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.
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.
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.
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.
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.
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.
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
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 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.
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.
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
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.