§ 658.502 Notification to employers of intent to discontinue services. ( a ) Except as provided in paragraph (b) of this section, where the SWA determines that there is an applicable basis for discontinuation of services under § 658.501(a)(1) through (8), the SWA must notify the employer in writing that it intends to discontinue the provision of ES services in accordance with this section and must provide the reasons for proposing discontinuation of services. ( 1 ) Where the decision is based on § 658.501(a)(1), the SWA must specify the date the order was submitted, the job order involved, and the terms and conditions contrary to employment-related laws and the laws involved. The SWA must notify the employer in writing that all ES services will be terminated unless the employer within 20 working days: ( i ) Provides adequate evidence that the terms and conditions are not contrary to employment-related laws;
( ii ) Withdraws the terms and conditions and resubmits the job order in compliance with all employment-related laws; or
( iii ) If the job is no longer available, makes assurances that all future job orders submitted will be in compliance with all employment-related laws.
( 2 ) Where the decision is based on § 658.501(a)(2), the SWA must specify the date the order was submitted, the job order involved, the assurances involved, and explain how the employer refused to provide the assurances. The SWA must notify the employer that all ES services will be terminated unless the employer within 20 working days: ( i ) Resubmits the order with the required assurances; or
( ii ) If the job is no longer available, makes assurances that all future job orders submitted will contain all assurances required pursuant to the Agricultural Recruitment System for U.S. Workers at part 653, subpart F, of this chapter.
( 3 ) Where the decision is based on § 658.501(a)(3), the SWA must specify the terms and conditions the employer misrepresented or the assurances with which the employer did not fully comply, and explain how the employer misrepresented the terms or conditions or failed to comply with assurances on the job order. The SWA must notify the employer that all ES services will be terminated unless the employer within 20 working days: ( i ) Provides adequate evidence that terms and conditions of employment were not misrepresented;
( ii ) Provides adequate evidence that there was full compliance with the assurances made on the job orders; or
( iii ) Provides adequate evidence that it has resolved the misrepresentation of terms and conditions of employment or noncompliance with assurances and provides adequate assurance that specifications on future orders will accurately represent the terms and conditions of employment and that there will be full compliance with all job order assurances.
( 4 ) Where the decision is based on § 658.501(a)(4), the SWA must provide evidence of the final determination, including debarment. For final determinations, the SWA must specify the enforcement agency's findings of facts and conclusions of law as to the employment-related law violation(s). For final debarment orders, the SWA must specify the time period for which the employer is debarred from participating in one of the Department's foreign labor certification programs. The SWA must notify the employer that all ES services will be terminated unless the employer within 20 working days: ( i ) Provides adequate evidence that the enforcement agency's determination is not final because, for example, it has been stayed pending appeal, overturned, or reversed; or
( ii ) Provides adequate evidence that, as applicable: ( A ) The Department's debarment is no longer in effect; and
( B ) The employer has completed all required actions imposed by the enforcement agency as a consequence of the violation, including payment of any fines or restitution to remediate the violation; and
( iii ) Provides assurances that any policies, procedures, or conditions responsible for the violation have been corrected and the same or similar violations are not likely to occur in the future.
( 5 ) Where the decision is based on § 658.501(a)(5), the SWA must specify which ES regulation, as defined in § 651.10, the employer has violated and must provide basic facts to explain the violation. The SWA must notify the employer that all ES services will be terminated unless the employer within 20 working days: ( i ) Provides adequate evidence that the employer did not violate ES regulations; or
( ii ) Provides adequate evidence that appropriate restitution has been made or remedial action taken; and
( iii ) Provides assurances that any policies, procedures, or conditions responsible for the violation have been corrected and the same or similar violations are not likely to occur in the future.
( 6 ) Where the decision is based on § 658.501(a)(6), the SWA must indicate that the employer filed the job order pursuant to part 655, subpart B, of this chapter, and specify the name of each worker the SWA referred and the employer did not accept. The SWA must notify the employer that all ES services will be terminated unless the employer within 20 working days: ( i ) Provides adequate evidence that the workers were accepted; or
( ii ) Provides adequate evidence that the workers were not available to accept the job; or
( iii ) Provides adequate evidence that the workers were not qualified; or
( iv ) Provides adequate evidence that the workers were referred after the time period described in § 655.135(d) of this chapter elapsed; or
( v ) Provides adequate evidence that: ( A ) After refusal, the employer accepted the qualified workers referred; or
( B ) Appropriate restitution has been made or other remedial action taken; and
( vi ) Provides assurances that qualified workers referred in the future will be accepted or, if the time period described in § 655.135(d) of this chapter has lapsed, provides assurances that qualified workers referred on all future criteria clearance orders will be accepted.
( 7 ) Where the decision is based on § 658.501(a)(7), the SWA must explain how the employer did not cooperate in the field check. The SWA must notify the employer that all ES services will be terminated unless the employer within 20 working days: ( i ) Provides adequate evidence that it did cooperate; or
( ii ) Immediately cooperates in the conduct of field checks; and
( iii ) Provides assurances that it will cooperate in future field checks.
( 8 ) Where the decision is based on § 658.501(a)(8), the SWA must list and provide basic facts explaining the prior instances where the employer has repeatedly caused initiation of discontinuation proceedings. The SWA must notify the employer that all ES services will be terminated unless the employer within 20 working days provides adequate evidence that the SWA's initiation of discontinuation in prior proceedings was unfounded.
( b ) SWA officials must discontinue services immediately in accordance with § 658.503, without providing the notice described in this section, if an employer has met any of the bases for discontinuation of services under § 658.501(a) and, in the judgment of the State Administrator, exhaustion of the administrative procedures set forth in this section would cause substantial harm to workers.
[89 FR 34066, Apr. 29, 2024]