The Labor Department on Thursday issued new regulations for employing H-2A workers that tighten standards for housing and meals while clarifying that agricultural associations can be held liable for rules violations by individual farmers.
The 594-page rule, which scrapped a series of more sweeping changes proposed by the Trump administration, some of which were finalized in January 2020, also expands the ways that local prevailing wages are determined; farms are required to offer prevailing wages for jobs they want to fill with H-2A workers.
The new regulations, which take effect Nov. 14, “will strengthen protections for workers, modernize and simplify the H-2A application and temporary labor certification process, and ease regulatory burdens on employers,” the department says in the rule.
The department reiterates in the rule that it doesn’t have the legal authority to allow H-2A workers to be hired for year-round labor. H-2A workers are restricted to seasonal jobs. A House-passed bill that has stalled in the Senate, the Farm Workforce Modernization Act, would allow a limited number of H-2A visas for year-around positions.
"While the Department recognizes the workforce challenges encountered by various agricultural industries, it is limited by (law) to certifying H-2A applications for jobs of a temporary or seasonal nature,” the rule says.
The department says that violations of H-2A regulations have risen sharply over the past five years. In 2021, the department cited H-2A wage violations in 358 cases and collected $5.8 million in back pay for more than 7,000 workers.
The new housing regulations include requirements that rentals or public accommodations meet health and safety standards, including minimum square footage per occupants.
Meals would have to be provided in a timely and sanitary manner while providing adequate nutrition and calories. Free breakfasts provided by motels won’t count as one of the three required daily meals for H-2A workers unless the breakfasts are nutritionally adequate.
New requirements related to joint employment will “provide small employers who cannot offer full-time work for their H-2A employees with an opportunity to participate in the H-2A program and ensure each employer will be held jointly liable for compliance with all program requirements,” the rule says. But the department makes clear that agricultural associations that file joint H-2A applications for members can be held liable for violations by any of the farmers.
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"Holding an association accountable for employer-member violations when the association attested to joint employer status is consistent with (the Wage and Hour Divisions's) current statutory interpretation and its enforcement policy," the rule says.
The department says it is modernizing the way prevailing wages are calculated in part by allowing more entities, including state agencies and universities, to provide the data.
An advocacy group for ag workers, Farmworker Justice, said the regulations don’t “go far enough in making the structural reforms necessary to prevent the widespread abuse of domestic and H-2A farmworkers in the H-2A program.” But the group noted that the department intends to issue additional regulations addressing worker protections.
“Because this final rule is based on a proposal put forth by the previous administration, the range of permissible changes that DOL could make was limited. More will be needed to address the labor rights violations, human trafficking, and discrimination that plague the H-2A program,” the group said.
Sam Peak, an immigration policy specialist with Americans for Prosperity, said the new regulations will make the program harder for farmers to use.
Existing rules "allow the DOL to easily detect labor infractions that happen everywhere else," he said on his Twitter feed. As a result, farms that hire H-2A workers "are hyper-scrutinized," he said.
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