Hiring a Farm Employee
in Vermont: Tax and
Paperwork Checklist
By: Erin Hannum and Rachel Armstrong
FIRST PUBLISHED:
October 24, 2016
LAST UPDATED:
October 24, 2016
www.farmcommons.org
This resource is provided by Farm Commons for educational and
informational purposes only and does not constitute the rendering of legal
counseling or other professional services. No attorney−client relationship is
created, nor is there any offer to provide legal services by the distribution of
this publication. Always consult an attorney regarding your specic situation.
Introduction 3
Checklist Summary 4
Checklist with Explanation 5
If you plan to oer less than the minimum wage, verify
your eligibility 5
If you do not plan to provide overtime, verify your eligibility 10
Follow laws of payment, notice requirements, and
working conditions 11
Secure a workers’ compensation policy 11
Verify eligibility to work in the United States 12
Set up to withhold federal and state income taxes 12
Set up to withhold federal social security and Medicare contributions
from employee’s wages 13
Arrange to pay the farm’s contribution to the employees federal
social security and Medicare account 14
Arrange to pay federal and state unemployment tax, if required 14
Conclusion 16
TABLE OF CONTENTS
This product was developed with support from the National Institute of Food and
Agriculture (NIFA), U.S. Department of Agriculture (USDA), under award number 2014-
68006-21873. Any opinions, findings, conclusions or recommendations expressed within
do not necessarily reflect the view of the NIFA or the USDA. USDA is an equal opportunity
provider and employer.
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Introduction
Hiring a farm employee is an exciting moment. It means the farm is geing
large enough and stable enough to take on additional help. On the downside, the
paperwork requirements of hiring feel much less exciting. Geing familiar with the
process early is a tremendous help. Farm owners should start preparing well before
the new employee begins the first day of work. This checklist will help farmers
understand the basic paperwork process for hiring a farm employee.
Although it’s a useful starting point, this checklist does not explore every single
area of farm employment law. It does not address wage-related record keeping,
workplace safety laws, in-kind wage rules, and many other employment law
maers. It’s simply a concise checklist of select legal issues at the time of hiring.
Farmers should also consult Farm Commons’ other employment law resources for
more information.
Farm Commons aims to help farmers get started, but moving through the checklist
can lead to more questions than answers. On the positive side, knowing the right
questions to ask is half the bale. Unfortunately, easy answers are oen hard to
come by. Calling the relevant agency such as the Vermont Department of Labor,
Vermont Department of Taxes, United States Department of Labor, or the Internal
Revenue Service is an excellent next step when complications arise. Agency
employees are trained experts and able to answer most questions. Some farmers
will prefer to contact an aorney with experience in farm employment law, which
is always a good choice as well.
This resource does not
explore every single area
of employment law.
INTRODUCTION
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Checklist Summary
The following is a summarized list of the steps addressed in this guide. Check each
step o here once you have completed it.
R If you plan to oer less than the minimum wage, verify your eligibility.
R If you do not plan to provide overtime, verify your eligibility.
R Follow laws of payment, notice requirements, and working conditions.
R Secure a workers’ compensation policy.
R Verify eligibility to work in the United State.
R Set up to withhold federal and state income taxes.
R Set up to withhold federal social security and Medicare contributions
from employee’s wages.
R Arrange to pay the farm’s contribution to the employee’s federal
social security and Medicare account.
R Arrange to pay federal and state unemployment tax, if required.
INTRODUCTION
CHECKLIST
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Checklist with Explanations
R If you plan to oer less than the minimum wage, verify your eligibility.
The Vermont minimum wage is higher than the federal minimum wage. Vermont’s
minimum wage is currently set at $9.60 per hour while the federal minimum wage
is currently set at $7.25 per hour. The Vermont minimum wage generally increases
each year; it will increase to $10 on January 1, 2017.
While most businesses in Vermont must pay at least the Vermont minimum
wage, both Vermont and federal law provide an agricultural labor exemption to
minimum wage requirements. Vermont law exempts employees who perform farm
labor from minimum wage entirely. Federal law only exempts employees who
perform farm labor for farms under a certain size, which is based on a measure
called “man-days.This means that, depending on their size, farm businesses may
have to pay employees performing farm labor at least the federal minimum wage.
