Neb. Admin. Code tit. 227 — Farm Labor Contractors Act

Chapter 4 Licensing Requirements

Neb. Admin. Code tit. 227, ch. 4 Licensing Requirements {#sec-227-nac-4 omnilex-key=us-ne-regs-official--title-227--227 NAC 4}

001 . This chapter is adopted pursuant to Neb. Rev. Stat. §§48-1706, 48-1708 and 48-1710.

002 . To be eligible for a license, an applicant therefore must:

A. Be of good character, competence and reliability;

B. Be a person who has not, within the preceding three years, had a Nebraska farm labor contractor's license application denied;

C. Be a person who has not, within the preceding three years, in Nebraska or in any other jurisdiction, had a farm labor contractor's license, permit or certificate denied, revoked or suspended;

D. Not have persons financially interested in any capacity in the applicant's business as a farm labor contractor who were denied a Nebraska farm labor contractor's license, permit or certificate within the preceding three years or who had such license denied, revoked, or suspended within the preceding three years in Nebraska or any other jurisdiction. A refusal to renew a license, permit or certificate because the applicant therefore or any person financially interested in the applicant's business as a farm labor contractor has been denied a license, permit or certificate or had a license, permit or certificate revoked in Nebraska or any other jurisdiction within the preceding three years, is considered the same as the revocation of the license, permit or certificate on the date of its expiration;

E. Not have any unsatisfied final judgments of the court or final orders issued by any government agency which require the payment of unpaid wages to employees or the payment of any advances made to the contractor by farmers or owners or lessees of land intended to be used for the production of crops;

F.

1. Prior to January 1, 2017 pay a fee of seven hundred and fifty dollars ($750.00);

2. On or after January 1, 2017 pay a fee of two hundred and fifty dollars ($250.00);

History

• Effective 2019-04-10

Chapter 5 Character, Competence and Reliability

Neb. Admin. Code tit. 227, ch. 5 Character, Competence and Reliability {#sec-227-nac-5 omnilex-key=us-ne-regs-official--title-227--227 NAC 5}

001. This chapter is adopted pursuant to Neb. Rev. Stat. '48-1708.

002. The character, competence and reliability contemplated by these rules includes, but is not limited to, consideration of:

A. A person's record of conduct in relations with workers, farmers and others with whom the person conducts business;

B. A person's reliability in adhering to the terms and conditions of any contract or agreement between the person and those with whom the person conducts business;

C. A person's timeliness in paying all and uncontroverted debts owed including advances and wages;

D. Whether a person has unsatisfied judgments or felony convictions.

History

• Effective 1991-06-11

Chapter 7 Procedure for Obtaining a Duplicate License

Neb. Admin. Code tit. 227, ch. 7 Procedure for Obtaining a Duplicate License {#sec-227-nac-7 omnilex-key=us-ne-regs-official--title-227--227 NAC 7}

001 . This chapter is adopted pursuant to Neb. Rev. Stat. §48-1708.

002 . In the event a license is lost or stolen, the licensee shall submit a written request for a duplicate license. The licensee shall state the reasons for the request and the circumstances of the loss or theft. The new license will indicate the word "DUPLICATE" on the license above the number. The written request shall be made to the Department.

History

• Effective 2019-04-10

Chapter 10 Amount of Bond or Deposit to Be Filed

Neb. Admin. Code tit. 227, ch. 10 Amount of Bond or Deposit to Be Filed {#sec-227-nac-10 omnilex-key=us-ne-regs-official--title-227--227 NAC 10}

001. This chapter is adopted pursuant to Neb. Rev. Stat. '48-1708.

002. The amount of the bond or deposit is $5,000.00, unless a greater amount is required by the Commissioner. The bond and any financial instrument accompanying the trust agreement shall be in the principal sum of $5,000.00 only (or greater amount if required by the Commissioner). The amount of the bond or deposit must be continually maintained as long as the contractor is required to be licensed. Should no claim against the bond or deposit be made six (6) months from the date of expiration of the license, the Commissioner shall terminate and/or surrender the bond or financial instrument accompanying the trust agreement to the person entitled thereto.

003. When an applicant for a license has been required to satisfy a court-ordered judgement or a final order issued by a governmental agency, the Commissioner or the Commissioner's designee may require the applicant to provide a bond or deposit of in excess of $5,000.00, as a condition of licensure. In such case, the Commissioner or Commissioner's designee will determine the actual amount of the bond or deposit by considering the following factors;

A. The amount of the judgement or order that was satisfied;

B. The magnitude and seriousness of the violation or violations which lead to the judgement or order;

C. The past history of the applicant in taking all necessary measures to prevent or correct violations of statutes or rules;

D. Prior violations, if any, of statutes or rules.

E. The average payroll of the contractor.

History

• Effective 1991-06-11

Chapter 12 License Protests

Neb. Admin. Code tit. 227, ch. 12 License Protests {#sec-227-nac-12 omnilex-key=us-ne-regs-official--title-227--227 NAC 12}

001 . This chapter is adopted pursuant to Neb. Rev. Stat. §48-1708.

