be a fee, as where a grower advances money for repairs or travel expenses to a contractor or where workers pay a contractor in advance for transportation. A promise to pay money or other valuable consideration in the future may also be a fee, as where workers promise to pay a contractor for transportation after the travel is accomplished. Where two or more persons share expenses in a common venture, money or other valuable consideration received by one from the other for this purpose would not be considered a fee. The facts and circumstances of each individual case will be considered in determining whether any valuable consideration paid or promised to be paid constitutes a "fee" within the meaning of the Act.

§ 41.6 "For himself or on behalf of another person."

A farm labor contractor is defined, in part, as any person who, for a fee, for himself or on behalf of another person, recruits, solicits, hires, furnishes, or transports migrant workers for interstate agricultural employment. In view of the phrase, "either for himself or on behalf of another person," it does not matter whether the person is engaging in the activities of a farm labor contractor for his own personal use and benefit or for or on behalf of his employer, contractor, or some other person. Wherever a person is performing the activities of a farm labor contractor, it is immaterial who is or will be the employer or prospective employer of the migrant workers.

§ 41.7 "Recruits, solicits, hires, furnishes, or transports."

These terms are to be given their ordinary meaning as each is defined in the unabridged edition of Webster's New International Dictionary. The Act will apply to any person who engages in or performs one or more of these activities and otherwise meets the definition of a farm labor contractor.

§ 41.8 "Ten or more."

(a) The Act applies to any person who, for a fee, recruits, solicits, hires, furnishes or transports ten or more migrant workers (excluding members of his immediate family) at any one time in any calendar year for interstate agricultural employment. Accordingly, the count of "ten or more" would not include the farm labor contractor him

self, whether the contractor be an individual proprietor, a partner of a partnership entity, or one of the principals of a joint venture. Further, in determining the number of workers, the count would include only those individuals who are migrant workers, as hereinafter defined and explained, and would exclude members of the contractor's own immediate family.

(b) The total number of migrant workers to be counted includes all those who are affected by one or more of the following activities, performed or engaged in by a farm labor contractor at any one time, as explained in § 41.9: Recruiting, soliciting, hiring, furnishing, and transporting. Where a contractor performs more than one of these services with relation to a migrant worker, the same worker is not counted more than once. Thus, where a contractor recruits migrant workers and the same workers are hired or transported through the efforts of the same contractor, each worker would be counted only one time for the purpose of arriving at the total number prescribed by the Act. Likewise, if a contractor recruits migrant workers and performs other farm labor contracting services with relation to additional and different workers, all the workers are to be included in the count: Provided, however, That the principles, set forth in § 41.9, explaining the meaning of "at any one time," are applied.

§ 41.9 "At any one time.”

(a) Within the meaning of the Act, a farm labor contractor performs the described farm labor contracting activities with respect to ten or more migrant workers "at any one time" if, pursuant to a single agreement, arrangement, objective, or purpose and during a single time period reasonably appropriate in length for carrying out such agreement, arrangement, objective, or purpose, the contractor performs one or more of such activities with respect to migrant workers in such number for interstate agricultural employment.

(b) Persons may not escape coverage of the Act by treating every act or transaction as independent or separate from all others, so as, purportedly, to maintain an existing relationship or to contemplate a proposed relationship with less than ten migrant workers "at any one time." Thus, if a person, pursuant to an undertaking, agreement or other obligation solicits, recruits, hires, furnishes or transports migrant workers for interstate agricultural employment for or on behalf of an employer, farmer, other farm labor contractor, or any combination of such, and such performance includes two or more of these activities, simultaneously or successively, the entire operation of the several component activities will be regarded as being performed or engaged in "at any one time": Provided, That ten or more migrant workers are affected by the operation. For example, if a person is obligated or has undertaken to hire and transport migrant workers for Farmer A, the fact that three weeks may be consumed to hire the required number of migrant workers would not preclude this activity from being performed "at any one time" with the additional act of transporting, whether the latter act involves the same and/or different workers. While the act of transporting is a single act that is completed when migrant workers are delivered to a prearranged destination, the situation is different for soliciting, recruiting, hiring or furnishing. These activities are such as, usually, to require a series of acts extending over a span of time varying according to the circumstances of the specific situation or assigned task.

