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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