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NORTH CAROLINA FARM LABOR REGULATIONS
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Immigration

The Immigration Reform and Control Act of 1986 (IRCA) states that employers must hire only American citizens and aliens who are authorized to work in the United States. Form I-9 was developed to verify that persons are eligible to work in the United States. The law requires an employer to: (1) have all employees fill out their part of Form I-9 when they begin work; (2) check documents establishing each employee's identity and eligibility to work; (3) properly complete Form I-9; (4) retain the form for at least three years; and (5) show the I-9 to officials if requested. Form I-9 must be completed within three business days of the hiring date. If the person is employed for fewer than three days, an employer must complete Form I-9 before the end of the employee's first working day. The employer must retain the I-9 for three years after the date the person begins work or one year after employment is terminated, whichever is later. Form I-9 is available from the Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402.


Employment Discrimination

The IRCA also prohibits discrimination against citizens and work-authorized noncitizens. Employers must consider all qualified people with work authorization, whether citizen or noncitizen. Employers must accept any document listed in the INS Handbook for Employers and may not arbitrarily specify an INS document or require additional documents. Employers may not refuse to hire a qualified worker whose employment authorization expires at a later date. Employers may be penalized and may also be forced to pay back wages if they commit immigration-related employment discrimination.

Social Security

Farmer-employers must withhold and pay Social Security taxes if they employ one or more agricultural workers, including parents, children 18 years or older, or spouses, and meet either of these two requirements: (1) they pay the employee $150 or more in cash wages during the year; or (2) they pay a total of at least $2,500 in cash wages to all employees during the year. Farmers are exempt from withholding and paying Social Security taxes on the following wages: (1) wages paid to aliens lawfully admitted to the United States under the H-2A program; (2) wages paid the farmer's child(ren) under 18 years of age; and (3) wages paid in farm commodities.

Income Tax Withholding

Farmers generally must withhold state and federal income taxes from agricultural wages if the wages are subject to FICA (Social Security) tax withholding. Each employee should complete Form W-4 (Employee's Withholding Allowance Certificate), and the employer should keep a copy.

Unemployment Tax

Farmer-employers must pay state and federal unemployment tax under certain circumstances. These rules do not apply to the employer's spouse, parents, or children under age 21. The unemployment tax is imposed only on the employer; it must not be deducted from the wages of the employee. For more information, contact the North Carolina Employment Security Commission.

Workers' Compensation

Any farmer who regularly employs 10 or more full-time, nonseasonal employees must purchase worker's compensation from a private insurer to cover employees should they sustain an injury on the job or contract an occupational disease. Workers' compensation insurance pays for an employee's job-related medical expenses, lost wages, rehabilitation, expenses resulting from permanent disability, and death benefits.

Minimum Wage

If a farmer employed fewer than 500 man-days of agricultural labor in any quarter of the preceding calendar year, he or she is exempt from having to pay the minimum wage the entire following calendar year. A "man-day" is defined as any day during which an employee performs agricultural labor for one hour or more. If covered under the Fair Labor Standards Act, a farmer must pay a minimum wage of $5.15 per hour to all employees. Also, the salary of employees paid on a piece-rate basis must be equal to the minimum wage or higher.

Overtime

Federal and state requirements for paying overtime wages do not apply to agriculture. Note that forestry, including Christmas tree production, is not considered agriculture for purposes of calculating overtime wages. The frame of reference for calculating overtime is a calendar week. If an employee performs a mix of agricultural and nonagricultural labor during that week, all that employee's labor that week is classified as nonagricultural for purposes of calculating overtime wages.

Child Labor Provisions

Sixteen years is the minimum age for working in agriculture if the job is considered dangerous or performed during school hours. Fourteen years is the minimum age for working in an agricultural job if the work is performed outside school hours and not considered hazardous. Twelve- and thirteen-year-olds may be employed with written parental consent. Minors of any age may be employed by their parents at any time in any occupation on a farm owned or operated by their parents.
In North Carolina it is illegal to hire any youth under the age of 18 without a youth employment certificate. These certificates serve as an official statement of the child's age and will serve as a defense to accusations of some child-labor violations. These certificates may be obtained from the county directors of social services.

