shows that their involvement is more than just oversight. It is for this reason that the American Farm Bureau Federation suggests that growers, in order to avoid joint liability should consider, in effect accepting the inevitability of joint liability because in order to run their farms the way they need and want to
requires involvement that will generally lead to a finding of joint employer status.
The expert has worked for the state labor commission, has participated in federal employment study commissions and has actively practice employment law for more than 20 years.