Also, if a farm has employees who perform tasks that are not considered farm
labor, the farm will need to pay these employees at least the Vermont minimum
wage. Vermont farm businesses must pay close aention to the rules if they wish
to avoid the risks of noncompliance.
Again, Vermont law entirely exempts employees who perform farm labor from the
higher Vermont minimum wage. The federal minimum wage exemption is more
limited. Federal law only exempts Vermont farms with 500 or fewer “man-days” of
agricultural labor in each calendar quarter of the previous year. To put it another
way, farms that used more than 500 man-days of agricultural labor in any calendar
quarter of the last year are exempt from the higher Vermont minimum wage;
however, they must pay employees at least the federal minimum wage of $7.25.
Farms that used 500 or fewer man-days in each calendar quarter of the previous
year are exempt from having to pay both the Vermont and federal minimum
wages.
The rule sounds complicated. What is a man-day? What is agricultural labor?
These are important questions with detailed considerations. The flowchart on the
following page will help farmers breakdown the rule and determine whether the
federal minimum wage applies to their farms. (Please do not use the flowchart
without also reading the text below as it is necessary to eectively use the
flowchart.)
MINIMUM WAGE
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MINIMUM WAGE
NO
YES
Box 2: You meet the scale requirement
to be eligible to pay less than the
minimum wage to farm laborers in the
current year.
Do your employees perform exclusively
agricultural labor?
Box 1: Determine how many man days you had in
each calendar quarter last year. (Calendar quarters
are Jan-Mar, April-June and so forth.) You earn one
man day each time one person shows up for at
least one hour of work. Did you have less than 500
man days in each calendar quarter of the previous
year?
Box 4: All employees
must be paid at least the
federal minimum wage.
Box 3: The farm is
not required to pay
at least the federal
minimum wage.
Box 5: The farm must pay
at least the higer Vermont
minimum wage for all hours
worked in any week where any
non-ag labor is performed.
YES
I don’t know and/or I
don’t have reocrds
No, the work is
some of both
No, it’s all
non-ag
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The first step is for a farm to determine how many man-days the farm had in each
calendar quarter last year. A man-day is any day on which a person does at least
one hour of work. Each person who works is counted as a separate man-day. For
example, if three individuals work for one hour each on the same day, the farm
has three man-days. If three individuals work for eight hours each on the same
day, the farm still has three man-days. As long as the person worked at least one
hour in a day it is considered a man-day; it doesn’t maer how long they worked.
The spouse, children, and other members of the employer’s immediate family are
not counted when calculating man-days. Roughly, 500 man-days equates to about
five to six full-time employees, considering many farms employ workers six or
seven days per week.
Now that we understand how a man-day is calculated, we need to count them.
Divide the calendar January through March, April through June, July through
September, and October to December. Now, determine the number of man-days
in each calendar quarter. Do you have less than 500 man-days in each one? If the
answer is yes, the farm is eligible for the minimum wage exemption (go to box 2).
If the answer is no, the farm is not eligible for the exemption and must pay at least
the minimum wage (go to box 4).
These calculations require careful record keeping. Remember that the 500-man-
day rule applies to the previous year. To determine federal minimum wage
obligations this year, we need to determine the farm’s man-days last year. If
records were not kept last year or are not detailed enough, we will have a hard time
demonstrating compliance with the law. In that case, the safe choice is for the farm
to act as if the federal minimum wage requirement applies (go to box 4).
MINIMUM WAGE
Box 1: Determine how many man days you had in
each calendar quarter last year. (Calendar quarters
are Jan-Mar, April-June and so forth.) You earn one
man day each time one person shows up for at least
one hour of work. Did you have less than 500 man
days in each calendar quarter of the previous year?
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Again, we arrive at Box 4 if the farm has 500 or more man-days. The farm is not
eligible for the exception and must pay at least the minimum wage. In addition, if
records were not kept or are not detailed enough, the safe choice is for the farm to
act as if the minimum wage requiremnts apply.
