Improving Protections for Workers in Temporary Agricultural Employment in the United States, 63750-63832 [2023-19852]
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Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules
DEPARTMENT OF LABOR
Employment and Training
Administration
20 CFR Parts 651, 653, 655, and 658
Wage and Hour Division
29 CFR Part 501
[DOL Docket No. ETA–2023–0003]
RIN 1205–AC12
Improving Protections for Workers in
Temporary Agricultural Employment in
the United States
Employment and Training
Administration and Wage and Hour
Division, Department of Labor.
ACTION: Notice of proposed rulemaking.
AGENCY:
The Department of Labor
(Department or DOL) proposes to amend
its regulations governing the
certification of temporary employment
of nonimmigrant workers employed in
temporary or seasonal agricultural
employment and the enforcement of the
contractual obligations applicable to
employers of these nonimmigrant
workers. The revisions proposed in this
notice of proposed rulemaking (NPRM
or proposed rule) focus on strengthening
protections for temporary agricultural
workers and enhancing the
Department’s capabilities to monitor
program compliance and take necessary
enforcement actions against program
violators.
SUMMARY:
Interested persons are invited to
submit written comments on the
proposed rule on or before November
14, 2023.
ADDRESSES: You may submit comments
electronically by the following method:
Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions on the website for
submitting comments.
Instructions: Include the agency’s
name and docket number ETA–2023–
0003 in your comments. All comments
received will become a matter of public
record and will be posted without
change to https://www.regulations.gov.
Please do not include any personally
identifiable or confidential business
information you do not want publicly
disclosed.
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DATES:
For
further information regarding 20 CFR
parts 651, 653, and 658, contact
Kimberly Vitelli, Administrator, Office
of Workforce Investment, Employment
and Training Administration,
Department of Labor, Room C–4526, 200
FOR FURTHER INFORMATION CONTACT:
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Constitution Avenue NW, Washington,
DC 20210, telephone: (202) 693–3980
(this is not a toll-free number). For
further information regarding 20 CFR
part 655, contact Brian Pasternak,
Administrator, Office of Foreign Labor
Certification, Employment and Training
Administration, Department of Labor,
200 Constitution Avenue NW, Room N–
5311, Washington, DC 20210, telephone:
(202) 693–8200 (this is not a toll-free
number). For further information
regarding 29 CFR part 501, contact Amy
DeBisschop, Director of the Division of
Regulations, Legislation, and
Interpretation, Wage and Hour Division,
Department of Labor, Room S–3502, 200
Constitution Avenue NW, Washington,
DC 20210, telephone: (202) 693–0406
(this is not a toll-free number).
Individuals with hearing or speech
impairments may access the telephone
number above via TTY by calling the
toll-free Federal Information Relay
Service at 1–800–877–5627.
SUPPLEMENTARY INFORMATION:
Preamble Table of Contents
I. Acronyms and Abbreviations
II. Background and Overview
A. Legal Authority
B. Current Regulatory Framework
C. Need for Rulemaking
D. Summary of Major Provisions of This
Proposed Rule
III. Discussion of Proposed Revisions to
Employment Service Regulations
A. Introduction
B. Discussion of Proposed Revisions to 20
CFR Part 651
C. Discussion of Proposed Revisions to 20
CFR Part 653
D. Discussion of Proposed Revisions to 20
CFR Part 658, Subpart F
IV. Discussion of Proposed Revisions to 20
CFR Part 655, Subpart B
A. Introductory Sections
B. Prefiling Procedures
C. Application for Temporary Employment
Certification Filing Procedures
D. Labor Certification Determinations
E. Post-Certification
F. Integrity Measures
V. Discussion of Proposed Revisions to 29
CFR Part 501
A. Section 501.3 Definitions
B. Section 501.4 Discrimination Prohibited
C. Section 501.10 Severability
D. Sections 501.20, 501.33, 501.42
Debarment and Revocation
E. Section 501.33 Request for Hearing
VI. Administrative Information
A. Executive Order 12866: Regulatory
Planning and Review; Executive Order
14094: Modernizing Regulatory Review;
and Executive Order 13563: Improving
Regulation and Regulatory Review
B. Regulatory Flexibility Analysis and
Small Business Regulatory Enforcement
Fairness Act and Executive Order 13272:
Proper Consideration of Small Entities in
Agency Rulemaking
C. Paperwork Reduction Act
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D. Unfunded Mandates Reform Act of 1995
E. Executive Order 13132 (Federalism)
F. Executive Order 13175 (Consultation
and Coordination With Indian Tribal
Governments)
I. Acronyms and Abbreviations
AEWR Adverse effect wage rate
AIE Area(s) of intended employment
ALJ Administrative Law Judge
AOWL Agricultural Online Wage Library
ARB Administrative Review Board
ARIMA Autoregressive integrated moving
average
BALCA Board of Alien Labor Certification
Appeals
BLS Bureau of Labor Statistics
CBA Collective bargaining agreement
CDC Centers for Disease Control and
Prevention
CFR Code of Federal Regulations
CO Certifying Officer
CY Calendar year
DBA Doing Business As
DHS Department of Homeland Security
DOJ Department of Justice
DOL Department of Labor
DOT Department of Transportation
EEOC Equal Employment Opportunity
Commission
E.O. Executive Order
ES Employment Service
ES system Employment Service system
ETA Employment and Training
Administration
FEIN Federal Employer Identification
Number
FLS Farm Labor Survey
FLSA Fair Labor Standards Act
FR Federal Register
FY Fiscal year
GAO Government Accountability Office
GHSA Governors Highway Safety
Association
GVWR Gross vehicle weight rating
H–2ALC H–2A labor contractor
HR Human resources
ICR Information Collection Request
INA Immigration and Nationality Act
IRCA Immigration Reform and Control Act
of 1986
MSFW Migrant or seasonal farmworker
MSPA Migrant and Seasonal Agricultural
Worker Protection Act
NAICS North American Industry
Classification System
NGO Nongovernmental organization
NHTSA National Highway Traffic Safety
Administration
NLRA National Labor Relations Act
NLRB National Labor Relations Board
NMA National Monitor Advocate
NOD Notice of Deficiency
NPC National Processing Center
NPRM Notice of proposed rulemaking
OALJ Office of Administrative Law Judges
OEWS Occupational Employment and
Wage Statistics
OFLC Office of Foreign Labor Certification
OIG Office of Inspector General
OIRA Office of Information and Regulatory
Affairs
OMB Office of Management and Budget
OSHA Occupational Safety and Health
Administration
PRA Paperwork Reduction Act
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Pub.L. Public Law
PY Program year
RFA Regulatory Flexibility Act
RIN Regulation Identifier Number
SBA Small Business Administration
Sec. Section of a Public Law
Secretary Secretary of Labor
SOC Standard Occupational Classification
Stat. U.S. Statutes at Large
SWA State workforce agency
TVPA Victims of Trafficking and Violence
Protection Act of 2000
UMRA Unfunded Mandates Reform Act of
1995
U.S. United States
U.S.C. United States Code
USDA U.S. Department of Agriculture
VSL Value of a statistical life
WHD Wage and Hour Division
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II. Background and Overview
A. Legal Authority
The Immigration and Nationality Act
(INA), as amended by the Immigration
Reform and Control Act of 1986 (IRCA),
establishes an ‘‘H–2A’’ nonimmigrant
visa classification for a worker ‘‘having
a residence in a foreign country which
he has no intention of abandoning who
is coming temporarily to the United
States to perform agricultural labor or
services . . . of a temporary or seasonal
nature.’’ 8 U.S.C. 1101(a)(15)(H)(ii)(a);
see also 8 U.S.C. 1184(c)(1) and 1188.1
Permanent, year-round job
opportunities cannot be classified as
temporary or seasonal. 2022 H–2A Final
Rule, 87 FR 61660, 61684 (Oct. 12,
2022); see also 8 U.S.C.
1101(a)(15)(H)(ii)(a) (the INA permits
only ‘‘agricultural labor or services . . .
of a temporary or seasonal nature’’ to be
performed under the H–2A visa
category).
The H–2A nonimmigrant worker visa
program enables U.S. agricultural
employers to employ foreign workers on
a temporary basis to perform temporary
or seasonal agricultural labor or services
only where the Secretary of Labor
(Secretary) certifies that (1) 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 (2) the employment of the
foreign worker in such labor or services
will not adversely affect the wages and
working conditions of workers in the
United States similarly employed. 8
U.S.C. 1188(a)(1).2 The INA prohibits
1 For ease of reference, sections of the INA are
referred to by their corresponding section in the
United States Code.
2 Following certification by DOL, the employer
must file an H–2A petition (defined at 20 CFR
655.103(b) as the U.S. Citizenship and Immigration
Services (USCIS) Form I–129, Petition for a
Nonimmigrant Worker, with H Supplement or
successor form and/or supplement, and
accompanying documentation required by DHS for
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the Secretary from issuing this
certification—known as a ‘‘temporary
agricultural labor certification’’—unless
both of the above-referenced conditions
are met. The INA further prohibits the
Secretary from issuing a temporary
agricultural labor certification if any of
the conditions in 8 U.S.C. 1188(b) apply
concerning strikes or lock-outs, labor
certification program debarments,
workers’ compensation assurances, and
positive recruitment.
The Secretary has delegated the
authority to issue temporary agricultural
labor certifications to the Assistant
Secretary for Employment and Training,
who in turn has delegated that authority
to the Employment and Training
Administration’s (ETA) Office of
Foreign Labor Certification (OFLC). See
Secretary’s Order 06–2010 (Oct. 20,
2010), 75 FR 66268 (Oct. 27, 2010). In
addition, the Secretary has delegated to
WHD the responsibility under 8 U.S.C.
1188(g)(2) to assure employer
compliance with the terms and
conditions of employment under the H–
2A program. See Secretary’s Order 01–
2014 (Dec. 19, 2014), 79 FR 77527 (Dec.
24, 2014). Pursuant to the INA and
implementing regulations promulgated
by DOL and the Department of
Homeland Security (DHS), DOL
evaluates an employer’s need for
agricultural labor or services to
determine whether it is seasonal or
temporary during the review of an H–2A
Application. 20 CFR 655.161(a); 8 CFR
214.2(h)(5)(i)(A) and (h)(5)(iv).
B. Current Regulatory Framework
Since 1987, the Department has
operated the H–2A temporary labor
certification program under regulations
promulgated pursuant to the INA. The
standards and procedures applicable to
the certification and employment of
workers under the H–2A program are
found in 20 CFR part 655, subpart B,
and 29 CFR part 501. The majority of
the Department’s current regulations
governing the H–2A program were
published in 2010 and many were
strengthened in a final rule the
Department published in October 2022.3
The Department incorporated the
provisions for employment of workers
employers seeking to employ foreign persons as H–
2A nonimmigrant workers) with USCIS, requesting
one or more workers not to exceed the total listed
on the temporary labor certification. Generally,
USCIS must approve this petition before the
worker(s) can be considered eligible for an H–2A
visa or for H–2A nonimmigrant status.
3 Final Rule, Temporary Agricultural Employment
of H–2A Aliens in the United States, 75 FR 6884
(Feb. 12, 2010) (2010 H–2A Final Rule); Final Rule,
Temporary Agricultural Employment of H–2A
Nonimmigrants in the United States, 87 FR 61660
(Oct. 12, 2022) (2022 H–2A Final Rule).
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in the herding and production of
livestock on the range into the H–2A
regulations, with modifications, in
2015.4 The provisions governing the
employment of workers in the herding
and production of livestock on the range
are codified at 20 CFR 655.200 through
655.235.5
The Department protects against
adverse effect on the wages of workers
in the United States similarly employed,
in part, by requiring at § 655.120(a) that
an employer offer, advertise in its
recruitment, and pay a wage that is the
highest of the adverse effect wage rate
(AEWR), the prevailing wage, the
agreed-upon collective bargaining wage,
the Federal minimum wage, or the State
minimum wage. If an updated AEWR
for the occupational classification and
geographic area is published during the
work contract and becomes the highest
applicable wage rate, the employer must
pay at least the updated AEWR upon the
effective date of the updated AEWR, as
published in the Federal Register.
Section 655.120(b)(3). In accordance
with § 655.120(b)(2) and (3), the
Department publishes the updated
AEWR at least once annually in the
Federal Register. One Federal Register
notice provides annual adjustments to
the AEWRs for the field and livestock
workers (combined) occupational
grouping based on the U.S. Department
of Agriculture’s (USDA) publication of
the Farm Labor Reports (better known as
the Farm Labor Survey, or FLS),
effective on or about January 1, and a
second Federal Register notice will
provide annual adjustments to the
AEWRs for all other non-range
occupations based on the Department’s
Bureau of Labor Statistics’ (BLS)
publication of the Occupational
Employment and Wage Statistics
(OEWS) survey, effective on or about
July 1.6 Each notice specifies the
effective date of the new AEWRs,
which, in recent notices, has been not
4 Final Rule, Temporary Agricultural Employment
of H–2A Foreign Workers in the Herding or
Production of Livestock on the Range in the United
States, 80 FR 62958 (Oct. 16, 2015) (2015 H–2A
Herder Final Rule).
5 Consistent with a court-approved settlement
agreement in Hispanic Affairs Project, et al. v.
Scalia et al., No. 15–cv–1562 (D.D.C.), the
Department recently rescinded 20 CFR
655.215(b)(2). Final Rule, Adjudication of
Temporary and Seasonal Need for Herding and
Production of Livestock on the Range Applications
Under the H–2A Program, 86 FR 71373 (Dec. 16,
2021).
6 2022 H–2A Final Rule; Final Rule, Adverse
Effect Wage Rate Methodology for the Temporary
Employment of H–2A Nonimmigrants in Non-Range
Occupations in the United States, 88 FR 12760
(Feb. 28, 2023) (2023 AEWR Final Rule).
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more than 14 calendar days after
publication.
OFLC currently requires disclosure of
information about the identity of
employers, agents, and attorneys, the
places where work will be performed,
and the employer’s use of a foreign labor
recruiter through the provision of
agreements with recruiters when
requested by the certifying officer (CO),
which is necessary for the Department
to assess the nature of the employer’s
job opportunity, monitor program
compliance, and protect program
integrity. See § 655.135(k); Form ETA–
9142A; Form ETA–790A; Form ETA–
790A, Addendum B. For example,
employers must identify in the H–2A
Application and job order all places of
employment, provide the Department a
copy of agreements with foreign labor
recruiters that expressly prohibit
unlawful fees (upon request by the CO),
and provide identifying information like
the Federal Employer Identification
Number (FEIN) and Doing Business As
(DBA) name on the Form ETA–9142A,
Form ETA–790A, and Form ETA–790A,
Addendum B. OFLC may provide any
information received while processing
H–2A applications, or in the course of
conducting program integrity measures
to WHD and to any other Federal agency
with authority to enforce compliance
with program requirements and combat
fraud and abuse. Section 655.130(f); 29
CFR 501.2 (providing that WHD and
OFLC may share information with each
other and with other agencies as
appropriate for investigative or
enforcement purposes). For example,
the Department may refer certain
discrimination complaints to the
Department of Justice (DOJ) Civil Rights
Division, Immigrant and Employee
Rights Section, under § 655.185, or refer
information related to debarred
employers or to employers’ fraudulent
or willful misrepresentations to DHS
under §§ 655.182 and 655.184.
Under § 655.145, an employer may
request to amend its application to
increase the number of workers or to
make minor changes to the period of
employment. In addition, an employer
may request modifications to its job
order under § 655.121(e)(2) before
submitting its H–2A Application.
Current § 655.145(b) permits the
employer to submit a request to the CO
to delay the start date of need when the
delay is due to unforeseen
circumstances and the employer’s crops
or commodities will be in jeopardy prior
to expiration of an additional
recruitment period. The employer’s
request to the CO must explain the
circumstances necessitating the request
and the employer must include with the
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request a written assurance that all
workers who are already traveling to the
place of employment will be provided
housing and subsistence, without cost to
the workers, until work commences.
The regulations do not permit
amendments to an application after the
CO issues a Final Determination. An
employer that experiences changed
circumstances after certification is
required to submit a new and
substantially similar application and job
order.
The regulations implementing the
Wagner-Peyser Act establish the
Agricultural Recruitment System (ARS),
through which employers can recruit
U.S. workers for agricultural
employment opportunities, and which
prospective H–2A employers must use
to recruit U.S. workers as a condition of
receiving a temporary labor
certification. Among other things, these
regulations require employers to
provide notice of delayed start dates and
provide protections for workers in cases
where the employer’s start date is
delayed. The ARS uses the term
‘‘anticipated’’ in relation to start dates
and provides a process close to the start
date the employer identified in the job
order through which the employer, the
State workforce agency (SWA), and
referred farmworkers communicate
regarding the actual start date of work.
See § 653.501(c)(1)(iv)(D), (c)(3)(i) and
(iv), (c)(5), and (d)(4). These regulations
currently require an employer to notify
the SWA of start date changes at least
10 business days before the originally
anticipated start date and require the
SWA to notify farmworkers that they
should contact the SWA between 9 and
5 business days before the anticipated
start date to verify the actual start date
of work. Section 653.501(c)(5) and
(d)(4). If an employer fails to timely
notify the SWA of a start date change
(i.e., at least 10 business days before the
anticipated first date identified in the
job order), beginning on the first date of
need, it must pay eligible workers the
specified hourly rate of pay as stated on
the clearance order, or if the pay is
piece-rate, the higher of the Federal or
State minimum wage for the first week
or offer alternative work to each
farmworker who followed the procedure
to contact the SWA for updated start
date information. See § 653.501(c)(3)(i)
and (c)(5). Under the Department’s H–
2A regulations at § 655.145(b), if an
employer requests a start date delay
after workers have departed for the
place of employment, the employer
must assure the CO that it will provide
housing and subsistence to all workers
who are already traveling to the place of
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employment, without cost to the
workers, until work commences. If an
employer fails to comply with its
obligations, the SWA may notify WHD
for possible enforcement as provided in
§ 653.501(c)(5), the SWA may pursue
discontinuation of services under part
658, subpart F, or the Department may,
either upon referral of the SWA or upon
its own initiative, pursue revocation of
the labor certification under the
procedures at § 655.181, or debarment of
the employer under the procedures at
§ 655.182 or 29 CFR 501.20.
The regulations also currently permit
the Department to debar an employer,
successor-in-interest to that employer,
attorney, or agent from participating in
any action under 8 U.S.C. 1188, 20 CFR
part 655, subpart B, or 29 CFR part 501
if the employer, agent, or attorney
substantially violated a material term or
condition of the temporary agricultural
labor certification with respect to H–2A
workers, workers in corresponding
employment, or U.S. workers
improperly rejected for employment,
improperly laid off or displaced. 20 CFR
655.182(a); 29 CFR 501.20(a). The
Department provides the employer with
a notice of debarment in these cases and
also provides an opportunity to appeal
these determinations using the
procedures at 20 CFR 655.182(f) and 29
CFR 501.20(e) and 501.33. Similarly, the
Wagner-Peyser Act regulations at 20
CFR parts 653 and 658 currently require
the SWA to discontinue services if it
determines an employer has committed
one of several violations enumerated at
20 CFR 658.501(a)(1) through (7), such
as misrepresentation of the terms and
conditions of employment specified on
job orders or failure to comply fully
with assurances made on job orders.
As noted above, the Department
recently published the 2022 H–2A Final
Rule, which strengthened worker
protections in the H–2A program,
clarified the obligations of joint
employers and the existing prohibitions
on fees related to foreign labor
recruitment, authorized debarment of
agents and attorneys for their own
misconduct, enhanced surety bond
obligations and related enforcement
authorization, modernized the
prevailing wage determination process,
enhanced regulation of H–2A labor
contractors (H–2ALCs), and provided
additional safeguards related to
employer-provided housing and wage
obligations. 87 FR 61660 (Oct. 12, 2022).
In response to the NPRM published
prior to the 2022 H–2A Final Rule, the
Department received many comments
suggesting changes that were beyond the
scope of that rulemaking, such as
suggestions relating to increased
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enforcement and transparency regarding
the foreign labor recruitment process,
increased worker protections, revisions
to the definition of employer, stronger
integrity provisions to account for
complex business organizations and for
methods used to circumvent the
regulations, strengthening provisions
related to piece rate pay, and
suggestions to revise the Wagner-Peyser
Act regulations to ensure stronger
protections for workers in the event of
harmful last-minute start date delays.
C. Need for Rulemaking
The Department proposes important
provisions in this NPRM that will
further strengthen protections for
agricultural workers and enhance the
Department’s enforcement capabilities,
thereby permitting more effective
enforcement against fraud and program
violations. The Department has
determined the proposed revisions will
help prevent exploitation and abuse of
agricultural workers and ensure that
unscrupulous employers do not
financially gain from their violations or
contribute to economic and workforce
instability by circumventing the law,
both of which would adversely affect
the wages and working conditions of
workers in the United States similarly
employed, and undermines the
Department’s ability to determine
whether there are, in fact, insufficient
U.S. workers for proposed H–2A jobs. It
is the policy of the Department to
maintain robust protections for workers
and vigorously enforce all laws within
its jurisdiction governing the
administration and enforcement of
nonimmigrant visa programs. This
includes the coordination of the
administration and enforcement
activities of ETA, WHD, and the
Department’s Office of the Solicitor in
the promotion of the hiring of U.S.
workers and the safeguarding of wages
and working conditions for workers in
the United States. In addition, these
agencies make criminal referrals to the
Department’s Office of Inspector
General (OIG) in appropriate
circumstances, such as when the
agencies encounter visa-related fraud.
The Department has determined
through program experience, recent
litigation, challenges in enforcement,
comments on prior rulemaking, and
reports from various stakeholders that
the proposals in this NPRM are
necessary to strengthen protections for
agricultural workers, ensure that
employers, agents, attorneys, and labor
recruiters comply with the law, and
enhance program integrity by improving
the Department’s ability to monitor
compliance and investigate and pursue
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remedies from program violators. The
recent surge in use of the H–2A program
further underscores the need to
strengthen protections for this
vulnerable population.7
The proposed rule aims to address
some of the comments that were beyond
the scope of the 2022 H–2A Final Rule
and concerns expressed by various
stakeholders during that rulemaking. It
also seeks to respond to recent court
decisions and program experience
indicating a need to enhance the
Department’s ability to enforce
regulations related to foreign labor
recruitment, and to improve
accountability for successors-in-interest
and employers who use various
methods to attempt to evade the law and
regulatory requirements, and to enhance
worker protections for a vulnerable
workforce, as explained further in the
sections that follow.8
Section D below provides an overview
of major proposed changes, followed by
an in-depth section-by-section
discussion of all proposed changes. The
Department is soliciting public
comment on all aspects of this proposed
7 See, e.g., Office of Foreign Labor Certification,
Performance Data, https://www.dol.gov/agencies/
eta/foreign-labor/performance (providing
disclosure data for the H–2A labor certification
program since FY 2008).
8 The Department’s enforcement experience
demonstrates that workers in agriculture,
particularly H–2A workers, remain highly
vulnerable to workplace abuses. In FY 2022, WHD
conducted 420 investigations of employers using
the H–2A program, resulting in more than $3.6
million assessed in back wages and more than $6.3
assessed in civil money penalties. Recent
investigations have demonstrated that H–2A
workers continue to be vulnerable to human
trafficking; see, e.g., Press Release, U.S. Dep’t of
Just., Owner of Farm Labor Contracting Company
Pleads Guilty in Racketeering conspiracy Involving
the Forced Labor of Mexican Workers (Sept. 27,
2022), https://www.justice.gov/opa/pr/owner-farmlabor-contracting-company-pleads-guiltyracketeering-conspiracy-involving-forced; Jessica
Looman, U.S. Dep’t of Lab. Blog: Exposing the
Brutality of Human Trafficking (Jan. 13, 2022),
https://blog.dol.gov/2022/01/13/exposing-thebrutality-of-human-trafficking. H–2A workers
continue to be vulnerable to retaliation when
asserting their rights or engaging in self advocacy;
see, e.g., Press Release, U.S. Dep’t of Lab., Federal
Court Orders Louisiana Farm, Owners to Stop
Retaliation After Operator Denied Workers’ Request
for Water, Screamed Obscenities, Fired Shots (Oct.
28, 2021), https://www.dol.gov/newsroom/releases/
whd/whd20211028-0; Press Release, U.S. Dep’t of
Lab., U.S. Labor Department Obtains Order
Stopping Arizona Agricultural Employer from
Abusing Workers, Exposing them to Workplace
Dangers (Oct. 28, 2022), https://www.dol.gov/
newsroom/releases/whd/whd20221028-0.
Additionally, recent vehicle crashes involving
agricultural workers demonstrate the need for
transportation reform; see, e.g., Press Release, U.S.
Dep’t of Lab., U.S. Department of Labor Urges
Greater Focus on Safety by Employers, Workers as
Deaths, Injuries in Agricultural Transportation
Incidents Rises Sharply (Sept. 20, 2022), https://
www.dol.gov/newsroom/releases/whd/
whd20220920-0.
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rule but has suggested in each section
the types of comments that would be
most useful to the Department when
considering which provisions to
include, exclude, or revise in the final
rule. Generally, the Department is most
interested in comments that cite
evidence of the need to remedy through
this rulemaking ongoing violations,
worker abuse or exploitation, coercion,
employer or agent subterfuge to avoid
the law or other ways the Department’s
enforcement of the law may be hindered
to the detriment of H–2A workers and
workers in the United States impacted
by the program and the Department’s
ability to fulfill its statutory
responsibilities. The Department is
particularly interested in comments that
suggest ways the Department can use
this rulemaking to better protect the
rights and liberties, health and safety,
and wages and working conditions of
agricultural workers and best safeguard
the integrity of the H–2A program,
while continuing to ensure that
responsible employers have access to
willing and available agricultural
workers and are not unfairly
disadvantaged by employers that exploit
workers and attempt to evade the law.
D. Summary of Major Provisions of This
Proposed Rule
1. Protections for Workers Who
Advocate for Better Working Conditions
and Labor Organizing Activities
The Department proposes revisions to
§ 655.135 that will provide stronger
protections for workers protected by the
H–2A program to advocate for better
working conditions on behalf of
themselves and their coworkers and
prevent employers from suppressing
this activity. As detailed in Section IV,
the Department believes that these
proposed protections are necessary to
prevent an adverse effect on the working
conditions of workers in the United
States similarly employed. 8 U.S.C.
1188(a)(1). These protections will
significantly bolster the Department’s
efforts to prevent such adverse effect
because when H–2A workers and other
workers protected under the H–2A
program cannot advocate and negotiate
with employers on their own behalf,
employers are able to impose
exploitative working conditions that
also leave H–2A workers vulnerable to
other abuses, and this unfairly deprives
similarly employed agricultural workers
of jobs with better working conditions.
Specifically, the Department proposes to
broaden § 655.135(h), which prohibits
unfair treatment, by expanding and
explicitly protecting certain activities
workers must be able to engage in
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without fear of intimidation, threats,
and other forms of retaliation. For those
workers engaged in agriculture as
defined and applied in 29 U.S.C. 203(f),
who are exempt from the protections of
the National Labor Relations Act
(NLRA), 29 U.S.C. 151 et seq., the
Department also proposes in
§ 655.135(h) to include some protections
that the Department believes will
safeguard collective action. The
Department also proposes to add new
provisions at § 655.135(m) to ensure
employers do not interfere with efforts
by vulnerable workers under the H–2A
program to advocate for better working
conditions by including a number of
requirements that would advance
worker voice and empowerment and
further protect the rights proposed
under § 655.135(h), and at § 655.135(n)
to permit workers to invite or accept
guests to worker housing and provide
labor organizations a narrow right of
access to worker housing, as explained
in detail below.
2. Clarification of Justifiable
Termination for Cause
The Department proposes to define
‘‘termination for cause’’ at § 655.122(n)
by proposing six criteria that must be
satisfied to ensure that disciplinary and/
or termination processes are justified
and reasonable, which are intended to
promote the integrity and regularity of
any such processes. These proposed
changes will help to ensure employers
do not arbitrarily and unjustly terminate
workers, thereby stripping them of
essential rights to which they would
otherwise be entitled, and will assist the
Department in determining whether an
individual worker was terminated for
pretextual reasons.
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3. Immediate Effective Date for Updated
AEWRs
The Department proposes to revise
§ 655.120(b)(2) to designate the effective
date of updated AEWRs as the date of
publication in the Federal Register, and
to revise paragraph (b)(3) to state that
the employer is obligated to pay the
updated AEWR immediately upon
publication of the new AEWR in the
Federal Register. This change is
intended to help ensure workers are
paid at least the updated AEWR, as soon
as it is published, for all work they
perform, and thereby help to ensure the
employment of H–2A workers will not
adversely affect the wages and working
conditions of workers in the United
States similarly employed.
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4. Enhanced Transparency for Job
Opportunity and Foreign Labor
Recruitment
The Department proposes new
disclosure requirements to enhance
transparency in the foreign worker
recruitment chain and bolster the
Department’s capacity to protect
vulnerable agricultural workers from
exploitation and abuse, as explained
more fully below. The Department
proposes a new § 655.137, Disclosure of
foreign worker recruitment, and a new
§ 655.135(p), Foreign worker
recruitment, that are similar to the
regulations governing disclosure of
foreign worker recruitment in the H–2B
program. The proposed provisions
would require an employer and its
attorney or agent, as applicable, to
provide a copy of all agreements with
any agent or recruiter that the employer
engages or plans to engage in the
recruitment of prospective H–2A
workers, regardless of whether the agent
or recruiter is located in the United
States or abroad. The proposed
provisions also would require the
employer to disclose the identity (i.e.,
name and, if applicable, identification
number) and geographic location of
persons and entities hired by or working
for the foreign labor recruiter and any of
the agents or employees of those
persons and entities who will recruit or
solicit prospective H–2A workers. As
explained more fully below, the
Department proposes to gather the
additional recruitment chain
information when the employer files its
H–2A Application and will require the
employer to submit a proposed Form
ETA–9142A, Appendix D, that mirrors
the Form ETA–9142B, Appendix C.
Consistent with current practice in the
H–2B program, proposed § 655.137(d)
provides for the Department’s public
disclosure of the names of the agents
and foreign labor recruiters used by
employers. These additional disclosures
of information about the recruitment
chain are necessary for the Department
to carry out its enforcement obligations,
protect vulnerable agricultural workers
and program integrity, and ensure
equitable administration of the H–2A
program for law abiding employers.
The Department also proposes to
require the employer to provide the full
name, date of birth, address, telephone
number, and email address for the
owner(s) of each employer, any person
or entity who is an operator of the
place(s) of employment (including the
fixed-site agricultural business that
contracts with the H–2ALC), and any
person who manages or supervises the
H–2A workers and workers in
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corresponding employment under the
H–2A Application. The Department
proposes to revise the Form ETA–9142A
to require, where applicable, additional
information about prior trade or DBA
names the employer has used in the
most recent 3-year period preceding its
filing of the H–2A Application. The
Department proposes conforming
changes to §§ 655.130 and 655.167 to
clarify that the employer would be
required to continue to update the
information required by the above
paragraphs until the end of the work
contract period, including extensions
thereto, and retain this information
post-certification and produce it upon
request by the Department. The
Department believes the proposed
disclosure requirements will increase
transparency in the international
recruitment chain, aid the Department
in assessing the nature of the job
opportunity and the employer’s need,
enhance the Department’s ability to
enforce the prohibition against
recruitment-related fees and to pursue
remedies from program violators, assist
the Department in identifying potential
successors in interest to debarred
employers, and better protect
agricultural workers from abuse and
exploitation in the United States and
abroad.
5. Enhanced Transparency and
Protections for Agricultural Workers
a. Disclosure of Minimum Productivity
Standards, Applicable Wage Rates, and
Overtime Opportunities
The Department proposes to revise
§ 655.122(l) to require employers to
disclose any minimum productivity
standards they will impose as a
condition of job retention, regardless of
whether the employer pays on a piece
rate or hourly basis. This proposal is
intended to help ensure that agricultural
workers are fully apprised of the
material terms and conditions of
employment, including any
productivity standards that may serve as
a basis for termination for cause.
Proposed changes at § 655.122(n) would
prohibit the employer from terminating
a worker for failure to meet a minimum
productivity standard if the employer
did not disclose the standard in
accordance with § 655.122(l). An
existing regulatory provision,
§ 655.122(b), would require that any
such minimum productivity standard be
bona fide and normal and accepted
among non-H–2A employers in the
same or comparable similar occupations
and crops.
The Department also proposes to
revise §§ 655.120(a) and 655.122(l) to
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require employers to offer and advertise
on the job order any applicable
prevailing piece rate, the highest
applicable hourly wage rate, and any
other rate the employer intends to pay,
and to pay workers the highest of these
wage rates, as calculated at the time
work is performed. A new proposed
§ 655.122(l)(4) would explicitly require
the employer to specify in the job order
any applicable overtime premium wage
rate(s) for overtime hours worked and
the circumstances under which the
wage rate(s) for such overtime hours
will be paid. These proposals are
intended to help ensure that agricultural
workers are fully apprised of the
material terms and conditions of
employment, including any
productivity standards that may serve as
a basis for termination for cause, and to
aid the Department in its administration
and enforcement of the H–2A program.
b. Enhanced Protections for Workers
Through the Employment Service
System (ES System)
The Department proposes revisions to
the Wagner-Peyser Act implementing
regulations at 20 CFR 653.501 to clarify
an employer’s obligations in the event of
a delayed start date and to make
conforming revisions to the H–2A
regulations at 20 CFR 655.145 and a
new § 655.175 to clarify pre-certification
H–2A Application amendments and
employer obligations in the event of
post-certification changes to the start
date. As noted above, the current
regulations require an employer to
provide notice to the ES Office holding
the job order of delayed start dates and
impose obligations on employers that
fail to provide the requisite notice, but
do not require employers to notify
workers directly of any such delay.
The Department proposes revisions to
part 658, subpart F, and related
definitions at § 651.10, regarding the
discontinuation of Wagner-Peyser Act
Employment Service (ES) services to
employers. The Department proposes to
clarify and expand the scope of entities
whose ES services can be discontinued
to also include agents, farm labor
contractors, joint employers, and
successors in interest. The Department
also proposes revisions to clarify the
bases for discontinuation at § 658.501,
and to clarify and streamline the
discontinuation procedures at
§§ 658.502 through 658.504, including
the notice requirements for SWAs,
evidentiary requirements for employers,
when and how employers may request
a hearing, and procedures for requesting
reinstatement. These changes are
designed to increase the reach and
utility of the discontinuation of services
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regulations, which SWAs have
underutilized in recent years. These
proposed changes are described in more
detail below.
c. Enhanced Transportation Safety
Requirements
The Department proposes to revise
§ 655.122(h)(4) to require the provision,
maintenance, and wearing of seat belts
in most employer-provided
transportation, which would reduce the
hazards associated with agricultural
worker transportation, thus making
these jobs more attractive to workers in
the United States. Specifically, as
explained in detail below, the
Department proposes to revise
§ 655.122(h)(4) to prohibit an employer
from operating any employer-provided
transportation that is required by the
U.S. Department of Transportation
(DOT) highway safety regulations to be
manufactured with seat belts unless all
passengers and the driver are properly
restrained by seat belts meeting
standards established by DOT.
Essentially, if the vehicle is
manufactured with seat belts, the
proposed rule would require the
employer to retain and maintain those
seat belts in good working order and
ensure that each worker is wearing a
seat belt before the vehicle is operated.
d. Protection Against Passport and
Other Immigration Document
Withholding
The Department proposes a new
§ 655.135(o) that would directly prohibit
an employer from holding or
confiscating a worker’s passport, visa, or
other immigration or government
identification documents, independent
of the employer’s compliance with the
Victims of Trafficking and Violence
Protection Act of 2000 (TVPA), Public
Law 106–386 (2000), 18 U.S.C. 1592(a),
which is required under the current H–
2A regulations. The proposal is
intended to better protect workers from
potential labor trafficking, as explained
below.
e. Protections in the Event of a Minor
Delay in the Start of Work
The Department proposes a new
§ 655.175 that addresses postcertification changes currently
addressed at § 655.145(b) and proposes
new obligations and procedures in the
event an employer must briefly delay
the start of work due to unforeseen
circumstances that jeopardize crops or
commodities prior to the expiration of
an additional recruitment period.
Proposed § 655.175 limits minor delays
to 14 calendar days or less and would
require an employer to notify each
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worker and the SWA of any delay in the
start date of work. Consistent with
§ 653.501(c), proposed § 655.175
includes new compensation obligations
that would require the employer to pay
workers the applicable wage rate for
each day work is delayed, for a period
of up to 14 calendar days, starting with
the certified start date, if the employer
fails to provide adequate notice of the
delay.
6. Enhanced Integrity and Enforcement
Capabilities
a. Reduced Submission Periods for
Appeal Requests for Debarment Matters
and Submittal of Rebuttal Evidence to
OFLC
To help protect and uphold program
integrity, and to further protect workers
in the United States, the Department
proposes to increase the speed with
which debarments become effective by
decreasing the time for parties to submit
rebuttal evidence to OFLC, the time for
parties to appeal Notices of Debarment
to the Office of Administrative Law
Judges (OALJ), and the time for parties
to appeal debarment decisions to the
ARB from the OALJ. This would lead to
faster final agency adjudications and
thereby better protect and uphold
program integrity and agricultural
workers by more efficiently and
effectively preventing H–2A program
violators from accessing the program. As
explained more fully below, the
Department proposes to amend
§ 655.182(f)(1) and (2) by reducing the
period to file rebuttal evidence from 30
calendar days to 14 calendar days,
unless the employer requests an
extension of the allowable rebuttal
period, in writing, and demonstrates
good and substantial cause necessitating
an extension. For the same reasons, the
Department also proposes to shorten the
time to appeal the OFLC
Administrator’s Notice of Debarment, in
lieu of submitting rebuttal evidence; to
shorten the time to appeal the OFLC
Administrator’s final determination,
after review of rebuttal evidence; to
shorten the time for all parties to request
review of OFLC debarments by the ARB
from 30 days to 14 calendar days; to
shorten the time to request a hearing
with the OALJ on any WHD
determination involving debarment
from 30 calendar days to 14 calendar
days; and also to shorten the time for all
parties to request review by the ARB of
an OALJ determination involving
debarment from 30 days to 14 calendar
days. Determinations by the WHD
Administrator that do not include
debarment, but only include, for
example, an assessment of civil money
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penalties or the payment of back wages,
would retain a 30-calendar-day
timeframe for appeal to the OALJ and to
the ARB.
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b. Enhancements to the Department’s
Ability To Apply Orders of Debarment
Against Successors-in-Interest
The Department proposes a new
§ 655.104 regarding successors in
interest, that would clarify the liability
of successors in interest for debarment
purposes and streamline the
Department’s procedures to deny labor
certifications filed by or on behalf of
successors in interest to debarred
employers, agents, and attorneys. The
Department proposes conforming
revisions to §§ 655.103(b), 655.181, and
655.182 and 29 CFR 501.20. These
proposed revisions are intended to
better reflect the liability of successors
in interest under the well-established
successorship doctrine, and to better
ensure that debarred entities do not
circumvent the effects of debarment.
c. Defining the Single Employer Test for
Assessing Temporary Need, or for
Enforcement of Contractual Obligations
The Department proposes to define
the term single employer at a new
§ 655.103(e) and proposes factors to
determine if multiple nominally
separate employers are acting as one.
Defining the term would codify the
Department’s long-standing practice of
using the single employer test
(sometimes referred to as an ‘‘integrated
employer’’ test), or similar analysis, to
determine if separate employers are a
single employer for purposes of
assessing seasonal or temporary need, or
for enforcement of contractual
obligations. In relation to seasonal or
temporary need, the Department has
received applications for temporary
labor certification that purport to be for
job opportunities with different
employers when, in reality, the workers
hired under these certifications are
employed by companies so intertwined
that they are operating as a de facto
single employer in one area of intended
employment for a period of need that is
not truly temporary or seasonal. In its
enforcement experience, the Department
has increasingly encountered H–2A
employers that employ H–2A workers
under one corporate entity and domestic
workers under another, creating the
appearance that the H–2A employer has
no non-H–2A workers in corresponding
employment when actually, the
corporate entities are so intertwined that
all the H–2A workers are employed by
a single H–2A employer, and the nonH–2A workers are engaged in
corresponding employment. Some
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employers have attempted to use these
arrangements to avoid the obligation to
offer workers in corresponding
employment the terms and conditions
offered to H–2A workers, including the
required wage rate. Codifying the
definition of single employer will
prevent employers from using their
corporate structures to circumvent
statutory and regulatory requirements.
III. Discussion of Proposed Revisions to
Employment Service Regulations
A. Introduction
In this proposed rule, the Department
proposes to revise the ES regulations (20
CFR parts 651 through 654 and 658 and
29 CFR part 75) that implement the
Wagner-Peyser Act of 1933. These
regulations include the provision of ES
services with a particular emphasis on
migrant or seasonal farmworkers
(MSFWs), as well as provisions
governing the discontinuation of ES
services to employers. The proposed
rule will update the language and
content of the regulations to, among
other things, improve and strengthen
the regulations governing
discontinuation of ES services to
employers, including the applicable
bases and procedures. In some areas,
these proposals establish entirely new
responsibilities and procedures; in other
areas, the proposals clarify and update
requirements already established. The
proposed revisions make important
changes to the following components of
the ES system: definitions, requirements
for processing clearance orders, and the
discontinuation of ES services provided
to employers.
The Wagner-Peyser Act of 1933
provided the Department the authority
to establish a national ES system to
improve the functioning of the nation’s
labor markets by bringing together
individuals seeking employment with
employers seeking workers. Section 3(a)
of the Act sets forth the basic
responsibilities of the Department,
which include assisting in coordinating
the State public employment service
offices throughout the country and in
increasing their usefulness by
prescribing standards for efficiency,
promoting uniformity in procedures,
and maintaining a system of clearing
labor between the States.
To that end, the ES system provides
labor exchange services to its
participants and has undergone
numerous changes to align its activities
with broader national workforce
development policies and statutory
requirements. The Workforce
Innovation and Opportunity Act, passed
in 2014, expanded upon the previous
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workforce reforms in the Workforce
Investment Act of 1998 and, among
other things, identified the ES system as
a core program in the One-Stop local
delivery system, also called the
American Job Center network.
In 1974, the case National Ass’n for
the Advancement of Colored People
(NAACP), Western Region, et al. v.
Brennan et al., No. 2010–72, 1974 WL
229 (D.D.C. Aug. 13, 1974) resulted in
a detailed court order mandating
various Federal and State actions
consistent with applicable law (referred
to as the Judge Richey Court Order, or
Richey Order). The Richey Order
required the Department to implement
and maintain a Federal and State
monitoring and advocacy system and set
forth requirements to ensure the
delivery of ES services, benefits, and
protections to MSFWs on a nondiscriminatory basis, and to provide
such services in a manner that is
qualitatively equivalent and
quantitatively proportionate to those
provided to non-farmworkers. In 1977
and 1980, consistent with its authority
under the Wagner-Peyser Act, the
Department published regulations at 20
CFR parts 651, 653, and 658 to
implement the requirements of the
Richey Order. Part 653 sets forth
standards and procedures for providing
services to MSFWs and provides
regulations governing the ARS, a system
for interstate and intrastate agricultural
job recruitment. Part 658 sets forth
standards and procedures for the
administrative handling of complaints
alleging violations of ES regulations and
of employment-related laws, the
discontinuation of services provided by
the ES system to employers, the review
and assessment of State agency
compliance with ES regulations, and the
Federal application of remedial action
to State agencies.
Note that on April 20, 2022, the
Department issued an NPRM regarding
Wagner-Peyser Act staffing (Staffing
NPRM). 87 FR 23700 (Apr. 20, 2022).
The Staffing NPRM included proposed
changes to several sections in 20 CFR
parts 653 and 658 that govern the
provision of ES services to MSFWs. As
relevant here, in the Staffing NPRM, the
Department proposed changes to 20 CFR
653.501(b)(4) and (c)(3) (ES office and
SWA requirements for processing
clearance orders); § 658.501(a)(4), (b),
and (c); § 658.502(a) and (b) (notification
requirements for discontinuation of ES
services); and § 658.504(a) and (b)
(procedures for reinstatement of ES
services). 87 FR 23717, 23722, 23736,
23740–23741. In this proposed rule, the
Department has proposed further
changes to these provisions, which in
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some instances conflict with changes
proposed in the Staffing NPRM. Because
the Department has not issued a final
Staffing Rule, the Department
recognizes that the proposed changes in
this rulemaking may generate questions
within the regulated community about
how the Department ultimately
proposes to revise these provisions,
including how the proposed changes in
this rulemaking affect the proposed
changes in the Staffing NPRM, and what
the Department might do in finalizing
the changes proposed in the Staffing
NPRM. Where this NPRM proposes
changes that conflict or intersect with
changes proposed in the Staffing NPRM,
the Department will be using this
proposed rule as the operative
rulemaking proceeding to provide
notice and an opportunity to comment
on the proposed changes to the
provisions referenced above. Consistent
with this approach, the Department
does not intend to finalize changes to
the above referenced provisions in the
Staffing NPRM as part of that
rulemaking proceeding. Any changes to
the above referenced provisions will be
made through this rulemaking. The
Department has concluded that the
proposed changes to these provisions
are better suited for this rulemaking
because they are meant to strengthen
protections for agricultural workers and,
therefore, better align with the overall
purpose of this rulemaking. Further, the
Department has concluded that this is
the most transparent approach to
address the overlap, and is the approach
that best minimizes confusion within
the regulated community while
ensuring the public the full opportunity
to receive notice and provide comments
on the proposed changes.
B. Discussion of Proposed Revisions to
20 CFR Part 651
Part 651 (§ 651.10) sets forth
definitions for parts 652, 653, 654, and
658. The Department proposes to add or
revise the following definitions
primarily to clarify aspects of its
discontinuation of Wagner-Peyser Act
ES regulation at 20 CFR part 658,
including new provisions that it
proposes to add in this rulemaking.
Where appropriate, as discussed below,
the Department has sought to align these
new definitions with the same or similar
definitions at 20 CFR 655.103.
The Department proposes to add a
definition to § 651.10 for agent as an
entity authorized to act on behalf of
employers with respect to ES clearance
system activities. The Department has
observed that individuals and entities
meeting the proposed definition of
agent often engage the ES clearance
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system by submitting clearance orders
on behalf of employers, as defined in
part 651, and control many aspects of
employers’ recruitment activities
relating to clearance orders. Adding this
proposed definition clarifies that agents
(which include attorneys) are among the
entities subject to discontinuation of
services as a result of the proposed
changes to part 658. Additionally,
because an employer’s agent for
purposes of the ES clearance system is
often the same agent that an employer
uses for purposes of the H–2A labor
certification process, the Department
proposes a definition of agent at
§ 651.10 that aligns with the definition
of agent in § 655.103.
The Department proposes to add
definitions to § 651.10 for criteria
clearance order and non-criteria
clearance order because they are terms
that are currently used in the ES
regulations but were previously
undefined. Adding the definitions
clarifies that criteria clearance orders
are those placed in connection with an
H–2A Application filed pursuant to part
655, subpart B, while non-criteria
clearance orders are those not placed in
connection with an H–2A Application.
By defining these terms, it will be
clearer which orders must comply with
the requirements at part 653, subpart F,
and part 655, subpart B, and which
orders do not have to comply with the
requirements at part 655, subpart B.
The Department proposes to add to
§ 651.10 a definition for discontinuation
of services because it is referenced
throughout the ES regulations and is the
subject of part 658, subpart F, but was
previously undefined. The proposed
definition explains what services would
be unavailable pursuant to the process
described in part 658, subpart F, and the
entities subject to discontinuation.
Under the proposed discontinuation of
services, the scope of services to which
discontinuation applies includes any
Wagner-Peyser Act ES service provided
by the ES to employers pursuant to parts
652 and 653. The scope of individuals
and entities to whom discontinuation
applies includes employers, as defined
in part 651, and agents, farm labor
contractors, joint employers, and
successors in interest, as proposed to be
defined in part 651.
The Department proposes to revise
the definition of employment-related
laws to clarify that the term also
includes the regulations that implement
employment-related laws in addition to
the laws themselves. Revising the
definition clarifies its meaning and
scope for ES staff who observe or
process complaints relating to violations
of employment-related laws, such as
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outreach workers, complaint system
representatives, and those who conduct
field checks.
The Department proposes to add to
§ 651.10 a definition for farm labor
contractor as an entity, excluding
agricultural employers, agricultural
associations, or employees of
agricultural employers or agricultural
associations, that agrees to recruit,
solicit, hire, employ, furnish, or
transport an MSFW. The Department
proposes to add this definition to
§ 651.10 because the term is used
throughout the ES regulations, most
notably in part 653, subpart F, which
recognizes that farm labor contractors
use the ES clearance system, but it has
never been defined. Adding this
proposed definition also clarifies the
entities subject to discontinuation of
services as a result of the proposed
changes to part 658. As with the term
agent, because many farm labor
contractors that use the ES clearance
system also seek temporary labor
certifications from OFLC as H–2ALCs
under part 655, subpart B, the
Department proposes a definition of
farm labor contractor that both aligns
with the definition of H–2A labor
contractor found at 20 CFR 655.103 and
with the definition of farm labor
contractor and farm labor contracting
activity found at 29 U.S.C. 1802 and 29
CFR 500.20 to maintain consistency
between Departmental program areas.
The Department recognizes that joint
employment relationships are common
in agriculture, and that joint employers
are required to comply with the
requirements in part 653, subpart F,
while filing a joint application for
temporary labor certification under 20
CFR part 655, subpart B. See § 655.131.
The Department therefore proposes to
add a definition for joint employer to
§ 651.10 to clarify how the concept will
be applied in the ES system and to
clarify the entities subject to
discontinuation of services as a result of
the proposed changes to part 658. The
proposed definition is also intended to
ensure consistency with recent changes
to the Department’s H–2A regulation, 87
FR 61660, 61793–61794 (Oct. 12, 2022),
and as with the definitions of agent and
farm labor contractor, the proposed
definition is modeled on the definition
of joint employment at 20 CFR 655.103
because of the connection between the
ES system and H–2A labor certification
program.
The Department proposes to add to
§ 651.10 a definition for successor in
interest that describes the inexhaustive
factors that SWAs should use to
determine if an entity is a successor in
interest to another entity. The proposed
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definition allows SWAs and
stakeholders to better understand which
entities may be subject to
discontinuation as a result of the
proposed changes to part 658. To
maintain consistency between the
regulations governing the ES system and
the regulations governing the H–2A
labor certification program, the
Department proposes to adapt the
definition of successor in interest as
proposed in § 655.104.
The Department proposes to add a
definition for week to clarify that a
week, as used in parts 652, 653, 654,
and 658, means 7 consecutive calendar
days. Adding the definition allows for
SWAs and employers to calculate time
periods used in the ES regulations
uniformly, including for wage
calculations and other time-related
procedures.
C. Discussion of Proposed Revisions to
20 CFR Part 653
Part 653 sets forth the principal
regulations of the ES concerning the
provision of services for MSFWs
consistent with the requirement that all
services of the workforce development
system be available to all job seekers in
an equitable fashion and in a way ‘‘that
meets their unique needs.’’ 20 CFR
653.100(a). Part 653 also describes
requirements for participation in the
ARS. Subpart F provides the
requirements SWAs and employers
must follow when employers seek
access to the ARS by submitting
clearance orders for temporary or
seasonal farmwork. Section 653.501
provides the responsibilities of ES
Offices and SWAs when they review
clearance orders submitted by
employers, and the process by which
they place approved clearance orders
into intra- and interstate clearance.
Once the order is approved and placed
into clearance, ES Offices and SWAs
recruit and refer workers for the
position described on the clearance
order.
The Department proposes to add a
fourth paragraph to § 653.501(b), at
§ 653.501(b)(4), which would require ES
staff to consult the OFLC and WHD H–
2A and H–2B debarment lists, and an
ETA Office of Workforce Investment
discontinuation of services list, before
placing a job order into intrastate or
interstate clearance. The Department
further proposes a new paragraph
(b)(4)(i), which states that SWAs must
initiate discontinuation of ES services if
the employer seeking placement of a
clearance order is on a debarment list,
and new paragraph (b)(4)(ii), which
states that SWAs must not approve
clearance orders from employers whose
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ES services have been discontinued by
any State. Finally, the Department
proposes a new paragraph (b)(4)(iii) to
make clear that the provisions in
paragraph (b)(4) would apply to all
entities subject to discontinuation under
part 658, subpart F, and not just to
employers as defined in § 651.10.
The Department’s mission is to
promote the welfare of workers.
Regarding consultation with the H–2A
and H–2B debarment lists, the proposed
additions are intended to further that
mission by ensuring that ES offices do
not place U.S. workers with employers
who are presently barred from
employing nonimmigrant workers via
the H–2A and H–2B visa programs. This
requirement, and the proposed addition
to § 658.501(a)(4), would protect
workers by ensuring that the ES system
is not used to place a worker with an
employer that has failed to comply with
its obligation(s) as an employer of
foreign workers. As with the H–2A
program, employers participating in the
H–2B program must first file job orders
through the SWA’s labor exchange and
therefore must comply with ES
requirements. As discussed more fully
below in the discussion of the proposed
changes to § 658.501(a)(4), the proposed
inclusion of H–2B programs also
recognizes that employers seeking
nonimmigrant workers may improperly
misclassify H–2A agricultural work as
H–2B non-agricultural work. The
proposed addition seeks to protect
workers who use the ES system from
employers who engage in improper
misclassification, and to maintain a fair
labor system for employers who seek
temporary labor certification via the
proper channels. Additionally, the H–
2A regulations at 20 CFR 655.182 and
29 CFR 501.20, and the H–2B
regulations at 20 CFR 655.73 and 29
CFR 503.24, describe the violations that
may result in an employer’s debarment
from receiving future labor certifications
under those programs. The potential
reasons for debarment include serious
violations that could affect worker
safety, for example ‘‘[a] single heinous
act showing such flagrant disregard for
the law’’ that future compliance with
program requirements cannot
reasonably be expected
(§ 655.182(d)(1)(x)). Such reasons also
include an employer’s substantial
failure to comply with regulatory
requirements, including an employer’s
failure to pay or provide the required
wages or working conditions, an
employer’s failure to comply with its
obligations to recruit U.S. workers, or an
employer’s failure to cooperate with
required audits or investigations. In the
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Department’s view, the employer
subject to debarment should also be
excluded from participation in the ES
system. The Department does not want
the ES system to facilitate placement of
U.S. workers with employers whom the
Department has determined should not
be permitted to employ nonimmigrant
workers through its H–2A and H–2B
programs, particularly where the U.S.
workers may perform similar work and,
thus, be subject to the same or similar
violations giving rise to the employer’s
debarment.
Regarding consultation with the
proposed Office of Workforce
Investment discontinuation of services
list, as discussed below, the effect of a
final decision to discontinue services to
an employer would be to prohibit that
employer from receiving any services
from the ES system, not just from offices
in the State that discontinued services.
The Department recognizes that SWAs
need a mechanism to ensure that they
are not providing services, including the
processing and placement of clearance
orders, to entities whose services have
been discontinued, and that any such
mechanism should be straightforward
for the SWAs to use for it to be effective.
The Department believes that
maintaining a list of discontinued
entities—like the debarment lists
maintained by OFLC and WHD—that
SWAs could access when reviewing
clearance orders is the most
straightforward approach to effectuate
this goal. In order to avoid unnecessary
burden, SWAs and ES offices would
consult the Office of Workforce
Investment discontinuation of services
list and would not provide ES services
to any employers on the list, without
having to go through the steps described
in part 658, subpart F, to discontinue
services to the same employer in their
specific State. The Department also
notes that the proposed changes in part
658, subpart F, discussed below,
address the entities subject to
discontinuation. Proposed § 658.503(e)
would mandate that if the SWA
discontinues services to an employer,
the employer, which includes
successors in interest, cannot participate
in or receive Wagner-Peyser Act ES
services provided by the ES to
employers pursuant to parts 652 and
653; therefore, no SWA would be able
to process any future job orders from the
employer or a successor in interest,
unless services are reinstated under
§ 658.504.
Section 653.501(c)(3) lists the
assurances that each clearance order
must include before it can be placed
into clearance. Paragraph (c)(3)(i)
currently requires that the clearance
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order include an assurance that the
employer will provide workers referred
through the clearance system the
number of hours of work, as indicated
on the clearance order, for the week
beginning with the anticipated date of
need unless the employer notifies the
order-holding office of a change to the
anticipated start date at least 10
business days prior to the original start
date, and states that the SWA must
make a record of the notification and
must attempt to inform referred workers
of the change. Section 653.501(c)(3)(iv)
currently requires that the clearance
order include an assurance that the
employer filing the order will promptly
notify the order-holding office or SWA
that crops are maturing faster or slower
than expected or of other events that
change the terms of employment.
