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Is All Work Performed On A Farm Exempt From Overtime?

by | Sep 20, 2022 | Employment Law, Federal Law Update, Wage: Minimum Wage, Wage: Overtime |


Many people assume that if an hourly employee works more than forty hours a week, the law requires that they be paid overtime. Simple, right? But, as our minimum wage and overtime attorneys have previously explained, wage and hour laws are anything but straightforward. This is especially true when considering the many exemptions to the Fair Labor Standards Act (“FLSA”), and how they might apply to the specific facts of each case.

Are farm workers exempt under the FLSA?

Wage Theft Attorney Answer: Employees who work in agriculture are exempt from the overtime and minimum wage protections of the FLSA. (Best Law Read: “Are Farm Workers Entitled To Minimum Wage And Overtime?”). Specifically, 29 U.S.C § 213(f) defines “agriculture” as follows:

“Agriculture” includes farming in all its branches and among other things includes the cultivation and tillage of the soil, dairying, the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities…the raising of livestock, bees, fur-bearing animals, or poultry, and any practices (including any forestry or lumbering operations) performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market.

Thus, to be engaged in “agriculture,” you must be either (1) doing actual farm work or (2) doing work that is “incident to or in conjunction with such farming operations.”

But what does “incident to or in conjunction with” mean?

Top Overtime Lawyer Answer: The United States Court of Appeals for the Seventh Circuit, which covers the areas of Illinois, Indiana and Wisconsin, recently addressed this very question in Luna Vanegas v. Signet Builders, Inc., 46 F.4th 636 (7th Cir. 2022). This case is interesting and notable in that Vanegas was a Mexican citizen brought into the United States on a H-2A guestworker visa, which authorizes foreign workers to perform “agricultural” work in the United States on a temporary basis. However, the term “agricultural work” is loosely defined by the H-2A program’s regulations to include both agricultural work (as it is defined by the FLSA) or work that is temporary or seasonal in nature. This distinction is important, because as the Seventh Circuits opinion makes clear, not all H-2A workers truly work in “agriculture.”

Otherwise, the facts of Signet are simple. Vanegas had been hired by Signet – a construction company and not a farm – to build structures on farms owned by third parties that would later be used to house livestock. Vanegas worked more than forty hours a week but was not paid overtime. Feeling that he had and other H-2A workers hired for this work had been taken advantage of by Signet, Vanegas sued not only for himself, but on behalf of a class of workers he said were also not paid overtime.

Signet did not dispute Vanegas’s allegations. Nonetheless, it responded to Vanegas’s lawsuit with a motion to dismiss, arguing that Vanegas’s own complaint established that he and the other H-2A employees he sought to represent were “agricultural” workers exempt from overtime because it was undisputed that they were building structures on farms.

Amazingly, the district court bought this argument despite the fact that Vanegas was not employed by any farm to do any specific farm work, but had simply worked on a farm building structures that – obviously – would be used in connection with farming:

Vanegas contends that the question is whether the worker’s employer is engaged in a separately organized productive activity from farming. But… what matters is whether the worker’s activities are directed toward an agricultural or nonagricultural end. This conclusion is supported by § 780.136, which speaks in terms of the “practices performed” by the employee; it says nothing about the employer’s overall business.

On appeal, the Seventh Circuit quickly dismantled the district court’s mechanical application of the exemption, which would seem to permit any employer to deny overtime to any employee who does work on a farm – even temporarily – provided that the work they do is something that will be used by the farm for farm business. Under the district court’s logic, an internet service installer, plumber, or anyone else whose job requires them to make a service call to a farm would be considered an “agricultural” worker.

Going directly to the heart of the problem with the district court’s ruling, the Seventh Circuit held that Signet could not possibly conclusively establish that Vanegas and his co-workers were “agricultural” workers because there were questions about whether they were engaged in an “independent business” from the farms they worked on:

Signet has ignored the fact-driven, totality-of-the-circumstances test set forth in section 780.145. Instead, it relies exclusively on 29 C.F.R. § 780.136, which says that “[e]mployees engaged in the erection of silos and granaries” are “examples of the types of employees of independent contractors who may be considered employed in practices performed ‘on a farm.’ “ Signet argues, and the district court agreed, that Luna Vanegas’s work building livestock enclosures is analogous to building silos or granaries used by farms, and so it must be agricultural labor. As Signet would have it, our analysis should begin and end there.

But that very regulation goes on to explain that there is more to the inquiry. The next sentence reads:

Whether such employees [including those erecting silos and graneries] are engaged in “agriculture” depends, of course, on whether the practices are performed as an incident to or in conjunction with the farming operations on the particular farm … that is, whether they are carried on as a part of the agricultural function or as a separately organized productive activity.

This additional language shows us that Signet’s proposed test for agricultural labor elides the key question in this case. Luna Vanegas agrees that he was employed “on a farm,” but that alone is not enough to bring him under the agricultural exemption. See 29 C.F.R. § 780.144. Rather, we must ask whether his construction work was “carried out as a part of the agricultural function or as a separately organized productive activity” as defined by related regulations. If …Vanegas’s work was part of “a distinct business activity” from farming, the agricultural exemption does not apply (Emphasis added).

The Seventh Circuit then turned to 29 C.F.R. §§ 780.141–147 to go through the various factors that need to be considered, finding that “[t]hey establish a nuanced, fact-intensive inquiry that is ill-suited for resolution based only on the allegations of a complaint” It then pointed out that 29 C.F.R. § 780.146 requires courts to consider “the extent to which such a practice is ordinarily performed by farmers incidentally to their farming operations” versus simply being contracted out::

If farmers typically hire independent contractors such as Signet to build livestock enclosures, that would be a “significant indication” that building those enclosures is not agricultural work within the meaning of section 3(f).

* * *

In sum, work falls within the FLSA secondary agricultural exemption only if it is both “performed by a farmer or on a farm” and if it “does not amount to an independent business.” 29 C.F.R. § 780.144. The (Department of Labor‘s) regulations establish a fact-intensive, totality-of-the-circumstances test to determine whether work performed on a farm is agricultural or if it is an independent business. They list many factors that bear on that analysis. Signet bears the burden of proving that the agricultural exemption applies, 29 C.F.R. § 780.2, and it has not carried that burden on the pleadings. (Emphasis added).

What Should I Do If I Think My Employer Is Not Paying me Overtime?

Best Ohio Wage Theft Attorney Answer: As Signet demonstrates, wage and hour claims can be incredibly complex, requiring the understanding of nuanced and complicated federal regulations, statutes, and case law. Most attorneys have never dealt with the FLSA and don’t know much about wage claims or what the law requires, so it is hardly surprising that many employers don’t understand the law either.

Importantly, wage claims have a “rolling” statute of limitations and every day you wait is a day lost on your claim. If you believe that the company you work for has failed to pay you all of your wages or has misclassified you, call the attorneys at Spitz, The Employee’s Law Firm today for a free and confidential initial consultation. (Read: What is the Spitz No Fee Guarantee?) Call our lawyers in Cleveland, Columbus, Detroit, Toledo, Cincinnati and Raleigh to get help now. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and fighting for their unpaid wages.

Disclaimer:

The materials available at the top of this overtime, wage and hour web page and at this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “Am I entitled to overtime?”, “Can I be fired for demanding my overtime pay”, “Can the company that I work for make me pay them back part of my paycheck” or “What do I do if I am not being paid minimum wage”, the your best option is to contact an Ohio overtime attorney to obtain advice with respect to FLSA questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at the top of this page or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, Brian Spitz, or any individual attorney.