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U.S. Wage and Hour Division U.S. Department of Labor Wage and Hour Division Agricultural Enforcement: H-2A.

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Presentation on theme: "U.S. Wage and Hour Division U.S. Department of Labor Wage and Hour Division Agricultural Enforcement: H-2A."— Presentation transcript:

1 U.S. Wage and Hour Division U.S. Department of Labor Wage and Hour Division Agricultural Enforcement: H-2A

2 U.S. Wage and Hour Division Purpose of the H-2A Program The INA allows employers to import temporary, foreign agricultural workers by applying for certification that (A) there are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services involved in the petition, and (B) the employment of the alien in such labor or services will not adversely affect the wages and working conditions of workers in the United States similarly employed

3 U.S. Wage and Hour Division WHD Enforcement Authority The Secretary of Labor is authorized to take such actions, including imposing appropriate penalties and seeking appropriate injunctive relief and specific performance of contractual obligations, as may be necessary to assure employer compliance with terms and conditions of employment under this section.

4 U.S. Wage and Hour Division WHD Enforcement Responsibility Whether U.S. workers were offered employment Whether U.S. workers were laid off or displaced Payment of required wages and 3/4 guarantee Provision of transportation, housing, and meals Other obligations under the work contract

5 U.S. Wage and Hour Division WHD Enforcement Authority Conduct investigations, and when appropriate: Impose penalties Debar from future certification Recommend revocation of existing certification Seek injunctive relief and specific performance of contractual obligations

6 U.S. Wage and Hour Division WHD Enforcement Scope Workers covered under the H-2A regulations: H-2A visa holders Workers in corresponding employment

7 U.S. Wage and Hour Division Corresponding Employment The employment of workers who are not H-2A workers by an H-2A employer in any work included in the job order, or in any agricultural work performed by the H-2A workers The work must be performed during the validity period of the job order

8 U.S. Wage and Hour Division Offer of Employment to U.S. Workers Preferential Treatment Prohibited: Must offer U.S. workers terms and working conditions which are not less favorable than those offered to H-2A workers May not impose any restrictions or obligations on U.S. workers that will not also be imposed on H-2A workers

9 U.S. Wage and Hour Division Offer of Employment to U.S. Workers Positive Recruitment: Independently conduct DOL-specified recruitment activities and cooperate with the SWA by accepting referrals of eligible U.S. workers 50% Rule: Provide employment to any qualified, eligible U.S. worker who applies for the job opportunity until 50% of the period of the work contract has elapsed

10 U.S. Wage and Hour Division Layoff and Displacement of U.S. Workers No layoffs within 60 days of the date of need, except for lawful, job-related reasons If such a layoff has occurred, the employer must first offer the job opportunity to those laid-off U.S. workers before hiring any H-2A workers Applies to any similarly employed U.S. worker in the occupation that is the subject of the Application in the area of intended employment During the contract period, permissible only if all H-2A workers are laid off before any U.S. worker in corresponding employment

11 U.S. Wage and Hour Division Payment of Required Wages Highest of the following applicable rates in effect at the time work is performed: AEWR Prevailing wage Agreed-upon collective bargaining rate Federal or State minimum wage Wages may be calculated based on hourly or piece rates of pay

12 U.S. Wage and Hour Division ¾ Guarantee Guarantee to offer the worker employment for a total number of hours equal to at least ¾ of the workdays in the contract 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) and ends on the date the contract expires Does not apply to H-2A workers displaced due to referrals of U.S. workers after the employer’s date of need

13 U.S. Wage and Hour Division ¾ Guarantee Each workday must consist of a full number of hours of work time as specified in the job order Employers must maintain accurate records of hours offered and hours actually worked Failure to meet this provision would require the employer to supplement the worker’s pay to meet the ¾ guarantee

14 U.S. Wage and Hour Division Transportation Inbound: Provide or pay for transportation and daily meals to the place of employment or reimburse workers once 50% of the work contract period has elapsed Note: FLSA requirement for Federal Minimum Wage and reimbursement in first work week Outbound: Provide or pay for return transportation and daily meals upon completion of the work contract period Daily: Provide to/from camp/fields at no cost

15 U.S. Wage and Hour Division Transportation Must comply with all applicable laws and regulations, be properly insured, and be operated by licensed drivers Safety standards, driver licensing, and vehicle insurance found in MSPA serve as a minimum

16 U.S. Wage and Hour Division Housing Provided at no cost to H-2A workers and those workers in corresponding employment who are not reasonably able to return to their residence within the same day Inspected and approved by SWA prior to occupancy Maintained during occupancy to meet the appropriate OSHA or ETA standards Failure to provide compliant housing may result in revocation of an existing labor certification

17 U.S. Wage and Hour Division Housing Rental/Public Accommodations Must meet local standards Housing-related charges must be paid directly by the employer to the housing’s management If certified housing becomes unavailable, substitute housing must still be in compliance with the applicable housing standards

18 U.S. Wage and Hour Division Meals Provide three meals per day to each worker at no more than a DOL-specified cost OR Furnish free and convenient cooking and kitchen facilities