Section 653.501(c)(5) currently provides
that if the employer fails to provide the
required notice, the employer is
obligated to provide eligible (pursuant
to paragraph (d)(4) of this section)
workers referred through the clearance
system the first week’s pay at the rate
stated on the clearance order or find
alternative work, if such alternative
work is included in the clearance order.
For criteria clearance orders, any
alternative work provided to U.S.
workers referred through the ARS will
be agricultural work, in order to comply
with the H–2A program requirements
for work offered on such orders. For
non-criteria orders, because the order is
placed through the ARS, it is
anticipated that alternative work
provided in these situations also will be
agricultural work.
The Department has determined these
requirements do not provide adequate
notice to workers placed on the
clearance order when the terms of their
employment change and do not
adequately protect workers from the
potential consequences of those
changes. The current notification
requirement, which inadvertently
incorporates a requirement on the SWA
into the employer assurances, is not
sufficient to prevent unnecessary delay
because it requires that notification
occur in two steps—first from the
employer to the SWA, and then from the
SWA to the workers. Additionally,
given the transient nature of temporary
and seasonal farmwork, coupled with
increased housing, transportation, and
food costs in recent years, the
requirement that employers provide 1
week’s pay if they fail to satisfy the
notification requirement does not
sufficiently protect workers from
resulting financial hardship. The
Department proposes several changes to
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address these concerns by improving
notice and wage protections for workers
hired under ARS clearance orders.
Specifically, the Department proposes
to revise § 653.501(c) to require that, in
the event the employer’s date of need
changes from the date the employer
indicated on the clearance order, the
employer must notify the SWA and all
workers placed on the clearance order of
the change at least 10 business days
before the original start date. The
proposed revisions clarify that
notification is only to workers placed on
the clearance order, and not to workers
who were referred but not hired. The
proposed revisions recognize that
employers, rather than the SWA or the
order holding office, are in the best
position to contact and notify workers
placed on the order of changes to the
date of need because the employer has
already contracted to employ the
workers and should have up-to-date
contact information for each worker.
The requirement to document this
outreach is a minimally burdensome
means to allow the SWA to assess
compliance with this assurance. This
proposed change will increase the
likelihood that workers will receive
timely notification of any change to the
start date and that employers maintain
accurate records of notices they provide.
To ensure consistent protections for
workers in the United States who apply
to the employer directly, as well as to
H–2A workers and workers in
corresponding employment who may be
impacted by a delayed start date of
work, the Department proposes
conforming protections at a new
§ 655.175 of the H–2A program
regulations.
The Department further proposes that
employers that fail to comply with these
notice requirements must provide
housing and subsistence to all workers
placed on the clearance order who are
already traveling to the place of
employment, without cost to the
workers, until work commences, and
must pay all workers placed on the
clearance order the applicable wages for
each day work is delayed for a period
of up to 2 weeks, starting with the
originally anticipated date of need. The
Department’s proposal to require the
provision of housing and subsistence
would align the protections U.S.
workers placed on non-criteria
clearance orders receive with
protections workers on criteria
clearance orders receive under current
§ 655.145(b) and proposed § 655.175(b).
The Department does not anticipate that
requiring the provision of housing will
burden employers as they are required
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to have their housing ready and
inspected prior to the start date.
The Department’s proposal to expand
the period during which employers
must pay the applicable wage to 2
weeks, from the current 1-week period,
will better protect agricultural workers
from financial hardship they are likely
to experience should they travel or
otherwise rely on the job opportunity
articulated on the clearance order and
find that work is not available to them.
Providing up to 2 weeks of wages
provides a safety net for workers to
support themselves when work is not
available. The Department believes 1
week of wages is insufficient to protect
workers from the financial hardships
associated with a delayed starting date
when such delays were not
communicated, particularly if a worker
traveled for the job. In lieu of paying the
2 weeks’ worth of wages, if the
employer fails to comply with the notice
requirements, employers can provide
such workers alternative work if such
alternative work is listed on the
clearance order. The Department has
determined that this alternative
effectively addresses the hardship
concern by providing the worker a
source of income while continuing to
allow the employer flexibility to adjust
their anticipated start date.
To accomplish these changes, the
Department proposes several specific
revisions. The Department proposes to
revise § 653.501(c)(3)(i) to remove the
requirement that the SWA must make a
record of the notification and attempt to
inform referred workers of the change in
the date of need. The current language
improperly incorporates a SWA
requirement into the employer
assurances, and, as discussed below, the
Department proposes to shift these
responsibilities to the employer which,
as discussed below, the Department has
determined is better situated to make
timely contact with workers. The
Department also proposes to move
language in this paragraph regarding the
employer’s notice to the order-holding
office to § 653.501(c)(3)(iv), which
contains other instructions the employer
must follow when giving notice of
changed terms and conditions of the
opportunity. The proposed regulation at
§ 653.501(c)(3)(i) would maintain that
the employer’s notice must comply with
paragraph (c)(3)(iv), which would more
clearly explain the employer’s assurance
to comply with the full notice
requirements.
The Department proposes to make
additional revisions to paragraph
(c)(3)(iv). First, the Department proposes
to remove a redundancy in the first
sentence, which currently states that the
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employer must expeditiously notify the
order-holding office or SWA
immediately. Because immediate notice
is expeditious, the use of the word
‘‘expeditiously’’ is not necessary.
Second, the Department proposes that
the assurance on the clearance order
require that when there is a change to
the start date of need, the employer,
rather than the order-holding office or
SWA, notify the office or SWA and each
worker placed on the order. When there
is a change in the date of need it is
imperative that workers placed on the
order be notified as quickly as possible
to allow the worker to change any travel
arrangements and otherwise remain
informed about the opportunity. As
noted above, the Department has
determined that the employer, which
has already contracted or communicated
with the worker, is better positioned to
make timely contact with workers and
therefore proposes that the employer
agree to do so as a condition of the
participation in the ARS. Third, the
Department, in this assurance and in
paragraph (c)(5), proposes to require
notification to workers placed on the
order rather than eligible workers
referred from the order. The Department
proposes this change because the
obligation to provide housing and
subsistence to workers who are already
traveling to the place of employment,
and to pay wages for up to 2 weeks or
provide alternative work is relevant
only to workers who were actually
placed with the employer rather than to
workers referred to the employer
through the ARS. Additionally, under
current paragraph (c)(5), the obligation
to pay or provide alternative work is for
eligible workers, meaning those referred
workers who contact the ES Office to
verify the date of need pursuant to
paragraph (d)(4). As discussed below,
the Department proposes to remove
paragraph (d)(4), which includes this
verification requirement. With the
proposed change to have employers
notify workers of any change in their
start date, the requirement that referred
workers verify their start date with the
ES Office is no longer necessary.
Finally, the Department proposes to
include the requirement to provide
housing and subsistence to all workers
who are already traveling to the place of
employment, without cost to the
workers, until work commences and to
pay up to 2 weeks of wages or find
alternative work from paragraph (c)(5),
as the Department proposes to amend it,
in the assurance. This change will make
this obligation clear to the employer at
the time they complete and sign the
clearance order.
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The Department also proposes several
changes to paragraph (c)(5). First, the
Department proposes to specify that the
employer must provide notice to the
worker placed under the clearance
order, which will align this paragraph
with paragraph (c)(3)(iv) and the
proposed changes to the assurance
described therein. For the same reason,
the Department proposes to remove
language stating employers must pay
only workers who are eligible pursuant
to paragraph (d)(4).
The Department proposes to further
revise paragraph (c)(5) to clarify that the
employer would be required to provide
housing and subsistence to all workers
who are already traveling to the place of
employment, without cost to the
workers, until work commences and to
pay the specified hourly rate of pay on
the clearance order, or if the pay listed
on the clearance order is a piece-rate,
the higher of the Federal or State
minimum wage, or if applicable, any
prevailing wage.9 If the order is a
criteria clearance order the employer
would be required to pay the rate of pay
under part 655, subpart B. These
proposed edits would align the wage
requirement in this paragraph with
proposed wage requirements in part
655, subpart B, as applicable. The
Department further proposes to require
that employers, if they fail to provide
the required notice at least 10 business
days before the original date of need,
must pay the required wage for up to 2
weeks instead of the 1 week currently
required. The Department proposes this
change because, as discussed above, the
Department believes 1 week of wages is
not sufficient to ensure workers do not
experience the financial hardship that
would come with being unable to start
work on time, particularly if these
workers have traveled for the job.
The Department proposes to revise
paragraph (c)(5) to clarify that any
alternative work must be in the
approved clearance order to help ensure
employers do not require workers to
perform work at sites not approved by
the SWA and, for criteria clearance
orders, the Department. The Department
proposes to add language to clearly
instruct the SWA to process violations
of these requirements as apparent
violations, which § 658.419 describes as
violations that SWAs, ES office staff, or
outreach staff observe or of which they
have information, and which staff must
document and refer for further action.
The Department proposes these changes
9 For requirements on costs for workers traveling
from abroad, including in the event of a minor
delay, see § 655.122 and the discussion of proposed
§ 655.175 in section IV.E.
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because SWAs have identified many
apparent violations where employers
caused workers to work at worksites
that were not approved in their
clearance orders. In some recent cases,
the workers were not properly trained
and were caused to perform dangerous
tasks, which presented serious health
and safety risks. It is critically important
that all worksites are known and
approved by the SWA and, as
appropriate, the Department, to avoid
workplace injuries, improper wage
payments related to performance of nonagricultural work, and potential human
trafficking.
Finally, the Department proposes to
remove paragraphs (d)(4), (7), and (8) in
their entirety because, with the
proposed change to have employers
notify workers of any change in the start
date, the requirement that the applicant
holding office notify workers of any
changes is no longer relevant or
necessary.
D. Discussion of Proposed Revisions to
20 CFR Part 658, Subpart F
This subpart sets forth the regulations
governing the discontinuation of
Wagner-Peyser Act ES services to
employers. In 1977, the Department
published regulations at 20 CFR part
658 governing the monitoring of all ES
activities and enforcement of ES
regulations. Subpart F provided
procedures for discontinuation of
services where a State agency, through
its director, determined that an
employer violated ES regulations. Under
subpart F, where a complaint alleging
an employer violated ES regulations
could not be resolved or, in the absence
of a complaint, where the State had
reason to believe an employer violated
ES regulations and could not informally
resolve the matter, the State would refer
it to the State director for formal
investigation. Where the director issued
a formal, written determination that an
employer violated ES regulations, the
determination would include a
notification that the State would initiate
discontinuation procedures in 30 days
unless the employer provided sufficient
evidence that it did not violate the ES
regulations or had corrected the
violation. If the matter was not resolved
in 30 days, the State would then notify
the employer in writing that it would
terminate ES services in 15 days unless
the employer requested a hearing or
provided sufficient evidence that it did
not violate ES regulations. Where the
employer did neither, the State would
discontinue ES services to the employer
until the employer provided sufficient
evidence that it did not violate ES
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regulations or that it corrected the
violation.
In 1980, the Department published
regulations to clarify and streamline the
discontinuation provisions. In addition
to violations of ES regulations, the
Department set forth several, specific
bases for discontinuation (e.g., where
the employer is found to have
misrepresented the terms and
conditions of a job order, or found by an
enforcement agency to have violated an
employment-related law). The
Department also revised the
discontinuation procedures to include
(1) a notice of intent to discontinue
services, (2) an opportunity for
employer to respond and/or request a
hearing, (3) a final determination, and
(4) an opportunity to request
reinstatement or a hearing.
The Department proposes revisions
throughout this subpart to further clarify
the bases and process for discontinuing
services because the Department has
observed a need for greater clarity
among SWAs about the circumstances
under which they must discontinue
services to employers and the specific
requirements they must follow to do so.
As discussed below, in the Department’s
view, SWAs do not utilize the
discontinuation process to the fullest
extent because of uncertainty regarding
the process and requirements to
discontinue services.
In this subpart, the Department also
proposes to reorganize regulations to
more accurately group subjects and to
more logically arrange procedural steps,
including when and how employers
may request a hearing. Finally, the
Department proposes to clarify what ES
services would be unavailable after
discontinuation and the entities subject
to discontinuation.
The existing regulations in this
subpart require SWAs to discontinue
services to employers who meet any of
the bases for discontinuation detailed at
§ 658.501(a), by utilizing the procedures
outlined in §§ 658.501 through 658.504.
However, the Department has observed
hesitancy among SWAs to utilize the
existing discontinuation provisions, and
SWAs have shared information with the
Department that they do not fully
understand the requirements to
discontinue services to employers and
have sought instructions and
Departmental review of notifications to
employers. The Department’s data
suggests that this lack of clarity is
limiting the SWA’s use of
discontinuation. For example, a SWA is
required to discontinue services if an
employer fails to fully comply with
assurances made on clearance orders.
These assurances include compliance
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with housing standards, wage payment,
contract disclosure, recordkeeping, and
other common areas of employer
noncompliance. As reported in the
National Monitor Advocate’s (NMA)
Annual Report on Services to MSFWs
for program year (PY) 2020, the most
recent year for which data is available,
Form ETA–5148 (Services to Migrant
and Seasonal Farmworkers Reports)
documents that SWAs processed 598
ES-related complaints against employers
involving non-MSFWs and 94 ESrelated complaints against employers
involving MSFWs. Of the 2,581 total
complaints received, which include ES
and non-ES related complaints
involving MSFWs and non-MSFWs,
SWAs processed, 950 complaints
related to wages, 270 complaints
involved discrimination, 173
complaints involved health and safety,
and 88 complaints involved housing, in
addition to other categories. Also, in PY
2020, SWAs reported that they
processed 453 apparent violations, as
described at § 658.419, including 218
wage-related issues, 175 health and
safety related issues, and 51 housingrelated issues, in addition to other
categories. Despite the number of
complaints and apparent violations in
these areas, SWAs reported that they
discontinued services to only 17
employers in PY 2020. While not every
complaint or apparent violation will
result in discontinuation of services, the
low number of discontinuations relative
to the number of complaints and
violations may suggest that enhanced
clarity in the bases and procedures for
discontinuation is needed, and could
aid SWAs in better utilizing the
discontinuation provisions to hold
employers accountable and protect
workers from additional violations.
Similarly, SWAs must initiate
discontinuation of services when the
Department or a SWA receives
notification from an appropriate
enforcement agency of a final
determination that includes a violation
of an employment-related law.
Applicable enforcement agencies may
include any State, Federal, or local
agencies that enforce employmentrelated laws, for example the
Department’s Occupational Safety and
Health Administration (OSHA), WHD,
the National Labor Relations Board
(NLRB), the Equal Employment
Opportunity Commission (EEOC), State
or local departments of health, and
other related agencies. WHD public
enforcement data documents thousands
of investigations between PY 2012 and
PY 2019 that involve employers who
used the ES to place criteria clearance
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orders and violated employment-related
laws. However, between PY 2012 to
2019, SWAs reported that they only
discontinued services twice (once in PY
2016 and once in PY 2019). Again, the
glaring disparity between the number of
violations found by WHD and the actual
discontinuation of services by the SWAs
during the same time period may
suggest that the SWAs would benefit
from clarifying revisions to the ES
regulations governing the
discontinuation process.
The Department believes that the
increase in discontinuation of services
in PY 2020 is likely attributable to the
NMA’s increased training of SWA staff
in this area of the regulation and not
due to an increase in the number of
employers meeting the conditions for
discontinuation of services. While this
training provided needed clarity to the
SWAs, and therefore produced results,
the Department sees the need for
additional clarity and support for SWAs
to discontinue services and mitigate the
possibility of misunderstanding or
incorrectly utilizing the discontinuation
provisions. As noted above, in recent
years, SWAs have shared information
with the Department that they do not
fully understand the requirements to
discontinue services to employers and
have sought instructions and
Departmental review of notifications to
employers. In the Department’s review,
the Department identified that SWAs
have made errors regarding citing
applicable bases to discontinue services
under § 658.501(a), describing necessary
facts to justify the discontinuation, and
notifying employers of their right to a
hearing. These issues contributed to
several instances where SWA were not
successful in discontinuing services to
employers even though the SWAs
believed they had a sufficient basis to
discontinue services. The Department
believes that revising the regulations, as
described below, provides SWAs the
needed additional clarity to better
implement the discontinuation
provisions and would allow ETA,
including its regional offices, to better
monitor and support SWAs to ensure
they initiate discontinuation of services
as required by the regulations. This
would improve worker protection by
preventing noncompliant employers
from using the ES service to obtain
workers (including H–2A workers, as
employers seeking to use the H–2A visa
program must first file a clearance order
through the ES) which, in turn, aids the
Department in ensuring a fair labor
exchange system for compliant
employers, and meeting its statutory
obligations to maintain and increase the
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usefulness of the ES system.
Additionally, the proposed
clarifications and improvements to the
discontinuation procedures provide
greater certainty to employers seeking to
provide information to SWAs in
response to a notice of intent to
discontinue, or seeking to reinstate
services, and protect employers’
interests by ensuring that they receive
informative and timely determinations
from SWAs. Specific proposed changes
are discussed below.
The Department proposes to revise
§ 658.500, which describes the scope
and purpose of subpart F, to add
language consistent with proposed
revisions to § 658.503 that discontinued
services include services otherwise
available under parts 652 and 653. This
revision clarifies the scope of services
discontinued to include the labor
exchange services—such as recruitment,
career, and labor market information
services—available to employers under
part 652.
The Department also proposes to add
paragraph (b) to § 658.500, which would
explain that for purposes of this subpart,
employer refers to employers, as defined
at § 651.10, and agents, farm labor
contractors, joint employers, and
successors in interest, as proposed to be
defined at § 651.10. Proposed paragraph
(b) would therefore describe which
entities may experience discontinuation
of services. Each of these entities may
engage in the ES clearance system by
creating or submitting clearance orders,
or by managing or utilizing workers
placed on ES clearance orders. Agents
and farm labor contractors often engage
the ES clearance system by submitting
clearance orders and controlling many
aspects of recruitment activities relating
to clearance orders. Joint employers may
utilize workers placed on clearance
orders in the same or similar manner as
the employer, defined at § 651.10, with
whom they jointly employ those
workers. A successor in interest may
have reincorporated itself from an
employer whose ES services have been
discontinued into another business
entity that maintains the same
operations or interests, allowing that
entity to undermine the effect of the
discontinuation of the original entity in
contravention of the purpose of the
discontinuation regulation. The
proposed revisions are meant to clarify
and expand the entities who engage the
ES clearance system and are, thus,
subject to discontinuation. Specifically,
this change makes it clear that agents,
farm labor contractors, joint employers,
and any successor in interest to an
agent, farm labor contractor, or joint
employer, are subject to discontinuation
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of services. This proposed change
addresses a limitation of the current
regulation, allowing SWAs to take
action that will better protect workers.
Finally, as the proposed agents, farm
labor contractors, joint employers, and
successors in interest also seek
temporary labor certifications from
OFLC under part 655, subpart B, adding
these entities here brings the
discontinuation regulation in line with
the existing H–2A regulations, which
permit the debarment of agents, farm
labor contractors, joint employers, and
successors in interest, as well as fixedsite H–2A employers, and agricultural
associations.
Section 658.501 describes eight bases
for which SWA officials must initiate
discontinuation of services to
employers. The Department proposes
several edits to paragraphs (a)(1)
through (7), except paragraph (a)(3),
including a substantive revision to
paragraph (a)(4).
In paragraph (a)(1), the Department
proposes to state that SWA officials
must discontinue services to employers
who submit and refuse to correct or
withdraw job orders containing terms
and conditions contrary to employmentrelated laws. The existing regulation
contains the terms alter and
specifications. The Department
proposes to change ‘‘alter’’ to ‘‘correct’’
to more clearly articulate that the
employer must specifically correct the
noncompliant condition rather than
simply changing the condition, which
might not result in correction of the
noncompliance. This change would also
clarify which action will lead to the
initiation of the discontinuation
process. The Department proposes to
change ‘‘specifications’’ to ‘‘terms and
conditions’’ to align the language in
paragraph (a)(1) with the language used
in § 653.501, and proposes to change
this term in the corresponding provision
at § 658.502(a)(1) to conform to this
proposed change to § 658.501(a)(1).
The Department proposes to
reorganize paragraph (a)(2) for clarity by
moving the language regarding
withdrawal of job orders that do not
contain required assurances to earlier in
the sentence. The Department also
proposes to remove language in
paragraph (a)(2) that currently limits
this basis for discontinuation to only
those assurances involving employmentrelated laws. The Department proposes
to remove this language because
employers must provide all assurances
described at § 653.501(c)(3), which
include more than the assurance to
comply with employment-related laws.
The Department has determined that a
failure to provide any required
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assurance should be grounds for
discontinuation because each assurance
is necessary to ensure workers referred
on clearance orders are fully apprised of
and protected by the assurances if
placed on the order.
The Department proposes to amend
paragraph (a)(4) to add that SWA
officials must initiate procedures for
discontinuation of services for
employers who are currently debarred
from participating in the Department’s
H–2A or H–2B foreign labor certification
programs. The Department recognizes
that many employers who use the ARS
also seek temporary labor certifications
from OFLC under part 655, subpart B.
These employers may attempt to recruit
workers through non-criteria orders in
the ARS if they are prohibited from
using the H–2A program as a result of
their debarment. In its experience OFLC
has seen many instances where
employers who should file H–2B
applications because they are seeking to
employ workers in non-agricultural
occupations instead inappropriately file
H–2A applications. Similarly, in its
enforcement experience WHD has seen
employers that have mischaracterized
the nature of their labor needs on their
applications for labor certification to
obtain labor certification to hire workers
from one program to work in job
opportunities that are appropriately
classified in the other program. Failure
to utilize the appropriate H–2 program
results in the posting of inaccurate job
orders, thereby undermining the labor
market test. It also deprives workers of
the specific protections available to
them under each of the respective
programs, such as the right to housing
free of cost under the H–2A program.
Likewise, it harms law-abiding
employers as their competitors gain an
unfair advantage by offering fewer
benefits to their workforce or by
avoiding the H–2B visa cap to which
other employers must adhere. In light of
these experiences, the Department has
determined that it is appropriate for
SWAs to initiate discontinuation
proceedings against entities debarred
from participation in the H–2A or H–2B
temporary labor certification programs
to protect workers seeking employment
through the ES system and to maintain
a fair system for law-abiding employers.
The Department notes that § 655.73
currently prohibits employers debarred
from the H–2B program from
participating in any of the Department’s
other foreign labor programs, including
the H–2A program; this proposal
reinforces that prohibition.
The Department proposes this
requirement to protect workers who use
the ARS by ensuring that ES offices do
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not place U.S. workers with employers
during any such period of debarment.
Debarment is a serious sanction that
results from substantial violations of a
material term or condition of the
employer’s temporary labor
certification, and that is imposed only
after an employer has exhausted or
forfeited an opportunity to respond to
the proposed action as well as
substantial appeals procedures. These
may include violations related to worker
safety, failure to provide required wages
or working conditions, failure to comply
with recruitment requirements or
participate in required investigations or
audits, or failure to pay required fees.
Entities that have committed such
violations should be excluded from
participation in the ES, and the
Department’s proposal will better
protect U.S. workers by ensuring that
they will not be placed with debarred
employers that have substantially
violated a material term or condition of
their temporary labor certification. The
proposed changes would also ensure
that law-abiding employers have greater
access to ES services and are better able
to recruit available U.S. workers for jobs
because SWAs would spend less time
and resources serving noncompliant
employers, and law-abiding employers
would receive referrals of qualified U.S.
workers that might otherwise go to
noncompliant employers.
The Department invites comments on
this proposed basis for discontinuation
and the inclusion of employers debarred
from participation in the H–2B program.
In addition, the Department is
considering whether to expand this
provision to require SWAs to initiate
discontinuation proceedings against
employers that have been debarred from
any of the Department’s other foreign
labor certification programs—the H–1B,
CW–1, and PERM programs. The
Department invites comments on
whether to expand this provision to all
of the foreign labor certification
programs, or to some but not all of the
other foreign labor certification
programs, the scope of employers to
whom this may apply, and the effect(s)
of expanding this provision.
The Department proposes to amend
§ 658.501(a)(5) by adding that this basis
for discontinuing services includes
employers who are found to have
violated ES regulations pursuant to
§ 658.411 or § 658.419. This edit is
intended to clarify that ES violations
may be found as a result of apparent
violations, which are described at
§ 658.419.
The requirement to accept qualified
workers referred through the clearance
system applies only to criteria clearance
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orders filed pursuant to § 655.121;
therefore, the Department proposes to
amend paragraph (a)(6) by clarifying
that discontinuation on the basis of
failure to accept qualified workers
would be appropriate only for
employers placing criteria clearance
orders. For non-criteria clearance
orders, the regulations at part 653,
subpart F, do not require employers to
hire all qualified workers referred
through the ES, so this basis for
discontinuation would not apply.
In paragraph (a)(7), the Department
proposes to remove the words in the
conduct of, which are currently present
but do not add meaning and are
therefore extraneous and unnecessary.
Current § 658.501(b) explains the
circumstances and procedures for
immediate discontinuation of services.
The Department proposes to move
paragraph (b) to §§ 658.502 and 658.503
to clarify that existing paragraph (b) is
not an independent basis for
discontinuation and to better align it
with the discontinuation procedures in
§§ 658.502 and 658.503. Additional
proposed changes are discussed below.
The Department is redesignating
current § 658.501(c), which recognizes
the unique interplay between the ES
and H visa programs, to § 658.501(b),
with revisions. The proposed new
§ 658.501(b) explains what a SWA must
do when it has learned that an employer
participating in the ES system may not
have complied with the terms of its
temporary labor certification under, for
example, the H–2A and H–2B programs.
The current regulation states that SWA
officials must engage in the procedures
for discontinuation of services to
employers pursuant to paragraphs (a)(1)
through (8) of § 658.501. The
Department proposes to clarify that
SWA officials must determine whether
the SWA must initiate discontinuation
of services pursuant to § 658.501(a). The
proposed change clarifies that SWAs
cannot proceed with discontinuation
procedures based solely on information
that an employer may have violated the
terms of its temporary labor
certification. Rather, SWAs must take
that information and look to paragraph
(a) to determine whether one of the
bases for discontinuation applies. Once
a SWA determines that one of the bases
for discontinuation under paragraph (a)
does apply, then the SWA must initiate
discontinuation of services. Finally, as
the proposed paragraph (b) would apply
to both currently active and previous
labor certifications, the Department
invites comments on whether it would
be appropriate to limit the scope of
previous labor certifications or potential
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violations of a labor certification to a
particular time period.
Section 658.502 describes the
notification and procedural
requirements a SWA must follow when
it intends to discontinue services to an
employer. The Department proposes
several changes throughout § 658.502 to
clarify and streamline these
requirements. First, the Department
proposes to revise the section heading to
state that it relates to notification to
employers of the SWA’s intent to
discontinue services. This change
clarifies that this section relates only to
initial notices proposing
discontinuation and not to the final
notices described in § 658.503. The
Department also proposes to add
introductory language to the beginning
of paragraph (a) to clarify that these
procedures apply where the SWA
determines that there is an applicable
basis for discontinuation of services
under § 658.501(a). The Department
proposes additional revisions to
paragraph (a) to clarify that the initial
notices must provide the reasons for
proposing discontinuation and must
state that the SWA intends to
discontinue services in accordance with
this section. The proposed language
removes the reference to part 654, to
which discontinuation of services does
not apply. These proposed revisions are
intended to address issues SWAs
encountered in PY 2020 and 2021 in
initiating discontinuation of services,
including insufficient notification to
employers of the applicable bases for
discontinuation and insufficient factual
detail in the notices to support the
applicable bases. The Department notes
that if more than one basis under
paragraph (a) applies, the SWA must
initiate discontinuation under all
applicable bases.
Paragraphs (a)(1) through (7) of
§ 658.502 provide specific notification
requirements for each of the
corresponding bases for discontinuation
outlined in § 658.501(a)(1) through (7).
The Department proposes to remove
language in § 658.502(a)(1) through (7)
that describes the applicable bases for
discontinuation and instead crossreference the applicable citations for
clarity. For example, the Department
proposes to revise § 658.502(a)(1) to
state that the paragraph applies where
the proposed discontinuation is based
on § 658.501(a)(1). This would replace
current language that describes
§ 658.501(a)(1) and more clearly and
succinctly direct the SWA to
§ 658.501(a)(1) as the applicable basis.
The Department also proposes to
remove language in § 658.502(a)(1)
through (7) that provides employers the
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opportunity for a pre-discontinuation
hearing. In response to a SWA’s notice
of intent to discontinue services, the
existing language provides an employer
the opportunity to submit evidence
contesting the proposed discontinuation
and/or to request a hearing pursuant to
§ 658.417. The proposed revisions will
better align the hearing procedures for
discontinuation of services at part 658,
subpart F, with the hearing procedures
for the ES Complaint System at
§§ 658.411(d) and 658.417, which allow
for a hearing by a State hearing official
only after the SWA issues a final
decision on a complaint. As currently
written, the discontinuation
proceedings at § 658.502(a)(1) through
(3) and (5) through (7) allow for a
hearing under § 658.417 without the
SWA ever issuing a final determination
under § 658.503. This prevents SWAs
from uniformly issuing final
determinations in all discontinuation
proceedings. Additionally, it
inadvertently allows employers to
bypass a formal decision from the SWA
anytime they request a hearing and,
because State administrative hearings
may take several months to complete,
inadvertently prolongs any formal
determinations. The Department
believes that removing the opportunity
for a pre-discontinuation hearing—
while maintaining the opportunity for
employers to submit evidence
contesting the proposed discontinuation
under § 658.502 and the opportunity for
a post-discontinuation hearing in
§ 658.504—allows SWAs to
expeditiously and fairly resolve
discontinuation proceedings while
providing sufficient due process to
employers. The proposed change allows
for a more complete record than would
result from an immediate appeal of a
notice from the SWA proposing
discontinuation. This proposed change
also better aligns with the ES Complaint
System regulations which do not
contemplate pre-determination
hearings. Moreover, as discussed above,
the 1977 discontinuation regulations
only allowed for pre-discontinuation
hearings and, in an effort to clarify and
streamline the discontinuation
provisions, the 1980 regulations allowed
for both a pre- and post-discontinuation
hearing pursuant to § 658.417. In doing
so, the pre-discontinuation hearing
currently available under § 658.502 is
no different than the postdiscontinuation hearing available under
§ 658.504. Removing the identical prediscontinuation hearing allows for a
more efficient process without removing
due process protections for employers
and ensures that post-discontinuation
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hearings are decided on a more
complete record.
Finally, in § 658.502(a)(1) through (7),
the Department proposes changing the
language that SWAs must notify
employers that all employment services
will be terminated to state that all ES
services will be terminated. The
proposed language clarifies that the
services at issue are specific to the ES.
In addition to the changes described
above, the Department proposes
revisions to paragraphs (a)(1) through
(7) to provide greater detail and
specificity regarding the type of
information that SWAs must provide to
employers when proposing to
discontinue services. The proposed
changes ensure that SWAs adequately
explain their reasons for proposing
discontinuation, and that employers
have sufficient factual detail to respond
to the proposed discontinuation. In
these paragraphs, the Department also
proposes small changes for clarity,
including rewording sentences so they
use the active voice.
In paragraph (a)(2), the Department
proposes to add language explaining
that SWAs must specify the assurances
involved and must explain how the
employer refused to provide the
assurances. The proposed edits ensure
that SWAs describe the basic facts that
led them to initiate discontinuation of
services so employers understand the
scope of the alleged violation and have
sufficient information to respond. The
Department also proposes a revision to
paragraph (a)(2)(ii) to align this
paragraph with the proposed changes to
§ 658.501(a)(2), discussed above,
regarding the scope of the required
assurances.
In paragraph (a)(3), to provide clearer
direction to SWAs and better notice to
entities receiving a notice, the
Department proposes to add language
stating that SWAs 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. In paragraph (a)(3)(iii), the
Department proposes removing the
requirement that employers provide
resolution of a complaint which is
satisfactory to a complainant referred by
the ES, replacing it with the
requirement that an employer provide
adequate evidence that it has resolved
the misrepresentation of terms and
conditions of employment or
noncompliance with assurance.
Evidence is adequate if the SWA could
reasonably conclude that the employer
has resolved the misrepresentation or
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noncompliance. The proposed change
removes unnecessary and out-of-place
language regarding ES complaints,
which are addressed in paragraph (a)(5),
and better aligns § 658.502(a)(3) with
proposed § 658.501(a)(3). The
Department also proposes combining
paragraphs (a)(3)(iii) and (iv) to make
clear that employers need to provide the
information in paragraphs (a)(3)(iii) and
(iv) together.
In paragraph (a)(4), the Department
proposes to add language that SWAs
must provide evidence of the final
determination by an enforcement
agency of a violation of an employmentrelated law or debarment with the
notice of intent to discontinue services.
For purposes of discontinuation, a final
determination is a decision by an
enforcement agency, such as WHD,
OSHA, or other Federal, State, or local
agency responsible for enforcing
employment-related laws, that has
become operative under applicable law.
For final determinations, the
Department proposes adding language
clarifying that the SWA must specify—
as discussed in the final determination
or debarment—the enforcement
agency’s findings of facts and
conclusions of law as to the
employment-related law violation(s).
For final debarment orders, the
Department proposes adding language
requiring the SWA to specify the time
period for which the employer is
debarred from participating in one of
the Department’s foreign labor
certification programs. These proposed
revisions ensure the SWA has
confirmed that a final determination or
debarment exists and that the employer
has sufficient information regarding the
final determination at issue to respond.
The Department proposes revisions to
§ 658.502(a)(4)(i) through (iii) to clarify
and explain the evidence and
assurances that employer may provide
to avoid discontinuation of services. In
paragraph (a)(4)(i), the Department
proposes to remove existing language
stating that the employer may provide
evidence that the enforcement agency
reversed its ruling and that the
employer did not violate employmentrelated laws; and to replace it with
language stating that the employer may
provide evidence that the determination
at issue is not final because, for
example, it has been stayed pending
appeal, overturned, or reversed. The
proposed change clarifies that
employers may contest the finality of
the determination under paragraph
(a)(4) and clarifies that SWAs may not
discontinue services where a
determination is not, in fact, final. The
Department proposes a new paragraph
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(a)(4)(ii) which requires employers to
submit evidence that their period of
debarment is no longer in effect and that
they have taken all actions required by
the enforcement agency as a
consequence of the violation. If the
proposed discontinuation is based only
on a final determination of a violation
of an employment related law, then
evidence that the debarment is no
longer in effect is not needed; similarly,
if the proposed discontinuation is based
on a debarment then evidence that the
employer has taken necessary remedial
actions is not necessary. The proposed
addition in paragraph (a)(4)(ii)(A) is
necessary to address employer
responses to debarment or
disqualification. The proposed
paragraph (a)(4)(ii)(B) incorporates
existing language and is meant to more
clearly encompass any and all actions
required by final determination but does
not substantively change what an
employer has to show under current
§ 658.502(a)(4)(ii).
In paragraph (a)(5), the Department
proposes additional language to clarify
that the SWA must specify which ES
regulation the employer has violated
and must provide basic facts to explain
the violation. The proposed language
ensures that SWAs provide sufficient
factual detail regarding the ES violation
at issue so the employer can respond.
The Department proposes to revise
§ 658.502(a)(6) to explain that SWAs
must state that the job order at issue was
filed pursuant to § 655.121 and specify
the name of each worker who was
referred and not accepted. The proposed
revision is consistent with the proposed
change to § 658.501(a)(6) and ensures
that SWAs provide sufficient factual
detail regarding the workers at issue so
the employer can respond. In paragraph
(a)(6)(iii), the Department proposes
changing and to or to decouple
paragraph (a)(6)(iii) from the assurances
required in existing paragraph (a)(6)(iv),
as it is not necessary for employers that
did not violate the requirement to
provide assurances of future
compliance. The Department proposes a
new paragraph (a)(6)(iv), to add an
option for the employer to show that it
was not required to accept the referred
workers, because the time period under
20 CFR 655.135(d) had lapsed, and a
new paragraph (a)(6)(v), to add an
option for the employer to show that,
after initial refusal, it subsequently
accepted and offered the job to the
referred workers or to show that it has
provided all appropriate relief imposed
as a result of the refusal. It is necessary
to update this paragraph because the
current regulation does not provide for
the scenario where an employer
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subsequently offers employment to
qualified workers after first refusing, as
the current paragraph (a)(6)(i) is
intended to capture scenarios where an
employer accepted qualified workers
and did not refuse them as found by the
SWA. It is also possible that SWAs may
attempt to resolve apparent violations
involving failure to hire qualified U.S.
workers referred through the ES,
resulting in employers hiring those
individuals. Finally, the Department
proposes to move existing paragraph
(a)(6)(iv) to paragraph (a)(6)(vi) to
maintain the requirement that the
employer provide assurances that
qualified workers referred in the future
will be accepted; and adds new
language to clarify the assurance that is
required depending on whether the
period described in 20 CFR 655.135(d)
has lapsed, as after the end of the period
the employer would no longer be
required to accept referred workers on
the particular clearance order involved.
This change provides a means of
ensuring future compliance with the
requirement that the employer
submitting criteria clearance orders
hires all qualified workers referred to
the order.
In paragraph (a)(7), the Department
proposes clarifying edits that provide
clearer direction to the SWA but that do
not change the regulation’s meaning,
including rephrasing sentences and
changing the pronoun used for
employers to it instead of he/she.
The Department proposes to add a
new paragraph (a)(8) to explain
information the SWA must include in
its notice to an employer proposing to
discontinue services where the decision
is based on § 658.501(a)(8) (repeatedly
causes the initiation of discontinuation
of services). The Department proposes
that the SWA must list and provide
basic facts explaining the prior
instances where the employer has
repeatedly caused initiation of
discontinuation proceedings to provide
notice of the basis for the SWA’s action
to facilitate their response. The SWA
must notify the employer that all ES
services will be terminated unless the
employer within that time provides
adequate evidence that the SWA’s
initiation of discontinuation in prior
proceedings was unfounded. The
proposed paragraph (a)(8) replaces
existing paragraph (c), which discusses
discontinuation based on § 658.501(a)(8)
but does not include clear direction to
the SWA and does not provide
sufficient notice to employers to allow
them to respond.
The Department proposes to remove
existing § 658.502(b) and (d) because
these paragraphs pertain to the
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employer’s pre-determination
opportunity to request a hearing. As
described above, the Department
proposes to eliminate the opportunity
for an employer to request a hearing
until after the SWA has provided its
final notice on discontinuation of
services to the employer.
The Department proposes a new
§ 658.502(b) to explain the
circumstances that warrant immediate
discontinuation of services. The
proposed addition replaces existing
§ 658.501(b), in part, and states that
SWA officials must discontinue services
immediately, in accordance with
§ 658.503, without providing the notice
of intent and opportunity to respond
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. The existing
§ 658.501(b) states that SWA officials
may discontinue services immediately
in these circumstances, whereas the
proposed new § 658.502(b) states that
SWAs must discontinue services
immediately. Additionally, existing
§ 658.501(b) allows for discontinuation
when there would be substantial harm
to a significant number of workers,
whereas proposed new § 658.502(b)
requires immediate discontinuation
when there would be substantial harm
to workers. The proposed changes
recognize that immediate
discontinuation is warranted where the
harm at issue would involve only one or
a small number of workers, and that
where such harm would occur SWAs
must be required to initiate
discontinuation to prevent the harm
from actually occurring to workers.
Finally, this proposed paragraph
clarifies that immediate discontinuation
is appropriate only when a basis under
proposed § 658.501 exists and the SWA
determines that substantial harm would
occur; risk of substantial harm alone is
not enough for a SWA to immediately
discontinue services.
Section 658.503 describes the
procedural requirements a SWA must
follow when issuing a final
determination regarding discontinuation
of services to an employer. The
Department proposes to revise
paragraph (a) to require that within 20
working days of receipt of the
employer’s response to the SWA’s
notification under § 658.502, or at least
20 working days after the SWA’s
notification is received by the employer
if the SWA does not receive a response,
the SWA must notify the employer of its
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final determination. When the SWA
sends its notification, it must do so in
a manner that allows the SWA to track
receipt of the notification, such as
certified mail. If the SWA determines
that the employer did not provide a
satisfactory response in accordance with
§ 658.502 the SWA’s notification must
specify the reasons for its
determination, state that the
discontinuation of services is effective
20 working days from the date of the
notification, state that the employer may
request reinstatement or a hearing
pursuant to § 658.504, and state that a
request for a hearing stays the
discontinuation pending the outcome of
the hearing. The Department is
proposing this stay pending appeal and
the 20-working-day period to ensure
that employers are provided an
opportunity to challenge the SWA’s
determination before losing access to all
ES services. Staying the effect of
discontinuation during the pendency of
an appeal is appropriate to allow for full
adjudication and resolution of any
issues related to the SWA’s findings
before they become final and binding on
the employer and the ES system,
mitigating the risk that an employer is
erroneously deprived of access to
services, similar to the procedures in
§ 658.502. Additionally, placing the
effective date at the end of the 20-day
period, rather than at the issuance of the
notification, avoids depriving appealing
employers of ES services for a short
period of time prior to their request for
hearing. This also makes for a more
efficient process for SWAs and ETA, as
these agencies would otherwise expend
time and resources to effectuate a
discontinuation that may be
premature—if the employer requests a
hearing a short time later, agencies
would need to use additional resources
to then stay the discontinuation they
just effectuated. To facilitate
implementation and maintenance of the
proposed Office of Workforce
Investment discontinuation of services
list, discussed above, the SWA must
also notify the ETA Office of Workforce
Investment of any final determination to
discontinue ES services, including any
decision on appeal upholding a SWA’s
determination to discontinue services.
The proposed § 658.503(a) removes
language regarding pre-discontinuation
hearings to correspond with proposed
changes to § 658.502. The Department
believes that this timeline for SWAs is
appropriate because an expeditious
resolution of the matter both minimizes
the uncertainty an employer faces when
a SWA has proposed to discontinue
services, and it allows the SWA to deny
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services to employers that have engaged
in impermissible conduct. The effect of
an adverse final determination would
be, among other things, to protect
workers from being placed with those
employers and would prevent the
employer from seeking a temporary
labor certification under part 655,
subpart B, of the title. Because of the
potential consequences to both
employers and workers, the Department
has determined that an expeditious
process would be necessary.
The Department proposes to add a
new § 658.503(b) to explain the
procedures for immediate
discontinuation of services and to
incorporate them into the general
discontinuation procedures at § 658.503.
The proposed new paragraph (b)
replaces existing § 658.501(b), in part,
and states that the SWA must notify the
employer in writing that its services are
discontinued as of the date of the notice.
The notification must also state that the
employer may request reinstatement or
a hearing pursuant to § 658.504, and
that a request for a hearing relating to
immediate discontinuation does not
stay the discontinuation pending the
outcome of the hearing. The proposed
new § 658.503(b) adds that SWA must
specify the facts supporting the
applicable basis for discontinuation
under § 658.501(a) and the reasons that
exhaustion of the administrative
procedures would cause substantial
harm to workers. The proposed addition
ensures that employers have sufficient
information regarding the SWA’s
rationale for immediate discontinuation,
and makes clear that employers have
recourse to the State administrative
hearing process or reinstatement process
if a SWA immediately discontinues
services. While discontinuation under a
determination issued under § 658.503(a)
is delayed until the employer’s time to
appeal the determination has ended, the
Department thinks that the
circumstances justifying a notice of
immediate discontinuation also justify
that the discontinuation be effective
immediately, irrespective of the
employer’s opportunity to appeal, and
that it remain in effect unless the
employer is reinstated or the
determination is overturned. Immediate
discontinuation is reserved for those
situations where the State Administrator
determines that substantial harm to
workers will occur if action is not
immediately taken. For example, State
Administrators may determine that
immediate discontinuation is justified
when they receive information
evidencing that employers have made
threats or have perpetrated violence
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against workers, or that involve other
substantial harm like human trafficking
and other significant health and safety
issues. SWA quarterly ETA Form-5148
reports evidence that SWAs processed
36 complaints and four apparent
violations involving sexual harassment,
coercion, or assault, as well as two
complaints and six apparent violations
involving trafficking in PY 2020.10
Additionally, over the last several years,
the Department has received
information evidencing that employers
have made threats of physical violence
against workers. In two cases, employers
were recorded on video threatening
workers with firearms. Delaying the
effective date of the discontinuation
would undermine the protection that
the immediate discontinuation
procedure is designed to provide. While
the Department recognizes the burden
that employers may face if they do not
have access to any ES services pending
an appeal of an immediate
discontinuation, the Department thinks
that this burden is outweighed by the
interest in protecting workers from
harmful, potentially dangerous
situations. The Department notes that in
lieu of an appeal, an employer subject
to immediate discontinuation of
services can request reinstatement from
the SWA, and that the proposed 20-day
timeframe for the SWA to respond to
such a request may provide for timely
and efficient resolution of an immediate
discontinuation. Finally, as with
proposed § 658.503(a), to facilitate
implementation and maintenance of the
proposed Office of Workforce
Investment discontinuation of services
list, discussed above, the SWA must
also notify the ETA Office of Workforce
Investment of any final determination to
discontinue ES services.
The Department proposes to move
current § 658.503(b), which requires the
SWA to notify the relevant ETA regional
office if services are discontinued to an
employer subject to Federal Contractor
Job Listing Requirements, to proposed
new paragraph (c) and to make minor
edits to use active voice and to improve
clarity, which do not change the
meaning of the requirement. The
Department proposes to add paragraph
(d) to require SWAs to notify the
complainant of the employer’s
discontinuation of services, if the
discontinuation of services is based on
a complaint filed pursuant to § 658.411.
10 See Appendix IV LEARS 5148 Report Part 1
National Data for PY 2020, https://www.dol.gov/
sites/dolgov/files/ETA/mas/pdfs/APPENDIX%20IV
%20LEARS%205148%20REPORT%20PART%201
%20NATIONAL%20DATA.xlsx.
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This requirement would align with
section § 658.411(b)(2) and (d).
The Department proposes to add a
new paragraph (e) to explain the effect
discontinuation of services has on
employers. The proposed new
paragraph explains that employers that
experience discontinuation of services
may not use any ES activities described
in parts 652 and 653, and that SWAs
must remove the employer’s active job
orders from the clearance system and
must not process any future job orders
from the employer for as long as
services are discontinued. An
employer’s loss of access to ES services
applies in all locations throughout the
country where such services may be
available. If the effect of the
discontinuation were limited to just the
State that discontinued services, it
would frustrate the purpose of
discontinuation.
This proposed new paragraph
responds to common questions the
Department receives regarding the effect
of discontinuation of services on current
and future job orders and, as with
proposed revisions to § 658.500,
clarifies that the scope of services
discontinued to include those ES
services available to employers under
part 652. Proposed § 658.501(b) would
require SWA officials to notify the
OFLC National Processing Center (NPC)
when an ES office or SWA has
information that an employer may not
have complied with the terms of its
temporary labor certification, under, for
example the H–2A and H–2B programs.
Therefore, in addition to closing the
employer’s active clearance orders so
that the employer will not receive
additional U.S. worker referrals, the
NPC would be aware of the alleged
noncompliance so that it may
investigate and apply appropriate
actions to the foreign labor certification.
The Department is interested in
comments on the effect on both workers
and employers of removing active job
orders, particularly criteria orders. The
Department proposes new paragraph (f)
to explain that SWAs must continue to
provide the full range of ES and other
appropriate services to workers whose
employers’ services have been
discontinued. The proposed new
paragraph makes it clear that
discontinuation of services to employers
does not, and should not, negatively
affect workers. SWAs must continue to
provide necessary support to workers,
including outreach to MSFWs, access to
the ES and Employment-Related Law
Complaint System, and all available ES
services.
Section 658.504 describes the
procedural requirements for seeking
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reinstatement of ES services, which can
be done either by requesting that the
SWA reconsider its decision or by
requesting a hearing. The Department
proposes to restructure this section to
more clearly explain how services may
be reinstated, the timeframes in which
the employers and SWA must act, and
the circumstances under which services
must be reinstated.
The Department proposes to revise
paragraph (a) to make clear that
employers have two avenues with
which to seek reinstatement of
services—via a hearing within 20
working days of the discontinuation or
a written request to the SWA at any time
following the discontinuation. An
employer cannot, however,
simultaneously appeal a
discontinuation and submit a written
request to the SWA for reinstatement.
The revised paragraph (a) adds the new
requirement that an employer who
requests a hearing following
discontinuation do so within 20
working days of the date of
discontinuation. These avenues are
available under the current regulation,
but the Department has added a
requirement that the employer file an
appeal within 20 working days of the
SWA’s final determination because both
the employer and the State have an
interest in timely and efficient
adjudication of disputes.
The Department proposes to revise
§ 658.504(b) to explain the
circumstances and procedures under
which SWAs must reinstate services
when an employer submits a written
request for reinstatement. The
Department proposes new paragraph
(b)(1), which retains the current 20-day
timeline in existing paragraph (b) within
which the SWA must notify the
employer whether it grants or denies the
employer’s reinstatement request. The
proposed paragraph (b)(1) also requires
that if the SWA denies the request, the
SWA must specify the reasons for the
denial and must notify the employer
that it may request a hearing, in
accordance with proposed paragraph
(c), within 20 working days.
The Department proposes to move
current paragraph (a)(2), which
describes the evidence necessary for
reinstatement, to proposed paragraph
(b)(2) to align with the overall
restructuring of the section. The
Department also proposes to remove the
word any to require that the employer
show evidence that all applicable
specific policies, procedures, or
conditions responsible for the previous
discontinuation are corrected, instead of
any policies, procedures, or conditions
responsible for the previous
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discontinuation. The Department is
concerned that the current language
could permit reinstatement despite an
employer not correcting all relevant
policies, procedures, or conditions,
which would be inconsistent with the
purpose of discontinuation. Finally, the
Department also proposes to change the
pronoun used for employers to it
instead of his/her.
The Department proposes to revise
§ 658.504(c) to explain the
circumstances and procedures under
which SWAs must reinstate services
when an employer submits a timely,
written request for a hearing. The
proposed revisions maintain the
procedures in existing paragraphs (a)(1),
(c), and (d), but have reorganized them
into the same paragraph for clarity.
Finally, the Department proposes to
replace the abbreviated term ‘‘Federal
ALJ’’ in the existing regulation with
‘‘Federal Administrative Law Judge,’’
commonly abbreviated as ALJ.
The Department proposes a new
paragraph (d) to require that SWAs
notify the ETA Office of Workforce
Investment of any determination to
reinstate ES services, or any decision on
appeal upholding a SWA’s
determination to discontinue services,
within 10 working days of the date of
issuance of the determination. As
discussed above, the Department
believes that prompt notification to the
Office of Workforce Investment will
facilitate implementation and
maintenance of the proposed Office of
Workforce Investment discontinuation
of services list and will ensure that
employers whose services have been
reinstated may promptly access ES
services.
IV. Discussion of Proposed Revisions to
20 CFR Part 655, Subpart B
A. Introductory Sections
1. Section 655.103(e), Defining Single
Employer Test
The Department proposes to define a
new term ‘‘single employer’’ to codify
and clarify its long-standing approach to
determining if multiple nominally
separate employers are operating as one
employer for the purposes of the H–2A
program. The Department has
encountered numerous instances over at
least the last decade where it appears
separate entities are using their
corporate structure—intentionally or
otherwise—to bypass statutory and
regulatory requirements to receive a
temporary labor certification, or to
circumvent regulations aimed at
protecting workers in the United States.
See, e.g., Lancaster Truck Line, 2014–
TLC–00004, at *3, *5 (BALCA Nov. 26,
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2013) (employer was ‘‘frank about
separating the legal entities of his
operation’’ from his father’s operation to
‘‘comply with the H–2A program’s
seasonal permitting restrictions’’ and
the ALJ held the attempt to divide work
did not demonstrate temporary need).
OFLC regularly receives and reviews
applications for temporary labor
certification that appear to be for job
opportunities with different employers
when in reality the workers hired under
these certifications are employed by
companies so intertwined that they are
operating as a single employer in one
area of intended employment for a
period of need that is not temporary or
seasonal. The Department has also
increasingly encountered H–2A
employers that employ H–2A workers
under one corporate entity and non-H–
2A workers under another, creating the
appearance that the H–2A employer has
no workers in corresponding
employment when actually, the
corporate entities are intertwined and
all the H–2A workers are employed by
a single H–2A employer, and the nonH–2A workers are engaged in
corresponding employment. Employers
may attempt to use these schemes to
evade requirements of the H–2A
program, such as paying workers in
corresponding employment the required
wage rate or abiding by the housing and
transportation requirements of the H–2A
program.
OFLC currently uses, and has used for
more than a decade, some form of a
‘‘single employer’’ test to determine if
nominally separate employers should be
considered as one entity for purposes of
assessing temporary or seasonal need
(discussed further below under
Temporary or Seasonal Need). However,
because this test is not incorporated into
the Department’s regulations, it has
been criticized and inconsistently
applied by the Board of Alien Labor
Certification Appeals (BALCA).
Compare Mid-State Farms, LLC, 2021–
TLC–00115, at *16, *25–27 (BALCA
Apr. 16, 2021) (noting that the ‘‘single
employer test’’ has not been subject to
public comment, and thus using the
‘‘joint employer test’’ instead) (more
discussion below) with K.S. Datthyn
Farms, LLC, 2019–TLC–00086, at *4–6
(BALCA Oct. 7, 2019) (applying the
single employer test to determine that
two H–2A applicants for temporary
labor certification were one single
employer with a single labor need).
Relying on Federal and BALCA case
law, WHD currently also applies the
‘‘single employer’’ test to determine the
H–2A employer’s compliance with
program requirements.
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The Department’s proposal to add a
definition of ‘‘single employer,’’ which
would explicitly permit the use of the
single employer test when reviewing
applications for temporary labor
certification and for purposes of
enforcement, is meant to codify the
Department’s long-standing practice.
Doing so would prevent employers from
using their corporate structures to
circumvent regulatory requirements and
would provide notice and clarity to the
stakeholder community regarding the
Department’s single employer analysis.
A clearly articulated definition also
could serve to deter employers from
utilizing practices that appear to
circumvent the obligations of H–2A
employers by making explicit the
obligations of the single employer. This
section discusses (1) the single
employer definition the Department
proposes to add to a new subordinate
paragraph (e) within § 655.103,
including the factors the Department
will consider when determining
whether two or more entities satisfy this
definition; (2) the use of the single
employer test by OFLC when analyzing
whether an employer has a temporary or
seasonal need; and (3) the use of the
single employer test in enforcement of
contractual obligations.
a. Definition
As noted, the Department already
applies a ‘‘single employer’’ test
(sometimes referred to as an ‘‘integrated
employer’’ test) under the H–2A
program in certain contexts. OFLC
currently uses this test to determine if
multiple nominally separate employers
should be considered as one entity for
the purposes of determining whether an
applicant for labor certification has a
temporary or seasonal need, and WHD
uses this test to determine whether H–
2A employers complied with program
requirements. This test originated with
the NLRB and has been adopted by
courts and Federal agencies under a
wide variety of statutes. See S. Prairie
Const. Co. v. Local No. 627, Int’l Union
of Operating Eng’rs, AFL–CIO, 425 U.S.
800, 802–803 (1975). As the Second
Circuit has explained, the single
employer test may be used to determine
liability for employment-related
violations, as well as to determine
employer coverage, and the policy
underlying the doctrine is ‘‘fairness . . .
where two nominally independent
entities do not act under an arm’s length
relationship.’’ Murray v. Miner, 74 F.3d
402, 404 n.1, 405 (2d Cir. 1996).
Consistent with judicial and
administrative precedent, the
Department has typically looked to four
factors to determine whether the entities
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at issue should be considered a single
employer for purposes of temporary
need and compliance: (1) common
management, (2) interrelation between
operations, (3) centralized control of
labor relations, and (4) degree of
common ownership/financial control.
See, e.g., Sugar Loaf Cattle Co., 2016–
TLC–00033, at *6 (BALCA Apr. 6, 2016)
(citing to Spurlino Materials, LLC v.
NLRB, 805 F.3d 1131, 1141 (D.C. Cir.
2015)). The proposed definition would
incorporate the four factors noted above
and, as under current practice, the
Department would consider the totality
of the circumstances surrounding the
relationship among the entities, and no
one factor would be determinative in
the analysis.11
The Department’s main concern in
determining whether two or more
entities are operating as one is
preventing employers from utilizing
their corporate structure(s) to
circumvent the program’s statutory and
regulatory requirements. As such, the
Department’s focus when examining
whether two or more entities are a
single employer is both the relationship
between the entities themselves and
each entity’s use of the H–2A program.
