— Employers must provide shade and the opportunity to take breaks when temperatures exceed 80 degrees Fahrenheit. The rule also repeals this new provision, effective January 1, 2025.
As under the current chapter, the rule allows a migrant labor camp operator to request a variance from field sanitation requirements but eliminates a procedure for contesting the Department's determination on the request. This elimination makes the variances consistent with variances from migrant labor camp requirements. The current chapter allows a migrant labor camp operator to request a variance from migrant labor camp requirements but does not include a procedure for contesting the Department's determination.
Assessment of penalties. The rule does not affect the Department's authority to administratively assess penalties based on whether a violation is high, medium, or low severity. The rule also does not affect the maximum amount of the penalties. The rule does eliminate the current chapter's examples of high, medium, and low severity penalties. The Department has determined that the examples are not necessary based on the Department's statutory authority.
Hearings. The rule creates procedures for hearings on denial of migrant labor contractor certifications, migrant labor camp certificates, and administratively assessed penalties.
Summary of, and comparison with, existing or proposed federal regulations
Federal regulations on migrant recruitment, migrant work agreements, payroll records, and provision of other information to migrant workers are found at 29 CFR Part 500. These regulations require each agricultural employer that employs migrant workers to post in a conspicuous place at the place of employment a poster provided by the U.S. Department of Labor (DOL) that sets out the rights and protections for workers under the Migrant and Seasonal Agricultural Worker Protection Act, 29 USC 1801 et seq. The regulations establish standards for those applying for certification to act as farm labor contractors. These regulations require that individuals recruiting migrant workers make written disclosures of certain information about the offered employment, provide itemized wage statements for each worker. These regulations establish requirements for vehicle safety for the transportation of migrant and seasonal agricultural workers, and for their housing standards. Owners of migrant worker housing constructed before April 3, 1980, may elect to comply with OSHA regulations at 29 CFR 1910.142 or Employment Training Administration (ETA) regulations at 20 CFR 654.400 et. seq. Migrant worker housing constructed on or after April 3, 1980, must comply with OSHA regulations at 29 CFR 1910.142. The OSHA temporary labor camp standards include requirements for living quarters, toilet facilities, laundry and bathing facilities, construction of kitchens and feeding facilities, first aid, first aid, and reporting communicable diseases. Any agricultural establishment where eleven or more employees are engaged in hand-labor operations in the field are subject to OSHA's field sanitation standards at 29 CFR 1928.110. These standards include a requirement that one toilet and one handwashing facility be provided for every 20 employees, and that those facilities are to be located within a one-quarter mile walk of each hand laborer's place of work. Suitably cool water in sufficient amounts is also to be provided, and workers are to be given opportunities for reasonable use of water and facilities. Chapter 301 has the same requirements for the provision of toilet and handwashing facilities, but the current rule requires that these be provided for operations with six or more workers. In the proposed rule, which would apply to all operations, the amount of water to be provider per worker is specified, in accordance with CDC-NIOSH guidance. The proposed rule requires employers provide shade and the opportunity to take breaks when temperatures exceed 80 degrees Fahrenheit to workers engaged in hand labor. The H-2A Temporary Agricultural Program allows agricultural employers to bring non-immigrant foreign workers to the U.S. to perform temporary or seasonal agricultural labor or services. Most workers who come to the state under the H-2A program meet the definition of a "migrant worker" under s. 103.90(5), and as such, the requirements of Wis. Stat. s. 103.90 et seq. and DWD ch. 301 apply to H-2A workers. Under the federal regulations for H-2A workers, employers must provide housing to H-2A workers that meets either the OSHA or the ETA housing standards, whichever is applicable. Summary of comments on the statement of scope and description of how the comments were taken into account in drafting the rule
A preliminary hearing on the Statement of Scope for this rule, SS 004-22, was held on April 12, 2022. At the preliminary hearing, the president of the Midwest Food Products Association (MWFPA) acknowledged the Department for collaborating with workers, worker advocates, and employers on an emergency rule establishing COVID-19 protections for migrant workers (EmR2204) and looked forward to similar collaboration on this rule. Regarding disease and illness prevention, the MWFPA president expressed concern that, if this rule specifically addresses one strain of COVID-19, the rule might need frequent revisions to deal with new strains. In addition, the MWFPA president recognized the potential need for updating ch. DWD. The MWFPA president also provided the foregoing comments in writing. The executive director of the Wisconsin Potato & Vegetable Growers Association (WPVGA) submitted written comments urging the Department "to make necessary revisions to DWD 301 to align state standards with federal law related to insurance requirements for motor vehicles used to transport migrant workers." The executive director stated that the WPVGA supported consistency with federal law instead of more stringent state insurance requirements. The executive director commented that workforce shortages are exacerbated because some migrant labor contractors no longer operate in Wisconsin due to inconsistencies between the state and federal insurance requirements.
