Update: Do You Have Employees, Volunteers Or Interns Working On Your Farm?

A farmer uses a hoe to cultivate a lush vegetable garden under the bright sun.

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Introduction

Understanding whether you have employees, volunteers, contractors, interns or apprentices working on your farm is vital to managing your farm’s risk.  Farmers that mistakenly identify workers can wind up violating state and federal requirements for things like minimum wage, workers’ compensation, payroll taxes and unemployment insurance.

Noncompliance with employment laws can carry significant financial penalties at the state and federal level.  Employment laws focus on the facts of a situation, not titles given to workers.  And not knowing or understanding the laws is not an excuse for violating them.  Below is an introduction to the basics of employment law for farms. For comprehensive information, speak with an employment law attorney licensed to practice in your state.

Independent Contractors

The U.S. Bureau of Labor Statistics estimated that there were approximately 11.9 million independent contractors in the United States in 2023, and that 2.4 percent of them worked in agriculture and related industries. Because farms that hire independent contractors do not need to cover payroll taxes, workers’ compensation insurance, or unemployment insurance for the contractors, many for-profit and not-for-profit farms are motivated to hire independent contractors. What many don’t realize, however, is that there are strict rules defining who is and is not an independent contractor, and if the worker is legally an employee, the farm could face penalties, fines, and the responsibility for back pay and back taxes.

To determine whether a worker is an independent contractor, states and the federal government use various “factor tests.” The test used by the U.S. Department of Labor (DOL) has changed a few times over the last several years, but it currently uses a six-factor test for laws that the federal government has jurisdiction over like the Fair Labor Standards Act, Family and Medical Leave Act, and Migrant and Seasonal Agricultural Workers Protection Act.  The six factors are:

1. Opportunity for profit or loss depending on managerial skill;

2. Investments by the worker and the employer;

3. Permanence of the work relationship;

4. Nature and degree of control;

5. Whether the work performed is integral to the employer’s business; and

6. Skill and initiative.

In February 2026, the DOL released a proposed rule to amend the test, which has not been finalized yet.

States can and do impose stricter tests for purposes of state workers’ compensation, unemployment insurance, state family and medical leave benefits, and payroll taxes. In Maryland, the ABC test is used to determine if someone is an employee or independent contractor. The worker is presumed to be an employee unless:

1. The individual is free from direction and control;

2. The individual is customarily engaged in an independent business of the same nature as that involved in the work; and

3. The work is outside the usual course of business of the person for whom it is performed or the work is performed outside any place of business of the person for whom it is performed.

No matter which test a state or the DOL uses, generally, the more control the farmer has over when and how a worker does his or her job, the more likely the worker would legally qualify as an employee, and not as an independent contractor.

Volunteers

Under the law, a for-profit business cannot have volunteers.  A volunteer is a person who gives his or her time to government or charitable purposes. For this reason, if a person is “volunteering” for a for-profit business, he or she does not meet the legal definition of a volunteer and the law will treat that person as an employee.

The law defines an employee as someone who is allowed to work for a business. A person allowed to work for a farm—even those who agree not to accept money for their labor—becomes an employee and their employer is subject to employment laws.  Employers must follow all state and federal employee guidelines for people seeking to trade, barter or volunteer on their farm, and arranging for volunteer agricultural workers through established exchange programs does not exempt an employer from these requirements.

Interns and Apprentices

Employment laws that apply to farm work generally also apply to interns and apprentices. The DOL has specific definitions for internships and apprenticeships. Apprenticeships combine paid, on-the-job training and related technical instruction.  An apprenticeship program must be created and managed in compliance with state and federal law. For example, the Maryland Department of Labor and Licensing (DLLR) administers Maryland’s apprenticeship program and requires registration of apprenticeship programs.

As for interns, the DOL has established seven criteria to define an internship that can be compensated at less than minimum wage, including the extent to which:

1. The intern and the employer clearly understand that there is no expectation of compensation;

2. The internship provides training that would be similar to that which would be given in an educational environment;

3. The internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit;

4. The internship accommodates the intern’s academic commitments by corresponding to the academic calendar;

5. The internship’s duration is limited to the period in which the internship provides the intern with beneficial learning;

6. The intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern; and

7. The intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.

All of the factors are considered on a case by case basis and no singular factor is dispositive. It is not a defense for an agricultural employer to claim an intern knew and accepted an unpaid or underpaid internship.  A farm employer should consult legal counsel or their state’s department of labor before deciding to pay an intern anything less than the minimum wage.

Also, many farmers may be surprised to learn that interns performing seasonal agricultural work fall under the protections of the Migrant and Seasonal Worker Agricultural Protection Act (MSPA).  Whether an intern is covered by the MSPA or exempted depends on specific facts.  Employers should consult legal counsel to make sure they are in compliance.

Conclusion

Properly classifying workers is complex.  The rules are detailed, and enforcement by workers and state and federal regulators is not uncommon.  Before bringing someone to work on your farm, carefully consider how employment laws might affect your operation and consult an insurance agent and an attorney.

Maryland’s Agriculture Law Education Initiative has several free publications and videos available at www.umaglaw.org to help farmers learn how employment laws affect their farms, and information about how to find an employment law attorney.  You can also find lots of information about employment laws by searching under “labor” on the Maryland Risk Management Education Blog at http://agrisk.umd.edu.