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State Labor Relations Acts Excluding Farmworkers

States with Labor Relations Acts excluding Farmworkers: 

*    Colorado	*    Rhode Island
*    Connecticut	*    Utah
*    Michigan	*    Vermont
*    Minnesota	*    Virginia
*    North Dakota	*    West Virginia
*    Pennsylvania

Anti-injunction Statutes and Labor Disputes

Federal Norris-La Guardia Act, 29 U.S.C. §§101 et seq., is intended to restrict federal use of injunctions in labor disputes. 

See, Federal Norris-La Guardia Act,  §2 policy declaration, 29 U.S.C. §102

      “Whereas under prevailing economic conditions, developed with the aid of governmental authority for owners of property to organize in the corporate and other forms of ownership association, the individual unorganized worker is commonly helpless to exercise actual liberty of contract and to protect his freedom of labor, and thereby to obtain acceptable terms and conditions of employment, wherefore, though he should be free to decline to associate with his fellows, it is necessary that he have full freedom of association, self-organization, and designation of representatives of his own choosing, to negotiate the terms and conditions of his employment, and that he shall be free from the interference, restraint, or coercion of employers of labor, or their agents, in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection; therefore, the following definitions of and limitations upon the jurisdiction and authority of the courts of the United States are enacted.”

Anti-injunction Statutes and Labor Disputes – State Statutes

 State laws modeled on federal Norris-La Guardia Act, 29 U.S.C. §§101 et seq., restrict use of injunctions in labor disputes

See state statutes in: Connecticut, Hawaii, Idaho, Indiana, Louisiana, Maryland, Massachusetts, Minnesota, New Jersey, New York, North Dakota, Oregon, Pennsylvania, Utah, Washington, Wisconsin, and Wyoming

Argument that public policy declarations of state Norris-La Guardia law confers substantive recognition of right to organize.  See:

*    Trustees of Wisconsin State Federation of Labor v. Simplex Shoe Manufacturing Company, 256 N.W. 56, 60-61 (Wisconsin S. Ct. 1934)

*    Krystad v. Lau, 400 P.2d 72 (Washington S.Ct. 1965).  But see, International Union of Operating Engineers v. San Point Country Club, 519 P.2d 985 (Washington S.Ct. 1974) (no employer duty to bargain).

*    Garza v. Patnode, 65 Lab. Cas. ¶ 52,570 (1971) in Washington state protections extend to farmworkers.

Protections in Right to Work Laws

Argument that “right to work law” may include substantive protections that reach farmworkers.

See, Florida Statutes, Chapter 31, §447.03:

   “Employees' right of self-organization.--Employees shall have the right to self-organization, to form, join, or assist labor unions or labor organizations or to refrain from such activity, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection.”

States with “Right to Work” laws are Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Iowa, Kansas, Louisiana, Mississippi, Nebraska, Nevada, North Carolina, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, and Wyoming.

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Defining Excluded Agricultural Workers

The Wagner Act (NLRA) as enacted in 1935 contained no definition of an “agricultural laborer.”  §2(3), 49 Stat. 450 (1935).

*     The National Labor Relations Board’s (NLRB) initial interpretation and application of legislative intent of the scope of the 1935 Wagner Act exclusion of “agricultural laborers” which was not otherwise explicitly defined either therein or in the legislative history thereof was far more narrow than the definition of agricultural laborer which now controls at the NLRB.

It was the NLRB itself which was required without statutory guidance as to the meaning of the term “agricultural laborer” under the NLRA until a 1946 Congressional appropriations rider mandating usage of the Fair Labor Standards Act (FLSA) definition of agriculture

*   See, July 26, 1946, National Labor Relations Board Appropriation Act for 1947, 60 Stat. 698. Annually renewed requiring usage of FLSA definition of agriculture

FLSA Definition Agriculture, 29 U.S.C. Sec. 203(f)

     ''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 (including commodities defined as agricultural commodities in section 1141j(g) of title 12), 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.” 

Status of Nursery, Greenhouse, Mushroom Workers

Pre-1946 NLRB decisions included nursery, greenhouse and mushroom workers as non-agricultural workers.

*    The Park Floral Company, 19 N.L.R.B. 403, 413-414, 5 LRRM 514 (1940).

