Update
The Department published the Farmworker Protection Rule in the Federal Register (89 FR 33898) on April 29, 2024. The Final Rule amended the regulations governing the H-2A program at 20 CFR part 655, subpart B, and 29 CFR part 501, as well as the Employment Service (ES) regulations at 20 CFR parts 651, 653, and 658. The ES amendments include changes related to the Agricultural Recruitment System and the bases and procedures for State Workforce Agencies’ discontinuation of ES services to employers.
On August 26, 2024, the United States District Court for the Southern District of Georgia issued a preliminary injunction order (“Order”) in the case Kansas, et al. vs. U.S. Department of Labor, et al. No. 2:24-cv-00076-LGW-BWC (S.D. Ga., Aug. 26, 2024) (“Kansas”) prohibiting DOL from enforcing the Farmworker Protection Rule in certain states and with respect to certain entities. The preliminary injunction specifically prohibits DOL from enforcing the Farmworker Protection Rule in the states of Georgia, Kansas, South Carolina, Arkansas, Florida, Idaho, Indiana, Iowa, Louisiana, Missouri, Montana, Nebraska, North Dakota, Oklahoma, Tennessee, Texas, and Virginia, and against Miles Berry Farm and members of the Georgia Fruit and Vegetable Growers Association as of August 26, 2024. DOL is complying with the preliminary injunction. Accordingly, until further notice, these 17 states should follow the ES regulations at 20 CFR parts 651, 653, and 658 that were in effect prior to the effective date of the Final Rule. All other states will continue to follow the ES regulations currently in effect as of June 28, 2024, including all ES amendments made in the Final Rule, except as they relate to use of Forms ETA-790 and ETA-790B. Please see the Monitor Advocate System laws and regulations webpage for announcements and guidance on implementing the Final Rule. For information on the H-2A certification process, see the Office of Foreign Labor Certification website. See Training and Employment Notice No. 27-23, Change 2 for guidance on implementation of ES-related changes, including changes related to discontinuation of ES services.
On April 29, 2024, the U.S. Department of Labor published the Farmworker Protection Rule (89 FR 33898), which revises Wagner-Peyser Employment Service (ES) regulations at 20 CFR parts 651, 653, and 658. The rule is effective June 28, 2024. Changes are described on the Department’s Farmworker Protection Final Rule webpage and ES-related changes are further described in Training and Employment Notice (TEN) No. 27-23, Change 2. Among these, the Final Rule requires that ES staff must consult the Department’s Office of Foreign Labor Certification (OFLC) and Wage and Hour Division (WHD) H-2A and H-2B debarment lists, and a new ETA Office of Workforce Investment (OWI) discontinuation of services list before placing a job order into intrastate or interstate clearance through the Agricultural Recruitment System.
As described at 20 CFR 653.501(b), when consulting the lists:
- If an employer is on the H-2A or H-2B debarment lists, the SWA must initiate discontinuation of ES services to the employer.
- If the employer is on the OWI discontinuation of ES services list, or the SWA has already discontinued ES services, the SWA must not approve the clearance order.
When a SWA discontinues ES services to an employer, the employer cannot participate in or receive any Wagner-Peyser Act ES service from any SWA. In this case, “employer” means an employer as well as agents, farm labor contractors, joint employers, and successors in interest, as defined in 20 CFR 651.10. If ES services are discontinued, the SWA must remove the employer's active job orders from the clearance system and no SWA may process any future job orders from the employer or provide any other ES services to the employer unless the SWA reinstates ES services to the employer under 20 CFR 658.504.
In addition to viewing this list online, employers may submit written requests to the OWI Administrator to determine whether they are on the OWI discontinuation of ES services list.
Debarment Lists:
- The H-2A and H-2B debarment lists are available on OFLC’s website.
OWI Discontinuation of ES Services List:
All SWAs are expected to discontinue ES services to employers where there is a basis to do so under the applicable regulations. As described in TEN 27-23, Change 2:
- SWAs in the 17 states subject to the preliminary injunction order (“order”) in the case Kansas, et al. vs. U.S. Department of Labor, et al. No. 2:24-cv-00076-LGW-BWC (S.D. Ga., Aug. 26, 2024) (“Kansas”), must apply the discontinuation bases and discontinuation procedures in effect on June 27, 2024, available at 20 CFR Part 658 Subpart F (June 27, 2024).
- SWAs for the 37 states not impacted by the Kansas order must notify OWI of any final determination to discontinue, determination to immediately discontinue, or determination to reinstate ES services to an employer as detailed in 20 CFR 658.503 and 504 by sending a copy of the determination letters to OWI through email to DOES@dol.gov. ETA will publish such discontinuations on this page.
Current List of Employers with Discontinued ES Services:
Currently, no employers are on the OWI discontinuation of ES services list.
SWAs and employers may submit questions to OWI through email at DOES@dol.gov.