| What Is Agricultural Employment for Purposes of the Farm Worker Adjustment Program?
"Agricultural Employment" is defined under the Act as any service or activity that is considered to be agricultural under section 3(f) of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(f) or as agricultural labor under section 3121(g) of the Internal Revenue Code of 1986. Under these laws, the following work would be considered "agricultural employment":
Cultivation and Tillage of the Soil
Includes all operations necessary to prepare a suitable seedbed, eliminate competing weed growth and improve physical condition of the soil.
Dairying
Milking cows or goats, putting milk into containers, cooling it, and storing it on the farm, separating cream from milk obtained from the farmer’s cows or goats, bottling such milk and cream or making butter and cheese out of such milk and cream, provided the farmer and his employees do these operations.
Production, Cultivation and Growing
Customary operations in connection with raising any agricultural or horticultural commodities.
"Agricultural or horticultural commodities" includes grains, forage crops, fruits, vegetables, nuts, sugar crops, fibre crops, tobacco, nursery products and eggs.
Harvesting
All operations customarily performed in connection with removal of crops by the farmer from growing position, in the field, greenhouse, etc.
Raising of Livestock
Includes fattening, feeding and general care of such animals as cattle, sheep, swine, horses, mules, jackasses or goats among others. It does not include such operations as feeding livestock at stockyards. Employees hired by a farmer who breeds, raises and keeps race horses to take care of the horses, clean the stalls, cut the grass, and repair fences would be considered engaged in agriculture.
Raising Furbearing Animals
Activities customarily performed in connection with the breeding, feeding and caring of animals which bear fur of marketable value such as rabbits, silver fox, mink, squirrel and muskrat.
Raising Poultry
Breeding, feeding and general care of poultry including domestic fowl and game birds.
Practices Incidental to Farming
Also included under the Fair Labor Standards Act definition are any activities performed by a farmer or on a farm which are incident to the central farming operation. This "secondary" definition includes such activities as the preparation and delivery of agricultural products to market. Whether something is classified as agricultural employment depends on both the nature of the work performed and on the employer. Thus, workers employed to deliver feed from a feedmill to other farmers are not agricultural employees, since a feedmill is a non-agricultural activity not normally performed by a farmer. On the other hand, farm employees engaged in transporting grain to market , or to a feedmill, from the original farmer would be agricultural workers under the Act.
Packinghouse Employees
Grading and packing fruits and vegetables for market is agricultural employment when done on the farm or in a packinghouse owned or operated by the farmer. However, the work will be considered non-agricultural under the Fair Labor Standards Act if the packinghouse handles produce for other farmers besides the owner/operator. This is where the Internal Revenue Code definition becomes important. The Code defines agricultural employment to include services performed in the employ of the operator of a farm in handling, packing, or processing agricultural products, if the operator produces more than half of such products.
Nursery and Landscaping Operations
Employees of nurseries are employed in agriculture if they are engaged in planting fruit, nut, shade, vegetable, and ornamental plants or trees, flowers, shrubs and vines, and caring for the growing crop. Employees of a grower of nursery stock who work in packing or storage sheds preparing the nursery stock for market are also within the definition. Workers who actually plant nursery stock on private or public property are engaged in agriculture, but only if they are employees of the nurseryman who raised the plants. Employees who work for landscaping companies who buy nursery stock from the original grower are not employed in agriculture.
This list is not definitive. Whether an activity falls within agricultural employment can be quite technical. The determination often cannot be made in the abstract. There is extensive case law under the Fair Labor Standards Act and the Internal Revenue Code. Further guidance can be found in the Department of Labor’s interpretative regulations at 29 C.F.R. – 780.100 et seq.
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