*    Great Western Mushroom Company, 27 N.L.R.B. 352, 357-359, 7 LRRM 72  (1940)

*    Knaust Brothers, Inc., 36 N.L.R.B. 915, 917-918, 9 LRRM 183 (1941)

1946 NLRB Appropriation Rider –

Nursery, Greenhouse, Mushroom Workers

Nowhere does the Congressional Record of the 1946 floor debates reflect any consciousness of the impact on “horticultural” workers in greenhouses and mushroom operations of the adoption of the FLSA definition of agriculture.

See:    July 26, 1946, National Labor Relations Board Appropriation Act for 1947, 60 Stat. 698

Post 1946 NLRA–

Nursery, Greenhouse, Mushroom Workers

In Michigan Mushroom Co., 90 N.L.R.B. 119, 26 LRRM 1279 (1950), the NLRB abandoned its assertion of jurisdiction over mushroom workers because of the Congressional mandate for the NLRB to employ the Fair Labor Standards Act definition of agriculture. 

*     This definition provided that “agriculture” includes “...the production, cultivation, growing and harvesting of any agricultural or horticultural commodities....” 

*      The NLRB concluded that it was thereafter required to respect the US. Department of Labor’s treatment of mushroom harvesting workers under the Fair Labor Standards Act as agricultural workers.

State Labor Relations Acts – Definition of Agriculture

*    Pennsylvania has consistently held that the NLRA 1946 appropriation rider does not require it to hold that mushroom workers are excluded agricultural workers under the 1937 Pennsylvania Labor Relations Act.  1937, June 1, P.L. 1168, No. 294.  See, 43 P.S. §211.1 et seq.

*    Issue is largely untested under other acts (except Colorado)

Pennsylvania and Mushroom Workers

*     In the Matter of the Employees of Grocery Store Products Company, (PLRB, Case #22, 1956), the PLRB held that mushroom workers were not agricultural laborers within the meaning of the PLRA.   That decision has been followed since.

*     See, Vlasic  Farms Inc. v. Pennsylvania Labor Relations Board, 777 A.2d 80 (PA, 2001) and the prior decisions of the Commonwealth Court in Blue Mountain Mushroom Co. v. PLRB, 735 A.2d 742 (Pa. Cmwlth. 1999), and Vlasic  Farms, Inc. v. PLRB, 734 A.2d 487, 489-90 (Pa. Cmwlth. 1999).

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NLRA, Sec. 10(a) Deferral to State Labor Jurisdiction

See, NLRA, Sec. 10(a), 29 U.S.C. Sec. 160(a):

*   …[P]rovided, That the Board is empowered by agreement with any agency of any State or Territory to cede to such agency jurisdiction over any cases in any industry (other than mining, manufacturing, communications, and transportation except where predominantly local in character) even though such cases may involve labor disputes affecting commerce, unless the provision of the State or Territorial statute applicable to the determination of such cases by such agency is inconsistent with the corresponding provision of this subchapter or has received a construction inconsistent therewith.

In Produce Magic, Inc. v. UFW, 318 N.L.R.B. 1171, 150 L.R.R.M. 1241 (1995) the NLRB rejected a request by the California Agricultural Labor Relations Board to defer to the California Agricultural Labor Relations Board

Authority of Sec. 10(a) has never been exercised, but should be explored

Flexible Alternatives to NLRB Procedures

The labor movement would benefit from examining the strengths and weaknesses of alternative statutory structures such as the California ALRA and the 20 day election provisions of the Pennsylvania PLRA as well as the importance of access to equity courts under the New Jersey constitutional provision in evaluating what changes should be sought to the NLRA.

See:  David A. Morand, “Questioning the Preemption Doctrine: Opportunities for State-Level Labor Law Initiatives,” 5 Widener J. Public L. 35, 73-77 (1995)

Changes to NLRA Appropriation Rider Definition of Agriculture

*     Some California Agricultural Employers familiar with delays inherent in NLRB proceedings have sought to extend NLRB jurisdiction to cover agricultural workers.

*     Any revision to NLRA Appropriation Rider Definition of Agriculture to include workers in nursery, greenhouse and mushroom operations should include provisions authorizing NLRB Section 10(a) deferral to states with labor relations acts protecting workers not covered under NLRA currently.

