Nothing in this article should be taken as legal advice. Every case is different.
Sometimes. Virginia’s workers’ comp law leaves out “farm and horticultural laborers, unless the employer regularly has in service more than three full-time employees” (Va. Code § 65.2-101, “Employee,” subdivision 2(g)). So a hired hand on a small family chicken farm with three or fewer full-time workers may not be covered at all. A worker on a bigger farm usually is. And a worker hired by a large poultry company, rather than by the grower, is in a different position again. Who signs your paycheck and how many full-time people work for them decide the answer.
What Does Virginia Law Say About Farm Workers?
The comp law covers “every person, including aliens and minors, in the service of another under any contract of hire,” then lists people it does not cover. Farm workers are on that list, with the three-worker cutoff above. Three things about the cutoff matter:
- It counts full-time employees only. Most other small businesses fall outside the law only when they regularly have fewer than three employees of any kind (subdivision 2(h) of the same definition). The farm rule says “full-time.” In an unpublished 2000 decision involving a dairy partnership (Record No. 1337-00-3), the court upheld the Commission’s finding that two high school students who worked irregular hours were not full-time employees, so the farm was outside the law. The cutoff was “more than two” then. The General Assembly raised it to “more than three” in 2011.
- It asks how many full-time employees the employer “regularly has in service.” That is a question of fact, decided on the evidence of who worked there and how.
- The comp law doesn’t define “farm laborer.” Whether a particular chicken house job counts can itself be a fight, decided by the Commission on the facts.
Who Is Your Employer, and Are You Covered?
| Your job | Who usually employs you | The coverage question |
|---|---|---|
| Hired hand on a contract grower’s farm | The grower | Does the grower regularly have more than three full-time employees? If not, can the poultry company be your “statutory employer”? (See below.) |
| Catching crew, load-out crew, or service tech hired by the poultry company | The poultry company | The large poultry companies regularly have far more than three full-time employees, so the farm cutoff, by its words, doesn’t take you out. |
| Worker hired through a labor contractor or crew leader | The contractor, and possibly the company that hired the contractor | How many full-time employees the contractor has, and whether § 65.2-302 reaches the company above it. |
| H-2A or other seasonal farm worker | The farm or company named on your contract | The same three-full-time-worker rule. Seasonal or part-time coworkers may not count toward it. |
| Worker inside a poultry plant | The plant | Plant work raises different questions. Read our guide to poultry plant injuries. |
Is a Contract Grower’s Hired Hand Covered?
If the grower regularly has more than three full-time employees, yes. If not, the answer may turn on the poultry company.
Most chicken houses on the Shore are owned by growers who raise birds under contract. The company owns the birds and the feed, and the grower owns the houses and hires the help. On paper, the grower is an independent business, and the grower is your employer.
Virginia’s statutory employer law can reach past that. When a business takes on work that “is a part of his trade, business or occupation” and hires someone else to do it, the business “shall be liable to pay to any worker employed in the work any compensation” it would owe if it had hired the worker itself (Va. Code § 65.2-302(A)). The argument for a grower’s hired hand is that raising birds is part of the poultry company’s own business, not just the grower’s.
Here is the honest part. The statute doesn’t say whether a poultry company is the statutory employer of a contract grower’s workers, or how the farm cutoff applies when a statutory employer is involved. Expect the company to argue the grower is a separate business and the work is the grower’s, not its own. The Commission decides that on the facts: what the contract says, who controls the work, and what the company itself does.
Are H-2A and Seasonal Workers Covered?
Virginia’s comp law has no separate rule for H-2A workers. It covers workers “whether lawfully or unlawfully employed” (§ 65.2-101), and the same farm cutoff applies. Federal H-2A program rules have their own requirement that the employer provide workers’ comp or similar insurance, even for jobs state law leaves out (20 C.F.R. § 655.122(e)). That is a federal program, and this article doesn’t cover it. Immigration questions are also outside this article. For more on status and comp, read about undocumented workers and workers’ comp in Virginia.
Seasonal work cuts both ways. A large seasonal crew can still leave a farm under the cutoff if few of those workers are full-time. Your work records, and your coworkers’ hours, are what prove the count.
What If Workers’ Comp Doesn’t Cover You?
You may still have options. They just aren’t workers’ comp.
- A negligence claim against your employer. Workers’ comp normally blocks lawsuits against an employer, and the statute ties that bar to cases where the “employer and he have accepted the provisions of this title” (Va. Code § 65.2-307(A)). The statute doesn’t say whether that bar reaches a worker the comp law leaves out, so a court would decide it on the facts. A negligence claim is a lawsuit in circuit court, where you have to prove the farm was at fault, and it has different deadlines. Pathfinder Injury Law doesn’t bring those cases, but we may be able to point you to a lawyer who does.
- Your employer falls under the law but has no insurance. Every employer the law covers must insure (Va. Code § 65.2-801). If yours didn’t, the Commission can order benefits paid from the Uninsured Employer’s Fund (Va. Code § 65.2-1203). An uninsured employer also loses its main defenses if you bring a negligence claim instead (Va. Code § 65.2-805).
- A claim through the poultry company, under the statutory employer rule above.
Don’t take your employer’s word that the farm is exempt. Find out how many people work there full-time, all year.
Steps to Take After a Chicken House Injury
- Get medical care, and tell the doctor it happened at work. Our page on choosing a workers’ comp doctor explains who picks.
- Give written notice within 30 days. The law requires written notice to your employer (Va. Code § 65.2-600). On a contract farm, give it to the grower and to the poultry company’s field rep, since the company may be a statutory employer.
- Write down who works there. Names, whether each one is full-time, and whether they work year-round. This is the evidence for the three-worker count.
- Keep your pay records. Checks, pay stubs, and anything with the employer’s name on it.
- File with the Commission within two years of the accident (Va. Code § 65.2-601). Filing is how the Commission gets to decide whether you’re covered. Here’s how to file a workers’ comp claim.
Hurt on a Chicken Farm? Call Pathfinder Injury Law
Farm coverage cases turn on facts that are easy to lose: who was full-time, who owned what, and who gave the orders. Pathfinder Injury Law is the only workers’ comp firm with an office on the Eastern Shore, in Chincoteague. Learn more about our Eastern Shore workers’ comp practice.
Pathfinder Injury Law handles only Virginia workers’ compensation claims. Call 804-505-0633 or use our online contact form.