See Knitter v. Corvias Military Living,
LLC, 758 F.3d 1214, 1227 (10th Cir.
2014) (in a Title VII case, the court
noted that ‘‘the single employer test
focuses on the relationship between the
potential employers themselves’’). The
Department emphasizes again that no
one factor is determinative as to
whether entities are acting as one.
Regarding the ‘‘common
management’’ factor, the ‘‘relevant
inquiry is whether there is ‘overall
control of critical matters at the policy
level.’ ’’ K.S. Datthyn Farms, LLC, 2019–
TLC–00086, at *6 (citations omitted)
(quoting Spurlino Materials, 805 F.3d at
1142). Shared day-to-day management
may also indicate common
management. Spurlino Materials, 805
F.3d at 1142. For example, where the
same president, treasurer, and chief
operating officer oversee the actions of
multiple entities and resolve disputes,
this suggests a common management
between entities. Pepperco-USA, Inc.,
2015–TLC–00015, at *30–31 (BALCA
Feb. 23, 2015).
Regarding the ‘‘interrelation between
operations’’ factor, the Department may
look to whether the entities operate at
arm’s length. Id. It may examine
whether companies share products or
services, costs, worksites, worker
11 See also Travis Hollifield, Integrated Employer/
Enterprise Doctrine in Labor & Employment Cases,
The Federal Lawyer, December 2017, at 56, 58,
https://www.fedbar.org/wp-content/uploads/2017/
12/Labor-and-Empl-pdf-1.pdf.
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housing, insurance, software, or if they
share a website, supplies, or equipment.
See, e.g., id.; Sugar Loaf Cattle Co.,
2016–TLC–00033, at *6–7 (finding an
interrelation of operations in part
because the work locations were
‘‘fundamentally at the same place’’);
David J. Woestehoff, 2021–TLC–00112,
at *11 (BALCA Apr. 2, 2021) (comparing
employers’ housing locations and
worksites to analyze their relationship).
Regarding the ‘‘centralized control of
labor relations’’ factor, for example, the
Department may look to whether the
persons who have the authority to set
employment terms and ensure
compliance with the H–2A program are
the same. K.S. Datthyn Farms, 2019–
TLC–00086, at *5 (noting that the same
manager signed different H–2A
applications and this was a
‘‘fundamental labor practice [ ], at the
core of employer-employee relations for
any business’’).
Finally, regarding ‘‘common
ownership and financial control,’’ the
Department may look to the corporate
structure and who owns the entities,
whether it be, for example, a parent
company or individuals. See PeppercoUSA, Inc., 2015–TLC–00015, at *30–31
(two nominally distinct entities were
owned by one parent company). It may
also explore whether the owners of the
entities at issue are related in some way.
See, e.g., JSF Enters., 2015–TLC–00009,
at *13 (BALCA Jan. 22, 2015) (entities
owned in varying degrees by members
of the same family); Larry Ulmer, 2015–
TLC–00003, at *3 (BALCA Nov. 4, 2014)
(two companies with similar names
were owned by father and son);
Lancaster Truck Line, 2014–TLC–00004,
at *2–3 (father and son sought to
separate a business in an attempt to
meet seasonal need requirements); see
also Overlook Harvesting Co., 2021–
TLC–00205, at *13 (BALCA Sept. 9,
2021) (the marital relationships between
two companies’ owners suggested
shared control).
These examples of analysis and lines
of inquiry related to each of the factors
are not exhaustive.
b. Temporary or Seasonal Need
OFLC’s COs will use the single
employer test to determine if an
employer’s need is truly temporary or
seasonal. Section 101(a)(15)(H)(ii)(a) of
the INA permits only ‘‘agricultural labor
or services . . . of a temporary or
seasonal nature’’ to be performed under
the H–2A visa category. 8 U.S.C.
1101(a)(15)(H)(ii)(a). Thus, as part of the
Department’s adjudication of
applications for temporary agricultural
labor certification, the Department
assesses on a case-by-case basis whether
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the employer has established a
temporary or seasonal need for the
agricultural work to be performed. See
20 CFR 655.103(d), 655.161(a).
As noted above, some nominally
distinct employers have intertwined
agricultural operations such that when
they apply for H–2A workers it appears
that two or more separate entities are
each requesting a different temporary
labor certification. However, in reality,
the workers on these certifications are
employed by a single enterprise in the
same area of intended employment and
in the same job opportunity for longer
than the attested period of need on any
one application. For example, if
Employer A has a need for two
Agricultural Equipment Operators from
February to December, and Employer B
has a need for two Agricultural
Equipment Operators from December to
February at the same worksite, this may
reflect a single year-round need for
Agricultural Equipment Operators. See,
e.g., Katie Heger, 2014–TLC–00001, at
*6 (BALCA Nov. 12, 2013)
(‘‘Considering that the [two entities]
appear to function as a single business
entity and have identified sequential
dates of need for the same work, their
‘temporary’ needs merge into a single
year-round need for equipment
operators.’’). In these situations, the two
nominally separate employers may be
applying for certification for, and
advertising for, one continuous,
sometimes permanent, job opportunity,
which calls into question whether either
employer has a temporary or seasonal
need.
This situation arises only when
employers are filing multiple
applications for the same or similar job
opportunities in the same area of
intended employment, such that the
combined period of need is continuous
or permanent. Applications for job
opportunities in different occupations,
involving different duties and
requirements, or opportunities in
different areas of intended employment
may not demonstrate one singular
continuous need for workers, regardless
of whether the two employers would
satisfy the single employer test.
Furthermore, if the periods of need of
two or more entities reflect the same, or
similar, need for labor, this is also not
necessarily problematic because the
need is not continuous. For example,
Employer A has a need from January to
April, and Employer B has a need from
February to April—the two employers
may be a single employer, but the need
for workers, assuming the required labor
levels are far above necessary for
ongoing operations, may still be
seasonal.
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Even if employers have genuine
business needs for dividing their
business and then separately applying
for H–2A workers, this approach to
filing labor certification applications is
still problematic. It undermines the
statutorily required labor market test
and the Department’s ability to protect
workers in the United States as each
application, standing alone, does not
fully convey the potential job
opportunity to any applicant—for
example, the job opportunity could be
for 12 total months rather than 6 months
with one employer, and 6 months with
only a nominally separate entity. It is
possible that a U.S. worker would be
interested in a job that could last a year,
or even permanently, rather than only 6
months. More importantly, it is a
statutory requirement that the H–2A
work be of a temporary or seasonal
nature, and therefore employers
submitting an application for temporary
labor certification are required to
establish that they have a temporary or
seasonal need for agricultural labor. 8
U.S.C. 1101(a)(15)(H)(ii)(a), 20 CFR
655.103(d), 655.161. Permitting
employers with a permanent need to
simply divide their business so that
multiple entities can establish a
temporary or seasonal need, and thereby
obtain a labor certification, would
violate the statute. See, e.g., Intergrow
East, Inc., 2019–TLC–00073, at *5
(BALCA Sept. 11, 2019) (‘‘An employer
may not circumvent the temporary need
requirement by using a closely related
business entity to file an overlapping
application . . . .’’) (citations omitted).
An employer need not be willful in its
attempt to circumvent program
requirements to nevertheless engage in
a business practice that inhibits the
Department’s ability to protect workers
and carry out its statutory mandate.
To address these situations, for years
OFLC has used an informal, fact-focused
method of inquiry, involving a
comparison of case information (e.g.,
owner and manager names, locations,
recruitment information, and other
operational similarities across
applications). In approximately 2015,
OFLC began to frame its single employer
analysis using the NLRB’s single
employer test (see above under
Definition) to improve consistency and
transparency and to address more
complex business structures (e.g.,
corporate organizations) filing H–2A
applications through nominally
different employers. See Pepperco-USA,
Inc., 2015–TLC–00015, at *4–5.
Historically, BALCA has affirmed many
OFLC denials that either explicitly used
the single employer test or used a
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similar analysis. See, e.g., K.S. Datthyn
Farms, LLC, 2019–TLC–00086, at *4–6
(affirming the CO and applying the fourpart NLRA and Title VII integrated
employer test to determine that two H–
2A applicants for temporary labor
certification were one integrated
employer with a single labor need); JSF
Enters., 2015–TLC–00009, at *12
(affirming the CO and finding that ‘‘[t]he
four entities . . . fill the same need on
a year round basis because of the
interlocking nature of the businesses
and regardless of the distinction in
crops each harvests [sic]’’); Altendorf
Transp., Inc., 2013–TLC–00026, at *8
(BALCA Mar. 28, 2013) (affirming the
CO and noting that Employer’s
argument ‘‘does not overcome the
interlocking nature of the business
organizations . . . . The Employer has
the burden of persuasion to demonstrate
it and [the other entity] are truly
independent entities.’’); D & G Frey
Crawfish, LLC, 2012–TLC–00099, at *2,
*4 (BALCA Oct. 19, 2012) (affirming the
CO and stating that ‘‘[Employer’s]
ability to separate her operation into
two entities does not enable her to hire
temporary H–2A workers to fulfill her
permanent need . . .’’).
However, in more recent decisions,
BALCA has sometimes rejected the
single employer test, noting that it had
not been promulgated through notice
and comment rulemaking. See MidState Farms, LLC, 2021–TLC–00115, at
*16 (‘‘This court can find no published
instance where the ‘Single Employer
Test’ has been debated openly,
subjected to public comment or
accepted as official Department
policy.’’); Crop Transp., LLC, 2018–
TLC–00027, at *6 n.6 (BALCA Oct. 19,
2018) (noting that the single employer
test ‘‘is lamentable’’ because of its
‘‘awkward fit to immigration practice
and its ambiguity. . . . It would be
helpful . . . if meaningful regulatory
criteria were promulgated through
notice and comment procedures as to
when ETA will consider two nominally
separate entities as a single applicant for
purposes of temporary labor
certifications under the Act.’’).
In response to these concerns some
ALJs have applied the ‘‘joint employer’’
test to analyze temporary need because
a definition of ‘‘joint employment’’ is
included in the regulations. See, e.g.,
Mid-State Farms, LLC, 2021–TLC–
00115, at *26; Overlook Harvesting Co.,
2021–TLC–00205, at *10. Joint
employment generally is ‘‘where two or
more employers each have sufficient
definitional indicia of being a joint
employer of a worker under the
common law of agency.’’ 20 CFR
655.103(b). Joint employment thus takes
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into consideration the relationship
between the employer and the
employees, while the single employer
test focuses on the relationship between
the nominally distinct employers. See
Knitter, 758 F.3d at 1227 (‘‘Unlike the
joint employer test, which focuses on
the relationship between an employee
and its two potential employers, the
single employer test focuses on the
relationship between the potential
employers themselves.’’). Finally, joint
employment assumes that the entities
are separate while the single employer
test asks whether ‘‘two nominally
separate entities should in fact be
treated as an integrated enterprise.’’ Id.
at 1226–27 (quoting Bristol v. Bd. of
Cnty. Comm’rs, 312 F.3d 1213, 1218
(10th Cir. 2002) (en banc)).
Determining whether two entities are
joint employers, contrary to BALCA’s
assertion in Mid-State Farms, LLC, is
unhelpful when assessing temporary or
seasonal need where, for example, an
employer splits their business between
two seemingly separate entities to
circumvent the requirement to establish
a temporary or seasonal need. See
Overlook Harvesting Co., 2021–TLC–
00205, at *10 (noting modified ‘‘joint
employer’’ test to analyze temporary or
seasonal need was problematic because
two related companies could
‘‘manipulate [their] seasonal need’’
under this test by splitting one,
potentially year-long, season into two
seasons with one company working one
season, and the other working the
other). In those situations, employees
are generally not employed by both
nominally distinct employers at the
same time, though there may be overlap
between the periods of need, making the
analysis of joint employment largely
inapplicable. In assessing temporary or
seasonal need, the focus of the
Department’s analysis is not on the
relationship between the employer and
the employees, but rather between the
employers themselves.
In light of the conflicting BALCA case
law, and to codify its long-standing
practice, the Department proposes to
incorporate the single employer
definition into the regulations and also
notes that COs will use the definition to
analyze the temporary or seasonal need
of nominally separate entities.
The Department emphasizes that joint
employment can still be useful in
analyzing temporary or seasonal need in
the H–2A program, and this proposal is
not meant to eliminate or undermine
appropriate use of the joint employment
test. For example, there may be a
situation where an employer applies for
workers from January to April and then
hires an H–2ALC or subcontractor for
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the months of May to December. It is
possible that this subcontracting (or
even a parent and subsidiary)
relationship could be joint employment
as defined in the regulations. If such an
employer-applicant hires workers from
January to April, and then jointly
employs workers in the same
occupation in the same area of intended
employment from May to December,
this employer-applicant would have a
year-round need and would therefore be
unable to establish the required
temporary need for the H–2A program.
The use of the single employer test in
temporary or seasonal need analysis
will cover situations where employees
are not jointly employed.
Should a CO suspect that an
employer-applicant has a true need that
stretches longer than their stated need
because it is a single employer together
with another entity, the COs may issue
a Notice of Deficiency (NOD) to clarify
the status of said entities. To analyze
whether two entities are a single
employer, COs may request, via NOD,
information necessary for this
determination, including, but not
limited to: (1) documents describing the
corporate and/or management structure
for the entities at issue; (2) the names of
directors, officers and/or managers and
their job descriptions; (3) incorporation
documents; or (4) documents
identifying whether the same
individual(s) have ownership interest or
control. The COs may additionally ask
for explanation as to: (1) why the
businesses may authorize the same
person or persons to act on their behalf
when signing contracts, or applications,
etc.; (2) whether the businesses
intermingle money or share resources;
(3) whether workspaces are shared; and
(4) whether the companies produce
similar products or provide similar
services. These lists of documentation
or evidence are not exclusive, and the
COs may request other information or
documentation as necessary.
c. Enforcement
The proposed definition of single
employer also would explicitly provide
that the Department may apply this test
for purposes of enforcing an H–2A
employer’s contractual obligations. The
Department has increasingly
encountered H–2A employers that
employ H–2A workers under one
corporate entity and non-H–2A workers
under another, such that it appears that
the H–2A employer has no non-H–2A
workers in corresponding employment
when in reality, the companies are so
intertwined that all the workers are
employed by a single employer, and the
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non-H–2A workers are employed in
corresponding employment.
As noted above, and consistent with
BALCA and Federal case law, WHD
already applies the single employer test
in certain circumstances to determine
whether an H–2A employer has
complied with its program obligations.
Over the past several years, WHD has
increasingly encountered employers
employing temporary nonimmigrant
workers that utilize multiple, seemingly
distinct corporate entities under
common ownership. In the H–2A
context, these employers have divided
their H–2A and non-H–2A workforces
onto separate payrolls, such that it
appears that the employer has no
workers in corresponding employment,
and paying the non-H–2A workers less
than the H–2A workers. However, the
H–2A and non-H–2A workers generally
work alongside one another, performing
the same work, under the same common
group of managers, subject to the same
personnel policies and operations. In
these circumstances, to determine
whether the H–2A employer listed on
the H–2A Application employed the
non-H–2A workers in corresponding
employment, the common law test for
joint employment may not be a useful
inquiry because the interrelation of
operations makes it difficult to
determine the relationship between
each distinct corporate entity and the
workers. The single employer test is a
more useful inquiry because it focuses
on the relationship between the
corporate entities to determine whether
they are so intertwined as to constitute
a single, integrated employer, such that
it is appropriate and ‘‘fair’’ to treat them
as one for enforcement purposes. Absent
application of the single employer test,
this burgeoning business practice might
be used—whether intentionally or not—
to deprive domestic workers of the
protections of the H–2A program by
superficially circumventing an
employment relationship with the H–2A
employer as described herein, contrary
to the statute’s requirements. 8 U.S.C.
1188(a)(1).
While WHD already utilizes the single
employer test, the Department believes
that explicitly noting in the regulations
the potential applicability of this test for
purposes of enforcement, and the factors
the Department will consider in
applying this test, will provide clarity
for internal and external stakeholders
and also could deter employers from
intentionally seeking to circumvent the
H–2A program’s requirements in this
manner. Just as the single employer test
is not meant to displace the joint
employer test when analyzing
temporary or seasonal need, the
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Department does not propose to replace
or supersede the definition of ‘‘joint
employment’’ under the existing
regulations for purposes of enforcement.
Rather, depending upon the facts and
circumstances of a given case, the
Department may apply the single
employer test, the joint employment
test, or both in the alternative, to
determine an H–2A employer’s
compliance with program requirements.
d. Conclusion
In conclusion, the Department
proposes a new paragraph (e) to
§ 655.103 that grants the Department
explicit authority to use the definition
of ‘‘single employer’’ to determine if
nominally separate employers should be
considered one single employer for the
purpose of determining the applicant’s
temporary or seasonal need, or for
purposes of enforcement. The
Department believes that incorporating
this single employer test into the
regulations would allow for more
consistent application of the temporary
or seasonal need requirement and
improve compliance with program
obligations.
The Department recognizes that the
adoption of the single employer
definition as it relates to temporary need
assessments may impact some
businesses more than others. Regardless
of the impact on certain employers, the
Department believes proposing this
regulatory text is necessary to ensure
compliance with statutory and
regulatory requirements and clarify the
appropriate standard to assess the
nature of the relationship between two
or more entities. The Department
welcomes comments on these proposed
revisions, especially comments relating
to the impact this may have on specific
industries or types of employers.
2. Section 655.104, Successors in
Interest
The Department proposes several
revisions to its current regulations to
clarify the liability of successors in
interest and revise the procedures for
applying debarment to successors in
interest to a debarred employer, agent,
or attorney. Since 2008, the
Department’s H–2A regulations have
made explicit that successors in interest
to employers, agents, and attorneys may
be held liable for the responsibilities
and obligations of their predecessors,
including debarment. As the
Department explained in the preamble
to the H–2A final rule issued in 2008,
holding successors liable, particularly in
the context of debarment, is necessary
‘‘to ensure that violators are not able to
reincorporate to circumvent the effect of
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63771
the debarment provisions,’’ and ‘‘to
prevent persons or firms who were
complicit in the cause of debarment
from reconstituting themselves as a new
entity to take over the debarred
employer’s business.’’ 73 FR 77110,
77116, 77188 (Dec. 18, 2008) (2008 H–
2A Final Rule). Despite these intentions,
the Department’s current regulations
governing debarment, as interpreted by
the ARB and the BALCA, are
insufficient to effectively prevent
program violators from
‘‘circumvent[ing] the effect of the
debarment’’ as the Department
originally intended. Id. at 77110.
Specifically, under the Department’s
current regulations and controlling
administrative precedent, before OFLC
may deny an H–2A Application filed by
or on behalf of a successor in interest to
a debarred employer, agent, or attorney,
the Department must first debar the
successor in interest pursuant to the full
procedures for debarring the original
violating employer, agent, or attorney.
See Admin. v. Fernandez Farms, ARB
No. 2016–0097, 2019 WL 5089592, at
*2–4 (ARB Sept. 16, 2019) (holding that
29 CFR 501.31 requires WHD to issue a
new notice of debarment to a successor
before subjecting the successor to the
original employer’s WHD order of
debarment); Gons Go, Inc., BALCA Nos.
2013–TLC–00051, –00055, –00063
(BALCA Sept. 25, 2013) (holding 20
CFR 655.182 requires OFLC to first
debar a successor of a debarred
employer, by completing the full
debarment procedures in § 655.182,
before it may deny the successor’s
application for labor certification).
These requirements are unnecessary
under the principles of the
successorship doctrine, and unduly
burden the Department’s ability to apply
debarment to successors in interest, thus
allowing those known to have
committed substantial H–2A violations
to continue to participate in the H–2A
program.
Under the successorship doctrine, a
putative successor in interest to a
debarred employer, agent, or attorney is
entitled to notice and an opportunity for
hearing prior to denial of a future
application only on the question of its
status as a successor in interest. See
Golden State Bottling Co., Inc. v. NLRB,
414 U.S. 168, 180 (1973) (discussing due
process rights of successors). The
Department need not obtain a new order
of debarment against the successor
directly; that is the ‘‘whole point’’ of the
successorship doctrine, that the
liabilities of the predecessor attach to
the successor. Criswell v. Delta Air
Lines, 868 F.2d 1093, 1095 (9th Cir.
1989).
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Accordingly, the Department
proposes several revisions to its
regulations to streamline the procedures
by which it may apply a debarment of
an employer, agent, or attorney to a
successor in interest while affording
putative successors due process. First,
the Department proposes a new
§ 655.104, Successors in interest.
Proposed paragraphs (a) and (b) are
similar to the longstanding definition of
‘‘successors in interest,’’ currently in
§ 655.103(b), Definitions. However,
proposed paragraph (a) omits language
in the current regulation stating that
liability of successors in interest arises
where an employer, agent, or attorney
‘‘has ceased doing business or cannot be
located for purposes of enforcement.’’
Instead, the Department proposes
adding to proposed paragraph (b) a
similar—but broader—definition of
successors in interest. The new language
in proposed paragraph (b) would specify
that ‘‘[a] successor in interest includes
an entity that is controlling and carrying
on the business of a previous employer,
agent, or farm labor contractor,
regardless of whether such successor in
interest has succeeded to all the rights
and liabilities of the predecessor
entity.’’ This proposed revision
recognizes that successorship law does
not typically limit successor liability to
scenarios where an entity has ceased
doing business or cannot be located.
The Department believes these revisions
will more accurately capture
successorship scenarios that may arise
in the H–2A context. In the same vein,
in proposed § 655.104(b) the
Department proposes minor revisions to
the current definition in § 655.103(b),
regarding the nonexhaustive factors that
the Department would use in
determining successor status. The
proposed revisions to the factors would
provide that the personal involvement
of the successor firm’s supervisors and
management in the violations
underlying the debarment is one of
several factors, rather than the
‘‘primary’’ factor, to be considered in
cases of debarment. In its experience,
the Department has found the current
regulation’s reliance on this factor as the
‘‘primary’’ factor to be unduly limiting,
and in tension with the general
principle in paragraph (i) of the
definition of successor in interest that
no one factor should be dispositive in
determining successor status. 20 CFR
655.103(b) (paragraph (i) of the
definition of ‘‘successor in interest’’).
The Department also proposes a
corresponding revision to delete the
definition of ‘‘successor in interest’’
from the Definitions at § 655.103(b).
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Proposed § 655.104(c) explains that
when an employer, agent, or attorney is
debarred, any successor in interest to
the debarred employer, agent, or
attorney is also debarred. Accordingly,
applications filed by or on behalf of a
putative successor in interest to a
debarred employer, agent, or attorney
would be treated like applications filed
by the debarred employer, attorney, or
agent. Specifically, under this proposal,
if the CO determines that such an
application was filed during the
debarment period, the CO would issue
a NOD under § 655.142 or deny the
application under § 655.164, depending
upon the procedural status of the
application. The NOD or denial would
be based solely on the basis of the
applying entity’s successor status and
would not address (nor would it waive)
any other potential deficiencies in the
application. If the CO determines that
the entity is not a successor, the CO
would resume with processing of the
application under § 655.140. However,
if the CO determines that the entity is
a successor, the CO would deny the
application without further review
pursuant to § 655.164. As with any other
certification denial, the putative
successor could appeal the CO’s
determination under the appeal
procedures at § 655.171; specifically
here, the question of whether the entity
is, in fact, a successor in interest to a
debarred employer, agent, or attorney.
However, such appeal would be limited
to the entity’s status as a successor given
the narrow scope of the CO’s
determination under these provisions.
Accordingly, should a reviewing ALJ
conclude that the entity is not a
successor, the application would require
further consideration and thus the ALJ
would remand the application to OFLC
for further processing.
The Department proposes
corresponding revisions to § 655.182,
governing debarment, to state clearly
that debarment of an employer, agent, or
attorney applies to any successor in
interest to that debarred employer,
agent, or attorney. These proposed
revisions would remove references to
successors in interest from current
paragraphs (a) and (b), would
redesignate current paragraph (b) to
paragraph (b)(1), and would include a
new paragraph (b)(2) that reiterates the
procedures for determining successor
status as outlined in proposed
§ 655.104(c).
Similarly, proposed § 655.104(c) also
would explain that the OFLC
Administrator may revoke a certification
that was issued, in error, to a successor
in interest to a debarred employer,
pursuant to § 655.181(a). The entity may
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appeal its successor status pursuant to
§ 655.171. The Department notes that it
may revoke a certification issued, in
error, to a debarred employer or to a
successor of a debarred employer under
its current revocation authorities, but
the Department proposes revisions to
the bases for revocation at
§ 655.181(a)(1), to clarify that fraud or
misrepresentation in the application
includes an application filed by a
debarred employer (and, by extension,
an application filed by a successor to a
debarred employer). These proposed
changes would simply clarify this
existing authority. However, given the
impact of revocation on both employers
and workers, proposed §§ 655.104(c)
and 655.181(a)(1) would not explicitly
contemplate revocation of a certification
issued, in error, based on an application
filed by a debarred agent or attorney, or
by successors to a debarred agent or
attorney, as distinct from a debarred
employer or successor in interest to a
debarred employer. The Department
invites comment on whether revocation
may be warranted in such
circumstances.
Finally, the Department proposes
corresponding revisions to the
procedures governing WHD debarments
under 29 CFR 501.20, including a new
proposed paragraph (j) that explicitly
addresses successors in interest. Under
the successorship doctrine, as discussed
above, and under this proposed rule,
WHD would not be required to issue a
notice of debarment to a successor in
interest to a debarred employer, agent,
or attorney; rather, debarment of the
predecessor would apply equally to any
successor in interest. However, as
provided in proposed paragraph (j), as a
matter of expediency WHD could, but
would not be required to, name any
known successors to an employer,
agent, or attorney in a notice of
debarment issued under § 501.20(a).
The Department has determined that
these proposed revisions would better
effectuate the intent of the Department’s
current successor in interest regulations,
which are critically important to
ensuring that program violators cannot
circumvent a debarment. The proposed
procedures would allow OFLC to apply
a final order of debarment of an
employer, agent, or attorney to any
successor in interest to the debarred
entity. The proposed procedures also
would provide for sufficient due process
to putative successors, as the proposed
procedures would require OFLC to
provide notice to the successor of the
basis for the deficiency under § 655.141
or denial under § 655.164 (i.e., its status
as a successor), and an opportunity for
hearing on its successor status under
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§ 655.171. The Department welcomes
comments on these proposed revisions.
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3. Section 655.190, Severability
The Department proposes to add a
severability clause to 20 CFR part 655,
subpart B. This clause would explain
that if any provision is held to be
invalid or unenforceable by its terms, or
as applied to any person or
circumstance, or stayed pending further
agency action, the provision shall be
construed so as to continue to give the
maximum effect to the provision
permitted by law, unless such holding
is one of total invalidity or
unenforceability, in which event the
provision or sub-provision shall be
severable from the corresponding
subpart or part and shall not affect the
remainder thereof. The Department
proposes to add this severability clause
because generally, each provision
within the H–2A regulations is capable
of operating independently from one
another, including where the
Department has proposed multiple
methods to strengthen worker
protections and to enhance the
Department’s capabilities to conduct
enforcement and monitor compliance.
Further, the severability clause
demonstrates the Department’s intent
that the remaining provisions of the
regulations should continue in effect if
any provision or provisions are held to
be invalid or unenforceable. It is the
Department’s intent that the remaining
provisions of the regulations should
continue in effect if any provision or
provisions are held to be invalid or
unenforceable. It is of great importance
to the Department and the regulated
community that even if a portion of the
H–2A regulations were held to be
invalid or unenforceable that the larger
program could operate consistent with
the expectations of employers and
workers.
The Department seeks comments both
on the substance and scope of this
proposed severability clause and
requests the public’s views on any other
issues related to severability, such as
whether the rule in general includes
provisions amenable to severability;
whether specific parts of the rule could
operate independently; whether the
benefits of the rule would continue to
justify the costs should particular
provisions be severed; or whether
individual provisions are essential to
the entire rule’s workability.
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B. Prefiling Procedures
1. Section 655.120(b), Offered Wage
Rate
Currently, § 655.120(b)(2) provides
that the Department will update each
AEWR at least annually by publication
in the Federal Register.12 In addition,
paragraph (b)(3) requires employers to
adjust workers’ pay, if necessary, so that
the employer pays workers at least the
updated AEWR upon the effective date
of the updated AEWRs in the Federal
Register. However, the present
regulatory text does not address when
the AEWR published in a Federal
Register notice becomes effective. The
Department therefore proposes to revise
paragraph (b)(2) and (3) to designate the
effective date of updated AEWRs as the
date of publication in the Federal
Register.
The duty to pay an updated AEWR
where it is higher than the other wage
sources is not a new requirement, nor is
the requirement to pay an increased
AEWR immediately upon publication in
the Federal Register. Between 1987 and
January 2018, the Department required
employers participating in the H–2A
program to offer and pay the highest of
the AEWR, the prevailing wage, any
agreed-upon collective bargaining wage,
or the Federal or State minimum wage
at the time the work is performed
effective upon the date of publication in
the Federal Register.13 Under more
recent practice, however, when
publishing the Federal Register notice
containing updated AEWRs, the
Department has stated the effective date
of the new AEWRs in the notice and
generally set the effective date of the
new AEWRs at no later than 14 calendar
days from the publication of that notice.
In this rule, the Department proposes
to revise paragraph (b)(2) to designate
the effective date of updated AEWRs as
the date of publication in the Federal
Register. For further clarity, the
Department also proposes to revise
paragraph (b)(3) to state that the
employer is obligated to pay the
updated AEWR immediately upon the
date of publication of the new AEWR in
the Federal Register. As noted above,
the proposal to remove an effective date
12 Under 44 U.S.C. 1507, publication in the
Federal Register provides legal notice of the new
wage rates.
13 See, e.g., 1987 H–2A interim final rule (IFR), 52
FR 20496, 20521; Labor Certification Process for the
Temporary Employment of Aliens in Agriculture in
the United States; H–2A Program Handbook, 53 FR
22076, 22095 (June 13, 1988) (‘‘Certified H–2A
employers must agree, as a condition for receiving
certification, to pay a higher AEWR than the one
in effect at the time an application is submitted in
the event publication of the [higher] AEWR
coincides with the period of employment.’’).
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which differs from the publication date
of the AEWRs represents a return to
longstanding prior practice. This change
will also ensure that agricultural
workers are paid at least the most
current AEWR when work is performed,
which better aligns with the
Department’s mandate to prevent
adverse effect on the wages of workers
in the U.S. similarly employed. To
eliminate any potential confusion
among either employers or workers as to
when the new AEWR will need to be
paid, the NPRM also proposes to update
the regulatory text, which is currently
silent on this issue, to clearly state when
the obligation to pay the new AEWRs
begins.
While the Department recognizes that
this proposal is a departure from more
recent practice that allowed a wage
adjustment period, the vast majority of
employers will still have the
opportunity to view and assess the
impact of the new AEWR rates prior to
their publication by the OFLC
Administrator in the Federal Register
on or around January 1.14 Prior to that
publication, USDA publishes its FLS in
late November 15 showing the wage data
findings that become the new AEWRs
for the field and livestock workers
(combined) occupational grouping.
Similarly, BLS publishes its OEWS data
in March, which contains the wage data
that become the new AEWRs on or
around July 1 for the small percentage
of job opportunities that cannot be
encompassed within the six Standard
Occupational Classification (SOC) codes
and titles in the FLS field and livestock
workers (combined) reporting category.
The Department will post a notice on
the OFLC website when USDA
publishes the FLS and when BLS
publishes the OEWS data that will
direct employers to the publicly
available information. The Department
recognizes that the employers of the
small number of field and livestock
workers (combined) job opportunities in
14 See, e.g., 88 FR 12760, 12766 (the Department’s
program estimates indicate that 98 percent of H–2A
job opportunities are classified within the six SOC
titles and codes of the field and livestock workers
(combined) occupational grouping).
15 USDA’s National Agricultural Statistics Service
publishes the Farm Labor report on its website at
https://www.nass.usda.gov/Surveys/Guide_to_
NASS_Surveys/Farm_Labor/. OEWS wages for each
SOC code and geographic area are available using
the Department’s search tool or searchable
spreadsheet that may be accessed at https://
flag.dol.gov. BLS publishes OEWS data on its
website at https://www.bls.gov/oes/dataoverview.htm. An overview of the OEWS survey
methodology may be accessed at https://
www.bls.gov/oes/current/oes_tec.htm. An
explanation of the survey standards and estimation
procedures can be found at https://www.bls.gov/
opub/hom/oews/pdf/oews.pdf.
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States or regions, or equivalent districts
or territories, for which the FLS does
not report a wage (e.g., Alaska and
Puerto Rico) will not have similar direct
access to information enabling them to
predict the applicable AEWR for
planning purposes. However, as the
Department noted in the 2010 H–2A
Final Rule, ‘‘[as] . . . these wage
adjustments may alter employer budgets
for the season,’’ employers are
encouraged ‘‘to include into their
contingency planning certain flexibility
to account for any possible wage
adjustments.’’ 75 FR 6884, 6901 (Feb.
12, 2010). The Department believes
these proposed revisions will clarify
employer wage obligations and ensure
that agricultural workers are paid at
least the AEWR in effect at the time the
work is performed, without new or
additional impact to most employers’
ability to budget and plan. The
Department seeks comments on all
aspects of this proposal.
2. Sections 655.120(a) and 655.122(l),
Requirement To Offer, Advertise, and
Pay the Highest Applicable Wage Rate
The Department proposes revisions to
§§ 655.120(a) and 655.122(l) to clarify
that where there is an applicable
prevailing piece rate, or where an
employer intends to pay a piece rate or
other non-hourly wage rate, the
employer must include the non-hourly
wage rate on the job order along with
the highest hourly rate. All potential
wage rates must be listed on the job
order notwithstanding the fact that it
may not be possible to determine in
advance which of these rates is the
highest. Once work has been performed,
the employer must then calculate and
pay workers’ wages using the wage rate
that will result in the highest wages for
each worker in each pay period.
The Department’s current regulations
at 20 CFR 655.120(a) and 655.122(l)
require an employer to ‘‘offer, advertise
in its recruitment, and pay’’ the highest
of the AEWR, prevailing wage rate,
collective bargaining agreement (CBA)
rate, or Federal or State minimum wage.
While seemingly straightforward, this
requirement has been difficult to apply
in practice. For instance, where there is
an applicable prevailing piece rate, it is
usually not possible to determine until
the time work is performed whether the
prevailing piece rate will be higher than
the highest of the applicable hourly
wage rates as this will depend on
worker productivity.
In such instances, OFLC currently
only requires H–2A employers to list a
wage offer that is at least equal to the
highest applicable hourly wage—
usually the AEWR—on job orders,
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consistent with BALCA decisions dating
from 2009 to 2011, which concluded
that, under the regulations, OFLC
cannot require employers to include an
applicable prevailing piece rate on the
job order where OFLC does not know at
the certification stage whether the
prevailing piece rate will be higher than
the highest hourly wage. See, e.g.,
Golden Harvest Farm, 2011–TLC–
00442, at *3 (BALCA Aug. 17, 2011);
Dellamano & Assocs., 2010–TLC–00028,
at *5–7 (BALCA May 21, 2010); Twin
Star Farm, 2009–TLC–00051, at *4–5
(BALCA May 28, 2009). While this has
been the Department’s longstanding
practice, the Department is concerned
with the uncertainty this practice can
generate as to which rate or rates an
employer must include as the required
wage in a job order and pay to H–2A
workers and workers in corresponding
employment. Moreover, because the
prevailing piece rate is not included on
the job order, in most such instances,
WHD is not able to enforce the
prevailing piece rate.
In other instances, such as when there
is not a prevailing wage, employers may
voluntarily elect to pay a piece rate or
other non-hourly wage rate but fail to
include such rates on the job order,
potentially mispresenting the offered
wage rate and failing to meet their
recruitment obligations.
The Department proposes several
changes to the existing regulations to
address these issues. First, the
Department proposes to retain the
current list of wage rates in § 655.120(a),
redesignated as § 655.120(a)(1)(i)
through (v), and to add to this list, at
paragraph (a)(1)(vi), ‘‘[a]ny other wage
rate the employer intends to pay.’’ This
proposed addition will clarify an
employer’s obligation to include on the
job order any wage rate it intends to pay
that could end up being the highest
applicable wage rate for some workers,
in some pay periods. The Department
also proposes to add at § 655.120(a)(2)
an explicit requirement that, where the
wage rates in paragraph (a)(1) are
expressed in different units of pay, the
employer must list the highest
applicable wage rate for each unit of pay
in its job order and must advertise all of
these wage rates in its recruitment.
Under this proposal, where one of the
wage rates in paragraph (a)(1) is
expressed as a piece rate and the others
are expressed as hourly wage rates, the
employer must list both the piece rate
and the highest hourly wage rate on the
job order. Where more than one of the
wage rates in paragraph (a)(1) are
expressed as non-hourly wage rates the
employer would be required to list the
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highest applicable wage rate for each
potential unit of pay on the job order.
Next, the Department proposes
corresponding changes at § 655.122(l),
including replacing the list of wage rates
with a cross-reference to § 655.120(a)(1),
removing the current language in
§ 655.122(l)(1) which would be made
redundant by the changes to
§ 655.120(a), and making other technical
edits. In addition, the Department
proposes to remove the current language
at § 655.122(l)(2)(i) and (ii), which
requires an employer to supplement
workers’ pay where a worker is paid by
the piece and does not earn enough to
meet the required hourly wage rate for
each hour worked, but does not include
an analogous requirement that an
employer supplement workers’ pay
when a worker who is paid by the hour
does not earn enough to meet the
applicable prevailing piece rate. The
Department proposes to replace this
language with a new provision at
paragraph (l)(1) explaining that the
employer must always calculate and pay
workers’ wages using the wage rate that
will result in the highest wages for each
worker, in each pay period. Because
employers would be required to pay
whichever wage rate will result in the
highest wages in a particular pay period,
supplementing workers’ pay to ensure
that the required hourly wage is met
will no longer be necessary. Proposed
new paragraph (l)(2) explains that,
where the wage rates set forth in
§ 655.120(a)(1) include both hourly and
non-hourly wage rates, the employer
must calculate each worker’s wages in
each pay period using the highest wage
rate for each unit of pay and must pay
the worker the highest of these wages
for that pay period. Under this proposal,
the employer is responsible for
evaluating the different wage rates
applicable in each pay period of the
growing season, including any midseason increases in wage rate(s) that
might not be reflected in the job order.
Proposed paragraphs (l)(1) and (2) also
make clear that the wages actually paid
cannot be lower than the wages that
would result from the wage rate(s)
guaranteed in the job order, so that, if
there is a mid-season decrease in wage
rate(s), the workers are still entitled to
the higher wage rate(s) listed on the job
order.
Under this proposal, where an
employer includes multiple activities or
tasks, each of which have different
applicable wage rates, in a single job
order, the employer must engage in the
analysis set forth above with respect to
each activity or task. For example, if a
job order includes harvesting several
varieties of apples, each with a different
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prevailing wage rate, the employer must
list on the job order, for each variety,
both the highest applicable hourly wage
rate and the highest applicable wage
rate for any other unit of pay, including
any piece rates. The employer would
then be responsible for evaluating, with
respect to each activity or task
performed in the pay period, which of
the applicable wage rates would result
in the highest wage for the worker for
the work performed and to pay the
worker the highest wage with respect to
each activity or task performed.
The Department believes that these
proposed changes would help ensure
that employers’ recruitment efforts
reflect the correct applicable wage rates
so as to more accurately determine
whether there are U.S. workers who
would be available and willing to accept
the employment. They also would help
ensure that H–2A workers and workers
in corresponding employment are paid
the wages to which they are entitled
(i.e., the highest of the AEWR,
prevailing hourly wage or piece rate,
CBA rate, Federal minimum wage, State
minimum wage, or any other wage rate
the employer intends to pay). Because
H–2A employers are already required to
accurately track and record both hours
worked and field tallies pursuant to
§ 655.122(j), the Department believes
that employers should already have
processes in place to accurately record
information needed for compliance with
the proposed changes to §§ 655.120(a)
and 655.122(l), minimizing any
additional administrative burden these
proposed changes would place on
employers.
The Department welcomes comments
on this proposal. In particular, the
Department is interested in examples of
how this proposal would work in
practice, whether there are
circumstances, such as when an
employer includes multiple activities or
tasks in a single job order, where further
clarification is needed on which wage
rates must be listed in the job order and
how to calculate the worker’s wages,
and whether corresponding changes to
the recordkeeping requirements at
§ 655.122(j) and (k) or to the
requirements for SWAs’ review of job
orders at part 653, subpart F, are
needed. In addition, the Department
seeks comments on whether the
requirement to list the highest
applicable wage rate for each unit of pay
on job orders placed in connection with
an H–2A application renders
unnecessary the requirement at 20 CFR
653.501(c)(2)(i) that an employer that
pays by the piece or other non-hourly
unit calculate and submit an estimated
hourly wage rate with the job order.
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Under the proposed rule, the job order
in such cases should guarantee payment
of the highest of the applicable hourly
or non-hourly wage rates. The
Department welcomes comment on
whether the calculation of an estimated
hourly wage would still be necessary to
prevent adverse effect on similarly
employed workers in the United States
and/or on agricultural workers
generally.
The Department is considering
making similar revisions to the
regulations at §§ 655.210(g) and
655.211, governing the rates of pay and
contents of job orders for herding and
range livestock production occupations,
to require an employer to disclose all
potentially applicable rates of pay in the
job order. Under such a proposal, for
example, an employer would be
required to disclose on the job order
both the monthly AEWR and a State
minimum hourly wage rate applicable
to the job opportunity that could
potentially result in higher earnings
based on hours worked. As explained
above, the Department believes that
such disclosure would likely benefit
potential applicants to better
understand the potential earnings for a
job opportunity, and would assist the
Department with more efficient program
administration and enforcement. The
Department welcomes comment on
whether it should include these similar
revisions in any final rule.
The Department is also considering
making similar revisions to the
regulations at 20 CFR 653.501(c),
governing the requirements for SWAs’
review of clearance orders, to require an
employer to disclose all potentially
applicable rates of pay in a non-H–2A
(or non-criteria) clearance order. Under
such a proposal, an employer would be
required to disclose on the clearance
order the highest applicable hourly
wage rate, if any (i.e., the highest of any
applicable prevailing hourly wage rate,
the Federal or State minimum wage, or
an hourly wage rate the employer
intends to pay), as well as any piece rate
or other non-hourly wage rate
applicable to the job opportunity that
could potentially result in higher
earnings, and to pay workers the highest
of these rates. The Department believes
that such disclosure would likely
benefit potential applicants to better
understand the potential earnings for a
job opportunity, and that it would
minimize confusion to require similar
information for both criteria and noncriteria clearance orders. The
Department welcomes comment on
whether it should include these similar
revisions in any final rule.
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63775
3. Section 655.122, Contents of Job
Offers
a. Paragraph (h)(4) Employer Provided
Transportation
The Department proposes to revise
§ 655.122(h)(4) to require the provision,
maintenance, and wearing of seat belts
in most employer-provided
transportation. The Department believes
that existing vehicle safety standards
provide important safeguards for
workers, but that they are insufficient to
adequately address transportation safety
challenges. The inclusion of regulations
related to seat belts would reduce the
hazards associated with agricultural
work, thus making these H–2A jobs
more attractive to workers in the United
States.
Studies have shown that seat belt use
dramatically decreases occupant
fatalities and injuries in the event of a
vehicle crash. Seat belts reduce fatalities
and serious injuries by keeping
occupants inside the vehicle and close
to their original seating position,
gradually decelerating the occupant as
the vehicle deforms, and prevents
occupants from hitting the vehicle
interior or other passengers.16 DOT’s
National Highway Traffic Safety
Administration (NHTSA), which
regulates vehicle manufacturing
standards and studies the efficacy of
safety enhancements, began to require
seat belts in at least some vehicles
beginning in 1968, and identifies seat
belt technology and usage as one of the
most significant safety enhancements of
the past 60 years. NHTSA estimates that
using a seat belt in the front seat of a
passenger car can reduce fatal injury by
45 percent and reduce moderate to
critical injury by 50 percent.17 The
safety effect increases in a light truck,
where seat belts reduce fatal injury by
60 percent and reduce moderate to
critical injury by 65 percent.18 Between
1960 and 2012, NHTSA estimates that
seat belts have saved 329,715 lives,
which constitutes more than half of the
estimated lives saved by safety
improvements in this time period
16 See Nat’l Highway Traffic Safety Admin., Dep’t
of Transp., DOT HS–812–069, Lives Saved By
Vehicle Safety Technologies and Associated Federal
Motor Vehicle Safety Standards, 1960 to 2012—
Passenger Cars and LTVs—With Reviews of 26
FMVSS and the Effectiveness of Their Associated
Safety Technologies in Reducing Fatalities, Injuries,
and Crashes 89 (2015) (2015 NHTSA Report),
https://crashstats.nhtsa.dot.gov/Api/Public/
ViewPublication/812069.
17 Id. at 107–11. See also Seat Belts, Nat’l
Highway Traffic Safety Admin., https://
www.nhtsa.gov/risky-driving/seat-belts#resources
(‘‘Seat Belts’’).
18 2015 NHTSA Report at 107–11.
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(613,501).19 In 2020, estimated average
passenger vehicle seat belt use in the
United States was 90.3 percent,20 but
between 46 and 51 percent of those
killed in passenger vehicle crashes were
not wearing seat belts.21
Individual State laws have
significantly contributed to increased
seat belt usage in the United States.22
New York passed the first law requiring
the use of seat belts in 1984.23 Between
1984 and 1987, State legislatures passed
seat belt laws in 29 States.24 Today, all
States except New Hampshire require
seat belt usage in the front seats, and 40
of these States, as well as the District of
Columbia and two territories, also
require seat belt usage in the rear seat.25
These laws, in conjunction with
sustained national campaigns to
encourage seat belt use (e.g., ‘‘Click It or
Ticket’’), have increased seat belt usage
dramatically; estimated seat belt use in
1990 was 49 percent, but, as mentioned,
the estimated seat belt use in 2020 was
90.3 percent.26
However, seat belt use in rural areas
lags behind other parts of the United
States, and rural vehicle crashes are
disproportionately deadly. An analysis
completed by the Centers for Disease
Control and Prevention (CDC) revealed
that in 2014, age-adjusted passenger
vehicle occupant death rates per
100,000 population increased with
increasing rurality. For example, in the
southern United States, the age-adjusted
death rate in vehicle crashes per
19 Id.
at xxxi–xxxii.
Nat’l Highway Traffic Safety
Administration, U.S. Dep’t of Transp., DOT HS
813–072, Traffic Safety Facts Research Note: Seat
Belt Use in 2020—Overall Results (2021) (2021
NHTSA Report), https://crashstats.nhtsa.dot.gov/
Api/Public/ViewPublication/813072.
21 Nat’l Highway Traffic Safety Administration,
U.S. Dep’t of Transp., DOT HS 813–266, Overview
of Motor Vehicle Crashes in 2020 11, 13 (2022),
https://crashstats.nhtsa.dot.gov/Api/Public/
ViewPublication/813266. NHTSA appears to
estimate overall fatality rates of unrestrained
passengers compared only to other fatalities where
seat belt use was known and estimates that 51% of
vehicle occupants who are killed were not wearing
seat belts. See id. at 13. On the other hand, the
Governors Highway Safety Association (GHSA)
cites the same data, but computes instead that 46%
of occupants killed were unrestrained, which likely
reflects that GHSA compared unrestrained fatalities
with total fatalities, including where seat belt use
was unknown. See Seat Belts, Governors’ Highway
Safety Ass’n, https://www.ghsa.org/issues/seatbelts.
22 See 2015 NHTSA Report at 103–105.
23 See Nell Henderson, N.Y. Is First State to Get
Seat Belt Law, Wash. Post (July 13, 1984), https://
www.washingtonpost.com/archive/business/1984/
07/13/ny-is-first-state-to-get-seat-belt-law/b86fd522bb32-4286-980a-caefdb3edfa5. This law, however,
only required the use of seat belts in the front seat.
24 See 2015 NHTSA Report at 105.
25 See Seat Belts.
26 See 2015 NHTSA Report at 105; 2021 NHTSA
Report at 1.
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100,000 population in rural counties
was more than four times as high as
those in urban counties (6.8 deaths per
100,000 population in the most urban
counties as compared to 29.2 deaths per
100,000 population in the most rural
counties); this same study showed that
self-reported seat belt use in 2014 for
the most rural counties was only 74.7
percent, compared to 88.8 percent in the
most urban counties.27 As most
agriculture is in rural areas, agricultural
workers are more likely to be exposed
to dangers inherent in rural
transportation. The CDC also
acknowledges that agriculture itself is
one of the most hazardous industries in
the United States. In 2021, workers in
the agriculture, forestry, fishing and
hunting industry experienced one of the
highest fatal injury rates at 20 deaths per
100,000 full-timeworkers—and nearly
half of those deaths resulted from
transportation incidents.28 The
Occupational Injury Surveillance of
Production Agriculture survey
demonstrated that, in surveyed years
between 2001 and 2014, transportation
related accidents (including tractor
rollovers) constituted approximately
12.7 percent of all agricultural workrelated injuries to adults 20 years and
older.29
The Department’s enforcement
experience is consistent with the
statistics described above. Of the
agriculture-related injuries and fatalities
that the Department has investigated in
the last 5 years, more than 60 percent
related to farmworker transportation.
Additionally, some of the most
significant injuries and fatalities
resulted when workers were not
wearing seat belts. For example, in
calendar year (CY) 2022 alone, WHD
investigated eight incidents involving
serious injury or death of farmworkers.
Of these incidents, seven involved
27 Laure F. Beck, et al., Ctrs. for Disease Control
& Prevention, Rural and Urban Differences in
Passenger-Vehicle-Occupant Deaths and Seat Belt
Use Among Adults, CDC Morbidity and Mortality
Weekly Report, Sept. 22, 2017, at 4, 6 https://
www.cdc.gov/mmwr/volumes/66/ss/ss6617a1.htm.
28 See Table A–1, Fatal Occupational Injuries by
Industry and Event or Exposure, All United States,
2021, Bureau of Lab. Stats. (Dec. 16, 2022), https://
www.bls.gov/iif/fatal-injuries-tables/fataloccupational-injuries-table-a-1-2021.html.
However, this category includes tractor rollovers,
which may not qualify as employer-provided
transportation as it is being discussed in this
section.
29 Out of 334,606 injury events recorded, 42.527
of those injury events (12.7 percent) were related to
transportation. See Table AI–11, National Estimates
of Agricultural Work-Related Injuries to Adults (20
Years and Older) on US Farms By Injury Event,
Nat’l Inst. for Occupational Safety & Health, Ctrs.
for Disease Control & Prevention (Apr. 10, 2018),
https://www.cdc.gov/niosh/topics/aginjury/oispa/
pdfs/AI-15-508.pdf.
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agriculture-related vehicle crashes and
only one involved other safety issues. Of
the crashes investigated in 2022, all
involved at least some workers who
were not restrained by seat belts,
sometimes with fatal or serious
consequences. For example, on May 31,
2022, in Indiana, a vehicle being driven
by one H–2A worker and carrying
another H–2A worker collided with a
semi-truck. The two workers were
ejected from the vehicle, as neither was
wearing a seat belt. The driver died and
the passenger was air-lifted to the
hospital with life-threatening injuries.
In another example, on April 15, 2022,
a vehicle carrying eight farmworkers in
California ran a stop sign and collided
with an SUV. One occupant was not
wearing a seat belt and was ejected. The
ejected passenger died, and seven other
workers suffered minor to moderate
injuries.
Despite the statistics showing the
dangers related to rural transportation,
agricultural transportation, and the
failure to use seat belts, as well as its
own enforcement experience, the
Department has limited tools to address
seat belt use in employer-provided
transportation. Current § 655.122(h)(4)
requires employers to comply with all
applicable local, State, or Federal laws
and regulations and, at a minimum, the
same transportation safety standards,
driver’s licensure, and vehicle insurance
required under the Migrant and
Seasonal Agricultural Worker Protection
Act (MSPA). However, MSPA vehicle
safety regulations were promulgated in
1983 when seat belt use was less
common, and they do not mandate that
seat belts be provided or worn.30 When
State law requires the wearing of seat
belts, the Department may enforce the
provision and wearing of seat belts
through State law under current
§ 655.122(h)(4). However, not all States
require the provision and wearing of
seat belts in all seats,31 and other States
exclude certain vehicles from seat belt
provisions.32 Even where States have
farmworker-specific laws requiring seat
belts, such as in Florida, California, and
Maine, these laws often do not cover all
vehicles used to transport
farmworkers.33 Finally, many State seat
30 See 29 CFR 500.104 and 500.105. See also 48
FR 15800 (Apr. 12, 1983); 48 FR 36736 (Aug. 12,
1983).
31 See, e.g., Ga. Code Ann. 40–8–76.1 (only
requiring the use of seat belts in the front seat).
32 See, e.g., N.C. Gen. Stat. 20–135.2A (exempting
any vehicle registered and licensed as a propertycarrying vehicle in accordance with North Carolina
General Statutes section 20–88, while being used
for agricultural purposes in intrastate commerce,
from seat belt requirements).
33 See Cal. Veh. Code sec. 31405 (applying only
to farm labor vehicles); Fla. Stat. sec. 316.622
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belt laws apply only on public roads
and highways,34 but some vehicle
crashes involving H–2A or
corresponding workers occur on private
property. Therefore, the Department is
regularly unable to cite a violation for
an H–2A employer’s failure to provide
seat belts to workers.
The Department has periodically
considered the inclusion of seat belt
requirements in farmworker
transportation safety regulations. In
1983, the Department promulgated
MSPA transportation safety regulations
pursuant to its authority under MSPA
(29 U.S.C. 1801–1872) establishing
vehicle safety, drivers’ licensure, and
insurance standards for vehicles
transporting MSFWs, a category that
excludes H–2A workers but may
include workers in corresponding
employment (see 29 CFR 500.20). See 48
FR 15800 (Apr. 12, 1983); 48 FR 36736
(Aug. 12, 1983). In these regulations, the
Department declined to require seat
belts, stating that requiring seat belts
could place an unreasonable economic
burden on employers and lead them to
discontinue transporting migrant
workers at short distances.35 See 48 FR
36736, 36738. Beginning in 2010, the
Department required all employerprovided transportation in the H–2A
program to comply with MSPA
standards for vehicle safety, drivers’
(same); Me. Rev. Stat. tit. 26, sec. 643, tit. 29, sec.
2088. Both California and Florida law define a
‘‘farm labor vehicle’’ as a vehicle used for the
transportation of nine or more farmworkers, in
addition to the driver. See Cal. Veh. Code sec. 322;
Fla. Stat. sec. 316.003(26).
34 See, e.g., Cal. Veh. Code sec. 31405(d) (stating
that ‘‘no person shall operate a farm labor vehicle
on a highway’’) (emphasis added); Cal Veh. Code
sec. 360 (defining highway as ‘‘a way or place of
whatever nature, publicly maintained and open to
the use of the public for purposes of vehicular
travel’’). See also, e.g., N.C. Gen. Stat. sec. 20–
125.2A(a) (stating that ‘‘each occupant of a motor
vehicle . . . shall have a seat belt properly fastened
about his or her body at all times when the vehicle
is in forward motion on a street or highway in this
State’’) (emphasis added); N.C. Gen. Stat. sec.
20.4.01(13) (providing that a highway is ‘‘[t]he
entire width between property or right-of-way lines
of every way or place of whatever nature, when any
part thereof is open to the use of the public as a
matter of right for the purposes of vehicular traffic’’
and that ‘‘[t]he terms ‘highway’ and ‘street’ and
their cognates are synonymous’’).
35 29 U.S.C. 1841(2)(B) explicitly requires the
Department to consider the extent to which a
proposed transportation standard under MSPA
would cause an undue burden on agricultural
employers, agricultural associations, or farm labor
contractors, a standard not included in the H–2A
provisions of the INA. Also, unlike the H–2A
program, MSPA does not require employers to
provide transportation between living quarters and
the worksite, or inbound or outbound
transportation (unless disclosed that such
transportation would be provided). Additionally,
the Department reached this conclusion nearly four
decades ago, when seat belts were less commonly
used.
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licensure, and insurance. See 20 CFR
655.122(h)(4); 75 FR 6884, 6965 (Feb.
