For purposes of this part:
(a) Administrator means the Administrator of the Wage and Hour Division, United States Department of Labor, and such authorized representatives as may be designated by the Administrator to perform any of the functions of the Administrator under this part.
(b) Administrative Law Judge means a person appointed as provided in title 5 U.S.C. and qualified to preside at hearings under 5 U.S.C. 557. Chief Administrative Law Judge means the Chief Administrative Law Judge, United States Department of Labor.
(c) Agricultural association means any nonprofit or cooperative association of farmers, growers, or ranchers, incorporated or qualified under applicable State law, which recruits, solicits, hires, employs, furnishes, or transports any migrant or seasonal agricultural worker.
(d) Agricultural employer means 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, hires, employs, furnishes, or transports any migrant or seasonal agricultural worker. Produces seed means the planting, cultivation, growing and harvesting of seeds of agricultural or horticultural commodities. Conditions seed means the in-plant work done after seed production including the drying and aerating of seed.
(e) Agricultural employment means employment in any service or activity included within the provisions of section 3(f) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 203(f) ), or section 3121(g) of the Internal Revenue Code of 1954 ( 26 U.S.C. 3121(g) ) and 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.
(f) Convicted means that a final judgment of guilty has been rendered by a court of competent jurisdiction from which no opportunity for appeal remains.
(g) Day-haul operation means the assembly of workers at a pick-up point waiting to be hired and employed, transportation of such workers to agricultural employment, and the return of such workers to a drop-off point on the same day. This term does not include transportation provided by an employer for individuals who are already employees at the time they are picked up nor does it include carpooling arrangements by such employees which are not specifically directed or requested by the employer, farm labor contractor or agent thereof.
(h)
(1) The term employ has the
meaning given such term under section 3(g) of the Fair Labor Standards Act of
1938 ( 29 U.S.C
203(g) ) for the purposes of
implementing the requirements of that Act. As so defined
employ includes to suffer or permit to work.
(2) The term employer is
given its meaning as found in the Fair Labor Standards Act
Employer under section 3(d) of that Act includes any person
acting directly or indirectly in the interest of an employer in relation to an
employee.
(3) The term
employee is also given its meaning as found in the Fair Labor
Standards Act. Employee under section 3(e) of that Act means
any individual employed by an employer.
(4) The definition of the term
employ may include consideration of whether or not an
independent contractor or employment
relationship exists under the Fair Labor Standards Act. Under MSPA, questions
will arise whether or not a farm labor contractor engaged by an agricultural
employer/association is a bona fide independent contractor or an employee
Questions also arise whether or not the worker is a bona fide independent
contractor or an employee of the farm labor contractor and/or the agricultural
employer/association. These questions should be resolved in accordance with the
factors set out below and the principles articulated by the federal courts in
Rutherford Food Corp. v. McComb,331 U.S. 722
(1947), Real v. Driscoll Strawberry Associates
Inc., 603 F.2d 748 (9th Cir. 1979), Sec'y of Labor, U.S. Dept
of Labor v. Lauritzen, 835 F.2d 1529 (7th Cir. 1987),
cert. denied, 488 U.S. 898 (1988); Beliz v.
McLeod, 765 F.2d 1317 (5th Cir. 1985), and
Castillo v. Givens, 704 F.2d 181 (5th Cir.),
cert. denied,464 U.S. 850 (1983). If it is determined that the
farm labor contractor is an employee of the agricultural
employer/association, the agricultural workers in the farm labor contractor's
crew who perform work for the agricultural employer/association are deemed to
be employees of the agricultural employer/association and an inquiry into joint
employment is not necessary or appropriate. In determining if the farm labor
contractor or worker is an employee or an independent contractor, the ultimate
question is the economic reality of the relationship-whether there is economic
dependence upon the agricultural employer/association or farm labor contractor,
as appropriate. Lauritzen at 1538; Beliz at
1329; Castillo at 192; Real at 756. This
determination is based upon an evaluation of all of the circumstances,
including the following:(i) The nature and
degree of the putative employer's control as to the manner in which the work is
performed;
(ii) The putative
employee's opportunity for profit or loss depending upon his/her managerial
skill;
(iii) The putative
employee's investment in equipment or...