As of January 1, 1995, no child under the age of 12 years can ride in an open bed or cargo area of a vehicle that is without permanent restraining construction. Exceptions to this prohibition include when: (1) an adult is present in the bed or cargo area of the vehicle and supervises the child; (2) the child is secured or restrained by a seat belt meeting certain federal safety standards; (3) an emergency situation exists; (4) the vehicle is operated in a parade pursuant to a valid permit; (5) the vehicle is being operated in an agricultural enterprise; or (6) the vehicle is operated in a county that has no incorporated area with a population in excess of 3,500. Generally, individuals who are not family members of the farmer may not ride in the bed or cargo area of a vehicle that is without permanent seats and restraints.

Joint Employment

Joint employment denotes a situation in which an individual is considered an employee of two or more persons at the same time. Joint employment questions often arise about whether individuals employed by a farm labor contractor are also employed by the farmer. Factors used to determine if a joint employment relationship exists include the following: (1) the nature and degree of control of workers; (2) the degree of supervision of the work; (3) the power to determine pay rates or methods of payments; (4) the right to hire, fire, or modify the employment conditions of the workers; and (5) preparation of payroll and payment of wages. If a joint employment relationship existed, and the crew leader was unable to pay what was owed to the workers or to the government, the farmer could be held liable for wages and withheld taxes.

Vehicle Insurance

Farmers who transport farm workers and are subject to the Migrant and Seasonal Agricultural Worker Protection Act (MSPA) are required to have vehicle insurance of $100,000 per seat in the vehicle. For example, a 15-passenger van would require $1.5 million of insurance; a six-passenger car, $600,000 of insurance; an eight-passenger station wagon, $800,000 of insurance. For vehicles such as mini-buses or regular buses, the requirement is still $100,000 per seat with a maximum of $5 million per vehicle. In general, farmers subject to MSPA are those who employed 500 man-days of labor during any quarter of the previous calendar year.

Farm Labor Contractors

A farm labor contractor is a person who, for money or other valuable considerations, performs any farm labor contracting activity. As an employer, a farm labor contractor would recruit, solicit, hire, employ, furnish, or transport any migrant or seasonal agricultural worker. A farm labor contractor must obtain an authorization certificate to act as a labor contractor, transportation authorization if they transport workers, and housing authorization if they house seasonal workers. These certificates of registration authorize his or her activities. They can be obtained from the Wage and Hour Division of the Department of Labor, or from any office of the North Carolina Employment Security Commission.

Migrant Housing

If farmer-employers provide housing to one or more migrants employed in agriculture on a seasonal basis, they are covered by the Migrant Housing Act. If they own housing used by migrants or make arrangements to use someone else's property to house their migrant employees, it is the farmer-employer's responsibility to make sure that the housing meets certain specified standards and to notify the Department of Labor before the migrants move in. Farmers must notify the Department of Labor or the local health department at least 45 days before they expect migrant help to arrive. Employers may pick up notification forms at the county Cooperative Extension Service center, the local health department, or the local Employment Security Commission office, or they may write to the North Carolina Department of Labor, 4 West Edenton Street, Raleigh, NC 27601.

North Carolina Field Sanitation Standard

Farmers must provide: (1) one field toilet per 20 workers or fraction thereof; (2) hand-washing facilities; and (3) suitable cool, potable drinking water if they employ 11 or more workers on any given day. The same standards apply if a farmer provides housing for one or more migrant workers.

New Hire Reporting

Since October 1, 1997, North Carolina employers have been required to report to state government certain information about employees who have been newly hired, rehired, or returned to work. The information required is as follows: the name, address, and social security number of the new employee; your name, address, and both the federal and state employer identification numbers (EINs); the employee's date of birth; and the date of employment. Send this information to the N.C. New Hire Reporting Program, P. O. Box 900004, Raleigh, NC 27675-0004. You can 1) use the specially designed form, 2) send a copy of the employee's W-4 Form plus the employee's date of birth and date of hire, or 3) submit the information electronically (call 1-888-514-4568 for information about electronic submission). Reports must be sent within 20 days of initial employment.

 
 
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