The Labor Department has finalized a series of new protections for H-2A employees, including a right to participate in advocacy efforts over working conditions and restrictions on when workers can be fired for cause.
A final rule announced Friday and quickly denounced by the National Council of Agricultural Employers also imposes new disclosure requirements for foreign worker recruitment, including a mandate that farms disclose their agreements with recruiting agencies.
Other new regulations include a seat-belt requirement for vehicles that are transporting workers and a prohibition on workers confiscating workers’ passports.
The rule doesn’t require farms to recognize labor unions, but says employers cannot “intimidate, threaten, or otherwise discriminate against certain workers or others for engaging in ‘activities related to self-organization.’”
The new regulations “will help prevent exploitation and abuse of agricultural workers and ensure that unscrupulous employers do not financially gain from their violations or contribute to economic and workforce instability by circumventing the law, both of which would adversely affect the wages and working conditions” of domestic workers, the 600-page rule says.
Farms are increasingly relying on H-2A visa holders to fill labor needs, even though the workers are limited to seasonal jobs.
Michael Marsh, president and CEO of the National Council of Agricultural Employers, said the rule was "offensive," "developed in bad faith," and designed as an "end run" around a 2021 Supreme Court decision that struck down California regulations requiring farms to provide access to labor union representatives
The Labor Department rule "should never have been allowed to see the light of day. To suggest this regulation somehow protects farmworkers is a bad joke and its punchline is its lasting damage to farmworkers and the American farm and ranch families who employ them,” Marsh said in a press release.
Under the rule, workers will be ensured that they can consult with legal service providers and meet with them or labor union representatives, in employer-provided housing. Workers also can refuse to take part in meetings intended to discourage them from participating in advocacy efforts or joining unions.
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The rule imposes a series of restrictions on terminating workers for cause, including a requirement that an H-2A employee be paid for three-fourths of the hours offered in the contract until the worker leaves. The rule lays out five criteria that are needed to justify terminating a worker. Except for “egregious misconduct,” workers can’t be fired unless they had been informed of policies and rules they violated or performance expectations they didn’t meet.
According to the department, a farm can only fire a worker for cause "when the worker either fails to comply with employer policies or fails to perform job duties satisfactorily after, in most cases, the transparent application of a system of progressive discipline.”
The rule takes effect June 28, but H-2A applications filed before Aug. 28 will be processed under the current regulations.
“H-2A workers too frequently face abusive working conditions that undercut all farmworkers in the U.S.,” Acting Labor Secretary Julie Su said in a press release. “This rule ensures farmworkers employed through the H-2A program are treated fairly, have a voice in their workplace and are able to perform their work safely. It also promotes employer accountability, benefitting all farmworkers by upholding labor standards.”
Teresa Romero, president of the United Farm Workers, welcomed the new regulations.
"With these new rules, the power of the federal government has sided with farm workers—both those who are born here and those from other countries—who for too long have been exploited, silenced, displaced or harmed by the H-2A program," she said.
The department received 12,928 public comments on the regulations after they were proposed last year.
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