We arrive at box 2 because we know we are at the acceptable size—we are under
the 500-man-day threshold. Thus, we know we are eligible to pay less than the
federal minimum wage. Now, we have one more question to ask to determine if we
can actually pay less than both the federal and Vermont minimum wages.
Both the Vermont and federal agricultural labor exemptions apply only to
agricultural labor. If an employee spends any time working on something that
is not deemed agricultural, neither the Vermont nor the federal minimum wage
exemption applies. This means the farm must pay the employee the higher
Vermont minimum wage. What’s more, these exemptions do not apply with
respect to all work—including agricultural labor—performed by that employee
during that entire workweek. This means that if a farm employee spends even one
hour of time on a non-agricultural task, the employee must be paid at least the
higher Vermont minimum wage for all hours worked in that week.
Whether work is agricultural labor under the law is not always intuitive. That’s
because it’s based on legal definitions. It is also because the definition of
“agricultural” has not been litigated very much in either the courts of Vermont or
MINIMUM WAGE
Box 2: You meet the scale requirement
to be eligible to pay less than the
minimum wage to farm laborers in the
current year.
Do your employees perform exclusively
agricultural labor?
Box 4: All employees
must be paid at least the
federal minimum wage.
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federal courts. Litigation helps clarify legal definitions. For now, we’re le with a
broad definition that does not account for the realities of modern and direct-to-
consumer farms.
Diversified farms are sprouting up in Vermont and throughout the country. These
farms typically engage in activities—such as selling at farmers’ markets, making
value-added products, organizing on-farm events, and so on—that fall outside
the traditional scope of farming activities. Unfortunately, the legal definition of
agricultural labor has not yet evolved to meet this new type of diversified farm.
Without any statutes or case law for guidance, it can be challenging to draw the
line between agricultural and non-agricultural labor.
Agricultural labor certainly includes growing and harvesting crops, raising
livestock or poultry, and preparing unmanufactured farm products for market
and delivery to market. Generally, agricultural labor includes work done on a
farm in connection to farming operations. Conversely, most if not all work done
o farm is likely not farm labor. For example, because sales at a farmers’ market
are conducted o the farm they are most likely not agricultural labor. Similarly,
marketing activities such as pitching products to restaurants and grocery stores are
likely not agricultural labor. In addition, some work done on a diversified farm is
tangential to agricultural production, for example, making value-added products
or planning and hosting agritourism or on-farm events such as dinners, weddings,
and potlucks. These activities most likely do not fall within the agricultural labor
definition. Aggregating and packing products from another farm, for example into
a CSA box, is a gray area. Most likely, it would not be considered agricultural labor
as it’s really more akin to marketing and providing value to the customer, more so
than agricultural production.
The safest route is to assume that o-farm and any activities that are tangential
to farming, such as those just mentioned, are not agricultural labor. A farm can
quickly resolve any legal risk by paying at least the minimum wage and paying
overtime for any hours worked over 40 in a week to all employees. If the farm pays
at least the minimum wage plus overtime, there is no need to determine if tasks
are agricultural or not.
MINIMUM WAGE
MINIMUM WAGE
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If the work assigned to an employee is non-agricultural, then the higher Vermont
minimum wage is owed—as neither the Vermont nor federal minimum wage
exemption for agricultural labor applies.
Again, when an employee does non-agricultural labor, the employee is owed
minimum wage for the entire workweek, not just for the non-agricultural hours
worked. As a reminder, farms need to keep complete records to demonstrate
compliance with minimum wage law. Timesheets recording the date, hours
worked, and tasks performed are essential, even if no minimum wage is owed. The
records are necessary to show that minimum wage is not owed.
Box 3: The farm is
not required to pay
at least the federal
minimum wage.
If we arrive here, then the hours worked by the agricultural laborer do not fall
under minimum wage laws. Where a farm is under the 500 man day threshold last
year and assigns only ag labor, the farm is allowed to pay less than the minimum
wage. Now, that doesn’t mean no rules apply to the wage payment relationship.
