Often questions arise whether a crew leader or labor contractor
is considered the employer of the workers he or she provides.
Here are some guidelines as set out in the Code of Federal
Regulations.
Whether a crew leader or a labor contractor is the employer of
the workers he supplies is a question of fact. The tests here
are the same as those used to determine whether a sharecropper
or tenant is an independent contractor.
A crew leader who merely assembles a crew and brings them to the
farm to be supervised and paid directly by the farmer, and who
does the same work and receives the same pay as the crew
members, is an employee of the farmer, and both he and his crew
are counted as such and paid accordingly if the farmer is not
exempt under the 500 man-day test. The situation is not
significantly different if under the same circumstances, the
crew is hired at so much per acre for their work. This is in
effect a group piecework arrangement.
The situation is different where the farmer only establishes the
general manner for the work to be done. Where this is the case,
the labor contractor is the employer of the workers if he makes
the day-to-day decisions regarding the work and has an
opportunity for profit or loss through his supervision of the
crew and its output. As the employer, he has the authority to
hire and fire the workers and direct them while working in the
fields.
Complaints by the farmer about the quality or quantity of the
work or about a worker are made to the contractor or his
representatives, who takes whatever action he deems appropriate.
His opportunity for profit or loss comes from his control over
the time and manner of performance of work by his crew and his
authority to determine the wage rates paid to his workers.
There is also the common and general practice of an individual
who performs custom work such as crop dusting or grain
harvesting and threshing or sheep shearing. In the typical case
this contractor has a substantial investment in equipment and
his business decisions and judgments materially affect his
opportunity for profit or loss. In the overall picture, the
contractor is not following the usual path of an employee, but
that of an independent contractor.
For example: A sheep shearing contractor who operates in the
following manner is considered an independent contractor and
therefore an agricultural employer in his own right--he operates
his own equipment including power supply from his own trucks or
trailers, boards his shearing crew and has complete
responsibility for their work and compensation, has complete
charge of the sheep from the time they enter the shearing pen
until they are shorn and turned out, and contracts with the
rancher for the complete operation at an agreed rate per head.
Whether or not a labor contractor or crew leader is found to be
a bona fide independent contractor, his employees are considered
jointly employed by him and the farmer who is using their labor
if the farmer has the power to direct, control or supervise the
work, or to determine the pay rates or method of payment.
(Hodgson v. Okada (C.A. 10), 20W.H. Cases 1107; Hodgson v.
Griffin & Brand (C.A. 5) 20 W.H. Cases 1051;
Mitchell v. Hertzke, 234 F. 2d 183, 12 W.H. Cases 877 (C.A.
10).) In a joint employment situation, the man-days of
agricultural labor rendered are counted toward the man-days of
such labor of each employer. Each employer is considered equally
responsible for compliance with the Act.
With respect to the recordkeeping regulations in 29 CFR 516.33,
the employer who actually pays the employees will be considered
primarily responsible for maintaining and preserving the records
of hours worked and employees' earnings specified in paragraph
(c) of Sec. 516.33 of this chapter.
[37 FR 12084, June 17, 1972, as amended at 38 FR 27521, Oct. 4,
1973]
