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Rights under Your Farmworker Contract (H2-A Contracts)

Authored By: Georgia Legal Services Program® LSC Funded
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Information

Last Revised: August 2005

Your H-2A contract promises you a free place to live while you work, workers' compensation benefits if you get hurt on the job, and at least an average of $7.28 for each hour you work over the course of a pay period. You have a right to receive a copy of your contract, insist that your boss respect all the conditions in your contract, and insist that all promises are kept. Read on for more detailed information.

WAGES AND WORK

Your contract guarantees that each pay period you will make at least an average of $6.83 for each hour of work. (This wage may change this year. For more information call Legal Services.) Even if you are working by the piece rate, you should make this average of $6.83 per hour during a pay period. You can make more than this amount but never less. Federal law also guarantees that you will earn at least $5.15 per hour each pay period.

Pay stubs

You should receive a pay stub showing how many hours you worked, how many pieces you did, and the hourly rates and piece rates. All deductions from your pay should be listed in writing on the check stub. You should not be asked to pay anything in cash to anyone where you work. Your contractor or supervisor should not ask you to pay anything which is not listed on the check stub.

Hours

Under your contract, you are not required to work more than the daily amount of hours listed on your contract (usually either 7 or 8 hours daily), although many workers like to work more hours when there is work available. You are not required to work on Sunday. The grower must provide to you, at no charge, all tools necessary for you to do your work.

WORK BY THE PIECE RATE

Sometimes farmworkers are not paid by the hour. Instead, the grower will pay by the piece rate, a set amount for a certain quantity of a crop picked (example, being paid $.70 per bag of product) or an amount of crop planted (example, being paid $.90 for each row transplanted). The piece rates should also be posted so that all the workers know which rates correspond to their work. Even if you are paid by piece rate, your average earnings per hour should equal at least the guaranteed wage ($6.83 per hour) over the course of a pay period. This means that when the workers divide the amount paid by the number of hours worked, your pay should equal at least $6.83 per hour. If after the course of a pay period you don't get $6.83 an hour, the grower must pay the difference. For this reason, it is a good idea to keep track of the hours that you work each day in a pay period so that you can be sure that you are earning this guaranteed wage. You can use a blank piece of paper, or ask Legal Services for a wage calendar. It is important even if you are working by the piece rate.

WAITING AND TRAVEL TIME

If the employer asks that you arrive in a field at a certain time but then you must wait before actually beginning to work, these hours must be counted as hours worked. You also have the right to receive pay for the time that you had to wait during the day.

Also, the time that it takes to travel from field to field when the day has begun is time that you should get paid for. For example, they have to pay you for the time spent waiting for the boxes or bins to arrive, before you begin to pick or plant, and weighing in what you bring. For this reason too, it is a good idea to keep your own careful records of hours worked so that you can check your pay stub to be certain that these hours are counted, including the hours you spent waiting.

OVERTIME

When you work overtime, you should get paid one and a half times the regular hourly rate of pay. Whether a farmworker has the right to be paid overtime depends on the type of work. If the work is in a packing shed where products from different farms are processed, a worker has the right to get paid overtime pay after having worked 40 hours in one week.

Work in a cotton gin

If the work is in a cotton gin or in a sugar processing plant, a worker is entitled to overtime pay after having worked 48 hours in one week or 10 hours in a day.

No overtime for fieldwork

Unfortunately, Federal law does not provide overtime pay for extra hours doing field work.

THE THREE QUARTER GUARANTEE

Your contract guarantees that you will have work for three-quarters of the contract period. This is called the three-quarter (75%) guarantee. In other words, you are guaranteed to earn at least the hourly guarantee ($6.83) for three quarters (75%) of the total hours in the contract. If you have not earned that amount by the end of your contract, your employer must pay you the difference.

An Example

For example, in a contract for 10 weeks, working 40 hours per week, there are 400 total hours on the contract. By the end of the 10 weeks you should have earned an amount equal to 300 hours (75% of 400 hours) x $6.83 (or your own hourly average if it is more than this). So in this example, by the end of the contract period if you are not paid an average of at least $6.83 an hour times 300 hours, the employer must pay you the difference. Please note that you will not know if you have received this guarantee or not until the contract period ends.

If you voluntarily leave before the end of the contract, you lose the guarantee

There might be times during the season when the work is slow. If you are a U.S. citizen or legal permanent resident, you may think about changing jobs. If you are a foreign worker with an H-2A visa, you may think about returning home early. Before you do, you should remember that if you leave, you would be breaking your contract and would not be entitled to the three-quarter guarantee.

HOUSING

Your housing and utilities are free. The housing conditions should comply with federal safety and health standards. If you have questions regarding your housing conditions, you can call 1-800-537-7496.

