The revisions proposed in this notice of proposed rulemaking (NPRM or proposed rule) focus on strengthening protections for agricultural workers and enhancing the Department’s capabilities to monitor program compliance and take necessary enforcement actions against program violators.
Agricultural workers are among our nation’s most vulnerable to workplace abuses. Based on the Department of Labor’s (DOL’s) enforcement experience, workers at worksites taking part in the H-2A program can face significant challenges. In 420 DOL investigations of employers using the H-2A program in FY 2022, the Department assessed more than $3.6 million in back wages and more than $6.3 million in civil money penalties. DOL has conducted recent investigations suggesting H-2A workers continue to be vulnerable to human trafficking. H-2A workers also continue to be vulnerable to retaliation when asserting their rights or engaging in self-advocacy. Meanwhile, recent vehicle crashes involving agricultural workers demonstrate the need for transportation safety reform.
Meanwhile, the demand for H-2A workers has skyrocketed in recent years. DOL certified over 370,000 temporary H-2A jobs in FY 2022 – more than 7 times the number certified in 2005 and twice the number certified in 2016.
The Department is proposing to amend its regulations governing the H-2A temporary agricultural labor certification program to strengthen worker protections by adding provisions related to protections for workers advocating on behalf of themselves and their coworkers, seat belt safety, and termination for cause, among other proposals. The proposed rule would support and amplify worker voice and empowerment, enhance existing enforcement provisions, and revise provisions that are outdated, unclear, or subject to misinterpretation in the current regulations.
The H-2A nonimmigrant worker visa program under the Immigration and Nationality Act enables U.S. agricultural employers to employ foreign workers in the U.S. to perform temporary or seasonal agricultural labor or services. Employers who wish to hire agricultural workers from outside the U.S. must first recruit U.S. workers including through state Employment Service offices, before applying for a temporary labor certification.
One of DOL’s key roles in the H-2A program is to ensure that hiring H-2A workers does not adversely affect the wages and working conditions of workers in the U.S. who are similarly employed.
In order to receive DOL’s “temporary labor certification” – a necessary first step to hire H-2A workers – applicants have to show, and the Department has to certify:
- there are not sufficient U.S. workers who are able, willing, and qualified, and who will be available at the time and place needed to perform the labor or services involved in the petition; and
- the employment of the foreign workers in such labor or services will not adversely affect the wages and working conditions of workers in the United States similarly employed.
The Employment and Training Administration's Office of Foreign Labor Certification (OFLC) has responsibility for administering the Department's H-2A program, including reviewing applications and issuing temporary labor certifications. The Employment and Training Administration’s National Monitor Advocate, along with State Monitor Advocates, ensure that migrant and seasonal farmworkers, including H-2A nonimmigrant workers, can file complaints about wages and working conditions and that U.S. farmworkers are equitably served in the Employment Service. The Department's Wage and Hour Division has responsibility for investigating and enforcing obligations applicable to the employment of H-2A workers and workers in corresponding employment, including obligations to offer employment to eligible U.S. workers.
A state’s Employment Service helps businesses find and recruit workers, including agricultural workers. Agricultural employers might find workers through word-of-mouth, contacting previous workers, asking for help from the Employment Service and its Agricultural Recruitment System, or seeking to hire foreign workers through the H-2A program. All employers seeking to use the H-2A program must first recruit domestic workers through the state’s Employment Service, overseen by a state workforce agency and delivered in American Job Centers across the country. State Monitor Advocates ensure that migrant and seasonal farmworkers have equitable access to employment services and workforce protections.
The proposed rule would require employers to pay any updated Adverse Effects Wage Rates (AEWR) immediately upon publication of the new AEWR in the Federal Register, rather than up to 14 days after publication. This proposal will help to ensure workers are paid at least the updated AEWR for all work performed after publication of the updated AEWRs, and thereby help to ensure that the employment of H-2A workers will not adversely affect the wages and working conditions of workers in the U.S. similarly employed.
The proposed rule also creates new obligations and procedures in the event an employer must briefly delay the start of work due to unforeseen circumstances that jeopardize crops or commodities prior to the expiration of an additional recruitment period. The proposed § 655.175 limits minor delays to 14 calendar days or less and would require an employer to notify each worker and the State Workforce Agency of any delay in the start date of work. Consistent with the proposed changes to § 653.501(c), if the employer fails to provide adequate notice of the delay, the proposed rule includes new compensation obligations that would require the employer to pay workers the applicable wage rate for each day work is delayed, for a period of up to two weeks, starting with the certified start date.
The Department is proposing new disclosure requirements to enhance foreign worker recruitment chain transparency and bolster the Department’s capacity to protect vulnerable agricultural workers from exploitation and abuse. The proposed provisions would require employers and an employer’s attorney or agent to:
- Provide a copy of all agreements with any agent or recruiter that the employer engages or plans to engage in the recruitment of prospective H-2A workers, regardless of whether the agent or recruiter is located in the U.S. or abroad; and
- Disclose the identity (i.e., name and, if applicable, registration and license numbers) and geographic location of persons and entities hired by or working for the foreign labor recruiter and any of the agents or employees of those persons and entities who will recruit or solicit prospective H-2A workers.
