Minnesota employers employing 30 or more migrant workers – be aware you have unique considerations for the employment of such workers pursuant to Minnesota’s Migrant Labor law, Minn. Stat. 181.85 – .89. So, what’s up? As I’ll detail below, this employment is not really “at will”, like most employment relationships in Minnesota. There must be a contract between the two parties (the employment statement), which must provide for: payment every 2 weeks; guarantee minimum hours each bi-weekly pay period; and an itemized payroll statement. Keep in mind that there are additional requirements when employing H-2A temporary agricultural workers – this post is just focusing on the Minnesota Migrant Labor law considerations.
Does the Minnesota Migrant Labor Law Apply To Your Business?
This law applies to employers that process fruits or vegetables, using more than 30 recruited migrant workers per day, for more than 7 days a calendar year. This seems simple enough, but of course each term is defined…
A “migrant worker” is someone at least 17 years of age, who travels more than 100 miles to Minnesota from another state to perform seasonable agricultural labor.
“Agricultural labor” is field labor – cultivating and harvesting fruits and vegetables, and the related processing work.
“Recruited” is just what you’d imagine – when the employer induces a worker from another state (directly or indirectly, through a recruiter) to travel to Minnesota for agricultural labor.
A “recruiter” is someone that solicits, hires, furnishes migrant workers (excluding immediate family) for agricultural labor to work in Minnesota. A recruiter does not include a public agency. However, there is an exception – if you use the federal work clearance order system under the Wagner-Peyser Act of 1933 (known as the Employment Service, encompassing American Job Centers, aka One-Stop Career Center) to recruit migrant workers, you must still follow Minnesota’s Migrant Labor law requirements.
What Must the Employment Statement Consist Of?
Upon recruiting a migrant worker, the employer must provide a written statement in English AND Spanish. This statement is an enforceable contract between the employer and the migrant worker. The written statement must include the following:
- Date and location where statement was completed and provided to the worker;
- Name and permanent address of the worker, employer, and recruiter;
- Date the worker is to arrive at the place of employment, date work is to begin, approximate hours of employment, and minimum period;
- Identity of crops and operations on which the worker will be employed;
- The wage rate that will be paid;
- Payment terms (see below);
- Deductions that will be made from wages; and
- Whether housing will be provided.
What About Payment Terms?
The payment terms required above consist of the following pursuant to Minn. Stat. 181.87:
- When wages will be paid (must be at least every 2 weeks and within 3 days upon termination).
- The guaranteed hours (this is somewhat complicated, but to sum, generally, the employer must guarantee each recruited migrant worker at least 70 hours of pay for work in 2 successive weeks – if those hours are not provided, the employer has 3 days following the payday to pay the minimum guarantee difference – unless no work is available for 7 or more consecutive days due to climate conditions or act of God, then the migrant worker is entitled to at least $5 per day).
- If the migrant worker is fired for cause (not because there was a lack of work) or quits, entitlement to minimum bi-weekly guarantee ends.
- Statement that the migrant worker must vacate the provided housing upon final payment of all wages (or not, depending on your business – just has to be clear what happens to housing in the case of a termination).
- Itemized deductions – each payroll the employer must provide a written statement clearly itemizing each deduction from wages.
Recordkeeping & Other Considerations
Finally, don’t forget to keep records for 3 years of the following: name, daily hours worked, rate of pay, and wages paid. Also, you should keep a copy of any time records, payroll records, and the employment statement provided to the migrant worker upon recruitment.
What happens if an employer violates the Minnesota Migrant Labor law? The migrant worker may sue the employer in court for the backpay, court costs and attorneys’ fees. In addition, an employer may be penalized $50 for recordkeeping violations; $250 for not providing a written employment statement or it not being compliant with the law’s requirements (i.e. not in Spanish); $500 for failing to company with terms of an employment statement or payment terms; and $500 for late payment of wages. These penalties will be awarded to each migrant worker and against each employer/defendant found liable. In addition, the law provides that these are not exclusive remedies – in other words, the migrant worker may sue under other laws (i.e. Minnesota Payment of Wages Act or Minnesota Human Rights Act) and recover as well.