The FELS Sacramento office receives frequent calls and emails from FELS and Farm Bureau members concerning relationships between agricultural producers and farm labor contractors (FLCs). FLCs furnish about half of hourly employees in agriculture for various tasks related to planting, cultivation, harvest, packing and processing, custom harvesting and more. As such, FLCs furnish a critical component of labor market “liquidity”, ensuring that farm and ranch operators have sufficient numbers of employees at the right time and location to complete time-sensitive tasks.

In addition to this benefit, FLCs also perform a variety of employment-related compliance tasks with respect to their own employees required by federal and California law, including on-boarding tasks like verifying employment verification, completion of payroll tax forms and task safety training, as well as continuing compliance requirements like refresher safety training and payroll compliance. This allows growers partnering with FLCs to focus on their long-term or year-round employee and rely on an FLC to manage their seasonal workforce needs.

Many of the questions we get fall into the catagory, “Can my FLC/farmer/rancher client do that?” Examples might include an FLC billing a client for the cost of furnishing California-mandated paid sick leave, or resolving unresolved issues like which party furnishes shade pop-ups or shade trailers for heat illness prevention compliance. Typically, relative responsibilities between a grower and an FLC should be defined in a written agreement between the parties outline their relative responsibilities. An important part of that answer involves understanding joint liability for compliance imposed by state and federal law.

In 2015, the California Legislature amended Labor Code Section 2810.3, establishing joint employer liability for wage, hour and workplace safety violations. When a grower uses six or more of an FLC’s employees and the combined total number of employees between both entities exceeds 20, both parties can be held responsible for compliance failures.

This means growers share legal responsibility with the contractor for ensuring workers are paid correctly, have access to a safe workplace and receive all required protections, such as harassment prevention, paid sick leave and workers’ compensation. Even if a grower is not the direct employer, the law assumes influence over working conditions and thus, accountability.

The federal Fair Labor Standards Act (FLSA) reinforces this standard. Guidance from the U.S. Department of Labor outlines a four-part test to determine whether joint employment exists. A grower may be considered a joint employer if they:

• Hire or fire the contractor’s employees
• Supervise or control work schedules or conditions
• Determine pay rates or methods of payment
• Maintain employment records

Not all factors must be present for liability to apply; regulators evaluate the totality of the relationship, including its duration and the level of control or oversight exerted by the grower.

Experts and legal counsel in this field recommend a grower require an FLC to furnish documented proof of compliance with all applicable labor, safety and insurance laws. At minimum, contractors should provide:

• Current State of California FLC license
• Current federal FLC certificate of registration
• Transportation and housing authorizations, if applicable
• Proof of workers’ compensation and general liability insurance
• Copies of written programs such as the Injury and Illness Prevention Program (IIPP), Indoor and Outdoor Heat Illness Prevention Program, and Workplace Violence Prevention Program
• A current employee handbook with anti-harassment and discrimination policies
• Documentation of required annual training, including harassment prevention, heat illness, pesticide safety, first aid/CPR and workplace safety
• Sample pay stub showing wage and hour compliance

We recommend to FELS members that they also request documentation confirming that supervisors and workers have received all required training in their preferred language and that appropriate personal protective equipment (PPE) and emergency procedures are in place.

Periodic field visits help ensure these compliance measures are being practiced, not just promised. On-site reviews should verify that crews have adequate water and shade, first-aid kits, clean restrooms or portables and all required employee postings. If deficiencies are found, growers should work with the contractor to correct them promptly and document the actions taken. A written record of communication and remediation efforts provides valuable protection in the event of a future audit or complaint.

Every relationship between a grower and an FLC should be formalized through a detailed written contract. This establishes legal accountability and operational clarity. A strong contract should:

• Specify payment terms and invoicing schedules
• Define who supervises the workers and under what conditions
• Clarify responsibility for equipment, transportation and housing
• Include indemnification and duty-to-defend clauses
• Require evidence of ongoing compliance with labor and safety laws

Both parties should have legal counsel review the contract before work begins. In multi-employer arrangements or when subcontractors are used, written agreements become even more critical to delineate responsibilities and protect against shared liability. (Note: FELS members can access a model FLC agreement at FELS.net: Resources: HR Compliance: Model Farm Labor Contractor (FLC) Agreement.)

Both the California Department of Industrial Relations and the U.S. Department of Labor may investigate and cite a grower and contractor for the same violation. A wage or safety infraction by the FLC can result in duplicate penalties for both entities. Regulators consider factors such as control over working conditions, awareness of violations and the extent of oversight exercised by each party.

To mitigate risk, both growers and FLCs should maintain documentation of compliance activities, including training rosters, inspection reports, safety meeting notes and corrective action logs. Regular internal audits reviewing payroll accuracy, safety documentation and training records demonstrate a good-faith effort to comply with the law and can serve as evidence in enforcement proceedings.

California and federal law impose legal limitations and responsibilities on FLCs and on growers and ranchers who employ them. Exercise of due diligence and well-thought out measures to define relative responsibilities can save all parties needless headaches.