(c) Factors to be taken into consideration in determining whether or not a series of farm labor contracting activities will be deemed to have been performed or engaged in "at any one time" should include, among others, (1) the nature of the person's operations, (2) the relationship, if any, between successive individual acts of soliciting, recruiting, hiring, furnishing or transporting migrant workers as part of a chain or connecting sequence of activities for servicing an employer, producer, other farm labor contractor, or any combination of such, (3) the lapse of time between the performance of each of two or more of the activities, and (4) the person's actual or proposed relationship with migrant workers.

(d) Where several activities are performed separately and at different times, and each activity involves less than ten migrant workers, the statutory requirement of ten will not be reached by taking a total of the number included in each activity, unless there is such a continuity or connection between the several activities as to be reasonably regarded as occurring "at any one time." Thus, if a person intends to recruit five (5) migrant

workers one day for Farmer A and the next day is requested to recruit and does recruit eight (8) migrant workers for Farmer B, these are separate and independent acts and do not total up to thirteen (13) for purposes of the statutory requirement. However, if he has contracts to hire a total of eighteen (18) migrant workers for Farmers X, Y and Z and he hires this number as a result of three days' effort, the statutory amount of "ten or more" would be present. Also, if the person, under a single arrangement or agreement, recruits, for example, seven (7) migrant workers for Farmer A and, shortly thereafter, also transports eight (8) different migrant workers for the same Farmer A, the result, for purposes of the Act, is more than the statutory total of "ten or more" migrant workers.

(e) The foregoing examples illustrate the manner in which the language "at any one time" may be applied in these specific factual situations. However, the application of these principles to other situations will depend on all the facts. § 41.10 "Any calendar year."

(a) A person, engaged in farm labor contracting activities, is covered by the Act, only if he performs those activities with respect to ten or more migrant workers "at any one time in any one calendar year." A certificate of registration, once issued, is effective for the remainder of the calendar year during which it is issued, unless suspended or revoked by the Secretary in accordance with procedures provided in the Act and set forth in Part 40 of this title. A calendar year is measured from the first day of January through the thirty-first day of December, inclusive of the first and last day.

(b) Since registration is required, under the Act, to be renewed for each calendar year, the farm labor contractor's activities, with respect to coverage under the Act, are measured within the limits of the calendar year for which registration is required. In other words, the contractor, whose activities involve ten or more migrant workers at any one time in one calendar year, does not continue to be covered in subsequent calendar years, unless his activities in each subsequent calendar year, independently, are within the scope of the Act.

§ 41.11 "For interstate agricultural employment."

(a) The Act applies to any person who, for a fee, recruits, solicits, hires, furnishes or transports ten or more migrant workers (excluding members of his immediate family) at any one time in any calendar year for interstate agricultural employment.

(b) Where a farm labor contractor intends, expects, or has reason to believe that the workers he recruits, solicits, hires, furnishes or transports will be transported to or employed in another State, his activities with respect to them would be "for interstate agricultural employment." Also, the contractor would be carrying on activities "for interstate agricultural employment," even though at the time he recruits, solicits, hires, furnishes or transports the workers, they are not then engaged in interstate agricultural employment within the definition of that term. Further, the activities of a farm labor contractor are "for interstate agricultural employment," notwithstanding that the contractor or his regular or full-time employee conducts all the farm labor contracting functions entirely within a State, but are calculated to result in migrant workers being transported to or employed in another State.

(c) A farm labor contractor who, either by himself or by or through a full-time or regular employee or by means of any agent, including another farm labor contractor, recruits, solicits, hires, furnishes or transports migrant workers from one State to another is doing so "for interstate agricultural employment," although he is never physically present in the State of origin of the migrant workers.

WHAT CONSTITUTES A MIGRANT WORKER § 41.12

General.

(a) A person is engaging in activities as a farm labor contractor for purposes of the Act when he recruits, solicits, hires, furnishes or transports "migrant workers" within the meaning of the Act. A "migrant worker" is defined in section 3(g) as meaning an individual whose primary employment is in agriculture, as defined in section 3 (f) of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(f)), or who performs agricultural labor, as defined in section 3121(g) of the Internal Revenue Code of 1954 (26 U.S.C. 3121(g)), on a seasonal or other temporary basis. An individual is a migrant

worker irrespective of his primary employment, if he performs agricultural labor on a seasonal or other temporary basis.

