FLSA2020-18 — Addressing whether insect farming qualifies as "agriculture" under Section 3(f) of the FLSA, and whether certain workers employed on an insect farming operation may be exempt from overtime under Section 13(b)(12)

U.S. Department of Labor Wage and Hour Division
Washington, DC 20210
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FLSA2020-18
November 30, 2020
Dear Name*:
This letter responds to your request for an opinion concerning whether workers employed by
your insect farming operation are exempt from the overtime pay provisions of the Fair Labor
Standards Act (FLSA) under the statutory exemption for agricultural employees. This opinion is
based exclusively on the facts you have presented. You represent that you do not seek this
opinion for any party that the Wage and Hour Division (WHD) is currently investigating or for
use in any litigation that commenced prior to your request.
BACKGROUND
Your facility operates an insect farm that produces “superworms” for animal feed, as well as
crickets and discoid roaches for human consumption. You also state that your farm is a member
of the North American Coalition for Insect Agriculture. You state that you employ three
categories of workers: (1) workers who feed, water, harvest, clean, and breed the insects; (2)
managers who oversee insect rearing and otherwise work directly with the insects; and (3)
facility workers who repair buildings, receive farm materials, deploy pest control measures in the
barns, fix lights, and perform other maintenance tasks as needed. All of your employees work on
site at the farm and are paid an hourly wage. Based on the facts that you have presented, we
assume that the workers do not perform any tasks other than those listed above.
GENERAL LEGAL PRINCIPLES
The FLSA requires employers to pay their covered, non-exempt employees overtime
compensation at a rate of not less than one and one-half times the employee’s regular rate of pay
for all hours worked in excess of forty hours in a workweek. See 29 U.S.C. § 207(a). However,
the statutorily mandated overtime pay requirement does not apply to any employee employed in
“agriculture.” 29 U.S.C. § 213(b)(12). To determine the scope of an exemption, WHD gives the
statutory text a “fair (rather than a narrow) interpretation” because the FLSA’s exemptions are
“as much a part of the FLSA’s purpose as the [minimum wage and] overtime-pay
requirement[s].” Encino Motorcars, LLC v. Navarro, 138 S. Ct. 1134, 1142 (2018) (internal
quotation marks and citation omitted). The FLSA defines agriculture as:
“Agriculture” includes 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 1141j(g) of Title 12), 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

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farming operations, including preparation for market, delivery to storage or to
market or to carriers for transportation to market.
29 U.S.C. § 203(f).
As the Supreme Court has recognized, this FLSA exemption “embrace[s] the whole field of
agriculture.” Maneja v. Waialua Agric. Co., 349 U.S. 254, 260 (1955); see also Addison v. Holly
Hill Fruit Prods., Inc., 322 U.S. 607, 612 (1944) (stating that the exemption is “far-reaching”);
Reich v. Tiller Helicopter Servs., Inc., 8 F.3d 1018, 1024–26 (5th Cir. 1993) (explaining that
Congress intended the exemption to have “broad reach”). Yet “no matter how broad” its scope,
the exemption must “apply only to agriculture.” Maneja, 349 U.S. at 260.
Agriculture is divided into two distinct categories: primary and secondary agriculture. See
Farmers Reservoir & Irrigation Co. v. McComb, 337 U.S. 755, 762–63 (1949); see also 29
C.F.R. § 780.105(a). The first category, primary agriculture, includes “farming in all its
branches,” including “among other things . . . the raising of livestock, bees, fur-bearing animals,
or poultry.” Id. § 780.105(b). An employee who is employed in these activities is considered to
be engaged in agriculture, regardless whether he or she is employed by a farmer or on a farm. Id.
The second category, secondary agriculture, includes activities that are performed “as an incident
to or in conjunction with such farming,” and that are performed either by the farmer or on the
farm. Id. § 780.105(c) (internal quotation omitted); Farmers Reservoir & Irrigation, 337 U.S. at
763.
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OPINION
Based on the information that you provided in your letter, the Department finds that the farm
workers and farm managers employed at your insect farming operation are engaged in primary
agricultural activities, and that the facility workers are engaged in secondary agricultural
activities. Therefore, all of your employees are exempt from the overtime premium requirements
of the FLSA during the workweeks in which they exclusively perform such activities.
The FLSA’s definition of agriculture includes “among other things . . . the raising of livestock,
bees, fur-bearing animals, or poultry.” 29 U.S.C. § 203(f). The Sixth Circuit recently held that
the growing and raising of worms fell within the FLSA’s definition of agriculture, even though
“raising worms is not expressly exempt within the meaning of any of the statutory examples.”
Barks v. Silver Bait, LLC, 802 F.3d 856, 863 (6th Cir. 2015).
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The court explained that Congress

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The FLSA’s agricultural exemption applies to individual employees on a workweek basis and does not apply to
employees in workweeks in which they perform both exempt work and covered, non-exempt work. See 29 C.F.R.
§§ 780.10–.11; WHD Opinion Letter FLSA2019-5, 2019 WL 1516460, at *2 n.2 (Apr. 2, 2019).
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The court observed that the specific activity of “raising livestock, bees, fur-bearing animals, or poultry” included in
the FLSA’s definition of agriculture “features members of the animal kingdom, a classification shared by worms.
But worms are neither furred nor fowl, and bees are in a different phylum. Worms are also a poor fit for livestock, a
term used to describe traditional farm animals.” Barks, 802 F.3d at 863. At the same time, the court also pointed
out that the definition of agriculture includes “the production, cultivation, growing, and harvesting of any
agricultural or horticultural commodities,” and noted that worms cultivated on a farm “are more like the included
cultivated commodities than excluded wild ones.” Id. at 862‒63. Ultimately, however, the Sixth Circuit determined
that although raising worms is not a “specifically enumerated” farming activity under the statutory and
regulatory