Of course, the farm is obligated to pay the employee whatever the farmer said the
employee would be paid for the work. If a farmer promises to pay $3 per hour and
then pays the employee just $2 per hour, the farm could certainly be sued by the
employee for breaking that promise. The farmer couldn’t be sued under minimum
wage laws, but laws covering our mutual agreements and contracts still apply.
R If you do not plan to provide overtime, verify your eligibility.
Farms are exempt from paying overtime to farm employees under Vermont and
federal laws, regardless of the size of the farm. However, just as with minimum
wage, the exemption only applies to agricultural labor. If the employee performs
non-agricultural labor, the farm must pay overtime for all hours worked over 40
OVERTIME
Box 5: The farm must pay
at least the higher Vermont
minimum wage for all hours
worked in any week where any
non-ag labor is performed.
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in that week. If the employee performs exclusively agricultural labor in a week, no
overtime is owed for hours over 40.
R Follow laws of payment, notice requirements, and working conditions.
Vermont’s laws related to payment of wages and employment conditions apply
regardless of whether a farm is exempt from minimum wage requirements. All
employees must be paid weekly or twice weekly. The farm can pay employees
biweekly or semimonthly only if prior wrien notice is given. If an employee is
discharged, the farm must pay all wages owed within 72 hours. The farm must
provide a wage statement each time the employee receives a paycheck, which
must include gross pay, hours worked, the hourly rate, and all itemized deductions.
Vermont farms must also display a poster notifying employees of the minimum
wage requirements. This poster and other required posters can be found on the
Vermont Department of Labor website: hp://labor.vermont.gov/. The posters can
also easily be found on the internet by searching for the agency name with the
phrase “mandatory posters.
While Vermont does not require mandatory breaks, employees must be provided
with reasonable opportunities to eat and use toilet facilities during the work
periods.
R Secure a workers’ compensation policy.
Vermont provides an exemption for workers’ compensation for small farms. So
long as the farm has less than a total of $10,000 in payroll in a calendar year,
they are not required to carry workers’ compensation for employees engaged in
agricultural labor. If the farm provides housing or meals to its employees as an in-
kind wage, this amount must be included when calculating the gross payroll.
Like the minimum wage exemption, this exemption only applies to agricultural
labor. This means that even if the farm falls below the $10,000 payroll threshold,
it must carry workers’ compensation for any employee that engages in non-
agricultural labor.
For farms with a payroll of $10,000 or more, they must carry workers’
compensation for all employees. This includes family members and part-time
workers. Farm business owners do not have to cover themselves if the farm
is a sole proprietorship or partnership. If the farm is organized as an LLC or
WORKERS’ COMP
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corporation, the LLC members or corporate ocers may choose to be excluded;
however, they first have to obtain approval from the Vermont Department of
Labor.
Workers’ compensation is purchased through private insurance companies. The
cost of the policy is determined by a number of factors, including the classification
of the labor performed, the frequency of injuries by workers performing that labor,
and the total dollar value of the business’ payroll, among other factors. For farm
businesses that use only traditional employees and pay cash (not in-kind) wages,
a quote is easy to come by. Farm businesses that pay wages in the form of food
and lodging may have a harder time determining the value of their payroll and will
need to work more closely with their insurance agents. Likewise, farms seeking
coverage for interns, volunteers, and other non-traditional employees may need
to work closely with their insurance agent to ensure coverage is secured for all
individuals performing work for the farm. Insurance rates may vary, so farms may
want to contact several dierent authorized carriers to compare rates.
R Verify eligibility to work in the United States.
Farms may only hire individuals who are eligible to work in the United States. For
employees not hired through a guest worker program, the employer satisfies the
duty to verify eligibility by properly completing Form I-9. This form is available
from the U.S. Citizenship and Immigration Services agency: hps://www.uscis.
gov/. It is available online and instructions are included. The form is not submied
to the agency. Rather, the employer copies the necessary documentation and
keeps the form on file. The forms and documentation must be available if an
enforcement agency inspects the farm.
R Set up to withhold federal and state income taxes.
Farms are required to withhold a percentage of an employee’s wages and remit the
withheld portion to both the IRS and the Vermont Department of Taxes.