(b) "Agriculture" is defined in section 3(f) of the Fair Labor Standards Act of 1938 to include "farming in all its branches and among other things includes the cultivation and tillage of the soil, dairying, the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities (including commodities defined as agricultural commodities in section 15(g) of the Agricultural Marketing Act, as amended), the raising of livestock, bees, fur-bearing animals, or poultry, and any practices (including any forestry or lumbering operations) performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market." A complete discussion of the activities that are included within the scope of this definition will be found in §§ 780.103780.183 of this title.

(c) An "agricultural commodity" as defined in section 15(g) of the Agricultural Marketing Act, as amended (46 Stat. 1550, section 3; 12 U.S.C. 1141) includes, in addition to other agricultural commodities, crude gum (oleoresin), from a living tree, and the following products as processed by the original producer of the crude gum (oleoresin) from which derived: gum spirits of turpentine, and gum resin, as defined in section 92 of Title 7 (the Naval Stores Act, approved March 3, 1923). See, for a further explanation, § 780.125 of this title.

(d) "Agricultural labor" within the meaning of section 3121(g) of the Internal Revenue Code of 1954 includes all service performed:

(1) On a farm, in the employ of any person, in connection with cultivating the soil, or in connection with raising or harvesting any agricultural or horticultural commodity, including the raising, shearing, feeding, caring for, training, and management of livestock, bees, poultry, and furbearing animals and wildlife;

(2) In the employ of the owner or tenant or other operator of a farm, in connection with the operation, management, conservation, improvement, or maintenance of such farm and its tools and equipment, or in salvaging timber or clearing land of brush and other debris left by a hurricane, if the major part of such service is performed on a farm;

(3) In connection with the production or harvesting of any commodity defined as an agricultural commodity in section 15(g) of the Agricultural Marketing Act, as amended (46 Stat. 1550, section 3; 12 U.S.C. 1141j), or in connection with the ginning of cotton, or in connection with the operation or maintenance of ditches, canals, reservoirs, or waterways, not owned or operated for profit, used exclusively for supplying and storing water for farming purposes;

(4) (A) In the employ of the operator of a farm in handling, planting, drying, packing, packaging, processing, freezing, grading, storing, or delivering to storage or to market or to a carrier for transportation to market, in its unmanufactured state, any agricultural or horticultural commodity; but only if such operator produced more than one-half of the commodity with respect to which such service is performed;

(B) In the employ of a group of operators of farms (other than a cooperative organization) in the performance of service described in subparagraph (A), but only if such operators produced all of the commodity with respect to which such service is performed. For purposes of this subparagraph, any unincorporated group of operators shall be deemed a cooperative organization if the number of operators comprising such group is more than 20 at any time during the calendar quarter in which such service is performed;

(C) The provisions of subparagraphs (A) and (B) shall not be deemed to be applicable with respect to service performed in connection with commercial canning or commercial freezing or in connection with any agricultural or horticultural commodity after its delivery to a terminal market for distribution for consumption; or

(5) On a farm operated for profit if such service is not in the course of the employer's trade or business or is domestic service in a private home of the employer.

As used in this subsection, the term "farm" includes stock, dairy, poultry, fruit, furbearing animal, and truck farms, plantations, ranches, nurseries, ranges, greenhouses, or other similar structures used primarily for raising of agricultural or horticultural commodities, and orchards.

§ 41.14 "On a seasonal or other temporary basis."

(a) Labor is performed on a seasonal basis where, ordinarily, the employment pertains to or is of the kind exclusively performed at certain seasons or periods of the year and which, from its nature, cannot be continuous or carried on throughout the year. A worker who moves from one seasonal activity to another, while employed in agriculture or performing agricultural labor, is employed on a seasonal basis even though he may continue to be employed during a major portion of the year.

(b) A worker is employed on "other temporary basis" where he is employed for a limited time only or his performance is contemplated for a particular piece of work, usually of short duration. Generally, employment, which is contemplated to continue indefinitely, is not temporary.

EXEMPTIONS FROM COVERAGE

§ 41.15 Introductory statement.

