Employing H-2A Workers in Kentucky Laura Powers Extension Specialist, Tobacco Labor Education and Financial Management Last updated: March 4, 2008

Outline Overview of H-2A Program Overview of H-2A Program Part I. Before employment can begin Part I. Before employment can begin Part II. During employment Part II. During employment Part III. After employment Part III. After employment Part IV. Government resources Part IV. Government resources –Only if the farmer is applying for H-2A workers themselves.

Overview of H-2A Program Must hire all eligible and able U.S. workers through the 50% of the job contract period. Must hire all eligible and able U.S. workers through the 50% of the job contract period. Must show that there are not enough eligible and able U.S. workers Must show that there are not enough eligible and able U.S. workers –Completed through newspaper and radio job advertisements U.S. and H-2A workers must be given the same benefits U.S. and H-2A workers must be given the same benefits Advanced planning is very important for getting workers on time. The process should begin 75 days before the workers are needed. Advanced planning is very important for getting workers on time. The process should begin 75 days before the workers are needed.

Part I. Before employment: Who can request H-2A workers? A farmer can apply for H-2A workers themselves or have an agent apply for them A farmer can apply for H-2A workers themselves or have an agent apply for them If using an agent, they MUST be a certified Farm Labor Contractor (FLC). If using an agent, they MUST be a certified Farm Labor Contractor (FLC). –Some FLC’s provide this service at cost, and some will charge a fee –There are at least 11 FLC’s in Kentucky. Click here for a list. Click here for a listClick here for a list

Part I. Before employment: Who can request H-2A workers? Employers must become certified through the National Processing Center and State Workers’ Association (addresses are at end of presentation) Employers must become certified through the National Processing Center and State Workers’ Association (addresses are at end of presentation) –Forms and instructions can be found at: Through the certification process, must show that not enough qualified and eligible U.S. workers are available. Through the certification process, must show that not enough qualified and eligible U.S. workers are available. If you have hired a FLC, they be your primary contact for becoming certified. They will handle the paperwork. If you have hired a FLC, they be your primary contact for becoming certified. They will handle the paperwork.

Part I. Before employment: Job Requirements for H-2A Job must be seasonal or temporary in length (no more than 10 months) Job must be seasonal or temporary in length (no more than 10 months) Employer must guarantee ¾ of the workdays in the contract. Known as the “Three-Fourths Rule”. Employer must guarantee ¾ of the workdays in the contract. Known as the “Three-Fourths Rule”. The job will pay at least the greater of the following: The job will pay at least the greater of the following: –Minimum wage ($5.85/hour) –Adverse Effect Wage Rate (AEWR, $9.13 in Kentucky for 2008) –Prevailing wage rate in the area.

Part II. During Employment: Record Keeping Provide the job contract to each worker by the first workday. Provide the job contract to each worker by the first workday. Maintain records of hours worked and total hours offered for work. Maintain records of hours worked and total hours offered for work. Maintain accurate and required payroll records Maintain accurate and required payroll records Pay correct wages in a timely fashion (at least two times per month) Pay correct wages in a timely fashion (at least two times per month)

Part II. During Employment: Record Keeping: Taxes Income, Medicare and Social Security taxes are not withheld on H-2A workers Income, Medicare and Social Security taxes are not withheld on H-2A workers Some Kentucky Counties require that local tax is withheld Some Kentucky Counties require that local tax is withheld Federal Unemployment Taxes (FUTA) are not withheld on H-2A workers Federal Unemployment Taxes (FUTA) are not withheld on H-2A workers –However, the wages paid to H-2A workers are including in the calculation to determine the farmer’s FUTA liability. For Kentucky’s Employers Guide to Unemployment Insurance, click here. For Kentucky’s Employers Guide to Unemployment Insurance, click here. For Kentucky’s Employers Guide to Unemployment Insurance, click here For Kentucky’s Employers Guide to Unemployment Insurance, click here Submission of 1099-MISC Submission of 1099-MISC

Part II. During Employment: Record Keeping: Pay Include a wage statement to each worker with the paycheck, including: Include a wage statement to each worker with the paycheck, including: –The basis on which the worker is paid (hourly or piece- rate) If piece-rate, the number of piece-rate units earned If piece-rate, the number of piece-rate units earned If piece-rate, must average to be at least the minimum required hourly pay If piece-rate, must average to be at least the minimum required hourly pay –Number of hours worked and total number of hours offered to work –Total pay period earnings –Specific amounts withheld and the purpose of each –Net pay Wage statement should be signed by worker. Wage statement should be signed by worker.

Part II. During Employment: Housing Must be provided free of charge to all workers (H- 2A and U.S.) under the contact. Must be provided free of charge to all workers (H- 2A and U.S.) under the contact. Must remain in compliance with applicable safety and health standards. Must remain in compliance with applicable safety and health standards. –For a printable copy of the OSHA standards, click here –Non-compliance fines are levied on a per worker basis and multiplied by total number of workers A written statement of the terms and conditions of occupancy must be posted at the housing site. A written statement of the terms and conditions of occupancy must be posted at the housing site. If water is from a well, cistern or spring, it must be tested annually. If water is from a well, cistern or spring, it must be tested annually.

Part II. During Employment: Transportation After 50% of the contracted work is completed, the employer must repay the cost of transportation and daily subsistence pay to the farm from where H-2a worker was recruited from. After 50% of the contracted work is completed, the employer must repay the cost of transportation and daily subsistence pay to the farm from where H-2a worker was recruited from. Must provide transportation from the housing to the work site at no cost for those workers whose housing is also provided for by the employer. Must provide transportation from the housing to the work site at no cost for those workers whose housing is also provided for by the employer. Must pay for transportation for the worker’s return “to the place from which he came” at the end of the contract period. This is usually his or her home. Must pay for transportation for the worker’s return “to the place from which he came” at the end of the contract period. This is usually his or her home. Vehicles used for transportation must meet applicable laws and regulations. Vehicles used for transportation must meet applicable laws and regulations. KY law does not require that H-2a workers have a KY Driver’s license. However, your insurance company may. KY law does not require that H-2a workers have a KY Driver’s license. However, your insurance company may.

