|OSHA requirements are set by statute, standards and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at http://www.osha.gov.|
April 9, 1991
||BRUCE HILLENBRAND, DIRECTOR|
||PATRICIA K. CLARK, DIRECTOR|
DIRECTORATE OF COMPLIANCE PROGRAMS
||Oregon Interagency Migrant Labor Camp Enforcement Agreement|
We have reviewed the above-mentioned agreement, per your request, and feel that it provides adequate mechanisms to address the disposition of migrant labor camp issues affecting the two agencies. The content of the agreement is similar to the April 19, 1978, agreement between OSHA and ESA-Wage and Hour Division (ESA-WH) for migrant and seasonal farmworker housing inspections. Similarly, the Oregon interagency agreement addresses similar coordinated enforcement issues found in the April 5, 1990, MOU between OSHA and ESA-WH. OSHA Instruction CPL 2.92, dated February 28, 1991, provides the guidelines for implementing the April 5, 1990 MOU. Copies of the agreements are attached for your information.
With respect to referral and preoccupancy inspections/consultations coordination between the State agencies, we recommend that particular emphasis be placed on cross-training of these agency's compliance officers to ensure that they have sufficient knowledge of each other's regulations and requirements.
If we can be of further assistance, please let us know.
Memorandum of Understanding
April 19 1978
AGREEMENT BETWEEN OSHA AND ESA FOR MIGRANT AND SEASONAL
FARMWORKER HOUSING INSPECTIONS
To secure the highest level of compliance with the safety and health housing standards requirements of the Farm Labor Contractor Registration Act; Regulation 29 CFR Part 40, Farm Labor Contractor Registration; the Occupational Safety and Health Act; and the applicable OSHA regulation issued pursuant thereto.
1. There will be the fullest possible cooperation and coordination between ESA and OSHA at all levels in developing and carrying out an effective and continuing safety and health program for seasonal and migrant farmworkers with respect to their housing. The Regional Administrators for ESA and OSHA will develop procedures designed to implement these policies in their respective regions.
2. For enforcement purposes, OSHA and ESA will accept compliance with Department of Labor standards covering seasonal farmworker housing in effect at the time of this agreement or any such standards which may become effective at any subsequent date in the future.
3. Where ESA lacks jurisdiction because the farm labor contractor neither owns nor controls the housing, ESA will refer violations of the housing standards to OSHA or to the appropriate State agency in States with approved occupational safety and health plans. OSHA and ESA Regional Administrators shall establish a continuing working relationship with approved plan State agencies in order to facilitate violation referrals.
4. OSHA will respond to referrals from ESA concerning housing safety and health violations and conduct inspections based upon such referrals in a timely manner, attempting to do so before the workers depart the premises. OSHA will encourage States with approved plans to do likewise. ESA will advise OSHA of the anticipated departure date of migrants at the time of referral of the complaint.
5. When FLCRA applies, ESA's Wage and Hour Division will conduct housing inspections to completion and, when violations are found, obtain compliance, assess civil money penalties and/or recommend litigation as appropriate. OSHA will undertake a program of general schedule inspections and will take appropriate enforcement action when violations are found. OSHA will insure that States with plans approved by OSHA will maintain a program of inspections which is at least as effective as the Federal Program.
6. When expert witnesses are needed in connection with administrative hearings or court actions on housing safety and health violations under the FLCRA, OSHA will provide them.
7. OSHA will cooperate with ESA in developing and conducting a training program for Wage Hour Compliance Officers in making housing inspections. ESA will cooperate with OSHA in developing and providing training on the housing requirements under the FLCRA.
8. ESA and OSHA agree to exchange information relating to complaints, inspections, violations discovered, imposition of civil money penalties or other legal action to enforce migrant farmworker housing standards; location and period of use of migrant farm labor camps; and all other information necessary to insure coordinated enforcement of migrant and seasonal farmworker housing standards and to avoid duplication of inspection and enforcement activities. Further, OSHA will encourage States with approved plans to exchange such information with ESA.
