HR GlossaryThe MSPA (Migrant and Seasonal Agricultural Worker Protection Act)

The MSPA (Migrant and Seasonal Agricultural Worker Protection Act)

The MSPA is a federal regulation — the Migrant and Seasonal Agricultural Worker Protection Act of 1983. This law provides instructions to employers regarding the wages, transportation, housing, and recordkeeping requirements for migrant and seasonal agricultural workers. 

What is the MSPA? 

Agricultural work is an incredibly tough occupation. Farmers and workers must contend with the backbreaking work of harvesting crops while dealing with extreme temperatures. Farmers who employ workers often hire migrant and seasonal workers, and these employers must comply with federal and state legal mandates or face criminal and civil penalties. One of the primary federal laws for farm workers is the Migrant and Seasonal Agricultural Worker Protection Act of 1983 (MSPA). The MSPA sets standards for: 

  • Wages (employers must pay agricultural workers the FLSA-required minimum; however, they are exempt from the overtime pay requirement)
  • Transportation to and from the job site
  • Housing
  • Disclosures and recordkeeping

Employers that must comply with the MSPA include: 

  • Agricultural employers
  • Agricultural associations
  • Farm labor contractors
  • Migrant housing providers

However, some agricultural employers are exempt from MSPA compliance in certain circumstances: 

  • Family businesses
  • Small businesses that use 500 or fewer “man-days” of labor in any quarter of the previous year (a man-day means that a non-family member worked at least 1 hour)
  • Some tobacco and seed operations
  • Labor unions
  • Non-profits
  • Charities

MSPA protections do not apply to independent contractors. 

Employer requirements under the MSPA 

Seasonal day-haul and migrant workers must be provided with a written disclosure explaining the conditions and terms of employment when they are recruited for the job. The disclosure must be in the worker’s language if necessary or reasonable. This helps to prevent workers from being enticed to start work on a job only to find out that the actual terms of employment differ from what was initially presented. 

Payroll and general operational requirements 

Migrant and seasonal agricultural workers must be provided with a payroll statement that includes the employer’s name, address, and employer identification number (EIN). Pay stubs must show the earnings and deductions each pay period, provided at the time of payment. Employers must pay all owed wages when they’re due and keep payroll records for 3 years. 

  • Vehicles used to transport migrant or seasonal agricultural workers must be insured and operated by a licensed driver, and must meet state and federal safety standards.
  • Employers cannot require that workers purchase goods or services exclusively from the employer or a contractor.
  • Employers must post a notice in a conspicuous place at the job site explaining workers’ rights and protections under the MSPA.
  • Providers of migrant agricultural housing must comply with state and federal safety and health standards and give workers a statement of the occupancy terms and conditions, posted where workers can read it.

Agricultural employers who use a farm labor contractor are sometimes viewed as joint employers of the workers supplied by the contractor. Joint employers are responsible for compliance with the employment portion of the MSPA, such as the proper payment of wages. 

Registration requirement 

Farm labor contractors must register with the U.S. Department of Labor (DOL) under the MSPA. The statement must include, among other things: 

  • A description of the farm labor activities
  • Identification of the vehicles used to transport migrant workers
  • Identification of property used to house the workers

Why is the MSPA important to small businesses? 

The MSPA allows migrant and seasonal agricultural workers to file a complaint with the Wage and Hour Division (WHD) of the DOL, or file a private lawsuit, regardless of citizenship status. Additionally, employers cannot retaliate against workers for exercising their rights under federal law. Non-exempt farm labor contractors, agricultural employers, and agricultural associations can be penalized under the Fair Labor Standards Act for improper wage payment. 

What is the history of the MSPA? 

The 1983 enactment of the regulation assists migrant and seasonal farm workers. It replaced the Farm Labor Contractor Registration Act that, critics said, did not provide adequate protection to farm workers because of poor enforcement. 

Enforcement 

The U.S. Department of Labor’s Wage and Hour Division (WHD) enforces the MSPA. WHD has the authority to: 

  • Inspect the workplace, including vehicles and housing
  • Review payroll records
  • Interview employers and employees

Non-compliance can result in fines, penalties, and injunctions. Prosecution for non-compliance can be civil or criminal, with criminal charges potentially resulting in up to 3 years in prison. Non-compliance by farm labor contractors can result in the revocation or suspension of their certificates and the inability to register for future certifications. 

Workers who want to file a complaint under the MSPA can do so with WHD or file a lawsuit in federal court. Workers claiming MSPA violations can file in federal court without meeting several typical requirements, including: 

  • The amount in controversy requirement (generally federal lawsuits must involve a dispute of at least $75,000)
  • The citizenship requirement
  • The exhaustion of all administrative remedies requirement

The MSPA also prohibits employers from retaliating against whistleblowers. 

Summary 

The MSPA provides important protections for migrant and seasonal workers. Workers can bring lawsuits under the MSPA regardless of citizenship status. The range of penalties for non-compliance includes civil and criminal prosecution. HR professionals and agricultural employers should familiarize themselves with the MSPA and its compliance requirements.