The proposed rule also requires the employer provide the full name, date of birth, address, telephone number, and email address for the owner(s) of each employer, any person or entity who is an operator of the place(s) of employment, and any person who manages or supervises the H-2A workers and workers in corresponding employment under an H-2A application. These proposed disclosure requirements will increase transparency in the international recruitment chain and enhance the Department’s ability to better protect agricultural workers from abuse and exploitation in the U.S. and abroad.
Current regulations require the state Employment Service to stop helping a business recruit workers, or discontinue employment services, when, for example, businesses violate employment laws. The Department is proposing revisions to clarify and strengthen the bases and processes for state workforce agencies to discontinue recruitment services provided to employers through the Employment Service.
These proposed clarifications and enhancements are designed to empower state workforce agencies to discontinue services to employers, agents, farm labor contractors, joint employers, and successors in interest who have failed to meet their requirements.
The Department is also proposing to ensure that those debarred from the H-2A program cannot take advantage of it. Under this proposal, Employment Service staff must consult H-2A and H-2B debarment lists, and a centralized ETA Office of Workforce Investment discontinuation of services list, before placing a job order into intrastate or interstate clearance. These changes would require that state workforce agencies initiate discontinuation of services if the employer seeking placement of a clearance order is on a debarment list, and that state workforce agencies must not approve clearance orders whose services under the Employment Service have been discontinued by any state.
DOL proposes to add a seat belt requirement to reduce the hazards associated with the transportation of agricultural workers and make these jobs more attractive to workers in the United States. For vehicles that are required by Department of Transportation regulations to be manufactured with seat belts, the proposed rule would require the employer to retain and maintain those seat belts in good working order and ensure that each worker is wearing a seat belt before the vehicle is operated.
DOL proposes to add new provisions to ensure that employers do not interfere with workers’ efforts to advocate for better working conditions by including a number of requirements that would advance worker voice and empowerment. Specifically, DOL proposes expanding and clarifying the range of activities that would be protected by the anti-retaliation provisions to include: consulting with key service providers on matters related to the H-2A program; filing a complaint related to any applicable Federal, State, or local laws or regulations; and, for workers not already protected by the National Labor Relations Act (NLRA), engaging in self-organization or concerted activities. The NPRM also clarifies and expands the rights of workers to invite and accept guests (including labor organizations) to employer-furnished housing. Additionally, for workers not protected by the NLRA, the proposed rule would require employers to provide a list of workers to a requesting labor organization, permit workers to designate a representative to attend any meeting between a worker and the employer where the worker reasonably believes that the meeting may lead to discipline, and to refrain from captive audience meetings unless the employer provides certain information to ensure that such meeting is not coercive. The proposed rule would also create greater transparency for workers about their prospective employers’ views on the workers’ right to organize themselves freely and without interference by requiring employers applying for H-2A workers to attest that they will bargain in good faith over the terms of a proposed labor neutrality agreement with a requesting labor organization, or explain why they decline to do so.
DOL’s proposed rule would clarify that an employer terminates a worker “for cause” only when the worker either fails to meet productivity standards or fails to comply with employer policies or rules after the transparent application of a system of progressive discipline. DOL’s proposed rule would establish six criteria that must be satisfied to ensure that disciplinary and/or termination processes are justified and reasonable, including that the employee has been informed of, or reasonably should have known, the policy, rule, or productivity standard. These proposed changes would help to ensure employers do not arbitrarily and unjustly terminate workers “for cause,” thereby stripping workers of essential rights to which they would otherwise be entitled. The proposed changes also would assist the Department in determining whether an individual worker was terminated for pretextual reasons.
DOL’s proposal requires employers to disclose any minimum productivity standards they will impose as a condition of job retention, regardless of whether the employer pays on a piece rate or hourly basis. Additionally, where there is an applicable prevailing piece rate or where an employer intends to pay a piece rate or other non-hourly wage rate, the proposal would expressly require employers to include the non-hourly wage rate on the job order along with the highest hourly rate so that both rates are included in the job order and recruitment. Further, the NPRM clarifies that, if the employer offers overtime pay voluntarily or pursuant to Federal, State, or local laws, then the employer must disclose on the job order any applicable overtime premium wage rates and the conditions for such overtime payment.
DOL’s proposal expressly prohibits an employer from taking or confiscating workers’ travel documents, such as passport, visa, or other immigration or government identification documents, against the workers’ wishes. Even where the worker has voluntarily requested that the employer safeguard such documents, the worker must be able to readily access the document(s).
The Department invites the public to comment on this NPRM. The NPRM's 60-day comment period closes at 11:59 p.m. ET on November 14, 2023. Anyone who submits a comment (including duplicate comments) should understand and expect that the comment, including any personal information provided, will become a matter of public record and will be posted without change to www.regulations.gov.