9. OSHA subscribes to the provisions of the Memorandum of Understanding between ETA and ESA signed March 1975, relating to stranded migrants, and agrees to abide by the procedures outlined in that agreement for referring such situations to ETA and ESA. OSHA Regional Administrators will notify approved plan States of the Memorandum of Understanding and request their cooperation in implementing its procedures.
10. Each Agency will publish this agreement for implementation by its field personnel.
11. The parties in carrying out this agreement shall follow existing delegations of authority from the Secretary of Labor, the pertinent laws, regulations, interpretations and guidelines issued thereunder.
|ASSISTANT SECRETARY FOR
DATE: APRIL 19, 1978
|ASSISTANT SECRETARY FOR EMPLOYMENT|
OCCUPATIONAL SAFETY AND HEALTH
DATE: APRIL 3, 1978
MEMORANDUM OF UNDERSTANDING
THE U.S. DEPARTMENT OF LABOR
OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION
EMPLOYMENT STANDARDS ADMINISTRATION
WAGE AND HOUR DIVISION
The purpose of this agreement is to set forth the working relationship between the U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) and the Wage and Hour Division of the Employment Standards Administration (ESA) to protect the health and well-being of the Nation's workforce, and to establish a complaint/referral system between the two Agencies which will provide for a coordinated enforcement effort, thereby securing the highest level of compliance with the Occupational Safety and Health Act and the various Federal Wage and Hour laws, including the Fair Labor Standards Act; the McNamara-O'Hara Service Contract Act; the Walsh-Healey Public Contracts Act; the Contract Work Hours and Safety Standards Act; the Davis-Bacon and related Acts; the temporary alien agricultural (H-2A) worker provisions of the Immigration and Nationality Act; and the Migrant and Seasonal Agricultural Worker Protection Act.
The Occupational Safety and Health Act of 1970 (OSH Act) was enacted to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources. It also established the Occupational Safety and Health Administration and authorizes the Secretary of Labor to set mandatory occupational safety and health standards and to provide an effective enforcement program; to conduct investigations and inspections; to determine the status of compliance with safety and health standards and regulations; and to issue citations for non- compliance with safety and health standards and regulations. The OSH Act requires employers to furnish employment free from recognized hazards that are causing or are likely to cause death or serious physical harm, and to comply with occupational safety and health standards issued under the OSHA Act.
The Fair Labor Standards Act (FLSA) establishes minimum wage, overtime pay, recordkeeping, and child labor standards for the Nation's workforce. The Wage and Hour Division (Wage and Hour) administers and enforces FLSA with respect to private sector and State and local government employment. In addition, it administers FLSA provisions concerning child labor and Federal statutes governing migrant and seasonal farmworker employment. FLSA authorizes the Secretary of Labor to conduct investigations and gather data on wages, hours, and other employment conditions or practices, in order to determine compliance with the Act.
The Act's child labor provisions are designed to protect the educational opportunities of minors and prohibit their employment in jobs and under conditions detrimental to their health or well-being. The standards have minimum age requirements for minors employed in non-agricultural and agricultural occupations.
The Wage and Hour Division is also responsible for Federal statutes that provide labor standards protection to migrant, seasonal, and temporary alien (H-2A) agricultural workers and employees who work on Federal and Federally-assisted contracts with the Federal Government. The Migrant and Seasonal Agricultural Worker Protection Act (MSPA) protects migrant and seasonal workers in their dealings with farm labor contractors, agricultural employers, agricultural associations and providers of migrant housing. The temporary alien agricultural worker provisions of the Immigration and Nationality Act (INA) also provide protection to H-2A workers and U.S. workers in corresponding employment and also contain safety and health requirements for housing such workers. The McNamara-O'Hara Service Contract Act (SCA) applies to workers on Federal service contracts, and the Walsh-Healey Public Contracts Act (PCA) applies to workers on Federal supply contracts. The Davis-Bacon and Related Acts (DBRA) cover workers on Federal construction contracts and on construction contracts with State and local governments that are Federally-assisted. The Contract Work Hours Safety Standards Act (CWHSSA) sets overtime pay requirements on Federal contracts.
