April 25, 1994

Ms. Shelley Davis
Farmworker Justice Fund, Inc.
2001 S Street, N. W.
Washington, D.C. 20009

Dear Ms. Davis:

This is in further response to your letter of October 6, 1993, addressed to Ms. Maria Echaveste, Administrator, Wage and Hour Division, which was forwarded to this office. In that letter you request an interpretation concerning the applicability of the Occupational Safety and Health Administration's ("OSHA's") Field Sanitation Standard ("FSS"), 29 CFR 1928.110, to the Virginia Agricultural Growers Association ("VAGA"). In your letter, you state that a complaint filed against VAGA for non-compliance with Virginia's FSS was treated by the Virginia Department of Labor and Industry as a complaint solely against the grower-members of VAGA.

As a threshold matter, as you know, it is the responsibility of the State of Virginia, not OSHA, to determine whether VAGA is an employer for purposes of compliance with the Virginia FSS. However, since Virginia is a state plan state, under the OSH Act Virginia's standards must be at least as protective as OSHA's standards.

The determination of who is an employer under the OSH Act is highly dependent upon the particular facts of the relationship at issue. It may depend, as well, upon the relevant OSHA standard. Based upon the facts as you present them in your letter of October 6, OSHA would find VAGA an employer/joint employer under the OSH Act for purposes of compliance with OSHA's FSS.

The OSH Act in its relevant provisions defines an "employer" as "a person engaged in a business affecting commerce who has employees...." Congress intended the Act to reach as far as its commerce power constitutionally permits and thus intended "employer" to be defined as broadly as possible to protect every working man and woman. 29 U.S.C. Sec. 651(b); Usery v. Lacy, 628 F.2d 1226 (9th Cir. 1980); 29 C.F.R. Sec. 1975.3(a). The preamble to OSHA's FSS makes it clear that the Agency in that standard "intended to include as employers all persons who could be considered `employers' under ... the OSH Act." In thus broadly defining "agricultural employer," the Agency sought "to hold jointly and severally responsible for compliance those who are best able to assure that adequate sanitation facilities and potable water are provided to farmworkers in the fields." (52 FR 16050, 16086; May 1, 1987).

Since the status of the grower-members of VAGA as employers does not appear to be in dispute, the primary question is whether VAGA can be considered a joint employer under the FSS and the OSH Act. In the joint employer context, each employer may not perform all of the functions typically performed by a single employer.

OSHA's FSS applies to "any agricultural establishment where eleven (11) or more employees are engaged on any given day in hand labor operations in the field." An "agricultural establishment" is defined as "a business operation that uses paid employees in the production of food, fiber, or other materials such as seeds, seedlings, plants, or parts of plants." 29 CFR 1928.110(a) and (b).

VAGA would appear to be a business that uses paid employees in the production of such crops and therefore would qualify under the definition of an "agricultural establishment." In any event, as indicated by the language quoted above from the preamble, the definition of "agricultural establishment" in the standard was not intended by the Agency to narrow the very broad definition of agricultural "employer" that would otherwise obtain.

In its FSS, OSHA defines an "agricultural employer," in part, as "any person, corporation, association or other legal entity that: ... iii) Recruits and supervises employees...." That VAGA recruits is not in dispute. That it also supervises and should be treated as a joint employer is indicated by a number of factors. First, VAGA chose to call itself a joint employer with its grower-members in its application for a clearance order to employ 1800 H-2A workers. It need not have done so. Instead, it could have simply styled itself as an agent for grower-members. However, by calling itself a joint employer rather than an agent, VAGA increased its authority to control the H-2A workers, since under the regulations governing the H-2A program joint employers are given the power to transfer workers from job to job. This is a power that VAGA actually exercises.

Furthermore, as a joint employer for purposes of the H-2A program, VAGA provided written assurances it would obey all federal and state employment-related laws, including safety and health laws. In addition, it appears from what you say in your letter and the accompanying documentation that VAGA, among other things, also assigns workers to grower-members, issues work rules, sets employment policies, and reserves the right to fire workers. Finally, VAGA appears to be in a position either to assure compliance with the FSS among its grower-members to whom it assigns such employees, or to refuse to send workers to grower-members who fail to meet the basic requirements of the FSS.

These facts in combination seem sufficient to constitute VAGA a joint employer under the OSH Act and OSHA's FSS. The fact that its workers may be divided up in many fields, including fields where there may be fewer than 11 hand laborers, does not affect the applicability of the FSS to VAGA as a joint employer in all of the fields in which its workers are employed, so long as VAGA employed a total of at least eleven hand laborers in all the fields on any given day in the preceding twelve months. (See the discussion of "split crews" at 52 FR 16084-85) As a joint employer, VAGA may be held fully responsible by OSHA for non-compliance with the standard and abatement of violations.

Since this matter initially is for the state of Virginia to decide and since VAGA heretofore may have been operating under a good faith misunderstanding concerning the applicability of the FSS, OSHA believes that the determination that VAGA is to be considered a joint employer under OSHA's FSS should be given only prospective effect. We are notifying VAGA of this determination. We will also advise the Virginia Department of Labor and Industry.

If you have any additional questions, please feel free to contact Mr. Raymond E. Donnelly of my staff, at (202) 219-8031.

Sincerely,



Joseph A. Dear, Assistant Secretary