FARM Laborers Protection Act

II 116TH CONGRESS 2D SESSION S. 4042 To protect agricultural workers from the impacts of the coronavirus pandemic, and for other purposes. IN THE SENATE OF THE UNITED STATES JUNE 23, 2020 Mr. MERKLEY (for himself, Mr. BLUMENTHAL, Mr. SANDERS, Ms. HARRIS, Ms. WARREN, and Mr. LEAHY) introduced the following bill; which was read twice and referred to the Committee on Finance A BILL To protect agricultural workers from the impacts of the coronavirus pandemic, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Frontline At-Risk 4 Manual Laborers Protection Act’’ or the ‘‘FARM Labor- 5 ers Protection Act’’. 6 SEC. 2. DEFINITIONS. 7 In this Act: 8 (1) AGRICULTURAL WORK.—The term ‘‘agricul- 9 tural work’’ means food production work involving 10 VerDate Sep 11 2014 00:24 Jul 08, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S4042.IS S4042 kjohnson on DSK79L0C42PROD with BILLS 2 •S 4042 IS the physical interaction with food products, includ- 1 ing— 2 (A) all agricultural work, farming, fishing, 3 forestry, ranching, processing, canning, slaugh- 4 tering, packaging, baking, butchering, and 5 other food production work, such as any service 6 or activity included within the provisions of sec- 7 tion 3(f) of the Fair Labor Standards Act of 8 1938 (29 U.S.C. 203(f)), or section 3121(g) of 9 the Internal Revenue Code of 1986; and 10 (B) the handling, planting, drying, pack- 11 ing, packaging, processing, freezing, or grading 12 prior to delivery for storage of any agricultural 13 or horticultural commodity in its unmanufac- 14 tured state. 15 (2) AGRICULTURAL WORKER.—The term ‘‘agri- 16 cultural worker’’ means an individual— 17 (A) regardless of citizenship or immigra- 18 tion status; 19 (B) who is— 20 (i) an employee of a covered agricul- 21 tural producer; or 22 (ii) an individual performing any serv- 23 ice or labor for remuneration for a covered 24 agricultural producer, without regard as to 25 VerDate Sep 11 2014 00:24 Jul 08, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S4042.IS S4042 kjohnson on DSK79L0C42PROD with BILLS 3 •S 4042 IS whether the individual is classified as an 1 independent contractor by the covered ag- 2 ricultural producer; and 3 (C) whose work and duties include agricul- 4 tural work. 5 (3) CORONAVIRUS.—The term ‘‘coronavirus’’ 6 means the novel coronavirus disease 2019 (COVID– 7 19). 8 (4) COVERED AGRICULTURAL PRODUCER.—The 9 term ‘‘covered agricultural producer’’ means an em- 10 ployer engaged in commerce, including any agricul- 11 tural employer as defined in section 3 of the Migrant 12 and Seasonal Agricultural Worker Protection Act 13 (29 U.S.C. 1802), that receives any Federal agri- 14 culture-specific coronavirus funding. 15 (5) COVERED CONTRACTOR.—The term ‘‘cov- 16 ered contractor’’ means a person who— 17 (A) has entered into an agreement with a 18 covered agricultural producer— 19 (i) to provide agricultural workers to 20 perform work for the covered agricultural 21 producer; or 22 (ii) to pay the agricultural workers of 23 a covered agricultural producer; and 24 VerDate Sep 11 2014 00:24 Jul 08, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S4042.IS S4042 kjohnson on DSK79L0C42PROD with BILLS 4 •S 4042 IS (B) has accepted grant funds under section 1 202 from the covered agricultural producer. 2 (6) COVERED PERIOD.—The term ‘‘covered pe- 3 riod’’, when used with respect to a covered agricul- 4 tural producer, means the period— 5 (A) beginning on the first date after the 6 date of enactment of this Act that the covered 7 agricultural producer is approved for Federal 8 agriculture-specific coronavirus funding; and 9 (B) ending on the date that is 90 days 10 after the date of the expiration of the public 11 health emergency declared by the Secretary of 12 Health and Human Services under section 319 13 of the Public Health Service Act (42 U.S.C. 14 247d) on January 31, 2020, with respect to the 15 coronavirus. 16 (7) EMPLOY.—The term ‘‘employ’’ has the 17 meaning given the term in section 3 of the Fair 18 Labor Standards Act of 1938 (29 U.S.C. 203) and 19 section 3 of the Migrant and Seasonal Agricultural 20 Worker Protection Act (29 U.S.C. 1802). 21 (8) EMPLOYEE.—The term ‘‘employee’’ in- 22 cludes— 23 VerDate Sep 11 2014 00:24 Jul 08, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S4042.IS S4042 kjohnson on DSK79L0C42PROD with BILLS 5 •S 4042 IS (A) an employee, as defined in section 3 of 1 the Fair Labor Standards Act of 1938 (29 2 U.S.C. 203); and 3 (B) an employee, as such term is used for 4 purposes of the Migrant and Seasonal Agricul- 5 tural Worker Protection Act (29 U.S.C. 1801 et 6 seq.). 7 (9) EMPLOYER.—The term ‘‘employer’’ in- 8 cludes— 9 (A) an employer, as defined in section 3 of 10 the Fair Labor Standards Act of 1938 (29 11 U.S.C. 203); and 12 (B) an employer, as such term is used for 13 purposes of the Migrant and Seasonal Agricul- 14 tural Worker Protection Act (29 U.S.C. 1801 et 15 seq.). 