12, 2010). Seat belts were not discussed
in the 2010 rulemaking. Prior to the
2010 H–2A Final Rule, H–2A
regulations required only that all
employer-provided transportation
comply with all applicable laws and
regulations. In an NPRM published in
2019, the Department solicited
comments on additional transportationrelated provisions to help protect
workers against driver fatigue and other
unsafe driving conditions. See 84 FR
36168, 36195 (Jul. 26, 2019). In the
corresponding final rule, the
Department declined to include any
additional vehicle safety standards at
the time, including seat belts, but noted
that employers must comply with State
laws, many of which required seat belts.
See 87 FR 61660, 61719 (Oct. 12, 2022).
Much has changed with respect to
seat belts since the MSPA vehicle safety
standards were first developed in 1983.
Many of the regulations requiring the
inclusion of seat belts when
manufacturing vehicles and
incorporating new technologies to
increase safety have been published
since 1983. Additionally, since 1983,
seat belt use has become significantly
more common, increasing from 14
percent to 90.3 percent in 2020.36
Research completed since 1983 has
emphasized the importance of seat belts
as a lifesaving and injury-reducing
essential technology, and every State
except one has passed seat belt laws
since the MSPA vehicle safety
regulations were promulgated. Although
the Department does not propose to
amend the MSPA regulations at this
time, it seeks to apply the knowledge
gained regarding the importance of seat
belts to the rapidly growing H–2A
program.
Therefore, pursuant to its authority to
determine the minimum terms and
conditions of employment acceptable
under the H–2A program, 8 U.S.C.
1188(a)(1), the Department proposes to
revise § 655.122(h)(4) to prohibit an
employer from operating any employerprovided transportation that is required
by DOT NHTSA regulations at 49 CFR
571.208 to be manufactured with seat
belts unless all passengers and the
driver are properly restrained by seat
belts meeting standards established by
49 CFR 571.209 and 571.210.
Essentially, if the vehicle is
manufactured with seat belts, the
36 Compare 2021 NHTSA Report at 1 (estimating
that seat belt use by adult front-seat passengers was
about 90.3 percent in 2020), with Transp. Research
Bd. of the Nat’l Acads. Buckling Up: Technologies
to Increase Seat Belt Use 5 (2003) (estimating that
seat belt use was about 14 percent in 1984).
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employer would be required to retain
and maintain those seat belts in good
working order and ensure that each
worker is wearing a seat belt before the
vehicle is operated.
By relying on DOT’s regulations to
determine which vehicles pose an
unreasonable risk of death or injury in
a vehicle crash without seat belts, the
Department intends to depend on DOT’s
considerable research and expertise to
identify which types of vehicles require
seat belts for sufficient occupant
protection and which types of vehicles
have sufficient occupant protection
even without seat belts. The most
common vehicles that the Department
encounters in its enforcement are
passenger cars,37 15-passenger vans
(which would constitute a bus per the
NHTSA definition),38 and buses (both
school buses 39 and over-the-road
buses 40). Currently, 49 CFR 571.208
requires that all passenger cars and
buses with a gross vehicle weight rating
(GVWR) of 10,000 pounds or fewer
(such as most 15-passenger vans), be
manufactured with seat belts.41
Therefore, the Department would
require that these vehicles maintain seat
belts in good working order when
transporting workers (e.g., replace the
seat belt when it is cut or broken).
However, 49 CFR 571.208 does not
currently require that school buses with
a GVWR of 10,000 pounds or more, or
an over-the-road bus with a GVWR
between 10,000 pounds and 26,000
pounds GVWR, be manufactured with
seat belts for passengers.42 Currently,
NHTSA does not consider these
vehicles to constitute an unreasonable
safety risk to the public without seat
belts.43 Therefore, at this time the
37 NHTSA defines a passenger car as a motor
vehicle with motive power, except a low-speed
vehicle, multipurpose passenger vehicle,
motorcycle, or trailer, designed for carrying 10
persons or less. 49 CFR 571.3(c).
38 A 15-passenger van would constitute a bus as
defined by NHTSA. NHTSA defines a bus as a
motor vehicle with motive power, except a trailer,
designed for carrying more than 10 persons. 49 CFR
571.3(c).
39 NHTSA defines a school bus as a bus that is
sold, or introduced in interstate commerce, for
purposes that include carrying students to and from
school or related events, but does not include a bus
designed and sold for operation as a common
carrier in urban transportation. 49 CFR 571.3(c).
40 NHTSA defines an over-the-road bus as a bus
characterized by an elevated passenger deck located
over a baggage compartment, except a school bus.
49 CFR 571.136, S4.
41 See 49 CFR 571.208, S4.4.3.
42 See 49 CFR 571.208, S4.4.4.
43 See 78 FR 70416, 70422–23 (Nov. 25, 2013)
(discussing over-the-road buses between 10,000
pounds and 26,000 pounds GVWR); 73 FR 62744
(Oct. 21, 2008) (upgrading school bus passenger
crash protection requirements). See also Nat’l
Highway Traffic Safety Admin., School Bus Safety:
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Department would not require that
school buses exceeding 10,000 pounds
GVWR and over-the-road buses between
10,000 pounds and 26,000 pounds
GVWR install and maintain seat belts.
However, if, at a later date, NHTSA
were to amend 49 CFR 571.208 to
require these vehicles to be
manufactured with seat belts, the
Department’s proposed regulation
would automatically, without further
revision, similarly require the employer
to require occupants of those vehicles to
wear seat belts. The Department
believes that reliance on NHTSA’s
standards for vehicle manufacturing
strikes a reasonable balance between
safety measures intended to protect
vulnerable workers and significant costs
associated with retrofitting relatively
safe vehicles with seat belts when such
vehicles were not engineered for seat
belt installation.44 Additionally, these
regulations would be consistent with
those issued by OSHA for motor
vehicles used in the construction
industry and in shipyard employment,
which include similar exemptions from
providing seat belts for vehicles not
manufactured with seat belts.45
The Department welcomes comments
on this proposal, including if there are
any other factors or types of vehicles
that it should consider in promulgating
these regulations. The Department also
seeks comments as to whether
employers ever retrofit vehicles with
additional seats (or any seats, if the
vehicle was manufactured without
passenger seats) in such a way that
complies with existing vehicle safety
standards under 20 CFR 655.122(h)(4),
Crashworthiness Research (April 2002) (discussing
school bus occupant safety), https://www.nhtsa.gov/
sites/nhtsa.gov/files/sbreportfinal.pdf.
44 NHTSA has provided guidance for retrofitting
school buses with seat belts. See Guideline for the
Safe Transportation of Pre-school Age Children in
School Buses, Nat’l Highway Traffic Safety Admin.
(February 1999). Cost estimates for retrofitting a
school bus with seat belts vary, but are generally
around $15,000 per bus, with one estimate as high
as $36,000 per bus. See Stephen Satterly, School
Bus Seat Belts: Opening a Dialogue, Safe Havens
Int’l (Dec. 5, 2016), https://
safehavensinternational.org/school-bus-seat-beltsopening-dialogue, Matthew Simon, Report: Adding
Seatbelts Could Cost $15k per school bus, WSAW–
TV (Sept. 1, 2016), https://www.wsaw.com/content/
news/NewsChannel-7-Investigates--Report-Addingseat-belts-could-cost-15K-per-school-bus392104851.html; Mike Chouinard, Island District
Holds Off School Bus Seatbelt Retrofits, N. Island
Gazette (Oct. 7, 2020), https://
www.northislandgazette.com/news/island-districtholds-off-school-bus-seatbelt-retrofits-1407935.
45 See 29 CFR 1915.93(b) (seat belt standards in
shipyard work); 29 CFR 1926.601(b)(9) (seat belt
standards for construction work); Occupational
Safety & Health Admin., Standard Interpretation
No. 1926.601(b)(9) on Seat Belts (Jan. 19, 1994)
(explaining that seat belt standards in construction
work refer to DOT regulations).
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and how these vehicles should comply
with proposed seat belt standards.
The Department further proposes that
the seat belts must comply with NHTSA
regulations for seat belt assembly and
anchorages at 49 CFR 571.209 and
571.210. The Department believes that
referencing these standards in
regulations would ensure that seat belts
meet existing standards for manufacture
and clarify to the regulated community
that makeshift or jerry-rigged restraints
would not constitute a seat belt.
The proposed regulation also would
prohibit the employer from operating
any employer-provided transportation
unless all passengers and the driver are
properly restrained by a seat belt. The
Department often finds that workers do
not use seat belts even when they are
provided. As demonstrated by NHTSA’s
research referenced above, the provision
of seat belts is often insufficient to
increase seat belt usage without
enforcement and public awareness
campaigns. Therefore, the Department
believes this regulation would be most
effective if the employer requires
workers to wear seat belts. Additionally,
while the proposed regulation refers
specifically to the employer not
operating the transportation, the
Department understands that driving
vehicles is often delegated to
supervisors or workers. An employer
would be responsible for ensuring that
all drivers, including employees or
agents of the employer, do not operate
the vehicle until all occupants are
properly restrained. The Department
seeks comment as to whether, and how,
it should require employers to enforce
the wearing of seat belts, or whether it
should require employers only to
provide seat belts.
Finally, the Department seeks
comment as to how this requirement for
seat belts should interact with vehicles
subject to the limited exemption from
seat requirements found in MSPA
regulations at 29 CFR 500.104(l), which
is also applicable to some H–2A
employer-provided transportation.
Transportation subject to this exemption
is limited to those vehicles that are
subject to the vehicle safety standards in
29 CFR 500.104 when those vehicles are
primarily operated on private farm
roads when the total distance traveled
does not exceed 10 miles, so long as the
trip begins and ends on a farm owned
or operated by the same employer.46 As
a vehicle without seats cannot be
46 See 29 CFR 500.102; 29 CFR 500.104(l). See
also Wage & Hour Div., Dep’t of Lab., Fact Sheet
#50, Transportation Under the Migrant and
Seasonal Agricultural Worker Protection Act (2016),
https://www.dol.gov/agencies/whd/fact-sheets/50mspa-transportation.
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equipped with seat belts, the
Department is considering whether
vehicles subject to this limited
exemption also should be exempted
from seat belt requirements during these
same trips, or, alternatively, whether
this exemption should be inapplicable
to H–2A employers. The Department
seeks comment on this issue, including
the circumstances in which employers
use the limited exemption from seats
found in 29 CFR 500.104(l) and the
import of this limited exemption to
business practices. The Department also
seeks comment on known vehicle
crashes or other safety hazards that have
resulted or been exacerbated due to the
use of this limited exemption and any
anticipated hazards.
The Department also proposes nonsubstantive changes to § 655.122(h)(4) to
divide this paragraph into separate
paragraphs (h)(1)(i) through (iv).
b. Paragraphs (i)(1)(i) and (ii) Shortened
Work Contract Period
The Department proposes to remove
the language at § 655.122(i)(1)(i) and (ii)
that explains the work contract period
can be shortened by agreement of the
parties with the approval of the CO.
These minor conforming changes will
ensure these paragraphs are consistent
with proposed changes to delayed start
of work requirements at proposed
§ 655.175(b), which permits only minor
delays to the start date of work and
requires notice to workers and the SWA,
but not CO approval, as discussed in the
preamble explaining changes in
proposed § 655.175.
c. Paragraph (l)(3) Productivity
Standards as a Condition of Job
Retention
The Department proposes revisions to
the regulations governing productivity
standards at § 655.122(l). Current
§ 655.122(l)(2)(iii) requires the employer
to disclose productivity standards in the
job offer only when the employer pays
on a piece rate basis and requires one or
more productivity standards as a
condition of job retention. The
Department proposes to redesignate
§ 655.122(l)(2)(iii) as § 655.122(l)(3) and
require all employers with minimum
productivity standards as a condition of
job retention to disclose such standards
in the job offer, regardless of whether
the employer pays on a piece rate or
hourly basis.
The Department believes that this
revision is necessary so that workers
fully understand the material terms and
conditions of employment, including
any productivity standards that may
serve as a basis for termination for
cause, at the time the offer of
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employment is made. The revisions
proposed in this section conform with
those proposed in § 655.122(n)(2)(i),
where the Department proposes that
termination for cause for failure to
comply with a productivity standard
would only be permissible when such
productivity standard is included in the
job offer (among other conditions).
As explained further in the preamble
section addressing proposed
§ 655.122(n), the Department proposes
that, among other conditions,
termination for cause for failure to meet
a productivity standard may only be
invoked by an employer when workers
were informed of, or reasonably should
have known, the productivity standard;
the productivity standard is listed in the
job offer; and the productivity standard
is reasonable and applied consistently.
The disclosure in the job offer of any
productivity standards required as a
condition of job retention helps to
achieve these other requirements.
Specifically, it ensures that workers are
aware of the productivity standard, and
that all workers are held to the same
productivity standard. The disclosure in
the job offer also ensures that
productivity standards do not change
after the employer communicates those
standards to the worker. Different
productivity standards for different
crops, grades of crops, or job duties are
permissible so long as all are disclosed
in the job offer. Consistent with current
guidance, productivity standards must
be static, objective, and specifically
quantify the expected output per worker
required for job retention in the specific
crop or agricultural activity. Vague
standards, such as requiring workers to
‘‘perform work in a timely and
proficient manner,’’ ‘‘perform work at a
sustained, vigorous pace,’’ or ‘‘keep up
with the crew,’’ are not acceptable
productivity standards as they lack
objectivity, quantification, and clarity.
Failure to meet such vague standards
will not be accepted by the Department
as termination for cause. See preamble
section corresponding with proposed
§ 655.122(n) for further discussion.47
Current § 655.122(l)(2)(iii) also
requires that productivity standards
listed in the job offer be no more than
those required by the employer in 1977,
unless the OFLC Administrator
approves a higher minimum, or if the
employer first applied for temporary
agricultural labor certification after
1977, productivity standards listed in
the job order must be no more than
47 See
OFLC, Frequently Asked Questions, H–2A
Temporary Agricultural Foreign Labor Certification
Program, 2010 Final Rule, Round 9 (October 30,
2015), https://www.dol.gov/sites/dolgov/files/ETA/
oflc/pdfs/H-2A_FAQ_Round9.pdf.
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those normally required (at the time of
the first H–2A Application) by other
employers for the activity in the area of
intended employment. In other words,
without OFLC’s approval, an employer
cannot increase productivity standards
beyond those normally required by
other employers when it first used the
H–2A program, unless the employer
first used the H–2A program in 1977 or
earlier, in which case the employer
cannot increase productivity standards
beyond those it required in 1977.
Proposed § 655.122(l)(3) would mandate
that all productivity standards required
as a condition of job retention be
disclosed in the job offer regardless if
the worker is paid a piece rate or an
hourly wage. The proposal would
broaden this requirement to workers
paid on an hourly basis, not only those
paid on a piece rate basis.
The Department believes this revision
is appropriate because pressure for
increased worker productivity exists
regardless of how workers are paid. As
stated in the preamble to the 2010 H–
2A Final Rule, the regulations have
reflected concerns about productivity
standards for more than 30 years. Initial
concerns focused on employers paying
piece rates; the Department found that,
when faced with an increased hourly
guarantee, some employers simply
required workers to work faster instead
of increasing piece rates, which may
have adversely affected the wages of
similarly employed workers in the
United States. See 43 FR 10306, 10309
(Mar. 10, 1978). Therefore, H–2A
regulations published in 1987 froze
productivity standards at the 1977 level
(unless a higher rate was approved) or,
if the employer began using the program
after 1977, to those normally required
by other employers for the activity in
the area of intended employment at the
time the employer first used the
program (unless a higher rate was
approved). See 52 FR 20496–01, 20515
(June 1, 1987). The 2010 H–2A Final
Rule instituted the same standards as
the 1987 rule, and these standards
remained unchanged in the 2022 rule.
See 75 FR 6884, 6913–6914 (Feb 12,
2010); 87 FR 61660–01, 61801 (Oct. 12,
2022).
Although the Department has
historically recognized this issue as
affecting workers paid on a piece rate
basis, workers paid on an hourly basis
may also be subject to productivity
standards as a condition of job
retention, which may adversely affect
the working conditions of similarly
employed workers in the United States
and inhibit the ability to determine if
there are sufficient workers who are
able, willing, qualified, and available to
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perform the work. Advocacy
organizations have identified that some
employers may set productivity
standards so high that workers in the
United States are reluctant to accept or
keep these jobs without a pay
increase.48 Without a ceiling on
excessively high productivity standards
for hourly employees, working
conditions for both H–2A and domestic
workers may be adversely affected as
productivity demands rise, and
domestic workers may leave the
agricultural workforce. To prevent this
adverse effect, this proposed rule would
require all employers establishing
productivity standards as a condition of
job retention to refrain from setting such
productivity standards above the
permitted levels, which were previously
required only if the employer was
paying on a piece rate basis.
d. Paragraph (l)(4); 655.210(g)(3)
Disclosure of Available Overtime Pay
The Department proposes a new
§ 655.122(l)(4) that would explicitly
clarify that the employer must specify in
the job offer any applicable overtime
premium wage rate(s) for overtime
hours worked and the circumstances
under which the wage rate(s) for such
overtime hours will be paid. The H–2A
program does not mandate the payment
of an overtime premium wage rate for
hours worked exceeding a certain
number in the day, week, or pay period.
However, the Fair Labor Standards Act’s
(FLSA) overtime requirements, as well
as various State and local laws that
require overtime pay, apply
independently of the H–2A program’s
wage requirements. Some H–2A workers
and workers in corresponding
employment may be entitled to overtime
pay under one or more of these laws.
Under the Department’s longstanding
regulations, an H–2A employer must
assure that it will comply with all
applicable Federal, State, and local
laws, including any applicable overtime
laws, during the work contract period.
See § 655.135(e).49 In addition, an H–2A
employer must accurately disclose the
actual, material terms and conditions of
employment, including those related to
wages, in the job order. See
§§ 655.103(b), 655.121(a)(3), and
655.122(l); see also § 655.210. Pursuant
to these authorities, an H–2A employer
already must disclose in the job order
any available overtime pay, whether
required under Federal, State, or local
48 See Farmworker Justice, No Way to Treat a
Guest: Why The H–2A Visa Program Fails U.S. and
Foreign Workers 21, 25 (2012) (Farmworker Justice
Report).
49 See, e.g., Cal. Lab. Code secs. 500–556, 558.1;
Cal. Indus. Welfare Comm’n Order No. 14–2001.
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law, or otherwise voluntarily offered by
the employer. Despite these existing
authorities, OFLC and WHD frequently
encounter job orders filed in connection
with H–2A applications that either omit
disclosure of or fail to accurately
describe applicable overtime pay.
Failure to clearly and fully disclose any
available overtime pay in the job order
harms prospective workers, who may be
more interested in the job opportunity if
aware of the availability of overtime.
Incomplete or nonexistent disclosures
also hamper the Department’s
administration and enforcement of the
H–2A program requirements.
Therefore, the Department proposes to
revise the current wage disclosure
requirements found at § 655.122(l) to
expressly clarify in a new paragraph
(l)(4) that an employer must disclose in
the job order any applicable overtime
pay. Specifically, under proposed
§ 655.122(l)(4), whenever overtime pay
is required by law or otherwise
voluntarily offered by an employer, an
employer would be required to disclose
in the job order: the availability of
overtime hours; the wage rate to be paid
for any overtime hours; and the
circumstances under which overtime
will be paid; and, where the overtime is
required by law (rather than voluntarily
offered by the employer), the applicable
Federal, State, or local law governing
the overtime pay. The proposed
subordinate paragraph (l)(4)(iii)
provides examples of circumstances that
might apply, such as after how many
hours in a day, week, or pay period the
overtime premium wage rate will be
paid, or if overtime premium wage rates
will vary between places of
employment. This proposed list is
intended to be illustrative only; an
employer must accurately disclose the
actual circumstances under which
overtime would be paid. The
disclosures required under proposed
§ 655.122(l)(4) are similar to the
overtime disclosure requirement under
the H–2B program regulations at
§ 655.18(b)(6). See also U.S. Dep’t of
Lab., Wage & Hour Div., Field
Assistance Bulletin No. 2021–3,
Overtime Obligations Pursuant to the
H–2B Visa Program (Dec. 7, 2021).50
Where multiple overtime laws apply,
the employer must comply with the law
that provides the greatest benefit to the
employee. For example, if an employer
is required by Federal law to pay time
and a half after 40 hours in a week, but
is required by State law to pay overtime
at time and a half after 46 hours in a
week, the employer must comply with
50 https://www.dol.gov/sites/dolgov/files/WHD/
legacy/files/fab_2021_3.pdf.
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the Federal law as it is more beneficial
to the employee. The Department has
also proposed corresponding
amendments to the Forms ETA–790A
and ETA–9142A to include dedicated
spaces for disclosure of any applicable
overtime pay. The Department believes
these proposed revisions would
improve the frequency and accuracy of
disclosures of available overtime pay,
thereby improving notice to prospective
workers of the actual terms and
conditions of the job opportunity and
improving the Department’s
enforcement of any applicable overtime
pay requirements.
Similarly, the Department proposes to
amend the pay disclosure requirements
at § 655.210(g), governing the contents
of job orders for herding and range
livestock production occupations, to
include a new paragraph (g)(3) that
would require employers to disclose any
available overtime pay, whether
voluntarily offered by the employer or
required by State or Federal law, and
the details regarding such pay.
The Department welcomes comment
on this proposal.
e. Paragraph (n) Termination for Cause
or Abandonment of Employment
The Department proposes revisions to
§ 655.122(n), regulating employer
obligations when an employer
terminates an employee for cause or an
employee has abandoned employment,
to define termination for cause. By
proposing a definition of termination for
cause, the Department seeks to ensure
that disciplinary and/or termination
processes be justified and reasonable.
The Department believes it is necessary
to clarify the definition of termination
for cause because workers terminated
for cause under the H–2A program are
stripped of essential rights to which
they would otherwise be entitled. This
proposed definition is also necessary
because the termination without cause
of one or more workers may constitute
a layoff for lawful, job-related reasons,
and particular employer obligations
apply to layoffs of U.S. workers. See
§ 655.135(g).
The current regulations specify when
job abandonment occurs, outline
procedures for notifying the NPC and
DHS, and require the maintenance of
records of this notification, but they do
not define termination for cause. A
worker who abandons employment or is
terminated for cause is not entitled to
payment for outbound transportation
under § 655.122(h)(2) or the threefourths guarantee under § 655.122(i),
and a U.S. worker who abandons
employment or is terminated for cause
need not be contacted for employment
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in the subsequent year as required by
§ 655.153. On the other hand, a worker
who is terminated without cause is
entitled to outbound transportation
(§ 655.122(h)(2)), the three-fourths
guarantee (including meals and housing
until the worker departs for other H–2A
employment or to the place outside the
United States from which the worker
came) (§ 655.122(i)), and, if a U.S.
worker, to be contacted for work in the
next year (§ 655.153), with one limited
exception. An employer is not liable for
the payment of the three-fourths
guarantee to an H–2A worker whom the
CO certifies is displaced because of the
employer’s fulfillment of its obligation
to hire U.S. workers in compliance with
the 50-percent rule described in
§ 655.135(d). See § 655.122(i)(4).
Therefore, such H–2A worker would be
terminated without cause but would not
be entitled to the three-fourths
guarantee. However, this displaced H–
2A worker remains entitled to payment
for outbound transportation pursuant to
§ 655.122(h)(2).
The Department has long
acknowledged that employers need not
cover some obligations for workers
terminated for cause. See, e.g., 43 FR
10306, 10315 (Mar. 10, 1978) (employer
need not pay outbound transportation
for H–2 workers terminated for cause);
52 FR 20496–01, 20501, 20515 (June 1,
1987) (where an H–2A worker is
terminated for cause, the worker is not
entitled to the three-fourths guarantee
and the employer need not pay
outbound transportation). But the
Department has also recognized that
some employers may abuse this
provision in order to avoid those
obligations. See, e.g., 73 FR 77110–01,
77135 (Dec. 18, 2008) (requiring
employers to contact former U.S.
workers except for those dismissed for
cause and noting that if employers were
‘‘allowed . . . to reject former workers
who completed their previous term on
the alleged ground that the workers
were actually poor performers, it would
open the door to bad actor employers to
reject former workers on the basis of
essentially pretextual excuses’’).
Given the serious consequences
associated with a designation of
termination for cause, and the potential
for misuse, the Department believes that
a clear, regulatory definition of
termination for cause would benefit
employers, associations, agents,
workers, advocates, and the public in
general and therefore proposes to insert
one. Providing a clear definition of
termination for cause would not only
provide structure and clarity to both
workers and employers, but also make
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it easier for the Department to identify
pretextual terminations.
The Department’s enforcement
experience also supports the need for a
specific and clear definition of
termination for cause. Some employers,
in seeking to evade responsibilities
under § 655.122(h)(2), § 655.122(i),
§ 655.153, or all three, have terminated
workers ostensibly ‘‘for cause.’’ For
example, one employer terminated 114
H–2A workers, out of a total of 240 H–
2A workers employed, and an
additional 20 workers in corresponding
employment, for failing to meet
production quotas. The employer
alleged that workers were not eligible
for the three-fourths guarantee because
they were terminated for cause.
However, the Department’s
investigation revealed that the employer
had employed, in some weeks, more
than 100 more workers than it employed
the previous year without a proportional
increase in acres planted. With the
surplus in employees, worker
productivity decreased significantly. An
analysis of one crew showed that
workers, who were paid a consistent
piece rate, earned an average of $12.32
per hour when the crew consisted of 39
employees, but earned only $6.72 per
hour on average when the crew
consisted of 123 employees. Once crew
sizes were again proportional to prior
years, worker productivity increased. A
different crew, also paid a consistent
piece rate, earned an average of $8.14
per hour when the crew consisted of
121 workers, but, following
terminations, earned an average of
$12.43 per hour when the crew
consisted of 91 workers. The employer
terminated workers assigned to the less
productive fields, even when their
production rates matched those of their
coworkers working the same fields. The
terminations were unequally applied to
workers and were for conditions outside
the workers’ control. The three-fourths
guarantee is intended to safeguard
against this very situation—employers
overstating their labor needs—but the
employer attempted to evade its threefourths guarantee obligations by
terminating employees without cause.
In light of this enforcement
experience, the Department believes it
needs stronger regulatory requirements
to more easily prevent or detect
attempts to evade these important
worker protections. This is necessary in
order for the Department to fulfill its
statutory mandate to ensure that H–2A
workers are employed only when there
are not sufficient workers who are able,
willing, qualified, and available to
perform the labor or services involved
in the petition and when the
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employment of H–2A workers will not
adversely affect the wages and working
conditions of similarly employed
workers in the United States. See 8
U.S.C. 1188(a)(1). The proposed
regulations would achieve this goal by
protecting worker access to the threefourths guarantee (including meals and
housing until the worker departs for
other H–2A employment or to the place
outside the United States from which
the worker came) (§ 655.122(h)(2)),
outbound transportation (§ 655.122(i)),
and/or, if a U.S. worker, to be contacted
for work in the next year (§ 655.153),
unless a reasonable and justified
disciplinary process results in a
termination for cause and thus nullifies
the worker’s entitlement to these rights.
An unreasonable or unjustified
termination that an employer ostensibly
describes as being ‘‘for cause’’
undoubtedly has an adverse effect on
similarly employed workers in the
United States and interferes with the
Department’s ability to determine that
there are not sufficient workers to
perform the labor or services. For
example, where an employer denies an
H–2A worker payment for outbound
transportation under § 655.122(h)(2) on
the grounds that the worker was
terminated, ostensibly ‘‘for cause,’’ but
for unjustified and unreasonable
reasons, the worker would be required
to pay for their own transportation to
return to their country of origin. The
Department has long recognized that
inbound and outbound transportation
expenses for H–2 workers are an
inescapable consequence of using the
H–2 programs and are primarily for the
benefit of the employer under the FLSA.
H–2A regulations (and, prior to 1987,
H–2 regulations) have reflected this
reality by requiring these expenses to be
borne by employers. See 43 FR 10306
(Mar. 10, 1978); 52 FR 20496–01 (June
1, 1987); 73 FR 77110–01 (Dec. 18,
2008); 75 FR 6884 (Feb. 12, 2010); 87 FR
61660 (Oct. 12, 2022); U.S. Dep’t of Lab.,
Wage & Hour Div., Field Assistance
Bulletin No. 2009–2, Travel and Visa
Expenses of H–2B Workers Under the
FLSA (Aug. 21, 2009); 51 Arriaga v.
Florida Pacific Farms, L.L.C., 305 F.3d
1228 (11th Cir. 2002). An employer who
unreasonably and unjustifiably requires
a worker to pay for their own outbound
transportation has artificially reduced
its cost to use the H–2A program by
shifting outbound transportation costs
to the workers themselves, which may
reduce the worker’s earnings below the
amount required by § 655.122(l) in the
worker’s last workweek. As the wage
51 https://www.dol.gov/sites/dolgov/files/WHD/
legacy/files/FieldAssistanceBulletin2009_2.pdf.
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required by § 655.122(l) is the minimum
amount required to prevent adverse
effect, any cost-shifting that reduces
wages below this amount may adversely
affect wages and working conditions of
similarly employed workers in the
United States. Clarifying that workers
are terminated for cause only where the
termination is reasonable and justified
would minimize such adverse effect.
Similarly, adverse effects on similarly
employed workers in the United States
may result when an employer denies the
three-fourths guarantee required by
§ 655.122(i) to a worker who is unjustly
and unreasonably terminated, ostensibly
‘‘for cause.’’ The three-fourths guarantee
is an essential protection that requires
employers to provide an accurate
description of the amount of work
available and the periods in which work
is available, which gives workers an
opportunity to evaluate the desirability
of the offered job. An employer that fails
to provide the work promised during
recruitment must pay workers for work
hours equivalent to three-fourths of the
workdays offered, which disincentivizes
employers from hiring workers without
sufficient work. The Department has
long held that the three-fourths
guarantee is an essential protection to
prevent adverse effect on similarly
employed workers in the United States.
See 43 FR 10306, 10308 (Mar. 10, 1978);
73 FR 77110–01, 77152 (Dec. 18, 2008).
A job with insufficient work creates
undesirable conditions because the
workers may not earn sufficient wages
to pay bills and support their families.
In this situation, both H–2A and U.S.
workers may be induced to seek work
elsewhere if the promised work does not
materialize. The employer has therefore
failed to determine if there are sufficient
U.S. workers able, willing, and qualified
to perform the work, and the wages and
working conditions of similarly
employed workers in the United States
may be adversely affected if H–2A
workers seek work outside the terms of
their H–2A nonimmigrant status
because the job they were promised
does not actually exist. See 80 FR
24042–01, 24066 (Apr. 29, 2015).
Finally, where an employer declines
to rehire a U.S. worker under § 655.153
on the grounds that the worker was
terminated, ostensibly ‘‘for cause,’’ but
the termination was unreasonable and
unjustified, the employer fails to
adequately test the labor market for able,
willing, and qualified workers because
it has unreasonably and unjustly
removed this worker from the labor
pool.
In addition, the proposed definition of
termination for cause will assist the
Department in identifying terminations
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for pretextual reasons. These pretextual
reasons may attempt to mask violations
of other provisions, such as the
prohibitions on layoffs of U.S. workers
(§ 655.135(g)) and retaliatory
termination (§ 655.135(h)), for which the
appropriate remedy may be
reinstatement or make-whole relief. See
29 CFR 501.16. Workers also would be
protected from terminations for
pretextual reasons for actions that may
not be otherwise protected by the
current H–2A regulations. Even if the
underlying activity is not protected by
the H–2A protections, the Department
retains an interest in ensuring that
reasonable activities and
communications are not misused or
mischaracterized as a basis for
termination for cause. This ensures that
a worker may advocate on their own
behalf without fear of being terminated,
ostensibly ‘‘for cause.’’ This additional
safeguard on the ability to engage in
self-advocacy would prevent adverse
impact on working conditions for
similarly employed workers in the
United States by ensuring that
employers cannot evade their
obligations with respect to workers
engaged in self-advocacy.
Finally, the Department believes that
its proposed definition of termination
for cause will also benefit employers by
providing regulatory certainty and
increasing the quality and desirability of
agricultural jobs. Employers will have
clear guidelines as to how the
Department will define termination for
cause. Where there are farm labor
shortages, employers may experience
improved ability to recruit agricultural
workers where workers are assured that
they will be entitled to the three-fourths
guarantee and outbound transportation
costs unless they are terminated for
cause or they abandon their
employment.
For these reasons, the Department
proposes to clarify in the regulations
that a worker is terminated for cause
only when the employer terminates the
worker for failure to meet productivity
standards or failure to comply with
employer policies or rules. This
definition is substantively similar to
current enforcement guidance that
appears in U.S. Department of Labor,
Wage and Hour Division, Field
Assistance Bulletin No. 2012–1, H–2A
‘‘Abandonment or Termination for
Cause’’ Enforcement of 20 CFR
655.122(n) (Feb. 28, 2012).52 There,
WHD stated that termination for cause
refers to termination based on a specific
act of omission or commission by the
52 https://www.dol.gov/sites/dolgov/files/WHD/
legacy/files/fab2012_1.pdf.
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employee, and that, for example,
insubordination, deliberately violating
company policies or rules, lying,
stealing, breaching the employment
contract, and other job-related
misconduct are all possible bases for
termination for cause. Id. at 6.
Further, the Department proposes that
an employer may terminate a worker for
cause only if six conditions listed in
proposed § 655.122(n)(2)(i) are met.
Importantly, the employer must comply
with all six conditions for the
employer’s actions to qualify as
termination for cause. These proposed
conditions, explained in the following
paragraphs, clarify that termination for
cause exists only where disciplinary
and/or termination processes are
justified and reasonable; it does not
exist where rules, policies, and/or
standards are arbitrary, unknown, or
selectively enforced. These conditions
serve to promote the integrity and
fairness of any disciplinary and/or
termination process, and help to reduce
the possibility that an employer may,
purposefully or subconsciously,
discriminate against a worker for
reasons that are unrelated to work.
These proposed conditions reflect
common-sense personnel practices, and
some of these conditions may also be
found in State and local laws or bills
prohibiting wrongful discharge.53 The
Department believes that many
agricultural employers already follow
similar standards when terminating a
worker for cause, as records of these
types are often essential in responding
to discrimination complaints
investigated by the EEOC or DOJ’s
Immigrant and Employee Rights
Section, claims filed pursuant to State
unemployment insurance programs, or
the Department when investigating
retaliatory termination under the laws
that it enforces (including the H–2A
program). These requirements would
apply to H–2A workers and workers in
corresponding employment.
Accordingly, these proposed conditions
would preserve worker access to
outbound transportation
(§ 655.122(h)(2)), the three-fourths
guarantee (§ 655.122(i)), and/or, if a U.S.
worker, to be contacted for work in the
next year (§ 655.153) unless a reasonable
and justified disciplinary process has
resulted in termination for cause, which
prevents adverse effect on similarly
53 See, e.g., N.Y.C. Admin. Code sec. 20–1272,
https://codelibrary.amlegal.com/codes/
newyorkcity/latest/NYCadmin/0-0-0-131240; Phila.
Code sec. 9–4703, https://codelibrary.amlegal.com/
codes/philadelphia/latest/philadelphia_pa/0-0-0280911#JD_Chapter9-4700; H.B. 3530, 102nd Gen.
Assemb. (Ill. 2021 & 2022), https://www.ilga.gov/
legislation/102/HB/PDF/10200HB3530lv.pdf.
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employed workers in the United States
and ensures that jobs are available to
workers in the United States who are
able, willing, and qualified to perform
the work.
First, proposed § 655.122(n)(2)(i)(A)
would require that the employees were
informed (in a language understood by
the employee) of, or reasonably should
have known of, the policy, rule, or
productivity standard that is the basis
for the termination for cause. Basic
concepts of fairness preclude the
termination of a worker for cause if that
worker was not informed, or had no
reasonable basis for knowing, that the
infraction or performance issue
constituted grounds for termination.
Policies and rules are not required to be
listed in the job offer but must be clearly
communicated to and understood by the
workers. Ways in which the employer
may communicate policies and rules to
workers include employee handbooks,
posters, trainings, staff meetings, and
verbal instruction. If the policy or rule
is not explicitly communicated, the
Department will review whether a
reasonable person would know that the
policy or rule exists. For example, a
reasonable person would know that
conduct that is obviously illegal, such as
unlawful sexual harassment or assault,
can be a basis for discipline or
termination. Similarly, a reasonable
person would know that purposefully
damaging the crop would be a basis for
discipline or termination.
Second, the Department proposes in
§ 655.122(n)(2)(i)(B) that, if the
termination is for failure to meet a
productivity standard, such standard
must be disclosed in the job offer. The
Department has long held that if an
employer pays a piece rate and requires
a productivity standard, such
productivity standard must be disclosed
in the job offer. See current
§ 655.122(l)(2)(iii). In this proposed rule,
the Department proposes that any
productivity standard must be disclosed
in the job offer regardless of whether the
worker is paid on a piece rate or hourly
basis. See proposed § 655.122(l)(3). The
job offer communicates the material
terms and conditions of employment to
H–2A workers and workers in
corresponding employment, and
therefore any productivity standard
which may serve as a basis for
termination should be disclosed to the
worker in the job offer. This disclosure
in the job offer ensures that the
employer informs the workers of the
productivity standard, and that the
productivity standard is consistent for
all workers, both of which are essential
elements of any just disciplinary
process. Consistent with current
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guidance, and discussed in the
preamble corresponding with proposed
§ 655.122(l)(3), any productivity
standard that serves as a basis for
termination for cause must be static,
quantified, and objective.54 Vague
standards (i.e., those that are not
quantified and depend on the
employer’s subjective judgement) do not
constitute productivity standards, and
failure to comply with such vague
standards will not be accepted by the
Department as a valid reason for
termination for cause.
Third, proposed § 655.122(n)(2)(i)(C)
would allow termination for cause only
if compliance with the policy, rule, or
productivity standard is within the
employee’s control. For example,
termination for cause would not apply
if a worker were unable to meet
productivity standards if working in a
field where compliance with the
productivity standard is impossible for
any worker (e.g., in a field where most
fruit to be picked remains unripe, or
where the employer has hired
significantly more employees than
required to complete available work).
Similarly, termination for cause would
not apply where a worker is regularly
tardy but arrives using employerprovided transportation that habitually
arrives late through no fault of the
worker. Reasonable disciplinary
processes should not penalize workers
for infractions outside of their control.
Fourth, proposed § 655.122(n)(2)(i)(D)
would clarify that termination for cause
would apply only where the policy,
rule, or productivity standard is
reasonable and applied consistently. A
just and equitable discipline system
requires equal treatment under the rules
for all H–2A and corresponding
workers. Termination for cause would
not apply where one worker is
terminated for noncompliance with a
policy with which another worker
performing a similar job is not required
to comply. Similarly, termination for
cause would not apply where a worker
is terminated pretextually for
noncompliance with a policy or rule
that the employer infrequently or
sporadically enforces.
Fifth, proposed § 655.122(n)(2)(i)(E)
would outline that termination for cause
would apply only where the employer
undertakes a fair and objective
investigation into the job performance
or misconduct. Termination for cause
would not apply where an employer
merely assumes that the worker has
54 See OFLC, Frequently Asked Questions, H–2A
Temporary Agricultural Foreign Labor Certification
Program, 2010 Final Rule, Round 9 (October 30,
2015), https://www.dol.gov/sites/dolgov/files/ETA/
oflc/pdfs/H-2A_FAQ_Round9.pdf.
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failed to comply with a policy, rule, or
productivity standard, or relies on a
dubious third-party account as the basis
for the termination.
Sixth, proposed § 655.122(n)(2)(i)(F)
would require the employer to engage in
progressive discipline to correct the
worker’s performance or behavior before
terminating that worker for cause.
Proposed § 655.122(n)(2)(ii) would
define progressive discipline as a
system of graduated and reasonable
responses to an employee’s failure to
meet productivity standards or failure to
comply with employer policies or rules.
Examples of disciplinary measures may
include counseling, verbal warnings,
written warnings, and, when
appropriate, termination for cause.
Disciplinary measures are proportional
to the failure but may increase in
severity if the failure is repeated. For
example, a worker who blatantly and
willfully ignores known safety
procedures when operating heavy
machinery, putting their safety and/or
the safety of others at risk, should
encounter different disciplinary
consequences than a worker who is 15
minutes tardy for the first time that
season. Additionally, a worker who is
tardy for the first time may experience
different disciplinary consequences
than a worker who is tardy for the fifth
time in 2 weeks. Progressive discipline
ensures that workers are not harshly
punished for minor, first-time
infractions and reinforces the conditions
for termination for cause in proposed
§ 655.122(n)(2)(i), specifically that rules,
policies, and productivity standards are
communicated to the workers and are
reasonable. This furthers the
Department’s objective of ensuring that
disciplinary procedures resulting in
termination for cause are reasonable and
justified, thus avoiding adverse impact
on similarly employed workers in the
United States by protecting access to
outbound transportation
(§ 655.122(h)(2)), the three-fourths
guarantee (including meals and housing
until the worker departs for other H–2A
employment or to the place outside the
United States from which the worker
came) (§ 655.122(i)), and, if a U.S.
worker, to be contacted for work in the
next year (§ 655.153).
The Department recognizes that in
rare circumstances, termination for
cause may be an appropriate
disciplinary consequence for a first-time
offense of egregious misconduct even in
a progressive discipline system.
Egregious misconduct means behavior
that is plainly illegal or that a
reasonable person would understand as
being offensive, such as violence, drug
or alcohol use on the job, or unlawful
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assault, as opposed to failure to meet
performance expectations or
productivity standards. The Department
also emphasizes that all other
conditions outlined in proposed
§ 655.122(n)(2)(i) must be met in cases
of termination for cause involving
egregious misconduct. Specifically, the
worker must be informed, or reasonably
should have known, about the policy or
rule; compliance with the policy or rule
must be within the worker’s control; the
policy or rule must be reasonable and
applied consistently; and the employer
must undertake a fair and objective
investigation into the purported
misconduct. Egregious misconduct need
not be explicitly prohibited verbally or
in writing—workers are generally
expected to understand that the
behavior is prohibited—but the
Department encourages employers to
clearly communicate to workers that
activities like unlawful harassment,
substance abuse, and illegal or violent
conduct will not be tolerated.
Prior to each disciplinary measure,
the employer must notify the worker of
the infraction and allow the worker an
opportunity to present evidence in their
defense to dispute the accuracy of the
employer’s description of the infraction
or failure to meet the productivity
standards. Fair and just disciplinary
policies should ensure that the
employer undertakes reasonable steps to
determine whether the worker
committed an infraction that was within
their control or failed to meet
productivity standards. Such policies
also should ensure that the employer
considers any mitigating circumstances
that may provide context to any
infraction or failure to meet productivity
standards.
The Department also proposes that,
after imposing any disciplinary measure
prior to termination, the employer must
provide relevant and adequate
instruction to the worker, and the
worker must be afforded reasonable
time to correct the behavior or meet the
productivity standard following
instruction. The type of instruction and
the amount of time afforded to fix the
issue may vary depending on the
misconduct or performance issue. For
example, if the worker is not meeting
productivity standards, the worker
should be provided training on
harvesting techniques and a reasonable
amount of time to develop those
techniques to meet the productivity
standard. In another example, if a
worker arrives late to work one morning
and is verbally counseled, the employer
should make clear the time the worker
is expected to arrive at work. In this
second example, the employer can
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reasonably expect the worker to correct
the behavior by the next shift. Of course,
there may be extenuating circumstances
for the tardiness and the employer
should take those into account as part
of any counseling.
In the proposed regulation, the
employer must also document, in
writing, each disciplinary measure,
evidence the worker presented in their
defense, and resulting instruction, and
the employer must clearly communicate
to the worker, either verbally or in
writing, in a language the worker
understands, that a disciplinary action
occurred, so as to create a record of the
discipline and minimize the potential
misunderstanding as to whether a
disciplinary action occurred. The
employer must also document any
explanation that the employee provided
in response to any purported infraction.
These requirements—instruction, a
reasonable period to fix issues,
employee explanation, and
documentation—are intended to ensure
a worker is not prematurely terminated
and deprived of their rights to the threefourths guarantee (including meals and
housing until the worker departs for
other H–2A employment or to the place
outside the United States from which
the worker came) (§ 655.122(h)(2)),
outbound transportation (§ 655.122(i)),
and/or, if a U.S. worker, to be contacted
for work in the next year (§ 655.153), for
misconduct or performance issues that
are unknown to the worker and/or are
easily remedied.
Proposed § 655.122(n)(2)(iii) would
outline specific reasons for which
workers may not be terminated for
cause. This proposed language makes
clear that an employee continues to be
entitled to outbound transportation
(§ 655.122(h)(2)), the three-fourths
guarantee (including meals and housing
until the worker departs for other H–2A
employment or to the place outside the
United States from which the worker
came) (§ 655.122(i)), and, if a U.S.
worker, to be contacted for work in the
next year (§ 655.15) if the employer has
broken the law in terminating the
worker, or if the worker is reasonably
exercising their rights to a safe
workplace. Specifically, termination for
cause would not apply where the
termination is contrary to a Federal,
State, or local law; for an employee’s
refusal to work under conditions that
the employee reasonably believes will
expose them or other employees to an
unreasonable health or safety risk; for
discrimination on the basis of race,
color, national origin, age, sex
(including sexual orientation and
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gender identity),55 religion, disability,
or citizenship; or, where applicable,
where the employer fails to comply with
its obligation under § 655.135(m)(4) in a
meeting that contributed to the
employee’s termination. The
Department seeks comment on these
reasons for termination excluded from
termination for cause, and whether any
other reasons should explicitly be
included in this list.
The Department does not propose
changes to the prohibition on
preferential treatment of H–2A workers
(§ 655.122(a) or layoffs of U.S. workers
(§ 655.135(g)), but reminds employers
that they are prohibited from offering
preferential treatment to H–2A workers
over U.S. workers. See § 655.122(a).
Similarly, employers are prohibited
from laying off similarly employed U.S.
workers in the occupation that is the
subject of the H–2A Application in the
area of intended employment in the
period beginning 60 days before the first
date of need and continuing throughout
the period certified on the H–2A
Application, except on the basis of
lawful, job-related reasons. While U.S.
workers in corresponding employment
may be laid off for lawful, job-related
reasons such as lack of work or the end
of the growing season, such a layoff is
permissible only after all H–2A workers
have been laid off. See § 655.135(g). As
noted above, a worker in corresponding
employment may only be terminated for
cause using the same procedures, found
in proposed § 655.122(n)(2), as those
used to terminate an H–2A worker for
cause. However, such processes must be
applied fairly and consistently (and in
compliance with the conditions set forth
in § 655.122(n)(2)(ii)). In addition, to
comply with the prohibitions on
preferential treatment (§ 655.122(a)) and
layoffs of U.S. workers (§ 655.135(g)),
U.S. workers in corresponding
employment may not be terminated
without cause, or laid off, before all H–
2A workers are terminated without
cause. Of course, any worker terminated
without cause, or laid off, is entitled to
outbound transportation
(§ 655.122(h)(2)), the three-fourths
guarantee (including meals and housing
until the worker departs for other H–2A
employment or to the place outside the
United States from which the worker
came) (§ 655.122(i)), and, if a U.S.
55 ‘‘Sex’’ includes sexual orientation and gender
identity because differential treatment on those
bases necessarily involves discrimination because
of sex. See Bostock v. Clayton Cnty., 140 S. Ct.
1731, 1741 (2020) (‘‘it is impossible to discriminate
against a person’’ under Title VII because of their
sexual orientation or gender identity ‘‘without
discriminating against that individual based on
sex’’).
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worker, to be contacted for work in the
next year (§ 655.153). Where the
employer terminates an H–2A or worker
in corresponding employment without
cause, Department will, as appropriate,
cite violations, assess civil money
penalties, compute back wages, and/or
pursue debarment for (1) failure to pay
outbound transportation, (2) failure to
comply with the three-fourths
guarantee, and/or (3) failure to contact
a U.S. worker for employment in the
following season. When computing back
wages owed under the three-fourths
guarantee, the Department will compute
for the hours not offered pursuant to
§ 655.122(i)(1) as well as any housing
and meals not provided when required
pursuant to § 655.122(i)(5).
Proposed § 655.122(n)(2)(iv) would
require the employer to bear the burden
of demonstrating to the Department that
any termination for cause meets the
requirements of proposed
§ 655.122(n)(2). The employer would be
required to prove that the termination
was justified and proper progressive
discipline procedures were followed.
The Department believes that it is
reasonable to require employers, as the
entities seeking an exemption from
outbound transportation, the threefourths guarantee (including meals and
housing until the worker departs for
other H–2A employment or to the place
outside the United States from which
the worker came), and notification
requirements found in §§ 655.122(h)(2)
and (i) and 655.153, to demonstrate why
termination for cause was warranted.56
Consistent with current policy, where
an employer constructively discharges a
worker, the Department will consider
56 Termination for cause provides employers with
an exception from certain provisions of the H–2A
program. Where a party seeks an exemption from
prescribed terms or from a generally applicable
provision, it is generally appropriate to assign to
that party the burden of demonstrating the
conditions for such an exemption. See, e.g.,
Meacham v. Knolls Atomic Power Lab’y, 554 U.S.
84, 91–94 (2008) (employers bear burden of proving
certain exemptions to Age Discrimination in
Employment Act); Karawia v. U.S. Dep’t of Lab.,
627 F. Supp. 2d 137, 146 (S.D.N.Y. 2009) (under 29
CFR 4.188, a contractor found by the Secretary to
have violated the Service Contract Act bears the
burden of establishing unusual circumstances to
warrant relief from the debarment sanction that
generally applies to violators); 29 CFR 525.21(c)
(where an employer that has obtained a special
certificate under FLSA section 14(c) allowing the
employer to pay special minimum wage rates to
certain workers with disabilities, and the employer
seeks to obtain authority to lower the wage rate of
a worker with a disability below the rate specified
in the certificate, the employer has the burden of
establishing the necessity of lowering the wage of
that worker); 29 CFR 779.101 (stating that ‘‘[a]n
employer who claims an exemption under the
[FLSA] has the burden of showing that it applies’’)
(citing Walling v. Gen. Indus. Co., 330 U.S. 545
(1947) and A.H. Phillips, Inc. v. Walling, 324 U.S.
490 (1945)).
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that worker to be terminated without
cause. Constructive discharge occurs
when a worker departs employment
because working conditions have
become so difficult that a reasonable
person would have felt compelled to
leave the job. Constructive discharge
may occur in a wide variety of
situations, such as where a worker
departs employment because of unsafe
or intolerable housing conditions (such
as grossly inadequate heating during the
winter, lack of running water, or
exposure of bare electrical wires),
because the employer requires the
worker to work in an unsafe workplace
(for example, where an employer
requires a worker to work in a field that
was recently sprayed with pesticides
before the required re-entry interval has
elapsed), or because the worker has not
received work assignments for an
extended period of time, despite being
available and willing to take on new
work. Along the same lines, where a
worker involuntarily leaves
employment prior to the end of the
contract period, the employee’s
departure may be deemed constructive
discharge rather than abandonment
under § 655.122(n)(1). Consistent with
current practice, in assessing whether
alleged abandonment is voluntary, the
Department will consider, for example,
whether the employer sought to
influence workers to leave a job prior to
the end of the contract period or
whether the employer took other steps
to render working conditions so
intolerable that a reasonable person in
the worker’s position would not stay.
See U.S. Dep’t of Lab., Wage & Hour
Div., Field Assistance Bulletin No.
2012–1, H–2A ‘‘Abandonment or
Termination for Cause’’ Enforcement of
20 CFR 655.122(n) (Feb. 28, 2012).57
The Department also proposes
additional recordkeeping obligations in
§ 655.122(n)(4). The regulations at
current § 655.122(n) require employers
to maintain records of notification to the
NPC, and to DHS in the case of an H–
2A worker. Proposed § 655.122(n)(4)(i)
would make a minor clarification that
such records of notification must be
maintained with respect to both
abandonment and termination for cause,
which is consistent with DOL’s
established interpretation of the current
regulations. Further, proposed
§ 655.122(n)(4)(ii) would require the
employer to maintain disciplinary
records, including each step of
progressive discipline, any evidence the
worker presented in their defense, any
investigation related to the termination,
and any subsequent instruction afforded
the worker. Finally, proposed
§ 655.122(n)(4)(iii) would require that
the employer maintain records
indicating the reason(s) for termination
of any employee, including disciplinary
records as described in
§§ 655.122(n)(4)(ii) and 655.167. These
records are necessary to show that an
employer complied with the regulations
throughout the process leading to the
termination for cause. An employer that
does not maintain these records may not
meet the burden of demonstrating to the
Department that any termination for
cause meets the requirements of
proposed § 655.122(n)(2), as required by
proposed § 655.122(n)(2)(iv). The
Department also proposes conforming
edits to § 655.167, specifically by adding
paragraphs (c)(10) and (11), requiring
employers to retain records indicating
the reason(s) for termination of any
employee, including records of each
step of progressive discipline, any
subsequent instruction afforded the
worker, and any investigation, including
any evidence or information that the
worker presented in their defense,
relating to the termination as set forth in
§ 655.122(n). The maintenance of
disciplinary records for all employees,
not simply those who were terminated,
will assist employers in meeting their
burden to demonstrate that discipline
leading to termination was not
pretextual and was consistent with
company policies and procedures. The
Department seeks comments as to
whether it should require any other
records in support of these proposed
requirements.
Finally, the Department proposes
minor edits to § 655.122(n) to improve
readability and clarity. Specifically, the
Department proposes to number
paragraphs within this section and to
reorder the mentions of termination for
cause and abandonment of employment.
Additionally, the Department proposes
to clarify that the employer must notify
the NPC and, in the case of an H–2A
worker, DHS, not later than 2 working
days after any termination for cause or
abandonment occurs. This edit would
be consistent with DOL’s established
interpretation of the current regulations
at § 655.122(n) and would clarify
ambiguous language to specify that the
notice procedures apply both to
termination for cause and to
abandonment.
57 https://www.dol.gov/sites/dolgov/files/WHD/
legacy/files/fab2012_1.pdf.
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C. Application for Temporary
Employment Certification Filing
Procedures
1. Section 655.130, Application Filing
Requirements
a. The Department Proposes To Require
Enhanced Disclosure of Information
About Employers: Owners, Operators,
Managers, and Supervisors
The Department proposes to expand
its collection of information about
employers and the managers and
supervisors of workers at places of
employment by collecting additional
information about the owner(s) of
agricultural businesses that employ
workers under the H–2A Application,
the operators of the place(s) of
employment identified in the job order,
and the managers and supervisors of the
workers when performing labor or
services at those place(s) of
employment. Specifically, the
Department proposes to require that
each prospective H–2A employer, as
defined at 20 CFR 655.103(b), provide
the following information in relation to
the owner(s) of each employer, any
person or entity (if different than the
employer(s)) who is an operator of the
place(s) of employment, including an
H–2ALC’s fixed-site agricultural
business client(s), and any person who
manages or supervises the H–2A
workers and workers in corresponding
employment under the H–2A
Application: full name, date of birth,
address, telephone number, and email
address. The Department also proposes
to revise the Form ETA–9142A to
require the employer provide additional
information about prior trade or DBA
names the employer has used in the 3
years preceding its filing of the H–2A
Application, if any, rather than
collecting only the DBA name the
employer currently uses. Accordingly,
the Department proposes to revise and
restructure § 655.130 by adding four
new paragraphs, (a)(1) through (4), to
specify the information employers must
provide at the time of filing an H–2A
Application.
In a new paragraph (a)(1), the
Department proposes to retain the
language currently in § 655.130(a) that
addresses the H–2A Application and
supporting documentation the employer
must submit. The remainder of
§ 655.130(a), which contains language
regarding collection of the employer’s
information—i.e., FEIN, valid physical
location in the United States, and means
of contact for recruitment—would be
moved to proposed paragraph (a)(2).
Also, in paragraph (a)(2), the
Department proposes to explicitly
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require disclosure of the employer’s
name and the additional employer
information collection the Department
proposes to require (i.e., the identity,
location, and means of contact for each
owner). Proposed paragraph (a)(3)
would require the employer to provide
the identity, location, and contact
information of all persons or entities
who are operators of the place(s) of
employment listed in the job order, if
different from the employer(s) identified
under paragraph (a)(2), including an H–
2ALC’s fixed-site agricultural business
client(s) who operate the place(s) of
employment where the workers
employed under the H–2A Application
will perform labor or services. In
addition, paragraph (a)(3) would require
the employer to provide the identity,
location, and contact information of all
persons who will manage or supervise
H–2A workers and workers in
corresponding employment under the
H–2A Application at each place of
employment. Proposed paragraph (a)(4)
would require the employer to continue
to update the information required by
the above paragraphs until the end of
the work contract period, including
extensions thereto, and retain this
information post-certification and
produce it upon request by the
Department. To effectuate proposed
§ 655.130(a)(4), the Department
proposes a new record retention
paragraph at § 655.167(c)(9) that would
require the employer to retain the
information specified in paragraphs
(a)(2) and (3) of § 655.130 for the 3-year
period specified in § 655.167(b).