The term "farm labor contractor" is defined in section 3 (b) of the Act to exclude these four categories of individuals or organizations:

(1) Any nonprofit charitable organization. public or nonprofit private educational institution, or similar organization;

(2) Any farmer, processor, canner, ginner, packing shed operator, or nurseryman who engages in any such activity for the purpose of supplying migrant workers solely for his own operation;

(3) Any full-time or regular employee of any entity referred to in (1) or (2) above: or

(4) Any person who engages in any such activity for the purpose of obtaining migrant workers of any foreign nation for employment in the United States, if the employment of such workers is subject to (A) an agreement between the United States and such foreign nation, or (B) an arrangement with the government of any foreign nation under which written contracts for the employment of such workers are provided for and the enforcement thereof is provided for in the United States by an instrumentality of such foreign nation.

§ 41.16 Nonprofit charitable organizations.

This exemption applies only to "any nonprofit charitable organization, public or nonprofit private educational institution or similar organization": Provided, That they are conducted in good faith and are not entered into for the purpose of making a profit or in the belief that a profit can be realized thereon. (Doggett v. Burnet, 1933, 65 F. 2d 191, 194.) It is to be noted that the exemption is available only if the organization is both nonprofit and charitable or is a nonprofit public or private educational institution.

§ 41.17 Farm labor contracting activities solely in connection with certain agricultural operations.

(a) The exemption of section 3(b) (2) of the Act applies to "any farmer, processor, canner, ginner, packing shed operator, or nurseryman" who engages in farm labor contracting activities "for the purpose of supplying migrant workers solely for his own operation." The Act was intended to regulate the practices of all persons functioning in the capacity of middlemen between the farmer, processor, etc., and the migrant worker. Thus, the exclusion applies only in those situations where the normal functions of the middlemen are performed by the farmer, processor, etc., solely for himself and should any of these persons perform in the role of middleman, such as where the activities are in behalf of other employers, producers, processors, etc., in addition to himself, the exclusion would not apply. Generally, the Act will not exclude any farmer's cooperative performing any of the farm labor contracting activities in behalf of its members, unless such an association is a farmer, processor, etc., and is employed in contracting activities solely in its own behalf as such.

(b) For example, if a processor solicits, recruits, hires, furnishes or transports migrant workers to be used in the harvesting of crops which he has in fact purchased through a contract with the farmer and under whose contractual terms title to the crops is vested in the processor before the crop has been harvested, the exemption would apply, because the processor would be supplying migrant workers solely for his own operation. Where the processor or any other person acts as the conduit through whom the migrant workers are made available to third parties, even though the crops on which the migrant workers are employed are the subject matter of a contract to purchase (as distinguished from a contract of sale) and will be used in the processing, canning, etc., the exemption does not apply.

§ 41.18 Full-time or regular employees of persons excluded by sections 3 (b) (1) or 3 (b) (2).

or

(a) These particular full-time regular employees are excluded because they constitute no more than the instruments or means by which the organizations or individuals, exempt under sections 3(b) (1) and (2) of the Act, operate. Unless such employee's farm labor contracting activities are performed only for a single employer, such employee may be constituted an independent contractor while performing such activities.

(b) On the basis of long-established common law principles, an independent contractor is a person, other than a servant or employee, who is engaged to perform a designated task and who is responsible to his principal only for the result and not for the means of doing the work contracted for. A determination of whether one employed to render a service does so as an "employee" or as an "independent contractor" cannot be based on isolated factors or upon a single characteristic, but rather upon the circumstances of the whole activity.

(c) Following are some of the factors considered in ascertaining whether an independent contractor relationship exists in a given situation:

(1) The degree of control exercised by the alleged employer;

(2) The extent to which the alleged employer supplies equipment and materials;

(3) The extent to which the alleged independent contractor has established a separate and independent business;

(4) The opportunity for profit or loss by the alleged independent contractor.

(d) A particularly significant factor is the degree or extent to which the alleged employer may intervene to control the means by which the work is to be accomplished.

§ 41.19 International agreements or ar

rangements.

(a) Also excused from coverage of the Act, under the provision of section 3(b) (4) are those persons who are engaged in farm labor contracting activities for the purpose of obtaining foreign migrant workers for employment in the United States pursuant either to an international agreement or to an international arrangement. All contracts, entered into pursuant to an arrangement with