(a) The exemption provides that an ``employee must have been
employed in agriculture less than 13 weeks during the preceding calendar
year.'' For purposes of determining whether a worker has been employed
in agriculture less than 13 weeks during the preceding calendar year, a
week is considered to be a fixed and regularly recurring period of 168
hours consisting of seven consecutive 24-hour periods during which the
employee worked at least 1 ``man-day.'' Section 3(u) of the Act defines
a man-day as ``any day during which an employee performs any
agricultural labor for not less than 1 hour.''
(b) In defining the term ``week'' in this manner for purposes of
section 13(a)(6)(C) (as well as section 3(e)(2)) comports with the
traditional definition of week used in administering all the other
provisions of the law. On this basis, the phrase ``employed in
agriculture less than 13 weeks'' means that an employee has spent less
than 13 weeks in agricultural work, regardless of the number of hours he
worked during each one of the 13 weekly units. This position recognizes
and accommodates to situations where an employee works very long as well
as very short hours during the week. This would accord with the
legislative history of this exemption which clearly indicates that it
was meant to apply only to temporary workers whose hours of work would
undoubtedly vary in length, and would, thereby effectuate the
legislative intent.
(c) In determining the 13-week period, not only that work for the
current employer in the preceding calendar year is counted, but also
that agricultural work for all employers in the previous year. It is the
total of all weeks of agricultural employment by the employee for all
employers in the preceding calendar year that determines whether he
meets the 13-week test. In this respect a self-employed farmer who works
as a hand harvest laborer during part of the year is considered to be
``employed'' in agriculture only during those weeks when he is an
employee of other farmers. Thus, such weeks of employment are to be
counted but any weeks when he works only for himself are not counted
toward the 13 weeks.
(d) The 13-week test applies to each individual worker. It does not
apply on a family basis. To carry the example in the preceding section
further, members of a tractor driver's family who reside on the farm
could be employed in picking cotton within the terms of the exemption
even though the driver had been employed in agriculture as much as 13
weeks in the previous calendar year, so long as the family members
themselves had not.
(e) If an employer claims this exemption, it is the employer's
responsibility to obtain a statement from the employee showing the
number of weeks he was employed in agriculture during the preceding
calendar year. This requirement is contained in the recordkeeping
regulations in Sec. 516.33 (d) of this chapter.
