Is something illegal going on here?

Question

First off I'm in Oregon. My husband works labor in the fields. He works 12-14 hours a day. He is getting minimum wage... with NO overtime being paid. The company he works for is owned by a man named Jerry. Jerry calls himself a contractor. But my husband is made to fill out the w-4 and I-9 forms, and Jerry subtracts all his taxes each check. So my understanding is that my husband is an employee and Jerry is his employer? Because if my husband were a sub contractor then my husband would be responsible for his own taxes correct? My husband works very long hours, no brakes, just lunch. As of right now he is on his 3rd week of a job at a new farm site and he has not received a check. He was supposed to be paid on Friday.. but was told the guy who owns the farm went on vacation and forgot. So checks were to be paid today Monday. Well today Monday my husband heard from other co workers that they again will NOT be getting paid today. We have no food, gas, and we are late on rent because of this. So my husband being a bit irritated saw the owner of the farm and approached him and asked hey whats going on with the checks for everybody? We are on the 3rd week and no pay yet.. the guy said that Jerry was supposed to pay them. Now my husband is being told he might get fired for approaching that guy! So my questions are should my husband be getting overtime pay? And is there anything he can do about the BS going on with the paychecks? I looked on the Oregon labor site but I couldn't really get the main answers I need. Sorry so long but I had to explain the whole mess. This crap has been going on for 7 months now.. so we really need some answers. Thank you

Answer 1

Well, I'm sorry to say I may have some bad news for you. It is true in Oregon that "MOST" workers must be paid overtime after 40 hours. But there are categories that are exempt from this law and agricultural laborers are one of them! If he is a laborer performing actual farm labor 100% of the time, he is not required to be paid overtime OR minimum wage!



Per Oregon law..."Among other things, agriculture includes cultivating and tilling the soil, dairying, producing, cultivating, growing, and harvesting any agricultural or horticultural commodities, raising livestock, bees, fur-bearing animals, or poultry and any practices performed by a farmer on a farm as an incident to or in conjunction with such farming operations, including preparing for market, delivering products to storage or to market or to carriers for transportation to market."



If your husband performs work as described above, he is not entitled to overtime or required to be paid minimum wage.



HOWEVER...and this is a BIG HOWEVER - the laws go on to state that if that employee is performing non-agricultural work for another farmer that is not their employer (i.e. packing fruit for a neighboring farmer) they must be paid overtime for all hours worked over 40 in a week.



Here are a couple of links for you to look at. It will all depend on what he does for this employer as to whether he is required to be paid OT and minimum wage.



http://www.boli.state.or.us/BOLI/WHD/docs/statelawswages_english2010.pdf

http://www.boli.state.or.us/BOLI/TA/T_FAQ_Taagric.shtml



As for the fact that he is not being paid on time, that IS illegal! You can call the Wage and Hour Division and file a complaint. The employer is prohibited against retaliating for you filing a wage claim, but that may not stop him from firing your husband. However, if that happens, you make sure to let the people at the Wage and Hour Division know and they will tack on penalties, etc. to the employer!



Good luck to you and your husband! That job is undoubtedly hard enough without having to wait for a paycheck that is due!

Answer 2

Here is the employment handbook for agricultural employees in Oregon:

http://www.oregon.gov/BOLI/WHD/FFL/docs/fl_handbook.pdf



Your husband is an employee. His boss is a "contractor" as defined by Oregon Agricultural law. This is different than a contractor / subcontractor that would be involved in building or another industry.



Agricultural employees are typically not entitled to overtime (see attached)

Your husband should be receiving a 10 min rest period during every 4 hours of a shift (see attached)

Your husband should be paid according to the payroll schedule (you can file a claim with the state if he never gets paid).



Your husband should not have approached the farm owner. His boss his responsible for paying him regardless of the relationship (or payment) between the boss and the farm owner. Your husband's job is to do the work he was hired for, not getting himself in a mess with the farm owner. It's very likely that your husband will be let go because of this.

Answer 3

filling out a W-4 and I-9 says employee to me.



report him to the IRS and state dept of labor if he doesn;t pay the OT- your husb is an employee (by definition of teh work he does) and is required to be paid overtime for hours over 40 per week - teh boss may also be vilating work break rules - seems to me husb should be getting at least a 30 minute UNPAID break for lunch and at least two 15 minute PAID breaks in an 8 hr shift - probably two 30 minute breakes for a 12 hr shift



I hope your husb and his coworkers have kept good records of their hours worked each day/week

Answer 4

$8.50 an hour is NOT enough!! tell your husband to find a better job!

i looked on a government website, and it said:

Overtime after 40 hours in a week = 1 ½ times an employee’s regular rate of pay



and



The Fair Labor Standards Act (FLSA) affects most private and public employment. The FLSA requires employers to pay covered non-exempt employees at least the federal minimum wage and overtime pay for all hours worked over 40 in a work week.



(this is the website http://www.dol.gov/whd/regs/compliance/whd_fs.pdf )



You should have a serious talk with your husband. This sounds like a scam to me- he should be receiving pay. And that the employer is taking out the taxes--?? not right!! he should definately find a better job, and you might want to consider getting one too!

Answer 5

Does your state have a labor relations board?

You will need to file a complaint with the authorities

and it will be helpful if there are more workers at the same farm

who are willing to sign on to the complaint.



Contact your local county representative & also your State & Federal

Representatives and KVETCH a lot! there are laws against abusing workers.

all that is necessary is to have the LAW enforced!



GOOD LUCK