Wildland Fire Contractors and the MSPA

If you are reading this, I wish to thank you for your commitment to supporting our wildland fire contracting organizations, our workers, and our ability to provide resources critical to the nation's wildfire response mission. While the application of the MSPA could have negative impacts on our individual companies, the more immediate threat is to our wildland firefighters and wildfire support workers and on the workforce as a whole, which will in turn have immediate and perhaps catastrophic impacts on wildfire response as soon as this fire season. That said, we must remember that this is an issue that needs to be handled delicately and through the proper channels. The Forest Service largely has their hands tied on this issue. The following is accurate to the best of our knowledge. That said, we are continuing to evaluate information and will continue to make adjustments or add information as we are confident in its accuracy. Please use this as a starting point in understanding the issues that MSPA will introduce to the VIPR contracting model. Feel free to reach out to us if you have any insights, questions or concerns.

Before we go any farther, we need to pose the obvious question: What is a firefighter? Many things come to mind, but to establish an objective truth, the US Department of Labor classifies a firefighter under the Service Contract Act Directory of Occupations, classification code 27070:

27070 FIREFIGHTER

The Firefighter controls and extinguishes fires. They may drive vehicle to scene of fire following predetermined route, or selecting alternate route when necessary. This worker positions vehicle considering such factors as wind direction, sources of water, hazards from falling structures, and location of armaments or aircraft, operates pumps, foam generators, boom and ground sweeps nozzles, and other similar equipment, uses a variety of special protective gear in situations where poisonous gases, radioactive materials, and hazardous biological products are involved. The Firefighter determines proper pressures for the distances to be pumped and the number of lines being used. When operating a crash truck, this incumbent maneuvers the vehicle to keep the fire in optimum range while ensuring that backflash will not occur, maintains a constant awareness of water levels in self-contained tanks and warns handline and rescue man when tanks are close to running dry. This worker performs daily preventive maintenance inspection of vehicle and equipment, minor maintenance such as oil changes, replacing packing in pumps, and draining and flushing tanks, and otherwise ensuring that all equipment is in usable condition.

It is most notable that this information is contained in the supplement to the Service Contract Act, and it also falls under the Protective Service Occupations category, not under Agricultural Occupations.

In 2023, the US Department of Labor (DOL) began applying the Migrant and Seasonal Agricultural Worker Protection Act (MSPA) to wildland fire contractors with US Forest Service agreements under their Virtual Incident Procurement (VIPR) program. While this act may be well suited for private sector agricultural employment, it is not suitable at all for application to wildland fire contractors. Such application will cause irreparable harm to contractors, their employees, and the entire wildland fire workforce. Additionally, it will create formidable obstacles in our nation's ability to respond to wildfires. 

The following information:

(1) Demonstrates that this law does not legally apply.

(2) Demonstrates that the application of MSPA would provide no meaningful benefit to employees that the laws we already are subject to- the Fair Labor Standards Act, McNamara O'Hara Service Contract Act, and Federal Motor Carrier Safety Administration regulations already provide for.

(3) Walks the reader through the negative impacts on employees, the wildland fire workforce, contractors, and our ability as a nation to respond to wildland fire emergencies, should the DOL continue to apply this law to wildland fire contractors.

Aside from the following video presentation, we have organized a deep look into the laws as written, the court decisions that came to impact the wildfire contract community, and a number of observations that we have made about the impractical, if not impossible request to follow a law that is wholly unfit to govern this business model. Please take time to review this entire page and its links to become fully informed in the issues as we work to restore an acceptable framework for wildfire contractors nationwide.

Federal service contractors are covered by a multitude of laws that govern their behavior and conduct. The laws that have been in place for these purposes are adequate and are written in such a way that vendors can comply with the law while conducting emergency service work, while it is impossible for vendors to faithfully perform their duties and follow all of the requirements of the MSPA. The following link provides a side by side comparison of laws that already apply to our industry and demonstrate the duplicative and burdensome requirements found in the MSPA.

It is very important that the correct regulations and laws are enforced on businesses and their employees. As federal service contractors, we are obligated to follow many laws, and our employees are protected by the provisions in the McNamara-O'Hara Service Contract Act, the Fair Labor Standards Act, Federal Motor Carrier Safety Administration Regulations and numerous other state and local laws. The MSPA was drafted by congress to specifically address worker protections in private sector agricultural contracting, and the provisions are terribly ill suited for service contract activities and the enforcement of MSPA regulations significantly interfere with the performance of our duties to respond to emergency incidents to protect the public interest. Continue reading to learn more about the MSPA and the conflicts created by applying MSPA to service contract businesses and their employees.

