To comply with AJP Standards (3.3.1-12), farms must either 1) pay employees living wages, calculated for the local conditions; or 2) meet several conditions:
- show the farm’s accounting to employees in order to explain why they can’t afford to pay livings wages yet;
- negotiate wages with employees;
- work with employees to develop a plan to raise revenues and lower costs, in order to achieve living wages;
- raise wages when profits increase;
- pay the highest paid employee not more than 8x the lowest paid employee.
See AJP’s Living Wage Calculation Worksheet, Links, & Guidance for tools for calculating a living wage for your workplace.
How the law distinguishes between farm work and other work #
Farm workers are frequently covered by a different set of legal regulations than other workers, and farm workers typically have fewer protections and rights in this tiered system. However, legal distinctions regarding what counts as farm labor are very specific, and many employees of farms regularly perform work that exceeds the legal definitions of farm labor, thus bumping those employees out of the category of farm workers and earning them a whole different set of rights and protections related to minimum wages, overtime, working conditions, collective bargaining rights, and more.
These categories of work especially affect minimum wages and overtime. Note that enforcement for these laws is typically handled by state Departments of Labor, and different states’ departments have differing legal interpretations of these categories. A number of states also have enacted laws that directly address minimum wages and overtime of farm workers. We sketch out basic concepts of minimum wages and overtime below, but there is too much variation across states for us to cover here. You must seek out legal guidance tailored to your jurisdiction.
You should also not assume that a given practice is legal just because farmers in your area engage in it. For practices ranging from apprenticeships to overtime, even small-scale farmers have faced stiff penalties in recent years for not following the letter of the law.
Federal & State Minimum Wage Laws #
Federal and state wage and hours laws protect workers’ rights to be paid for all of the hours they work.
A minimum wage is the legally mandated lowest hourly rate of pay that an employer can pay an employee. Farm workers are often excluded from the minimum wage and overtime protections afforded to workers in general.
A living wage is the lowest wage required to provide for life’s necessities and allow for a life of dignity. (For more information see the section on living wages.)
Generally speaking, a legally mandated minimum wage is far below a living wage, whether that minimum wage is for farm workers specifically or workers in general. With farm minimum wages the situation is particularly dire. With a few recent exceptions, minimum wages in most jurisdictions (including federally) are fixed and not adjusted for inflation or rising cost of living.
Even if you pay your workers a living wage-level hourly rate, you may be subject to additional legal requirements based on overtime laws (e.g., time and a half based on their regular hourly rate), etc. If you are not yet able to pay your workers a living wage, you need to make sure you are at least paying them the legally required minimum wage and complying with all other wage, hour, and overtime regulations. To determine the minimum wage and other applicable regulations for farm workers in your business, consult guidance that is written specifically for your state.
Piece work #
Some farmers pay a “piece rate” for harvesting certain crops which incentivizes workers to pick faster. They pay a certain amount per pound or case. State and federal laws require that the “piece rate” be set so that the slowest worker still makes minimum wage. Therefore, the farmer must have a good system for keeping track of each worker’s pickings, or else risk being accused of wage theft. Some farmers decide it’s easier to comply with the law with an hourly wage approach. A fairer way to incentivize faster harvest speed would be to pay an hourly wage plus some kind of bonus for fast picking.
AJP Standards require that farms eliminate the piece rate and instead pay by the hour. Standard 3.3.1.e.
Whether a worker is entitled to time and a half for overtime depends on both the federal and state definitions of farmwork. In some states, if you are driving a delivery truck, packing vegetables from another farm, or selling at a farmers’ market, you are not doing farm work. Employers may have to pay workers differently if they are doing both farm and non-farm work. In A Legal Guide to the Business of Farming in Vermont (2006), attorney Annette Higby helps us understand federal law:
The FLSA uses a two-pronged definition of agriculture that includes both primary agricultural activities as well as those activities that are secondary or incidental to carrying out the farming operation. The primary definition includes “farming in all of its branches” – cultivation and tillage, dairying, growing and harvesting horticultural crops, raising livestock, bees, fur-bearing animals, and poultry. Anyone performing these activities is engaged in agriculture regardless of whether he or she is employed by a farmer or on a farm.
Agriculture—and thus the exemption—also includes activities that are secondary to the farming operation. Those activities must be performed by a farmer on a farm “as an incident to or in conjunction with such farming operations” to be considered “agriculture.” For example, employees who build a silo or a terrace, or those who dig a stock well, are exempt when those activities are performed in conjunction with a farming operation. Logging activities, for example, are also exempt when they are part of a farming operation. But when these employees work for an employer engaged exclusively in forestry or lumbering, they are not considered agricultural employees. These secondary activities must be subordinate to the farming operation. If they amount to a separate business, they lose the agricultural exemption.
Because laws and interpretations vary state to state, you should seek out local guidance on your legal obligations regarding overtime pay.
AJP does not specifically require time and a half for overtime. However, all overtime must be voluntary (Standard 3.3.4.d). Farmers cannot require a worker to work more than 48 hours per workweek. Work beyond this threshold is considered voluntary overtime and must be agreed to by the worker. If a farm expects that overtime will be necessary, employees should know this when taking a job on the farm; then when overtime is needed the farmer or manager can request overtime work. Farms must negotiate an overtime policy with workers for those who opt to work more than 48 hours per week. **(**Standards 3.3.4. and 3.3.11.) Additionally farmers must offer at least one day of rest out of every seven (Standard 3.3.4.b); any work on the seventh day must be voluntary.
Deductions & Withholdings #
Employer cannot make any deductions from wages, unless:
- Required by law (taxes, child support orders), OR
- A worker agrees in writing & deductions are for the benefit of the worker
Federal and state tax withholding depends on how many exemptions an employee declares on their W-4. This amount comes out of the paycheck and is paid quarterly to the state and federal government.