The Department of Labor is proposing to add additional layers of protection and more timely pay increases for foreign workers enrolled in the temporary H-2A visa program.
In a statement, Acting Labor Secretary Julie Su said the new proposed rule “would strengthen protections for H-2A farm workers who are particularly vulnerable to labor abuses, empower them to advocate for fair treatment and ensure that their employment does not depress labor standards and undercut domestic farm workers.”
Specifically, the rule attempts to add additional protections for worker “self-advocacy” by labor organizations and workers themselves. It also allows prospective employees to “organize freely and without interference by requiring employers seeking to hire H-2A workers to provide a certification to the Department of Labor that the employer will bargain in good faith” in a possible labor neutrality agreement, should a labor organization request to pursue one, or the employing operations would need to “explain why they will not do so.”
The rule also clarifies what DOL considers as termination “for cause” and establishes six conditions including a requirement for the employee to know the employer’s policy, rule or productivity standards after the employer applies a system of progressive discipline for any worker out of compliance.
Employers would be required to provide a copy of agreements with any agent or recruiter who works on their behalf to recruit prospective H-2A workers.
DOL also said the rule helps protect agricultural workers from “predatory practices during the recruitment process” that were identified by the Government Accountability Office and the department’s Office of Inspector General.
DOL is also proposing to allow new wage rates to be applicable immediately, rather than weeks later after publication in the Federal Register. Adverse Effect Wage Rates have risen significantly in recent years, sometimes with double-digit year-over-year increases, which ag employers argue has placed significant challenges on managing the higher payrolls without advance notice.
Kristi Boswell, who represents H-2A employers in her role as counsel at Alston & Bird, told Agri-Pulse this "predictable" wage proposal to remove the 14-day implementation window of new wage rates "will now require farmers to monitor the Federal Register multiple times a year to ensure that payroll is updated by potentially tens of thousands of dollars overnight."
If the start date is delayed without adequate notice to workers, the rule also requires employers to pay up to 14 days of delayed work.
The rule would also prohibit an employee from confiscating workers’ travel documents against the workers’ wishes and mandate seat belts on vehicles transporting H-2A workers to and from worksites.
DOL certified over 370,000 temporary H-2A jobs in FY 2022, more than seven times the number certified in 2005 and twice that of 2016, the agency said. DOL said in 420 investigations of employees utilizing the program last year, the department “assessed more than $3.6 million in back wages and more than $6.3 million in civil money penalties.”
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United Farm Workers President Teresa Romero said in a statement the UFW is “hopeful” that the proposed rule will help H-2A visa workers “stand up to employer retaliation, unsafe working conditions and illegal recruitment practices.”
UFW Foundation CEO Diana Tellefson Torres added the organization has “continuously called on DOL to use all its tools, including the rulemaking process, to protect H-2A guestworkers.”
Tellefson Torres said they “will be analyzing the proposed language and encouraging farm workers to lift up their voices during the comment period.”
Boswell said she expects the agricultural community to raise numerous concerns in public comments to push back on these proposals.
"The proposed rule contains very troublesome provisions for employers," she said. "In this proposal, the department extends its reach into employer/employee disciplinary processes and seems to be using the H-2A program as a method for labor organization. The proposal raises privacy concerns, includes punitive debarment standards, and increases the burden on farmers when they are already struggling to maneuver the bureaucratic program."
Once published in the Federal Register, DOL will allow for public comments for 60 days.
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