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Published July 14, 2015, 07:30 AM

Welte: Farm workers hard to find

Since the “new oil boom,” North Dakota’s hourly wages have garnered national attention. Workers flocked to the Oil Patch for jobs starting at $30 per hour or more. With overtime, paid at time and a half, it wasn’t unusual to see oil workers earning six figures annually.

By: Peter Welte,

Since the “new oil boom,” North Dakota’s hourly wages have garnered national attention. Workers flocked to the Oil Patch for jobs starting at $30 per hour or more.

With overtime, paid at time and a half, it wasn’t unusual to see oil workers earning six figures annually. This affected wages statewide, requiring employers to ante up if they wanted to attract good candidates to fill jobs.

Blogger Rob Port, of sayanythingblog.com, recently posted “Why Aren’t Teenagers Working? It’s the Minimum Wage, Stupid.” The story is a provocative examination of a New York Times article, “It’s Summer, but Where Are the Teenage Workers?” I encourage Agweek readers to take a gander at both articles; they are worth the time.

For farmers, the wage landscape has changed dramatically since I was in high school, when the federal minimum wage was $3.35. Then, there was an ample supply of students who were ready, willing and able to fill the need for “summer farm help.” Nowadays, hiring farm help has become difficult in some areas. Farmers can’t compete with wages when kids can work a day shift at McDonalds for $9 to $10 per hour, with cleaner, more comfortable conditions, and for a job that has predictable hours that aren’t weather-dependent.

Thirty years ago, minimum wage was the typical starting point for farm workers with no experience. Now, few farm jobs start at the federal minimum wage of $7.25 per hour. It’s a matter of supply and demand. In North Dakota, there is a limited supply of available workers because of low unemployment rates. And the demand for workers is high, given the competitive wages in oil country, even with the recent slowdown in activity in the oil fields.

This changed landscape for farm employers has made it crucial for farmers to have a basic understanding of federal and state labor laws, and that labyrinth is more challenging than ever before.

Starting point: The Federal Fair Labor Standards Act, commonly referred to as FLSA. FLSA is broad in scope, but like so many areas of agricultural law, farmers are treated differently under some important FLSA provisions. In fact, farmers are generally exempt from both minimum wage and overtime wage requirements of FLSA.

Additionally, farmers are generally exempt from FLSA restrictions on hiring children for farm labor. When not in school, children 14 and older are generally permitted to work on farms, and 12 and 13-year-olds may even be hired with parental permission.

Other relevant federal laws include the Migrant and Seasonal Agricultural Worker Protection Act (MSPA) and the Immigration Reform and Control Act. The Occupational Safety and Health Act and the Federal Insecticide, Fungicide and Rodenticide Act also contain provisions important to farm employers, as do the Family and Medical Leave Act and a few other ancillary federal laws.

North Dakota is a “right to work” state, which means workers can’t be forced to join a union as a condition of employment.

North Dakota law also presumes all employees to be “at will,” unless otherwise classified as “for cause.” This they can be discharged by the employer at any time, for any legal reason. Conversely, a “for cause” employee is generally deemed to have a vested right to his or her job, and can only be discharged “for cause,” which means the employer must provide due process — notice and opportunity to be heard — to an employee before taking adverse action against them.

As with so many legal issues affecting farmers, attorney consultation before making labor decisions is a good idea. With farm labor law, an ounce of prevention is worth a pound of cure.

Editor’s note: Welte is an attorney with Vogel Law Firm in Grand Forks, N.D., and a small grains farmer in western Grand Forks County.

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