Protections for Nursery, Greenhouse & Mushroom Workers

Expansion of collective bargaining protections nationally to Nursery, Greenhouse and Mushroom Workers would affect tens of thousands of workers.

The 1998 Census of Horticultural Specialties reported 19,876 operations had 376,194 jobs and total payrolls of $3.6 billion in horticultural specialties (including some that would not have be covered under a pre-1947 NLRA definition). See, U.S. Department of Agriculture, 1998 Census of Horticultural Specialties, Tables 19,49, and 50. http://www.nass.usda.gov/census/census97/horticulture/horticulture.htm

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The Right to Organize is an Inherent Right of Workers

The right of workers to organize collectively is a fundamental human right recognized by the United States as a principal of international law.

International Law Protection

 See Brief of Amicus Curiae: Labor, Civil Rights and Immigrants’ Rights Organizations in the United States, Appendix C, Table 1, Inter-American Court of Human Rights, In the Matter of Request for Advisory Opinion Submitted By the Government of the United Mexican States, OC-18.[1>

* American Declaration of the Rights and Duties of Man (ADHR or American Declaration),[2> Article XXII Right of Association

* American Convention on Human Rights (ACHR or American Convention),[3> Art. 16.1-16.2

* Organization of American States (OAS) Charter, Article 45(c) & 45(g)

* International Covenant on Civil and Political Rights,[4> Article 22

* International Covenant on Economic, Social and Cultural Rights (ICESCR),[5> Article 8

* International Labour Organization (ILO) Convention 87,[6> Article 2;

* International Labour Organization (ILO) Convention 98, Article 1.1 

* North American Agreement on Labor Cooperation Between the Government of the United States of America, the Government of Canada, and the Government of the United Mexican States (NAALC),[7> Articles 2 and 4

* Universal Declaration of Human Rights (UDHR),[8> Article 23.4

International Law

Organization of American States Charter (1951), Article 45(c):

*    Employers and workers, both rural and urban, have the right to associate themselves freely for the defense and promotion of their interests, including the right to collective bargaining and the workers' right to strike, and recognition of the juridical personality of associations and the protection of their freedom and independence, all in accordance with applicable laws…”

International Covenant on Economic, Social and Cultural Rights, Article 8

*      (a) The right of everyone to form trade unions and join the trade union of his choice, subject only to the rules of the organization concerned, for the promotion and protection of his economic and social interests. No restrictions may be placed on the exercise of this right other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others;

*      (b) The right of trade unions to establish national federations or confederations and the right of the latter to form or join international trade-union organizations;

*      (c) The right of trade unions to function freely subject to no limitations other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others;

*      (d) The right to strike, provided that it is exercised in conformity with the laws of the particular country.

First Amendment Speech Protections

See, Babbitt v. United Farm Workers, 442 U.S. 289 (1979):

 …Accepting that the Constitution guarantees workers the right individually or collectively to voice their views to their employers, see Givhan v. Western Line Consolidated School Dist., 439 U.S. 410 (1979); cf. Madison School Dist. v. Wisconsin Employment Relations Comm'n, 429 U.S. 167, 173 -175 (1976), the Constitution does not afford such employees the right to compel employers to engage in a dialogue or even to listen.

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Marginalization of Undocumented Workers – Hoffman Plastics

The U.S. Supreme Court held in Hoffman Plastic Compounds, Inc. v. NLRB,    U.S.     , (March 27, 2002) that the NLRB does not have statutory authority under its remedial scheme to order payment of wages lost by an undocumented worker as a result of his firing for union activities.

The U.S. Supreme Court in Hoffman Plastic Compounds, Inc. v. NLRB ruled:

   “…allowing the Board to award backpay to illegal aliens would unduly trench upon explicit statutory prohibitions critical to federal immigration policy, as expressed in IRCA. It would encourage the successful evasion of apprehension by immigration authorities, condone prior violations of the immigration laws, and encourage future violations.”

