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October 2023, Volume 29, Number 4

H-2A: DOL, Signet

DOL in September 2023 announced new regulations to allow H-2A workers to have visitors in employer-provided housing and require buses and vans used to transport H-2A workers to have seat belts. DOL justified the new regulations by asserting that rapid growth in the number of jobs certified to be filled by H-2A workers has made seasonal farm jobs less attractive to US workers:

Under the 327-page proposed regulation, employers of H-2A workers would have to provide the names of and agreements with their recruiters in foreign countries to DOL, and the names of H-2A workers to US unions. Employers would have to advise H-2A workers of their right to organize freely by certifying to DOL that they will bargain in good faith over the terms of a proposed labor neutrality agreement with a union if the union has majority support.

AEWRs would become effective when they are published, and H-2A workers could be paid 14 days wages if the employer does not notify them that the start of work has been delayed.

DOL proposed to define employer terminations of H-2A workers for cause, outlining six conditions such as a worker failing to meet pre-specified productivity standards or failing to comply with employer policies after progressive discipline. Employers must disclose any minimum productivity standards, and both piece rates and the AEWR on their job order, along with any overtime pay required by state or local laws.

DHS also issued new proposed regulations in September 2023 to enhance protections for H-2A and H-2B workers by protecting whistleblowing workers, by barring employers whose guest workers paid recruitment fees from hiring guest workers, and allowing the recruitment of H-2A and H-2B workers in any country. DHS will also allow H-2A and H-2B workers to seek to become immigrants while they are working in the US.

DHS clarified that employers must pay all fees and costs for guest workers that primarily benefit the employer. H-2A and H-2B workers who are in the US could cease working for the employer with whom they have a contract for up to 60 days while seeking a new US employer. New US employers do not have to be enrolled in E-Verify to hire H-2 workers who left their previous employer.

Beginning July 1, 2023, employers seeking certification to fill jobs with H-2A workers must specify the job title of the work to be done. If USDA’s FLS does not provide an hourly wage for that job title, pay the OEWS wage, which is often higher for job titles such as truck driver and construction worker.

Employers in several states sued to block the implementation of the new DOL regulation. A NC federal judge in September 2023 refused to issue an injunction in a suit brought by USA Farm Labor, but also refused DOL’s request to dismiss the case. USA Farm Labor submits over eight hundred H-2A applications a year on behalf of farmers, many of which bring South African farm truck drivers to the US.

USDA’s Farm Labor Stabilization and Protection Pilot Program provides up to $65 million in $25,000 to $2 million grants to farmers over two production seasons who recruit in El Salvador, Guatemala, and Honduras. USDA funds can be used funds to hire recruit H-2A workers, to cover housing costs, and to pay contractor or consultant fees.

USDA says that the number of H-2A and H-2B visas issued to Northern Triangle workers almost tripled from less than 10,000 in FY21 to almost 30,000 in FY23.

Congress. Rep Tony Gonzales (R-TX) in July 2023 introduced the H-2 Improvements to Relieve Employers (HIRE) Act, which would extend DOL certification of an employer’s need for H-2A and H-2B from one to three years, waive in-person interviews for returning H-2A and H-2B workers, and increase public information on seasonal job availability.

The House Committee on Agriculture Bipartisan Agricultural Labor Working Group used a 26-question online survey to ask farm employers whether they use the H-2A program and what issues they have had with H-2A administration, including cost, complexity, and delays; the questions ask which agency, DOL, DHS, or DOS, was responsible for delays. Respondents are asked to provide the number one change they would like in the H-2A program, and to list other desired H-2A changes. Four questions allow workers to submit information on whether they feel adequately protected.

Guatemala’s Labor Ministry is touting a program to deploy more H-2A workers; the number of ministry-deployed migrants sent to the US rose from 700 in 2021 to over 3,700 in 2023. Guatemala says that a total of 20,000 workers leave the country every year to work in Canada, Italy and the US.

Signet. Signet Builders constructs structures on farms, and switched from hiring H-2B workers to H-2A workers in 2008, when DOL approved H-2A job orders to build to build facilities on farms for Iowa-based Alewelt Concrete.

H-2B workers are paid the prevailing wage for their job title and entitled to overtime pay, while H-2A workers are paid the prevailing wage for their job title or the AEWR, but not overtime wages in many states. Some of Signet’s H-2A workers sued for overtime wages, but a federal judge agreed with Signet that constructing buildings on farms was secondary agriculture work not subject to the overtime requirements of the Fair Labor Standards Act of 1938, which exempts the production of crops and livestock and activities that are “incident to or in conjunction with” farming.

The 7th US Circuit Court of Appeals sent the Signet case back for trial, emphasizing that DOL’s definition of farm work under H-2A was broader than in the FLSA, so that some H-2A work does not qualify for FLSA overtime exemptions (Vanegas v. Signet Builders). Signet appealed to the USSC, hoping for a USSC decision that construction work on farms is farm work exempt from overtime pay requirements.

The USSC in the 1949 Farmers Reservoir case involving Colorado irrigators distinguished between primary agriculture, producing crops and livestock on farms, and secondary agriculture, activities on farms that are necessary to farm. The 1949 USSC decision found that an irrigation company that collected, stored, and distributed water was a nonfarm business not engaged in secondary agriculture, so its employees received overtime pay.

Signet says that its business is secondary agriculture because it builds structures on farms, while lawyers for the workers argue that Signet is a subcontractor to the general contractor in charge of constructing farm buildings.

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