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expressly gave agriculture a broad definition and recognized that agriculture “‘includes all
activities, whether listed in the definition or not, which constitute farming or a branch thereof
under the facts and circumstances.’” Id. (quoting 29 C.F.R. § 780.107) (emphasis added).
You explain that your insect farming operations raise superworms, crickets, and discoid roaches.
You further state that you utilize a large indoor farming space where approximately one million
of these insects are produced per week. While worms are not a traditional farm animal, the Sixth
Circuit explained that “there is nothing in the statute to suggest that the exemption should be
circumscribed by tradition.” Barks, 802 F.3d at 863–64. Noting that the worm farm at issue in
that case “houses the worms, feeds them, monitors their growth, and eventually harvests them,”
the court found that “there is little to distinguish [the worm farm] from a traditional farm other
than the unfamiliarity of worm farming.” Id. at 865. The court thus concluded that the “raising
of worms is a form of farming within the FLSA’s agricultural exemption.” Id. Similarly, here,
the insects that your operations raise are not traditional livestock, but that does not prevent your
employees from qualifying for the agricultural exemption because “the meaning of farming is
not frozen in time.” Id. at 863. Therefore, the farming of superworms, crickets, and discoid
roaches falls within the FLSA’s definition of agriculture.
Because the agricultural exemption covers the farming of non-traditional livestock such as
insects, it logically follows that any workers who are performing primary or secondary
agricultural activities in connection with insect farming are exempt under 29 U.S.C.
§ 213(b)(12). You assert that your “farm workers” raise the insects, including feeding, watering,
harvesting, cleaning, and breeding them. These activities are indistinguishable from the housing,
feeding, monitoring, and harvesting of worms that the Sixth Circuit found to be farming in
Barks, 802 F.3d at 865. These activities fall squarely within primary agriculture under 29 U.S.C.
§ 203(f) and 29 C.F.R. § 780.105(b), which includes “the raising of livestock.” Likewise, your
“farm managers” who oversee insect rearing and are directly involved in growing the insects are
also engaged in primary agriculture. Since the Department’s regulations consider any employee
performing these activities to be “engaged in agriculture,” both farm workers and farm managers
are exempt from the overtime pay provisions of the FLSA’s agricultural exemption. Id.
Meanwhile, your “facility workers” repair buildings, receive farm materials, deploy pest control
measures in the barns, fix lights, and perform other maintenance tasks as needed. None of these
activities are primary agriculture activities under 29 C.F.R. § 780.105(b). However, they meet
the definition of secondary agriculture, which “includes any practices, whether or not they are
themselves farming practices, which are performed either by a farmer or on a farm as an incident
to or in conjunction with ‘such’ farming operations.” Id. § 780.105(c) (internal citations
omitted).
Examples of secondary agricultural activities include the repairing and servicing of equipment
necessary to farm operations, flying a crop-dusting plane, and engaging in some kinds of clerical
work if the activities are performed by a farmer or on a farm and conducted incidentally to or in
conjunction with such farming operations. See Maneja, 349 U.S. at 260–64; Sariol v. Florida
definitions of agriculture, it nonetheless qualifies as a type of farming included within the scope of the agricultural
exemption. Id. at 865; see also 29 C.F.R. §§ 780.107, .109 (explaining that an unlisted activity may qualify as
agriculture if the circumstances reflect that the activity is in fact “farming”).

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Crystals Corp., 490 F.3d 1277, 1279 (11th Cir. 2007). As described, the on-site maintenance,
pest control measures, and receipt of farm materials performed by your facility workers are
subordinate activities that are “incident to or in conjunction” with the insect farming. See, e.g.,
29 C.F.R. § 780.158(a) (explaining that activities such as “maintenance and protective work”
performed on a farm or by a farmer qualify as secondary agriculture if they are necessary and
subordinate tasks incidental to the farming operations). Therefore, the facility workers are
engaged in secondary agriculture and are also exempt from the overtime pay provisions of the
FLSA.
CONCLUSION
For the foregoing reasons, all of the employees you have mentioned as working for your insect
farm are exempt from the overtime pay provisions of the FLSA.
This letter is an official interpretation of the governing statutes and regulations by the
Administrator of the WHD for purposes of the Portal-to-Portal Act. See 29 U.S.C. § 259. This
interpretation may be relied upon in accordance with section 10 of the Portal-to-Portal Act,
notwithstanding that after any such act or omission in the course of such reliance, the
interpretation is “modified or rescinded or is determined by judicial authority to be invalid or of
no legal effect.” Id.
We trust that this letter is responsive to your inquiry.
Sincerely,
Cheryl M. Stanton
Administrator
*Note: The actual name(s) was removed to protect privacy in accordance with 5 U.S.C.
§ 552(b).