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CCH® PAYROLL — 02/23/10

DOL issues final H-2A temporary agricultural worker rule

In a move closely watched by the agricultural industry, labor and immigrant rights groups, the Department of Labor (DOL) has released a final rule reversing changes made by the Bush administration to the labor certification process and enforcement mechanisms governing the H-2A temporary agricultural worker program. The major change included in the DOL's final rule is the switch from the attestation-based system created by the Bush administration's final rule back to the Adverse Effect Wage Rate (AEWR), which is the minimum wage rate that must be offered and paid to H-2A agricultural workers. The rule takes effect March 15, 2010.

The final rule is the result of the DOL review of the policy decisions underlying a previous revision of the H-2A regulations, published by the Bush administration in 2008 as well as the review of almost 7,000 comments on the DOL's proposed rule. The DOL found there were insufficient worker protections in the 2008 rule's attestation-based model in which employers merely confirm, and do not actually demonstrate to the satisfaction of an objective government observer, that they have performed an adequate test of the US labor market. The DOL's review also focused on the process for obtaining labor certifications, the method for determining the H-2A AEWR and the protections afforded to both the temporary foreign workers as well as the domestic agricultural workforce. The final rule includes stronger mechanisms for enforcement of the worker protection provisions required by the H-2A program, said the DOL.

Among the major provisions in the H-2A rule:

• • The employer must provide the DOL with documentation that it has complied with the prerequisites for bringing H-2A workers into the country, including the requirements related to recruiting for qualified US workers, instead of simply attesting to compliance.
• • Returns to using the USDA Farm Labor Survey as the basis for determining the AEWR. The 2008 rule used the Occupational Employment Statistics Survey, which resulted in a substantial reduction of worker wages (an average of over $1.00/hour).
• • Reinstates the critical role of the State Workforce Agencies (SWA) in assisting employers by using their expertise on local labor market conditions and recruitment patterns, thereby expanding job opportunities for US workers.
• • Reinstates the requirement that the SWA inspect and approve employer-provided housing before the DOL issues an H-2A labor certification.
• • Requires that all employer-provided transportation meet, at a minimum, the same federal standards for vehicle safety, vehicle insurance and driver licensure applicable to most other agricultural workers.
• • Strengthens revocation and debarment authorities by providing the Wage and Hour Division with independent debarment authority in addition to Employment Training Administration, raises civil money penalties and expands audit authority to include housing.
• • Continues to include logging as an H-2A occupation. The notice of proposed rulemaking proposed to add other forestry-related occupations such as tree planting and related reforestation activities as well as pine straw gathering, but this was not included in the final rule in response to concerns from both the industry and advocates about the costs and the workers' potential loss of protections under the Migrant and Seasonal Agricultural Worker Protection Act, including a private right of action.
• • Creates a national electronic job registry for all H-2A job orders to improve US worker access to agricultural jobs and help growers find workers from across the US.
• • Extends H-2A program benefits to workers in "corresponding employment" (other workers employed by an H-2A employer in any work included in the job order and any work performed by the H-2A workers) to ensure that similarly employed US workers are not provided with lower wages or fewer benefits.
• • Requires employers to provide workers with copies of the job orders no later than before departure, including from the workers' home countries and to display a poster describing employee rights and protections in English and another language common to the workers at the worksite.
• • Prohibits the use of multi-area itineraries by H-2A Labor Contractors (H-2ALCs), ending the practice of moving H-2A workers from site to site in multiple areas of employment under one labor certification. Labor contractors participating in this program will now have the same regulatory standards as fixed-site farmers.
• • Required surety bond amounts for H-2ALCs have been increased.
• • Prohibits the approval of labor certification applications for worksites where workers are on strike or locked out and protects US workers who are denied employment or laid off.

The H-2A nonimmigrant visa classification applies to foreign workers coming to or already in the US who perform agricultural work of a temporary or seasonal nature. The Department of Homeland Security may not approve an H-2A visa petition unless the DOL's Employment and Training Administration certifies that there are not sufficient US workers qualified and available to perform the labor involved in the petition and that the employment of the foreign worker will not have an adverse effect on the wages and working conditions of similarly employed US workers. In addition, the DOL's Wage and Hour Division enforces the terms and conditions of the labor certification and enforces worker protections. During fiscal year 2009, employers filed 8,150 labor certification applications requesting 103,955 H-2A workers for temporary agricultural work. The DOL certified 94 percent of the applications submitted for a total of 86,014 workers. There is no cap for the H-2A program.

(75 FR 6883, February 12, 2010.)

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