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Who is liable for agricultural workers?

It is the time of year where seasonal workers, or migrant workers, come into play for many farming operations. I read recently about issues in Arizona pertaining to migrant workers and some of the issues presented by their employment.

One issue with these farm workers is whether migrant workers who are in the U.S. on a temporary basis are being treated improperly due to their immigration status. As one example, if workers are in the United States on a temporary visa, they are deemed to have "H-2A" status, a reference to their temporary visa. Since the U.S. government is short of resources to monitor and regulate these temporary visas, the farm worker might be working under conditions not permitted by federal law. This can result in punitive action against the employer.

Agricultural workers typically fall into one of two general categories. Category one is "employees." Category two is "independent contractors." Depending upon the category, farmers may or may not be held liable for the actions of the worker.

The general rule is that if the worker is acting at your direction or under your control, they are an employee. Some determining factors might be whether the worker is full time or part time, how they are paid, whether they are an essential part of business operations, and in general the level of control the farmer has over the worker. The more factors that apply, the more likely it is that the worker is an employee.

For employees, in general the farmer can be held responsible for their actions under the legal doctrine of vicarious liability. This doctrine dictates that the employer may be responsible for the actions of the employee so long as the employee was acting in the ordinary course of business.

One possible way for employers to avoid liability is to hire an independent contractor. In a general sense, if the worker is not subject to the control of the employer, then the worker might be classified as an independent contractor and not an employee. If this is the case, then the employer is largely not liable for the negligent acts of the independent contractor.

There are, however, ways that an employer may still be liable. If the employer negligently hires an incompetent contractor, then the employer may be liable for that independent contractor's acts or omissions. Similarly, if the employer interferes with or participates in the independent contractors work, then the employer may have some liability. There are other exceptions, as well.

Custom farm workers are usually independent contractors. If a farmer hires someone to be a custom harvester, for example, that custom harvester supplies their own equipment and supplies, and are paid a per-acre rate to harvest the crop. There is no expectation of ongoing employment until the next year's harvest, as well. The farmer does not control the actions of the custom harvester, so such custom harvesters are usually not employees, per se. Rather, they are independent contractors.

Where it gets more interesting this time of year is with custom sprayers. It is the time of year when herbicides are being applied with regularity, and spray drift and crop damage is always a concern. If a farmer hires a custom sprayer for his farm, he'll want to be sure to know if they are classified as an employee or a custom sprayer, in case there is drift damage to a neighbor's field. Additionally, the farmer will want to know if the custom sprayer has liability insurance and if the farmer can be listed as an "additional insured" on that insurance policy. If not, then the farmer needs to obtain his own insurance to protect against claims of damage to the neighbors crop.

If a farmer has any questions about their labor force, consulting an attorney is always a good idea. It's another situation where an ounce of prevention is worth a pound of cure.