A farm must begin withholding federal and state income tax when either of
the following happens: the farm pays a total of $2,500 or more in wages to all
employees OR any individual employee receives cash wages of $150 or more per
year. Most farms with an employee will have to withhold income tax. Note too that
I9  TAXES
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SS  MEDICARE
this rule applies only for agricultural labor. Farms employing workers performing
non-agriculture tasks typically must withhold state and federal income taxes once
any wages are paid.
To begin the federal income tax withholding process, the farm needs a completed
IRS Form W-4 from the employee. This form allows employees to choose the
number of withholding exemptions. Form W-4 is not sent into an agency; it
remains in the farms files. The farm then uses the tax tables in IRS Publication
15 (Employer’s Tax Guide) to determine withholding per paycheck based on the
individuals pay, exemptions, and payment frequency. The Form W-4 and the
Employer’s Tax Guide can be downloaded from the IRS website: hps://www.irs.
gov/. The farm must record the amount withheld and remit it to the IRS. The due
date is dependent on the total tax owed. For most farms, the tax must be deposited
monthly. The IRS uses an online system, the Electronic Federal Tax Payment
System (EFTPS). Deposits must be made electronically. Farms must register with
the EFTPS system ahead of time as it can take a few days to receive the passwords.
Registration can be completed at hps://www.eps.gov/eps/.
To begin the Vermont income tax withholding process, the farm needs a completed
Form W-4VT from the employee, which mirrors the IRS Form W-4. The farm
then uses the tax tables available on the Vermont Department of Taxes’ website:
hp://tax.vermont.gov/. The amount is computed in the same manner as the
federal tax. The farm must record the amount withheld and remit it to the Vermont
Department of Taxes. Farms must first register for a withholding account. This
can be done online at hp://mytax.vermont.gov, or by using Form BR-400. The
department will determine the filing frequency based on the annual withholding
totals. The returns may be filed and taxes remied either online or using paper
forms and sending in a check.
R Set up to withhold federal social security and Medicare contributions from
employee’s wages.
Most farms are required to withhold social security and Medicare taxes from
workers’ paychecks. The same rules apply as for withholding federal income tax:
The obligation begins when the farm’s total payroll for employees exceeds $2,500
or an individual’s wages exceed $150 per year. Where the amount of income tax
to withhold is determined by using the IRS’s tables, social security and Medicare
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taxes are calculated as percentages of the employee’s wages for that pay period.
The most recent percentages will be listed in IRS Publication 51 (Agricultural
Employer’s Tax Guide). Currently, 6.2% of wages are withheld for social security
and 1.45% for Medicare. Each time the employee receives a paycheck, a portion of
the social security and Medicare taxes are withheld. This is then remied to the
IRS through the same EFTPS process used for remiing withheld income taxes.
R Arrange to pay the farm’s contribution to the employee’s federal social
security and Medicare account.
In the checklist item above, we explained that a portion of social security and
Medicare taxes owed by the employee must be withheld from the employee’s
paycheck. In this checklist item, we are discussing the social security and
Medicare taxes owed by the employer. These are two dierent taxes—the
employee is taxed and the employer is taxed. The employee’s tax is deducted from
wages. The employer’s tax is paid by the employer, and may not be deducted from
wages. The taxes go to the same agency for the same ultimate purpose, but are
separate.
The farm is taxed at the same threshold where the employee must be taxed. (See
the $2,500 or $150 rule above.) Currently, the farm is taxed at the same rate as the
employee, although this may change. Currently, 6.2% of wages are withheld for
social security and 1.45% for Medicare. The most recent percentages will be listed
in IRS Publication 51 (Agricultural Employer’s Tax Guide).
Although the employee’s and employer’s shares of the social security and
Medicare taxes are technically separate, they are deposited at the same time
through the IRS’s EFTPS process.
Farms who work with a payroll service provider can escape the details of
withholding and remiing taxes. Payroll service providers help employers
determine which taxes are owed and assist in coordinating payment of the taxes.
Farmers who can aord a payroll service may find it well worth the money.
R Arrange to pay federal and state unemployment tax, if required.