16 (10) FEDERAL AGRICULTURE-SPECIFIC 17 CORONAVIRUS FUNDING.—The term ‘‘Federal agri- 18 culture-specific coronavirus funding’’ means Federal 19 funding that is provided— 20 (A) during the period beginning on the 21 date of enactment of this Act and ending on the 22 date described in paragraph (6)(B); and 23 (B) to the covered agricultural producer 24 for purposes— 25 VerDate Sep 11 2014 00:24 Jul 08, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S4042.IS S4042 kjohnson on DSK79L0C42PROD with BILLS 6 •S 4042 IS (i) of addressing, responding to, or 1 mitigating the spread of the coronavirus in 2 agriculture; or 3 (ii) related to the effects of coronavi- 4 rus on agriculture production or sales. 5 (11) HIGHLY COMPENSATED.—The term ‘‘high- 6 ly compensated’’, when used with respect to an agri- 7 cultural worker, means an agricultural worker who 8 is paid $100,000 or more per year by a covered agri- 9 cultural producer. 10 (12) PERSON.—The term ‘‘person’’ includes— 11 (A) a person as defined in section 3 of the 12 Fair Labor Standards Act of 1938 (29 U.S.C. 13 203); and 14 (B) a person as defined in section 3 of the 15 Migrant and Seasonal Agricultural Worker Pro- 16 tection Act (29 U.S.C. 1802). 17 SEC. 3. GENERAL PROVISIONS. 18 (a) RULE OF CONSTRUCTION.—Nothing in this Act 19 shall be construed to in any way diminish the rights or 20 benefits that an employee is entitled to under any— 21 (1) other Federal, State, or local law; 22 (2) collective bargaining agreement; or 23 (3) existing employer policy to provide greater 24 rights or benefits, including more emergency paid 25 VerDate Sep 11 2014 00:24 Jul 08, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S4042.IS S4042 kjohnson on DSK79L0C42PROD with BILLS 7 •S 4042 IS sick leave or other leave, to an employee than is oth- 1 erwise required under this title. 2 (b) CLARIFICATION.—Nothing in this Act is intended 3 to limit any other Federal, State, or local authority to pro- 4 mulgate, enforce, or maintain laws or rules regarding pro- 5 tections, rights, or benefits related to the coronavirus. 6 TITLE I—DIRECT FUNDING 7 REQUIREMENTS 8 SEC. 101. SICK LEAVE. 9 (a) IN GENERAL.—A covered agricultural producer 10 shall, during the covered period, provide all agricultural 11 workers of the covered agricultural producer with emer- 12 gency paid sick leave, in the same manner as emergency 13 paid sick leave is provided under division E of the Families 14 First Coronavirus Response Act (29 U.S.C. 2601 note), 15 without regard to the number of employees employed by 16 the covered agricultural producer. 17 (b) TAX CREDITS.—For purposes of section 7001(c) 18 of the Families First Coronavirus Response Act (26 19 U.S.C. 3111 note), paid sick leave required to be provided 20 under subsection (a) by covered agricultural producers 21 employing 500 or less employees shall be treated as re- 22 quired to be paid by reason of the Emergency Paid Sick 23 Leave Act. 24 VerDate Sep 11 2014 00:24 Jul 08, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S4042.IS S4042 kjohnson on DSK79L0C42PROD with BILLS 8 •S 4042 IS SEC. 102. PREMIUM PAY. 1 (a) PANDEMIC PREMIUM PAY.— 2 (1) IN GENERAL.—A covered agricultural pro- 3 ducer or a covered contractor shall, in accordance 4 with this section, provide each agricultural worker of 5 the covered agricultural producer with premium pay 6 at a rate equal to $13 for each hour of work per- 7 formed by the agricultural worker for the covered 8 agricultural producer during the period described in 9 subsection (f). 10 (2) MAXIMUM AMOUNTS.—The total amount of 11 all premium pay under this subsection that a cov- 12 ered agricultural producer or covered contractor is 13 required to provide to an agricultural worker shall 14 not exceed— 15 (A) for an agricultural worker who is not 16 highly compensated, $10,000 reduced by em- 17 ployer payroll taxes with respect to such pre- 18 mium pay; or 19 (B) for an agricultural worker who is high- 20 ly compensated, $5,000 reduced by employer 21 payroll taxes with respect to such premium pay. 22 (3) NO EMPLOYER DISCRETION.—A covered ag- 23 ricultural producer or covered contractor shall not 24 have any discretion to determine which portions of 25 work performed by an agricultural worker qualify for 26 VerDate Sep 11 2014 00:24 Jul 08, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S4042.IS S4042 kjohnson on DSK79L0C42PROD with BILLS 9 •S 4042 IS premium pay under this subsection, but shall pay 1 such premium pay for any increment of time worked 2 by the agricultural worker up to the maximum 3 amount applicable to the agricultural worker under 4 paragraph (2). 5 (4) TIMING.— 6 (A) IN GENERAL.