The H-2A Program, Updates, the Law & You - Bonus Content!

2/14/2012

Photo by Bob Ferguson.Bonus Content

The H-2A Program,
Updates, the Law & You

by Dorothy Noble

        The H-2A program allows agricultural employers who anticipate a shortage of domestic workers to the U.S. to perform temporary or seasonal agricultural labor or services. The employer must file an application stating that there are not sufficient able, willing and qualified U.S. workers available to perform this labor, and that the H-2A workers will not adversely affect the wages and working conditions of similarly employed U.S. workers. The U.S. Citizenship and Immigration Services (USCIS) must approve the employer's application. The Wage and Hour Division of the U.S. Department of Labor enforces the worker contracts.

        The regulations' extensive conditions include requirement of recruiting of U.S. workers; prohibition from hiring H-2A workers if U.S. workers were laid off within 60 days unless the U.S. workers rejected the job opportunity; certain wage rates such as the prevailing wage; and a written work contract specifying items such as the dates of employment, the crop to be worked and the absence of charges for supplies. In addition, the employer must provide no-cost housing and either meals or free cooking facilities, daily no cost transportation, plus reimburse workers for reasonable costs for both inbound and return transportation and subsistence. Records must also be kept.

        Labor contractors must be registered with the Department of Labor, fulfill the same obligations of an H-2A employer, provide proof of housing and transportation and be bonded.

        The Wage and Hour Division's website, www.wagehour.dol.gov, contains links to fact sheets and other information. The agency also maintains a toll-free helpline at 866-487-9243.

E-Verify
        Administered by the U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS) and the Social Security Administration, E-Verify is an electronic program through which an employer can verify whether an employee is authorized to work in the U.S. From the submitted information contained in a new hire's Form I-9, the agencies determine whether the data match government records.
The E-Verify website, www.dhs.gov/E-verify, directs employers to fact sheets on the Form I-9, usage information and other assistance including informational webinars. The toll-free number, 888-464-4218, also provides support.

        The federal E-Verify program is voluntary. However, Alabama, Arizona, Colorado, Florida, Georgia, Idaho, Indiana, Louisiana, Mississippi, Missouri, Nebraska, North Carolina, Oklahoma, South Carolina, Tennessee, Utah and Virginia require some form of E-Verify. The specific requirements vary by state. The National Conference of State Legislatures' website, www.ncsl.org, provides a history of the actions as well as the requirements.

Changes to the child labor regulations
        On August 31, 2011, the U.S. Department of Labor announced its proposal to strengthen the safety requirements for young workers employed in agriculture. The proposed rules were published in the Federal Register on September 2, 2011. Comments were received until December 1, 2011.

        The proposed changes to the child labor regulations include certain prohibitions on youth working with sexually mature animals, handling pesticides, timber operations, manure pits and tobacco production. The proposed regulations are age-specific; for instance farmworkers under 16 will be prohibited from operating almost all power-driven equipment. The proposal also establishes a new hazardous occupations order to prevent youths under 18 from employment in the storing, marketing and transporting of farm product raw materials, plus employment in grain elevators, grain bins, silos, feed lots, stockyards, and livestock exchanges and auctions.

        The Fair Labor Standards Act exempts youth employed on farms owned by their parents. However, the definition of the parental exemption in the new proposal is unclear.
Access to the proposed rule and fact sheets plus a comparison of the proposed rule with the current regulations can be found at www.dol.gov/whd/.

        At this writing, the Wage and Hour Division is analyzing the comments to the proposed rule, which numbered 10,000. The next step is the development of the final rule, which involves review by the Office of Management and Budget before the rule becomes final and an announcement is made.

The Migrant and Seasonal Worker Agricultural Worker Protection Act
        The Department of Labor establishes employment standards related to wages, housing, transportation, disclosures and record keeping. The Act also requires labor contractors to register.

        Fact sheet #49 summarizes the requirements and compliance procedures. It can be accessed at www.dol.gov/whd/regs/compliance/whdfs49.htm.





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