At the preliminary hearing, a migrant labor contractor made comments similar to WPVGA's comments about insurance. The contractor supported consistency between the state and federal requirements because the insurance required to comply with the state requirements is more expensive than the federally required insurance. The contractor stated that the high insurance cost imposes a financial strain on contractors who may respond by avoiding or limiting their business in the state, which would negatively affect local economies that benefit from the presence of migrant workers.
Agency response: The Department appreciates the MWFPA president's comment on collaboration and notes that, in drafting the rule, the Department collaborated with the Ad Hoc Committee on Migrant Seasonal Farmworkers established by the Governor's Council on Migrant Labor. The Governor's Council on Migrant Labor consists of six representatives of employers of migrant workers and six representatives of migrant workers and their organizations, in addition to two members of the senate and two members of the assembly who are equally divided between the two major political parties. Section 15.227 (8), Stats. The council reviews rules submitted by the Department, and if the council disproves the rule, the department may not promulgate it. Section 103.968, Stats. The ad hoc committee's members represent the interests of employers and migrant workers. As for the comment about COVID-19 strains, while a now-expired emergency rule did specifically pertain to COVID-19, this rule's requirements for preventing and controlling disease and illness apply more broadly to communicable diseases as defined by the DHS. The Department also considered the request to adopt federal standards for vehicle liability insurance in response to the WPVGA and the migrant labor contractor. Under the federal standards cited by the commenters, 29 CFR 500.122, if an employer provides worker's compensation coverage and the worker is only transported under circumstances for which there is workers' compensation coverage under state law, no additional vehicle liability insurance policy or bond is required. Further, under the federal regulation, if the employer provides transportation of the worker that is not covered by the state's worker's compensation law, a liability insurance policy or liability bond shall be required for those circumstances. Wisconsin's worker's compensation law would not cover workers being transported prior to the start of or after the completion of their period of employment, or in situations when the transportation is not compulsory for work, such as getting a ride to buy groceries. Yet, contractors in Wisconsin frequently provide such transportation for migrant workers. If the federal standards were adopted, contractors would likely still be required to obtain a liability insurance policy or liability bond for transit in these circumstances since this is not covered by Wisconsin's worker's compensation law. Because adopting this federal standard would not entirely relieve contractors of the obligation to obtain a liability insurance policy or liability bond without altering the customary transportation offered to migrant workers, the Department is declining to make this change. Comparison with rules in adjacent states
Illinois. A statute called the Illinois Migrant Labor Law requires operators of migrant labor camps to obtain annual licenses from the Department of Public Health, except that no license is required for camps that provide housing for fewer than 10 migrant workers or 4 families. However, the exempt camps must comply with the other requirements under the law. 210 Illinois Compiled Statutes (ILCS) 110/3. The law establishes hearing procedures that apply to denial, suspension, and revocation of the licenses. 210 ILCS 110/12. The law also allows the department to issue conditional licenses for migrant labor camps that do not comply with the law's requirements. However, a conditional license must require violations to be corrected within no more than 3 years and no more than 3 consecutive conditional licenses can be issued for a migrant labor camp. 210 ILCS 110/7. The law also requires the department to approve camp construction, alteration, or expansion and requires the department to inspect camps. 210 ILCS 110/8 and 110/9.1. If necessary to protect public health in an emergency, the law allows the department to order the immediate closure of a migrant labor 210 ILCS 110/15. Also, the law allows a migrant worker who is aggrieved by a violation to file an action in state court to enforce the law. 210 ILSC 110/16. In addition, the law allows the department to promulgate rules to carry out the law's purposes and establish administrative penalties and sanctions. 210 ILCS 110/10 and 110/11. The department has promulgated rules establishing administrative fines. See 77 Ill. Admin. Code s. 935.15. Under the Migrant Labor Law, a violation that may lead to serious injury or death of employees or the public is a misdemeanor that is subject to a $250 penalty for each day of violation. 210 ILCS 110/25. Pursuant to the Migrant Labor Law, the department has promulgated rules imposing requirements for the following: camp construction and alteration permits; camp sites and structures, including requirements for sleeping rooms, bedding, and ventilation; water supply; sewage and solid waste disposal; toilet, handwashing, and laundry facilities; showers; food preparation; food storge and eating facilities; electrical wiring; mechanical equipment; fire protection; and communicable disease reporting. 