Employment and Labor Law: For Urban Farmers and Gardeners

Both non-profit and for-profit urban farms with employees are subject to state and federal employment laws and regulations.  Failing to understand and comply with applicable employment laws can lead to fines and other penalties.  

Pennsylvania Department of Labor (DLI) & Industry is responsible for enforcing many employment related laws and regulations.

  • The DLI Bureau of Labor Law Compliance is responsible for laws relating to workplace safety such as workplace injuries, laws relating to Workers’ Compensation Act and the enforcement of wage and hour laws, including Minimum Wage, Child and Seasonal Farm Labor, and Equal Pay and Wage Collections laws. 

For more information on the Department of Labor & Industry or the Pennsylvania laws it is responsible for administering and enforcing, see:  http://www.dli.state.pa.us

 

The United States Department of Labor handles a variety of federal employment laws such as: 

  • Wage and hour laws,
  • Workplace safety laws primarily through OSHA – the occupational Safety and Health Administration
  • Laws relating to employee leave benefits (such as the Family and Medical Leave Act
  • Affirmative action laws
  • Disability related laws (especially the Americans with Disabilities Act)

 

For more information on the U.S. Department of Labor and the laws it administers and enforces, see:  http://www.dol.gov/dol/topic

 

Gardeners and farmers must also consider state and federal Equal Employment Opportunity laws

  • The Pennsylvania Human Relations Commission (PHRC) enforces Pennsylvania’s workplace anti-discrimination laws, primarily the Pennsylvania Human Relations Act. 
  • The United States Equal Employment Opportunity Commission (EEOC) enforces federal anti-discrimination laws, such as Title VII, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Equal Pay Act. 

For more information on the PHRC or the Pennsylvania Human Relations Act, see:  http://www.phrc.pa.gov/About-Us/Pages/About-PHRC.aspx.  For more information on the EEOC and the laws it enforces, see:  http://www.eeoc.gov

What is the legal definition of a volunteer? 

A volunteer is a person who donates services for public service, religious, or humanitarian objectives, usually on a part-time basis.  To be a volunteer, you must donate services without expecting pay and in the absence of threats or coercion to volunteer.  As such, volunteers are not subject to wage and hour laws.  Volunteers are also not considered employees of the organizations that receive their services.

Individuals who believe they are volunteering may actually be considered employees if they receive some form of compensation.  Therefore, non-profit farms with volunteers should ensure that volunteers do not become dependent on the farm’s resources.

Although volunteers may not donate their services with the intention of receiving compensation, volunteers may be paid some expenses, receive benefits or “perks” such as lunch while volunteering or a token “thank you” gif, or may receive a nominal fee to perform services. 

 For more information regarding the definition of a volunteer, see:  http://webapps.dol.gov/elaws/whd/flsa/docs/volunteers.asp

 May volunteers or employees work without compensation on non-profit farms?

Generally, volunteers may work on non-profit urban farms.  However, employees of the farm may not volunteer their services in the same capacity for which they are employed.  For example, an employee who works as a fundraiser for an urban farm may not also volunteer for the farm at a fundraising event.  However, that same employee may volunteer to work in the garden so long as helping in the garden is not part of that employee’s normal job description. 

Can a for-profit urban farm have volunteers? 

For-profit urban farms may not have volunteers.  In general, people working for private, for-profit employers have to be paid at least the minimum wage and cannot volunteer their services.  Even friends and family members of employees who work on a for-profit farm qualify as employees and may not volunteer their services.  For-profit farms may develop internship programs to permit unpaid individuals to work on the farm.

For more information regarding the definition of a volunteer, see http://webapps.dol.gov/elaws/whd/flsa/docs/volunteers.asp

 

What is the definition of an intern, and how does this apply in the urban farm context? 

Both for-profit and non-profit urban farms may host interns.  An internship program is one way for unpaid individuals to work on a for-profit farm.  However, the criteria for a valid internship are narrow.  An internship program must meet the following six criteria, according to the Fair Labor Standards Act:

  • The internship, even though it includes actual operation of the facilities of the employer, is similar to training that would be given in an educational environment;
  • The internship experience is for the benefit of the intern;
  • The intern does not displace regular employees, but works under close supervision of existing staff;
  • The employer that provides the training derives no immediate advantage from the activities of the intern and on occasion its operations may actually be impeded;
  • The intern is not necessarily entitled to a job at the conclusion of the internship;
  • The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship. 

For more information on the criteria for a valid internship program, see:  http://www.dol.gov/whd/regs/compliance/whdfs71.htm

 

What about internships where individuals are paid, but at less than minimum wage?

Employers can generally pay less than minimum wage if one of the following is met, according to the Fair Labor Standards Act:

  • Student learners (vocational education students).
  • Full-time students in retail or service establishments, agriculture or institutions of higher education.
  • Individuals whose capacities for the work to be performed are impaired by physical or mental disabilities, including those related to age or injury.

 If the above criteria are not met, interns cannot be paid less than minimum wage, since they are not considered “unpaid interns.”   In many cases, employers may offer benefits (such as housing or food) in addition to a stipend in order to reach minimum wage.  The employer must be careful to indicate these nonmonetary wages in his or her records and ensure employees are aware of these wages, or else this part of the wages cannot be claimed by the employer as meeting minimum wage.  To report a violation, make a complaint, or for more information, contact: U.S. Labor Department Wage & Hour Division at (215) 597-4950.

What is the difference between an employee and independent contractor?  

The distinction between independent contractors and employers is important, since it will affect how the farm withholds a variety of taxes, including income, Social Security, and Medicare taxes, and how the farm pays for state-provided unemployment insurance and worker’s compensation benefits. 

The line between an independent contractor and an employee is not always clear.  Workers are not independent contractors simply because the farm says they are.  There are a number of factors and various tests used to determine if an individual is an independent contractor or an employee.  Generally, an independent contractor needs to be:

  • a part of an independently established profession or business through which services are provided to the farm, and free from control or direction by the farm over the performance of such services.

For example, a person regularly working at an urban farm and whose hours are controlled by the farm, who is supervised in his or her duties by farm management, and who is provided all needed materials and supplies by the farm would not be considered an independent contractor. 

Independent contractors may also set the terms of the work arrangement with an urban farm, which could include working for free.  For example, an attorney providing services for an urban farm may choose to provide those services free of cost.  In this case, the attorney’s relationship to the farm is as an independent contractor, not an employee of the farm.  

Many businesses have tried to get around compliance with employment regulations and payment of taxes by improperly classifying workers as independent contractors.  This is very risky, as Pennsylvania imposes significant fines for this misclassification and businesses may be subject to civil and criminal penalties as a result.

For more informationon the independent contractor and necesarry criteria, see http://www.irs.gov/businesses/small/article/0,,id=99921,00.html