The additional information the
Department proposes to collect is
necessary to improve program
administration and better protect
vulnerable agricultural workers. The
new collections would allow the
Department to gain a more accurate and
detailed understanding of the scope and
structure of the employer’s agricultural
operation, which is essential to the
Department’s fulfillment of various
obligations in the administration and
enforcement of the H–2A program.
During the application process, this
information would assist the
Department in determining whether the
employer has demonstrated a bona fide
temporary or seasonal need, or,
conversely, whether an employer has,
through multiple related entities, sought
to obtain year-round H–2A labor. The
additional information would enhance
the Department’s enforcement
capabilities by helping the Department
identify, investigate, and pursue
remedies from program violators; ensure
that sanctions, such as debarment or
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18:55 Sep 14, 2023
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civil money penalties, are appropriately
assessed and applied to responsible
entities, including individuals and
successors in interest when appropriate;
and determine whether an H–2A
employer subject to investigation has
prior investigative history under a
different name. For example, contact
information for owners, operators, and
supervisors may assist the Department
in locating the employer and workers
for the purposes of conducting an
investigation, presenting findings (either
verbally or in a written determination)
and obtaining payment for back wages
and civil money penalties following a
final order of the Secretary. Similarly,
this information provided at the
application stage may assist the
Department to identify whether an
individual or successor in interest
should be named on any determination
and therefore subject to any sanctions or
remedies assessed. As explained in the
discussion of proposed § 655.104, in the
experience of the Department, some H–
2A employers have sought to avoid
penalties and continue participating in
the program despite having been
debarred by reconstituting as a new
legal entity while ultimately retaining
the underlying business that was
debarred from the H–2A program. In an
audit or investigation of an employer,
this information would allow the
Department to better identify those
persons with a financial stake in the
certified H–2A employer who employ
agricultural workers through nonpetitioning entities. In addition, and as
set forth in the discussion of proposed
§ 655.103(e), in the experience of the
Department, some employers have
established one entity that pays the
firm’s H–2A workers and another entity
that pays the firm’s other workers, while
in fact the entire agricultural operation
constitutes a single employer. This
information will assist the Department
in determining quickly whether the
employees of the non-petitioning entity
are in corresponding employment as
employees of a single employer with an
H–2A labor certification.
OFLC may use this information in
post-adjudication audit examinations
and/or program integrity proceedings
(e.g., revocation or debarment actions).
The information will help OFLC verify
that persons representing employers
both in the labor certification process
and in the process of recruiting,
managing, or supervising workers are
acting on behalf of the employers within
the scope of the terms and conditions of
the labor certification and any contracts
or agreements with employers, and in
compliance with the revised regulations
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and all employment-related laws, such
as laws prohibiting discrimination,
retaliation, or the imposition of
unlawful recruitment or visa-related
fees. Collection of prior DBA names and
identifying information for people other
than the employer will make it easier for
OFLC and WHD to search across
applications within a filing system
database to identify instances in which
employers have changed names or roles
to avoid complying with program
regulations or avoid monetary penalties
or serious sanctions such as program
debarment. The proposed information
collections also will facilitate
interagency information sharing and
permit OFLC and WHD to share relevant
identifying information with other
agencies when necessary to aid an
investigation or enforcement action.
The Department will collect this
information primarily through the H–2A
Application the employer must
complete to obtain temporary labor
certification, and the Department
proposes revisions to these forms under
the Paperwork Reduction Act (PRA) for
this purpose. In particular, the
Department proposes revisions to the
Form ETA–790A, Addendum B, to
collect more detailed information about
employers and the places of
employment at which workers will
provide the agricultural labor or services
described in the job order. In addition,
the Department proposes a new Form
ETA–9142A, Appendix C, to collect the
additional identifying information for
owners and operators of places where
work is performed and the people who
manage and supervise workers under
the H–2A Application, discussed above.
The Department will collect, store, and
disseminate all information and records
in accordance with the Department’s
information sharing agreements and
System of Records Notices, principles
set forth by the Office of Management
and Budget (OMB), and all applicable
laws, including the Privacy Act of 1974
(Pub. L. 93–579, sec. 7, Dec. 31, 1974,
88 Stat. 1909), Federal Records Act of
1950 (Pub. L. 81–754, 64 Stat. 585
[codified as amended in chapters 21, 29,
31, and 33 of 44 U.S.C.]), the PRA (44
U.S.C. 3501 et seq.), and the EGovernment Act of 2002 (Pub. L. 107–
347 (2002)). More information about the
Department’s proposed changes to the
H–2A information collection
instruments and the Department’s
collection and use of this information is
available in supporting documentation
in the PRA package the Department has
prepared for this rulemaking.
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2. Section 655.135, Assurances and
Obligations of H–2A Employers
a. Section 655.135 Introductory
Language, WHD Authority
The Department proposes a minor,
clarifying revision to the introductory
language to § 655.135 to include explicit
reference to 29 CFR part 501 as part of
the obligations and assurances of an
employer seeking to employ H–2A
workers. The current introductory
language specifies that an employer
seeking to employ H–2A workers must
agree as part of the job order and
Application that it will comply with all
requirements under 20 CFR part 655,
subpart B. Those requirements currently
include compliance with WHD’s
investigative and enforcement authority
under 29 CFR part 501. See, e.g., 20 CFR
655.103(b), 655.101(b). The proposed
revisions here would simply make these
obligations more explicit in § 655.135
and on the job order, to better ensure
that both workers and employers are
fully aware of WHD’s authorities. The
Department welcomes comments on this
proposed revision.
ddrumheller on DSK120RN23PROD with PROPOSALS2
b. Sections 655.135(h), (m), and (n),
655.103(b), Protections for Workers Who
Advocate for Better Working Conditions
The Department proposes to revise
the assurances and obligations of H–2A
employers to include stronger
protections for workers who advocate
for better working conditions on behalf
of themselves and their coworkers. The
Department believes that these
protections will significantly improve
the Department’s efforts to prevent
adverse effect on the working conditions
of similarly employed agricultural
workers in the United States because the
hiring of H–2A workers may suppress
the ability of domestic workers to
negotiate with employers and advocate
on their own behalf. Even if workers in
the United States were to demand better
conditions or pay, under the current H–
2A regulatory framework, employers
may turn to the H–2A program for an
alternative, vulnerable workforce that
faces significant barriers to pushing for
better conditions or organizing, thus
undermining advocacy efforts by or on
behalf of workers in the United States.
The proposals in this rule seek to
correct this imbalance in bargaining
power by protecting the rights of H–2A
and other workers to advocate for better
working conditions. In other words, the
protections that the Department
proposes would provide an important
‘‘baseline’’ or minimum condition of
employment under the H–2A program
below which workers in the United
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States would be adversely affected, for
the reasons set forth below.
Specifically, the Department proposes
to broaden the provision at § 655.135(h),
which prohibits unfair treatment, by
adding a number of protected activities
that the Department has determined will
play a significant role in safeguarding
collective action, and that workers must
be able to engage in without fear of
intimidation, threats, and other forms of
retaliation. The Department also
proposes a new employer obligation at
§ 655.135(m) that would ensure that H–
2A employers do not interfere with
efforts by their vulnerable workforce to
advocate for better working conditions
by including a number of requirements
that would advance worker voice and
empowerment and further protect the
rights proposed under § 655.135(h). The
Department also proposes a new
employer obligation at § 655.135(n) that
would explicitly allow H–2A workers
and workers in corresponding
employment the right to invite or accept
guests to worker housing and also
would provide a narrow right of access
to worker housing to labor
organizations. Some of these proposed
protections would be limited to those
workers who are engaged in agriculture
as defined and applied in 29 U.S.C.
203(f)—that is, those who are exempt
from the protections of the NLRA.
The Department believes that the
proposed protections are necessary to
prevent an adverse effect on the working
conditions of workers in the United
States similarly employed. 8 U.S.C.
1188(a)(1). The Department has
historically understood the INA’s
adverse effect requirement both as
requiring parity between the terms and
conditions of employment provided to
domestic and H–2A workers and as
establishing a baseline ‘‘acceptable’’
standard for working conditions below
which workers in the United States
would be adversely affected. Courts
have long recognized that Congress
delegated to the Department broad
authority to implement the prohibition
on adverse effect. See, e.g., Overdevest
Nurseries, L.P. v. Walsh, 2 F.4th 977,
984 (D.C. Cir. 2021); AFL–CIO v. Dole,
923 F.2d 182, 187 (D.C. Cir. 1991)
(citing AFL–CIO v. Brock, 835 F.2d 912,
915 n.5 (D.C. Cir. 1987)).
In the 1978 H–2 regulations for
agricultural employment, the
Department characterized many of the
longstanding terms and conditions of
the program now found at 20 CFR
655.122—including housing, workers’
compensation insurance, the provision
of tools and equipment, the maximum
meal charge, inbound and outbound and
daily transportation, the three-fourths
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63787
guarantee, and recordkeeping and
earning statements—as ‘‘the minimum
level’’ of working conditions ‘‘below
which similarly employed’’ workers in
the United States ‘‘would be adversely
affected.’’ 20 CFR 655.0(d), 655.202(b)
(1978), 43 FR 10306, 10312, 10314 (Mar.
10, 1978). The 1978 rule further
explained that ‘‘[i]f it is concluded that
adverse effect would result,’’ the
Department would not be able to
separately determine whether U.S.
workers are available because ‘‘U.S.
workers cannot be expected to accept
employment under conditions below
the established minimum levels.’’ 43 FR
10306, 10312 (Mar. 10, 1978).
In IRCA, which bifurcated the H–2
program and created the separate H–2A
program, Congress explicitly adopted
the adverse effect requirement, stating
that the Secretary may not issue a
temporary labor certification unless the
petitioning employer has established,
among other things, that the
employment of H–2A workers ‘‘will not
adversely affect the . . . working
conditions of workers in the United
States similarly employed.’’ 8 U.S.C.
1188(a)(1). The Department retained the
‘‘minimum’’ terms and conditions of
employment required under the
program, explicitly described in the
regulations as intended to prevent
adverse effect, in its 1987 rulemaking.
52 FR 16770, 16779–80 (May 5, 1987);
52 FR 20496, 20508, 20513 (June 1,
1987); see also Garcia-Celestino v. Ruiz
Harvesting, Inc., 843 F.3d 1276, 1285
(11th Cir. 2016) (explaining that the
regulations’ provision of minimum
benefits to H–2A workers, including
sound working conditions, ‘‘ensure[s]
that foreign workers will not appear
more attractive to the employer than
domestic workers, thus avoiding any
adverse effects for domestic workers’’)
(citations omitted).
Over the past decade, use of the H–
2A program has grown dramatically
while overall agricultural employment
in the United States has remained
stable, meaning that fewer domestic
workers are employed as farmworkers.58
The Department believes that this is
because the dangers and physical
hardships inherent in agricultural
58 According to USDA’s Economic Research
Service, employment of farmworkers in the United
States has remained stable since the 1990s, but the
number of positions certified in the H–2A program
has increased sixfold from 2005 to 2021. See Farm
Labor, U.S. Dep’t of Agriculture, https://
www.ers.usda.gov/topics/farm-economy/farm-labor;
H–2A Seasonal Worker Program Has Expanded
Over Time, U.S. Dep’t of Agriculture, https://
www.ers.usda.gov/data-products/chart-gallery/
gallery/chart-detail/?chartId=104874.
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employment,59 combined with the lack
of protections for worker organizing and
bargaining power, have together
contributed to worsening working
conditions in agricultural
employment—a lowering baseline—
leading to a decreasing number of
domestic workers willing to accept such
work.60 Congress explicitly prohibited
in the INA the granting of labor
certifications in the event of a strike or
lockout at the worksite, a prohibition
that recognizes the potential for the
hiring of H–2A workers to suppress
domestic workers’ bargaining power and
organizing efforts and, thus, have a
negative impact on workers in the
United States. 8 U.S.C. 1188(b)(1).
Some of the characteristics of the H–
2A program, including the temporary
nature of the work, frequent geographic
isolation of the workers, and
dependency on a single employer,
create a vulnerable population of
workers for whom it is uniquely
difficult to advocate or organize to seek
better working conditions.61 In its
enforcement experience, the Department
has received reports of employers that
have prohibited or effectively prevented
H–2A workers from receiving assistance
from certain service providers. For
example, some employers have
prevented H–2A workers from
consulting with legal aid organizations
regarding workers’ rights under the H–
2A program. Others have refused to
transport workers to a medical provider
for care in the United States, and one
employer required instead that workers
return to Mexico to access medical care
for an on-the-job injury. The Department
has seen flyers prohibiting workers from
talking to visitors at the housing site
without supervisor permission and
posters prohibiting visitors to
agricultural establishments unless the
visitors first check in with the employer.
See also Rivero v. Montgomery Cnty.,
259 F. Supp. 3d 334, 337–40 (D. Md.
59 Workplace Safety and Health Topics:
Agricultural Safety, National Inst. for Occupational
Safety & Health, Ctrs. for Disease Control &
Prevention.
60 Centro de los Derechos del Migrante, Ripe for
Reform: Abuses of Agricultural Workers in the H–
2A Visa Program 4, 6 (CDM Report), https://
cdmigrante.org/ripe-for-reform; Farmworker Justice
Report at 7, 11, 17, 31; Miriam Jordan, Black
Farmworkers Say They Lost Jobs to Foreigners Who
Were Paid More, N.Y. Times (Nov. 12, 2021),
https://www.nytimes.com/2021/11/12/us/blackfarmworkers-mississippi-lawsuit.html; Polaris,
Labor Trafficking on Specific Temporary Work
Visas, a Data Analysis 2018–2020 13, 18 (May 2022)
(Polaris 2018–2020 Report), https://
polarisproject.org/wp-content/uploads/2022/07/
Labor-Trafficking-on-Specific-Temporary-WorkVisas-by-Polaris.pdf.
61 CDM Report at 4–6, 9, 13, 18–19, 23, 27;
Farmworker Justice Report at 17; Polaris 2018–2020
Report at 13, 18–19, 26.
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2017) (employer unlawfully blocked
legal aid workers from visiting H–2A
workers in employer-provided housing).
Nongovernmental organizations (NGOs)
that work with H–2A workers report
similar employer interference with
workers’ rights to access services and
information, including medical
treatment and legal assistance.62
Workers in the H–2A program are also
vulnerable to retaliation, which
discourages workers from advocating for
their own rights and the rights of their
coworkers.63 For example, the
Department debarred and assessed
penalties against an H–2A employer that
instructed workers to lie about their pay
to investigators and threatened to kill
workers who talked to authorities.64 The
Department also recently obtained a
temporary restraining order and
preliminary injunction against an H–2A
employer who, after workers requested
more food and water, threatened
workers with a gun, shooting twice near
the workers.65 In another example, the
Department recently debarred and
assessed penalties against an employer
who underpaid workers by more than
$5.00 per hour and confiscated workers’
passports to keep them from leaving
employment upon realizing they were
being underpaid.66 These examples are
just a few among the many instances of
retaliation that the Department has
witnessed, and that workers experience,
that demonstrate that workers can face
significant hurdles when advocating on
their own behalf to assert even their
basic rights under the current H–2A
program regulations.
62 CDM Report at 5, 23, 27, 30; Farmworker
Justice Report at 22, 33; Polaris 2018–2020 Report
at 7, 8, 19, 26.
63 Farmworker Justice Report at 30–31; Polaris
2018–2020 Report at 16–17, 26.
64 Individuals associated with this employer also
pleaded guilty to criminal charges for their role in
forced labor racketeering conspiracy. See Press
Release, U.S. Dep’t of Just., Owner of Farm Labor
Contracting Company Pleads Guilty in Racketeering
Conspiracy Involving the Forced Labor of Mexican
Workers (Sept. 27, 2022), https://www.justice.gov/
opa/pr/owner-farm-labor-contracting-companypleads-guilty-racketeering-conspiracy-involvingforced; Press Release, U.S. Dep’t of Just., Three
Defendants Sentenced in Multi-State Racketeering
Conspiracy Involving Forced Labor of Mexican
Agricultural H–2A Workers (Oct. 27, 2022), https://
www.justice.gov/opa/pr/three-defendantssentenced-multi-state-racketeering-conspiracyinvolving-forced-labor-mexican.
65 See Press Release, U.S. Dep’t of Lab., Federal
Court Orders Louisiana Farm, Owners to Stop
Retaliation After Operator Denied Workers’ Request
for Water, Screamed Obscenities, Fired Shots (Oct.
28, 2021), https://www.dol.gov/newsroom/releases/
whd/whd20211028-0.
66 See Press Release, U.S. Dep’t of Lab., US
Department of Labor Investigation Results in Judge
Debarring North Carolina Farm Labor Contractor
for Numerous Guest Worker Visa Program
Violations.
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As explained, the Department
believes that the fear of retaliation,
combined with the lack of clear
protections for H–2A workers and
corresponding workers to self-organize
and advocate on their own behalf, has
contributed to low union density in the
agricultural workforce.67 In addition,
based on its enforcement experience,
the Department has determined that the
H–2A program currently does not
provide sufficient protections for such
workers to safely and consistently assert
their rights under the program and
engage in self-advocacy. This lack of
sufficient protections adversely affects
the ability of domestic workers to
advocate for acceptable working
conditions, leading to reduced worker
bargaining power and, ultimately,
deterioration of working conditions in
agricultural employment. However,
when these workers have engaged in
organizing, it has led to better working
conditions for all workers. According to
the Farm Labor Organizing Committee,
AFL–CIO, union advocacy has
improved conditions for the workers it
represents (over 10,000 H–2A workers
employed at North Carolina agricultural
sites), including by helping H–2A
workers to obtain remedies for likely
violations of the H–2A program’s
requirements relating to housing safety
standards, travel reimbursements,
wages, and other requirements.68
Therefore, the Department believes
that changes proposed here, which
would expand the H–2A anti-retaliation
regulation and include employer
obligations that would make advocacy
and organizing more available to
workers in the H–2A program, would
help improve the working conditions of
workers protected under the H–2A
program, and thus prevent an adverse
effect on similarly employed workers in
the United States. The Department
believes that the proposed protections
also would increase U.S. worker
response to H–2A employers’
recruitment efforts, both by improving
working conditions under the H–2A
program and by increasing U.S. workers’
67 According to BLS data, in 2021, union
representation in agriculture was just 3.1 percent of
total workers employed compared to the 11.6
percent of workers employed overall represented by
unions; in 2022, agricultural union representation
was 4.3 percent of workers employed, compared to
11.3 percent of workers employed overall. BLS
News Release, Union Members—2022 tbls 1, 3,
Bureau of Lab. Stats., https://www.bls.gov/
news.release/pdf/union2.pdf. See also Report for
Congress, Farm Labor: The Adverse Effect Wage
Rate (AEWR), Congressional Research Service
(updated March 26, 2008) n.17; Farmworker Justice
Report at 31.
68 See Farmworker Justice Report at 30–31; 2017
Grievance Summary, Farm Lab. Org. Comm.,
https://floc.com/2017-grievance-summary.
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interest in H–2A job opportunities that
include protections for advocacy and
organizing efforts that would not be
undermined by the availability of an
alternative, more vulnerable workforce.
These proposals also would enhance
worker bargaining power and
meaningfully equip workers to prevent
further deterioration of working
conditions that adversely affect workers
in the United States.
The Department welcomes comments
on whether, in fact, foreign workers
employed under the H–2A program are
more vulnerable to labor exploitation
than similarly employed domestic
workers, due to the temporary nature of
the work; frequent geographic isolation
of the workers; dependency on a single
employer for work, housing,
transportation, and necessities,
including access to food and water;
language barriers; possible lack of
knowledge about their legal rights; or
other factors. It also welcomes evidence
or experience regarding, or refuting, the
unique vulnerability of these workers,
and whether existing worker protections
are adequate to prevent violations of H–
2A program requirements, dangerous
working conditions, retaliation, and
labor trafficking, or to promote H–2A
workers’ ability to advocate or organize
to seek better working conditions. The
Department also seeks comments on
whether domestic agricultural workers
have greater voice and empowerment at
work generally than foreign agricultural
workers, despite the fact that they are
not covered by the NLRA, due to their
established presence in the United
States, their domestic network of family
and friends, their greater familiarity
with services and supports available to
workers in the United States, and their
ability to find alternative employment.
And more generally, the Department
also seeks comment on how to increase,
or increase awareness of existing,
protections for workers advocating for
better working conditions and to help
prevent adverse effect on workers in the
United States, without infringing on
employers’ rights to manage their
workplaces. It welcomes the views of
employers, workers, worker advocates,
labor organizations, and other
stakeholders on these issues. In
particular, the Department welcomes
any evidence, research, and/or
empirical data regarding these issues.
The Department also welcomes
comments on whether further
protections for workers’ advocacy and
organization, in addition to the
protections contained within the
following sections, are necessary to
ensure that the employment of foreign
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workers under the H–2A program does
not adversely affect the wages or
working conditions of domestic
workers.
i. The Department’s Proposed
Regulations Would Not Be Preempted
by the NLRA
Some of the provisions included in
the Department’s proposed regulations
would be limited to persons who are
engaged in agriculture as defined and
applied in 29 U.S.C. 203(f) (‘‘FLSA
agriculture’’). For these workers, and
these workers alone, the proposed
regulations would protect some conduct
and provide some rights necessary to
safeguard collective action and protect
against retaliation. The NLRA’s coverage
extends only to workers who qualify as
‘‘employee[s]’’ under section 2(3) of that
Act, and the NLRA’s definition of
employee expressly excludes ‘‘any
individual employed as an agricultural
worker.’’ 29 U.S.C. 152(3). Congress has
provided that the definition of
‘‘agricultural’’ in section 3(f) of the
FLSA also applies to the NLRA. See,
e.g., Holly Farms v. NLRB, 517 U.S. 392,
397–98 (1996). Following the plain text
of the statute, both Federal courts and
the NLRB have long held that the NLRA
does not apply to agricultural workers,
worker organizing by agricultural
workers, or unions ‘‘composed
exclusively of agricultural laborers.’’ Di
Giorgio Fruit Corp. v. NLRB, 191 F.2d
642, 647 (D.C. Cir. 1951); see also, e.g.,
Villegas v. Princeton Farms, Inc., 893
F.2d 919, 921 (7th Cir. 1990). Because
portions of the Department’s proposed
regulations would apply only to workers
who fall within the NLRA and FLSA
definitions of agricultural labor, those
proposed provisions would apply
exclusively to workers who are exempt
from the NLRA. Thus, to the extent that
one might argue that the proposed
changes in this section safeguarding
collective action would be preempted
by Federal labor law, the NLRA’s
exemption of agricultural labor shows
that the proposal here is not preempted.
As the Supreme Court explained in San
Diego Building Trades Council v.
Garmon, 359 U.S. 236 (1959), the NLRA
preempts regulation of activities that
either are or arguably are ‘‘protected by
[section] 7 of the National Labor
Relations Act, or . . . an unfair labor
practice under [section] 8.’’ Id. at 244;
see also UAW-Labor Emp. & Training
Corp. v. Chao, 325 F.3d 360, 363 (D.C.
Cir. 2003). Conduct may be ‘‘arguably’’
governed by section 7 or 8 of the NLRA
when there is a plausible argument for
preemption ‘‘that is not plainly contrary
to [the Act’s] language and that has not
been authoritatively rejected by the
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63789
courts or the Board.’’ Int’l
Longshoremen’s Ass’n v. Davis, 476 U.S.
380, 395 (1986). Because agricultural
workers are expressly excluded from the
NLRA by the plain text of the statute,
agricultural worker organizing is neither
protected by section 7 of the Act nor
subject to section 8’s limitations on
unfair labor practices. See 29 U.S.C.
152(3); see also Di Giorgio, 191 F.2d at
647–49 (holding that section 8’s
prohibition on secondary boycotts did
not apply to a Farm Union, because an
organization composed exclusively of
agricultural workers is not governed by
the NLRA). Moreover, because any
argument that the NLRA governs
agricultural workers would be ‘‘plainly
contrary to [the NLRA’s] language,’’ the
conduct that would be protected under
the Department’s proposed rule is not
even arguably governed by the NLRA.
See Int’l Longshoremen’s Ass’n, 476
U.S. at 395; see also Wilmar Poultry Co.,
Inc. v. Jones, 430 F. Supp. 573, 578 (D.
Minn. 1977) (holding that Garmon
preemption does not apply to State
regulation of agricultural workers’ labor
activity ‘‘because the NLRA’s
protections and prohibitions do not
apply to agricultural laborers.’’).
The Supreme Court held in
International Ass’n of Machinists &
Aerospace Workers v. Wisconsin
Employment Relations Commission, 427
U.S. 132 (1976), that the NLRA also
preempts regulation of employer or
worker conduct that Congress intended
to leave unregulated ‘‘to be controlled
by the free play of economic forces.’’ Id.
at 140 (quotations omitted). Machinists
preemption applies to State or Federal
regulation of ‘‘economic weapons’’ that
would ‘‘frustrate effective
implementation of the Act’s processes.’’
Id. at 147–48 (quotations omitted). The
Department’s proposed rule could not
frustrate effective implementation of the
NLRA’s processes, because the relevant
portions of the proposal would apply
exclusively to a set of H–2A agricultural
workers to whom the NLRA’s processes
do not apply. Thus, the text and
structure of the NLRA indicate that
Machinists field preemption does not
extend to agricultural worker
organizing. See United Farm Workers v.
Arizona Ag. Emp. Rels. Bd., 669 F.2d
1249, 1257 (9th Cir. 1982) (explaining
that when ‘‘Congress has chosen not to
create a national labor policy in a
particular field, the states remain free to
legislate as they see fit’’ and Machinists
preemption does not apply); Wilmar
Poultry, 430 F. Supp. at 578 (holding
that Machinists preemption does not
apply to State regulation of agricultural
laborers). Similarly, courts have held
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that Machinists preemption does not
prevent State labor relations regulations
that apply to other workers excluded
from the NLRA. See, e.g., Davenport v.
Wash. Educ. Ass’n, 551 U.S. 177, 181
(2007) (public employees); Chamber of
Commerce v. City of Seattle, 890 F.3d
769, 792 (9th Cir. 2018) (independent
contractors); Greene v. Dayton, 806 F.3d
1146, 1149 (8th Cir. 2015) (domestic
service workers).
Furthermore, in these proposed
regulations the Department would be
exercising its authority under the INA to
regulate the labor market to prevent
adverse effect on the working conditions
of agricultural workers in the United
States. 8 U.S.C. 1188(a)(1). Congress
could not have intended for the NLRA
to ‘‘occupy the ‘field’ with respect to the
regulation of all labor concerns,’’ as it
delegated authority under the INA to the
Department. See Nat’l Ass’n of Mfrs. v.
Perez, 103 F. Supp. 3d 7, 25 (D.D.C.
2015) (citing UAW-Lab. Emp. &
Training Corp., 325 F.3d at 364)
(holding that a DOL regulation was not
preempted under Machinists because it
was an exercise of the President’s
procurement power, rather than an
exercise of authority conferred by the
NLRA, and because Congress did not
intend for the NLRA to ‘‘foreclose all
other’’ labor regulation). For these
reasons, no part of the Department’s
proposed regulation would be
preempted by the NLRA.
Because certain provisions of this
proposed rule would be limited to
workers engaged in FLSA agriculture,
the Department notes that workers who
are not engaged in FLSA agricultural
labor (e.g., those workers engaged in
logging occupations) would not be
covered by those proposed provisions.
The vast majority of workers excluded
from those proposed provisions,
however, are covered by the NLRA, and
are thus already afforded the right to
self-organization. Nothing in this
proposed rule would alter or
circumscribe the rights of workers
already protected by the NLRA to
engage in conduct and exercise rights
afforded under that law.
ii. Section 655.103(b), Definitions
In support of the new employer
obligations the Department is proposing,
the Department proposes to add two
new definitions to § 655.103(b).
The Department proposes to define
‘‘key service provider’’ to mean a healthcare provider; a community health
worker; an education provider; an
attorney; a legal advocate or other legal
service provider; a government official,
including a consular representative; a
member of the clergy; and any other
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service provider to which an
agricultural worker may need access.
The Department has adapted this
proposed definition from one used in
the Colorado Agricultural Labor Rights
and Responsibilities Act, Colo. Rev.
Stat. 8–13.5–201, because it believes
that a definition and examples of the
types of service providers that workers
should have access to would be useful
for both workers and employers. The list
of service providers included in the
proposed definition is intended to be
illustrative and not exhaustive. For
example, the Department would
consider a non-union worker center to
be a key service provider under the
proposed definition, as well as the
representatives, directors, or other
individual employees of a worker
center. Worker centers are generally
non-union, community-led
organizations that provide or engage in
services, advocacy, and organizing to
support workers in low-wage industries
and occupations, particularly in those
industries and occupations excluded
from Federal labor law, such as
agriculture.69 The Department is
soliciting comment on the scope of this
proposed definition, in particular as to
whether it is sufficient, whether other
types of service providers should be
included in the list of examples in the
regulation, or whether this definition is
too broad.
The Department proposes to define
‘‘labor organization’’ to mean an
organization in which employees
participate and that exists for the
purpose, in whole or in part, of dealing
with employers over grievances, labor
disputes, or terms or conditions of
employment. This definition is similar
to the one used under the NLRA with
key differences to reflect the nature of
the H–2A program. While this definition
would thus incorporate many NLRA
69 For example, the Coalition of Immokalee
Workers is a worker-based human rights
organization that focuses on fighting human
trafficking and gender-based harassment and
violence affecting farmworkers, and improving
labor standards through a voluntary code of
conduct called the Fair Food Program (‘‘FFP’’), a
market-centered approach to the protection of
human rights in corporate supply chains. ‘‘Key
service providers’’ under the voluntary FFP might
include worker educators who provide regular
training at participating farms; investigators who
conduct audits and accept, investigate, and resolve
complaints; and representatives who work with
participating buyers to enforce the voluntary FFP at
participating farms. See Coalition of Immokalee
Workers, Fair Food Program (2021), https://ciwonline.org/blog/2021/09/released-2021-fair-foodprogram-report. Similar worker centers serve farm
workers in other States. See also Economic Policy
Institute, Briefing Paper No. 159: Worker Centers:
Organizing Communities at the Edge of the Dream
(Dec. 31, 2005), https://www.epi.org/publication/
bp159.
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principles regarding the meaning of the
term ‘‘labor organization,’’ the
Department intends the range of
organizations that would be considered
labor organizations under these
proposed regulations to be broader than
under the NLRA because the
Department’s proposed definition
would include organizations in which
agricultural workers participate,
whereas such organizations are
excluded under the NLRA. The
Department believes this broader
definition is appropriate given the
unique characteristics of the H–2A
program. The Department seeks
comment on the scope of this proposed
definition. The Department also seeks
comment on whether the definition
should include additional criteria or
protections in order to ensure that any
such organization is not dominated,
interfered with, or supported by
employers, as would be prohibited by
section 8(a)(2) of the NLRA, 29 U.S.C.
158(a)(2).
The Department also welcomes
comments on whether other terms
introduced by the proposed regulations
should be defined in § 655.103(b), and
on other definitions that the Department
should consider.
iii. Section 655.135(h) No Unfair
Treatment
The Department proposes to expand
the scope of what constitutes prohibited
unfair treatment under § 655.135(h) to
better protect workers from intimidation
or discrimination in response to worker
advocacy. As detailed above, the
Department believes that these
protections are necessary to prevent an
adverse effect on the working conditions
of workers in the United States similarly
employed. 8 U.S.C. 1188(a)(1). Workers’
rights cannot be secured unless they are
protected from all forms of
discrimination resulting from any
worker’s attempt to advocate on behalf
of themselves or their coworkers. The
Department has long recognized that
such protections are essential to the
effective functioning of a complaintsbased enforcement regime. Mitchell v.
Robert DeMario Jewelry, Inc., 361 U.S.
288, 292 (1960) (agreeing with the
Department’s interpretation of the
FLSA’s anti-retaliation provision and
explaining that Congress ‘‘chose to rely
on information and complaints received
from employees seeking to vindicate
rights’’ and ‘‘effective enforcement
could thus only be expected if
employees felt free to approach officials
with their grievances’’); see also U.S.
Dep’t of Lab., Wage & Hour Div., Field
Assistance Bulletin No. 2022–02,
Protecting Workers From Retaliation
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(Mar. 10, 2022).70 Stated differently, an
employer who is free to intimidate
workers to discourage them from raising
or reporting legal violations, or to
retaliate against those who do so,
interferes with the Department’s ability
to enforce the legal requirements of the
H–2A statute and regulations. This is
particularly true for workers in the H–
2A program. Due to the temporary
nature of their work; their geographic
isolation and lack of independent
transportation; their dependency on a
single employer for work, housing, and
other necessities, including access to
food and water; language barriers; and,
often, a lack of knowledge about their
legal rights, H–2A workers are
especially vulnerable to retaliation. This
vulnerability makes H–2A workers less
likely to assert their legal rights or to
raise or report H–2A violations,
including illegal or intolerable working
conditions. See section IV.C.2.b of this
preamble. And as set forth above, the
availability of H–2A workers who are
less likely to complain about such
working conditions makes it less likely
that H–2A workers will come together to
seek better working conditions, and it is
similarly less likely that workers in the
United States will be able to organize
with their fellow H–2A workers or
otherwise seek improvements to their
working conditions alongside H–2A
workers. Thus, the Department has
determined that strengthening and
expanding the regulations’ existing
protections against intimidation or
discrimination in the H–2A program is
necessary to prevent further adverse
effect on the working conditions of
workers in the United States.
Currently, the prohibition on unfair
treatment provides that an employer
‘‘has not or will not intimidate, threaten,
restrain, coerce, blacklist, or in any
manner discriminate against, any
person’’ who has engaged in certain
enumerated protected activities
pertaining to the H–2A program
requirements, namely, filing a
complaint, instituting a proceeding,
testifying in a proceeding, or consulting
with an attorney or legal assistance
program regarding any H–2A violation,
or exercising or asserting any right or
protection under the H–2A program. 20
CFR 655.135(h)(1) through (5). The
Department proposes to redesignate and
expand current paragraphs (h)(1)
through (h)(5) into proposed (h)(1)(i)
through (h)(1)(vii). The Department also
proposes a new category of protected
activity, limited to those workers
engaged in FLSA agriculture, at
70 https://www.dol.gov/sites/dolgov/files/WHD/
fab/fab-2022-2.pdf.
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proposed § 655.135(h)(2). Finally, to
help inform workers of their rights
under the H–2A program, the
Department is proposing to include the
protections that would be afforded
under proposed § 655.135(h) in the
disclosures required on the job order.
iv. Section 655.135(h)(1)(v) Consulting
With Key Service Providers
Recognizing the barriers that H–2A
workers frequently face in accessing
certain services (see section IV.C.2.b of
this preamble), the Department proposes
to broaden the range of service
providers and advocates with whom
consultation regarding the terms and
conditions of employment under the H–
2A program is explicitly protected.
Specifically, the Department proposes to
add a new paragraph (v) to the list of
protected activities at § 655.135(h)(1),
consulting with a ‘‘key service
provider,’’ as defined in proposed
§ 655.103(b), regarding matters under
the H–2A program. This proposal would
not be limited to persons engaged in
FLSA agriculture. The Department notes
that workers are already entitled to
access and meet with many different
service providers to discuss or assert
rights under the H–2A program, without
fear of retaliation for doing so, under the
Department’s current regulatory
framework. See, e.g., 20 CFR 655.135(e)
and (h)(5). For example, under the
current regulations, an employer may
not retaliate against a worker because
the worker goes to see a doctor to care
for an injury the worker incurred while
on the job, or because the worker
consults a worker advocacy organization
regarding the employer’s failure to pay
the wages promised in the job order. Id.
The proposal here is intended to simply
make these rights explicit. And because
this explicit assurance would be
included on the job order (Form ETA–
790A), this clarification would help
ensure that workers will be aware of this
protection through the terms of the job
order. The Department believes that
clarifying protections for workers’
consultation with such providers would
increase the likelihood that workers will
receive necessary services and help
prevent the frequent isolation that
renders workers more vulnerable to H–
2A violations and other forms of labor
exploitation, including worsening
working conditions. The Department
seeks comment on this proposal.
v. Section 655.135(h)(1)(vi) Exercising
or Asserting Any Rights Under the
H–2A Program
The Department proposes to
redesignate current paragraph (h)(5),
which protects any person from
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discrimination for exercising or
asserting any rights protected or
afforded under the H–2A program, to
(h)(1)(vi). The Department does not
propose any substantive changes to this
paragraph. However, the Department
notes that this category of protected
activity would protect any person from
any form of discrimination for asserting
any rights or protections afforded under
the H–2A program, including those
rights and protections afforded under
the Department’s proposed paragraphs
(m), (n), and (o) of this section.
vi. Section 655.135(h)(1)(vii) Exercising
Rights Under Federal, State, or Local
Laws
The Department also proposes to
clarify existing regulations by adding
§ 655.135(h)(1)(vii) to explicitly protect
complaints, proceedings, and testimony
under any applicable labor- or
employment-related Federal, State, or
local law or regulation, including those
related to health and safety. This would
explicitly prohibit employers from
retaliating against any person who files
a complaint, institutes or causes to be
instituted any proceeding, or testifies or
is about to testify in any proceeding
under or related to any applicable
Federal, State, or local labor- or
employment-related law, rule, or
regulation. The Department notes that
these activities are already protected
under the Department’s current
regulatory framework because
employers already must comply with all
applicable Federal, State, and local laws
as a requirement of the H–2A program.
See 20 CFR 655.135(e) and (h)(1), (5).
The proposal here is intended to make
these rights explicit, in order to better
inform workers and employers of the
protected rights under the H–2A
program. Moreover, because there are
Federal, State, and local labor- or
employment-related laws and
regulations that may apply to workers
protected under the H–2A program (e.g.,
the Occupational Safety and Health Act,
29 U.S.C. ch. 15, or the FLSA, 29 U.S.C.
201 et seq.), explicitly prohibiting
retaliation against persons who share
information with or assist those seeking
to enforce these other laws would better
protect workers advocating for better
working conditions and would help
prevent adverse effect on workers in the
United States.
The Department emphasizes that
nothing in this proposed rule is
intended to preempt more protective
local, State, or Federal laws, including
labor and employment laws and
regulations at the State level that
expressly protect agricultural workers,
as well as those that protect workers
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generally against discrimination, unsafe
working conditions, or other adverse
impacts, such as those referenced above.
Moreover, the remedies provided for
under this proposed regulation are not
intended to be exclusive; if an
agricultural worker has other remedies
available under State or local law, the
remedies contemplated under this
proposal are not intended to displace
them. The Department welcomes
comments on how best to ensure that its
proposals do not conflict with existing
laws and regulations and how best to
preserve available remedies under those
laws, in particular State laws that
provide for a system of collective
bargaining for farmworkers and
explicitly prohibit retaliation against
farmworkers.
The Department seeks comments on
this proposal.
vii. Prohibitions on Seeking To Alter or
Waive the Terms and Conditions of
Employment, Including the Right To
Communicate With the Department
The Department’s current regulations,
including current § 655.135(h), have
long protected a worker’s ability to
communicate with the Department. In
addition, the Department’s H–2A
regulations have long required
employers to fully disclose in the job
order the material terms and conditions
of employment under the job
opportunity, and have long prohibited
employers from seeking to later alter
those terms and conditions. See 20 CFR
655.103(b), 655.122(b) and (q); 29 CFR
501.5. However, in recent years, the
Department has observed a troubling
trend of H–2A employers imposing
‘‘side agreements’’ that purport to add or
waive certain terms and conditions of
employment as compared to those
disclosed in the job order. For example,
after terminating a group of workers
without cause, one H–2A employer
presented the workers with forms
falsely asserting that the workers had
left voluntarily, purporting to waive the
workers’ rights to the three-fourths
guarantee. WHD v. Sun Valley
Orchards, LLC, ARB No. 2020–18, 2021
WL 2407468, at *10–11 (ARB May 27,
2021), aff’d, No. 1:21–cv–16625, 2023
WL 4784204 (D.N.J July 27, 2023),
appeal filed. Other H–2A employers
have required workers to sign
arbitration agreements after the workers
have arrived at the place of
employment, without having disclosed
such a requirement in the job order. See,
e.g., Martinez-Gonzalez v. Elkhorn
Packing Co., LLC, 25 F.4th 613 (9th Cir.
2022); Magana-Mun˜oz v. West Coast
Berry Farms, LLC, No. 5:20–cv–02087,
2020 WL 3869188, at *5 (N.D. Cal. July
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9, 2020). These practices violate the
Department’s H–2A regulations and may
mislead workers regarding their rights
under the H–2A program, including
their ability to communicate with the
Department. Therefore, the Department
takes this opportunity to reiterate its
longstanding requirements relevant to
these ‘‘side agreements.’’
First, the Department’s H–2A
regulations include robust disclosure
requirements. Specifically, employers
must disclose in the job order all
material terms and conditions of
employment. See 20 CFR 655.103(b)
(defining ‘‘job order’’ as ‘‘[t]he
document containing the material terms
and conditions of employment’’);
655.121(a)(4) (requiring H–2A job orders
to meet the requirements specified for
agricultural clearance orders under 20
CFR part 653, subpart F);
653.501(c)(1)(iv) and (3)(viii) (requiring
agricultural clearance orders to include
material terms and conditions of
employment). Each job qualification and
requirement listed in the job order must
be bona fide, as well as normal and
accepted among non-H–2A employers
in the same or similar occupations. 20
CFR 655.122(b) (job qualifications and
requirements). Finally, the employer
must provide H–2A workers with a copy
of the written work contract (at
minimum, the terms of the job order)
before the worker travels to the place of
employment. 20 CFR 655.122(q)
(disclosure of work contract). Such
written disclosure must be made to
workers in corresponding employment
no later than the first day work
commences. Id.
These requirements ensure that
employers seeking to employ H–2A
workers are adequately testing the local
labor market to determine the
availability of U.S. workers for the
actual job opportunity and are not
imposing inappropriate requirements
that discourage otherwise qualified U.S.
workers from applying. See 75 FR at
6901. These requirements also ensure
that workers are apprised of the accurate
terms and conditions of employment
before accepting employment with the
employer and, in the case of many
workers, traveling great distances and at
significant personal expense to do so.
Adm’r v. Frank’s Nursery LLC, ARB
Nos. 2020–0015 and 2020–0016, 2021
WL 4155563, at *3–4 (ARB Aug. 25,
2021) (describing the importance of
disclosure to workers of all material
terms and conditions of employment
before the worker accepts the job offer),
aff’d, No. 21–cv–3485, 2022 WL
2757373 (S.D. Tex. July 14, 2022).
Thus, pursuant to these requirements,
an employer may not seek to add new
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material terms and conditions of
employment after the worker arrives at
the place of employment, even if such
terms and conditions would otherwise
be permissible if they had been
disclosed in the job order. For example,
even if a mandatory arbitration
agreement would be a permissible term
and condition of employment for a
particular H–2A job opportunity if
disclosed in the job order, it is a
violation of the H–2A regulations for the
employer to impose such a material
term and condition of employment on
the workers if it was not disclosed in the
job order. See Frank’s Nursery, 2022 WL
2757373, at *3–4 (affirming WHD
Administrator’s determination of
violation and assessment of a civil
money penalty for employer’s failure to
disclose in the job order a drug testing
policy); see also Magana-Mun˜oz v. West
Coast Berry Farms, LLC, No. 5:20–cv–
02087, 2020 WL 3869188, at *5 (N.D.
Cal. July 9, 2020) (discussing the
Department’s regulatory requirements
for H–2A job orders and concluding that
an arbitration agreement is a material
term or condition of employment that
must be disclosed in the job order); cf.
ETA v. DeEugenio & Sons #2, OALJ No.
2011–TLC–00410, slip op. at 3–4 (OALJ
June 13, 2011) (affirming CO’s denial of
labor certification because employer
failed to demonstrate that arbitration
and grievance clauses listed in job order
were normal and accepted requirements
among non-H–2A employers in the
occupation); ETA v. Bourne, et al., OALJ
No. 2011–TLC–00399, slip op. at 9–11
(OALJ June 6, 2011) (same); ETA v.
Head Bros., OALJ No. 2011–TLC–00394
(OALJ May 18, 2011) (same); but see
ETA v. Frey Produce et al., OALJ No.
2011–TLC–403, slip op. at 6 (OALJ June
3, 2011) (concluding arbitration is a not
a job ‘‘qualification or requirement’’).
Second, and in addition to the
disclosure requirements, the
Department’s H–2A regulations prohibit
any person from seeking to have a
worker waive any right afforded under
the H–2A program. 29 CFR 501.5. Thus,
an employer may not—at any time—
request that a worker waive or reduce
any of the terms and conditions of
employment disclosed in the job order
or other rights under the H–2A program,
such as the provision of meals as
disclosed in the job order, the right to
the three-fourths guarantee, the
prohibition on the payment of fees, or
the payment of the H–2A wage rate for
hours spent engaged in corresponding
employment. For example, through its
enforcement experience, the Department
has learned of H–2A employers
presenting their entire workforces with
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side ‘‘opt-out’’ agreements under which
the workers purport to waive their right
to employer-provided meals on certain
days, despite the employer’s disclosure
in the job order that meals will be
provided every day. The regulations
prohibit such practices. In addition, an
employer may never seek to prevent a
worker from engaging in activity
protected under the H–2A regulations,
such as filing a complaint with,
speaking with, or cooperating with the
Department. See 20 CFR 655.135(h); 29
CFR 501.4(a).
The Department is concerned that
‘‘side agreements’’ carry significant
potential to mislead workers regarding
their rights under the H–2A program,
including the right to file complaints
with and communicate with the
Department. For example, an H–2A
worker who is terminated without cause
but is required to sign a form
purportedly ‘‘resigning’’ the job may
believe—incorrectly—that they may no
longer file a complaint with the
Department to enforce their right to the
three-fourths guarantee or their right to
the cost of return transportation and
subsistence. Another worker may
misunderstand a ‘‘side’’ arbitration
agreement as preventing the worker
from filing a complaint with the
Department before first submitting the
issue to the employer’s arbitration
procedures, even though an employee
who agrees to arbitrate a statutory claim
is not waiving any substantive rights
under the statute. Gilmer v. Interstate/
Johnson Lane Corp., 500 U.S. 20, 25
(1991). Moreover, an H–2A worker’s
agreement with their employer to
arbitrate employment disputes does not
limit the Department’s ability to enforce
the H–2A program’s requirements.
EEOC v. Waffle House, Inc., 122 S. Ct.
754 (2002); Walsh v. Arizona Logistics,
Inc., 998 F.3d 393, 396–97 (9th Cir.
2021) (same). Accordingly, where an H–
2A employer’s job order does include an
arbitration clause that is otherwise
permissible, the SWA and OFLC review
the disclosure for actual or implied
restrictions on workers’ access to
complaint systems and may require
employers to include language in the job
order affirmatively stating that the
worker may not be prevented from filing
complaints with the Department. For
efficiency and clarity, and consistent
with the other proposals in this NPRM
that would serve to protect worker voice
and better inform workers of their rights
under the H–2A program, the
Department is proposing to add
standard language to the job order
affirmatively stating that a worker may
not be prevented from communicating
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with the Department of Labor or any
other Federal, State or local
governmental agencies regarding the
worker’s rights. The Department
welcomes comments suggesting other
means it can use to better inform
workers of their rights and to better
inform employers and workers alike of
the longstanding limitations on ‘‘side
agreements.’’
viii. Section 655.135(h)(2) Activities
Related to Self-Organization and
Concerted Activity
The Department proposes a new
protected activity for any person
engaged in FLSA agriculture at
proposed § 655.135(h)(2), relating to
self-organization and concerted activity,
for those workers who are exempt from
similar protections under the NLRA. As
discussed above, the Department
believes that these proposed protections
are necessary to prevent an adverse
effect on the working conditions of
workers in the United States similarly
employed. 8 U.S.C. 1188(a)(1).
Specifically, the Department proposes at
§ 655.135(h)(2) to protect engaging in
activities related to self-organization,
including any effort to form, join, or
assist a labor organization, as defined in
proposed § 655.103(b); a secondary
activity such as a secondary boycott or
picket; or other concerted activities for
the purpose of mutual aid or protection
relating to wages or working conditions.
The Department also proposes to protect
a person’s refusal to engage in any such
activities.
By proposing to add protections for
such activities, the Department intends
to prohibit an employer from
intimidating, threatening, restraining,
coercing, blacklisting, or in any manner
discriminating against, any person
engaged in FLSA agriculture for
engaging, or refusing to engage, in
activities related to self-organization,
including, among other things,
concerted activity for mutual aid or
protection. The Department’s proposed
use of the terms ‘‘concerted activity’’
and ‘‘mutual aid or protection’’ draws
upon the general body of case law from
the Federal courts and the NLRB
broadly construing similar language in
the NLRA. However, the Department
notes that these terms must ultimately
be interpreted consistently with the
statutory purpose of the INA and the H–
2A program, including the need to
prevent adverse effect on workers in the
United States, and in light of the H–2A
program’s unique characteristics.
The Department proposes that
concerted activity include employee
activity ‘‘engaged in with or on the
authority of other employees, and not
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63793
solely by and behalf of the employee
himself.’’ Meyers Indus. (Meyers I), 268
NLRB 493, 497 (1984), remanded sub
nom., Prill v. NLRB, 755 F.2d 941 (D.C.
Cir. 1985); see also NLRB v. City
Disposal Sys. Inc., 465 U.S. 822, 830
(1984). For example, concerted activity
includes two or more employees
presenting joint requests or grievances
to their employers; 71 a series of
‘‘spontaneous individual pleas’’ from
employees about shared concerns; 72
two or more workers circulating or
signing a petition; 73 two or more
workers striking or walking off the
job; 74 participating in a concerted
refusal to work in unsafe or intolerably
bad conditions; 75 two or more workers
talking directly to their employer, to a
government agency, or to the media
about problems in their workplace; 76 or
cooperating as a group with law
enforcement investigations (including
investigations by DOL).77 The term
concerted activity also includes worker
organizing ‘‘outside the immediate
employee-employer relationship’’ and
‘‘common cause’’ activity, including
concerted activity ‘‘in support of
employees of employers other than their
own.’’ See Eastex, Inc. v. NLRB, 437
U.S. 556, 564–65 (1978). These
examples are intended to be illustrative
and not exhaustive. The proposed
regulation’s protections for concerted
activity would apply to both workers
that have joined a labor organization
and those that have not. See Indiana
Gear Works v. NLRB, 371 F.2d 273, 274
(7th Cir. 1967).
The Department proposes that the
term concerted activity also encompass
workers’ individual actions when they
seek to initiate, induce, or prepare for
group action, or when workers bring
shared complaints to the attention of
management. See Meyers Indus. (Meyers
II), 281 NLRB 882, 887 (1987) (citing
Mushroom Transp. Co. v. NLRB, 330
F.2d 683 (3d Cir. 1964)). For example,
if an individual attempts to ‘‘enlist [ ]
the support of his fellow employees’’ in
shared activity, the worker’s attempt is
protected regardless of whether other
71 See, e.g., NLRB v. Sequoyah Mills, Inc., 409
F.2d 606, 608 (10th Cir. 1969).
72 See, e.g., NLRB v. Washington Aluminum Co.,
370 U.S. 9, 15 (1962).
73 See, e.g., Richardson Paint Co. v. NLRB, 574
F.2d 1195, 1206 (5th Cir. 1978).
74 See, e.g., Case Farms of North Carolina, Inc.,
353 NLRB 26 (2008), enforced, 2010 WL 1255941
(D.C. Cir. Mar. 3, 2010).
75 See, e.g., Washington Aluminum, 370 U.S. at
17; Brown & Root, Inc. v. NLRB, 634 F.2d 816, 817–
18 (5th Cir. 1981).
76 See, e.g., Case Farms, 353 NLRB 26.
77 See, e.g., A.N. Elec. Corp., 276 NLRB 887, 889
(1985); Squier Dist. Co. v. Int’l Bhd. of Teamsters,
Local 7, 801 F.2d 238, 242 (6th Cir. 1986).
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employees ultimately participate in
ongoing efforts. Whittaker Corp., 289
NLRB 933, 933 (1988); Salt River Valley
Water Users Ass’n, 99 NLRB 849, 853
(1952) (‘‘[G]roup action is not deemed a
prerequisite to concerted activity for the
reason that a single person’s action may
be the preliminary step to acting in
concert.’’). An individual’s goal of
initiating, inducing, or preparing for
group activity can be inferred from the
totality of the circumstances. See
Whittaker Corp., 289 NLRB at 934. For
example, the fact that a person refers to
the possibility of taking group action in
a conversation with their co-workers, or
the fact that a conversation among coworkers is about wages and working
conditions, can support a finding that
the conversation was aimed at inducing
group action. See id.; Jeanette Corp v.
NLRB, 532 F.2d 916, 918¥20 (3d Cir.
1976) (holding that an employer rule
prohibiting workers from discussing
wages among themselves suppressed
concerted activity). An individual’s
actions to enforce the terms of a CBA
qualifies as concerted activity even if
pursued singly, because those actions
are a continuation of the concerted
activity of negotiating. See City Disposal
Systems, 465 U.S. at 830–31. Likewise,
an employee is engaged in collective
activity when an individual worker’s
actions are a ‘‘logical outgrowth’’ of an
earlier protest by workers. See, e.g.,
NLRB v. Mike Yurosek & Son, Inc., 53
F.3d 261, 265 (9th Cir. 1995) (workers’
refusal to work additional hour was a
logical outgrowth of earlier, collective
protestations regarding the employer’s
reduction in scheduled hours); Every
Woman’s Place, 282 NLRB 413, 415
(1986) (single employee’s call to WHD
regarding overtime pay was a logical
outgrowth of prior, collective
complaints to supervisor regarding
overtime without receiving any
response).
The Department intends to define
activity for ‘‘mutual aid or protection’’
to encompass activities for which ‘‘there
is a link between the activity and
matters concerning the workplace or
employees’ interests as employees.’’
Fresh & Easy Neighborhood Market, 361
NLRB 151, 153 (2014). For example,
agricultural employees’ activity would
be deemed to be for mutual aid or
protection for the purposes of proposed
§ 655.135(h)(2) when it concerns wages,
hours, benefits, working conditions,
worker safety, workplace equity,
housing conditions, worker voice, or
other issues pertaining to their
workplace or their interests as
employees. Employee activity aimed at
‘‘channels outside the immediate
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employee-employer relationship,’’ or
‘‘in support of employees of employers
other than their own’’ may also be for
‘‘mutual aid or protection.’’ Eastex, 437
U.S. at 565. For example, political and
social advocacy may be for mutual aid
or protection when it has a nexus to
employees’ ‘‘interests as employees.’’ Id.
at 566; see also Kaiser Eng’rs, 213 NLRB
108 (1974).
Although the terms ‘‘concerted
activity’’ for ‘‘mutual aid or protection’’
would encompass secondary activity,
such as secondary boycotts and pickets,
the Department proposes to expressly
list this among the protected activities
related to self-organization in light of
the differences between workers
covered by the NLRA and those that
would be covered by this proposed
provision. The Department notes that,
while the NLRA, as amended by the
Taft-Hartley Act, prohibits many labor
organizations from engaging in
secondary boycotts or pickets, see 29
U.S.C. 158(b)(4), this prohibition would
not apply to the agricultural employees
to whom the Department’s proposed
rule would apply, see 29 U.S.C. 152(3).
Therefore, this proposed rule is
consistent with the longstanding
consensus under the NLRA that it is not
unlawful for agricultural workers, or
labor organizations composed
exclusively of agricultural employees, to
participate in secondary activity. See Di
Giorgio Fruit, 191 F.2d at 647. However,
the Department believes that it would
benefit employees, employers, and the
Department to reiterate this
longstanding legal principle by making
this principle clear in this proposed rule
at § 655.135(h) and, therefore, on the job
order. This clarity would help ensure
that workers could refer to the job order
to understand what activity is protected
under the regulation. Likewise, this
additional clarity would help employers
comply with their obligations under the
proposed rule. The Department believes
that clearly explaining these obligations
for both H–2A employers and workers
would prevent unnecessary confusion
and resulting disputes.