Conditions

Persons who control housing for farmworkers must ensure that these housing standards are met:

1. structurally sound housing

2. housing free from insects and rodents

3. beds for each person at least 3 feet apart and12 inches off the floor

4. secure electrical wiring

5. sanitary toilets

6. safe drinking water and showers with a sufficient amount of hot and cold water

7. garbage collected at least twice a week

Please note that there are additional requirements. Rules of the housing and your responsibilities should be posted in each housing unit.

Food/ Cooking

Some employers provide you with cooking facilities and utensils. Some employers may prepare the meals for you. If meals are provided, your employer cannot charge you more than $8.00 per day for three complete meals.

Housing Is Your Home

You have a right to receive visitors at your housing.

You cannot be thrown out of your housing. If you have been fired and you need more time to get out or if you want to talk to someone about the reason you were fired, you can ask for more time. If they don't let you stay, you can call us or another lawyer. If your crewleader or employer calls the Sheriff, you can call our office (Legal Services) at 1-800-537-7496 or another lawyer. The sheriff can only take you off the camp if you are committing a crime. If this happens, it is important that you stay calm.

WORKERS' COMPENSATION - IF YOU ARE HURT ON THE JOB

If you are hurt on the job, you should see a doctor or nurse immediately. It is your employer's responsibility to get you to the doctor or health clinic. It is important that you tell your supervisor or contractor what happened as soon as possible so that you receive prompt and proper medical treatment.

Each grower who employs H-2A workers carries workers' compensation insurance for all employees. This insurance will pay for your doctor and hospital bills, and pay you 66.6% of your wages for the time you cannot work, if you miss more than one week because of your on the job injury. Also, the insurance will pay for any permanent disability caused by your injury.

If you have questions about workers' compensation, have problems with getting treatment that you need, or if you do not receive what you think you are entitled to, you may call our office (Legal Services) at 1-800-537-7496 and we will try to assist you in finding an attorney.

Do not hesitate to ask questions about your insurance.

Please note that if you are injured on the job and want a lawyer to help you, that you should contact an attorney as soon after the accident as possible, because you may lose your right to benefits if you wait too long.

TRANSPORTATION

Your contract says that if you work through half of the contract period, the grower has to pay the total cost of your travel from the town where you were recruited to the job site here in Georgia. The reimbursement includes the cost of transportation and subsistence costs (like for food) spent while traveling.

Your contract also says that if you work until the end of the contract, the grower will pay the total cost of the trip back to the town where you were recruited, or the total cost to travel to your next job. This benefit also includes costs of food while traveling.

PESTICIDES

Pesticides are chemical poisons sprayed on crops to kill insects and weeds. They are dangerous because they are poisons. Pesticides can make you sick and in some cases, may cause death. It is illegal to spray while workers are in the field or to allow workers to work in areas just sprayed, unless you have special protections. You have the right to refuse to enter a field until it is safe (usually anywhere from 12-48 hours after spraying).

Prevention

To prevent against pesticides poisoning:

Know your rights

1. Find out when and where pesticides are used by the employer.

2. Keep children away from pesticides.

3. Wear long pants, a long sleeve shirt, and gloves in the field.

4. Wash clothes that have been exposed to pesticides before rash, shortness of breath, and difficulty in walking or speech.

If you have been exposed to pesticides, you should:

- immediately contact a doctor or clinic for treatment

- and tell the doctor or the clinic that you have been exposed to pesticides

If you think you have been exposed to pesticides you should tell your employer because the employer must provide you with transportation to a medical clinic and must give pesticide information to the medical worker. Also, you can contact our office (Legal Services) and your local clinic. If workers get sick because of pesticide exposure, a court may also provide additional relief.

FIELD SANITATION (RIGHT TO HAVE DRINKING WATER AND TOILETS IN THE FIELDS.)

Every employer with more than 11 farmworkers who work in the field for more than 3 hours at a time must provide within a quarter of a mile of the field:

  • Cool drinking water and cups (or a drinking fountain)
  • Toilets and hand washing facilities.

Georgia summers are very hot. It is very important to drink lots of fluids. Soda and alcohol are not as healthy as cool water. If you start to feel lightheaded or dizzy, tell your supervisor and get out of the sun.

INFORMATION FOR AMERICAN CITIZENS AND PERMANENT RESIDENTS

Right to an H-2A Job

American citizens or permanent residents have the right to H-2A jobs until the midpoint of the contract. For more information, you may contact Legal Services at 1-800-537-7496.

Taxes

For citizens or residents of the United States who work at a farm where there is an H-2A contract, the employer should still deduct (and pay to the government) social security, state and federal income taxes. H-2A workers should not have any deductions for taxes.

Food stamps

U.S. citizens or residents may be eligible for food stamps. Apply at the Department of Family and Children Services in the county in which you are living. The grower must give the social services office correct information about how much money you are earning.

WHAT ELSE SHOULD YOU KNOW?