Part II. During Employment: Meals Must provide three meals per day or provide at no cost to the worker, centralized, reasonably-equipped kitchen facilities where workers can prepare their own meals. Must provide three meals per day or provide at no cost to the worker, centralized, reasonably-equipped kitchen facilities where workers can prepare their own meals. Employer can charge a fee if three meals a day are provided (and costs are documented). Employer can charge a fee if three meals a day are provided (and costs are documented). –The fee can be no more than $9.90 per day, without receipts and no more than $39 per day with receipts –This charge must be listed in the job contract given to the workers at the recruitment point. Subsistence must also be provided, at no cost, on the arrival and return trips to and from the place of work. Subsistence must also be provided, at no cost, on the arrival and return trips to and from the place of work.

Part II. During Employment: Workers Compensation Insurance Workers Compensation (WC) Insurance must be provided at no cost to the worker. Workers Compensation (WC) Insurance must be provided at no cost to the worker. If on a joint contract, farmers can work together on WC insurance. If on a joint contract, farmers can work together on WC insurance. For WC insurance, talk to your local insurance agent, Kentucky Employers Mutual Insurance ( or go to For WC insurance, talk to your local insurance agent, Kentucky Employers Mutual Insurance ( or go to WC must cover all workers, whether H-2A or not and is based on total payroll WC must cover all workers, whether H-2A or not and is based on total payroll

Part II. During Employment: Misc. Must provide all necessary tools and supplies needed to complete the job at no cost to the worker. Must provide all necessary tools and supplies needed to complete the job at no cost to the worker.

Part II. During Employment: Termination of Employment If caused by an “Act of God” and the contract cannot reasonably be fulfilled, employer can terminate the contract. If caused by an “Act of God” and the contract cannot reasonably be fulfilled, employer can terminate the contract. –Employer must provide ¾ of the contract benefits up to termination of the contract, including payment of the ¾ rule and transportation and subsistence “to the place from which the worker came”. Employer must reimburse worker full amount of deductions for transportation and subsistence expenses to the place of employment Employer must reimburse worker full amount of deductions for transportation and subsistence expenses to the place of employment

Part II. During Employment: Termination of Employment (cont) If worker leaves or is fired for cause before 50% of job contract is completed, then employer is not responsible for transportation and subsistence during the arrival trip to the farm If worker leaves or is fired for cause before 50% of job contract is completed, then employer is not responsible for transportation and subsistence during the arrival trip to the farm Employer must notify the KY Dept of Employment & Training and your agent (if working with a FLC) of all rejections, terminations, and resignations of U.S. and /or foreign workers in the H-2A program. Employer must notify the KY Dept of Employment & Training and your agent (if working with a FLC) of all rejections, terminations, and resignations of U.S. and /or foreign workers in the H-2A program.

Part II. During Employment: Workers’ Rights Employers must: Employers must: –Allow workers to testify and exercise their rights if they have the need to do so. –Permit Department of Labor (DOL) investigations of your business Conducted by the Wage and Hour Division of DOL Conducted by the Wage and Hour Division of DOL –Provide accurate information to DOL officials –Comply with all federal, state and local employment-related laws and regulations –Comply with the Fair Labor Standards Act

Part III. After Employment Employers must maintain payroll records for at least three years. Employers must maintain payroll records for at least three years. Employers can request specific workers. If a grower wants to employ a particular H-2A worker he/she must have the worker’s name, date of birth and phone number Employers can request specific workers. If a grower wants to employ a particular H-2A worker he/she must have the worker’s name, date of birth and phone number Must pay for transportation for the worker’s return “to the place from which he came” at the end of the contract period. This is usually his or her home. Must pay for transportation for the worker’s return “to the place from which he came” at the end of the contract period. This is usually his or her home.

Part IV. Government Resources This is needed only if the farmer is applying for H-2As themselves and not hiring a FLC. This is needed only if the farmer is applying for H-2As themselves and not hiring a FLC. In Kentucky, applications (Form ETA 750) to become certified for H-2A workers should be sent to the Atlanta Processing Center: In Kentucky, applications (Form ETA 750) to become certified for H-2A workers should be sent to the Atlanta Processing Center: Atlanta Processing Center U.S. Department of Labor, Employment and Training Administration Harris Tower 233 Peachtree Street, Suite 410 Atlanta, GA Phone: ; Fax

Part IV. Government Resources (cont.) This is needed only if the farmer is applying for H-2As themselves and not hiring a FLC. This is needed only if the farmer is applying for H-2As themselves and not hiring a FLC. An application must also be send to the Kentucky Workforce Office, located at: An application must also be send to the Kentucky Workforce Office, located at: –Kentucky Department of Workforce Investment Office of Employment and Training Foreign Labor Certification 275 East Main Street 2WA Frankfort, KY Phone: (502) Fax: (502)

Conclusions There are several items that farmers need to be aware of when employing H-2A workers. However, the employment of H-2A workers is not difficult if managed appropriately. There are several items that farmers need to be aware of when employing H-2A workers. However, the employment of H-2A workers is not difficult if managed appropriately. You have a right to be heard!! Stay up to date with reforms and contact your elected representatives and farm organizations with your concerns (or your praises!). You have a right to be heard!! Stay up to date with reforms and contact your elected representatives and farm organizations with your concerns (or your praises!).