—A covered agricultural 7 producer or covered contractor shall commence 8 payment of the premium pay required under 9 this subsection as quickly as practicable, but 10 not later than the earlier of— 11 (i) the date that is 30 days after the 12 receipt of grant funds under section 202 13 by the covered agricultural producer or 14 covered contractor, respectively; or 15 (ii) the date that is 90 days after the 16 first day of the emergency period applica- 17 ble to the covered agricultural producer. 18 (B) PAST PAYMENTS.—A covered agricul- 19 tural producer or covered contractor shall in- 20 clude, in the first payment of premium pay 21 made under this subsection to an agricultural 22 worker, all premium pay due to the agricultural 23 worker for work occurring before the date of 24 VerDate Sep 11 2014 00:24 Jul 08, 2020 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S4042.IS S4042 kjohnson on DSK79L0C42PROD with BILLS 10 •S 4042 IS payment and during the emergency period ap- 1 plicable to the covered agricultural producer. 2 (b) PROHIBITION ON REDUCING COMPENSATION AND 3 DISPLACEMENT.— 4 (1) IN GENERAL.—Any payments made to an 5 agricultural worker as premium pay under sub- 6 section (a) shall be in addition to all other com- 7 pensation, including all wages, remuneration, or 8 other pay and benefits, that the agricultural worker 9 otherwise receives from the covered agricultural pro- 10 ducer or covered contractor. 11 (2) REDUCTION OF COMPENSATION.—A covered 12 agricultural producer or covered contractor shall not, 13 during the period described in subsection (f), reduce 14 or in any other way diminish, any other compensa- 15 tion, including the wages, remuneration, or other 16 pay or benefits, that the covered agricultural pro- 17 ducer or covered contractor provided to the agricul- 18 tural worker on the day before the date of enact- 19 ment of this Act. 20 (3) DISPLACEMENT.—A covered agricultural 21 producer or covered contractor shall not take any ac- 22 tion to displace an agricultural worker (including 23 partial displacement such as a reduction in hours, 24 wages, or employment benefits) for purposes of hir- 25 VerDate Sep 11 2014 00:24 Jul 08, 2020 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S4042.IS S4042 kjohnson on DSK79L0C42PROD with BILLS 11 •S 4042 IS ing an individual for an equivalent position at a rate 1 of compensation that is less than is required to be 2 provided to an agricultural worker under paragraph 3 (2). 4 (c) DEMARCATION FROM OTHER COMPENSATION.— 5 The amount of any premium pay paid under subsection 6 (a) shall be clearly demarcated as a separate line item in 7 each paystub or other document provided to an agricul- 8 tural worker that details the remuneration the agricultural 9 worker received from the covered agricultural producer or 10 covered contractor for a particular period of time. If any 11 agricultural worker does not otherwise regularly receive 12 any such paystub or other document, the covered agricul- 13 tural producer or the covered contractor shall provide such 14 paystub or other document to the agricultural worker for 15 the duration of the premium pay period. 16 (d) EXCLUSION FROM WAGE-BASED CALCULA- 17 TIONS.—Any premium pay under subsection (a) paid to 18 an agricultural worker under this section by a covered ag- 19 ricultural producer or covered contractor shall be excluded 20 from the amount of remuneration for work paid to the 21 agricultural worker for purposes of— 22 (1) calculating the agricultural worker’s eligi- 23 bility for any wage-based benefits offered by the cov- 24 ered agricultural producer or covered contractor; 25 VerDate Sep 11 2014 00:24 Jul 08, 2020 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S4042.IS S4042 kjohnson on DSK79L0C42PROD with BILLS 12 •S 4042 IS (2) computing the regular rate at which such 1 agricultural worker is employed under section 7 of 2 the Fair Labor Standards Act of 1938 (29 U.S.C. 3 207); and 4 (3) determining whether such agricultural work- 5 er is exempt from application of such section 7 6 under section 13(a)(1) of such Act (29 U.S.C. 7 213(a)(1)). 8 (e) AGRICULTURAL WORKER DEATH.— 9 (1) IN GENERAL.—In any case in which an ag- 10 ricultural worker of a covered agricultural producer 11 exhibits symptoms of the coronavirus and dies as a 12 result of the coronavirus during the period described 13 in subsection (f), the covered agricultural producer 14 or covered contractor shall pay as a lump sum to the 15 next of kin of the agricultural worker for premium 16 pay under subsection (a)— 17 (A) for an agricultural worker who is not 18 highly compensated, the amount determined 19 under subsection (a)(2)(A) minus the total 20 amount of any premium pay the worker re- 21 ceived under subsection (a) prior to the death; 22 or 23 (B) for an agricultural worker who is high- 24 ly com [Text truncated for display. 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