Agricultural Employer Alert: New Rules Proposed to Strengthen H-2A Farmworker Protections

Last Updated 9/19/2023

The Department of Labor (DOL) has recently proposed to amend federal regulations governing the certification of temporary employment of nonimmigrant workers employed in temporary or seasonal agricultural employment and the enforcement of the contractual obligations applicable to employers of these nonimmigrant workers. The proposed revisions focus on strengthening protections for temporary agricultural workers and enhancing the Department’s capabilities to monitor program compliance and take necessary enforcement actions against program violators.

So, let’s take a closer look at some of the major provisions of this proposed rulemaking.

  • Protections for workers who advocate for better working conditions and labor organizing activities

The DOL proposes revisions to provide stronger protections for workers protected by the H-2A program to advocate for better working conditions on behalf of themselves and their coworkers and prevent employers from suppressing this activity and are necessary to prevent an adverse effect on the working conditions of workers. The Department’s goals are to prevent such adverse effect because when H-2A workers and other workers protected under the H-2A program cannot advocate and negotiate with employers on their own behalf, employers are able to impose exploitative working conditions that also leave H-2A workers vulnerable to other abuses, and this unfairly deprives similarly employed agricultural workers of jobs with better working conditions. Specifically, the Department proposes to expand and explicitly protect certain activities workers must be able to engage in without fear of intimidation, threats, and other forms of retaliation. For agricultural workers, who are exempt from the protections of the National Labor Relations Act (NLRA), the DOL also proposes to include some protections that it believes will safeguard collective action. The Department also proposes to add new provisions to ensure employers do not interfere with efforts by vulnerable workers under the H-2A program to advocate for better working conditions by including a number of requirements that would advance worker voice and empowerment and further protect their rights and to permit workers to invite or accept guests to worker housing and provide labor organizations a narrow right of access to worker housing.

  • Clarification of justifiable termination for cause

The Department proposes to define “termination for cause” by proposing six criteria that must be satisfied to ensure that disciplinary and/or termination processes are justified and reasonable, which are intended to promote the integrity and regularity of any such processes. These proposed changes will help to ensure employers do not arbitrarily and unjustly terminate workers, thereby stripping them of essential rights to which they would otherwise be entitled, and will assist the Department in determining whether an individual worker was terminated for pretextual reasons.

  • Immediate effective date for updated Adverse Effect Wage Rates (AEWRs)

The Department proposes to designate the effective date of updated AEWRs as the date of publication in the Federal Register, and to require the employer to pay the updated AEWR immediately upon publication of the new AEWR in the Federal Register. This change is intended to help ensure workers are paid at least the updated AEWR, as soon as it is published, for all work they perform, and thereby help to ensure the employment of H-2A workers will not adversely affect the wages and working conditions of workers in the United States similarly employed.

  • Enhanced transparency for job opportunity and foreign labor recruitment

The DOL proposes new disclosure requirements to enhance transparency in the foreign worker recruitment chain and bolster the Department’s capacity to protect vulnerable agricultural workers from exploitation and abuse.

  • Enhanced transparency and protections for agricultural workers

This includes (a) disclosure of minimum productivity standards, applicable wage rates, and overtime opportunities; (b) enhanced protections for workers through the Employment Service system (ES system); (c) enhanced transportation safety requirements; (d) protection against passport and other immigration document withholding; and (e) protections in the event of a minor delay in the start of work.

  • Enhanced integrity and enforcement capabilities

The Department has proposed to reduce submission periods for appeal requests for debarment matters and submittal of rebuttal evidence to the Office of Foreign Labor Certification in cases where businesses have violated H-2A program rules.  It has also suggested enhancements to the Department’s ability to apply orders of debarment against successors-in-interest.  Finally, the DOL rules would define the single employer test for assessing temporary need, or for enforcement of contractual obligations.

For more information on the DOL’s proposed rulemaking or any other questions or issues involving the H-2A program, please contact Rosasco Law Group, APC.

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