002 . Any individual desiring to protest the issuance of a farm labor contractor license must file the protest in writing to the Department. Hearings on protests are governed by 223 NAC 5.

003 . The written protest must contain the following information:

A. Name, address and phone number of the individual filing the protest;

B. Date of the protest;

C. Name of licensee or license applicant against whom the protest is being made;

D. A complete statement of the facts, circumstances and other reasons for the protest. The statement should include alleged violations, approximate dates of alleged violations, names of witnesses, if any, and any documents which support the allegations;

E. The signature of the individual making the protest.

History

• Effective 2019-04-10

Chapter 14 Records

Neb. Admin. Code tit. 227, ch. 14 Records {#sec-227-nac-14 omnilex-key=us-ne-regs-official--title-227--227 NAC 14}

001. This chapter is adopted pursuant to Neb. Rev. Stat. '48-1708.

002. All farm labor contractors shall make and maintain for a period of three (3) years records necessary to determine their compliance with these rules. Upon written notification of an investigation, a farm labor contractor shall preserve all records required by these rules until such time a final disposition of the investigation is rendered by the Division.

003. Records necessary to determine compliance with these rules include, but are not limited to records of:

A. the name, permanent address, and temporary address of each worker;

B. the name, permanent address, and temporary address of each subcontractor;

C. the work classification of each employee;

D. the rate of monetary wages and fringe benefits, if any, paid to each employee;

E. the total compensation paid to each employee during each pay period and the date it was paid;

F. the dates of each employee's employment;

G. the daily and weekly hours worked by each employee;

H. any deductions taken from the employee's total compensation and an explanation thereof;

I. the actual net wages paid to each employee during each pay period;

J. the agreements required to be furnished to each worker;

K. the agreements between the contractor and any subcontractors;

L. the statements of earnings given to each employee;

M. the agreements between the contractor and farmers, the owner, or lessor of the land used for the production of crops;

N. any payroll or other records pertaining to the contractor's business as a farm labor contractor and the manner in which the contractor conducts such business;

O. copies of completed Immigration and Naturalization Service I-9 forms for every worker.

History

• Effective 1991-06-11

Chapter 15 Records Availability

Neb. Admin. Code tit. 227, ch. 15 Records Availability {#sec-227-nac-15 omnilex-key=us-ne-regs-official--title-227--227 NAC 15}

001 . This chapter is adopted pursuant to Neb. Rev. Stat. §§48-1708 and 81-119.

002 . Farm labor contractors will make available to representatives of the Department records necessary to determine compliance with these rules. Records will be made available upon the request of such representatives.

003 . The Commissioner may issue subpoenas for the production of any papers, books, accounts, documents, or records which are necessary in determining if the farm labor contractor has complied with these rules and the Farm Labor Contractors Act.

History

• Effective 2019-04-10

Chapter 17 Enforcement Action Against the Bond or Deposit

Neb. Admin. Code tit. 227, ch. 17 Enforcement Action Against the Bond or Deposit {#sec-227-nac-17 omnilex-key=us-ne-regs-official--title-227--227 NAC 17}

001. This chapter is adopted pursuant to Neb. Rev. Stat. '48-1708.

002. Any person not paid wages owed to him/her by a farm labor contractor or any farmer not paid advances due them by the farm labor contractor has a right of action against the surety on the bond or deposit with the Commissioner. The individual may exercise this right or may assign this right to another.

003. The action on the bond or on the deposit held by the Commissioner may not be joined in a suit or action on the bond or against the Commissioner brought for any other claim.

004. Any person seeking to recover on the bond or from the deposit with the Commissioner must first establish the licensee's liability. The liability may be established in any of the following ways:

A. A final judgement of state or federal court;

B. A final administrative order issued pursuant to statute or rule;

C. The acknowledgement of the contractor of such liability;

D. Other satisfactory evidence of liability as may be shown which established the liability.

005. Claims against the bond or deposit will not be paid unless, within six (6) months after the end of the license year to which the bond or deposit applies, the claimant or claimant's assignee gives notice of the claim by certified mail to the surety and the Commissioner.

006. Any claim or notice of claim filed pursuant to a claimant's right of action must be filed as follows:

A. If the filing is against a surety bond, the claim or notice must be filed with the surety and the Commissioner. Such filing must be by certified mail;

B. If the filing is against a deposit held by the Commissioner, the claim or notice must be filed with the Department by certified mail.