If a mechanic had a small fire in his shop, and he fights that fire commensurate with his training and abilities, he does not cease being a mechanic in the moment when he is fighting the small fire. In the same way, a worker who was recruited and hired to work in commercial forestry would not cease being a forestry worker if he were to fight a small forest fire on the timber tract on which he was working. I don't think anyone would argue with that. 

In the first example, a structural firefighter called to fight the mechanic shop fire if it escaped control would not become a mechanic for fighting that fire, but this is exactly the logic that the DOL fails to apply to wildland firefighters. They would not only insist that someone who was recruited and hired to work as a wildland firefighter would become a forestry worker for fighting the forest fire, but would also insist that every other wildland firefighter is also a forestry worker regardless of whether they fight fires in forests, sagebrush, desert scrub, grasslands, the wildland-urban interface, or in any other fuel type.

The need to remove this arbitrary and capricious application of the MSPA on wildland fire contractors by the DOL cannot be overstated. There is no legal basis for its application. It provides no worker protections, and even creates both financial risks and safety risks for the workers it seeks to protect. It is impossible for businesses to comply with, because the law is being applied to an employment sector it was never intended to apply to. This threatens the workforce, the contractors, and our ability as a nation to respond to wildfire emergencies.

● The Department of Labor in the Pacific Northwest recently instructed the US Forest Service to insert language into Virtual Incident Procurement (VIPR) agreements that VIPR contractors are subject to the Migrant and Seasonal Agricultural Worker Protection Act (MSPA).

● Their argument stems from a 1987 9th Circuit Court of Appeals decision, Bresgal V. Brock, where it was decided that the MSPA applied to migrant agricultural workers working in forestry. In this decision, Judge Farris misquoted the stated examples of forestry work from the declaratory judgement in the appealed District Court (Oregon) decision. The District Court declaratory judgement included the phrase “tree planters, thinners, and other forest laborers”. Judge Farris erroneously referenced this declaratory judgement to instead read “manual forestry work, including but not limited to tree planting, brush clearing, precommercial tree thinning and forest fire fighting”.

● It is plainly clear that the MSPA was never intended to apply to private wildland fire companies or their employees, regardless of whether it was intended to apply to manual forestry work or not. Now, 36 years later, the Department of Labor is asserting that all private wildland firefighters are considered forestry workers, simply because forestry workers may sometimes fight fire. This has far-reaching impacts on our ability to safely and efficiently fulfill the duties of our agreements, and even our ability to provide work for our firefighters. The MSPA provides no real protections for workers that are not already provided by other legislation or our VIPR agreements. The net effect is negative for the businesses and the employees, all while threatening the ability for private wildland firefighters to respond to wildfire emergencies.

● Saying that the MSPA applies to all private wildland firefighters because forestry workers sometimes fight fire is like saying regulations applicable to cattle producers should apply to fence builders because ranchers sometimes build their own fences, or that regulations applicable to farmers should apply to herbicide applicators because farmers sometimes apply herbicide to their own crops.

● The application of the MSPA to private wildland companies and their firefighters would significantly increase the administrative burden on these companies and employees, due to unreasonably long (5-weeks plus) DOL registration processes for the company, all drivers, and all vehicles, every single year.

● Should registration of a new employee or vehicle become necessary mid-fire season, it would create an instance where a company would be in violation of the MSPA, should it accept a resource order for a fire assignment without all DOL registrations being in place, resulting in the necessity to turn down the fire assignment, and further resulting in an immediate threat to life and safety.

● Additionally, when a busy fire season only results in 4-5 fire assignments on average, turning down a fire assignment will eliminate 20% - 25% of an employee’s annual income. In a slow season, it could represent 50% or more of an employee’s annual income. This is not worker protection, but rather a worker obstruction.

● Creating a situation that increases the likelihood that businesses will fail and that employees will miss opportunities to work will decimate the private wildland fire workforce at a time when Federal wildland firefighter hiring and retention is also struggling. This could have catastrophic consequences to our nation’s ability to respond to wildland fire emergencies.

● The MSPA language will be inserted into water handling (fire engines and water tenders) agreements in the next 2-3 months, so there is not much time to avert what could amount to a disaster this fire season.

● I am requesting language be inserted into the next appropriate bill “exempting all wildland firefighting activities from the Migrant and Seasonal Agricultural Worker Protection Act” in order to avoid any negative consequences of the MSPA language being inserted into our VIPR agreements.