The General Accounting Office “Collective Bargaining Rights:  Information on the Number of Workers With and Without Collective Bargaining Rights” GAO 02-835 (September 2002) estimates that undocumented alien workers potentially affected by the Hoffman decision are estimated to number 5.5 million. See:http://www.gao.gov/new.items/d02835.pdf

Actual impact on workers of Hoffman Plastics decision is much larger.  It impacts on mixed documented / undocumented households and any workplace with significant minority of undocumented workers in workforce. 

See report of Mexican American Legal Defense Fund and National Employment Law Project (January 2002): The Treatment of Undocumented Victims of Labor Law Violations Since Hoffman Plastic Compounds V. NLRB, http://www.nelp.org/pub230.pdf

Workers Compensation: Undocumented Workers

Following the U.S. Supreme Court decision in Hoffman Plastics the right of undocumented workers to receive workers compensation benefits has increasingly come under attack. 

See:  Mexican American Legal Defense Fund and National Employment Law Project “Used and Abused: The Treatment of Undocumented Victims of Labor Law Violations Since Hoffman Plastic Compounds V. NLRB” (January 2003) http://www.nelp.org/pub230.pdf at page 5.

*     Pennsylvania recognizes the right of undocumented foreign workers to pursue claims for workers compensation benefits even when they are not authorized to work.    Continuing benefits for partially disabled benefits undocumented workers may not be available.  Reinforced Earth Company v. Workers Compensation Appeal Board,     A.2d      (Pa. Supreme Court, Nov. 6, 2002).   

*        The Michigan Court of Appeals held in January 2003 that undocumented workers cannot receive workers compensation weekly benefits from the point that the employer terminates their employment for presentation of false documents.  Sanchez v. Eagle Alloy, Inc. and Vasquez v. Eagle Alloy, Inc., No. 238003 and 239592 WCAC, 2003 WL 57544,     A.2d   (Mich. Ct. App 2003).

*     In most states undocumented workers continue to qualify for workers compensation benefits, but employers and insurance carriers can be expected to continue to challenge such benefits.

FLSA Claims for Unpaid Wages for Undocumented Workers

*    Unpaid minimum or overtime wage claims and claims for liquidated damages by an undocumented worker should not be affected by the U.S. Supreme Court decision in Hoffman Plastics.  See:  U.S. Department of Labor, Employment Standards Administration, Wage and Hour Division, Fact Sheet #48: Application of U.S. Labor Laws to Immigrant Workers: Effect of Hoffman Plastics decision on laws enforced by the Wage and Hour Division

*    The U.S. Department of Labor, Wage and Hour Division does not give the INS information on the immigration status of workers making complaints to it. See, Memorandum of Understanding Between the Immigration and Naturalization Service, Department of Justice and the Employment Standards Administration, Department of Labor, November 23, 1998.  http://www.dol.gov/dol/esa/public/whatsnew/whd/mou/nov98mou.html

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Retaliation Protections

Absence of effective retaliation protections under the NLRA makes it particularly important to examine other statutes and theories that provide retaliation protections for workers (including undocumented workers).

FLSA Claims for Retaliation

 29 U.S.C. Sec. 215(a)(3) provides that it shall be unlawful:

“…to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee.”

29 U.S.C. Sec. 216(b) provides:

“Any employer who violates the provisions of section 215(a)(3) of this title shall be liable for such legal or equitable relief as may be appropriate to effectuate the purposes of section 215(a)(3) of this title, including without limitation employment, reinstatement, promotion, and the payment of wages lost and an additional equal amount as liquidated damages.”

FLSA retaliation claims can be brought in a direct cause of action not merely as an administrative complaint.  29 U.S.C. Sec. 216(b).

FLSA Claims for Retaliation and Undocumented Workers

It is unknown at this time whether courts will construe the broad remedial language of 29 U.S.C. Sec. 216(b) as authorizing shaping of appropriate retaliation remedies for undocumented workers. 

 Legal relief, as contemplated by the FLSA, includes both compensatory and punitive damages.  Broad remedial provisions may survive rationale of Hoffman Plastics decision.

