Migrant and Seasonal Worker Supplement.pdf

1. Employment of Eligible Workers This contract is subject to the Migrant and Seasonal Agricultural Worker Protection Act (MSPA) as implemented in 29 United States Code (U.S.C) Chapter 20 §1801-1872, the United States (U.S.) Department of Labor (DOL) regulations implementing MSPA 29 Code of Federal Regulations (CFR) Part 500, and the Immigration and Nationality Act (INA) as implemented by 8 CFR Part 274A. Compliance with both MSPA and the INA is a material condition of this contract. If the contractor employs any unauthorized worker(s) during the performance of this contract that violates section 274A of the INA, the Government may terminate the contract, in addition to other remedies or penalties prescribed by law.

The Contractor is responsible for following all requirements implemented in statute and by the DOL to include, but not limited to:

a. 29 U.S.C. Chapter 20 § 1801 - 1872: Migrant and Seasonal Agricultural Worker Protection

b. 29 CFR Part 500: Migrant and Seasonal Agricultural Worker Protection

c. 8 CFR Part 274a: Control of Employment of Aliens

d. Department of Labor Information on Migrant and Seasonal Agricultural Worker

Protection Act

e. Fact Sheet #12: Agricultural Employers Under the Fair Labor Standards Act

f. Fact Sheet #35: Independent Contractors and Joint Employment under MSPA

g. Fact Sheet #49: The Migrant and Seasonal Agricultural Worker Protection Act

h. Fact Sheet #50: Transportation under the Migrant and Seasonal Agricultural Worker

Protection Act

i. Fact Sheet #63: Application of Federal Labor Laws to Reforestation

j. Fact Sheet #63A: Application of Federal Labor Laws to Pine Straw

k. Fact Sheet #77C: Prohibiting Retaliation Under the Migrant and Seasonal Agricultural

Worker Protection Act

l. Fact Sheet #78: General Requirements for Employers Participating in the H-2B Program

m. Occupational Safety and Health Administration (OSHA) Standard 1910.142: Temporary

Labor Camps

2. Definitions

a. H-2B worker: as used in this part means a nonimmigrant holding a visa authorizing the individual to legally work in the U.S. to perform temporary labor or services. A worker with an H-2B visa (H-2B worker) may also be considered a migrant agricultural worker under MSPA depending on the type and nature of work performed.

b. Migrant Agricultural Worker and Seasonal Agricultural Worker: as used in this part means individuals, who may be U.S. citizens or H-2B workers, employed for agricultural (including forestry) work on a seasonal or temporary basis, which includes:

i. A worker, moving from one seasonal activity to another, is employed on a seasonal basis even though the worker may continue to be employed during a major portion of the year.

ii. An overnight absence from the migrant workers’ permanent place of residence is required.

https://www.law.cornell.edu/uscode/text/29/chapter-20 https://www.law.cornell.edu/uscode/text/29/chapter-20 https://www.ecfr.gov/current/title-29/subtitle-B/chapter-V/subchapter-A/part-500 https://www.ecfr.gov/current/title-8/chapter-I/subchapter-B/part-274a https://www.dol.gov/agencies/whd/agriculture/mspa https://www.dol.gov/agencies/whd/agriculture/mspa https://www.dol.gov/agencies/whd/fact-sheets/12-agricultural-employment-flsa https://www.dol.gov/agencies/whd/fact-sheets/35-mspa-joint-employment https://www.dol.gov/agencies/whd/fact-sheets/49-mspa https://www.dol.gov/agencies/whd/fact-sheets/50-mspa-transportation https://www.dol.gov/agencies/whd/fact-sheets/50-mspa-transportation https://www.dol.gov/agencies/whd/fact-sheets/63-reforestation https://www.dol.gov/agencies/whd/fact-sheets/63A-pine-straw https://www.dol.gov/agencies/whd/fact-sheets/77c-mspa-prohibiting-retaliation https://www.dol.gov/agencies/whd/fact-sheets/77c-mspa-prohibiting-retaliation https://www.dol.gov/agencies/whd/fact-sheets/78-h2b-overview https://www.osha.gov/laws-regs/regulations/standardnumber/1910/1910.142

iii. Members of the contractor's immediate family are not considered migrant or seasonal workers. Immediate family includes spouse, children, stepchildren, foster children, parents, stepparents, foster parents, brothers, or sisters.

c. Farm Labor Contractor (FLC). As used in this part means a person including an individual, partnership, association, joint stock company or a corporation, who, for any money or other valuable consideration, paid or promised to be paid, performs any recruiting, soliciting, hiring, employing, furnishing, or transporting of any migrant or seasonal agricultural worker.

3. Contractor Employee List.

Contractors are required to maintain and provide upon request an active list of all employees performing work on the job site under this contract. The Employee List will identify employees by full name (aliases), supervisory duties if applicable, and appropriate labor Occupation Code for work performed under the Service Contract Labor Standards Wage Rates applicable to this contract. If subcontractors are utilized, all tiers of subcontractor(s) are responsible for providing the same information for their employees to the Prime for submittal to the Contracting Officer.