Additionally, the Department
recognizes that this proposal to include
activities related to self-organization as
a protected activity may prompt
questions about when and where an
employer must permit the conduct of
such activities. Under the proposed
regulations, an employer could not
prohibit activities related to selforganization or other concerted
activities for the purpose of mutual aid
or protection that occur during
nonproductive time. Nonproductive
time means any time the worker is not
actively performing work, even if the
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worker remains on the clock or the time
is otherwise compensable. For example,
nonproductive time generally includes
lunch breaks, rest breaks, and time
spent riding as a passenger in a vehicle
when being transported between
worksites. Nonproductive time also
includes any noncompensable time,
such as time after the end of the
worker’s workday. Similarly, under the
proposed regulations, an employer
would be required to permit selforganization or other concerted
activities for the purpose of mutual aid
or protection in nonwork or mixed-use
areas, even if such areas are on the
employer’s premises. For example, the
employer would not be allowed to
prohibit employees from meeting with
one another after the end of the workers’
workday to discuss wages or working
conditions in the parking lot of the
employer’s establishment, insofar as
employees would otherwise have access
to the parking lot after the end of the
workers’ workday. Similarly, consistent
with the proposed access provision at
§ 655.135(n), the employer would not be
allowed to prohibit employees from
meeting with one another, or with one
or more representatives from a labor
organization or with employee guests
for such discussions in or around
employer-furnished housing that occur
outside of the workers’ workday.
Furthermore, although an employer
could establish reasonable work rules
that limit discussions, meetings, and
gatherings not related to the job while
the worker is actively performing the
work, the employer could not apply or
enforce work rules selectively to
discourage worker self-organization. For
example, the employer may place
reasonable restrictions on employees’
use of personal devices while in the
field. However, if the employer
selectively applied such restrictions to
certain individuals who the employer
suspected were engaged in organizing,
or only to those text messages or phone
conversations that the employer
perceived to be related to worker selforganization or other concerted
activities while permitting them in other
instances, such a practice would violate
the proposed requirement at 20 CFR
655.135(h)(2). Similarly, while an
employer could reasonably establish a
work rule limiting personal
conversations during productive
working hours where such
conversations would affect productivity,
if the employer selectively enforced this
work rule against employees for
conversing about self-organization or
other concerted activities, such a
practice would be impermissible.
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Nothing in this proposal would
require or prohibit the adoption of any
specific term of a collective bargaining
agreement ultimately negotiated
between the employer and the workers;
rather, any such agreement would be
subject to any applicable Federal, State,
or local law. In addition, as noted above,
the Department does not intend to
preempt any applicable State laws or
regulations that may regulate labormanagement relations, organizing, or
collective bargaining by agricultural
workers. Moreover, the remedies
provided for under this proposed
regulation are not intended to be
exclusive; if an agricultural worker has
other remedies available under State or
local law, the remedies contemplated
under this proposal are not intended to
displace them.
The Department seeks comments on
the proposal to protect certain concerted
activity related to self-organization in
§ 655.135(h)(2) with respect to workers
who are engaged in FLSA agriculture.
Specifically, the Department seeks
comments on whether to expressly list
secondary boycotts and pickets among
the protected activities related to selforganization, the scope of the proposed
protections and the proposed
definitions of ‘‘concerted activity’’ and
‘‘mutual aid or protection,’’ the impact
that expressly protecting such activity
would have on the working conditions
of H–2A workers, workers in
corresponding employment, and
agricultural workers in the United States
more generally, and how this proposal
would interact with State labor laws.
The Department also welcomes
comments on how best to ensure that its
proposals do not conflict with existing
State laws and regulations that provide
for a system of collective bargaining for
farmworkers and explicitly prohibit
retaliation against farmworkers.
ix. Section 655.135(m) Worker Voice
and Empowerment
The Department proposes a new
employer obligation at § 655.135(m) that
would include a number of protections
that the Department has determined are
necessary to prevent an adverse effect
on the working conditions of workers in
the United States similarly employed, 8
U.S.C. 1188(a)(1), as discussed above, by
protecting the rights of workers under
the H–2A program to self-organization
and concerted activity as proposed in
§ 655.135(h)(2). The employer’s
obligations under this proposed
provision would apply only to workers
engaged in FLSA agriculture.
Specifically, the Department proposes to
add requirements that an employer
provide to a requesting labor
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organization the contact information of
H–2A workers and workers in
corresponding employment employed at
the place(s) of employment; permit
workers to designate a representative of
their choosing to attend any meeting
that may lead to discipline; refrain from
captive audience meetings unless the
employer provides certain information
to ensure that such meeting is not
coercive; and attest either that they will
bargain in good faith over the terms of
a proposed labor neutrality agreement
with a requesting labor organization, or
that they will not do so and provide an
explanation for why they have declined.
The Department believes that these
requirements would provide H–2A
workers and workers in corresponding
employment with important tools to
allow them to more successfully
organize and advocate for better
working conditions from their
employers and thereby prevent adverse
effect on the working conditions of
similarly employed workers in the
United States. Finally, to help inform
workers of their rights under proposed
§ 655.135(m), the Department is
proposing to include these proposed
protections in the disclosures required
on the job order.
A. Section 655.135(m)(1) Employee
Contact Information
The Department proposes in
§ 655.135(m)(1) to require employers to
provide worker contact information to a
requesting labor organization. As
explained further below, this proposal is
similar to but more expansive than the
‘‘voter list’’ requirements under the
NLRA, differing in various respects due
to the unique characteristics of the H–
2A workforce. Under this provision,
employers would be required to provide
to the labor organization a list of all H–
2A workers and workers in
corresponding employment engaged in
agriculture as defined under the FLSA
and employed at the place(s) of
employment included within the
employer’s H–2A Application. The
proposed list would be in alphabetical
order, and include each worker’s full
name, date of hire, job title, work
location address and ZIP code, and (if
available to the employer) personal
email, personal cellular number and/or
profile name for a messaging
application, home country address with
postal code, and home country
telephone number. The Department
proposes to require the employer to
update the list once per certification
period, if requested by the labor
organization. In addition, the proposed
list would be provided to the requesting
labor organization in a format agreed
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upon by the requesting labor
organization and the employer and
would be transmitted electronically.
The Department believes that this
proposed requirement would
significantly bolster the ability of
workers to effectively self-organize and
to engage in concerted activity protected
under proposed § 655.135(h)(2), by
ensuring that workers have access to
information regarding the arguments
both for and against organization, and
that workers have access to information
and resources necessary to engage in
concerted activity regarding working
conditions. Under the NLRA, the NLRB
has long recognized the importance to
organizing rights of workers’ access to
information regarding the arguments for
and against organization, and has held
that the rights to self-organization and to
engage in concerted activity
‘‘necessarily encompass employees’
rights to communicate with one another
and with third parties’’ about
organization and working conditions.
Quicken Loans, Inc. v. NLRB, 830 F.3d
542, 545 (D.C. Cir. 2016) (quotations
omitted) (citing Beth Israel Hospital v.
NLRB, 437 U.S. 483, 491 (1978) and
Eastex, 437 U.S. at 565); see also
Oakwood Hosp. v. NLRB, 983 F.2d 698,
701 (6th Cir. 1993); Hutzler Bros. Co. v.
NLRB, 630 F.2d 1012, 1015 (4th Cir.
1980). To ensure the effective exercise
of these rights, the NLRB has long
required employers to provide worker
contact information to unions in certain
circumstances because this requirement
improves the likelihood that workers
will understand the arguments both for
and against organization. See 29 CFR
102.62(d), 102.67(l); RadNet Mgmt., Inc.
v. NLRB, 992 F.3d 1114, 1122–23 (D.C.
Cir. 2021) (provision of contact
information to labor organizations is
fundamental to effective exercise of
organizing rights).
The Department’s proposal here
contains similar information
requirements as those listed in the
NLRB’s requirements at 29 CFR
102.62(d), but is more expansive given
the unique characteristics of the H–2A
program, including the temporary and
migrant nature of the workforce in
which the majority of workers are
exempt from the NLRA’s protections
and thus may be even less likely than
NLRA-covered workers to be aware of
the benefits of self-organization and
engaging in concerted activity. Workers
under the H–2A program also are often
employed and housed in remote
locations. In light of these
characteristics, to better protect against
adverse effect, the Department has
tailored this proposal to the needs of the
H–2A workforce. For example, the
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Department proposes to require the
employer to provide available contact
information for the worker in the
worker’s home country and for any
messaging application the worker uses
to communicate (e.g., ‘‘WhatsApp’’).
The Department also proposes to require
that the contact list be updated once per
season, if such an update is requested
by the labor organization. The
Department believes that, given the
potential for organizing activities to
occur at any time throughout the job
order period (as opposed to a more timelimited event such as an election, as is
the case in the context of the NLRB
voter list requirements), allowing the
union to request an updated list at the
time of its choosing would best ensure
that workers are able to receive
information regarding the arguments
both for and against organization, in the
event of workforce turnover over the
course of the work contract. However,
the Department proposes to limit this
ability to request an updated list to one
time per season, to avoid unduly
burdening the employer with complying
with this request. The Department
believes that this proposed requirement
would significantly bolster the ability of
workers to effectively self-organize and
to engage in concerted activity by
ensuring that workers have equal access
to information regarding the arguments
both for and against organization, and
that workers have access to information
and resources necessary to engage in
concerted activity regarding working
conditions.
The Department also recognizes that
the ability to self-organize and to engage
in concerted activity must be balanced
against the workers’ rights to the privacy
of their personal information. In the
context of the NLRA, the NLRB has
reasoned that any privacy concerns
raised by an employer providing
employee contact information to unions
are outweighed by the benefits and
necessity of protecting the rights to selforganization and to engage in concerted
activity. RadNet Mgmt., 992 F.3d at
1122–23. Under the H–2A program, the
importance of these benefits is arguably
even greater and arises earlier in the
organizing process for the reasons
discussed above. Therefore, the
Department believes it is imperative that
labor organizations have access to the
information they need to communicate
with these workers effectively, and that
this goal would outweigh any privacy
concerns. However, the Department
welcomes comment on whether it
should include a worker ‘‘opt-out’’
provision, under which a worker could
decline to have their contact
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information included in the list the
employer would provide to the union,
or if other protections for worker
privacy may be warranted. The
Department also welcomes comment on
whether organizations other than labor
organizations (defined as proposed in
§ 655.103(b)) also should be able to
request this information, particularly in
light of the unique circumstances of the
H–2A program, such as ‘‘key service
providers’’ as defined in proposed
§ 655.103(b). The Department also
requests comments regarding the best
methods to ensure workers are
adequately notified of these employer
obligations.
Finally, the Department notes that
nothing in this proposed provision
would limit a worker’s ability to gather
coworkers’ contact information to share
both amongst themselves and with
unions, which is central to effective
rights to self-organize and engage in
concerted activity. Cf. Quicken Loans,
830 F.3d at 548. Moreover, a worker’s
ability to gather and share coworker
information with unions would be
protected under proposed
§ 655.135(h)(2). For example, a worker
who gathers coworkers’ contact
information and shares that information
with a union so that the union can
contact the workers regarding the
benefits of unionization is engaging in
protected, concerted activity and selforganization. Under proposed
§ 655.135(h)(2), an employer may not
retaliate against the worker for gathering
or sharing this information.
B. Section 655.135(m)(2) Right To
Designate a Representative
The Department proposes in
§ 655.135(m)(2) to require employers to
permit workers to designate a
representative of their choosing to
attend any meeting between the
employer and a worker where the
worker reasonably believes that the
meeting may lead to discipline. Under
the proposed provision, the employer
also would have an obligation to permit
the worker to receive advice and active
assistance from the designated
representative during any such meeting.
The Department believes that
proposed § 655.135(m)(2) would
significantly bolster the ability of H–2A
and corresponding workers to engage in
concerted activity as protected in
proposed § 655.135(h)(2). In the context
of the NLRA, it is well established that
in a workplace covered by a CBA, an
employer interferes with an employee’s
right to engage in concerted activities
for mutual aid or protection under
section 7 of the NLRA when the
employer denies an employee’s request
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that a union representative accompany
the employee at an investigatory
interview that the employee reasonably
believes might result in disciplinary
action. See NLRB v. J. Weingarten, Inc.,
420 U.S. 251, 254, 267 (1975). As courts
and the NLRB have explained, such a
request by an employee constitutes
concerted activity because the presence
of a representative safeguards the
interests of employees generally, not
solely the particular employee’s interest.
See id. at 260–61.
In any workplace, union or nonunion,
the presence of a representative at a
meeting that may lead to discipline, and
the ability of such representative to
provide assistance and advice, gives the
employee a witness, an advisor, and an
advocate in a potentially adversarial
situation, thus preventing the
imposition of unjust discipline by the
employer. Proposed § 655.135(m)(2)
thus also helps ensure that workers have
access to representation to assist in
safeguarding workers against unjust
termination under the Department’s
proposed definition of for cause
termination. More generally, the ability
to request a representative’s presence at
such a meeting enhances employees’
ability to act in concert with their
coworkers to protect their mutual
interest in ensuring that their employer
does not impose punishment unjustly.
Courts have cited similar considerations
in deeming reasonable the view that
section 7 of the NLRA permits nonunion
workers to designate a coworker to
provide assistance during investigatory
interviews that may lead to disciplinary
action. See Epilepsy Found. of Ne. Ohio
v. NLRB, 268 F.3d 1095, 1100 (D.C. Cir.
2001). The Department acknowledges
that the NLRB has frequently shifted its
position on whether section 7 applies in
nonunion workplaces, but the
Department’s proposed regulations for
the H–2A program apply independently
of the NLRA, and would cover workers
that are outside the NLRB’s purview.
Thus, any shifts in the NLRB’s position
would not alter proposed
§ 655.135(m)(2).78 Moreover, the need
for a representative is particularly acute
for workers in the H–2A program, given
their unique vulnerabilities and
78 Compare, e.g., Epilepsy Found. of Ne. Ohio,
331 NLRB No. 92 (2000) (interpreting section 7 to
extend the Weingarten rule to nonunion
workplaces); Materials Research Corp., 262 NLRB
1010 (1982) (same), with, e.g., I.B.M. Corp., 341
NLRB 1288 (2004) (limiting Weingarten rights to
employees covered by CBAs); Sears, Roebuck & Co.,
274 NLRB 230 (1985) (same). The Department
recognizes that the workforce in the H–2A program
is largely not unionized, and so the proposed
regulation is not limited to workers that are
members of a labor organization.
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dependence on the employer for meals,
housing, and transportation.
Proposed § 655.135(m)(2) would not
limit whom a worker may designate as
a representative. For example, a worker
may designate a coworker, an outside
advocate, a representative from a labor
organization (regardless of whether the
worker is a member), or any other
individual. The Department believes it
is appropriate to permit workers to
designate a broader scope of
representatives than the representatives
contemplated under section 7 of the
NLRA. The benefits of a representative
apply even where the representative is
not employed by the employer, such as
a legal aid advocate or member of the
clergy, because a single worker’s efforts
to seek such assistance and advice
broadly advances other workers’ shared
interest in preventing the imposition of
unjust punishment. Moreover, in H–2A
workplaces, it is impractical to limit
such representatives to union
representatives or coworkers. Due to
low union density in agricultural
workplaces, workers in H–2A
workplaces will seldom have the ability
to designate union representatives, and
workers may face difficulties identifying
trusted coworkers to serve as
representatives because the temporary
nature of the work may limit
opportunities to develop relationships
with coworkers and because the high
incidence of retaliation in H–2A
workplaces may discourage coworkers
from involvement.
The Department proposes that the
employer’s obligation under
§ 655.135(m)(2) would apply in the
context of ‘‘meetings between the
employer and a worker where the
worker reasonably believes that the
meeting may lead to discipline.’’ Under
this proposal, the scope of situations in
which this obligation would apply is
broader than the ‘‘investigatory
interviews’’ in which a worker’s right to
a representative arises under section 7
of the NLRA. See Weingarten, 420 U.S.
at 253, 257–58 (recognizing right to
representative in ‘‘investigatory
interview which the employee
reasonably believed might result in
disciplinary action’’). The Department
believes that, given the realities of
employer-worker interactions in H–2A
workplaces, it is appropriate to apply
the employer’s obligation under
proposed § 655.135(m)(2) beyond such
‘‘investigatory interviews.’’ Disciplinary
action in H–2A workplaces may often
occur in informal contexts or in
worksite settings such as fields, and
limiting employers’ obligation to
‘‘investigatory interviews may constrain
workers’ ability to designate
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representatives in such contexts or
settings. However, the Department
welcomes comments regarding the
scope of situations in which employers’
obligation under proposed
§ 655.135(m)(2) should apply,
including, for example, comments
addressing whether this obligation
should apply in all situations, not just
meetings, that a worker may reasonably
believe could involve or lead to
discipline, including in situations
where, for example, employers correct
work techniques, give instructions, or
provide training, or whether the
obligation should apply in situations
more analogous to the ‘‘investigatory
interviews’’ addressed in Weingarten.
The Department also seeks comment as
to whether it should draw on sources
other than Weingarten—including State,
local, or other Federal law—in
determining when this obligation
should be applicable, and whether it
should take into account any other
considerations particular to workers in
nonunion settings, or to agricultural
workers and their interactions with their
employers.
The Department also welcomes
comments on how to ensure that
workers are adequately informed of the
employer’s obligation to permit workers
to request a representative and of the
circumstances under which this
obligation would arise. In a workplace
covered by a CBA and the NLRA,
workers may rely on their unions for
information regarding when Weingarten
rights apply, but the Department
acknowledges that most agricultural
workers are not unionized. The
Department welcomes comments
regarding the best methods to ensure
adequate notification, including
comments that address whether
employers should be required to inform
workers of their obligation to permit
workers to request a representative and
whether employers should be required
to notify workers explicitly that a
meeting may lead to discipline. For
example, possible methods of notifying
workers may include requiring that all
job orders and job assurances shared
with workers include information about
the employer’s obligation to permit
workers to request a representative;
requiring that employers provide other
means of written notification in a
language that workers understand; and/
or requiring that employers provide oral
notification in a language that workers
understand and that employers
maintain records of such oral
notifications.
In addition to comments on the
specific questions the Department has
posed to commenters, the Department
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welcomes comments on the general
question of how proposed
§ 655.135(m)(2) can best be
implemented in the context of
agricultural employment and the way
agricultural workers and employers
interact, including in the contexts of
herding and range livestock production
occupations subject to §§ 655.200
through 655.235 and itinerant animal
shearing, commercial beekeeping, and
custom combining occupations subject
to §§ 655.300 through 655.304.
C. Section 655.135(m)(3) Prohibition on
Coercive Speech
The Department proposes a new
provision at § 655.135(m)(3) to prohibit
employers from engaging in coercive
speech to try to prevent workers from
advocating for better working conditions
on behalf of themselves and their
coworkers. Specifically, the Department
proposes to add new protections at
§ 655.135(m)(3) prohibiting coercive
speech, sometimes referred to as
‘‘captive audience meetings’’ or
‘‘cornering.’’ As under section 7 of the
NLRA, a worker’s right to engage, or not
engage, in self-organization and
concerted activity under proposed
§ 655.135(h)(2) would include the
worker’s right to listen and the worker’s
right to refrain from listening to
employer speech concerning the
worker’s exercise of those rights. The
proposed regulation at § 655.135(m)(3)
would thus prohibit H–2A employers
from coercing and/or requiring workers
to listen to or attend an employer’s
speech or meeting concerning the
exercise of their rights to engage in
activities related to self-organization,
including any effort to form, join, or
assist a labor organization or engage in
other concerted activities for the
purpose of mutual aid or protection
relating to wages or working conditions.
Such ‘‘captive audience meetings,’’
which would typically occur in the
workplace during working hours, while
the workers are on the clock (though
they might also occur during travel to
the worksite or in situations where
workers are not on the clock), inherently
involve an unlawful threat that
employees will be disciplined or suffer
other reprisals if they exercise their
protected right not to listen to such
speech. The Department believes that
such meetings are inherently coercive
and should not be permitted.
In the NLRB context, the Supreme
Court has instructed that employer
actions should be evaluated from the
perspective of employees who are in a
position of ‘‘economic dependence’’ and
would necessarily pick up threatening
implications ‘‘that might be more
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readily dismissed by a more
disinterested ear.’’ NLRB v. Gissel
Packing Co., 395 U.S. 575, 617 (1969);
see also Hill v. Colorado, 530 U.S. 703,
717 (2000) (noting that within the
employment relationship, persistent
communication after refusal can become
intimidation, and that persons have ‘‘a
right to be free’’ from unwanted
communication) (quoting Rowan v. U.S.
Post Office Dep’t, 397 U.S. 728, 736
(1970)). Here, H–2A workers and their
employers do not have equal bargaining
power, due in large part to H–2A
workers’ significant economic
dependence on their employers. The
Department is concerned that H–2A
workers should not be forced to listen
to such employer speech under threat or
potential threat of discipline—directly
leveraging the workers’ dependence on
their jobs.
The fact that such threats may arise in
the context of employer speech would
not immunize their unlawful coercive
effect. Under the NLRA, the Supreme
Court has made clear that threats fall
outside the scope of employers’ NLRArelated speech rights and constitutional
free-speech protections. Gissel Packing,
395 U.S. at 617–20. Nevertheless,
employers frequently use explicit or
implicit threats to force employees into
meetings concerning unionization or
other NLRA-statutorily protected
activity. See 2 Sisters Food Grp., 357
NLRB 1816, 1825 n.1 (2011) (Member
Becker, dissenting in part) (citing study
finding ‘‘that in 89 percent of
[representation election] campaigns
surveyed, employers required
employees to attend captive audience
meetings during work time and that the
majority of employees attended at least
five such meeting[s] during the course
of the campaign’’). These same
employers often carry out those threats
by seeking to discharge or discipline
employees who assert their right to
refrain from listening by refusing to
attend such mandatory meetings. The
Department believes that employers
should not be permitted to coerce H–2A
workers in this way under this proposed
rule, but instead should be required to
honor H–2A workers’ free choice and
their rights to listen or to refrain from
listening to such coercive speech.
The Department recognizes that
employers generally have a right under
the First Amendment to communicate
their views to their employees. See
Gissel Packing, 395 U.S. at 617.
However, protecting workers’ right to
refrain from listening, as proposed
§ 655.135(h)(2) does, would not impair
employers’ constitutional freedom of
expression. As the Supreme Court has
recognized, ‘‘employers’ attempts to
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persuade to action with respect to
joining or not joining unions are within
the First Amendment’s guaranty.’’
Thomas v. Collins, 323 U.S. 516, 537
(1945). But ‘‘[w]hen to this persuasion
other things are added which bring
about coercion, or give it that character,
the limit of the right has been passed.’’
Id. at 537–38.
The Department therefore proposes to
prohibit employers from engaging in
coercive speech intended to oppose
workers’ protected activity unless the
employer: (a) explains the purpose of
the meeting or communication; (b)
informs employees that attendance or
participation is voluntary, and that they
are free to leave at any time; (c) assures
employees that nonattendance or
nonparticipation will not result in
reprisals (including any loss of pay if
the meeting or discussion occurs during
their regularly scheduled working
hours); and (d) assures employees that
attendance or participation will not
result in rewards or benefits (including
additional pay for attending meetings or
discussions concerning their rights to
engage in protected activity outside
their regularly scheduled working
hours).
These safeguards were developed
many years ago by the NLRB to avoid
‘‘the inherent danger of coercion’’ when
an employer seeks to interfere with
protected labor rights. See Johnnie’s
Poultry Co., 146 NLRB 770, 774 (1964),
enforcement denied, 344 F.2d 617 (8th
Cir. 1965). There, the NLRB recognized
that inherent in the employment
relationship is the understanding that
employees cannot, without
consequences, either refuse to comply
with their employer’s stated
requirement (e.g., that they attend a
meeting) or abandon their assigned
work duties (e.g., by walking away from
employer speech directed at them as
they work). Therefore, the NLRB has
crafted safeguards to ensure that
workers’ participation is voluntary at all
times. See, e.g., Johnnie’s Poultry Co.,
146 NLRB 770, 774 (1964) (providing
safeguards required when employer
questions employees about protected
activity in order to prepare defense
against unfair-labor-practice charges);
Struksnes Constr. Co., 165 NLRB 1062,
1062–63 (1967) (same for when
employer conducts poll to ascertain
whether union enjoys majority
employee support); Allegheny Ludlum
Corp., 333 NLRB 734, 734 (2001) (same
for when employer may lawfully
include visual images of workers in
anti-union campaign presentations),
enforced, 301 F.3d 167 (3d Cir. 2002);
Sunbelt Rentals, Inc., 374 NLRB No. 24
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(2022) (reaffirming Johnnie’s Poultry
rule).
The Department believes that such
safeguards would appropriately protect
employers’ constitutional free speech
right to express views, argument, or
opinion concerning protected
organizing activity without unduly
infringing on the rights of workers to
refrain from listening to such
expressions as proposed in this rule.
Therefore, to ensure that workers are not
held captive to coercive employer
speech about their protected activity,
the Department proposes to adopt these
sensible disclosures that an employer
must convey to workers in order to
make clear that their attendance at any
meeting or discussion in work areas
during working hours concerning their
rights to engage in protected activity is
truly voluntary. Note that no disclosures
would need to be given when employers
require workers to attend meetings on
subjects other than their exercise of
protected rights (e.g., work assignments
for the day, tools, job training or safety
instructions). But these safeguards
would be required if, for example, the
employer uses a regular daily meeting or
a portion of that meeting to seek to
dissuade employees from acting
together to improve working conditions
or safety or engaging in other protected
concerted activity. The Department’s
approach is intended to protect both the
workers’ rights to engage in (or to refrain
from engaging in) concerted activity
under this proposed rule, and
employers’ speech concerning any such
activity, without unduly infringing on
either party’s expression. It also seeks to
make clear that an employer cannot
retaliate against a worker (or provide
rewards or benefits) for attending or
refusing to attend a ‘‘captive audience’’
meeting or discussion concerning their
rights to engage in protected activity,
even if the meeting occurs during their
regularly scheduled working hours.
The Department welcomes comments
on this proposal, including, specifically,
whether there are other ways to protect
workers’ rights to refrain from listening
to employers’ coercive speech, whether
other safeguards or employer
disclosures are appropriate, or how to
most appropriately tailor the prohibition
to avoid infringing on employer’s free
speech rights while protecting workers’
right to engage in protected activity.
D. Section 655.135(m)(4) Commitment
To Bargain in Good Faith Over Proposed
Labor Neutrality Agreement
The Department proposes in
§ 655.135(m)(4) to require employers to
attest either that they will bargain in
good faith over the terms of a proposed
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labor neutrality agreement with a
requesting labor organization, or that
they will not do so and provide an
explanation for why they have declined.
This attestation will provide workers,
worker advocates, and the public with
valuable information about prospective
employers in the H–2A program.
As noted in the proposed regulatory
text, a labor neutrality agreement is an
agreement between a labor organization
and an employer in which the employer
agrees not to take a position for or
against a labor organizing effort. Such
agreements are effective mechanisms to
improve workers’ organizing success, as
they address the major impediments to
successful organizing efforts:
‘‘intimidation and delay.’’ 79
As described above, coercive
employer speech about collective
bargaining or labor organizations can
prevent workers from advocating for
better working conditions on behalf of
themselves and their coworkers. A labor
neutrality agreement would protect
workers from both coercive and noncoercive anti-organizing speech and
provide workers with a free and fair
choice about whether to organize. The
Department believes that labor
neutrality agreements negotiated
between H–2A employers and labor
organizations could help to correct the
imbalance in bargaining power in the
H–2A program that the Department has
identified as having an adverse effect on
agricultural workers in the United
States.
However, as also explained above,
employers generally have the right
under the First Amendment to
communicate their views on
unionization to their employees. See
Gissel Packing, 395 U.S. at 617
(distinguishing lawful communications
from threats or coercion). Thus, an
employer’s choice whether to bargain
over any labor neutrality agreement at
the request of a labor organization, and
whether to ultimately enter into such an
agreement, is entirely voluntary. The
Department does not intend to oversee
or monitor any bargaining that
ultimately takes place, although an
employer that chooses to agree to
bargain in good faith yet fails to do so
would violate this proposed regulation.
In general, if the employer chooses to
bargain in good faith, doing so means
that, upon request by a labor
organization, the employer will meet at
reasonable times and confer, in good
faith, with respect to negotiating the
79 See Non-Legislative Labor Law Reform and PreRecognition Labor Neutrality Agreements: The
Newest Civil Rights Movement, Hartley, 22
Berkeley J. Emp. & Lab. L. 369, 378–85 (2001).
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terms of a proposed labor neutrality
agreement. Good-faith bargaining must
be at arm’s length and must involve
engaging in genuine efforts to reach an
accord. See, e.g., NLRB v. Ins. Agents’
Int’l Union, 361 U.S. 477, 485 (1960);
NLRB v. Overnite Transp. Co., 938 F.2d
815, 821 (7th Cir. 1991). It means that
the employer must approach bargaining
with a good faith intention to reach an
agreement, not just engage in ‘‘surface
bargaining’’ or ‘‘going through the
motions.’’ Overnite Transp. Co., 938
F.2d at 821–22. If requested by either
party, the execution of a written
contract incorporating any agreement
reached is part of good faith bargaining.
However, neither party is compelled to
agree to a proposal or make concessions,
and the Department will not, either
directly or indirectly, ‘‘compel
concessions or otherwise sit in
judgment upon the substantive terms of
collective bargaining agreements.’’ Id. at
821 (quoting NLRB v. Am. Nat’l Ins. Co.,
343 U.S. 395, 404 (1952)) (construing 29
U.S.C. 158(d)).
The Department believes that
disclosure and information about
employers can be a powerful tool for
workers, and throughout this proposed
rule has sought to enhance transparency
and increase workers’ access to
important information about the job
opportunity and workers’ rights.
Therefore, knowing whether an
employer has chosen to commit to
bargain in good faith over a labor
neutrality agreement, or not, can
provide workers with important
information about such employers.
Under proposed § 655.135(m)(4)(ii),
employers that choose not to bargain
over labor neutrality agreements must
state that they are not willing to do so
and disclose their reasons for making
that choice. Because this information
would be disclosed on the job orders,
workers would be able to use it to
decide whether they want to work for
certain employers. In addition, worker
advocacy groups and labor
organizations may be able to use this
information to decide whether to engage
with certain employers or whether
workers for such employers might need
additional assistance from key service
providers.
The Department welcomes comments
addressing any aspect of this proposed
regulatory provision. In particular, the
Department seeks comment on whether
the organization with which an
employer would bargain should be
limited other than by the general
requirement to bargain in good faith,
such as by including only those labor
organizations that are subject to the
Labor Management Reporting and
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Disclosure Act, 29 U.S.C. 401 et seq.
The Department also welcomes
comments regarding whether this
proposed requirement will, as intended,
advance the goal of ensuring that H–2A
workers have a free and fair choice over
whether to exercise their freedom of
association rights to join together and
negotiate with their employer as one
body.
x. Section 655.135(n) Access to Worker
Housing
The Department proposes the
addition of a new provision,
§ 655.135(n), governing access to worker
housing, which is intended to protect
the right of association and access to
information for H–2A workers and
workers in corresponding employment
and address the isolation that
contributes to the vulnerability of some
H–2A workers.
As set forth above in section IV.C.2.b
of this preamble, the temporary nature
of their work and dependency on a
single employer for work, housing,
transportation, and necessities, among
other factors, make H–2A workers
particularly vulnerable to labor
exploitation, including violations of H–
2A program requirements, dangerous
working conditions, retaliation, and
labor trafficking. Geographic isolation
and employer-imposed limitations on
workers’ movements and
communication exacerbate this
vulnerability.
Studies by nongovernmental
organizations highlight the vulnerability
faced by H–2A workers and some
employers’ use of isolation and
monitoring to control workers so that
they do not feel they have any option
but to accept substandard and illegal
working conditions. Polaris, the
organization that operates the National
Human Trafficking Hotline, identified
over 2,800 H–2A workers that were
victims of labor trafficking between
2018 and 2020 (because human
trafficking is notoriously underreported,
it is extremely likely that more H–2A
workers faced similar experiences).
Polaris 2018–2020 Report at 7, 10.
Similarly, Centro de los Derechos del
Migrante conducted interviews with 100
H–2A workers between September 2019
and January 2020 and found that many
experienced indicators of labor
trafficking. For instance, 34 percent
reported restrictions on their movement,
such as not being permitted to leave
employer-furnished housing or
worksites and 32 percent described
themselves as not feeling free to quit.
CDM Report at 5. Both organizations
described H–2A workers being subject
to extreme isolation, such as being left
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in remote areas without transportation
or means of communicating with others,
requiring permission to leave employerfurnished housing, being deliberately
limited in accessing their support
systems, having their personal cellular
phones and passports confiscated, and
being denied access to other forms of
communication. Polaris 2018–2020
Report at 19; CDM Report at 23–24;
Farmworker Justice Report at 22, 33; see
also Indictment, U.S. v. Patricio, No.
5:21–cr–00009 (S.D. Ga.) (describing H–
2A workers being detained in a work
camp surrounded by an electric fence
and having their identification
documents and personal cellular
telephones confiscated).80 Thus, the
Department seeks to protect workers’
rights to association and access to
information both to make them less
susceptible to labor exploitation,
including trafficking, and to interrupt
factors that permit the deterioration of
working conditions for agricultural
workers in the United States and thus
have an adverse effect on workers in the
United States similarly employed.
8 U.S.C. 1188(a)(1).
In light of these serious concerns,
proposed § 655.135(n)(1) would provide
that workers residing in employerfurnished housing must be permitted to
invite, or accept at their discretion,
guests to their living quarters and/or the
common areas or outdoor spaces near
such housing during time that is outside
of workers’ workday and subject only to
reasonable restrictions designed to
protect worker safety or prevent
interference with other workers’
enjoyment of these areas. This
protection would recognize that workers
do not relinquish their rights to
association or access to information
simply by virtue of residing in
employer-furnished housing. Nor could
employers use the statutorily required
provision of housing as a means to
isolate or control their workforce by
80 In late 2021, the United States Attorney’s Office
for the Southern District of Georgia indicted 24
defendants on felony charges including human
smuggling and forced labor. Defendants
fraudulently used the H–2A program to smuggle
agricultural workers into the United States from
Mexico, Guatemala, Honduras, and other countries.
Once in the United States, workers were forced to
dig onions with their bare hands, earning $0.20 for
each bucket harvested, and were threatened with
guns and violence. The workers were detained in
crowded, unsanitary buildings with little or no
food. See Press Release, U.S. Attorney’s Off. for the
S. Dist. of Ga., Operation Blooming Onion Human
Trafficking Investigation (Nov. 22, 2021), https://
www.justice.gov/usao-sdga/pr/human-smugglingforced-labor-among-allegations-south-georgiafederal-indictment. See also Jessica Looman, U.S.
Dep’t of Lab. Blog: Exposing the Brutality of Human
Trafficking (Jan. 13, 2022), https://blog.dol.gov/
2022/01/13/exposing-the-brutality-of-humantrafficking.
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blocking their access to information and
assistance from the outside. The
proposed regulation would explicitly
permit workers to invite guests or to
accept (or reject) visitors wishing to
speak with them. Because the right to
invite or accept visitors is limited to
housing areas and to time that is outside
of workers’ workday, the Department
does not anticipate that this will disrupt
employers’ business operations.
Under the Department’s proposed
regulation, this protection is intended to
apply to all housing furnished by the
employer pursuant to the employer’s
statutory and regulatory obligations.
While the Department anticipates that
this protection would be the most
beneficial for workers who reside in
housing that is geographically isolated,
it recognizes that even workers whose
housing is more centrally located may
be isolated by virtue of employer
policies that limit their ability to leave
housing or to interact with the public
even during time that is outside of
workers’ workday. The Department is
aware of instances in which employers
used abusive restrictions to keep
workers isolated and to restrict their
access to services, for example, by
forbidding workers to leave housing
areas that may otherwise have been
accessible except when being
transported to work or for other limited
purposes such as to buy groceries, or by
retaining keys to worker housing or
employing armed guards such that
workers did not feel that they could
leave or have guests. Regardless of
whether housing is located in a remote
or densely populated area, workers
would benefit from a protected right to
invite and accept visitors. The
Department seeks comments on whether
the protection in § 655.135(n)(1) should
be limited to workers residing in certain
types of employer-furnished housing or
in certain locations.
Because workers typically reside in
shared quarters, the Department
recognizes the need to balance different
workers’ competing needs. It therefore
proposes to permit reasonable
restrictions designed to protect worker
safety or to prevent interference with
other workers’ enjoyment of the
housing. For example, it could be
reasonable for an employer to limit
visitors’ access to shared sleeping
quarters during sleeping hours, but to
permit visitors in the common areas and
outdoor spaces surrounding worker
housing provided that they are quiet.
Similarly, it could be reasonable for an
employer to limit all visitor access
during sleeping hours, provided that the
employer does not use such a restriction
to effectively bar most visitors. The
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Department seeks comments on what
would constitute reasonable or
unreasonable restrictions and other
means of balancing different workers’
interests in shared housing, as well as
comments on visitor policies that may
unduly hinder workers’ rights to invite
or accept guests.
The Department recognizes that the
effectiveness of proposed
§ 655.135(n)(1) may be limited where
H–2A workers are unaware of, or afraid
to exercise, their right to invite or accept
visitors in employer-furnished housing.
To bolster the effectiveness of this
proposed requirement, § 655.135(n)(2)
would provide a narrow right of access
to labor organizations, which have an
incentive to report concerns of labor
exploitation to the Department or other
law enforcement agencies, as well as to
provide information to workers on their
rights under the H–2A program and to
engage in self-organization. Specifically,
where employer-furnished housing for
H–2A workers and workers in
corresponding employment who are
engaged in FLSA agriculture is not
readily accessible to the public, a labor
organization would be permitted to
access the common areas or outdoor
spaces near worker housing for the
purposes of meeting with workers
during time that is outside of workers’
workday for up to 10 hours per month.
The protections of paragraphs (n)(1)
and (2) would be distinct, but would
complement and bolster one another.
Whereas the former would permit all
resident H–2A workers and those in
corresponding employment to invite or
accept guests to their living quarters, as
well as the common areas and outdoor
spaces surrounding worker housing, the
latter would permit labor organizations
to, without explicit invitation, seek out
workers only in the common areas and
outdoor spaces surrounding worker
housing in which H–2A workers and
those in corresponding employment
who perform FLSA agriculture reside.
The former would permit workers to
invite or accept guests during all time
that is outside of workers’ workday
subject only to reasonable restrictions
designed to balance their rights with the
rights of other workers. The latter would
limit labor organizations’ access to 10
hours per month, an amount of time
reasonable to make contact with new
workers that may have started between
labor organization visits. Finally, the
latter would only apply in instances
where the worker housing is on
property or in a facility that is not
readily accessible to the public such
that labor organizations have limited
alternatives for in-person meetings with
workers. While the Department also
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proposes the means for labor
organizations to request worker contact
information, including, when available,
workers’ personal cellular telephone
numbers, it does not consider this a
substitute for in-person meetings since
it is aware of multiple instances in
which workers’ personal cellular
telephones have been seized by
employers. See also Patricio Indictment
at 23; Polaris 2018–2020 Report at 19.
To help inform workers of their rights
under this proposal, the Department is
proposing to include the protections
that would be afforded under proposed
§ 655.135(n) in the disclosures required
on the job order.
The Department seeks comments on
all aspects of this proposal. The
Department is particularly interested in
comments on proposed § 655.135(n)(2),
such as those regarding the limitations
placed on labor organizations’ right of
access, including the cap of 10 hours
per month and how to understand when
worker housing is not readily accessible
to the public, how this would apply
when workers engaged in FLSA
agriculture share housing with workers
not engaged in FLSA agriculture
(§ 655.135(n)(2) applies only with
respect to the former), whether the right
of access in this provision should be
expanded to provide similar access to
some or all key service providers as
defined in proposed § 655.103(b), and, if
so, whether the Department should limit
the scope of the catchall term ‘‘any other
service providers to which an
agricultural worker may need access.’’
In addition, the Department is interested
in comments on whether and how
proposed § 655.135(n)(1) and (2) should
apply with respect to workers housed
pursuant to §§ 655.230 (housing for
work performed on the range in herding
and range production of livestock
occupations) and 655.304 (mobile
housing for workers engaged in animal
shearing or custom combining).
Finally, the Department proposes
corresponding edits to § 655.132(e)(1) to
address instances in which the
employer-furnished housing is provided
by the fixed-site agricultural business
(‘‘grower’’) as part of its agreement with
an H–2ALC. Under the current
provision, where housing is owned,
operated, or secured by the grower, the
H–2ALC is required to include with its
H–2A Application proof that the
housing complies with the applicable
standards set forth in § 655.122(d) and
certified by the SWA. The Department
proposes to add to this provision the
requirement that the H–2ALC also
provide with its H–2A Application
proof that the grower has agreed to
comply with the requirements of
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proposed § 655.135(n). In doing so, the
Department seeks to ensure that the
protections for access to worker housing
would be met even where the H–2ALC
fulfills its obligation to furnish housing
through its agreement with its client
grower. The Department welcomes
comments on what would constitute the
requisite proof that an H–2ALC would
be required to submit with its
application, as well as alternative means
of ensuring compliance with the access
protections where housing is provided
directly by a grower.
xi. Section 655.135(o) Passport
Withholding
The Department proposes to add a
new paragraph (o) to § 655.135 to better
protect workers from potential labor
trafficking by directly prohibiting an
employer from confiscating a worker’s
passport, visa, or other immigration or
government identification documents.
Under this proposal, the only
exceptions to this prohibition would be
where the worker has stated in writing:
that the worker voluntarily requested
that the employer keep these documents
safe, that the employer did not direct
the worker to submit such a request, and
that the worker understands that the
passport, visa, or other immigration or
government identification document
will be returned to the worker
immediately upon the worker’s request.
Even where the worker has voluntarily
requested that the employer safeguard
such documents, the worker must be
able to have ready access to the
document, at least during regular
business hours and at a location that
does not meaningfully restrict the
worker’s ability to access the document.
As detailed in section IV.C.2.b of this
preamble, H–2A workers are extremely
vulnerable to labor exploitation, and an
employer taking or holding a worker’s
passport is an egregious act that can be
a strong indication of such
exploitation.81 Labor trafficking,
including the restriction of a worker’s
movements, harms not only the worker
but also the agricultural workforce in
the area by subjecting workers to
depressed working conditions.82 The
current regulation at § 655.135(e)
requires an employer to comply with all
applicable Federal, State, and local
laws. That section explicitly references
81 See also Polaris 2018–2020 Report at 26; CDM
Report at 23–24; Farmworker Justice Report at 33;
Indictment, U.S. v. Patricio, No. 5:21–cr–00009
(S.D. Ga.) (confiscation of identity documents used
in scheme to traffic H–2A workers).
82 See, e.g., Jessica Looman, U.S. Dep’t of Lab.
Blog: Exposing the Brutality of Human Trafficking
(Jan. 13, 2022), https://blog.dol.gov/2022/01/13/
exposing-the-brutality-of-human-trafficking.
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the William Wilberforce Trafficking
Victims Protection Reauthorization Act
of 2008, Pub. L. 110–457, which
amended the TVPA, Pub. L. 106–386
(2000), 18 U.S.C. 1592(a). The TVPA, as
amended, prohibits the unlawful
destruction, concealment, removal,
confiscation or possession of another
person’s passport or other immigration
documents, under the conditions set
forth in that statute (e.g., with the intent
to obtain forced labor in violation of 18
U.S.C. 1589). 18 U.S.C. 1592(a). The
Department’s current regulation at 20
CFR 655.135(e) thus provides that an
employer may not hold or confiscate a
worker’s passport, visa, or other
immigration documents, in compliance
with the TVPA and other applicable
laws. The Department added this
explicit reference to the TVPA and
passport withholding in the 2010 H–2A
Final Rule, in response to a comment
received on the issue, because the
Department ‘‘recognize[d] the worker’s
right not to relinquish possession of his
or her passport to the employer.’’ See 75
FR 6923.
Despite the requirements of the
current regulation at § 655.135(e),
however, WHD has uncovered multiple
instances of employers taking or
withholding a worker’s documents
against the worker’s wishes.83 Under the
current regulation, which is dependent
upon compliance with the TVPA, it is
often difficult for WHD to ascertain the
intent of the employer each time a
passport or document is withheld.
Further, under the current regulation, it
can be difficult for WHD to cite a
violation for passport withholding
absent a conviction of a trafficking
offense by a law enforcement agency. As
noted above, the Department believes it
is important to prevent passport and
document withholding to protect the
workers subject to this practice from
potential labor trafficking, as well as to
protect other agricultural workers in the
area from resulting adverse effects on
working conditions, pursuant to 8
U.S.C. 1188(a)(1). Accordingly, to better
address these issues, and pursuant to its
authority under 8 U.S.C. 1188(a)(1), the
Department proposes to flatly prohibit
the taking or withholding of a worker’s
passport, visa, or other immigration or
identification documents against the
worker’s wishes, independent of any
other requirements under other Federal,
State, or local laws, in a new paragraph
at § 655.135(o). In addition, to promote
83 See, e.g., Press Release, U.S. Dep’t of Lab.,
Federal court sentences South Carolina labor
contractor, operators after investigation finds fraud,
labor trafficking, abuses of farmworkers (Aug. 3,
2023), https://www.dol.gov/newsroom/releases/
whd/whd20230803.
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compliance with and deter violations of
this requirement, the Department
proposes to include failure to comply
with this assurance and obligation
within the definition of violations
subject to debarment under
§ 655.182(d)(1)(viii) and 29 CFR
501.20(d)(1)(viii). We note, however,
that even under the current regulations,
debarment may be appropriate due to
passport withholding in certain
circumstances. See 20 CFR
655.182(d)(1)(x) and 29 CFR
501.20(d)(1)(x). Finally, to help inform
workers of their rights under this
proposal, the Department is proposing
to include the protections that would be
afforded under proposed § 655.135(o) in
the disclosures required on the job
order.
The Department recognizes that an
employer and/or its agent(s) often
facilitate a prospective H–2A worker’s
submission of the worker’s passport,
visa, or other identification documents
to the United States Government for
purposes of visa application, processing,
or entry to the United States. Nothing in
the current regulation at § 655.135(e), or
in proposed § 655.135(o), is intended to
prohibit such facilitation, provided that
the worker voluntarily requests the
employer’s assistance in these processes
and that the documents are returned to
the worker immediately upon return by
the United States Government.
The Department welcomes comments
on this proposal, particularly regarding
whether the Department should include
any other requirements for application
of the proposed exception to this
prohibition, and whether the
Department should include any
additional exceptions to this
prohibition.
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3. Section 655.137, Disclosure of
Foreign Worker Recruitment
The Department proposes new
disclosure requirements to enhance
foreign worker recruitment chain
transparency and bolster the
Department’s capacity to protect
vulnerable agricultural workers from
exploitation and abuse, as explained
more fully below. As the Government
Accountability Office (GAO) has
explained, ‘‘[w]ithout accurate,
accessible information about employers,
recruiters, and jobs during the
recruitment process, potential foreign
workers are unable to effectively
evaluate the existence and nature of
specific jobs or the legitimate parties
contracted to recruit for employers,
potentially making them more
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vulnerable to abuse.’’ 84 More recently,
the Department’s OIG released a report
that emphasized the need for increased
transparency in the recruiting chain to
enhance the Department’s enforcement
capabilities.85 Concerns expressed by
workers’ rights advocacy organizations
and human trafficking prevention
groups, in addition to the Department’s
own experience in finding continuing
abuses by foreign labor recruiters, also
indicate the need for enhanced
transparency to aid enforcement and
protect vulnerable agricultural workers
from predatory and abusive practices
during the recruitment process. A recent
report published by Polaris, an
organization working to combat labor
trafficking, notes that abuses by foreign
labor recruiters continue, with workers
reporting unlawful fees charged by
‘‘foreign labor recruiters, their
employers, or their direct supervisors at
their jobs,’’ and that additional
transparency in the recruitment chain is
needed to ensure the Department can
identify, investigate, and hold
accountable those employers and other
entities who engage in abusive and
unlawful behavior at various stages of
the international recruitment process.86
The Department’s proposed changes are
also consistent with the assessment of
organizations looking at migrant worker
abuse globally. For example, the United
Nations Office on Drugs and Crime, in
a 2015 report entitled ‘‘The Role of
Recruitment Fees and Abusive and
Fraudulent Practices of Recruitment
Agencies in Trafficking in Persons,’’
noted that recruitment systems are often
‘‘opaque,’’ and that a ‘‘[l]ack of
evidence,’’ contributes to low levels of
trafficking convictions for recruiters and
recruitment agencies.87
84 U.S. Gov’t Accountability Office, GAO–15–154,
H–2A and H–2B Visa Programs: Increased
Protections Needed for Foreign Workers 33–34
(2015; Rev. 2017), https://www.gao.gov/assets/gao15-154.pdf.
85 Office of Inspector Gen., U.S. Dep’t of Lab.,
Rep. No. 06–21–001–03–321, Overview of
Vulnerabilities and Challenges in Foreign Lab.
Certification Programs (2020).
86 Polaris, Human Trafficking on Temporary
Work Visas: A Data Analysis 2015–2017 12–13
(2018), https://polarisproject.org/wp-content/
uploads/2019/01/Human-Trafficking-onTemporary-Work-Visas.pdf (noting that workers
continue to be charged unlawful fees, and stating
there is ‘‘a general sense of confusion among
victims as to the relationship between the person
or agency who facilitated their recruitment and the
person or company who would ultimately employ
them’’ and ‘‘many victims were not sure to whom
they had paid recruitment fees or why they had
been required’’).
87 U.N. Office on Drugs and Crime, The Role of
Recruitment Fees and Abusive and Fraudulent
Recruitment Practices of Recruitment Agencies in
Trafficking in Persons 23, 47 (2015), https://
www.unodc.org/documents/human-trafficking/
2015/Recruitment_Fees_Report-Final-22_June_
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Pursuant to its authority under the
INA, the Department can regulate the
conduct of U.S. employers using foreign
labor certification programs and doing
business with foreign labor recruiters.
The INA expressly authorizes the
Department to promulgate regulations
governing recruitment. The Department
may only issue a labor certification to an
employer that has ‘‘complied with the
criteria for certification (including
criteria for the recruitment of eligible
individuals as prescribed by the
Secretary).’’ 8 U.S.C. 1188(c)(3)(A)(i).
The INA states that ‘‘[t]he 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.’’ 8
U.S.C. 1188(g)(2). As the Department
has noted in prior rulemaking, though
there are limits to the liability the
Department can impose on employers
for the actions of recruiters abroad, the
Department can regulate the conduct of
recruiters in the H–2A program through
enforcement of employer obligations to
foreign workers, such as enforcement of
the prohibition on imposition of
recruitment fees. 73 FR 77110, 77160
(Dec. 18, 2008, suspended). Currently,
employers must contractually forbid any
foreign labor contractor or recruiter (or
any agent of such foreign labor
contractor or recruiter) whom the
employer engages, either directly or
indirectly, in international recruitment
from seeking payments or other
compensation from prospective
employees, in both the H–2A and H–2B
programs, at 20 CFR 655.135(k) and
655.20(p), respectively. The H–2B
regulations at §§ 655.9 and 655.20(aa)
additionally require employers to
provide copies of their agreements with
foreign labor recruiters and disclose
information about the foreign labor
recruiters that have or will be engaged
in connection with their H–2B
applications. The Department proposes
similar additional foreign labor recruiter
disclosure requirements in the H–2A
program, specifically to require, as a
condition for approving an H–2A
Temporary Labor Certification, that the
employer identify any foreign labor
2015_AG_Final.pdf. See also International Labour
Organization, Fair Recruitment Initiative, https://
www.ilo.org/global/topics/fair-recruitment/fri/lang-en/index.htm; International Labour Organization,
General principles and operational guidelines for
fair recruitment and Definition of recruitment fees
and related costs (2019), https://www.ilo.org/
wcmsp5/groups/public/---ed_protect/---protrav/--migrant/documents/publication/wcms_536755.pdf.
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recruiters, provide copies of the
agreements between the employer and
recruiter, and ensure the agreement
clearly prohibits the foreign labor
contractor or recruiter from seeking or
receiving payments or other
compensation from prospective
employees. This proposed requirement
to disclose information about the
recruitment chain would assist the
Department to carry out its enforcement
obligations, protect vulnerable
agricultural workers and program
integrity, and ensure equitable
administration of the H–2A program for
law abiding employers.
In particular, the Department
proposes a new § 655.137, Disclosure of
foreign worker recruitment, and a new
§ 655.135(p), Foreign worker
recruitment, which are similar to
§§ 655.9 and 655.20(aa) in the
regulations governing disclosure of
foreign worker recruitment in the H–2B
program. Consistent with §§ 655.9(a)
and 655.20(aa), proposed §§ 655.137(a)
and 655.135(p) would require an
employer and its attorney or agent, as
applicable, to provide a copy of all
agreements with any agent or recruiter
that the employer engages or plans to
engage in the recruitment of prospective
H–2A workers, regardless of whether
the agent or recruiter is located in the
United States or abroad. Consistent with
the H–2B program, the proposed rule
would require employers to provide a
copy of the agreement at the time the
employer files the H–2A Application.
The Department does not propose
revisions to § 655.135(k), which will
continue to apply to employers that
have engaged with agents and foreign
labor recruiters, directly or indirectly, in
international recruitment of H–2A
workers and will continue to require the
employer to contractually prohibit the
recruiter(s) from seeking or receiving
payment from any worker at any time.
As such, the written contract(s) the
employer submits under this proposed
rule must contain this contractual
prohibition on charging fees and the
prohibition language must include the
quoted language specified in
§ 655.135(k). At the time of collection,
the Department will review the
agreements to obtain the names of the
foreign labor recruiters and government
registration and license numbers, if any
(for purposes of maintaining a public
list, as described below), and to verify
that these agreements include the
required contractual prohibition against
charging fees.88 The Department may
88 The Department uses all available tools to
ensure that prohibited fees are not collected by
employers, agents, recruiters, or facilitators. The
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further review the agreements during
the course of an audit examination or
investigation. Certification of an
employer’s application that includes
such an agreement does not indicate
general approval of the agreement or the
terms therein. Where the required
contractual prohibition is not readily
discernible, the Department may request
further information to ensure that the
contractual prohibition is included in
the agreement. Agreements between the
employer and the foreign labor recruiter
will not be made public unless required
by law. Consistent with the
Department’s current practice in the H–
2B program, this proposal allows the
Department to obtain the agreements,
but the Department will only share with
the public the identity of the recruiters,
not the agreements in their entirety, as
discussed further below.
Proposed §§ 655.137(b) and
655.135(p), consistent with the H–2B
provisions at §§ 655.9(b) and 655.20(aa),
would require an employer and its
attorney or agent, as applicable, to
disclose to the Department the identity
(i.e., name and, if applicable,
identification number) and geographic
location of persons and entities hired by
or working for the foreign labor recruiter
and any of the agents or employees of
those persons and entities who will
recruit or solicit prospective H–2A
workers for the job opportunities offered
by the employer. If the recruiter has a
valid registration number or license
number, which is issued by a
government agency and authorizes the
recruiter to engage in the solicitation or
recruitment of workers, the employer
must provide this unique identification
information. Consistent with the H–2B
Department has previously stated that an employer
must make it abundantly clear that the recruiter and
its agents are not to receive remuneration from the
worker recruited in exchange for access to the job
opportunity. For example, evidence showing that
the employer paid the recruiter no fee or an
extraordinarily low fee, or continued to use a
recruiter about whom the employer had received
numerous credible complaints, could be an
indication that the contractual prohibition was not
bona fide. See 75 FR 6925–6926. The Department
has similarly stated that, if it determines that the
employer knew or reasonably should have known
that the H–2A worker paid or agreed to pay a
prohibited fee to a foreign labor contractor or
recruiter, the employer may be in violation of 20
CFR 655.135(j). However, should the circumstances
demonstrate that the employer made a good faith
effort to ensure that prospective workers were not
required to pay prohibited fees (such as inquiry of
both workers and agents/recruiters/facilitators
regarding the payment of such fees), the Department
will take the circumstances into consideration in
determining whether a violation occurred. See U.S.
Dep’t of Lab., Wage & Hour Div., Field Assistance
Bulletin No. 2011–2, H–2A ‘‘Prohibited Fees’’ and
Employer’s Obligation to Prohibit Fees (May. 6,
2011), https://www.dol.gov/agencies/whd/fieldassistance-bulletins/2011-2.
