# Presentation: 008365

## U.S. Department of LaborWage and Hour Division

**U.S. Department of Labor****Wage and Hour Division**

***Agricultural Enforcement: H-2A***

**U.S. Department of Labor**
**Wage and Hour Division**

## 	ENFORCEMENT OF CONTRACTUAL OBLIGATIONS FOR TEMPORARY ALIEN AGRICULTURAL WORKERS ADMITTED UNDER SECTION 218 OF THE IMMIGRATION AND NATIONALITY ACT

## Wage and Hour Scope

- Contractual Obligations include wages, benefits, and working conditions
- Housing
- Transportation
- 3⁄4 Guarantee

## Wage and Hour Scope

- Workers covered include:
- H-2A visa holders
- Qualified U.S. workers

## Wage and Hour Scope

- Offer of employment to qualified U.S. workers
- Begins no more than 75 calendar days and no fewer than 60 calendar days from date of need
- Ends 30 days after the first date the employer requires H-2A services or the last date of the employer’s need
- Employers who violate this provision are subject to a recommendation for debarment

## Wage and Hour Scope

**Corresponding employment** includes U.S. workers newly hired in the same occupations and during the period of time set forth in the job order for which the H-2A workers were sought
- Laid off/displaced U.S. workers
- Within 60 days before or after the date of need
- Only for lawful, job-related reasons
- Employers violating this provision are subject to penalties and recommendation for revocation or debarment
- Discrimination prohibited

## Rates of Pay

- Highest of any of these applicable rates:
- AEWR
- Prevailing Wage
- Federal Minimum Wage
- State Minimum Wage
- Rate is obtained from ETA NPC

## Housing

- Provided at no charge to those employees who are not reasonably able to return to their permanent residence at the end of the work day
- Inspected and approved by SWA before occupancy
- If not inspected, housing must still meet applicable safety standards prior to occupancy
- Maintained during occupancy to meet the appropriate OSHA or ETA standard
- Rental accommodations must meet applicable local standards

## Transportation

- Provided daily to/from camp/fields at no charge to workers in employer-provided housing
- Must comply with all applicable Federal, State, or local laws and regulations
- USDOT safety standards, including the Federal Motor Carrier Safety Regulation, apply to commercial motor vehicles
- When more protective standards do not apply, safety standards found in MSPA serve as a minimum

## Transportationand Subsistence Costs

- Inbound
- If not advanced or provided by the employer, must be paid by the employer once the worker completes 50 percent of the work contract period (H-2A requirement)
- Outbound
- If the worker completes the work contract period, must be provided or paid for by the employer

## Labor Contractors: H-2ALCs

- Person who does not otherwise qualify as a fixed-site employer or an agricultural association (or an employee of a fixed-site employer or agricultural association)
- Engages in recruiting, soliciting, hiring, employing, furnishing, housing, or transporting
- Similar to, but distinguishable from, FLC

## Labor Contractors: H-2ALCsBonding Requirements

- $5,000 for less than 25 employees
- $10,000 for 25 to 49 employees
- $20,000 for more than 50 employees
- See 29 CFR 501.8 for more information

## Labor Contractors: H-2ALCsAdditional Assurances and Obligations

- Maintain place of business (physical location) in the U.S. and a means by which it may be contacted for employment
- Provide FLC Certificate of Registration (if required) and identify FLC activities authorized to perform
- List name and location of each fixed-site employer to which the H-2ALC expects to provide H-2A workers, beginning/ending dates, and description of the crops and activities

## Labor Contractors: H-2ALCsAdditional Assurances and Obligations

- Conduct separate positive recruitment for each area of intended employment
- Provide workers’ compensation insurance under State law or otherwise
- Attest that housing and transportation complies with applicable standards
- If employer-provided or secured, the H-2ALC must obtain a written statement that such housing and/or transportation complies with applicable standards

## 3⁄4 Guarantee

- Employers must guarantee to offer the worker employment for a total number of hours equal to at least 3⁄4 of the workdays in the contract period
- Guarantee period:
- Begins on the first workday after the worker arrives at the place of employment (or the contractual first date of need, whichever is later)
- Ends on the date the contract expires (including contract extensions)
- Failure to meet this provision would require  employer to supplement workers’ pay to meet
- 	the 3⁄4 guarantee

## 3⁄4 Guarantee

- Employers must maintain accurate records of hours offered
- Does not apply to H-2A workers displaced due to referrals of U.S. workers after the employer’s date of need

## Records

- Wage statements must include:
- Total earnings for the pay period
- Hours offered
- Hours actually worked
- Hourly rate and/or piece rate of pay (including units produced daily for piece rate)
- All deductions made and the reasons for doing so
- Must be retained for no less than three years after the completion of the work contract
- Must be made available for inspection and transcription by an authorized representative of the Secretary

## Termination

- Termination for cause, failure to report for employment at the beginning of the contract period, or voluntary abandonment (failure to show up for work for five consecutive days)
- Must notify DHS and DOL not later than _two_ working days from termination or abandonment
- Employers are prohibited from hiring H-2A workers if the employer laid off U.S. workers 60 days before or after the date of need

## Civil Money Penalties (CMPs)

- $1,000 penalty for most violations remains unchanged
- $5,000 penalty for willful failure to meet a covered condition of the work contract
- $5,000 penalty for willful discrimination

## Civil Money Penalties (CMPs)

- $25,000 for death or serious injury relating to housing or transportation
- $50,000 for death or serious injury if repeat or willful
- $100,000 if due to employer failure to remedy violative conditions

## Debarment and Revocation

- WHD recommendation to ETA
- Substantially violated material terms or conditions
- ETA will now have authority to revoke certification
- WHD can also make a revocation recommendation to ETA

## Changes to 29 CFR 780

- Christmas trees under FLSA “agriculture”
- Trees produced through the **application of extensive agricultural or horticultural techniques** to be harvested and sold for **seasonal ornamental use** as Christmas trees **are considered to be agricultural or horticultural commodities**.

## Changes to 29 CFR 780

- Trees to be used as Christmas trees which are **gathered in the wild**, such as from forests or uncultivated land and not produced through the application of agricultural or horticultural techniques are **not agricultural or horticultural commodities** for purposes of sec. 3(f).

## Changes to 29 CFR 788

- FLSA 13(b)(28) provides an exemption from **an exemption from minimum wage and overtime **to * * * any employee employed in planting or tending trees, cruising, surveying, or felling timber, or **in preparing** or transporting logs or **other forestry products** to the mill, processing plant, railroad, or other transportation terminal, **if the number of employees **employed by his employer** in such forestry or lumbering operations does not exceed eight**.

## Changes to 29 CFR 788

- 788.10 Preparing other forestry products
- Christmas trees are only included where they are gathered in the wild from forests or from uncultivated land and not produced through the application of extensive agricultural or horticultural techniques.