19 U.S. Wage and Hour Division Other Contractual Obligations Disclosure Provide a copy of the work contract to each worker No later than the time at which the H-2A worker applies for the visa No later than on the first day of work for workers in corresponding employment Must be in a language understood by the worker

20 U.S. Wage and Hour Division Other Contractual Obligations Deductions Specify in the work contract all deductions which are not required by law which will be made The amount of any deduction must be reasonable Same principles as used in FLSA The amount of the deduction cannot include any profit to the employer

21 U.S. Wage and Hour Division Other Contractual Obligations Deductions Certain deductions are specifically prohibited: Employer’s attorney fees, application fees, and recruitment costs Tools, supplies, and equipment required Housing Daily transportation to/from fields and employer- provided housing

22 U.S. Wage and Hour Division Other Contractual Obligations Deductions Undisclosed deductions are impermissible Deductions for expenses that are for the primary benefit of the employer may not bring an employee’s wages below the H-2A required wage rate Examples: visa fees, border crossing fees, and other government- mandated fees related to employment

23 U.S. Wage and Hour Division Other Contractual Obligations Notification Notify DOL (and DHS in the case of an H-2A worker) within two (2) working days regarding abandonment of employment or termination for cause Abandonment: Failure to report for work for five (5) consecutive working days without the consent of the employer Employers who provide timely notice are not obligated to meet the ¾ guarantee or provide return transportation for such workers

24 U.S. Wage and Hour Division Other Contractual Obligations Notice of Worker Rights Sets out the rights and protections of H-2A workers and workers in corresponding employment Poster may be obtained from the DOL Must be posted in English and in another language, as necessary Must be posted in a location where employees can readily see it

25 U.S. Wage and Hour Division Other Contractual Obligations Provide state workers’ compensation insurance or its equivalent at no cost to the worker Provide all tools, supplies, and equipment required to perform the assigned duties at no cost to the worker Maintain accurate records Furnish an hours and earnings statement to each worker each payday (which must be at least twice monthly)

26 U.S. Wage and Hour Division H-2A Labor Contractor Additional Assurances and Obligations Meet all the assurances and obligations of any other H-2A employer Provide FLC Certificate of Registration (if required) and identify FLC activities authorized to perform Attest that housing and transportation, provided or secured by the fixed-site employer, complies with the applicable standards

27 U.S. Wage and Hour Division H-2A Labor Contractor Bonding Requirement Obtain a surety bond in the appropriate amount Ensure it is written to cover liability incurred during the term of the period listed on the labor certification Must remain in force no less than 2 years from the expiration date of the labor certification Submit the original with the Application for labor certification

28 U.S. Wage and Hour Division H-2A Labor Contractor Bonding Requirement Number of Employees on the H-2A Labor Certification Amount of Required Surety Bond less than 25$5, $10, $20, $50,000 more than 100$75,000

29 U.S. Wage and Hour Division Civil Money Penalties ViolationMaximum Each violation of the work contract$1,500 Each willful violation of the work contract$5,000 Each act of discrimination$5,000 Failure to cooperate with WHD investigation$5,000 Layoff or displacement of a U.S. worker$15,000 Improper rejection of a U.S. worker$15,000 Housing or transportation safety/health violation that causes the death or injury of any worker $50,000 Repeat or willful housing or transportation safety/health violation that causes the death or injury of any worker $100,000

30 U.S. Wage and Hour Division Debarment Applicable to employers, successors in interest, agents, attorneys, associations, and members of associations Substantial violation of a term or condition of the labor certification with respect to H-2A workers, workers in corresponding employment, or U.S. workers improperly rejected, laid off, or displaced Up to 3 years from the date of the final agency decision

31 U.S. Wage and Hour Division Revocation Recommendation to ETA If WHD finds that the employer: Substantially violated a term or condition of the labor certification, Failed to cooperate with a DOL investigation, OR Failed to comply with one or more sanctions or remedies imposed by WHD

32 U.S. Wage and Hour Division Other Remedies Institute appropriate administrative proceedings Recovery of unpaid wages Make whole relief for any person who has suffered discrimination Reinstatement and make whole relief for any U.S. worker who has been improperly rejected, laid off, or displaced Petition any appropriate U.S. District Court for temporary or permanent injunctive relief or for an order directing specific performance of covered contractual obligations

33 U.S. Wage and Hour Division Additional Information Outreach materials, including fact sheets, workers’ rights cards, and posters, are available on the WHD website at Toll-free information and help line is available 8am-5pm in your time zone at US-WAGE ( )

34 U.S. Wage and Hour Division Disclaimer This presentation is intended as general information only and does not carry the force of legal opinion. The Department of Labor is providing this information as a public service. This information and related materials are presented to give the public access to information on Department of Labor programs. You should be aware that, while we try to keep the information timely and accurate, there will often be a delay between official publications of the materials and the modification of these pages. Therefore, we make no express or implied guarantees. The Federal Register and the Code of Federal Regulations remain the official source for regulatory information published by the Department of Labor. We will make every effort to keep this information current and to correct errors brought to our attention.

35 U.S. Wage and Hour Division Thank You


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