Employees, Not-So-Independent Contractors, and the Case of Migrant Farmworkers: A Challenge to the 'Law and Economics' Agency Doctrine
NYU Review of Law & Social Change, Vol. XV, pp.435-75, 1987
42 Pages Posted: 3 Jan 2013
Date Written: 1987
Perhaps more than any other workers, hand-labor migrant agricultural workers are economically dependent upon the entity for which they work. For the purposes of federal employment relations legislation, migrant farm labor should qualify as the prototype of employment dependency. Yet in spite of more than two decades of federal labor law designed to protect migrant farmworkers, a considerable portion of their private actions brought under legislation such as the Migrant and Seasonal Agricultural Worker Protection
Act and the Fair Labor Standards Act has been bogged down in the Sisyphean labor of proving time and again that the plaintiffs are not independent contractors or employees of judgment-proof, straw-men crewleaders, but are indeed employees of financially responsible agricultural employers. Although virtually all other similarly situated dependent employees in the United States routinely enjoy the uncontested presumption of employment, large numbers of migrant farmworkers are daily caught in the dilemma of acquiescing in the inferior conditions imposed by employers who deny that status or of assuming the risks and dangers attendant on carrying the burden of proving that presumption.
This Article describes the historical development of legal and social distinctions made between employees and independent contractors and demonstrates that, when analyzed as a class under the standard currently used by the courts in evaluating a worker's status under FLSA and other legislation, unskilled migrant farmworkers should categorically be recognized as employees. Taking as its theoretical focus a critical evaluation of Law & Economics agency doctrine, it argues that the latter’s understanding of workers' dependence does not fundamentally misconceive certain aspects of the relation between farmworkers and agricultural businesses, but in fact supports the conclusion that migrant farmworkers are employees. The Article also proposes that courts should abandon a particularized inquiry into the facts of agricultural employment status and instead adopt a per se rule that unskilled migrant farmworkers are employees of agricultural businesses.
Keywords: migrant farmworkers, independent contractors, employee, Fair Labor Standards Act, Migrant and Seasonal Agricultural Worker Protection Act, Law & Economics Agency Doctrine, locatio conductio operis, locatio conductio operarum, control test, master-servant, vicarious liability, economic reality of dep
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