Unemployment tax is paid by the farm and is not deducted from an employee’s
wages. This tax contributes to a compensation fund available to individuals who
have become unemployed. Most employers are required to pay unemployment tax
UI TAX
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immediately; however, farms are exempt until the operation reaches a certain size.
Vermont and the federal government follow the same rules for farms. When a farm
owes unemployment tax to the federal government, the farm will also owe it to the
state.
The farm must begin paying federal and state unemployment taxes when either of
the following happens: (1) the farm pays wages of $20,000 or more to farmworkers
during any calendar quarter of the previous two years; OR (2) the farm employed
10 or more workers for any part of a day (even if not at the same time during the
day) during any 20 or more weeks in the last year, or in the year before that. Aer
a farm crosses either threshold, the farm must begin paying into federal and state
unemployment compensation funds.
The farm will pay federal unemployment tax on up to $7,000 of each employee’s
wages. The tax is determined by percentage; the latest percentage is listed in
IRS Publication 51. Federal unemployment tax is paid through the same EFTPS
procedures as income withholding and social security/Medicare taxes.
Vermont unemployment tax is owed on up to $16,800 of each employee’s
wages. Just as for the federal tax, the state unemployment tax rate is determined
by percentage. The current state rate is available by contacting the Vermont
Department of Labor oce. Payments are made by filing Quarterly Wage and
Contribution reports with the Vermont Department of Labor: hp://labor.vermont.
gov/unemployment-insurance.
Like the minimum wage, overtime, and workers’ compensation exemptions, the
rule above is for farm businesses assigning agricultural labor to their employees. For
non-farm enterprises (which may include diversified farms engaging in separate,
non-agricultural enterprises such as packing other farmers’ produce, hosting on-
farm events and agritourism, and so on as discussed in the minimum wage section),
farmers may need to follow the regular unemployment tax rules.
For non-farm businesses in Vermont, both federal and state unemployment taxes
are owed when either of the following happens: (1) the business has one or more
employees during some portion of a day in 20 dierent calendar weeks in either the
current or prior year (whether consecutive weeks or not); OR (2) the business paid
out $1,500 or more in gross wages during any calendar quarter of the current or
previous year.
UI TAX
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Conclusion
This checklist illustrates selected, immediate paperwork responsibilities of the
farmer at the time of hiring. It also reveals that the farmer’s responsibilities don’t
stop there—the law requires ongoing record keeping, withholding, remiing, and
payment responsibilities. If a farm creates a clear, consistent system for hiring,
tracking payroll, and calculating taxes, employment paperwork burdens can be
minimized. For farmers who don’t enjoy creating these procedures and can aord
modest fees, accountants and payroll service providers will be happy to handle this
aspect of hiring. To find a local service provider, ask other farmers if they have a
recommendation.
This resource guides farmers in the initial steps necessary to hire an employee; it
does not discuss many other tax aspects of hiring. For example, employers must
keep certain records and must provide specific documentation to employees at
the end of the year. Payroll service providers and Small Business Administration
oces can help, and the IRS provides information in many publications.
Farmers may want to read IRS Publication 51: Agricultural Employer’s Tax Guide,
Publication 15-B: Employer’s Tax Guide to Fringe Benefits, and Publication 225:
Farmer’s Tax Guide.
This guide is part of a series of guides provided by Farm Commons on Vermont
employment law:
Hiring a Farm Employee in Vermont: Tax and Paperwork Checklist
Classifying Workers on Vermont Farms: Are they Independent Contractors,
Interns, Volunteers, or Employees?
Managing Risks of Farm Interns and Volunteers in Vermont
Be sure to check out these and many more resources on employment law and
other legal issues that are relevant to sustainable farmers. All of Farm Commons’
resources are available for free download at www.farmcommonsorg.
The following are some additional recommended resources on employment law for
Vermont farmers:
Vermont Farm Worker Wage, Hour and Housing Fact Sheet
Provided by the VT Agency of Agriculture Food and Markets
FAQ: Labor Regulations for Farmers
Provided by the Northeast Organic Farming Association of Vermont
CONCLUSION
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