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program, the Department proposes to
interpret the term ‘‘working for’’ to
encompass any persons or entities
engaged in recruiting prospective
foreign workers for the H–2A job
opportunities offered by the employer,
whether they are hired directly by the
primary recruiter or are working
indirectly for that recruiter downstream
in the recruitment chain. As explained
more fully in the requisite PRA
supporting statement accompanying this
proposed rule, the Department proposes
to gather the additional recruitment
chain information when the employer
files its application and will require the
employer to submit a proposed Form
ETA–9142A, Appendix D, that mirrors
the Form ETA–9142B, Appendix C, and
collects information about the identity
and location of the recruiter(s) and
recruitment organization(s) the
employer used or will use to recruit
foreign workers.
Proposed § 655.137(c), and
corresponding language in § 655.135(p),
would require the employer to update
the foreign worker recruitment
information disclosed in accordance
with paragraphs (a) and (b) of § 655.137
with any changes to foreign labor
recruiter contracts, loss or revocation of
registration number, or change to the
names and locations of people involved
in recruitment after filing the H–2A
Application, and to continue to make
these updates until the end of the work
contract period. The Department
proposes to require the employer to
maintain updates to the foreign labor
recruiter information disclosed at the
time of filing the H–2A Application and
be prepared to submit the record to the
Department, upon request. To clarify the
employer’s record retention obligation,
proposed § 655.167(c)(8) would require
the employer to maintain the foreign
worker recruitment information
required by § 655.137(a) and (b) for a
period of 3 years, similar to the
provisions at § 655.167(c) that require
retention of information regarding
recruitment of U.S. workers.
The proposed disclosure requirements
encompass all agreements involving the
whole recruitment chain that brings an
H–2A worker to the employer’s certified
H–2A job opportunity in the United
States. Employers, and their attorneys or
agents, as applicable, are expected to
provide these names and geographic
locations to the best of their knowledge
at the time the application is filed. The
Department expects that, as a normal
business practice, when completing the
written agreement with the primary
recruiting agent or recruiter, the
employer will ask whom the recruiter
plans to use to recruit workers in foreign
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countries, and whether those persons or
entities plan to hire other persons or
entities to conduct such recruitment,
throughout the recruitment chain.
Consistent with current practice in
the H–2B program, proposed
§ 655.137(d) provides for the
Department’s public disclosure of the
names of the agents and foreign labor
recruiters used by employers, as well as
the identities and locations of all the
persons or entities hired by or working
for the primary recruiter in the
recruitment of prospective H–2A
workers, and the agents or employees of
these entities. Determining the identity
and location of persons hired by or
working for the recruiter or its agent to
recruit or solicit prospective H–2A
workers—effectively acting as subrecruiters, sub-agents, or subcontractors—bolsters program integrity
by aiding enforcement of provisions like
§ 655.135(k), which prohibits the
seeking or receiving of recruitment fees.
In addition, the proposed information
collection requires additional
disclosures relating to foreign worker
recruitment that will bring a greater
level of transparency to the H–2A
worker recruitment process. By
maintaining and making public a list of
agents and recruiters, the Department
will be in a better position to map
international recruitment relationships,
identify where and when prohibited
fees are collected, ensure that
contractual prohibitions on collecting
prohibited fees are bona fide, and, when
contractual prohibitions are not bona
fide or do not exist, implement
sanctions against and collect remedies
from the appropriate entity. Finally,
workers would be better protected
against fraudulent recruiting schemes
because they will be able to verify
whether a recruiter is in fact recruiting
for legitimate H–2A job opportunities in
the United States. A list of foreign labor
recruiters also will enhance
transparency and aid enforcement by
facilitating information sharing between
the Departments and the public, and
assist OFLC, other agencies, workers,
and community and worker advocates
to better understand the roles of
recruiters and their agents in the
recruitment chain, while permitting a
closer examination of applications or
certifications involving recruiters who
may be engaged in improper behavior.
Information about the identity of the
international and domestic recruiters of
foreign labor will also assist the
Department in more appropriately
directing its audits and investigations.
For example, in the course of its
enforcement, WHD sometimes reviews
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allegations from H–2A workers that they
have been charged recruitment fees.
Those workers, however, are frequently
unaware of the contractual
arrangements between the individuals
alleged to have charged those fees and
the recruitment agencies for which they
may serve as sub-agents or subrecruiters, and may only know the
names, partial names, or nicknames of
such individuals. This information
would improve WHD’s ability to
identify individuals charging fees,
connect such individuals’ relationships
with recruitment agencies contracted by
the employer, determine whether all
entities had contractually prohibited
cost-shifting as required under 20 CFR
655.135(k), and hold the appropriate
parties responsible. Such information
would also improve WHD’s ability to
plan enforcement actions if, for
example, a sub-recruiter working for
multiple agencies or serving multiple
employers is found, as a matter of
practice, to be charging prohibited fees
or otherwise engaging in conduct in
violation of the requirements of the H–
2A program. Finally, enhancing tools to
strengthen enforcement of the
prohibition on the collection of
prohibited fees and other recruitment
abuses also ensures that employers who
comply with the H–2A program
requirements are not disadvantaged by
the actions of unscrupulous employers,
such as those who pass recruitment fees
on to workers.
Additionally, the proposed regulatory
text includes a provision stating that the
‘‘Department may share the foreign
worker recruitment information it
receives from employers with any other
Federal agency, as appropriate for
investigative or enforcement purpose, as
set forth in § 655.130(f).’’ The
Department is considering making
further revision to this regulation to
allow the Department to share the
foreign worker recruitment information
it receives with the foreign government
that has territorial jurisdiction over the
recruiter for investigative or
enforcement purpose. Under such a
proposal, for example, if the Department
discovers that a specific foreign labor
recruiter’s contracts allow for the illegal
collection of recruitment fees, the
Department may refer that foreign labor
recruiter to its own government so that
its government may take any
appropriate investigative or enforcement
action. As discussed above with regard
to disclosure of information by
recruiters generally, the Department
believes sharing this information where
appropriate would not only increase
transparency throughout the
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international recruitment chain, but also
help hold accountable those foreign
labor recruiters who engage in improper
conduct.
The Department requests comment on
whether to allow the sharing of
recruitment information, including the
contracts and agreements between
agents and/or recruiters and employers,
with foreign governments that have
territorial jurisdiction over the agent or
recruiter at issue for investigative or
enforcement purpose. In particular, the
Department is interested in public
comment on the potential benefits of
sharing this information, and the scope
of the content that should be shared—
for example, whether it should just be
a referral of the names of certain
recruiters for investigative or
enforcement purposes, or entire
contracts between recruiters and
employers. In addition, because there is
no mandated template for contracts
between recruiters and employers—
though there is some mandated
language—the Department seeks
comment on whether confidential
business information is often included
in these contracts, and whether there are
concerns with disclosing the
information or contracts to foreign
governments. Comments explaining
what typically may be found in these
types of contracts would assist the
Department in determining whether to
make further revisions to allow the
sharing of foreign worker recruitment
information with foreign governments
and what safeguards might need to be in
place.
The Department believes the
proposed disclosure requirements will
increase transparency in the
international recruitment chain, aid the
Department in enforcement, and better
protect foreign workers. The Department
is soliciting public comments on its
proposals and encourages commenters
to provide suggestions for ways the
Department can use this rulemaking to
most effectively prevent worker
exploitation and abuse during the
international recruitment process, and
ways the Department can use this
rulemaking to better protect vulnerable
agricultural workers from predatory
recruiters.
D. Labor Certification Determinations
1. Section 655.167, Document Retention
Requirements of H–2A Employers
The Department proposes a technical
change to § 655.167(c)(6) to update this
paragraph’s outdated cross-reference to
the regulatory citation for the definition
of ‘‘work contract.’’ The Department
proposes another technical change to
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§ 655.167(c)(7) to add ‘‘to’’ before
‘‘DHS.’’ As discussed above, the
Department proposes a new record
retention paragraph at § 655.167(c)(8)
that would require the employer to
maintain the foreign worker recruitment
information required by § 655.137(a)
and (b) for a period of 3 years, and a
new § 655.167(c)(9) that would require
the employer to retain the additional
employment and job related information
specified in § 655.130(a)(2) and (3) for
the 3-year period specified in
§ 655.167(b). The Department also
proposes new paragraphs at
§ 655.167(c)(10) and (11) to require
records of progressive discipline and
termination for cause, as discussed more
fully in the preamble section
corresponding with § 655.122(n).
Finally, the Department also proposes a
new paragraph (c)(12) that requires the
employer to retain evidence
demonstrating the employer complied
with proposed § 655.175(b)(2)(i), which
would require employers with an
unforeseen minor start date delay to
notify the SWA and each worker to be
employed under the approved H–2A
Application of the delay.
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E. Post-Certification
1. Section 655.175, Post-Certification
Changes to Applications for Temporary
Employment Certification
The Department proposes a new
provision at § 655.175 that will address
an employer’s obligations in the event of
a post-certification delay in the start of
work more clearly and consistently with
the Department’s proposals for start date
delay procedures at § 653.501(c). The
Department’s regulations currently
conflate pre-certification requests to
make minor amendments to the period
of employment before the CO issues a
final determination and postcertification requests for the CO’s
approval of a delay in the start date
caused by unforeseeable circumstances;
both types of requests are currently
addressed in the pre-determination
section of subpart B at § 655.145(b). For
clarity, the Department proposes to
separate the two types of requests and
relocate the component of § 655.145(b)
that addresses post-certification delays
in the start of work from current
§ 655.145(b) to the new proposed
provision at § 655.175. Consistent with
the type of situations covered by
proposed § 655.175, the new provision
is included in the section of the
regulations that addresses postcertification activities.
The Department proposes only minor
conforming changes to the procedure in
current § 655.145(b) that an employer
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must follow to request a minor
amendment to the period of
employment during the processing of
the H–2A Application. These changes
are intended to clarify the existing
procedure for such amendments, and to
better distinguish that procedure from
the procedure an employer must follow
if, after certification, it seeks to delay
the start of work for reasons that the
employer could not have foreseen.
Currently, § 655.145(b) addresses both
procedures and creates confusion with
respect to the timeframes in which
employers can request minor
amendments. The Department proposes
to revise the pre-determination
amendments provision at § 655.145(b)
so that it addresses only predetermination amendments to the
period of employment. To further
distinguish the topics, the Department
retains the term ‘‘amendment’’ in
§ 655.145(b) and uses the terms ‘‘delay’’
in § 655.175 and clarifies that postcertification changes are not permitted
unless specified in this subpart (e.g.,
post-certification extensions continue to
be permitted under § 655.170; a contract
may be shortened by CO-approved
mutual agreement under
§ 655.122(i)(1)(ii)).
As under the current rule, the new
§ 655.175 would permit delays in the
start of work only when such a delay is
minor and due to unforeseen
circumstances and the employer’s crops
or commodities will be in jeopardy prior
to expiration of an additional
recruitment period. The Department
proposes to define a ‘‘minor’’ delay in
the start date as a delay of 14 calendar
days or fewer, which eliminates
ambiguity in the current text and aligns
this provision with the conceptually
similar provision at § 655.170(a), which
limits ‘‘short-term’’ extensions to 2
weeks and does not require CO
approval. As is the case for non-minor
delays under the current rule, where the
anticipated delay would be more than 2
weeks or indefinite and cannot be
considered ‘‘minor,’’ the employer may
withdraw the application and refile,
using emergency processing under
§ 655.134, as applicable, to engage in
recruitment for the job opportunity,
which will begin on a newly identified
start date. If the employer cannot
employ workers under the terms and
conditions promised beginning on the
certified start date and can only offer a
fraction of the work hours in the 2
weeks following the certified start date
(e.g., the employer can offer only a
single day of work, followed by several
days without work or a similar offer of
only minimal hours upon the worker’s
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arrival, followed by an extended rest
period), the Department will consider
the employer’s start date delayed and
the employer will be required to comply
with proposed § 655.175(b), including
all housing, subsistence, and
compensation obligations and the
proposed obligation to provide notice of
the delay to workers and the SWA, as
explained below.
Consistent with proposed § 653.501(c)
and current § 655.170(a), proposed
§ 655.175 would not require the
employer to submit a delay request to
OFLC for CO approval. Instead, in the
event of a minor delay (no more than 14
calendar days), proposed
§ 655.175(b)(2)(i) would require the
employer to notify the SWA and each
worker to be employed under the
approved H–2A Application of the
delay at least 10 business days before
the certified start date consistent with
§ 653.501(c), and proposed
§ 655.167(c)(12) would require the
employer to retain evidence it provided
this notice to each worker and to the
SWA. As noted in the preamble
explaining changes to § 653.501(c),
employers are in the best position to
contact and notify workers of changes to
the date of need because the employer
has already contracted to employ the
workers and should have up-to-date
contact information for each worker.
The proposed notice obligation, together
with the proposed definition of ‘‘minor
delay’’ and the current and proposed
obligations discussed below, will strike
an appropriate balance between the
employer’s need to respond to
unforeseen exigent circumstances and
the needs of agricultural workers to be
apprised of changes to the terms and
conditions of the job opportunity and
compensated in accordance with the
terms of employment the workers
accepted.
Proposed paragraph (b)(1) modifies
the requirements in current § 655.145(b)
with respect to the employer’s
subsistence obligations to workers in the
event of a minor delay in the start of
work. Specifically, paragraph (b)(1)
requires employers with a minor start
date delay to provide to all workers who
are already traveling to the place of
employment, upon their arrival and
without cost to the workers until work
commences, except for days for which
the worker receives compensation under
proposed paragraph (b)(2)(ii), daily
subsistence in the same amount
required during travel under 20 CFR
655.122(h)(1).89 The employer must
89 The employer also would remain responsible
for compliance with the distinct and existing
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fulfill this subsistence obligation to the
worker no later than the first date the
worker would have been paid had they
begun employment on time. Proposed
§ 655.175(b)(1) also would remind
employers that, even in the event of a
minor delay in the start of work, the
employer must continue to comply with
all other requirements under the
certified H–2A Application, including
but not limited to the provision of
housing as described in the job order.
Proposed paragraph (b)(2)(ii) includes
new compensation obligations in
circumstances where the employer
delays the start of work and fails to
provide adequate notice of the delay to
workers, similar to the existing
provisions at § 653.501(c) and consistent
with changes proposed to that section,
explained above. Currently, an
employer who seeks to delay the start
date after certification is subject to the
Wagner-Peyser Act provisions at
§ 653.501(c), which describe the process
for providing notice to workers placed
on the clearance order in the event of a
delayed start date and an employer’s
obligations under the work contract in
those circumstances. The Department’s
proposals related to § 653.501(c),
including situations in which the start
date is delayed, are discussed in greater
detail above, in the preamble section
dedicated to discussion of proposed
changes to those provisions. Proposed
§ 655.175 retains the employer
obligations currently provided under
§ 655.145(b) and these obligations
continue to apply both to employers
who notify the SWA and workers as
required in § 653.501(c) and those who
do not comply with that notice
requirement.
For the same reasons described in
detail in the preamble discussing
proposed changes to delayed start date
obligations at § 653.501(c), the
Department proposes to require
employers to provide to each worker to
be employed under the approved H–2A
Application the applicable wage rate for
each hour of the offered work schedule
in the job order, for each day that work
is delayed, for a period up to 14
calendar days, starting with the certified
start date, if the employer fails to
provide adequate notice of the delay.
Under proposed § 655.175(b)(2)(ii), the
employer’s wage obligation would apply
in any case where the employer fails to
provide notice of the delayed start of
work at least 10 business days prior to
the certified start date. This obligation
would apply in conjunction with the
three-fourths guarantee at § 655.122(i),
inbound travel and subsistence obligations at 20
CFR 655.121(h)(1).
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which would continue to require
employers to guarantee to offer workers
employment for a total number of work
hours equal to at least three-fourths of
the workdays of the total period,
beginning with the first workday after
the arrival of the worker at the place of
employment or the advertised
contractual first date of need, whichever
is later. However, under proposed
§ 655.175(b)(2)(iii), compensation paid
to a worker under proposed paragraph
(b)(2)(ii) of this section for any workday
included within the time period
described in § 655.122(i) would be
considered hours offered to the worker
when determining an employer’s
compliance with the § 655.122(i) threefourths guarantee obligation. As
proposed, an employer would be
permitted to reduce the compensation
owed to any worker(s) under proposed
§ 655.175(b)(2)(ii) by the amount of
wages paid to the worker(s) for work
performed within the time period
described in proposed
§ 655.175(b)(2)(ii), insofar as such wages
are paid timely and such work is
otherwise authorized by law. Wages for
unauthorized work, including work
performed by H–2A workers outside the
location or duties certified in the job
order, may not be credited. The
Department believes this proposal will
effectively address the hardship concern
(discussed above in the preamble
section regarding § 653.501(c)) by
providing workers a source of income
should the employer fail to provide
such workers sufficient notice of a delay
in the start of work, while continuing to
allow the employer flexibility to delay
the start of work for up to 14 calendar
days if necessitated by circumstances
that could not have been foreseen and
the crops or commodities will be in
jeopardy prior to the expiration of an
additional recruitment period.
Proposed § 655.175 and the proposed
compensation obligations in situations
where workers are not notified of a start
date delay will better protect
agricultural workers from financial
hardship they are likely to experience
should they travel or otherwise rely on
the information included in the job
order, only to discover upon arriving
that work is not available to them. As
workers’ rights advocacy organization
and SWA commenters noted during
prior rulemaking, delayed start dates are
harmful to workers, who value
predictability and certainty in
employment start dates, particularly
where they turn down other work or
must travel far to make themselves
available to work at the time and place
advertised in the job order. In addition,
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these commenters noted that
farmworkers have expenses beyond
housing and meals and cannot afford to
lose expected pay for up to 2 weeks,
should the actual start date be later than
the first date of need offered. The
Department has determined the housing
and subsistence obligations in current
§ 655.145(b) (proposed
§ 655.175(b)(2)(i)) and the existing threefourths guarantee at § 655.122(i) are not
sufficient to fully protect workers from
the financial hardships associated with
a delayed start date of work when such
delays are not adequately
communicated to the worker,
particularly if a worker is required to
travel a great distance to accept the job.
The beginning of the certification period
is a particularly vulnerable time for
workers, who may have little or no
savings as they await a first paycheck;
delays in the start of work and resulting
first paycheck exacerbate this
vulnerability and can lead to financial
hardships. Providing up to 2 weeks of
wages, due at the time workers
anticipate receiving their first paycheck
had the work begun on time, provides
a safety net for workers to support
themselves when work is not available.
Imposing these pay obligations in the
event workers are not notified of a
delayed start of work also may help to
ensure growers accurately disclose the
first date of need in the job order. The
proposed changes also will increase the
likelihood that workers will receive
timely notification of any delay in the
start of work and that employers
maintain accurate records of notices
they provide. Sanctions and remedies
for an employer’s failure to comply with
the notice or compensation obligations
required under proposed § 655.175 may
include, as appropriate, the recovery of
such compensation, the assessment of
civil money penalties, revocation of the
approved certification under § 655.181,
and, if warranted, debarment of the
employer under § 655.182.
The Department invites comment on
all aspects of these proposed changes,
including the proposed relocation of the
provision addressing post-certification
delays to a new provision at § 655.175
in the post-certification section of the
rule and the proposed compensation
provision applicable to all H–2A
workers, recruited U.S. workers, and
workers in corresponding employment
who expected employment under the
job order to begin on the certified start
date, similar to current and proposed
§ 653.501(c)(5). Commenters are
encouraged to provide input on the
proposal to require notice to each
worker and the SWA, rather than the
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CO, consistent with proposed changes
to § 653.501(c); the proposed definition
of ‘‘minor delay’’ at 14 calendar days
and whether the final rule should
require the employer to fulfill the
obligations at § 655.175(b) in any case
where it cannot offer full time work as
specified in the job order for the 14calendar-day period beginning on the
certified start date (as opposed to solely
when the employer fails to provide 10
days of notice, as proposed here); and
the proposal to permit the employer to
credit compensation paid under
proposed § 655.175(b)(2)(ii) toward the
employer’s three-fourths guarantee
obligation.
F. Integrity Measures
1. Section 655.182, Debarment
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a. The Department Proposes Revisions
to 20 CFR 655.182 To Shorten Appeal
Times for Debarment Matters, and
Shorten the Time To Submit Rebuttal
Evidence to OFLC
To help protect and uphold program
integrity, and to further protect workers
in the United States, the Department
proposes to increase the speed with
which debarments become effective by
decreasing the time for parties to submit
rebuttal evidence to OFLC, the time for
parties to appeal Notices of Debarment
to the OALJ, and the time for parties to
appeal debarment decisions to the ARB
from the OALJ. Reducing these
timeframes will lead to faster final
agency adjudications which will more
efficiently prevent H–2A program
violators from accessing this program.
As a result of a more expedited
debarment process, workers will be
protected from further harm.
b. OFLC Debarment Actions
The Department proposes to amend
§ 655.182(f)(1) and (2) by reducing the
period to file rebuttal evidence or
request a hearing of a Notice of
Debarment from 30 calendar days to 14
calendar days. If the party receiving a
Notice of Debarment does not file
rebuttal evidence or request a hearing,
the Notice of Debarment will take effect
at the end of the 14-calendar-day period
unless the party has requested, and the
Administrator has granted, an extension
of time to submit rebuttal evidence.
Extensions of time may be granted only
in limited circumstances as discussed
further below.
This proposed change aligns with the
timeframe provided in the Department’s
2008 H–2A Final Rule. 73 FR 77110
(Dec. 18, 2008). The 2008 H–2A Final
Rule provided 14 calendar days for
parties to submit rebuttal evidence in
response to a Notice of Intent to Debar,
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and if the party’s rebuttal did not
persuade the Administrator to terminate
debarment proceedings, provided an
additional 30-calendar-day period to
appeal the Administrator’s post-rebuttal
Notice of Debarment. Id. at 77228. In the
preamble to that rule, the Department
stated, ‘‘[g]iven the severity of
debarment and revocation, the short
timeframes set forth in . . . [the
‘Administrative review and de novo
hearing before an administrative law
judge’ section] are neither necessary nor
appropriate for these types of
determinations.’’ Id. at 77184. At the
time, 14 calendar days—twice as long as
the 7-calendar-day timeframe permitted
to appeal a denied application—was
deemed a sufficient timeframe to submit
evidence in rebuttal both in debarment
and revocation procedures. Id. at 77187.
Subsequently, in a 2009 NPRM, the
Department proposed to eliminate the
‘‘Notice of Intent to Debar’’ and the
opportunity to submit rebuttal evidence.
74 FR 45906, 45923 (Sept. 4, 2009). The
Department ultimately decided not to
eliminate the option to submit rebuttal
evidence after considering comments
that expressed concerns about due
process. 75 FR 6884, 6938 (Feb. 12,
2010). In the final rule, the Department
restored the option to submit rebuttal
evidence, with a simultaneous option to
appeal, but adopted a 30-calendar-day
timeframe instead of the prior rule’s 14calendar-day period for submission of
rebuttal evidence. The Department did
not explicitly state that 30 calendar days
was more appropriate than 14 calendar
days or otherwise explain why it now
considered 30 calendar days an
appropriate timeframe for submitting
rebuttal evidence in a debarment
proceeding. Id. at 6938. The 2010 H–2A
Final Rule noted that it had intended in
the corresponding NPRM to propose
changes to the OFLC debarment
procedures to ensure ‘‘that the
procedures [were] consistent with the
WHD debarment procedures,’’ which, at
the time, allowed for 30 days to appeal.
74 FR 45923, 45963; 75 FR 6938. It also
noted that the opportunity for parties to
provide rebuttal evidence is ‘‘better
suited to the method of OFLC
investigations’’ and parallels OFLC
revocation procedure, without
addressing the now-different timeframes
for submitting rebuttal evidence in a
revocation proceeding (i.e., 14 days) and
in a debarment proceeding (i.e., 30
days). 75 FR 6938. While the
Department continues to believe the
ability to submit rebuttal evidence is
necessary, it does not consider the 30calendar-day timeframe appropriate for
either OFLC or WHD debarment actions.
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The benefits to expediting the
debarment procedures and more quickly
removing violating parties from the
program far outweigh the limited
benefits of providing 30 calendar days
for rebuttal or appeal. Not only does
more quickly removing violating parties
from the program better protect workers,
but it also reduces the time the debarred
parties spend awaiting a final order
regarding their status. In addition,
reducing the period of time better aligns
with the timeframe available to submit
rebuttal evidence under OFLC’s
revocation procedure (i.e., 14 days). As
both revocation and debarment serve
similar purposes—to protect workers—
the Department has determined that it is
appropriate to align the two rebuttal
periods. The increased use of electronic
recordkeeping, as well as the ability to
submit documentation via email, means
that the shortened 14-calendar-day
timeframe to submit rebuttal
documentation should not be overly
burdensome.
Nevertheless, to continue to ensure
due process for parties and to allow
adequate time to establish a record, the
Department proposes permitting parties
to request an extension of time to
submit rebuttal evidence in a new
regulatory provision at § 655.182(f)(2).
The option to request an extension of
time to submit rebuttal evidence would
be available to a party who shows good
and substantial cause necessitating
additional time. The proposal would
require the request to be made in
writing, with detailed information and
supporting documentation, and to be
received by the OFLC Administrator
within 14 calendar days of the date the
Notice of Debarment was issued. If the
OFLC Administrator determines that the
party has established good and
substantial cause, the Administrator
could grant one extension of time to
submit rebuttal evidence. As specified
in proposed paragraph (f)(2)(iii), good
and substantial cause may include, but
is not limited to, health-related
emergencies, catastrophic fire- or
weather-related incidents, or other
similar conditions that are wholly
outside the party’s control and hinder a
party’s ability to respond in a timely
manner. Should the OFLC
Administrator deny the one-time
extension request, such denial is not
appealable.
In addition, for the reasons stated
above, the Department also proposes to
shorten the timeframes to appeal the
OFLC Administrator’s Notice of
Debarment, in lieu of submitting
rebuttal evidence; to appeal the OFLC
Administrator’s final determination,
after review of rebuttal evidence; and for
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all parties to request review by the ARB
from 30 days to 14 calendar days in
§ 655.182(f)(1), (2), and (3) and (f)(5)(i).
The Department’s proposal would not
permit a party to request an extension
of time to appeal the OFLC
Administrator’s Notice of Debarment. A
party need only submit a written request
for review to appeal a debarment
decision to an ALJ; they are not required
to gather or provide additional records
(as they would to submit a rebuttal), or
to draft a full legal brief, and therefore
the request itself should not be
burdensome. Shortening the time to
request review by the ARB to 14
calendar days should also not be
burdensome for the same reasons.
As described fully in the discussion of
section 29 CFR 501.20, the Department
proposes conforming revisions to
WHD’s regulations governing the
timeframe to appeal WHD
determinations involving debarment as
well.
The Department welcomes comments
on this proposal, including specific
examples of how the proposed changes
may affect the regulated community.
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V. Discussion of Proposed Revisions to
29 CFR Part 501
The Department proposes revisions to
the regulations at 29 CFR part 501,
which set forth the responsibilities of
WHD to enforce the legal, contractual,
and regulatory obligations of employers
under the H–2A program. The
Department proposes these amendments
concurrent with and to complement the
changes ETA proposes to its regulations
in 20 CFR part 655, subpart B, governing
the certification of temporary
employment of nonimmigrant workers
employed in temporary or seasonal
agricultural employment. As with the
proposed revisions to ETA’s regulations,
the proposed revisions to 29 CFR part
501 focus on strengthening protections
for agricultural workers and enhancing
the Department’s capabilities to monitor
program compliance and take necessary
enforcement actions against program
violators. The Department invites
comments on all of these proposed
revisions.
A. Section 501.3 Definitions
The Department proposes to add
definitions of the terms key service
provider and labor organization in
§ 501.3(a), to conform to the proposed
addition of these terms to the
definitions in 20 CFR 655.103(b) and for
the reasons set forth in the discussion of
proposed 20 CFR 655.135(h). The
Department also proposes to remove the
definition of the term successor in
interest from § 501.3(a), to conform to
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and for the reasons described in the
discussion of proposed 20 CFR 655.104.
Finally, the Department proposes to add
a new § 501.3(d), defining the term
single employer, to conform to and for
the reasons described in the discussion
of proposed 20 CFR 655.103(e).
B. Section 501.4
Prohibited
Discrimination
The Department proposes revisions to
§ 501.4(a) to conform to proposed
changes to 20 CFR 655.135(h) that
would expand and strengthen the
Department’s existing anti-retaliation
provisions. The reasons for this
proposal are described fully in the
discussion of proposed 20 CFR
655.135(h). The Department does not
propose any revisions to § 501.4(b)
regarding WHD investigations and
enforcement of § 501.4.
C. Section 501.10
Severability
As set forth in the discussion of
proposed 20 CFR 655.190, the
Department proposes a new § 501.10,
that would explain that if any provision
of 29 CFR part 501 is held to be invalid
or unenforceable by its terms, or as
applied to any person or circumstance,
or stayed pending further agency action,
the provision shall be construed so as to
continue to give the maximum effect to
the provision permitted by law, unless
such holding is one of total invalidity or
unenforceability, in which event the
provision or sub-provision shall be
severable from 29 CFR part 501 and
shall not affect the remainder thereof.
The Department seeks comments both
on the substance and scope of this
proposed severability clause and
requests the public’s views on any other
issues related to severability, such as
whether the rule in general includes
provisions amenable to severability;
whether specific parts of the rule could
operate independently; whether the
benefits of the rule would continue to
justify the costs should particular
provisions be severed; or whether
individual provisions are essential to
the entire rule’s workability.
D. Sections 501.20, 501.33, 501.42
Debarment and Revocation
The Department proposes revisions to
WHD’s regulations at §§ 501.20, 501.33,
and 501.42, with respect to debarment,
to maintain consistency with and
implement various proposed changes to
ETA’s debarment regulation at 20 CFR
655.182. These proposed changes are
described briefly here, and described
fully in the section-by-section analysis
of 20 CFR part 655, subpart B.
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1. Successors in Interest
The Department proposes revisions to
existing § 501.20(a) and (b) to conform
to proposed 20 CFR 655.104 and
655.182 regarding the effect of
debarment on successors in interest. As
explained fully in the discussion of
proposed 20 CFR 655.104, any WHD
debarment of an employer, agent, or
attorney applies to any successor in
interest to that debarred entity, and
under this proposed rule, WHD need
not issue a new notice of debarment to
a successor in interest to a debarred
employer, agent, or attorney. However,
as reflected in proposed new paragraph
§ 501.20(j), WHD would be permitted,
but not required, to identify any known
successor(s) in interest in a notice of
debarment issued to an employer, agent,
or attorney.
2. Passport Withholding
The Department proposes a
conforming revision to
§ 501.20(d)(1)(viii) to include within the
definition of a violation, for purposes of
debarment, a violation of the proposed
prohibition on passport withholding at
20 CFR 655.135(o), as described fully in
the discussion of proposed 20 CFR
655.135(o).
3. Timeline To Appeal WHD Debarment
Determinations
For consistency with and
conformance to the Department’s
proposal under 20 CFR 655.182 to
expedite debarment processing, the
Department proposes to shorten the
timeframe to appeal any WHD
determination seeking debarment from
30 calendar days to 14 calendar days as
well. Any determination seeking a
debarment, including for example,
determinations which also include civil
money penalties, would be subject to
the shortened timeframe.
Determinations by the WHD
Administrator that do not include
debarment, but only include, for
example, an assessment of civil money
penalties or the payment of back wages,
would retain a 30-calendar-day
timeframe for appeal.
In shortening the appeal timeframes
for matters involving debarments, the
Department seeks to bolster program
integrity and help protect workers from
further harm. Debarment is a remedy for
a substantial violation of the program
and if a determination has been made
that this is appropriate, then it is also
appropriate to expedite the process by
which a party is ultimately prohibited
from using the program. If the WHD
Administrator has determined in a
particular case that debarment is not
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necessary, then the original timeframe
of 30 calendar days to appeal will apply.
Specifically, under proposed
§ 501.20(e), the debarment would take
effect 14 calendar days from the Notice
of Debarment, unless a request for
review is properly filed within 14
calendar days of the Notice of
Debarment.
Under proposed § 501.33, the
regulatory text in current paragraph (a)
would be redesignated to paragraph
(a)(1) and amended to note that the 30calendar-day timeframe would apply
when seeking review of a WHD
determination, except for those
determinations involving debarment. A
newly added paragraph (a)(2) would
state clearly that any person desiring
review of a WHD determination
involving debarment shall make their
written request no later than 14 calendar
days after the date of the notice referred
to in § 501.32.
Finally, under proposed § 501.42, the
regulatory text in paragraph (a) would
be revised to clarify that a decision of
an ALJ not involving debarment would
still require appeal to the ARB within 30
calendar days, while newly added text
would state that any decision involving
debarment would be required to be
appealed to the ARB within 14 calendar
days. The Department proposes further
conforming edits to these sections.
The Department is also considering
whether the timeframe to appeal all
determinations in this subpart, not only
those involving debarments, should be
shortened from 30 to 14 calendar days.
In particular, the Department is
concerned that different timeframes to
appeal different types of determinations
(i.e., 30 days to appeal a determination
assessing civil money penalties, but not
debarment, versus 14 days to appeal a
determination assessing civil money
penalties and debarment) may result in
confusion and employers missing
appeal deadlines. The Department also
believes that a shortened appeal
timeframe of 14 calendar days may
better ensure that back wages are paid
timely to workers, and that 14 calendar
days may be sufficient to appeal any
determination, not only those
determinations involving debarment.
The Department seeks comment as to
whether the shortened timeframe of 14
calendar days should apply to all
determinations of the WHD
Administrator, not simply those
determinations involving debarment.
E. Section 501.33 Request for Hearing
The Department proposes revisions to
§ 501.33(b), governing the contents of a
request for review of a WHD
determination before the OALJ, to make
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explicit that issues not raised for review
in such requests would be deemed
waived. The Department’s current
regulations make explicit that
administrative exhaustion is required
before a party may seek judicial review,
and that the party requesting a hearing
before the OALJ must ‘‘[s]pecify the
issue or issues stated in the notice of
determination giving rise to such
request’’ and ‘‘[s]tate the specific reason
or reasons why the person requesting
the hearing believes such determination
is in error.’’ 29 CFR 501.33(b)(2) and (3).
Despite these provisions, parties
frequently attempt to raise new issues
on appeal, whether before the OALJ, the
ARB, or a Federal court, that were not
raised in the party’s request for a
hearing. However, under relevant case
law, issue exhaustion requirements are
applicable and appropriate under the
H–2A administrative review procedures.
See, Sun Valley Orchards, 2021 WL
2407468, at *7; Sandra Lee Bart, ARB
No. 2018–0004, slip op. at 6–7 (ARB
Sept. 22, 2020); see also Carr v. Saul,
141 S. Ct. 1352, 1358 (2021) (‘‘Typically,
issue-exhaustion rules are creatures of
statute or regulation’’ but where the
‘‘regulations are silent, . . . courts
decide whether to require issue
exhaustion based on an analogy to the
rule that appellate courts will not
consider arguments not raised before
trial courts.’’) (quotation omitted).
Without explicit regulatory text
codifying that issue exhaustion applies,
courts and the Department may be
required to expend significant resources
considering or defending against issues
that are ultimately deemed to have been
waived. Similarly, parties have asserted
that they lacked notice that issues not
raised in a request for hearing before the
OALJ may be deemed waived. The
Department thus proposes an explicit
issue exhaustion provision that will
better inform parties of the potential
consequences of failing to raise an issue
in requests for review of a WHD
determination (i.e., that issues not
included cannot be raised later in the
ALJ proceedings or on review of any
ALJ decision before the ARB or in
Federal court), as well as better preserve
agency and judicial resources.
Accordingly, the Department
proposes to revise § 501.33(b)(2) to make
clear that any issue not raised in a
party’s request for a hearing before the
OALJ ordinarily will be deemed waived
in any further proceedings. The
proposed language is modeled on
similar provisions in OSHA’s
whistleblower regulations governing the
procedures for administrative review of
OSHA’s findings in those contexts. See,
e.g., 29 CFR 1982.110(a). As OSHA has
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63809
explained, including such a requirement
in the Department’s regulations is
intended to provide clear and timely
notice to all parties that issue
exhaustion may apply, thus alerting the
parties to the need to raise any and all
issues and objections before the agency
to preserve them for further review. See,
e.g., 80 FR 69115, 69128 (Nov. 9, 2015).
The Department welcomes comments
on this proposal.
VI. Administrative Information
A. Executive Order 12866: Regulatory
Planning and Review; Executive Order
14094: Modernizing Regulatory Review;
and Executive Order 13563: Improving
Regulation and Regulatory Review
Under Executive Order 12866, OMB’s
Office of Information and Regulatory
Affairs (OIRA) determines whether a
regulatory action is significant and,
therefore, subject to the requirements of
the Executive order and review by OMB.
58 FR 51735 (Oct. 4, 1993). Section 3(f)
of Executive Order 12866, as amended
by Executive Order 14094, defines a
‘‘significant regulatory action’’ as an
action that is likely to result in a rule
that: (1) has an annual effect on the
economy of $200 million or more, or
adversely affects in a material way a
sector of the economy, productivity,
competition, jobs, the environment,
public health or safety, or State, local,
territorial, or tribal governments or
communities; (2) creates serious
inconsistency or otherwise interferes
with an action taken or planned by
another agency; (3) materially alters the
budgetary impacts of entitlement grants,
user fees, or loan programs, or the rights
and obligations of recipients thereof; or
(4) raises novel legal or policy issues
arising out of legal mandates, the
President’s priorities, or the principles
set forth in the Executive order. 88 FR
21879 (Apr. 11, 2023). This proposed
rule is a significant regulatory action
under section 3(f)(4) of Executive Order
12866, as amended by Executive Order
14094.
Executive Order 13563 directs
agencies to propose or adopt a
regulation only upon a reasoned
determination that its benefits justify its
costs; the regulation is tailored to
impose the least burden on society,
consistent with achieving the regulatory
objectives; and in choosing among
alternative regulatory approaches, the
agency has selected those approaches
that maximize net benefits. 76 FR 3821
(Jan. 21, 2011). Executive Order 13563
recognizes that some benefits are
difficult to quantify and provides that,
where appropriate and permitted by
law, agencies may consider and discuss
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qualitatively values that are difficult or
impossible to quantify, including
equity, human dignity, fairness, and
distributive impacts. Id.
Outline of the Analysis
Section VI.A.1 describes the need for
the proposed rule, and section VI.A.2
describes the process used to estimate
the costs of the rule and the general
inputs used, such as wages and number
of affected entities. Section VI.A.3
explains how the provisions of the
proposed rule would result in
quantified costs and transfer payments,
and presents the calculations the
Department used to estimate them. In
addition, section VI.A.3 describes the
unquantified transfer payments and
unquantified cost savings of the
proposed rule, and a description of
qualitative benefits. Section VI.A.4
summarizes the estimated first-year and
10-year total and annualized costs and
transfer payments of the proposed rule.
Finally, section VI.A.5 describes the
regulatory alternatives that were
considered during the development of
the proposed rule.
Summary of the Analysis
The Department estimates that the
proposed rule would result in costs and
transfer payments. As shown in Exhibit
1, the proposed rule is expected to have
an annualized cost of $2.03 million and
a total 10-year quantifiable cost of
$14.24 million, each at a discount rate
of 7 percent.90 The proposed rule is
estimated to result in annual transfer
payments from H–2A employers to H–
2A employees of $12.81 million and
total 10-year transfer payments of
$89.95 million at a discount rate of 7
percent.91
EXHIBIT 1—ESTIMATED MONETIZED COSTS AND TRANSFER PAYMENTS OF THE PROPOSED RULE
[2021 $millions]
Costs
ddrumheller on DSK120RN23PROD with PROPOSALS2
Undiscounted 10-Year Total ........................................................................................................................
10-Year Total with a Discount Rate of 3% ..................................................................................................
10-Year Total with a Discount Rate of 7% ..................................................................................................
10-Year Average ..........................................................................................................................................
Annualized at a Discount Rate of 3% .........................................................................................................
Annualized with at a Discount Rate of 7% ..................................................................................................
The total cost of the proposed rule is
associated with rule familiarization,
worker contact information, and
application additions. Transfer
payments are the results of the
elimination of the 2-week delay in
effectiveness of the AEWR after
publication. See the costs and transfer
payments subsections of section VI.A.3
(Subject-by-Subject Analysis) below for
a detailed explanation.
The Department was unable to
quantify some costs, transfer payments,
cost savings, and benefits of the
proposed rule. Unquantified transfer
payments include compensation to
workers under proposed
§ 655.175(b)(2)(ii) in cases where the
start date is delayed without sufficient
notice and clarifying that piece rate
should be included in the prevailing
wage determination. Unquantified costsavings include the Department’s ability
to deny labor certification applications
filed by or on behalf of successors in
interest to debarred employers, agents,
or attorneys. Unquantified benefits
include better protection from
inappropriate termination, protection
for worker advocacy, reduction in risk
of injury during employer-sponsored
transportation, reduction in improper
holding of passports or other
immigration documents and enhanced
integrity and enforcement. The
Department describes them qualitatively
in section VI.A.3 (Subject-by-Subject
Analysis). The Department seeks public
comments and inputs on all aspects of
the economic analysis presented here.
In addition, the Department requests
public inputs about this rule’s impact
on labor costs and production of
agricultural products.
90 The proposed rule would have an annualized
cost of $1.98 million and a total 10-year cost of
$16.92 million at a discount rate of 3 percent in
2021 dollars.
91 The proposed rule would have annualized
transfer payments from H–2A employers to H–2A
employees of $12.57 million and a total 10-year
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1. Need for Regulation
The Department proposes provisions
in this NPRM that will strengthen
protections for agricultural workers and
enhance the Department’s enforcement
capabilities against fraud and program
violations. The Department has
determined the proposed revisions will
help prevent exploitation and abuse of
agricultural workers and ensure that
unscrupulous employers do not gain
from their violations or contribute to
economic and workforce instability by
circumventing the law. It is the policy
of the Department to maintain robust
protections for workers and vigorously
enforce all laws within its jurisdiction
governing the administration and
enforcement of nonimmigrant visa
programs. The Department has
determined through program
experience, recent litigation, challenges
in enforcement, comments on prior
rulemaking, and reports from various
workers’ rights advocacy organizations
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$19.51
16.92
14.24
1.95
1.98
2.03
Transfer payments
$123.83
107.19
89.95
12.38
12.57
12.81
that the proposals in this NPRM are
necessary to strengthen protections for
agricultural workers, ensure that
employers, agents, attorneys, and labor
recruiters comply with the law, and
enhance the Department’s ability to
monitor compliance and investigate and
pursue remedies from program
violators.
The proposed rule aims to address
some of the comments that were beyond
the scope of the 2022 H–2A Final Rule
and concerns expressed by workers’
rights advocacy groups, labor unions,
and organizations that combat human
trafficking. It also seeks to respond to
recent court decisions and program
experience indicating a need to enhance
the Department’s ability to enforce
regulations related to foreign labor
recruitment, and to improve
accountability for successors-in-interest
and employers who use various
methods to attempt to evade the law and
regulatory requirements, and to enhance
worker protections for a vulnerable
workforce, as explained further in the
section-by-section analysis above.
The Department can use this
rulemaking to better protect the rights
and liberties, health and safety, and
wages and working conditions of
agricultural workers and best safeguard
the integrity of the H–2A program,
while continuing to ensure that
transfer payments of $107.19 million at a discount
rate of 3 percent in 2021 dollars.
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responsible employers have access to
willing and available agricultural
workers and are not unfairly
disadvantaged by employers that exploit
workers and attempt to evade the law.
2. Analysis Considerations
The Department estimated the costs
and transfer payments of the proposed
rule relative to the existing baseline (i.e.,
the current practices for complying, at a
minimum, with the H–2A program as
currently codified at 20 CFR part 655,
subpart B, and 29 CFR part 501).
In accordance with the regulatory
analysis guidance articulated in OMB’s
Circular A–4 and consistent with the
Department’s practices in previous
rulemakings, this regulatory analysis
focuses on the likely consequences of
the proposed rule (i.e., costs, benefits,
and transfer payments that accrue to
entities affected). The analysis covers 10
years (from 2024 through 2033) to
ensure it captures major costs, benefits,
and transfer payments that accrue over
time. The Department expresses all
quantifiable impacts in 2021 dollars and
uses discount rates of 3 and 7 percent,
pursuant to Circular A–4.
Exhibit 2 presents the number of
affected entities that are expected to be
impacted by the proposed rule.92 The
average number of affected entities is
calculated using OFLC certification data
from 2016 through 2021. The
Department provides this estimate and
uses it to estimate the costs of the
proposed rule.
EXHIBIT 2—NUMBER OF UNIQUE
EMPLOYERS BY TYPE
Fiscal year (FY)
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2016
2017
2018
2019
2020
2021
Number
..............................................
..............................................
..............................................
..............................................
..............................................
..............................................
6,713
7,187
7,902
8,391
7,785
9,442
Average .................................
7,903
92 Performance Data, U.S. Dep’t of Lab., https://
www.dol.gov/agencies/eta/foreign-labor/
performance.
93 Comparing BLS 2030 projections for combined
agricultural workers (SOC 45–2000) with a 17.9
percent growth rate of H–2A workers yields
estimated H–2A workers that are about 127 percent
greater than BLS 2030 projections. The projected
workers for the agricultural sector were obtained
from BLS’s Occupational Projections and Worker
Characteristics, which may be accessed at https://
www.bls.gov/emp/tables/occupational-projectionsand-characteristics.htm.
94 The Department estimated models with
different lags for autoregressive and moving
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To estimate the growth rate for unique
employers,
the Department uses FY
The Department estimated growth
2016–FY 2021 data on unique
rates for certified H–2A workers based
employers. The use of FY 2016 as the
on FY 2012–2021 H–2A program data,
first year is chosen due to data
presented in Exhibit 3.
availability on calculated unique
employers. The Department calculates a
EXHIBIT 3—HISTORICAL H–2A
compound annual growth rate based on
PROGRAM DATA
FY 2016 unique employers (6,713) and
the FY 2021 unique employers (9,442).
Workers
FY
The result is an estimate of 7.1 percent
certified
annual growth rate.95
2012 ............................................
85,248
The estimated annual growth rates for
2013 ............................................
98,814
unique
employers (7.1 percent) and
2014 ............................................
116,689
2015 ............................................
139,725 workers (6.3 percent) were applied to
2016 ............................................
165,741 the estimated costs and transfers of the
2017 ............................................
199,924 proposed rule to forecast participation
2018 ............................................
242,853 in the H–2A program.96
a. Growth Rate
2019 ............................................
2020 ............................................
2021 ............................................
258,446
275,430
317,619
b. Compensation Rates
The geometric growth rate for
certified H–2A workers using the
program data in Exhibit 3 is calculated
as 17.9 percent. This growth rate,
applied to the analysis timeframe of
2024 to 2033, would result in more H–
2A certified workers than projected
employment of workers in the relevant
H–2A SOC codes by BLS.93 Therefore,
to estimate realistic growth rates for the
analysis, the Department applied an
autoregressive integrated moving
average (ARIMA) model to the FY 2012–
2021 H–2A program data to forecast
workers and unique employers, and
estimated geometric growth rates based
on the forecasted data. The Department
conducted multiple ARIMA models on
each set of data and used common
goodness of fit measures to determine
how well each ARIMA model fit the
data.94 Multiple models yielded
indistinctive measures of goodness of
fit. Therefore, each model was used to
project workers and unique employers
through 2033. Then, a geometric growth
rate was calculated using the forecasted
data from each model and an average
was taken across each model. This
resulted in an estimated growth rate of
6.3 percent for H–2A certified workers.
In section VI.A.3 (Subject-by-Subject
Analysis), the Department presents the
costs, including labor, associated with
the implementation of the provisions of
the proposed rule. Exhibit 4 presents the
hourly compensation rates for the
occupational categories expected to
experience a change in the number of
hours necessary to comply with the
proposed rule. The Department used the
mean hourly wage rate for private sector
human resources (HR) specialists (SOC
code 13–1071).97 Wage rates are
adjusted to reflect total compensation,
which includes nonwage factors such as
overhead and fringe benefits (e.g., health
and retirement benefits). We use an
overhead rate of 17 percent 98 and a
fringe benefits rate based on the ratio of
average total compensation to average
wages and salaries in 2021. For the
private sector employees, we use a
fringe benefits rate of 42 percent.99 For
State and local employees, we use a
fringe benefits rate of 62 percent.100 We
then multiply the loaded wage factor by
the wage rate to calculate an hourly
compensation rate. The Department
used the hourly compensation rates
presented in Exhibit 4 throughout this
analysis to estimate the labor costs for
each provision.
averages, and orders of integration: ARIMA(0,2,0);
(0,2,1); (0,2,2); (1,2,1); (1,2,2); (2,2,2). For each
model we used the Akaike Information Criteria
goodness of fit measure.
95 Calculation: 7.1% = (9,442 ÷ 6,713)(1 ÷ 5)¥1.
96 Final forecasted estimates of H–2A employer
participation: 8,464 in 2023, 9,065 in 2024, 9,708
in 2025, 10,398 in 2026, 11,136 in 2027, 11,927 in
2028, 12,774 in 2029, 13,681 in 2030, 14,652 in
2031, and 15,692 in 2032.
97 May 2021 National Occupational Employment
and Wage Estimates: 13–1071—Human Resources
Specialists, Bureau of Lab. Stats., https://
www.bls.gov/oes/current/oes131071.htm.
98 Cody Rice, Wage Rates for Economic Analyses
of the Toxics Release Inventory Program, U.S. Env’t
Prot. Agency (June 10, 2002), https://
www.regulations.gov/document?D=EPA-HQ-OPPT2014-0650-0005.
99 Employer Costs for Employee Compensation,
Bureau of Lab. Stats. (2021), https://www.bls.gov/
news.release/ecec.toc.htm. Ratio of total
compensation to wages and salaries for all private
industry workers.
100 Employer Costs for Employee Compensation,
Bureau of Lab. Stats. (2022), https://www.bls.gov/
news.release/ecec.toc.htm. Ratio of total
compensation to wages and salaries for all State and
local government workers.
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EXHIBIT 4—COMPENSATION RATES
[2021 dollars]
Position
Grade level
Base hourly
wage rate
Loaded wage factor
Overhead costs
Hourly
compensation rate
(a)
(b)
(c)
d=a+b+c
Private Sector Employees
HR Specialist .................
N/A .................................
$34.00
$14.28 ($34.00 × 0.42)
$5.78 ($34.00 × 0.17)
$54.06
$4.95 ($29.09 × 0.17)
$52.05
State Government Employees 101
Educational, guidance,
and career counselors
and advisors.
N/A .................................
$18.01 ($29.09 × 0.619)
3. Subject-by-Subject Analysis
The Department’s analysis below
covers the estimated costs, transfer
payments, and qualitative benefits of the
proposed rule. In accordance with
Circular A–4, the Department considers
transfer payments as payments from one
group to another that do not affect total
resources available to society. This
proposed rule includes the cost of rule
familiarization, application additions,
and worker contact information, and
transfer payments associated with the
elimination of the 2-week delayed
effective date of the AEWR.
of unique H–2A employers (8,464) was
multiplied by the estimated amount of
time required to review the rule (1
hour). The Department requests public
comments and inputs regarding this
estimate. This number was then
multiplied by the hourly compensation
rate of HR specialists ($54.06 per hour).
This calculation results in a one-time
undiscounted cost of $457,570 in the
first year after the proposed rule takes
effect. The annualized cost over the 10year period is $53,641 and $65,148 at
discount rates of 3 and 7 percent,
respectively.
a. Costs
The following section describes the
quantified and unquantified costs of the
proposed rule.
B. Application Additions
Once the proposed rule takes effect,
H–2A employers will need to fill out
additional information on the H–2A
Application (such as individual owners’
names, home addresses, phone, date of
birth, identifying information for all
managers/labor supervisors; DBA
information; identifying info for
recruiters, including those the petitioner
directly hires and all employees,
contractors, agents, including the name
and information for direct contacts to
the workers; address for worker
housing; and names/contact information
of recruiters or hiring agents), which
will impose a yearly cost as the
additional time is required for every
application for certification.
To estimate the yearly cost of the
application additions, the Department
applied the growth-rate of H–2A
employers (7.1 percent) to the current
number of unique certified H–2A
employers (7,903) to determine the
number of unique H–2A employers in
the first year (8,464). The number of
unique certified H–2A employers in the
first year is then multiplied by the
growth rate again to determine the
number of unique certified H–2A
employers in the second year. This
process is repeated each year to
determine the total number of unique
certified H–2A employers every year
i. Quantified Costs
The following sections describes the
quantified costs of rule familiarization,
application addition, and worker
contact information provisions of the
proposed rule.
ddrumheller on DSK120RN23PROD with PROPOSALS2
29.09
A. Rule Familiarization
When the proposed rule takes effect,
H–2A employers will need to
familiarize themselves with the new
regulations. Consequently, this will
impose a one-time cost in the first year.
New employers in each subsequent year
would need to familiarize themselves
with current regulations regardless of
this proposed rule.
To estimate the first-year cost of rule
familiarization, the Department applied
the growth rate of H–2A employers (7.1
percent) to the number of unique H–2A
employers (7,903) to determine the
number of unique H–2A applicants
impacted in the first year. The number
101 As part of the discontinuation of services
provision of the proposed rule, there will be
changes to the number of field checks that will
occur. The Department assumes that a single
educational, guidance, and career counselor and
advisor from the SWA will conduct the site visits.
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during the study period. Since it is
assumed that only a single HR specialist
per employer will incur the additional
time investment, the estimated total
yearly cost can be estimated by
multiplying the total number of unique
certified H–2A employers (8,464) by the
HR specialist hourly wage rate ($34.00
per hour), the loaded wage factor and
the overhead rate for the private sector
(1.59), and the estimated additional time
taken to gather and enter the
information on a yearly basis (2 hours
on average). The Department requests
public comments and inputs regarding
this estimate. Lastly, this value is
multiplied by the growth rate of unique
employers (7.1 percent) to the nth
power, with n being equal to the period
year. The result is $915,140 in the first
year, an undiscounted average cost over
a 10-year period of $1,270,386, and
discounted annualized costs of
$1,286,884, and $1,308,447 at rates of 3
and 7 percent respectively.
C. Worker Contact Information
This provision of the proposed rule
would require employers to provide
worker contact information (a list of all
H–2A workers and workers in
corresponding employment employed at
the place(s) of employment within the
employer’s application) to a requesting
labor organization. Employers must
make this disclosure upon the request of
a labor organization, and must update
the disclosure, again upon the request of
the labor organization, up to one time
per work contract period. The
Department assumes that on average
each employer will need to respond to
requests from one labor organization
and that responding to the initial
request and one request for an updated
list will take 1 hour each year. The
Department requests public comments
and inputs regarding this estimate.
To determine the total additional
costs of this provision, the Department
used the average number of unique
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certified H–2A employers (7,903) and
applied the unique employer growth
rate (7.1 percent) and assumed that the
number of labor organizations that
would request employee lists from each
employer is one. The Department then
multiplied the number of requests by
the estimated time to respond to each
request per year (1 hour). This number
was then multiplied by the hourly
compensation rate of an HR specialist
($34.00) and the loaded wage factor and
the overhead rate for the private sector
(1.59) to obtain the total cost of the
worker contact information provision.
This results in the estimated total cost
for this provision in the first year of
$457,570. This process is repeated each
year resulting in an undiscounted
average annual cost of $635,193 and
discounted annualized costs of
$643,442, and $654,223 at discount
rates of 3 and 7 percent respectively.
The Department seeks public comments
and inputs on its assumptions on the
number of labor organizations that
would request employee lists from each
H–2A employer and the estimated time
to respond per year.
ii. Unquantified Costs
ddrumheller on DSK120RN23PROD with PROPOSALS2
A. Transportation: Seat Belts for Drivers
and Passengers
As part of the proposed rule,
employers would have to ensure seat
belts are provided for drivers and
passengers in transportation vehicles,
used to transport H–2A and
corresponding workers, that were
required by U.S. Department of
Transportation regulations to be
manufactured with seat belts. This
could impose both a one time and
annual cost to those employers who had
previously, lawfully modified or
removed seat belts in such vehicles and
would be required to reinstall or retrofit
seat belts to comply with the proposed
rule through the cost of installing the
necessary seat belts and the decreased
fuel efficiency of transportation vehicles
caused by the additional weight of the
seat belts. The Department does not
have data to estimate the number of seat
belts to be retrofitted, or in the
alternative vehicles that would need to
be purchased, to provide seat belts for
drivers and passengers in the above
scenario. The Department seeks public
comment on data and information that
would support estimating this cost,
including whether vehicle owners or
users may lawfully modify or remove a
seatbelt where the vehicle is required by
DOT regulations to be manufactured
with that seatbelt.
