Editor's note: A special thanks to Dr. Monica Ozores-Hampton at the Southwest Florida Research and Education Center for coordinating The Immokalee Report, of which the article below is part.
Vicky BoydIf tomato harvesters are told to arrive at 8 a.m. but have to wait until 10 a.m. until the fruit are dry enough so they can start picking, they must be paid for those two hours of waiting under Wage and Hour rules.
Department of Labor Wage and Hour investigators from the Tampa office continue to uncover numerous violations during their audits of citrus harvesting companies.
The most prevalent occur when agricultural employers do not correctly record the daily start and stop times for seasonal and migrant farm workers.
As a consequence, they underreport the number of “compensable” hours for each worker. At the very least, this mistake results in a record keeping violation of the Migrant and Seasonal Worker Protection Act (MSPA).
More importantly, underreporting the number of compensable time can lead to a minimum wage violation, which draws larger civil monetary penalties. At the end of a company’s pay period—typically a week—a simple calculation is made to determine if each worker has been paid at least the mandated minimum wage: total gross pay divided by total number of compensable hours.
If compensable time is underreported, average hourly earnings might appear to be above minimum wage when in fact if the correct number of compensable hours is reported, average hourly earnings would be below minimum wage.
Compensable hours may cover waiting
Some employers mistakenly think that the number of compensable hours equals the time spent doing the primary work task.
Take, for example, a tomato harvester who began picking at 10 a.m., took one hour for lunch and rest breaks, and quit at 4 p.m. The number of hours the worker spent harvesting was five.
Compensable time, however, includes time spent doing any work task plus any waiting time under the direction or control of a supervisor.
If the same tomato harvester arrived at the field in a bus with the rest of the crew at 8 a.m. and was told to wait until the morning dew dried off the plants, the additional two hours spent “waiting to be engaged” are compensable. Likewise at the end of the day, if the workers sat on the bus for 30 minutes waiting for the bus driver to finish his end-of-day duties, that time as well is compensable.
Lunch breaks also can be confusing
Whether to deduct a lunch break from total compensable time is another matter of confusion for many employers.
There is no state or federal regulation that requires an employer to provide lunch or rest breaks as long provides a lunch break of at least 30 consecutive minutes, the lunch break can be deducted from total compensable time.