The U.S. Department of Labor recently published its Final Rule, “Improving Protections for Workers in Temporary Agricultural Employment in the United States.” The Department of Labor first announced proposed regulatory changes to the H-2A program through a Notice of Proposed Rule Making (NPRM), with the goal of enhancing protections for H-2A workers. The NPRM was issued in September 2023, followed by a 60-day public comment period. Many organizations, including the American Immigration Lawyers Association (AILA), submitted robust comments in response to the NPRM.

The final rule, published April 29, 2024, will become effective on June 28, 2024, which is 60 days after publication in the Federal Register. Form changes on the government filings related to the Final Rule will be rolled out for applications submitted to DOL on or after August 29, 2024.

Harris Beach PLLC is providing a summary of the most notable provisions of this Final Rule. This is, however, not an exhaustive list and there are a number of other provisions and procedural changes in the actual rule. The Department of Labor has published an FAQ on the regulatory changes with more information.

Terminations for Cause

Proposed Rule: New restrictions on employers’ ability to terminate workers, including the imposition of a mandatory progressive disciplinary scheme and procedural safeguards for workers.

Final Rule: This provision was adopted in the Final Rule with minor changes. In response to comments, DOL provided additional clarification and context on its regulatory definitions and scope of the provisions.

Workers employed under the H-2A program have the right to payment for three-fourths of the hours offered in the work contract, even if the work ends early; housing and transportation until the worker leaves; payment for outbound transportation; and, if the worker is a U.S. worker, to be contacted for employment in the next year, unless they are terminated for cause. The Rule clarifies that an employer may only terminate a worker “for cause” when the employer demonstrates the worker has failed to comply with employer policies or rules or to satisfactorily perform job duties. Additionally, a worker is only terminated “for cause” after the transparent application of a system of progressive discipline, unless the worker has engaged in egregious misconduct. The rule establishes five conditions that must be satisfied to ensure disciplinary and/or termination processes are justified and reasonable. Those five conditions are:

  1. The worker has been informed, in a language understood by the worker, of the policy, rule or performance expectation.
  2. Compliance with the policy, rule, or performance expectation is within the worker’s control.
  3. The policy, rule, or performance expectation is reasonable and applied consistently to the employer’s H-2A workers and workers in corresponding employment under the H-2A program.
  4. The employer undertakes a fair and objective investigation into the job performance or misconduct.
  5. The employer corrects the worker’s performance or behavior using progressive discipline, unless the worker has engaged in egregious misconduct.

Anti-Blacklisting / Retaliation

Proposed Rule: Strengthened protections against blacklisting and retaliation by employers against workers who exercise their rights or raise concerns about their wages or working conditions.

Final Rule: This provision was adopted in the Final Rule with only minor technical changes.

Housing Access

Proposed Rule: Requirement for employers to give labor organizations (e.g., union groups, farmworker advocates, etc.) access to worker housing and expand farmworkers’ right to invite social guests into the housing property.

Final Rule: This provision was NOT adopted in the Final Rule. In response to stakeholder concerns, DOL eliminated the housing access provision and simply noted that workers may invite guests to housing, subject to reasonable employer restrictions.

Management Disclosure

Proposed Rule: Mandatory public disclosure of the names and contact information for all farm owners/shareholders, operators, managers, and supervisors or crew leaders who supervise farmworkers’ work activities.

Final Rule: This provision was adopted in the Final Rule with minor changes. In response to comments, DOL clarified that ownership disclosure is limited to persons or entities with a controlling operational role in the business. These additional disclosures are aimed at providing a more accurate and detailed understanding of the scope and structure of the employer’s agricultural operation and will enhance the Department’s investigative and enforcement capabilities by helping the Department identify, investigate, and pursue remedies from program violators; ensure that sanctions such as debarment or civil money penalties are appropriately assessed and applied to responsible entities, including individuals and successors in interest when appropriate; and determine whether an H-2A employer under investigation has been previously investigated under a different name.

Recruiter Disclosure

Proposed Rule: Mandatory public disclosure of the names and contact information for any person or entity involved in recruiting foreign workers.

Final Rule: This provision was adopted in the Final Rule. Similar to the current requirements in the H-2B program, the new provisions will require employers and the employer’s attorney or agent to:

  • Provide a copy of all agreements with any agent or recruiter that the employer engages or plans to engage in the recruitment of prospective H-2A workers, regardless of whether the agent or recruiter is located in the U.S. or abroad; and
  • Disclose the identity (i.e., name and, if applicable, registration and license numbers) and geographic location of persons and entities hired by, or working for, the foreign labor recruiter and any of the agents or employees of those persons and entities who will recruit or solicit prospective H-2A workers.

The DOL will gather this additional recruitment chain information when the employer files an H-2A application. The employer must continue to keep the information up to date until the end of the work contract period, and must make the updated information available in the event of a post-certification audit, or upon request by the DOL. As in the H-2B program, the labor department will publish this information in a public recruiter list but will not disclose contracts between agents/foreign labor recruiters and employers unless required by law.

Worker Disclosure

Proposed Rule: Mandatory disclosure of the names and contact information for all farmworkers to any labor organization that requests such information.