See, Travis v. Gary Community Mental Health Ctr., Inc., 921 F.2d 108, 111 (7^th Cir. 1990).  Marrow v. Allstate Security and Investigative Services, Inc., 2001 U.S. Dist. LEXIS 17508 (E.D.Pa. Oct. 4, 2001)  (Judge Pollock)

*     But see, Snapp v. Unlimited Concepts, Inc., 208 F.3d 928 (11th Cir. 2000) (rejecting Plaintiff’s argument that “legal relief” includes punitive damages, finding section 216(b) to be compensatory in nature, and designed to make the Plaintiff whole).

Other Retaliation Protections

Migrant and Seasonal Agricultural Worker Protection Act  Retaliation claims can be made under the Migrant and Seasonal Agricultural Worker Protection Act, 29 U.S.C. § 1855, for covered workers and can be enforced by private cause of action without exhaustion of administrative remedies.

Occupational Safety and Health Act

*    The Occupational Safety and Health Act, Section 11(c), 29 U.S.C. § 660(c), includes an administrative procedure for protecting workers retaliated against for health and safety complaints.  See, 29 U.S.C. § 660(c):

            “(c)(1) No person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act or has testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of himself or others of any right afforded by this Act.    

              “(2) Any employee who believes that he has been discharged or otherwise discriminated against by any person in violation of this subsection may, within thirty days after such violation occurs, file a complaint with the Secretary alleging such discrimination. Upon receipt of such complaint, the Secretary shall cause such investigation to be made as he deems appropriate. If upon such investigation, the Secretary determines that the provisions of this subsection have been violated, he shall bring an action in any appropriate United States district court against such person. In any such action the United States district courts shall have jurisdiction, for cause shown to restrain violations of paragraph (1) of this subsection and order all appropriate relief including rehiring or reinstatement of the employee to his former position with back pay.    

              “(3) Within 90 days of the receipt of a complaint filed under this subsection the Secretary shall notify the complainant of his determination under paragraph 2 of this subsection.”

See, Discrimination Against Employees Who Exercise Their Safety and Health Rights, http://www.osha.gov/as/opa/worker/whistle.html

In states with approved state OSHA plans, it is important to also look at state law.

The reach of the remedial provisions of OSHA 11(c)(2) to protect undocumented workers are likely to be challenged following Hoffman Plastics.

Claims Before the Equal Employment Opportunity Commission (EEOC)

Retaliation is Prohibited Under:

*     Title VII of the Civil Rights Act of 1964, Section 704(a) of Title VII, 42 U.S.C. § 2000e-3(a). 

*     The Age Discrimination in Employment Act, Section 4(d) of the ADEA, 29 U.S.C. § 623(d). 

*     The Americans with Disabilities Act, Section 503(a) of the ADA, 42 U.S.C. § 12203(a) and Section 503 (b) of the ADA, 42 U.S.C.12203(b).

*     the Equal Pay Act, Section 15(a)(3) of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 215(a)(3).

 See:  http://www.eeoc.gov/docs/retal.html

EEOC may continue to pursue enforcement proceedings for undocumented workers facing race and national origin discrimination.

See:  EEOC directives transmittal Number 915.002 June 27, 2002: http://www.eeoc.gov/docs/undoc-rescind.html:

“The Supreme Court's decision in Hoffman in no way calls into question the settled principle that undocumented workers are covered by the federal employment discrimination statutes and that it is as illegal for employers to discriminate against them as it is to discriminate against individuals authorized to work. When enforcing these laws, EEOC will not, on its own initiative, inquire into a worker's immigration status. Nor will EEOC consider an individual's immigration status when examining the underlying merits of a charge. The Commission will continue vigorously to pursue charges filed by any worker covered by the federal employment discrimination laws, including charges brought by undocumented workers, and will seek appropriate relief consistent with the Supreme Court's ruling in Hoffman. Enforcing the law to protect vulnerable workers, particularly low income and immigrant workers, remains a priority for EEOC.”

Retaliation Protections: 42 U.S.C. Sec. 1981

42 U.S.C. Sec. 1981, as amended by the Civil Rights Act of 1991, provides:

“All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exaction of every kind, and to no other.”

In Runyon v. McCrary, 427 U.S. 160, 168, 174-75 (1976), the Supreme Court held § 1981 prohibited discrimination in the making and enforcing of contracts on the basis of race. 

