employ

(4) The definition of the term employ may include consideration of whether or not an independent contractor or employment relationship exists under the Fair Labor Standards Act. Under MSPA, questions will arise whether or not a farm labor contractor engaged by an agricultural employer/association is a bona fide independent contractor or an employee. Questions also arise whether or not the worker is a bona fide independent contractor or an employee of the farm labor contractor and/or the agricultural employer/association. These questions should be resolved in accordance with the factors set out below and the principles articulated by the federal courts in Rutherford Food Corp. v. McComb, 331 U.S. 722 (1947), Real v. Driscoll Strawberry Associates, Inc., 603 F.2d 748 (9th Cir. 1979), Sec'y of Labor, U.S. Dept. of Labor v. Lauritzen, 835 F.2d 1529 (7th Cir. 1987), cert. denied, 488 U.S. 898 (1988); Beliz v. McLeod, 765 F.2d 1317 (5th Cir. 1985), and Castillo v. Givens, 704 F.2d 181 (5th Cir.), cert. denied, 464 U.S. 850 (1983). If it is determined that the farm labor contractor is an employee of the agricultural employer/association, the agricultural workers in the farm labor contractor's crew who perform work for the agricultural employer/association are deemed to be employees of the agricultural employer/association and an inquiry into joint employment is not necessary or appropriate. In determining if the farm labor contractor or worker is an employee or an independent contractor, the ultimate question is the economic reality of the relationship - whether there is economic dependence upon the agricultural employer/association or farm labor contractor, as appropriate. Lauritzen at 1538; Beliz at 1329; Castillo at 192; Real at 756. This determination is based upon an evaluation of all of the circumstances, including the following:

Source

29 CFR § 500.20


Scoping language

For purposes of this part:

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