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By Sarah Everhart, Esq.

Giving accurate labor law advice to clients who run farming operations requires consideration of federal and state agricultural exemptions and an understanding of the scope of “agriculture,” as defined by the Fair Labor Standards Act (FLSA). Instead of assuming all farm employees perform work that is eligible for the agricultural exemptions from the FLSA, lawyers will be well served to analyze the types of work performed by employees and the relationship of the work to the underlying farm operation before deciding whether the agricultural exemptions are appropriate.

Pursuant to the FLSA and state law, certain farm workers (those employed on very small farms, hand harvest laborers, etc.) are exempted from receiving the federal minimum wage and overtime (time and one-half) pay. According to the FLSA, all other farm workers are exempted from receiving overtime pay. Maryland, however, is one of the few states that requires employers to pay employees engaged in agriculture overtime pay. In Maryland, agricultural employees who are exempted from the federal law are to be paid overtime pay for all work over 60 hours per week.

To determine whether farm employees are eligible for the agricultural exemptions, an employer must compare the work performed by the employee to the FLSA’s definition of agriculture, broken down into either primary or secondary agriculture. Primary agriculture includes cultivation and tilling of soil; production, cultivation, growing, and harvesting agricultural and horticultural commodities; and raising livestock, bees, fur-bearing animals, or poultry. Secondary agriculture includes any practices performed by a farmer or on a farm as an incident to or in conjunction with farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market. “Generally, a practice performed in connection with farming operations is within the statutory language only if it constitutes an established part of agriculture, is subordinate to the farming operations involved, and does not amount to an independent business (29 C.F.R. § 780.44).”

For the agriculture exemptions to apply to secondary agricultural practices, “the practices in question must relate to the farmer’s own farming operations and not to the farming operations of others . . . .” Mitchell v. Huntsville Wholesale Nurseries, Inc., 267 F. 2d 286, 290 (5th Cir. 1959). In other words, if agricultural employees are performing work with another farmer’s products, such as selling or packing another farmer’s produce, the employees are most likely not performing work that meets the FLSA definition of agriculture.

Courts interpreting the scope of the FLSA’s agricultural exemptions have applied the exemptions to a wide variety of types of work not traditionally associated with agriculture such as cooking and cleaning. To determine whether work is eligible for the exemptions, courts have focused on the reason why the work is performed in relation to the primary agricultural operation. Work that is found to be supportive of the primary agricultural operation has generally been found to be exempted and by contrast work that is unrelated to the primary agricultural operation or amounting to a separately organized activity has been found to be ineligible

The exemptions from the FLSA apply on a week by week basis meaning that when an employee in the same workweek performs work which is exempt and also engages in work that is not exempt but covered by the FLSA, he is not exempt that week, and subject to the full wage and hour protections of the FLSA (i.e., minimum wage and overtime pay). In application, this means that if a farm worker is asked to do non-farm related work, such as painting the farm employer’s house, in the same week he undertakes farm work, he is not eligible for the agriculture exemptions that week. Farm employers who take advantage of the agriculture exemptions need to take and maintain careful records and document, not just the hours worked, but the type of work employees undertake each week.

According to the U.S. Department of Labor, failing to pay overtime to employees whose jobs are related to agriculture but which do not meet the definition of agriculture, is a typical violation of the FLSA. To keep your clients from inadvertently running afoul of the FLSA, carefully consider the type of work farm employees are engaging in and how that work relates to the farm operation, before advising a client to take advantage of the agricultural exemptions.

Sarah Everhart is the Managing Director of the Agriculture Law Education Initiative at the University Of Maryland Francis King Carey School of Law. Everhart is the Chair-Elect and Education Co-Chair of the Agriculture Law Section of the MSBA.