In Saint Francis College v. Al-Khazraji, 481 U.S. 604, 613 (1987) the Court elaborated on the definition of racial discrimination, holding:

“Based on the history of § 1981, we have little trouble in concluding that Congress intended to protect from discrimination identifiable classes of persons who are subjected to intentional discrimination solely because of their ancestry or ethnic characteristics.  Such discrimination is racial discrimination that Congress intended § 1981 to forbid, whether or not it would be classified as racial in terms of modern scientific theory."

Plaintiffs are entitled to punitive damages under Sec. 1981

Undocumented workers should remain protected under Sec. 1981 after Hoffman Plastics since protections reach “all persons.”

State Law Tort Claims for Wrongful Discharge and Other State Law Claims

*    State law will determine possibility of tort claim for wrongful discharge if discharge.

*      State law may include additional statutory causes of actions protecting workers.

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Organizing the Unorganized

AFL-CIO Executive Council: Immigration February 16, 2000

“Current efforts to improve immigration enforcement, while failing to stop the flow of undocumented people into the United States, have resulted in a system that causes discrimination and leaves unpunished unscrupulous employers who exploit undocumented workers, thus denying labor rights for all workers.

“We strongly believe employer sanctions, as a nationwide policy applied to all workplaces, has failed and should be eliminated. It should be replaced with an alternative policy to reduce undocumented immigration and prevent employer abuse. Any new policy must meet the following principles: 1) it must seek to prevent employer discrimination against people who look or sound foreign; 2) it must allow workers to pursue legal remedies, including supporting a union, regardless of immigration status; and 3) it must avoid unfairly targeting immigrant workers of a particular nationality.”

See:  http://www.aflcio.org/aboutaflcio/ecouncil/ec0216200b.cfm.  See also, July 2001 http://www.aflcio.org/aboutaflcio/ecouncil/ec0731a2001.cfm and August 2002 http://www.aflcio.org/aboutaflcio/ecouncil/ec0807d2002.cfm.

Organizing the Unorganized

*     Organized labor has long professed to place a high value on the organization of unorganized labor.

*     Recent changes within the AFL-CIO national leadership have helped to focus greater resources and commitment to this task. 

*     However, the barriers to effective organization of the organized remain substantial.    This is particularly true amongst limited English proficiency immigrant and migrant workers.

Alternative Organizing Models

Organized labor would benefit from studying alternative community based organizing strategies employing popular education models to support immigrant communities engaging in collective action.

History of support for farmworker and mushroom worker organizing in Pennsylvania and New Jersey by Comité de Apoyo a los Trabajadores Agrícolas ("CATA") is a useful model to examine.

Worker Rights Law Projects can support community education and advocacy in conjunction with community based organizing strategies.

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Contingent Work Abuse

“Contingent Workers” have been marginalized as a result of their legal classification.  Workers from immigrant communities often find employment opportunities as “contingent workers.

See:  From Orchards to the Internet: Confronting Contingent Work Abuse A Report from the National Employment Law Project and the Farmworker Justice Fund (2002) http://nelp.org/swi/.  Download: http://www.nelp.org/pub120.pdf

*     Labor subcontracting in its various forms affects a significant portion of today’s workforce.

*     Subcontracting includes the use of temporary help agencies, labor contractors, labor leasing firms, and outsourcing.

*     The subcontractor may be used by the larger company to perform all or part of a project that requires production of goods or provision of services.

*     Labor subcontracting can also entail an outsourcing of human resource functions, such as recruitment, hiring, payroll, and transportation.

Contingent Work Abuse

Those subcontracted workers suffering the worst conditions are likely to be immigrant workers (both documented and undocumented) and “guest workers” (who technically are “nonimmigrants” employed in temporary jobs under temporary visas).

Labor subcontracting often is used in an effort to reduce labor costs by using a subcontractor who will pay workers less than the larger company would have paid.

In many cases, the subcontractors are not paid enough to comply with their legal obligations toward workers or to pay a court judgment.

Many employers engaged in subcontracting seek to avoid minimum wage, overtime, and other legal responsibilities applicable to “employers,” by characterizing the subcontractor as the sole “employer.”

The reality in many cases is that the subcontracting company retains substantial control over the work performed by subcontracted workers because it will not take the financial risk of entrusting its business plans to labor contractors.

