Schuette opinion: Not all farms must pay minimum wage

Michael Gerstein
The Detroit News
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Lansing — Some small farms in Michigan are not required to pay migrant and seasonal workers the state or federal minimum wage, according to an opinion issued by Attorney General Bill Schuette’s office Tuesday.

Schuette’s 14-page opinion upholds a 2016 state interpretation that argues that because some small farms are exempt from the federal minimum wage law, they also do not have to pay workers the state minimum wage. The opinion was prompted by a request from the Department of Licensing and Regulatory Affairs.

The state’s 2014 minimum wage law — called the Workforce Opportunity Wage Act — only applies to workers who are also protected by the 1938’s federal minimum wage law, according to the opinion. Because seasonal workers at certain small farms in Michigan are exempt from that federal protection, the state’s minimum wage law also doesn’t apply to them, the opinion said.

That includes employees working at summer camps for four months or less and fruit, pickle, tomato or other agricultural employers “who traditionally contract for harvesting on a piecework basis,” the opinion continued.

Schuette spokeswoman Andrea Bitely, when asked how the state could legally allow some employers to pay their employees less than the minimum wage, said that’s an issue for the Legislature to take up.

“The attorney general opinion is a reading of state law and speaks for itself,” Bitely said.

But immigrant and migrant worker legal aid groups were outraged by the opinion.

Susan Reed, managing attorney for the Michigan Immigrant Rights Center, called the opinion “disgusting.”

“It is completely crazy because the entire purpose of having a state minimum wage is to make sure that workers like this don’t get left out,” said Reed, declining to say at this time whether the organization would consider a lawsuit against the state over the matter. Reed said the rights center will continue advocating for migrant farm workers to be paid at least the minimum wage.

“It’s the most basic of labor protections,” she said. “And the idea that some of the most vulnerable workers who are the most isolated would not have a minimum wage protection — it’s just terrible to me.”

In 2016, the Department of Licensing and Regulatory Affairs argued that “small farms” don’t have to pay seasonal workers minimum wage. The state defines that as any farm that uses less than 500 hours of labor every three months.

That often boils down to a farm with less than five employees, according to Ben O’Hearn, a staff attorney for Migrant Legal Aid, which provides legal assistance in minimum wage and other employment disputes between migrant workers and employers.

O’Hearn, other legal advocates for migrant workers and state officials say it’s unknown how widespread that practice is. But O’Hearn argued the exemption is likely unconstitutional.

The state minimum wage is set to rise from $8.90 an hour to $9.25 on Jan. 1.

In 2015, a family of five migrant farm workers from Texas were paid the equivalent of less than $4 per hour working at an asparagus pickling operation in Oceana County, according to the Farmworker Legal Services, a nonprofit in Kalamazoo.

The family filed a complaint with LARA, but the department said then they weren’t protected by the state’s minimum wage law. LARA argued that piece-rate work and small farms are excluded from minimum wage laws, according to the nonprofit.

In June 2016, Gov. Rick Snyder tried to clarify the issue through an executive order granting LARA new authority, and the department issued a rule requiring piece-rate farm workers to be paid “at least equivalent to the minimum hourly wage rate.”

But that doesn’t apply retroactively to families like the one who worked in Oceana County. That also does not apply to workers at small farms, according to the Farmworker Legal Services.

“The agency’s determination in this case evidenced a radical, new interpretation of Michigan law which would potentially exclude most of Michigan’s nearly 50,000 agricultural workers from the state minimum wage and further depress their already-low wages,” Farmworker Legal Services said in a 2016 statement.

The Michigan Department of Civil Rights listed the minimum wage question as being in “urgent” need of clarification in a status report issued earlier this year on migrant working conditions.

In February 2016, LARA announced its interpretation of the law permitting small farms to not pay employees the same as other workers at larger farms. Agustin Arbulu, director of the Michigan Civil Rights Department, sent a 34-page letter to Schuette that month detailing the legal reasons why the department believes all agricultural workers should be covered by Michigan’s minimum wage law.

“The general principle of the state minimum wage law has been to fill in the gaps where federal law does not provide protection,” Arbulu wrote then.

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