When Your Work in Georgia May Be ‘Agriculture’ for Purposes of Your H-2A Visa, But Not ‘Agriculture’ for Purposes of the FLSA

According to the Georgia Department of Economic Development, agribusiness represents the state’s leading industry, checking in with $74 billion in annual economic impact. That means that a lot of workers in this state are exempt from the minimum wage and overtime provisions of the Fair Labor and Standards Act, based on that law’s agriculture exception. One group to whom that exception does not apply, however, are workers who may work at agribusiness sites but who are not employed in agricultural work. If you’ve been denied overtime or other appropriate compensation due to a misapplication of the FLSA’s agriculture exception, then you should retain an experienced Atlanta unpaid overtime lawyer to get started pursuing what you’re owed.

While not from here in Georgia, a recent federal unpaid overtime case is a good example of what we mean. The plaintiff in the lawsuit, José, worked for a Texas-based construction firm that built structures for commercial, industrial, and agricultural clients. José’s job called for him to build “livestock confinement facilities.”

José allegedly worked more than 40 hours per week “regularly,” but his employer paid him no overtime compensation, so he sued under the FLSA.

José was a Mexican citizen working in the U.S. on a H-2A visa. H-2A visas are specific in that they authorize foreign citizens to work in the U.S. doing “agricultural” jobs. So, the plain fact that José received a H-2A visa might, to the untrained eye, seem to mean that he was working in agriculture and, therefore, the agricultural exception of the FLSA applied to him, right?

Actually, it’s not so simple. What is and isn’t “agriculture” for purposes of the H-2A visa program is not necessarily the same as what is or is not agriculture for purposes of the FLSA’s agriculture exception. The FLSA’s definition of agriculture splits the industry into “primary agriculture” and “secondary agriculture.” Primary agriculture, as the name implies, covers “farming and all its branches,” along with the raising of livestock and other animals. Secondary agriculture encompasses other types of work done “in conjunction with… farming operations.”

The definition of agriculture for purposes of the H-2A visa program, which is contained in 8 USC Section 1101(a)(15)(H)(ii), is unmistakably broader than the FLSA’s definition of agriculture.

Was the Work ‘Agricultural’ or a ‘Separately Organized Productive Activity’?

As the employee correctly argued, the fact that he worked “on a farm,” which he freely admitted, did not, by itself, trigger the FLSA’s agricultural exception. Rather, the law demands that the court analyze and determine “whether his construction work was carried out as a part of the agricultural function or as a separately organized productive activity,” based on the federal FLSA regulations’ definition of those terms.

José’s case involved working on a farm but in a non-agricultural capacity; in other words, the type of work was the crucial issue. Last year, the 11th Circuit Court of Appeals here in Atlanta ruled on a case where the location of the work was key to the worker’s success. The plaintiff was a crew leader at a farm. His job called for him to transport H-2A visa workers to various locations, including laundry facilities, grocery stores, banks, and housing accommodations, some of which were hours from the farm. In ruling for the worker, the court made it clear that, for the FLSA’s agriculture exception to apply, the worker must have been engaged in “activities performed within the geographical area that constitutes a farm.”

If you are a non-citizen working in this state, it is important never to forget that you have certain rights regardless of your citizenship status. The knowledgeable Atlanta unpaid overtime attorneys at the law firm of Parks, Chesin & Walbert are here to help workers just like you. We’ve dedicated countless hours to helping workers across Georgia get what the law says they’re owed. Contact us through this website or at 404-873-8048 to schedule a consultation.

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