007. The Commissioner and the surety shall make payments on the bond or deposit in the following priority:

A. Payments on wage claims;

B. Payments on advances made to or on behalf of the contractor by a farmer or an owner or lessee of land intended to be used for the production of crops;

C. If there are insufficient funds to pay all wage claims in full, such claims will be paid in part;

D. If there are insufficient funds to pay advances in full after all wage claims are paid, such advances will be paid in part.

008. In order to insure that all wage claims will be accorded priority treatment, the Commissioner may delay any payments for advances claimed, until the expiration of the time within which wage claims may be submitted. The Commissioner may make conditional payment based upon adequate security that subsequent wage claims will be paid.

History

• Effective 1991-06-11

Chapter 19 Denying, Suspending, Revoking or Refusing to Renew License

Neb. Admin. Code tit. 227, ch. 19 Denying, Suspending, Revoking or Refusing to Renew License {#sec-227-nac-19 omnilex-key=us-ne-regs-official--title-227--227 NAC 19}

001. This chapter is adopted pursuant to Neb. Rev. Stat. §48-1708.

002. The following violations are considered to be of such magnitude and seriousness that the Commissioner or the Commissioner's designee will only propose to deny or refuse to renew a license application or to suspend or revoke a license:

A. Making a misrepresentation, false statement or certification or willfully concealing information on the license application;

B. Willfully making or causing to be made any false, fraudulent or misleading representation, or publishing or circulating any false, fraudulent or misleading information concerning the terms, conditions or existence of employment at any place or by any person;

C. Violating or causing to be violated an existing contract of employment;

D. Knowingly employing an alien not legally present or legally employable in the United States;

E. Assisting an unlicensed person to act as a farm labor contractor;

F. In any way inducing an employee or subcontractor of the contractor to give up any part of the compensation to which the employee or subcontractor is entitled under a contract or under federal or state wage laws;

G. Intentionally altering a license or permit, or using the license or permit of another;

H. Knowingly permitting another to use the licensee's license or permit; or

I. Failing to provide worker's compensation insurance if required to do so.

003. When the applicant for a license or a licensee demonstrates that the applicant's or licensee's character, reliability or competence makes the applicant or licensee unfit to act as a farm labor contractor, the Commissioner or the Commissioner's designee shall propose that the license application be denied or license of the licensee be suspended, revoked or not renewed.

004. The following actions of a farm labor contractor license applicant or licensee demonstrate that the applicant's or the licensee's character, reliability and competence make the applicant or licensee unfit to act as a farm labor contractor:

A. Conviction of a felony in connection with the applicant's or licensee's business operations as a farm labor contractor;

B. Willful violation of the terms and conditions of any work agreement or contract;

C. Failure to comply with federal, state or local laws or ordinances relating to the payment of wages, income taxes, social security taxes, unemployment compensation tax or any tax of any sort;

D. Knowingly fail or refuse to seek food, water, shelter, or medical attention, or to provide any other necessary goods or services required for the safety and health of workers;

E. Failure to file or furnish all forms and other information required;

F. Failure to report any change in the circumstances under which the license was issued, including the failure to notify the Division of any change in the permanent or temporary address of the applicant or licensee.

005. When a farm labor contractor's license application is denied or a license is revoked or when the Commissioner refuses to renew a license, the Commissioner or the Commissioner's designee will not issue the applicant or licensee a license for a period of three (3) years from the date of the denial, refusal to issue or revocation of the license.

006. Notwithstanding paragraph 005 above, the Commissioner, for good cause shown, may issue a license to a contractor whose application has been previously denied or whose license was not renewed or was revoked before the expiration of three (3) years, provided:

A. the contractor submits a petition explaining each and every reason why the contractor should be licensed; and

B. the contractor files a completed application with the petition and pays the appropriate fees.

007. The Commissioner shall grant or deny the petition referred to in paragraph 006 above and in so doing shall consider the following factors:

A. the magnitude and seriousness of the violation or violations which led to the denial, refusal to renew or revocation of the license;

B. the petitioner's past history in taking all necessary measures to prevent or correct violations of statutes or rules;

C. the petitioner's other prior violations of the statute or rules, if any;

D. other matters which indicate to the Commissioner that the petitioner is not likely to violate these rules in the future.

008. All hearings relating to the procedures set forth in these rules and in the Farm Labor Contractors Act shall be held pursuant to 223 NAC 5, and the Administrative Procedures Act.

History

• Effective 2008-08-09

Chapter 20 Certificate of Exemption

Neb. Admin. Code tit. 227, ch. 20 Certificate of Exemption {#sec-227-nac-20 omnilex-key=us-ne-regs-official--title-227--227 NAC 20}

001 . This chapter is adopted pursuant to Neb. Rev. Stat. 48-1703(7).

002 . To obtain a Certificate of Exemption, an application for exemption must be completed and received by the Department in the form and manner prescribed by the Commissioner.

003 . Any individual granted a Certificate of Exemption must comply with the provisions of 227 NAC 14.

History

• Effective 2019-04-10