If you work at day labor or another occasional part-time work that pays you in hand and does not ask about your address, do you have to accept any amount of pay they give you?

**** The information written here is not legal advice and the author of this blog is not your lawyer.  These posts merely contain ideas to help you plan and organize your legal research and identify potentially helpful sources of law. ****

The Migrant and Seasonal Agricultural Workers Protection Act[i] does allow for the possibility that temporary and transient agricultural workers can be paid “by the piece” (more likely by the bushel or section of a field), but generally the answer to this question is no, you do not have to accept any amount of pay an employer gives you.

The federal Fair Labor Standards Act (FLSA)[ii] requires that every worker be paid at least a certain hourly rate known as “the minimum wage.” Even the piecework rates in temporary agricultural jobs have to pay at least as much as workers would get at the hourly minimum wage rate.  The minimum wage rate is set by the Wage and Hours division of the U.S. Department of Labor. You have to get at least the minimum wage for working up to forty hours in a single week. Your state might have an even higher minimum wage than the federal rate.[iii]

If you work for the same employer for more than forty hours in one week, you are supposed to get paid fifty percent more (per hour or other pay unit) than the rate you earned for the first forty hours. Even if you are paid in cash and the employer does not know your last name, let alone where you sleep at night, you are entitled to earn these rates of pay.  Whether you have an address also has nothing to do with your right to be properly credited for the full number of hours you have worked.[iv] Even though the IRS and the Social Security Administration don’t require temporary and day labor employers to report workers’ addresses to them (because those employers do not have to withhold income tax or FICA payments), they still have to follow the FLSA and the regulations that go with it.

The Department of Wages and Hours has a “Fact Sheet on the Construction Industry”https://www.dol.gov/whd/regs/compliance/whdfs1.pdf listing some of the common ways employers in that industry, which frequently employs homeless temporary workers, try to avoid giving full credit for work time: failing to record time, claiming work over forty hours counts only as comp time instead of paying the 150% wage rate, requiring overtime hours to be held aside in a time bank, not paying for travel time to job sites, etc… All of those actions are illegal.

The Wage and Hours Division advises workers to contact the nearest DOL office[v] if work hours have not been properly credited or if they have not been paid the minimum wage. The office that you contact will investigate your situation and enforce the Fair Labor Standards Act.It would also be wise to contact an attorney for representation. Private law firms can sometimes donate their services to help homeless people get their proper pay.[vi] If none are available, contact the nearest legal aid office.[vii]

Whether your legal help comes from only the DOL office or that office along with your lawyer, you should have a log of your hours and names of witnesses who worked with you. You should also be prepared to tell every possible detail about how and where you were recruited and to name and the individuals who supervised you. Those kinds of proof are necessary to demonstrate that you truly did work at that job for the claimed amount of time.

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[i] The Migrant and Seasonal Agricultural Workers Act is at 29 U.S.C. 1801 and the sections following 1801.  An entire Web site about that law and the regulations that go with it. http://www.dol.gov/esa/whd/mspa/index.htm

 

[ii] The Fair Labor Standards Act is at 29USC 201. The Dept. of Labor regulations that go with it are at 29 CFR §510-794. Those laws and plain English fact sheets and other explanations about the FLSA are online at http://www.dol.gov/compliance/laws/comp-flsa.htm.

[iii] State minimum wage rates are published online at http://www.dol.gov/esa/minwage/america.htm. If that site is unavailable contact your state department of labor or navigate through its Web site. http://www.dol.gov/esa/contacts/state_of.htm

[iv] A Dept. of Labor Fact Sheet explaining how employers are supposed to count workers’ time as work time (i.e., how to know when you should be paid for breaks, waiting periods, etc…) is at http://www.dol.gov/esa/regs/compliance/whd/whdfs22.htm.

[v] The Dept. of Labor offices are listed at http://www.dol.gov/esa/contacts/whd/america2.htm and in the blue pages of the phone book.

[vi] Example: The Washington (D.C.) Lawyers’ Committee for Civil Rights and Urban Affairs matches private law firms with indigent clients whose civil rights have been violated. Summaries of some of their employment cases, along with the complaints they filed in court, are at http://www.washlaw.org/news/n_case_decision.htm.

[vii] Legal Aid Offices are listed at http://www.lawhelp.org/. You can also get contact information for local legal aid offices from the public library. A recent class action case was brought by day laborers who weren’t paid fairly after being transported from Maryland to Mississippi to clean up debris from a hurricane. Marroquin v. Canales, 236 F.R.D. 257 (D.Md. 2006). Find other cases by looking in any books published by Thomson West Publishing using the topic “labor and employment” and key numbers 2210 and up.