4. Registration and Documentation Requirements.

The contractor shall ensure all the following documents are completed and provided to the Contracting Officer prior to the start of any work under this contract.

a. Any contractor who meets the definition in 2.c. above shall obtain a Federal WH-530

DOL Farm Labor Contractor Certificate of Registration. The contractor shall carry the certificate of registration while engaged in contract performance and shall display it upon request.

b. Contractors shall provide copies of approved Temporary Employment Certificates for an

H-2B employee prior to the employee starting work under this contract.

c. Any of the contractor's employees meeting the definitions in 2 a. or b. must have their own WH-535 FLC Employee Certificate. The contractor employee shall carry the certificate of registration while engaged in contract performance or have it readily available if conditions make it unsafe to physically carry and shall display it upon request.

5. Certifications The Contractor shall provide applicable H-2B Temporary Employment Certificate and/or Farm Labor Contractor Certificate as part of their representations, certifications, and acknowledgements. Subcontractor(s) meeting the definitions above shall follow the same requirements as the Prime Contractor. It is the Prime Contractor's responsibility to ensure the Subcontractor's information is provided to the Contracting Officer.

If workers are hired under the H-2B program, (8 CFR Section 274A provisions of the Immigration and Nationality Act (INA) for the admission of nonimmigrants to the U.S. to https://www.dol.gov/agencies/whd/forms/wh530 https://www.dol.gov/agencies/whd/forms/wh530 https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/ETA_Form_9142B.pdf https://www.dol.gov/agencies/whd/forms/wh530 perform temporary labor or services) a Temporary Employment Certification issued by the Office of Foreign Labor Certification (OFLC) in the Department of Labor Employment and Training Administration is required.

6. Worker Protections The Contractor is solely responsible for compliance with all federal, state and local laws, including but not limited to the Occupational, Safety and Health Act (OSHA) (Public Law 91-

596) and the resulting standards, OSHA Standard 29 CFR 1910 and any USDA Instructions as applicable, and the protection of their employees. Note: USDA Instructions are annotated since USDA standards may exceed the OSHA standard criteria. If a conflict is noted, the most stringent requirement takes precedence. The Government shall assume no liability or responsibility for the Contractor's compliance or non-compliance with such requirements. In addition, the Contractor is required to flow down the safety requirements/specifications to all subcontracts/subcontractors. Safety requirements listed herein that do not concern Contractor’s operations or services shall be considered self-deleting as mutually agreed by the Contracting Officer and the Contractor.

The Contractor shall ensure all employees are informed that performance of work under this contract may occur in forest, agricultural, or other outdoor environments where exposure to occupational hazards is inherent. These hazards may include, but are not limited to, airborne particulates, chemical residues, metal dust, biological contaminants, pesticides, fuels, and other substances commonly associated with forestry, agricultural, and land management operations.

Areas where exposures may exceed OSHA permissible exposure limits under 29 C.F.R. Part 1910, Subpart Z—Toxic and Hazardous Substances shall be clearly marked as regulated areas.

Workers may also encounter contact hazards from contaminated soil, debris, plant material, fuel residues, machinery byproducts, or dust generated during cutting, thinning, clearing, or related activities. The Contractor shall ensure appropriate protective measures are implemented to safeguard all workers, to include required PPE, hazard communication, and safety training consistent with OSHA regulations. Before a worker begins operating equipment, the contractor shall train the workers in the safe operation and use of the equipment. Although not an inclusive list, the contractor and its employees shall be familiar with the following statutes and guidance.

a. Applicable sections of 29 CFR 1910: Occupational Safety and Health Standards

b. 29 CFR 1910 Subpart I: Personal Protective Equipment

c. Occupational Safety and Health Administration (OSHA) PPE Information

d. OSHA PPE Equipment Booklet

e. Machine and Mechanical Operations Logging e-Tool

The Contractor shall be subject to safety inspections of its work sites by the Government.

Contractor’s safety records shall be available upon request by the Contracting Officer or COR.

The Contractor shall be liable for, and shall indemnify and hold harmless the USDA against, all actions or claims pertaining to the “personal” safety requirements of employees. The Contractor shall provide all personal protective equipment (respiratory protection, hearing protection, gloves, steel-toed shoes, safety glasses, protective clothing, etc.). In addition, the Government is not responsible for medical examinations, hearing testing, substance abuse testing, or any other type of testing for Contractor employees.

https://www.ecfr.gov/current/title-29/subtitle-B/chapter-XVII/part-1910/subpart-I https://www.ecfr.gov/current/title-29/subtitle-B/chapter-XVII/part-1910/subpart-I https://www.osha.gov/personal-protective-equipment https://www.osha.gov/sites/default/files/publications/OSHA3151.pdf https://www.osha.gov/etools/logging

7. Camping Opportunities.

The Forest Service has various camping opportunities. Check with the local Forest Service unit for camping requirements, camping permits may be required. If camps are used to house workers subject to MSPA, they are also subject to the temporary labor camp standards at 29 CFR

1910.142. The Forest Service reserves the right to terminate a camping permit at any time.

These requirements are in addition to those contained in or provided for under the clause titled 452.236-72 Use of Premises in this contract. Any violation of these conditions constitutes a breach of contract and may result in revocation of camping approval. The Contractor shall ensure employees follow all requirements for use of Public Lands as set forth in 36 CFR Part 261, Prohibitions.

8. Subcontractor Compliance.

Subcontractors are bound by the same requirements for licenses and permits under this contract.

If a prime contractor identifies a subcontractor as part of their workforce to accomplish the work under this solicitation, the prime contractor shall submit the subcontractor's required documentation and signed certifications with their response to the solicitation.

https://www.ecfr.gov/current/title-36/chapter-II/part-261 https://www.ecfr.gov/current/title-36/chapter-II/part-261