Independent Contractors

Independent contractors are categorically excluded from the reach of federal and state employment and labor laws.

Employers often deliberately misclassify their temporary, leased, and other workers as independent contractors. Even in situations where employers closely control workers’ performance, they skirt employment laws by providing workers with contract documents specifying that workers are independent contractors.

“Self-Employed” Workers

Subcontracted “Self-Employed” Workers in the absence of joint employer liability, subcontracting allows employers:

*     to deny  workers fringe benefits,

*    to avoid paying Social Security and other taxes, and

*    to use the lack of a direct employment relationship as a defense to claims brought against them under worker protection laws.

*    Workers must pay self-employment taxes and are deprived of virtually all legal protections.

Temporary Guestworker Programs

Temporary Guestworker Programs such as the non-agricultural H-2B and the agricultural H-2A programs are designed to create a legally marginalized temporary non-immigrant workforce unable to organize and act collectively for better wages and working conditions.

*   Workers employed under guestworker programs are tied to particular employers and are subject to critical threats to collective activity through the employer control over which workers are allowed to re-enter the country.

*   Proposals for expanded guestworker programs are likely to be pursued legislatively by employers.

*     H-2B workers are denied the right to representation by Legal Services Corporation funded programs.

See, discussions at:

*    Farmworker Justice Fund, “The Basics About Guestworker Programs” at http://www.fwjustice.org/talking.htm

*   California Rural Legal Assistance Foundation “National Clearinghouse On Agricultural Guest Worker Issues” at http://www.crlaf.org/gworkers.htm

*   Federation for American Immigration Reform (FAIR) “Permanent Guests: How Guestworker Programs Harm America” at http://www.fairus.org/html/04194302.htm

*     Center for Immigration Studies, “Guestworker Programs: A Threat to American Agriculture” at http://www.cis.org/articles/2001/back801.html

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Subcontracting: the Legal Framework

From Orchards to the Internet: Confronting Contingent Work Abuse: 

Appendix A: Subcontracting: the Legal Framework  http://nelp.org/appendices/swi/a/goldsteinlegal.pdf

*     By: Bruce Goldstein, Farmworker Justice Fund;

*     Cathy Ruckelshaus, National Employment Law Project;

*     Larry Norton, Texas Rural Legal Aid and Community Justice Project; and

*     Brent Garren, UNITE, the Union of Needletrades and International Textile Employees

The key to addressing abuse of contingent workers lies in establishing joint employer liability rather than allowing the economic beneficiaries of such abuse to escape liability.

See, discussion in http://nelp.org/appendices/swi/a/goldsteinlegal.pdf on:

*    The National Labor Relations Act

*    The Fair Labor Standards Act and Agricultural Worker Protection Act

*    The Occupational Safety & Health Act

*    The Equal Employment Opportunity Act

*    The Family & Medical Leave Act

*    The Federal Insurance Contributions Act and Federal Unemployment Insurance Act.

National Labor Relations Act: Employers

*    The legal test for determining “employee” status under the NLRA is the common law agency test that examines factors to determine whether the company possesses the “right to control” the manner in which the work is performed.    This standard is both restrictive and unpredictable in outcome.

*    The Single Employer Theory: Two Businesses Acting as One

*    The Joint Employer Theory: Two or More Employers of a Worker where separate entities:

“share or codetermine matters governing essential terms and conditions of employment. . . . The employers must meaningfully affect matters relating to the employment relationship such as hiring, firing, discipline, supervision, and direction.”

National Labor Relations Act – Joint Employers

The NLRB has found joint employer status in some instances, particularly where the dominant enterprise, or “user employer,” utilizes workers from a temporary worker agency, employee leasing company or other “supplier employer.”

*    See, M.B. Sturgis, Inc., 331 N.L.R.B. 173 (2000)

*    Employers hope to have current NLRB overturn Sturgis

Laws With a Broad Definition of Employment Relationships

*   Fair Labor Standards Act of 1938

*   Migrant and Seasonal Agricultural Worker Protection Act of 1983

*   Equal Pay Act

*     "'Employ' includes to suffer or permit to work."

*     "'Employer' includes any person acting directly or indirectly in the interest of an employer in relation to an employee."