77 Ill. Admin. Code ss. 935.10 to 935.105. In addition, the rules allow the department to grant variances. 77 Ill. Admin. Code s. 935.120. The rules also impose deadlines for the department's investigation of complaints. 77 Ill. Admin. Code s. 935.130. Iowa. Most of Iowa's requirements for migrant labor camps and migrant labor contractors are statutory. A person cannot operate a migrant labor camp without an annual permit issued by the Iowa Department of Public Health. Iowa Code Annotated (ICA) s. 138.2. The department may issue variances from the requirement and must also give a reasonable time to correct violations. ICA ss. 138.6 and 138.12. The Iowa statutes specify requirements for all of the following: migrant labor camp sites; shelters, including living quarters and sleeping facilities; water supply; toilet, sewage, laundry, handwashing, and bathing facilities; lighting; refuse disposal; insect and rodent control; construction and operation of kitchens, dining halls, and feeding facilities; and safety and fire prevention. ICA s. 138.13. In addition, migrant labor camp operators must report communicable diseases and certain illnesses to local health authorities. ICA s. 138.14. A migrant labor camp operator must give prior notice to the department before constructing or altering the camp. However, department approval is not required. ICA s. 138.15. The statues also impose cleanliness duties on migrant labor camp occupants and repair duties on camp operators. ICA s.138.16. In addition, before contracting with a migrant worker, a migrant camp operator must disclose any rental charges or other deductions for the provision of camp facilities. ICA s. 138.17. As for rules, the department has promulgated rules on shelters, water supply, waste disposal, bathing facilities, central dining facilities, and safety and fire. Iowa Admin. Code 641.81.1 to 641-81.6. The department enforces the statutes and rules and violations are subject to misdemeanor penalties. ICA s. 138.19. In 2022, the department's duties were transferred to a new Department of Health and Human Services. Michigan. Michigan statutes impose requirements for agricultural labor camps, which are defined as migrant labor camps with living quarters for 5 or more migrant workers. Michigan Compiled Laws Annotated (MCLA) s. 333.12401 (b). Operators of those camps must obtain an annual license from the Department of Agriculture and Rural Development and give notice to the department before constructing, altering, or enlarging a camp. MCLA ss. 333.12411 (1) and (2) and 333.12413 (1). The department is allowed to issue temporary licenses for no more than 3 months pending the correction of violations, but no more than 2 conditional licenses can be issued for the same violation. MCLA s. 333.12414 (1). The statutes include requirements for hearings on the department's denial, suspension, or revocation of a license. MCLA ss. 333.12415 and 333.12416. In addition, the statutes allow the department to promulgate rules to protect the health, safety, and welfare of migrant workers and camp occupants. MCLA s. 333.12421 (1). The department is required to enforce the statutes and rules and allowed to inspect camps. MCLA s. 333.12425. Violations of the statutes and rules are subject to misdemeanor penalties. MCLA s. 333.12434. Rules to administer the statutes were originally promulgated by the Department of Health and Human Services. In an executive reorganization in 2017, the rules were transferred to the Department of Agriculture and Rural Development. MCLA s. 333.26254. The rules authorize the department to grant exemptions from the rules, which is like the authority in other states to issue variances. Mich. Admin. Code R. 325.3605 (2) and (3). The rules impose requirements on agricultural labor camps for the following: camp operator and occupant responsibilities; camp location; recreational space; worker's pets; water supply; camp structures, including sleeping and storage areas, living unit partitions, and bed space; fire safety; first aid; ventilation; lighting; electricity; heating; cooking, eating, and refrigeration facilities; bathing, handwashing, laundry, an toilet facilities; sewage, garbage, and refuse disposal; vermin; and winter occupancy. Mich. Admin. Code R. 325.3609 to 325.3629. Also, if a camp operator allows migrant workers to live in recreational vehicles at the camp, the camp operator must supply water, toilet and shower facilities, electrical service, and refuse containers to those migrant workers. Mich. Admin. Code R. 325.3605 (4). Minnesota. Minnesota statutes allow the commissioner of the Department of Health to promulgate rules regarding construction, equipment, maintenance, and sanitary conditions of migrant labor camps. Minn. Stats. s. 144.12 (11). However, no such rules are currently in effect. In a migrant worker website, the Department of Employment and Economic Development advises farm labor contractors to register with the DOL and notes that the DOL's Wage and Hour Division enforces the MSPA. The website also describes the role of the state Job Service in recording complaints about violations of OSHA's field sanitation requirements and referring the complaints to ETA, which assists OSHA in enforcing the requirements. Summary of factual data and analytical methodologies
