Investigating Farmworker Complaints Unit 5: Foreign Labor Certification (H-2A and H-2B) Issues

Unit Overview  Part A: Which laws and regulations apply to temporary foreign workers and (domestic workers in corresponding employment)  Part B: Most common H-2A and H- 2B related complaints  Part C: Investigating complaints where temporary foreign labor certifications have been granted

Part A: Which laws and regulations apply?

H2A  H-2A regulations (20 CFR 655, Subpart B) and the employer assurances cover domestic and foreign crop workers, sheepherders and other agricultural occupations.  All domestic workers are also covered by the Migrant and Seasonal Agricultural Worker Protection Act (MSPA).

Regulatory Requirements: Preferential Treatment ( (a))  No preferential treatment of H-2A workers over U.S. workers hired to do the SAME work..  The workers need to be treated the SAME.

Regulatory Requirements: Hiring & Dismissing US Workers (20 C.F.R. § (c) - (e))  Hiring U.S. workers: ER has continuing obligation to hire U.S. workers from the time of ETA’s acceptance of the application to when 50% of the contract period has elapsed.  Dismissing U.S. workers – 2 requirements: ER needs to have a lawful job-related reason, e.g, not qualified. ER needs to notify the state’s local job office of ALL rejections and terminations of U.S. workers.

H2B  Wage & Hour does not have jurisdiction to enforce H2B regulations. However, in some limited circumstances remedies may be available to H2B workers under the Fair Labor Standards Act, the Service Contract Act (SCA)(if applicable) and MSPA with respect to H-2B forestry workers.

Part B: Most common H-2A and H-2B related complaints

Discrimination against U.S. job applicants UUnreasonable job qualifications 20 CFR (c): “…occupational qualifications specified by an employer in a job offer shall be consistent with the normal and accepted qualifications required by non-H-2A employers in the same or comparable occupations and crops…”

Discrimination against U.S. job applicants (continued) MMore “hoops” (e.g., longer interviews) than for foreign applicants Employer actions that have a “chilling or otherwise negative effect on the recruitment, employment, and retention of U.S. workers,” 20 CFR (c)

Preferential treatment of foreign versus U.S. workers by employer 20 CFR (a): EEmployer “shall offer the U.S. workers no less than the same benefits, wages, and working conditions which the employer is offering, intends to offer, or will provide to H-2A workers.” ““…no job offer may impose on U.S. workers any restrictions or obligations which will not be imposed on the employer's H-2A workers.”

Preferential treatment of foreign workers by employer (continued)  Giving less work / fewer hours to U.S. workers  Dismissing U.S. workers for failing to meet unreasonable job standards

False (inflated) employment dates for temporary foreign workers  Cause workers to run out of work and quit or be laid off before “official” end date  “Early” job exit usually eliminates employers’ obligation to pay foreign workers’ return transportation and 3/4 pay guarantees

Other violations  Wage and hour violations: Shorting workers' hours Underpaying hourly wages or piece rates Not supplementing piece rate wages up to the prevailing wage rate or the Adverse Effect Wage Rate  Safety and health violations Use of pesticides without protective gear  Housing violations Overcrowding Charging worker for housing for profit

Intimidation of and retaliation against workers  Actions against workers who file complaints or workers’ compensation claims or who seek legal assistance  Deportation (threatened or actual) of foreign workers—if they are fired, their visas are no longer valid  Blacklist (prevents worker from being hired the next season)

Constraints on foreign workers RRecruiters usually charge the temporary foreign workers as well as the employers. WWorkers typically cannot earn enough in their home countries to pay the recruitment fees, so they borrow against their expected U.S. earnings. TThis debt causes serious financial hardship for any foreign worker who loses U.S. pay, return transportation, or U.S. re-employment the next season.

Violations of immigration law  Employers holding workers’ passports for “safekeeping” Keeps workers from leaving, even after their visas expire Banned by Victims of Trafficking and Violence Prevention Act (P.L , _386.pdf), Section _386.pdf  Lying to workers about their visa status

Part C: Investigating complaints from domestic and foreign workers covered by a temporary foreign labor certification

Roles:  ETA : Oversees pre-certification recruitment process (for H2A related orders) May apply remedies for pre-employment violations.  WH: Compliance Investigation for most post-hiring H2A related issues.  State Workforce Agency (SWA): Oversees recruitment process pre and post certification. Random Field Checks Resolve “apparent violations” & complaints

Pre-employment versus Post employment Issues  Complaints alleging contracts violations shall generally be referred by the local office to the Employment Standards Administration (ESA) for appropriate handling and resolution. Logistically, however, SWA staff may be in a better position to interview witnesses and conduct initial investigation, especially where a worker has been discharged.  If there are allegations from domestic workers that they were not hired by an H2A employer, these matters should be investigated by both ETA and the State Workforce Agency. ESA has no jurisdiction in pre-hiring case.

ESA Jurisdiction  The Employment Standards Administration - or ESA - addresses complaints by individuals who are employed by an H-2A employer.  Complaints can involve such matters as the payment of wages, transportation, and meals and housing during the period of employment.  ESA's jurisdiction applies to employers granted certification, whether or not the certification was used to hire temporary foreign workers. Workers not referred through the Job Service also are covered by the H-2A work contract and H-2A regulations. ESA jurisdiction extends to such workers as well.

How the process is the same as for non-H2A/H2B related complaints  Local One-Stop Career Center has the same 5-day deadline at 20 CFR (c) to investigate and resolve complaint or refer it to the State Workforce Agency or the appropriate enforcement agency or agencies.  Local One-Stop and State Workforce Agency staff must properly document complaints, investigative findings, and apparent violations.

How process is the same as for non-H2A/H2B complaints  Investigative steps are the same. Note that it IS possible, to follow up on complaints by foreign workers who have returned to their home countries (IF you obtained all of their contact information before they left the U.S.)

How process is different for foreign job order or worker complaints  Investigative techniques may need to account for some foreign workers’ greater fear of retaliation. Many foreign workers depend on continued U.S. employment to pay recruitment debt. Some geographically isolated foreign workers (e.g. forestry, sheepherders) depend on their employers for communication with the outside world.

Enforcement  State Workforce Agencies should forward copies of complaint documentation (findings, actions taken) to: Employment Standards Administration Farm Labor Specialist (29 CFR 501.2) ETA Regional Administrator (20 CFR )

DOL Enforcement IIf ETA or ESA (Employment Standards Administration) find “substantial violation(s)” of temporary foreign labor certification requirements by an employer, ETA can deny that employer’s future applications for temporary foreign labor, 20 CFR

SWA Enforcement: Discontinuation of Services SState agencies who find that an employer is refusing to hire domestic workers, discriminating against, or not complying with all terms conditions and assurances, shall initiate Discontinuation of Services pursuant to 20 CFR (a)and/or (b).

Private Rights of Action  Workers unhappy with SWA and DOL handling of their complaints are entitled to bring a lawsuit against their employer in state or federal court.

Resources  20 C.F.R. § et seq.  29 C.F.R. §§ – 22.  ETA – Application & Certification documentation, AEWR and meal allowance changes.