*     The Supreme Court, in Nationwide Mutual Insurance v. Darden (1992), reiterated that the FLSA definition's "striking breadth" in comparison to the common law's narrow "right to control" standard.

*     In 1937, then-Senator, later-Justice, Hugo Black described it as "the broadest definition that has ever been included in any one act."

*     In enacting FLSA, Congress concluded that substandard working conditions harmed workers and also constituted an "unfair method of competition" that harmed law-abiding, decent companies.

*     Legislators understood that their goal of eliminating these harms would be undermined if companies could engage in subcontracting to avoid responsibility as employers and blame all violations of the law on subcontractors. One of its tools was a broad definition of employment relationships.

*     A court will look at the “economic reality” of a worker's relationships with alleged employers and will de-emphasize contractual labels and technical concepts developed under the common law. It will try to determine whether the worker is “economically dependent” on the alleged employer(s).

*     This "economic dependence/economic reality" standard is broader than common law and than other "economic reality" tests (such as under the Occupational Safety and Health Act).

The Occupational Safety & Health Act - Employers

*    The purpose of the federal Occupational Safety and Health Act (OSH Act) is to ensure "so far as possible [to] every working man and woman in the Nation safe and healthful working conditions."

    Occupational Safety and Health Review Commission (OSHRC) in considering whether an employment relationship exists relies primarily on who has control over the work environment such that “abatement” of occupational hazards can be obtained.

*     Because the OSH Act does not contain a special definition of employment relationships, recent Supreme Court holdings probably require application of the common law definition. See Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318 (1992).

*     Anticipating that the Supreme Court would probably reject any modification of the common law test, the OSHRC now says that there is no practical difference between its current test and the common law standard. Loomis Cabinet Co., 1992 OSAHRC Lexis 65 (1992), Loomis Cabinet Co. v. OSH Review Commission, 20 F.3d 938 (9th Cir. 1994).

The Equal Employment Opportunity Act - Employers

Discrimination in hiring and employment on the basis of sex, race, and national origin is outlawed by the Equal Employment Opportunity Act, also known as Title VII of the Civil Rights Act of 1964.

*     Courts generally have followed Title VII’s  approach to subcontracting issues when ruling on cases under the Age Discrimination in Employment Act (ADEA) and the Americans with Disabilities Act (ADA).

*     Companies can be engaging in discrimination on the basis of national origin, race, or sex by selecting labor subcontractors according to the makeup of their crews.

*     Such companies often will argue that they are not liable for the discrimination because it is the subcontractors who control their own work forces.

*     In other situations, employment agencies will refer workers to jobsites where workers suffer discrimination or sexual harassment.

*     Recent court opinions on subcontracting under Title VII have applied the restrictive approach that has been developed under the National Labor Relations Act.

*     A minority of court decisions has concluded that particular language in Title VII requires a more generous view of employment relationships.

*    Specifically, although Title VII does not contain any special definitions of “employee” or “employer,” it prohibits discrimination against any “individual,” and not merely against an employee, and it imposes liability on employers as well as their “agents.”

The Equal Employment Opportunity Act Employment Agency Liability

*   Title VII makes it unlawful for an employment agency to discriminate in the job referral process. The fifteen-employee requirement applicable to employers does not apply to referral agencies being sued for referral activities.

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Addressing Hoffman Plastics and the Marginalization of Workers

*      No legislation to address Hoffman Plastics decision was introduced in the 107^th Congress ending in December 2002.  The Hoffman Plastics decision will continue to undercut rights for all workers until addressed by legislative action.

*        Appropriation Riders to Legal Services Corporation funding have continued to deny undocumented workers and temporary non-immigrant guest workers under the H-2B program representation by any program which accepts Legal Services Corporation funding.

*        Changes to Guestworker Programs should not only seek to protect workers otherwise in the country, but should provide freedom of choice of employers to guestworkers.

*      State and local legislative action could address some issues affecting legally marginalized workers.  See, National Employment Law Project “LOW PAY, HIGH RISK: State Models for Advancing Immigrant Workers' Rights”  http://www.nelp.org/lowpayhighrisk/toc.htm or download at: http://www.nelp.org/pub229.pdf