U.S. DOL-Wage and HourReforestation Investigations

Housing and Transportation

FLC Registration Process and Requirements

U.S. Forest Service U.S. Bureau of Land Management

State and County Governments

Lumber Companies Paper Companies Others

Who Performs Reforestation Work?

What is reforestation work?FLSA

Planting Trees Land Leveling Clearing Thinning Timber Harvest Transportation of

Timber

MSPA-Bresgal Decision

Tree Planting Clearing Thinning Related Manual work Fire Fighting

FLSA

MSPA

SCA

H-2B

OSHA- Field Sanitation◦Non- OSHA Plan States-Idaho

Looking At All Applicable Acts

Each Act is separate

Fair Labor Standards ActReforestation is not considered AG

Coverage Enterprise Coverage Individual Coverage

Exemptions Ag exemptions do

not apply Look at other FLSA

exemptions

Provisions

Minimum Wage

Overtime

Recordkeeping

Child Labor

Recordkeeping◦ In-accurate record of hours worked◦ No or Incomplete Employee information

Hours Worked Issues◦ Pre/Post Time◦ Travel time between worksites◦ Driving time for van driver

Overtime◦ No overtime after 40 hours in a ww◦ Does not consider hours for multiple job sites

in one work week to determine OT

Common FLSA Violations

MSPAReforestation is AG

Coverage Provisions

Bresgal vs. Brock Decision- protects reforestations and firefighting workers who predominately perform manual forestry work, including but not limited to tree planting, brush clearing, precommerical thinning and fire fighting.

FLC Registration Disclosure Recordkeeping Wages Housing Transportation

MSPA Exemptions Apply

The difference between year round employment vs. performing work that is seasonal or temporary in nature.

◦ Seasonality is based on the nature of the work rather than the duration of employment

How Does Seasonality Apply?

Migrant agricultural worker-a worker who spends at least one night away from their permanent residence to perform agricultural or reforestation work.

Seasonal or temporary agricultural worker performs agricultural or reforestation work and is able to return home every night.

Race or National Origin does not define if a worker is a Seasonal or Migrant Agricultural worker.

Reforestation Workers and Firefighters can be Migrant or Seasonal

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Who is a farm labor contractor?

Any person or entity who

◦Furnishes◦Recruits◦Employs◦Solicits◦Hires◦Transports & House

Agricultural/reforestation workers for a fee or valuable consideration

FLC Certificate

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When does an FLC employees need to register as an FLCE

When an FLC employee

◦Furnishes◦Recruits◦Employs◦Solicits◦Hires◦Transports/Drives

On behalf of the FLC

FLCE Certificate

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Obligations when using an FLC

Use a compliant FLC ◦What are red flags for you when you are

selecting an FLC? Take reasonable steps to ensure that your

FLC is properly registered to perform the activity they are performing on your behalf.◦Transportation and Housing

Keep records provided by FLCs for 3 years.

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Disclose Working Conditions

Disclosure of Terms & Conditions of Employment is required

In writing for migrant workers at time of recruitment -

Seasonal at time of hiring, in writing if requested

In a language understood by the workers

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Required Terms & Conditionsthat need to be disclosed

◦ Place of Employment◦ Period of Employment◦ Wages to be paid◦ Crops & type work◦ Transportation & any charges◦ Workers compensation insurance◦ Unemployment insurance◦ Housing & any charges◦ Strike or work stoppage

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WH 516-Optional Disclosure Form

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Required Records ◦ Employee Name◦ permanent address◦ Employee social security number ◦ The basis on which wages are paid◦ Number of piecework units earned (if

paid on a piecework basis)◦ Number of hours worked◦ The total pay period earnings◦ The specific sums withheld and the

purpose of each◦ The net pay

FLCs must provided records to growers

Pay the highest applicable disclosed wage rate may include the prevailing SCA wage rate or a higher amount required by another law.

If paid on piece rate, worker must earn at least the SCA wage rate or any other higher applicable wage rate.

When on piece rate, any non-productive time that is considered as hours worked must be paid on an hourly basis.

Wages

Must be paid for all hours worked◦ Pre and Post shift work, waiting and travel time

may be applicable Deductions may be considered illegal if

not disclosed and/or if the deductions bring the employee below the SCA prevailing wage rate

Must be paid overtime if applicable Must be paid at least every 15 days Workers must receive wage statement.

Wages

Who ever owns or controls the housing is responsible to meet housing requirements

Housing disclosure must be given

Undisclosed housing charges and unsafe housing conditions result in violations

Housing

Common in reforestation since worksites are in remote locations

Motels/Apartments/Cabins Camping on Public Land

◦ MOU with USFS

Common Housing ViolationsOvercrowdingUnsafe-drinking and bathing waterUndisclosed charges

MSPA Housing in Reforestation

Reforestation Housing

Motel Rooms

Check for overcrowding and hazardous conditions

Fixed structures must meet either ETA or OSHA standards

OSHA has standards for temporary housing

Regional MOU with USFS on tent housing on federal land.

Remote locations pose the most difficult challenges

Safety Standards for Reforestation Housing

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Responsibility based on: “use or cause to be used”

Due to the nature of reforestation work, FLCs are required to transport their workers to the worksites

MSPA Transportation RequirementsWho is responsible?

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MSPA Transportation Requirements

Qualified Driver Safe Vehicle & Safe

Operation Adequate Insurance

Coverage Proper Transportation

Registration for FLCs/FLCEs

Disclose fees to workers

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Qualified Driver

Must have appropriate State license and endorsements for the type of vehicle used

Must follow CHP when transporting 9 or more passengers

Must have medical certificate◦ Growers: when transporting 75

miles or more◦ FLC: Always

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Secure a vehicle safety inspection

◦DOL and DOT Standards◦California Highway Patrol◦ Private automotive shop inspection

Transportation Safety Requirements

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Transportation Insurance Requirements

◦ $100,000 liability insurance per existing seat or manufacturer’s specifications Example- A van with 15 passenger

capacity needs 1.5 million dollars of liability coverage

Can be a combination of commercial auto and umbrella policies

◦ Workers Comp may be substituted for liability insurance if fully covered and $50,000 in property damage insurance is added

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◦ FLC must register as Transportation Authorized (TA)

◦ Driver must register as FLC or FLCE with Driving Authorized (DA)

◦ Secure a valid state driver’s license for vehicle used

◦ Driver must also have a doctor’s certificate of physical fitness within last three years

FLC Transportation Registration Requirements

Use of ATVs Meet State

requirements

Use as manufactured intended

Applicable DOL standards will be applied

Common Violations

Unsafe vehicles-usually DOT standards apply

Unlicensed driver/no medical certificate

FLC/FLCE not transportation and/or driving authorized

Uninsured or Under insured

MSPA transportation is common in reforestation work