Final Rule: The provision was NOT adopted in the Final Rule. DOL agreed with stakeholder comments regarding privacy concerns and potential disclosure to unauthorized third-parties.

AEWR Effective Date

Proposed Rule: Abolition of the notice period for changes to the Adverse Effect Wage Rate (AEWR). New AEWRs become effective immediately upon publication.

Final Rule: This provision was adopted in the Final Rule, with the exception that employers may choose to adjust the rate in the next pay period and simply offer backpay to workers from the effective date.

Productivity Standards and Pay

Proposed Rule: Requires express disclosure of a specific, quantifiable productivity standard (e.g., “X units per hour”) imposed on workers as a condition of job retention. Employers may not terminate workers for “qualitative” performance issues.

Final Rule: The productivity standard requirement was adopted in the Final Rule. In response to stakeholder comments, DOL clarified that employers may still use qualitative criteria to evaluate worker performance, and terminate workers who fail to perform to employer’s reasonable expectations.

Additionally, where there is an applicable prevailing piece rate or where an employer intends to pay a piece rate or other non-hourly wage rate, the Farmworker Protection Rule expressly requires employers to include the non-hourly wage rate on the job order, along with the highest hourly rate, so that both rates are included in the recruitment disclosures and job order. The Farmworker Protection Rule also clarifies that, if the employer offers overtime pay voluntarily or pursuant to federal, state, or local laws, then the employer must disclose on the job order any applicable overtime premium wage rates and the conditions for such overtime payment.

Worker Empowerment

Proposed Rule: Adopts numerous protections related to concerted activity, worker self-organization, and unionization activities.

Final Rule: This provision was adopted in the Final Rule with minor changes. DOL modified the provision restricting employers from engaging in coercive speech to avoid interfering with employers’ First Amendment free speech rights.

The Rule expands existing provisions and adds new protections to better empower workers to advocate on behalf of themselves and their coworkers regarding working conditions. These protections are designed to help fulfill DOL’s obligation to ensure the H-2A program does not have an adverse effect on the working conditions of similarly employed workers in the United States Specifically, DOL is expanding and clarifying the range of activities protected by the anti-retaliation provisions to include: consulting with key service providers; filing a complaint related to any applicable federal, state, or local law or regulation; and, for workers not protected by the National Labor Relations Act (NLRA), engaging in self-organization or certain other concerted activities and leaving or declining to attend employer-sponsored “captive audience” meetings. The Rule also provides that workers are permitted to invite and accept guests, including friends and family, key service providers, labor organizations and others, to employer-furnished housing. Additionally, for workers not protected by the NLRA, the rule requires employers to permit workers to designate a representative to attend certain meetings where an employer seeks to gather information which may result in discipline.

Withholding Worker Travel Documents

Consistent with existing laws prohibiting passport confiscation, the Rule clarifies and expressly prohibits an employer from taking or confiscating workers’ travel documents, such as passport, visa, or other immigration or government identification documents, against the workers’ wishes. Even where the worker has voluntarily requested that the employer safeguard such documents, the worker must be able to readily access the documents.

Disclosure of material terms and conditions of employment

The Rule requires employers to disclose any minimum productivity standards that are a condition of job retention, regardless of whether the employer pays on a piece rate or hourly basis. Additionally, where there is an applicable prevailing piece rate, or where an employer intends to pay a piece rate or other non-hourly wage rate, the Farmworker Protection Rule expressly requires employers to include the non-hourly wage rate on the job order, along with the highest hourly rate, so that both rates are included in the recruitment disclosures and job order. The Farmworker Protection Rule also clarifies that, if the employer offers overtime pay voluntarily or pursuant to federal, state, or local laws, then the employer must disclose on the job order any applicable overtime premium wage rates and the conditions for such overtime payment.

Transportation

The Rule includes a seat belt requirement to reduce the hazards associated with the transportation of agricultural workers. For vehicles that are required by Department of Transportation regulations to be manufactured with seat belts, the Farmworker Protection Rule requires the employer to retain and maintain those seat belts in good working order and prohibits operation of a vehicle unless each worker is wearing a seat belt.

Harris Beach PLLC maintains one of the largest temporary and seasonal visa practices in the country. L.J. D’Arrigo, co-leader of the firm’s Immigration Practice Group, and Jarrod M. Sharp, Sr. Counsel, are nationally recognized for processing seasonal visas. Our immigration attorneys provide guidance to some of the largest employers in the U.S. across industry sectors, including agriculture, manufacturing, hospitality, construction, landscaping, equine, and others. We facilitate the processing of more than 10,000 temporary workers through the H-2B and H-2A programs each season. We also have been successful in developing long-term permanent labor solutions for our clients.

Harris Beach attorneys guide employers through every step of the H-2 journey, developing successful strategies and ensuring that your business remains in compliance with the complex maze of government regulations. Contact our H-2 visa team today at H2@harrisbeach.com.

This alert is not a substitute for advice of counsel on specific legal issues.

Harris Beach has offices throughout New York state, including Albany, Buffalo, Ithaca, Long Island, New York City, Rochester, Saratoga Springs, Syracuse and White Plains, as well as Washington D.C., New Haven, Connecticut and Newark, New Jersey.