U.S. Department of Labor finalizes new H-2A rules
The U.S. Department of Labor (DOL) issued new rules for hiring H-2A workers, tightening housing and food standards to better protect agricultural workers. The new rules also update the H-2A application and temporary labor certification process. The final rule was published in the Federal Register on Oct. 12. and will become effective on Nov. 14.
“The department reiterates in the rule that it does not have the legal authority to allow H-2A workers to be hired for year-round labor,” says National Cattlemen’s Beef Association Executive Director of Governmental Affairs Allison Rivera. “H-2A workers are restricted to seasonal jobs.”
“The H-2A program allows employers to address temporary labor needs by employing foreign agricultural workers when there are not sufficient workers who are able, willing, qualified and available, and when doing so, will not adversely affect the wages and working conditions of workers similarly employed in the U.S.,” according to the DOL.
Final rule details
There has been an increase in wage violations of H-2A regulations over the past five years, according to the DOL.
“In 2021, the Wage and Hour Division found H-2A violations in 358 cases and collected more than $5.8 million in back wages for more than 7,000 workers,” the DOL continues.
“By improving H-2A program regulations, we are strengthening worker protections and meeting our core mission,” says Secretary of Labor Marty Walsh. “This new rule makes several improvements to enhance the integrity of the H-2A program and provide employers and other stakeholders greater clarity.”
According to the DOL, “The new rule includes the following important elements: improves safety and health protections for workers housed in rental or public accommodations; streamlines and updates bond requirements for labor contractors to better hold them accountable and clarifies joint-employer status for employers and associations; clarifies the housing certification process to allow state and local authorities to conduct housing inspections; establishes explicit authority to debar attorneys and agents for their misconduct, independent of an employer’s violations; makes electronic filing mandatory for most applications to improve employers’ processing efficiency; and modernizes the methodology and procedures for determining the prevailing wage to allow state workforce agencies to produce more prevailing wage findings.”
The final rule revolves around housing, meals, wages and association liability, says Rivera.
“Meals must meet certain nutritional standards and must be delivered in a timely way,” she says.
According to the final rule, “Rental and/or public accommodations secured to house workers must meet applicable local, state or federal standards addressing certain health or safety concerns, and requires employers to submit written documentation that such housing meets applicable standards and contains enough bed(s) and room(s) to accommodate all workers requested. These provisions are intended to better protect the health and safety of workers without imposing an undue burden on employers.”
The department is also updating the way prevailing wages are calculated, says Rivera.
They will be “allowing more entities, including state agencies and universities, to provide the data,” she says.
The final rule will clarify association liability as well.
The final rule “clarifies the definitions of ‘employer’ and ‘joint employment,’ and the use of these terms in the filing of Applications for Temporary Employment Certification, and the responsibilities of joint employers. Employers that file as joint employers are treated as such as a matter of law for purposes of compliance and enforcement.”
“In addition,” the rule continues, “employers that do not file applications, but nonetheless jointly employ workers under the common law of agency, are responsible as joint employers. These provisions are intended to enhance worker protections by providing greater clarity regarding the responsibilities of joint employers, consistent with the statute and the department’s current policy and practice.”
Kaitlyn Root is an editor for the Wyoming Livestock Roundup. Send comments on this article to roundup@wylr.net.