Occasionally, compliance officers from OSHA conducting investigations are presented with information concerning non-compliance with Federal wage and hour, migrant and seasonal, or temporary alien (H-2A) farmworker, and child labor standards. Conversely, Wage and Hour compliance officers are occasionally presented with information concerning health and safety conditions which may be in non-compliance with the OSH Act. It is the intention of this MOU to establish policy and procedures concerning an effective and efficient system for the exchange of this type of information between the two agencies.
There will be the fullest possible cooperation and coordination between ESA and OSHA, at all organizational levels, in developing and carrying out compliance programs to ensure the health and well-being of the Nation's workforce.
For enforcement purposes, OSHA and ESA shall arrange for referrals, whenever appropriate. Such coordination of activities is necessary to ensure maximum enforcement of labor laws.
ESA shall respond to referrals from OSHA, and OSHA shall respond to referrals from ESA, concerning potential violations of the other Agency's requirements, when appropriate, by conducting investigations in a timely manner.
ESA and OSHA will cooperate in developing and conducting training programs on the agencies' regulations and requirements. Such training is necessary to ensure that valid referrals are made when potential violations are found.
ESA and OSHA shall exchange information relating to complaints, inspections or investigations, violations discovered, imposition of civil monetary penalties or other legal actions taken to enforce pertinent laws and regulations, and all other information necessary to ensure coordinated enforcement.
OSHA and Wage and Hour Regional Administrators will work together to facilitate referrals of violations to ESA from the relevant State agencies in those States which operate their own occupational safety and health programs under a plan approved by OSHA under Section 18 of the OSH Act (Plan States).
In those Plan States with child labor laws that contain prohibitions against employment in hazardous occupations or other restrictions, the Plan State agency may refer apparent violations of child labor laws to the appropriate State official responsible for enforcement of child labor regulations, in addition to referring them to Federal Wage and Hour.
OSHA will encourage Plan States to respond to referrals from ESA and State agencies concerning potential violations of the States' occupational safety and health standards or regulations by conducting investigations in a timely manner.
OSHA will encourage Plan States to participate in all training and information-sharing activities established under this MOU. OSHA and Wage and Hour Regional Administrators will coordinate Plan State participation in such activities.
Under the terms of this agreement, each agency will:
V. Period of Agreement:
A. Ensure that all field personnel are provided with a copy of this MOU.
B. Develop and distribute to all field personnel a directive outlining the policy concerning the implementation of this MOU, taking into consideration the appropriate lines of communication between Wage and Hour and OSHA Plan States.
C. Ensure that all field personnel are provided with information and training concerning the types of issues that will be referred, including the requirements of the OSH Act and the FLSA, MSPA, SCA, PCA, INA, CWHSSA, DBRA and implementing regulations.
D. Submit all referrals generated by compliance officers to the District/Area Director, who will then forward the referral to the other agency.
E. Evaluate referrals on a priority basis and take appropriate action.
F. Transmit to the other agency the results of any inspection conducted in response to a referral from that Agency.
G. Establish a system to monitor the progress of actions taken on referrals.
H. Conduct periodic regional meetings, as necessary, to report on the progress of actions taken on the other agency's referrals and evaluate the system.
This MOU shall continue in effect unless modified in writing by mutual consent of both parties or terminated by either party upon 30 days advance written notice to the other.
This MOU will become effective on the date of the last signature.
This MOU does not preclude entering into separate agreements setting forth procedures for other special programs which can be addressed more efficiently and expeditiously by special agreement.
Nothing in this agreement is intended to diminish or otherwise affect the authority of either agency to implement its respective statutory functions.
|GERARD F. SCANNELL
Assistant Secretary for
Date: April 5, 1990
|WILLIAM C. BROOKS|
Assistant Secretary for
Occupational Safety and Health
Date: April 5, 1990