In developing this rule, the Department reviewed ch. DWD 301, the Migrant Labor Law, OSHA regulations, and federal regulations on migrant recruitment, migrant work agreements, payroll records, and provision of other information to migrant workers. The Department also reviewed migrant worker agreements and other records relating migrant labor contractors and migrant labor camps submitted to the Department in the course of the Department's duties in regulating migrant labor contractors and migrant labor camps. As noted above, the Department also obtained the input of the Ad Hoc Committee on Migrant Seasonal Farmworkers, holding three meetings with that committee to review comments from committee members and written comments submitted by stakeholders. In addition, the Department consulted with DHS, DSPS, and DNR. Pursuant to statute, the Governor's Council on Migrant Labor will review the rule at the same time that the department files notice of its intent to promulgate the rule with the legislature, and have the opportunity to disprove the rule, which will prevent the Department from promulgating the rule. Section 103.968, Stats. Analysis and supporting documents used to determine effect on small business or in preparation of an economic impact analysis
As of May 2023, approximately 281 entities are subject to ch. DWD 301's requirements. Of that total, 207 are migrant labor employers and 74 are either migrant labor contractors or agents of employers. Of the 281 businesses, 125 of them operate 261 migrant labor camps located throughout the state. Most of these migrant labor camp operators, migrant labor contractors, and employers are small businesses, as defined in s. 227.114 (1), Stats. The rule may have a minimal economic impact on small businesses. For example, as noted above, the rule requires dryers provided for migrant labor camp occupants in the ratio of one per 20 occupants. If a migrant labor camp operated by a small business does not satisfy that ratio, the small business will have to purchase one or more dryers or may request a variance from the Department.
The Department has determined that the rule's economic impact on small businesses will be minimal for the following reasons. First, except for the application fee for an annual certificate to operate a migrant labor camp, the rule does not increase other fees required under the current chapter or penalty fees the Department is allowed to assess under the current chapter. Second, many of the rule's new requirements are consistent with requirements of other state and federal agencies that apply on their own to migrant labor camp operators, migrant labor camp contractors, and employers and, therefore, do no introduce new compliance standards. For example, the rule creates s. DWD 301.075 (1), which requires migrant labor camp operators, migrant labor contractors, and employers to report migrant worker communicable diseases cases to local health officers as required under s. DHS 145.04 (3). Third, some of the rule's new requirements impose compliance costs that are proportionately higher based on the number of occupants in a migrant labor camp and, because migrant labor camps operated by small businesses have fewer occupants than those operated by larger businesses, those costs are anticipated to have only minimal impact on small businesses. For example, the rule requires that in toilet facilities used by at least 10 males, a urinal must be provided for every 25 males, instead of every 40 males, as required under the current chapter. However, based on the Department's review, the change is not anticipated to impact most small businesses because the occupants of their camps do not meet the next threshold of 50 males, which would require installation of a second urinal under the new rules, so only one will be required. The economic impact of this requirement is less for small businesses that operate migrant labor camps with smaller numbers of occupants, as their number of occupants may be below the new ratios and no change at their facilities may be required. Finally, as under the current chapter, the rule allows the Department to issue variances from migrant labor camp and field sanitation requirements. Therefore, a small business can apply for a variance that reduces that economic impact of a requirement, which the Department may grant if the variance is necessary to prevent a practical difficulty or unnecessary hardship and other requirements are satisfied. Fiscal Estimate and Economic Impact Analysis
The Fiscal Estimate and Economic Impact Analysis is attached.
Effect on small business
As noted above, the Department expects that the rule will have a minimal economic impact on small businesses.
Questions and comments related to this rule may be directed to:
Kathryn Mueller
Program and Planning Section Chief
Migrant and Seasonal Farmworker Programs and Job Service Call Center
Department of Workforce Development
201 East Washington Avenue
P.O. Box 7972
Madison, WI 53707
Telephone: (608) 733-3907
Place where comments are to be submitted and deadline for submission
Mark Kunkel, Rules and Records Coordinator
Department of Workforce Development
P.O. Box 7946
Madison, WI 53707
The deadline for comments was July 10, 2023.