Shopping

Once each week, the grower must provide transportation for workers to go to town. You should not be charged for this trip.

Work until the end of the contract

You are promised work until the ending date of your contract. The grower cannot fire you before that time unless you cannot do the work, or you do not follow the work rules, or if strange and unforeseen weather conditions make it so that there is no more work. For a detailed list of the work rules which apply to you, look in your contract or ask your supervisor or call us (Georgia Legal Services 1-800-537-7496).

H-2A visas are invalid if you leave the farm or association.

If you are a foreign worker with an H-2A visa, you are only authorized to work for the grower who applied for your visa. Leaving that grower and/or association and accepting work with another grower is not permitted by your visa.

RETALIATION AND DISCRIMINATION PROHIBITED

All farmworkers have the right to know what their rights are and also have the right to exercise their rights. If an employer is not complying with the law, the law means nothing if the workers don't say anything. That is why the law protects you from discrimination for learning about or exercising your rights.

It is illegal for a farmer, contractor, or a crewleader to retaliate or discriminate against any worker who asks a question about their legal rights or who takes any action to enforce the law. 20 Code of Federal Regulations § 655.103(g).

For example, farmworkers should never be fired from their job for asking that the minimum wage be paid nor should they be evicted from a camp for complaining about conditions that affect their safety or health.

Note that federal law specifically prohibits employers from discriminating against H-2A workers who contact legal services for advice or help. If a farmworker thinks that he or she is being discriminated against for exercising his or her rights, her or she should immediately contact a lawyer.

CONTACT US

Georgia Legal Services Program (GLSP) is a non-profit law firm. GLSP provides free legal assistance to people with low-incomes in Georgia. Each GLSP office has lawyers, paralegals and other staff.

Our assistance is free!

The Farmworker Division of GLSP covers the entire state of Georgia, but is limited to handling civil cases that are related to a client's employment as a farmworker. We handle cases to recoup money owed to workers and to change the practices of growers who mistreat workers. Some types of cases we handle are:

1. recovery of unpaid wages (if you're not paid what you're owed)

2. housing in poor condition, and illegal evictions

3. problems from being exposed to pesticides

4. discrimination at work (like for race or gender or for having complained about the conditions)

5. the failure to comply with promises made when they offered you the job

6. other violations of human rights

In addition to the Farmworker Division, there are 12 regional legal services offices located throughout Georgia. Each regional office handles civil (non-criminal) cases for low-income people with issues such as: domestic violence, landlord-tenant disputes, home ownership, health care, public benefits, and family and school related issues. If you have a legal question, please feel free to call us and we will refer you to the appropriate regional office.

Our toll free number is 1-800-537-7496.

Remember that you can call us from Mexico, Guatemala, or your country if something occurs to you after ending your work here in Georgia. You can call us collect at 011-1-229-386-3566.

FOR MORE INFORMATION

The information contained on these web pages is meant to be a guide to workers' basic rights under an H-2A contract in Georgia. What is contained in this book is not legal advice, nor is it intended to be a replacement for an in-person consultation. Nor does this booklet describe every right that you have. If you want to speak directly with someone at Georgia Legal Services please call our toll-free number 1-800-537-7496. We are here to help you with problems related to the rights listed in this booklet.

If you want to know what your rights are in a specific situation, you may call our office. If we are not available to answer your phone call, please leave us a message on the answering machine, after the tone, with your full name, where you work, your phone number and/ or a time when you will call us back. We will not be able to help you if we don't know who you are or how to get in touch with you. Once you contact us and ask us for help, what you tell us will remain strictly confidential unless you authorize us to tell someone else. We cannot act on your behalf unless you are eligible for our services and you authorize us to do so.

We have other material regarding farmworkers' rights in Georgia. For example, we have a brochure of true stories of farmworkers who have exercised their rights, won money, and improved conditions for all. Legal Services also has record books where you can write down the work that you do (to see if your boss has given you your just wage). Call us at 1-800-537-7496 if you want these additional materials.

HOW TO LEAVE A MESSAGE WITH GEORGIA LEGAL SERVICES:

Sometimes when you call 1-800-537-7496 (Georgia Legal Services), our answering machine will answer. There is a message in English and Spanish. Please listen to the entire message.

  • Wait for the beep.
  • Speak clearly and slowly.
  • Say your first and last name (we will keep it confidential)
  • Say where you are calling from. For example, tell your mailing address or, if you don't have an address, tell the name of the city where you live and the farm where you were working.
  • Tell us your telephone number or give a number where you can be reached.
  • Tell us a time that you will call back (for example, I will call on Tuesday at 6 pm).
  • Briefly explain your problem.
  • That's it. Thanks! The next day we will listen to and respond to your message.

Farmworkers' Division of Georgia Legal Services Program

Dawson Morton
Georgia Legal Services Progam
Last Revised: August 2005

Last Review and Update: Aug 23, 2005