DEPARTMENT OF LABOR ADOPTS NEW H-2A WORKER PROGRAM RULES  

Introduction

On February 12, 2010 the U.S. Department of Labor (DOL) adopted its final rule (2010 Rule) governing the H-2A temporary agriculture alien worker program, including those at horse farms.  This rule went in to effect on March 15, 2010.

Unfortunately, these new regulations are likely to make the H-2A program more burdensome for employers to utilize. 

Background

On December 18, 2008, the Bush DOL adopted a final rule (2008 Rule) outlining new procedures for the administration of the H-2A program that went into effect January 17, 2009. 

On May 29, 2009, the Obama DOL suspended the Bush 2008 Rule to reexamine it and reinstated the rules that had previously governed the H-2A program.  This suspension was to last nine months after which the DOL would either propose new H-2A rules or reinstate the 2008 Rule.  However, on June 29, 2009, the U.S. District Court for the Middle District of North Carolina issued an injunction barring the DOL from suspending the 2008 Rule.

On September 4, 2009, the DOL published a proposed H-2A rule in the Federal Register (2009 Proposed Rule). 

The Obama DOL stated reason for embarking on a new rulemaking process was because they felt that the 2008 Rule “does not provide an adequate level of protection for either U.S. or Foreign workers.”

On October 20, 2009, the American Horse Council submitted comments to the DOL concerning the proposed H-2A rule those comments can be viewed here http://www.horsecouncil.org/regulations/Comments_H2A.php.

The 2009 Proposed Rule largely rolled back most of the provisions of the 2008 Rule that were intended to make the H-2A program more usable and efficient and added new and burdensome   requirements.

The 2010 Rule issued by the DOL on February 12, 2010, keeps unchanged most of the provisions of the 2009 Proposed Rule. The DOL did make a few changes in response to comments submitted by stakeholders including the AHC.

Major provisions of the 2010 Rule

Attestation-based process rescinded. The 2008 Rule created an “attestation” application process whereby an employer would attest, under threat of penalties, including fines, revocation of certification, and program debarment, that it had fully complied with all H-2A program requirements.  This was intended to expedite processing applications for the H-2A program.

The 2010 Rule abandons the attestation model.  The final rule requires a certifying officer (CO) to decide whether an adequate labor market test has been performed and other program requirements met prior to approving a labor certification application. 

Required pre-filing activity and advertising.  Like the 2008 Rule, the 2010 Rule would require H-2A employers to go through a recruitment process to ensure that there are no qualified American workers able and available for the temporary job involved before filing an application for Temporary Employment Certification.  The recruitment must include: submitting a job order with the State Workforce Agency (SWA) serving the area of intended employment and retained on file with the SWA until 50 percent of the work contract period is completed. Employers must also place at least two print advertisements one of which must be on a Sunday. 

Employers must contact former U.S. employees who were employed within the last year and  recruit in no more than three States currently designated as a State of traditional or expected labor supply for the intended job.  This process must begin well in advance of filing for a Temporary Employment Certification.

The 2010 Rule significantly does not require employers with “remote workplaces” to provide physical space or other assistance to interview U.S. workers in a place other than the worksite that is readily accessible as was originally required in the 2009 Proposed Rule.  Employers are now only required to interview potential workers by phone or at the worksite.

The 2010 Rule requires employers to maintain recruitment reports during the pre-filing recruitment period and file it with the application.   This report must include information regarding all recruitments sources, names of all U.S. workers who applied or were referred to the job, confirmation that former workers were contacted and an explanation for any workers who were not hired. This report has to be updated continuously through 50 percent of the contract work period.  A record of the recruitment report must be retained for 3 years.

Housing.  The 2010 Rule requires a request for inspection of housing be filed at the same time as the job order and the inspection must be completed prior to the issuance of a labor certification. This differs from the 2008 Rule which increased the amount of time SWA had to conduct required housing inspections.  The rule also requires employers to provide housing to workers in corresponding employment who are not reasonably able to return to their residence the same day.

Wages and the Adverse Effect Wage Rate (AEWR).  The 2010 Proposed Rule  requires H-2A workers and American workers in corresponding employment be paid a wage rate based on the AEWR, the prevailing hourly wage or piece rate, or the Federal or State minimum wage whichever is higher as did the 2008 Rule. 

However, the 2010 Rule alters the manner by which the AEWR is calculated.  The 2008 Rule required that the AEWR be based on published wage data for the occupation, skill level, and geographical area from the Bureau of Labor Statistics (BLS), Occupational Employment Statistics (OES) survey.  The 2010 Rule reverts to the previous method in place before the 2008 Rule and calculates the AEWR based on the United States Department of Agriculture Farm Labor Survey.

Worker verification.    The 2008 regulations required SWAs to verify the workers they refer to employers are U.S. citizens or legal residents authorized to work.  The 2010 Rule eliminates this requirement and places the burden back on employers to determine whether workers referred by the SWA are authorized workers.

Worker costs. Like the 2008 Rule employers are prohibited from passing along to workers any of the costs incurred as a result of participating in the H-2A program, including the cost of preparing and filing an application, attorney fees, and recruiting costs.  Furthermore, employers that utilize foreign recruiters must also contractually prohibit them from passing on such costs.

Travel cost. The 2010 Rule additionally requires the employers to reimburse H-2A workers for the cost of travel from their actual home (in their country of origin) to the location of the worksite.  The 2008 rule only required reimbursement cost for travel from the U.S. consulate to the location of the worksite.

Associations.  Like the 2008 Rule, the 2010 Rule allows associations to file master applications on behalf of their members and retains most of the guidelines for such applications that have been in place.  However, the 2010 Rule would limit such master applications to workers in two contiguous states.   This is a change from the proposed rule that would have limited master applications to a single state.

Penalties, Debarment, and Revocation.  The 2010 Rule imposes higher fines for program violations. The fine for each violation of a work order permit will increase from $1000 to $1,500.  Fines for willful failure to meet a condition of the work contract that results in displacement or discrimination against a U.S. worker would not exceed $15,000 an increase of $5,000.  Fines for housing violations or transportation safety and health standards causing serious injury or death would be increased from $25,000 per worker to $50,000.  The 2010 Rule also increases from $50,000 to $100,000 the fine for willful or repeat violations.

The 2010 Rule permits the DOL to seek revocation of a temporary labor certification only if it determines that certification was obtained due to fraud or misrepresentation. The proposed rule would have allowed the DOL to revoke a temporary labor certification for any reason if they determined it should not have been granted originally. 

Additionally, the 2010 Rule would permit revocation of a granted certification upon the finding of a substantial violation or any failure to cooperate in an investigation.

The 2010 Rule expands the circumstances in which the DOL can debar an employer, attorney, or agent from the H-2A program for a violation.  Specifically, debarment can result from just one program violation and several new reasons for debarment have been proposed including:  laying off or displacing U.S. workers or any non-H-2A workers in corresponding employment, employing a worker outside of the area of intended employment, in an activity or activities not listed in the job order, or outside the job order period and violations of the rule’s anti-fee shifting regulations and its anti-discrimination provisions. 

Status

The 2010 Rule will take effect on March 15, 2010.