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b. Unquantified Cost Savings
The following section describes the
unquantified cost savings of the
proposed rule.
i. Successors in Interest
Once the proposed rule takes effect,
the Department would be able to deny
labor certification applications filed by
or on behalf of successors in interest to
debarred employers, agents, or
attorneys. Currently, the Department
must first issue a separate notice of
debarment to the successor in interest,
and go through a lengthy administrative
hearing and review process, before it
may deny an application filed by or on
behalf of a successor. The proposed rule
would therefore result in cost savings
from not having to go through the
process to debar successors in interest
but instead apply the predecessor’s
debarment to the successor. The
Department lacks detailed data on the
length of time necessary to enter a final
order of debarment against successors
under the current regulations, and the
annual number of successor debarments
and as a result is unable to accurately
quantify this cost savings. The
Department seeks public comment on
data that would support estimating this
cost savings.
c. Transfer Payments
The following section describes the
transfer payments of the proposed rule.
i. Quantified Transfer Payments
This section discusses the
quantifiable transfer payments related to
revisions to the elimination of the 2week effective date delay for AEWR
publication. The Department considers
transfers as payments from one group to
another that do not affect total resources
available to society. The transfers
measured in this analysis are wage
transfers from U.S. employers to H–2A
workers. H–2A workers are migrant
workers who will spend some of their
earnings on consumption goods in the
U.S. economy but likely send a large
fraction of their earnings to their home
countries.102 Therefore, the Department
considers the wage transfers in the
analysis as transfer payments within the
global economic system.
102 Revisions to the elimination of the 2-week
effective date delay for AEWR publication will also
result in wage transfers from U.S. employers to
workers in corresponding employment but the
Department is not able to quantify this transfer due
to the lack of data for workers in corresponding
employment and their wages.
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63813
A. Elimination of the 2-Week Effective
Date Delay for AEWR Publication
Currently, the Department publishes
the AEWR as soon as data is available,
typically in the middle of December.
There is then a 2-week delay until the
AEWR is effective, typically January 1st
of the following year. Once the
proposed rule takes effect, the 2-week
delay until the AEWR is effective will
be removed and the AEWR will be
effective immediately. Therefore,
employers that employ workers during
the 2-week period from mid-December
to early January will see a transfer to
employees due to the elimination of the
2-week delay of wage increases from the
AEWR publication.
To estimate the transfer, the
Department first uses FY 2020 and FY
2021 H–2A certification data to
calculate the weighted average increase
in AEWR from one year to the next.103
The Department weights the average by
the number of workers in each State
with employment between December
14th and the end of the year to account
for regional differences in employment
during December. The result is an
average increase in the AEWR by $1.09.
The Department then calculates the
average number of days worked between
December 14 and the end of the year
(11.87) using the FY 2020 and FY 2021
H–2A certification data. Finally, the
Department estimates the average
annual number of workers with work
during this period using the H–2A
certification data (89,208).104
The Department determines the total
amount of the transfers by multiplying
the 2-year weighted AEWR difference
for end-of-year employment (1.09), the
2-year average number of days worked
between December 14 and the end of
year (11.87), the number of work hours
in a day (8), and the number of H–2A
workers during this period (89,208). To
determine the transfers for every year in
the 10-year period, the total number of
H–2A workers during the period is
multiplied by the growth rate of H–2A
workers (6.3 percent). The same process
is repeated for every year in the period.
The total undiscounted average annual
transfers associated with this provision
is $12,382,839 and the discounted
annualized transfers are $12,566,020,
103 H–2A disclosure data may be accessed at
https://www.dol.gov/agencies/eta/foreign-labor/
performance.
104 The Department uses the 6.3 percent growth
rate of H–2A workers (6.3) percent to produce final
forecasted estimates of H–2A workers: 89,208 in
2023, 94,837 in 2024, 100,821 in 2025, 107,183 in
2026, 121,136 in 2027, 128,780 in 2028, 136,906 in
2029, 145,545 in 2030, 14,652 in 2031, and 154,729
in 2032.
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and $12,806,284 at discount rates of 3
and 7 percent respectively.
ii. Unquantified Transfer Payments
This section discusses the
unquantifiable transfer payments related
to the reverse of the 14-day grace period
to start dates, and piece rates.
ddrumheller on DSK120RN23PROD with PROPOSALS2
A. Reverse of the 14-Day Grace Period
for Start Dates
Currently, if an employer fails to
contact the SWA of a start date change
at least 10 days ahead, it must offer
work hours and pay wages to each
farmworker who followed the procedure
to contact the SWA for updated start
date information for the first week. If the
employer requests a start date delay
after workers have departed for the
place of employment, the employer
must provide housing and subsistence.
After the proposed rule takes effect,
employers that do not notify both the
SWA and the worker at least 10 days
before the anticipated start date, would
be required to pay workers the hourly
rate for the hours listed on the job order
for each day work is delayed up to 2
weeks resulting in a transfer from
employers to employees. The
Department is unable to quantify this
transfer because it lacks detailed data on
the prevalence of job delays, the number
of employees impacted by these delays,
and the number of hours impacted by
the delays on average, or the number of
hours employers must spend contacting
employees and as a result is unable to
accurately quantify this transfer. The
Department seeks public comment on
data that would support estimating this
transfer payment.
B. Piece Rates
This proposed rule clarifies language
within 20 CFR 655.120(a) and 655.122(l)
to make clear that the employer is
required to advertise and pay the
highest of the AEWR, prevailing hourly
wage or piece rate, CBA rate, or Federal
or State minimum wage, or any other
wage rate the employer intends to pay.
The Department is unable to quantify
this transfer because it lacks data on the
frequency of instances when employers
will have to pay higher wages as a result
of including and considering applicable
piece rates in job offers. The Department
seeks public comment on data that
would support estimating this transfer
payment.
d. Unquantified Benefits
i. Termination for Cause
This rule proposes that workers
would only be terminated for cause for
a failure to meet productivity standards
or failure to comply with employer
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policies and procedures, and only if the
termination was justified and
reasonable. The designation of a
termination as being for cause strips
workers of essential rights to which they
would otherwise be entitled—
specifically the three-fourths guarantee,
payment for outbound transportation,
and, if a U.S. worker, the right to be
contacted for re-hire in the following
season—and therefore it is essential that
workers not be deprived of these rights
using inconsistent or unfair procedures.
The proposed rule would require
fairness in disciplinary and termination
proceedings if the termination were to
be designated as being for cause, which
would prevent workers from being
unjustly stripped of certain rights under
the H–2A program. The Department
lacks data on the numbers of
terminations for cause each year and
whether those terminations were
justified and reasonable, and the
number of hours required by employers
to document termination proceedings as
defined by this proposed rule.
ii. Protections for Worker Advocacy and
Self-Organization
The Department’s proposal would
provide stronger protections for workers
protected by the H–2A program to
advocate for better working conditions
on behalf of themselves and their
coworkers and would prevent
employers from suppressing this
activity. These protections would help
prevent adverse effect on the working
conditions of similarly employed
agricultural workers in the United States
and would increase the likelihood of
worker advocacy and organizing while
protecting those workers from
intimidation and retaliation by
employers. There are additional benefits
for workers and employers. Wages for
nonunion workers are higher in
industries where a larger share of
workers are union members.105 Unions
also help close the gender pay gap and
ensure worker advocacy protection and
equitable pay for women because
collectively bargained wages and pay
scales are transparent and apply equally
to workers in the same job.106 In sum,
protection for worker advocacy and selforganization provides unquantifiable
benefits to workers under the H–2A
program.
105 BLS News Release, Union Members—2022.
Bureau of Lab. Stats., https://www.bls.gov/
news.release/pdf/union2.pdf.
106 Wendy Chun-Hoon, U.S. Dep’t of Lab. Blog:
Want Equal Pay? Get a Union, https://blog.dol.gov/
2022/02/15/want-equal-pay-get-a-union?_
ga=2.66102894.1387872399.1678980555949551915.1678980555.
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Unions also complement the
Department’s enforcement efforts in
preventing wage-related violations and
in ensuring workplace safety and health.
Unions play a central role in curbing
wage-related violations by negotiating
contractual guarantees of workers’
wages and a process for enforcing these
guarantees. Unions also encourage State
and local legislation to protect wages 107
and help low-wage, vulnerable workers
understand their rights and report
violations. Additionally, a recent study
of NLRB and OSHA data shows that
union certification has positive effects
on the rate of OSHA safety and health
inspections, the share of inspections
carried out in the presence of a union
representative, violations cited, and
penalties assessed.108
Although the Department lacks data
on how to quantify the benefits of such
increased worker protections, the
proposed regulations should increase
workers’ dignity and safety and should
improve the working conditions for all
agricultural workers employed by H–2A
employers.
iii. Transportation: Seat Belts for Drivers
and Passengers
Once the proposed rule takes effect,
employer-provided transportation
would be required to have seat belts
available for all workers transported, if
those vehicles were required by DOT
regulations to be manufactured with
seat belts. Seat belt use reduces the
severity of crash-related injuries and
deaths. The Department lacks data on
the baseline number of crashes, whether
those vehicles involved in crashes were
equipped with seat belts and the
occupants were using seat belts and
subsequent injuries or fatalities
involving vehicles transporting H–2A
workers and therefore is not able to
estimate the benefit from reduced
fatalities or injuries. The benefit from
reducing even a single fatality or serious
injuries is significant. The value of a
statistical life (VSL) that would measure
the benefit of avoiding a fatality is
estimated to be $11.8 million.109 Recent
107 Marc Doussard & Ahmad Gamal, The Rise of
Wage Theft Laws: Can Community—Labor
Coalitions Win Victories in State Houses?, 52 Urb.
Aff. Rev. 780–807 (2016), https://doi.org/10.1177/
1078087415608008.
108 Aaron Sojourner & Jooyoung Yang, Effects of
Unionization on Workplace-Safety Enforcement:
Regression-Discontinuity Evidence, Inst. of Lab.
Econ., IZA Discussion Papers 9610 (2015), https://
ideas.repec.org/p/iza/izadps/dp9610.html.
109 The VSL is used by DOT to value fatalities
associated with vehicle crashes. The VSL is based
upon the base year’s VSL adjusted for the annual
change in the Consumer Price Index. Dep’t of
Transp., Departmental Guidance on Valuation of a
Statistical Life in Economic Analysis, https://
www.transportation.gov/office-policy/
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NHTSA reports suggest avoiding injury
crashes can be highly beneficial, with
estimates that avoiding a critical injury
crash is worth $3.8 million (32 percent
of a fatality) and avoiding minor injuries
is worth $63,000 (0.5 percent of a
fatality), respectively.110
iv. Protection Against Passport and
Other Immigration Document
Withholding
To better protect this vulnerable
workforce from potential labor
trafficking, the Department proposes to
flatly prohibit an employer, including
through its agents or attorneys, from
taking or withholding of a worker’s
passport, visa, or other immigration or
identification documents against the
worker’s wishes, independent of any
other requirements under other Federal,
State, or local laws, in a new provision
at 20 CFR 655.135(o). This proposal
would help ensure that H–2A workers
are less likely to be subject to labor
exploitation and thus it safeguards the
health, safety, and dignity of those
workers and also prevents the
depression of working conditions for the
local agricultural workforce. The
Department seeks comments on how it
can quantify these benefits.
v. Enhanced Integrity and Enforcement
Capabilities
The Department proposes reduced
time frames to submit appeal requests
for debarment matters and a reduced
timeframe to submit rebuttal evidence to
OFLC. This would lead to faster final
agency adjudications and thereby better
protect and uphold program integrity
and agricultural workers by more
efficiently and effectively preventing H–
2A program violators from accessing the
program. The Department seeks
comments on how it can quantify these
benefits.
4. Summary of the Analysis
Exhibit 5 summarizes the estimated
total costs and transfer payments of the
proposed rule over the 10-year analysis
period. The Department estimates the
annualized costs of the proposed rule at
$2.21 million and the annualized
transfer payments (from H–2A
employers to employees) at $12.81
million, each at a discount rate of 7
percent. Unquantified transfer payments
include reverse of the 14-day grace
period for start dates and clarifying that
piece rate should be included in the
prevailing wage determination.
Unquantified cost-savings include the
Department’s ability to deny labor
certification applications filed by or on
behalf of successors in interest to
debarred employers, agents, or
attorneys. Unquantified benefits include
better protection from inappropriate
termination, protection for worker
advocacy, reduction in risk of injury
during employer sponsored
transportation, reduction in improper
holding of passports or immigration
documents, and enhanced integrity and
enforcement. The Department requests
public comments and inputs on this
rule’s potential distributional impacts
and ripple effects in the economy.
EXHIBIT 5—ESTIMATED MONETIZED COSTS AND TRANSFER PAYMENTS OF THE PROPOSED RULE
[2021 $millions]
Year
Costs
2024 .............................................................................................................................................................
2025 .............................................................................................................................................................
2026 .............................................................................................................................................................
2027 .............................................................................................................................................................
2028 .............................................................................................................................................................
2029 .............................................................................................................................................................
2030 .............................................................................................................................................................
2031 .............................................................................................................................................................
2032 .............................................................................................................................................................
2033 .............................................................................................................................................................
Undiscounted 10-Year Total ........................................................................................................................
10-Year Total with a Discount Rate of 3% ..........................................................................................
10-Year Total with a Discount Rate of 7% ..........................................................................................
10-Year Average ..........................................................................................................................................
Annualized with a Discount Rate of 3% ...............................................................................................
Annualized with a Discount Rate of 7% ...............................................................................................
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5. Regulatory Alternatives
The Department considered a
regulatory alternative to this proposed
rule’s proposal to make updated AEWRs
effective on the date of publication in
the Federal Register. Under the
alternative proposal, AEWRs would
become effective 7 calendar days after
publication in the Federal Register.
This proposal would have been a
compromise between the immediate
effective date proposed in this rule and
the current effective date, which can be
as many as 14 calendar days after the
transportation-policy/revised-departmentalguidance-on-valuation-of-a-statistical-life-ineconomic-analysis.
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$1.83
1.4787
1.57
1.69
1.81
1.93
2.07
2.22
2.38
2.54
19.51
16.92
14.24
1.95
1.98
2.03
Transfer payments
$9.26
9.84
10.46
11.12
11.83
12.57
13.37
14.21
15.11
16.06
123.83
107.19
89.95
12.38
12.57
12.81
Department publishes the updated
AEWRs in the Federal Register. The
benefit of the alternative proposal is that
it would continue to provide employers
a short window of time to adjust payroll
or recordkeeping systems or make any
other adjustments that may be necessary
after the Department’s announcement of
update AEWRs, while providing a
shorter adjustment window than under
the current rule. However, the
Department determined the
disadvantages of a 7-calendar-day
implementation period for updated
AEWRs outweighed any potential
benefits. Although this alternative
would require employers to begin
paying agricultural workers at least the
newly required higher wage within a
calendar week of the date the updated
AEWRs are published in the Federal
Register, it would not ensure that
workers are paid at least the wage rate
determined to prevent adverse effect for
all hours worked. Further, unlike the
possible 14-day period in the current
rule, the 7-calendar-day period would
not correspond with a typical 2-week
110 Based on MAIS4 and MAIS1 injury per crash
costs estimated by NHTSA in Table 1–9. Summary
of Comprehensive Unit Costs, The Economic and
Societal Impact of Motor Vehicle Crashes, 2019
(Revised), Nat’l Highway Traffic Safety Admin.
(2023), https://crashstats.nhtsa.dot.gov/Api/Public/
ViewPublication/813403.
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pay period; potentially creating more
logistical challenges than it obviates. As
the Department has explained in prior
rulemaking, the duty to pay an updated
AEWR during the employment period if
it is higher than other required wage
sources is not a new employer
obligation. The Department recognizes
that AEWR adjustments may alter
employer budgets, but the Department
believes the difference in the impact 111
on budget and payroll planning between
the proposed immediate effective date
and a 7-day period after publication is
outweighed by the benefits to
agricultural workers noted above.
Moreover, as the Department noted in
the 2010 H–2A Final Rule, employers
are aware of the annual AEWR
adjustment and the Department
encourages employers to continue to
include the annual adjustment in their
contingency planning to allow
flexibility to account for any possible
wage adjustments.112
The Department also considered two
regulatory alternatives to the employee
contact information proposal, with
respect to the proposed requirement that
employers provide a labor organization
with an updated employee contact list
once per season, if requested. First, the
Department considered a more stringent
alternative, requiring the employer to
provide the requesting labor
organization with an updated list, if
requested, up to once per month. This
alternative would best ensure that the
labor organization has accurate contact
information for those workers actually
employed by the employer throughout
the entire job order period, and
therefore would best ensure that
workers who may have an interest in or
against organizing have access to
relevant information. However, this
alternative would impose significantly
more burden on the employer to
comply. Second, the Department
considered a less stringent alternative,
that would not require the employer to
provide any updates to the requesting
labor organization; in other words, the
requesting labor organization would be
entitled to one list per season, without
any updates. This alternative would be
the least burdensome of the three, but
would be less likely to ensure that all
eligible workers have access to
information regarding organization. The
Department therefore chose to propose
that the employer provide a one-time
per season update, if requested, as the
Department believes this alternative best
balances the need for workers to receive
information regarding arguments both
for and against organization against
unduly burdening the employer with
providing multiple updates to the
employee contact list.
B. Regulatory Flexibility Analysis and
Small Business Regulatory Enforcement
Fairness Act and Executive Order
13272: Proper Consideration of Small
Entities in Agency Rulemaking
The Regulatory Flexibility Act of 1980
(RFA), 5 U.S.C. 601 et seq., as amended
by the Small Business Regulatory
Enforcement Fairness Act of 1996,
Public Law 104–121, requires agencies
to determine whether regulations will
have a significant economic impact on
a substantial number of small entities.
The Department certifies that the
proposed rule does not have a
significant economic impact on a
substantial number of small entities.
The Department presents the basis for
this certification in the analysis below.
1. Description of the Number of Small
Entities to Which This Proposed Rule
Will Apply
a. Definition of Small Entity
The RFA defines a ‘‘small entity’’ as
a (1) small not-for-profit organization,
(2) small governmental jurisdiction, or
(3) small business. The Department used
the entity size standards defined by the
Small Business Administration (SBA),
in effect as of December 19, 2022, to
classify entities as small.113 SBA
establishes separate standards for
individual 6-digit North American
Industry Classification System (NAICS)
industry codes, and standard cutoffs are
typically based on either the average
number of employees, or the average
annual receipts. Small governmental
jurisdictions are another noteworthy
exception. They are defined as the
governments of cities, counties, towns,
townships, villages, school districts, or
special districts with populations of less
than 50,000 people.114
b. Number of Small Entities
The Department collected
employment and annual revenue data
from the business information provider
Data Axle 115 and merged those data into
the H–2A certification data for FY 2020
and FY 2021. This process allowed the
Department to identify the number and
type of small entities in the H–2A
certification data as well as their annual
revenues. The Department determined
the number of unique employers in the
FY 2020 and FY 2021 certification data
based on the employer name and city.
The Department identified 9,927 unique
employers (excluding labor contractors).
Of those 9,927 employers, the
Department was able to obtain data
matches of revenue and employees for
2,615 H–2A employers in the FY2020
and FY2021 certification data. Of those
2,615 employers, the Department
determined that 2,105 were small (80.5
percent).116 These unique small entities
had an average of 11 employees and
average annual revenue of
approximately $3.62 million. Of these
small unique entities, 2,085 of them had
revenue data available from Data Axle.
The Department’s analysis of the impact
of this proposed rule on small entities
is based on the number of small unique
entities (2,085 with revenue data).
To provide clarity on the agricultural
industries impacted by this regulation,
Exhibit 6 shows the number of unique
H–2A small entities employers with
certifications in the FY 2020 and FY
2021 certification data within each
NAICS code at the 6-digit level.
EXHIBIT 6—NUMBER OF H–2A SMALL EMPLOYERS BY NAICS CODE
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6-digit NAICS
111998
444220
561730
445230
...........
...........
...........
...........
All Other Miscellaneous Crop Farming .....................................
Nursery, Garden Center, and Farm Supply Stores ..................
Landscaping Services ...............................................................
Fruit and Vegetable Markets .....................................................
111 The wage transfer under this alternative would
be approximately half of the impact of the proposed
rule’s proposal to make updated AEWRs effective
on the date of publication in the Federal Register
($12.81 million at a discount rate of 7 percent).
112 See 87 FR 61660, 61688 (Oct. 12, 2022)
(quoting 75 FR 6884, 6901 (Feb. 12, 2010)).
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611
162
134
127
113 SBA Table of Small Business Size Standards
Matched to North American Industry Classification
System Codes (December 19, 2022), https://
www.sba.gov/document/support--table-sizestandards.
114 See https://advocacy.sba.gov/resources/theregulatory-flexibility-act for details.
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Percent
Size standard
29
8
6
6
$1.0 million.
$12.0 million.
$8.0 million.
$8.0 million.
115 Data Axle (Aug. 2023), https://www.dataaxle.com.
116 SBA Table of Small Business Size Standards
Matched to North American Industry Classification
System Codes (Aug. 2019), https://www.sba.gov/
document/support—table-size-standards.
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63817
EXHIBIT 6—NUMBER OF H–2A SMALL EMPLOYERS BY NAICS CODE—Continued
6-digit NAICS
424480
111339
112990
424930
Number of
employers
Description
...........
...........
...........
...........
424910 ...........
484230 ...........
Fresh Fruit and Vegetable Merchant Wholesalers ...................
Other Noncitrus Fruit Farming ..................................................
All Other Animal Production ......................................................
Flower, Nursery Stock, and Florists’ Supplies Merchant
Wholesalers.
Farm Supplies Merchant Wholesalers ......................................
Specialized Freight (except Used Goods) Trucking, Long-Distance.
All Other 117 ...............................................................................
Total
2. Projected Impacts to Affected Small
Entities
The Department has estimated the
incremental costs for small entities from
the baseline (i.e., the current practices
for complying, at a minimum, with the
H–2A program as currently codified at
20 CFR part 655, subpart B) to this
proposed rule. As discussed in previous
sections, the Department estimates
impacts using historical certification
data and therefore simulates the impacts
of the proposed rule to each actual
employer in the H–2A program rather
than using representative data for
employers within a given sector. The
Department estimated the costs of (a)
time to read and review the proposed
rule, (b) the time to send employee lists
to labor organizations upon request, (c)
the time required to complete H–2A
applications due to application
additions, and (d) wage transfers due to
the removal of the 2-week effective date
delay from the AEWR publication. The
estimates included in this analysis are
consistent with those presented in the
E.O. 12866 section.
The Department estimates that 2,085
unique small entities, would incur a
one-time cost of $54.00 to familiarize
themselves with the rule, an annual cost
of $54.00 to send employee contact lists
to labor organizations, and a per
Percent
Size standard
84
78
57
51
4
4
3
2
100 employees.
$1.0 million.
$1.0 million.
100 employees.
41
39
2
2
200 employees.
$30.0 million.
701
33
2,085
100
application cost of $108.00 to complete
H–2A applications.118
In addition to the cost of rule
familiarization, employee contact lists,
and application additions above, each
small entity will have an increase in the
wage costs due to the revisions to the
wage structure. To estimate the wage
impact for each small entity we
followed the methodology presented in
the E.O. 12866 section. For each
certification of a small entity, the
Department calculated total wage
impacts of the proposed rule in CY 2020
and CY 2021 based on each certification
for employment between December 14th
and the end of the year, and the annual
increase in AEWR. The Department
estimates the wage impact to all small
entities is $826 on average.119 Many of
the small entities have no wage impact
from the proposed rule because they do
not have workers employed at the end
of December. Of small entities with
wage impacts, their average wage
impact is $2,567.120
The Department determined the
proportion of each small entity’s total
revenue that would be impacted by the
costs of the proposed rule to determine
if the proposed rule would have a
significant and substantial impact on
small entities. The cost impacts
included estimated first-year costs and
the wage impact introduced by the
proposed rule. The Department used a
total cost estimate of 3 percent of
revenue as the threshold for a
significant individual impact and set a
total of 15 percent of small entities
incurring a significant impact as the
threshold for a substantial impact on
small entities.
A threshold of 3 percent of revenues
has been used in prior rulemakings for
the definition of significant economic
impact.121 This threshold is also
consistent with that sometimes used by
other agencies.122
Exhibit 7 provides a breakdown of
small entities by the proportion of
revenue affected by the costs of the
proposed rule. Of the 2,085 unique
small entities with revenue data in the
FY 2020 and FY 2021 certification data,
0.7 percent of employers are estimated
to have more than 3 percent of their
total revenue impacted in the first year
based on 2020 data and 2 percent of
employers are estimated to have more
than 3 percent of their total revenue
impacted in the first year based on 2021
data. Based on the findings presented in
Exhibit 7, the proposed rule does not
have a significant economic impact on
a substantial number of small H–2A
employers.
EXHIBIT 7—COST IMPACTS AS A PROPORTION OF TOTAL REVENUE FOR SMALL ENTITIES
2020, by NAICS Code
Proportion of revenue impacted
ddrumheller on DSK120RN23PROD with PROPOSALS2
111998
<1% ..............................................
1%–2% .........................................
2%–3% .........................................
594 (97.2%)
12 (2.0%)
2 (0.3%)
117 Size
standards vary by NAICS code.
($34.00 + $34.00(0.42) +
34.00(0.17)) * 1 = $54.00. $34.00 (1.59) * 1 = $54.00.
$34.00 (1.59) * 2 = $108.00.
119 In CY 2020 the average wage impact to all
small entities is $620 and in CY 2021 $1,032.
120 In CY 2020 the average wage impact small
entities with wage impacts is $1,937 and in CY
2021 $3,191.
118 Calculation:
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444220
Jkt 259001
162 (100.0%)
0 (0.0%)
0 (0.0%)
561730
445230
133 (99.3%)
1 (0.7%)
0 (0.0%)
127 (100.0%)
0 (0.0%)
0 (0.0%)
121 See, e.g., NPRM, Increasing the Minimum
Wage for Federal Contractors, 79 FR 60634 (Oct. 7,
2014) (establishing a minimum wage for
contractors); Final Rule, Discrimination on the
Basis of Sex, 81 FR 39108 (June 15, 2016).
122 See, e.g., Final Rule, Medicare and Medicaid
Programs; Regulatory Provisions to Promote
Program Efficiency, Transparency, and Burden
Reduction; Part II, 79 FR 27106 (May 12, 2014)
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All other
1,028 (97.8%)
10 (1.0%)
2 (0.2%)
Total
2,044 (98.0%)
23 (1.1%)
4 (0.2%)
(Department of Health and Human Services rule
stating that under its agency guidelines for
conducting regulatory flexibility analyses, actions
that do not negatively affect costs or revenues by
more than three percent annually are not
economically significant).
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EXHIBIT 7—COST IMPACTS AS A PROPORTION OF TOTAL REVENUE FOR SMALL ENTITIES—Continued
2020, by NAICS Code
Proportion of revenue impacted
111998
444220
445230
All other
Total
3%–4% .........................................
4%–5% .........................................
>5% .......................................
1 (0.2%)
1 (0.2%)
1 (0.2%)
0 (0.0%)
0 (0.0%)
0 (0.0%)
0 (0.0%)
0 (0.0%)
0 (0.0%)
0 (0.0%)
0 (0.0%)
0 (0.0%)
1 (0.1%)
4 (0.4%)
6 (0.6%)
2 (0.1%)
5 (0.2%)
7 (0.3%)
Total >3% .............................
3 (0.5%)
0 (0.0%)
0 (0.0%)
0 (0.0%)
11 (1.0%)
14 (0.7%)
Proportion of revenue impacted
2021, by NAICS Code
<1% ..............................................
1%–2% .........................................
2%–3% .........................................
3%–4% .........................................
4%–5% .........................................
>5% ..............................................
564 (92.3%)
20 (3.3%)
8 (1.3%)
4 (0.7%)
5 (0.8%)
10 (1.6%)
161 (99.4%)
1 (0.6%)
0 (0.0%)
0 (0.0%)
0 (0.0%)
0 (0.0%)
131 (97.8%)
2 (1.5%)
1 (0.7%)
0 (0.0%)
0 (0.0%)
0 (0.0%)
127 (100.0%)
0 (0.0%)
0 (0.0%)
0 (0.0%)
0 (0.0%)
0 (0.0%)
1,010 (96.1%)
14 (1.3%)
5 (0.5%)
4 (0.4%)
4 (0.4%)
14 (1.3%)
1,993 (95.6%)
37 (1.8%)
14 (0.7%)
8 (0.4%)
9 (0.4%)
24 (1.2%)
Total >3% .............................
19 (3.1%)
0 (0.0%)
0 (0.0%)
0 (0.0%)
22 (2.1%)
41 (2.0%)
C. Paperwork Reduction Act
ddrumheller on DSK120RN23PROD with PROPOSALS2
561730
In order to meet its statutory
responsibilities under the INA, the
Department collects information
necessary to render determinations on
requests for temporary agricultural labor
certification, which allow employers to
bring foreign labor into the United
States on a seasonal or other temporary
basis under the H–2A program. The
Department uses the collected
information to determine if employers
are meeting their statutory and
regulatory obligations. This information
is subject to the PRA, 44 U.S.C. 3501 et
seq. A Federal agency generally cannot
conduct or sponsor a collection of
information, and the public is generally
not required to respond to an
information collection, unless it is
approved by OMB under the PRA and
displays a currently valid OMB control
number. In addition, notwithstanding
any other provisions of law, no person
shall generally be subject to penalty for
failing to comply with a collection of
information that does not display a
valid control number. See 5 CFR
1320.5(a) and 1320.6. The Department
obtained OMB approval for this
information collection under Control
Number 1205–0466.
This information collection request
(ICR), concerning OMB Control Number
1205–0466, includes the collection of
information related to the Department’s
temporary agricultural labor
certification determination process in
the H–2A program. The PRA helps
ensure that requested data is provided
in the desired format, reporting burden
(time and financial resources) is
minimized, collection instruments are
clearly understood, and the impact of
collection requirements on respondents
can be properly assessed.
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On October 25, 2018, as part of its
ongoing effort to streamline information
collection, clarify statutory and
regulatory requirements, and provide
greater oversight in the H–2A program,
the Department published a 60-day
notice announcing its proposed
revisions to the collection of
information under OMB Control
Number 1205–0466 in the Federal
Register in connection with the
proposed rule Temporary Agricultural
Employment of H–2A Nonimmigrants in
the United States, 84 FR 36168 (July 26,
2019).123 See 83 FR 53911. The
Department published a final rule on
October 12, 2022.124 See 87 FR 61660.
The Department now proposes
additional revisions to this information
collection, covered under OMB Control
Number 1205–0466, to further revise the
information collection tools based on
regulatory changes proposed in this
NPRM. The additional proposed
revisions to Form ETA–9142A and
123 For administrative purposes only, the
Department submitted the July 2019 NPRM’s ICR
under OMB Control Number 1205–0537. OMB
authorized the NPRM’s ICR as OMB Control
Number 1205–0537 due to the Department’s
separate renewal of the ICR under OMB Control
Number 1205–0466, which currently expires on
October 31, 2025. In March 2023, the Department
submitted a nonmaterial change request to transfer
the burden from this OMB control number (1205–
0537) to the existing OMB control number for the
H–2A Foreign Labor Certification Program (1205–
0466) and proceeded to discontinue the use of OMB
Control Number 1205–0537.
124 The current Form ETA–790/790A, H–2A
Agricultural Clearance Order, and addenda, provide
language to employers to disclose necessary
information regarding the material terms and
conditions of the job opportunity. A copy of Form
ETA–790/790A is now integrated with the Form
ETA–9142A for purposes of the Department’s
temporary agricultural labor certification
determination; the CO reviews the Form ETA–790/
790A in combination with Form ETA–9142A when
the employer submits Form ETA–9142A to the
NPC.
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appendices and Form ETA–790/790A
and addenda will align information
collection requirements with the
Department’s proposed regulatory
framework and continue the ongoing
efforts to provide greater clarity to
employers on regulatory requirements,
standardize and streamline information
collection to reduce employer time and
burden preparing applications, and
promote greater efficiency and
transparency in the review and issuance
of labor certification decisions under the
H–2A visa program. For example, the
Department proposes a new Form ETA–
9142A, Appendix C, H–2A Owner,
Operator, Manager and Supervisor
Information, to implement proposed
§ 655.130(a), which would require
employers to provide the identity,
location, and contact information of all
persons who are the owners, operators,
managers, and supervisors of the
agricultural business. Additionally, the
Department proposes a new Form ETA–
9142A, Appendix D, Foreign Labor
Recruiter Information, to implement
proposed § 655.137(b), which would
require the employer, and its attorney or
agent (as applicable), to provide the
identity and location of all persons and
entities hired by or working for the
recruiter or agent, and any of the
agent(s) or employee(s) of those persons
and entities, to recruit prospective
foreign workers for the H–2A job
opportunities offered by the employer
under an H–2A Application for
Temporary Employment Certification,
Form ETA–9142A.
Overview of Information Collections
Proposed by This NPRM
Title of Collection: H–2A Temporary
Agricultural Employment Certification
Program.
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Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules
Type of Review: Revision of a
Currently Approved Information
Collection.
OMB Control Number: 1205–0466.
Description: This NPRM proposes to
require (1) all agents who file H–2A
applications on behalf of employers to
demonstrate that a bona fide
relationship exists between them and
the employer; (2) agents who are Farm
Labor Contractors to provide a copy of
their Migrant and Seasonal Agricultural
Worker Protection Act (MSPA)
Certificate of Registration; (3) employers
to prohibit in a written contract any
foreign labor contractor or recruiter (or
any agent of such foreign labor
contractor or recruiter) whom the
employer engages, either directly or
indirectly, in international recruitment
of H–2A workers, from seeking or
receiving payments or other
compensation from prospective
employees; (4) employers to determine
the appropriate wage to offer, advertise,
and pay workers to perform the
agricultural services or labor in
preparing the Form ETA–790A; (5) that
the job order submitted to the SWA and
Department must meet the content
standards set forth in 20 CFR part 653,
subpart F, and 20 CFR 655.122; (6)
completion of the Form ETA–9142A
when an employer seeks a temporary
labor certification to employ
nonimmigrant workers under the H–2A
visa classification; and (7) employers
operating as H–2A Labor Contractors
(H–2ALCs) must provide additional
documentation at the time of filing the
Form ETA–9142A.
Affected Public: Individuals or
Households, Private Sector—businesses
or other for-profits, Government, State,
Local, and Tribal Governments.
Form(s): ETA–9142A, H–2A
Application for Temporary Employment
Certification; ETA–9142A—Appendix
A; ETA–9142A—Final Determination:
H–2A Temporary Labor Certification
Approval; ETA–790/790A, H–2A
Agricultural Clearance Order; ETA–790/
790A—Addendum A; ETA–790/790A—
Addendum B; ETA–790/790A—
Addendum B; ETA–9142A, Appendix
C; ETA–9142A, Appendix D
Obligation to Respond: Required to
Obtain or Retain Benefits.
Estimated Total Annual Respondents:
467,843.
Estimated Total Annual Responses:
14,586.
Estimated Total Annual Burden
Hours: 102,864.74.
Estimated Total Annual Other Burden
Costs: $0.
Regulations Sections: Subpart F of
part 655.
Agency: DOL–ETA.
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Title of Collection: Agricultural
Recruitment System Forms Affecting
Migrant and Seasonal Farmworkers.
Type of Review: Revision of a
Currently Approved Information
Collection.
OMB Control Number: 1205–0134.
Description: This NPRM proposes to
revise Agricultural Clearance Order
Form, ETA Form 790B, which will be
attached to the Agricultural Clearance
Order Form, ETA Form 790 (see OMB
Control Number 1205–0466). ETA Form
790B is only used for employers who
submit clearance orders requesting U.S.
workers for temporary agricultural jobs,
which are not attached to requests for
foreign workers through the H–2A visa
program (non-criteria clearance orders).
ETA is including the estimated burden
to the public for the completion of ETA
Form 790 as it relates to those
employers seeking to place non-criteria
job orders through the ARS in addition
to the estimated burden for ETA Form
790B because employers would fill out
both forms.
Affected Public: State Governments,
Private Sector: Business or other forprofits, not-for-profit institutions, and
farms.
Obligation to Respond: Required to
Obtain or Retain Benefits.
Estimated Total Annual Respondents:
5,112.
Estimated Total Annual Responses:
5,112.
Estimated Total Annual Burden
Hours: 2,981.84.
Estimated Total Annual Other Burden
Costs: $0.
Regulations Sections: Subpart F of
part 653.
Agency: DOL–ETA.
The Department invites comments on
all aspects of the PRA analysis.
Comments that are related to a specific
form or a specific form’s instructions
should identify the form or form’s
instructions using the form number
(e.g., ETA–9142A or Form ETA–790/
790A) and should identify the particular
area of the form for comment. A copy
of the proposed revised information
collection tools can be obtained by
contacting the office listed below in the
addresses section of this notice. Written
comments must be submitted on or
before November 14, 2023.
The Department is particularly
interested in comments that:
• evaluate whether the proposed
collection of information is necessary
for the proper performance of the
functions of the agency, including
whether the information will have
practical utility;
• evaluate the accuracy of the
agency’s estimate of the burden of the
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63819
proposed collection of information,
including the validity of the
methodology and assumptions used,
and the agency’s estimates associated
with the annual burden cost incurred by
respondents and the government cost
associated with this collection of
information;
• enhance the quality, utility, and
clarity of the information to be
collected; and
• minimize the burden of the
collection of information on those who
are to respond, including through the
use of appropriate automated,
electronic, mechanical, or other
technological collection techniques or
other forms of information technology,
e.g., permitting electronic submissions
of responses.
Comments submitted in response to
this notice will be considered and
summarized or included in the ICR the
Department will submit to OMB for
approval; they will also become a matter
of public record. Commenters are
encouraged not to submit sensitive
information (e.g., confidential business
information or personally identifiable
information such as a Social Security
number).
D. Unfunded Mandates Reform Act of
1995
The Unfunded Mandates Reform Act
of 1995 (UMRA) (Pub. L. 104–4,
codified at 2 U.S.C. 1501 et seq.) is
intended, among other things, to curb
the practice of imposing unfunded
Federal mandates on State, local, and
tribal governments. UMRA requires
Federal agencies to assess a regulation’s
effects on State, local, and tribal
governments, as well as on the private
sector, except to the extent the
regulation incorporates requirements
specifically set forth in law. Title II of
the UMRA requires each Federal agency
to prepare a written statement assessing
the effects of any regulation that
includes any Federal mandate in a
proposed or final agency rule that may
result in $100 million or more
expenditure (adjusted annually for
inflation) in any one year by State, local,
and Tribal governments, in the
aggregate, or by the private sector. A
Federal mandate is any provision in a
regulation that imposes an enforceable
duty upon State, local, or tribal
governments, or upon the private sector,
except as a condition of Federal
assistance or a duty arising from
participation in a voluntary Federal
program.
This proposed rule does not result in
unfunded mandates for the public or
private sector because private
employers’ participation in the program
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is voluntary, and State governments are
reimbursed for performing activities
required under the program. The
requirements of title II of the UMRA,
therefore, do not apply, and the
Department has not prepared a
statement under the UMRA.
E. Executive Order 13132 (Federalism)
This proposed rule would not have
substantial direct effects on the States,
on the relationship between the
National Government and the States, or
on the distribution of power and
responsibilities among the various
levels of government. Therefore, in
accordance with section 6 of E.O.
13132,125 it is determined that this
proposed rule does not have sufficient
federalism implications to warrant the
preparation of a federalism summary
impact statement.
F. Executive Order 13175 (Consultation
and Coordination With Indian Tribal
Governments)
The Department has reviewed this
proposed rule in accordance with E.O.
13175 126 and has determined that it
does not have tribal implications. This
proposed rule does not have substantial
direct effects on one or more Indian
tribes, on the relationship between the
Federal Government and Indian tribes,
or on the distribution of power and
responsibilities between the Federal
Government and tribal governments.
List of Subjects
20 CFR Part 651
Employment, Grant programs—labor.
20 CFR Part 653
Agriculture, Employment, Equal
employment opportunity, Grant
programs—labor, Migrant labor,
Reporting and recordkeeping
requirements.
ddrumheller on DSK120RN23PROD with PROPOSALS2
Administrative practice and
procedure, Foreign workers,
Employment, Employment and training,
Enforcement, Forest and forest products,
Fraud, Health professions, Immigration,
Labor, Passports and visas, Penalties,
Reporting and recordkeeping
requirements, Unemployment, Wages,
Working conditions.
20 CFR Part 658
Administrative practice and
procedure, Employment, Grant
125 E.O. 13132, Federalism, 64 FR 43255 (Aug. 10,
1999).
126 E.O. 13175, Consultation and Coordination
with Indian Tribal Governments, 65 FR 67249 (Nov.
9, 2000).
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29 CFR Part 501
Administrative practice and
procedure, Agricultural, Aliens,
Employment, Housing, Housing
standards, Immigration, Labor, Migrant
labor, Penalties, Transportation, Wages.
For the reasons stated in the
preamble, the Department of Labor
proposes to amend 20 CFR parts 651,
653, 655, and 658 and 29 CFR part 501
as follows:
TITLE 20: EMPLOYEES’ BENEFITS
Employment and Training
Administration
PART 651—GENERAL PROVISIONS
GOVERNING THE WAGNER-PEYSER
ACT EMPLOYMENT SERVICE
1. The authority citation for part 651
continues to read as follows:
■
Authority: 29 U.S.C. 49a; 38 U.S.C. part III,
4101, 4211; Secs. 503, 3, 189, Pub. L. 113–
128, 128 Stat. 1425 (Jul. 22, 2014).
2. Amend § 651.10 by:
a. Adding the definition for Agent,
Criteria clearance order, and
Discontinuation of services in
alphabetical order;
■ b. Revising the definition for
Employment-related laws; and
■ c. Adding definitions for Farm labor
contractor, Joint employer, Non-criteria
clearance order, Successor in interest,
and Week in alphabetical order.
The additions and revision read as
follows:
■
■
§651.10 Definitions of terms used in this
part and parts 652, 653, 654, and 658 of this
chapter.
*
20 CFR Part 655
VerDate Sep<11>2014
programs—labor, Reporting and
recordkeeping requirements.
*
*
*
*
Agent means a legal entity or person,
such as an association of employers, or
an attorney for an association, that is
authorized to act on behalf of the
employer for purposes of recruitment of
workers through the clearance system
and is not itself an employer or joint
employer, as defined in this section,
with respect to a specific job order.
*
*
*
*
*
Criteria clearance order means a
clearance order that is attached to an
application for foreign temporary
agricultural workers pursuant to part
655, subpart B, of this chapter.
*
*
*
*
*
Discontinuation of services means
that an employer, agent, farm labor
contractor, joint employer, or successor
in interest, as defined in this section,
cannot participate in or receive any
Wagner-Peyser Act employment service
provided by the ES to employers
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pursuant to parts 652 and 653 of this
chapter.
*
*
*
*
*
Employment-related laws means those
laws and implementing regulations that
relate to the employment relationship,
such as those enforced by the
Department’s WHD, OSHA, or by other
Federal, State, or local agencies.
*
*
*
*
*
Farm labor contractor means any
person or entity, other than an
agricultural employer, an agricultural
association, or an employee of an
agricultural employer or agricultural
association, who, for any money or
other valuable consideration paid or
promised to be paid, recruits, solicits,
hires, employs, furnishes, or transports
any migrant or seasonal farmworker
(MSFW).
*
*
*
*
*
Joint employer means where two or
more employers each have sufficient
definitional indicia of being an
employer of a worker as defined in this
section, they are, at all times, joint
employers of that worker. An employer
that submits a job order to the ES
clearance system as a joint employer, is
a joint employer of any worker placed
and employed on the job order during
the period of employment anticipated,
amended, or otherwise extended in
accordance with the order.
*
*
*
*
*
Non-criteria clearance order means a
clearance order that is not attached to an
application for foreign temporary
agricultural workers pursuant to part
655, subpart B, of this chapter.
*
*
*
*
*
Successor in interest—A successor in
interest includes any entity that is
controlling and carrying on the business
of a previous employer, agent, or farm
labor contractor, regardless of whether
such successor in interest has succeeded
to all the rights and liabilities of the
predecessor entity. A successor in
interest to an employer, agent, or farm
labor contractor may be held liable for
the duties and obligations of that
employer, agent, or farm labor
contractor for purposes of recruitment of
workers through the ES clearance
system or enforcement of ES
regulations. The following factors,
including those as used under Title VII
of the Civil Rights Act and the Vietnam
Era Veterans’ Readjustment Assistance
Act, may be considered in determining
whether an employer, agent, or farm
labor contractor is a successor in
interest; however, these factors are not
exhaustive, and no one factor is
dispositive, but all of the circumstances
will be considered as a whole:
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(1) Substantial continuity of the same
business operations;
(2) Use of the same facilities;
(3) Continuity of the work force;
(4) Similarity of jobs and working
conditions;
(5) Similarity of supervisory
personnel;
(6) Whether the former management
or owner retains a direct or indirect
interest in the new enterprise;
(7) Similarity in machinery,
equipment, and production methods;
(8) Similarity of products and
services;
(9) The ability of the predecessor to
provide relief; and
(10) For purposes of discontinuation
of services, the involvement of the
firm’s ownership, management,
supervisors, and others associated with
the firm in the violation(s) at issue.
*
*
*
*
*
Week means 7 consecutive calendar
days.
*
*
*
*
*
PART 653—SERVICES OF THE
WAGNER-PEYSER ACT EMPLOYMENT
SERVICE SYSTEM
3. The authority citation for part 653
continues to read as follows:
■
Authority: Secs. 167, 189, 503, Public Law
113–128, 128 Stat. 1425 (Jul. 22, 2014); 29
U.S.C. chapter 4B; 38 U.S.C. part III, chapters
41 and 42.
4. Amend § 653.501 by:
a. Adding paragraph (b)(4);
b. Revising paragraphs (c)(3)
introductory text, (c)(3)(i) and (iv), and
(c)(5); and
■ c. Removing and reserving paragraphs
(d)(4), (7), and (8).
The addition and revisions read as
follows:
■
■
■
§ 653.501 Requirements for processing
clearance orders.
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*
*
*
*
*
(b) * * *
(4) Prior to placing a job order into
intrastate or interstate clearance, ES staff
must consult the Department’s Office of
Foreign Labor Certification and Wage
and Hour Division debarment lists, and
the Department’s Office of Workforce
Investment discontinuation of services
list.
(i) If the employer requesting access to
the clearance system is currently
debarred from participating in the H–2A
or H–2B foreign labor certification
programs, the SWA must initiate
discontinuation of services pursuant to
part 658, subpart F, of this chapter.
(ii) If the employer requesting access
to the clearance system is currently
discontinued from receiving ES services
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18:55 Sep 14, 2023
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under § 658.503 of this chapter by any
State, the SWA must not approve the
clearance order for placement into
intrastate or interstate clearance.
(iii) For purposes of this paragraph
(b)(4), ‘‘employer’’ has the meaning
given in § 658.500(b) of this chapter.
(c) * * *
(3) SWAs must ensure that the
employer makes the following
assurances in the clearance order:
(i) The employer will provide to
workers referred through the clearance
system the number of hours of work
cited in paragraph (c)(1)(iv)(D) of this
section for the week beginning with the
anticipated date of need, unless the
employer has amended the date of need
at least 10 business days prior to the
original date of need (pursuant to
paragraph (c)(3)(iv) of this section).
*
*
*
*
*
(iv) The employer will notify the
order-holding office or SWA
immediately upon learning that a crop
is maturing earlier or later, or that
weather conditions, over-recruitment, or
other factors have changed the terms
and conditions of employment. If there
is a change to the date of need, the
employer will notify the order-holding
office or SWA, and each worker who
has been placed on the clearance order
using the contact information the
worker provided to the employer, in
writing (email and other forms of
electronic written notification are
acceptable) at least 10 business days
prior to the original date of need. The
employer must maintain records of the
notification and the date notification
was provided to the order-holding office
or SWA and workers for 3 years. If the
employer does not properly notify the
order-holding office or SWA and
workers at least 10 business days prior
to the original date of need, the
employer will provide housing and
subsistence to all workers placed on the
clearance order who are already
traveling to the place of employment,
without cost to the workers, until work
commences, and, consistent with
paragraph (c)(5) of this section, will pay
the placed workers for the hours listed
on the clearance order, at a rate
consistent with paragraph (c)(5) of this
section, for each day work is delayed up
to 2 weeks or provide alternative work.
*
*
*
*
*
(5) If there is a change to the
anticipated date of need and the
employer fails to notify the orderholding office or SWA and all workers
placed on the clearance order at least 10
business days prior to the original date
of need the employer must provide
housing and subsistence to all workers
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63821
placed on the clearance order who are
already traveling to the place of
employment, without cost to the
workers, until work commences, and
must pay the placed workers the
specified hourly rate of pay, or if the
pay is piece-rate, the higher of the
Federal or State minimum wage, or an
applicable prevailing wage, or for
criteria orders the rate of pay required
under part 655, subpart B, of this
chapter for each day work is delayed up
to 2 weeks starting with the originally
anticipated date of need or provide
alternative work if such alternative work
is stated on the approved clearance
order. If an employer fails to comply
under this paragraph (c)(5) the orderholding office must process the
information as an apparent violation
pursuant to § 658.419 of this chapter
and may refer an apparent violation of
the employer’s payment obligation
under this paragraph (c)(5) to the
Department’s Wage and Hour Division.
*
*
*
*
*
PART 655—TEMPORARY
EMPLOYMENT OF FOREIGN
WORKERS IN THE UNITED STATES
5. The authority citation for part 655
continues to read as follows:
■
Authority: Section 655.0 issued under 8
U.S.C. 1101(a)(15)(E)(iii), 1101(a)(15)(H)(i)
and (ii), 8 U.S.C. 1103(a)(6), 1182(m), (n), and
(t), 1184(c), (g), and (j), 1188, and 1288(c) and
(d); sec. 3(c)(1), Pub. L. 101–238, 103 Stat.
2099, 2102 (8 U.S.C. 1182 note); sec. 221(a),
Pub. L. 101–649, 104 Stat. 4978, 5027 (8
U.S.C. 1184 note); sec. 303(a)(8), Pub. L. 102–
232, 105 Stat. 1733, 1748 (8 U.S.C. 1101
note); sec. 323(c), Pub. L. 103–206, 107 Stat.
2428; sec. 412(e), Pub. L. 105–277, 112 Stat.
2681 (8 U.S.C. 1182 note); sec. 2(d), Pub. L.
106–95, 113 Stat. 1312, 1316 (8 U.S.C. 1182
note); 29 U.S.C. 49k; Pub. L. 107–296, 116
Stat. 2135, as amended; Pub. L. 109–423, 120
Stat. 2900; 8 CFR 214.2(h)(4)(i); 8 CFR
214.2(h)(6)(iii); and sec. 6, Pub. L. 115–218,
132 Stat. 1547 (48 U.S.C. 1806).
Subpart A issued under 8 CFR 214.2(h).
Subpart B issued under 8 U.S.C.
1101(a)(15)(H)(ii)(a), 1184(c), and 1188; and 8
CFR 214.2(h).
Subpart E issued under 48 U.S.C. 1806.
Subparts F and G issued under 8 U.S.C.
1288(c) and (d); sec. 323(c), Pub. L. 103–206,
107 Stat. 2428; and 28 U.S.C. 2461 note, Pub.
L. 114–74 at section 701.
Subparts H and I issued under 8 U.S.C.
1101(a)(15)(H)(i)(b) and (b)(1), 1182(n), and
(t), and 1184(g) and (j); sec. 303(a)(8), Pub. L.
102–232, 105 Stat. 1733, 1748 (8 U.S.C. 1101
note); sec. 412(e), Pub. L. 105–277, 112 Stat.
2681; 8 CFR 214.2(h); and 28 U.S.C. 2461
note, Pub. L. 114–74 at section 701.
Subparts L and M issued under 8 U.S.C.
1101(a)(15)(H)(i)(c) and 1182(m); sec. 2(d),
Pub. L. 106–95, 113 Stat. 1312, 1316 (8 U.S.C.
1182 note); Pub. L. 109–423, 120 Stat. 2900;
and 8 CFR 214.2(h).
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6. Amend § 655.103 by:
a. In paragraph (b), adding definitions
for Key service provider and Labor
organization in alphabetical order and
removing the definition for Successor in
interest; and
■ b. Adding paragraph (e).
The additions read as follows:
■
■
§ 655.103 Overview of this subpart and
definition of terms.
*
*
*
*
*
(b) * * *
Key service provider. A health-care
provider; a community health worker;
an education provider; an attorney, legal
advocate, or other legal service provider;
a government official, including a
consular representative; a member of the
clergy; and any other service provider to
which a worker may need access.
Labor organization. Any organization
of any kind, or any agency or employee
representation committee or plan, in
which workers participate and which
exists for the purpose, in whole or in
part, of dealing with employers
concerning grievances, labor disputes,
wages, rates of pay, hours of
employment, or conditions of work.
*
*
*
*
*
(e) Definition of single employer for
purposes of temporary or seasonal need
and contractual obligations. Separate
entities will be deemed a single
employer (sometimes referred to as an
‘‘integrated employer’’) for purposes of
assessing temporary or seasonal need
and for enforcement of contractual
obligations if they meet the definition of
single employer in this paragraph (e).
Under the definition of single employer,
a determination of whether separate
entities are a single employer is not
determined by a single factor, but rather
the entire relationship is viewed in its
totality. Factors considered in
determining whether two or more
entities consist of a single employer
include:
(1) Common management;
(2) Interrelation between operations;
(3) Centralized control of labor
relations; and
(4) Degree of common ownership/
financial control.
■ 7. Add § 655.104 to read as follows:
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§ 655.104
Successors in interest.
(a) Liability of successors in interest.
Where an employer, agent, or attorney
has violated 8 U.S.C. 1188, 29 CFR part
501, or this subpart, a successor in
interest to that employer, agent, or
attorney may be held liable for the
duties and obligations of the violating
employer, agent, or attorney in certain
circumstances.
(b) Definition of successors in interest.
A successor in interest includes an
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18:55 Sep 14, 2023
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entity that is controlling and carrying on
the business of a previous employer,
agent, or farm labor contractor,
regardless of whether such successor in
interest has succeeded to all the rights
and liabilities of the predecessor entity.
The following factors, including those
as used under Title VII of the Civil
Rights Act and the Vietnam Era
Veterans’ Readjustment Assistance Act,
may be considered in determining
whether an employer, agent, or attorney
is a successor in interest; however, these
factors are not exhaustive, and no one
factor is dispositive, but all of the
circumstances will be considered as a
whole:
(1) Substantial continuity of the same
business operations;
(2) Use of the same facilities;
(3) Continuity of the work force;
(4) Similarity of jobs and working
conditions;
(5) Similarity of supervisory
personnel;
(6) Whether the former management
or owner retains a direct or indirect
interest in the new enterprise;
(7) Similarity in machinery,
equipment, and production methods;
(8) Similarity of products and
services;
(9) The ability of the predecessor to
provide relief; and
(10) For purposes of debarment, the
personal involvement of the firm’s
ownership, management, supervisors,
and others associated with the firm in
the violation(s) at issue.
(c) Effect of debarment on successors
in interest. When an employer, agent, or
attorney is debarred under § 655.182 or
29 CFR 501.20, any successor in interest
to the debarred employer, agent, or
attorney is also debarred. No application
for H–2A workers may be filed by or on
behalf of a successor in interest to a
debarred employer, agent, or attorney,
subject to the term limits set forth in
§ 655.182(c)(2). If the CO determines
that an application for H–2A workers
was filed by or on behalf of a successor
in interest to a debarred employer,
agent, or attorney during the period of
debarment as set forth in § 655.182(c)(2),
the CO will issue a Notice of Deficiency
(NOD) pursuant to § 655.141 or deny the
application pursuant to § 655.164, as
appropriate depending upon the status
of the H–2A application, solely on the
basis that the entity is a successor in
interest to a debarred employer, agent,
or attorney. If the OFLC Administrator
determines that a certification for H–2A
workers was issued to a successor in
interest to a debarred employer, the
OFLC Administrator may revoke the
certification pursuant to § 655.181(a).
The employer, agent, or attorney may
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appeal its status as a successor in
interest to the debarred entity, pursuant
to the procedures for appeals of CO
determinations at § 655.171.
■ 8. Amend § 655.120 by revising
paragraphs (a) and (b)(2) and (3) to read
as follows:
§ 655.120
Offered wage rate.
(a) Employer obligation. (1) Except for
occupations covered by §§ 655.200
through 655.235, to comply with its
obligation under § 655.122(l), an
employer must offer, advertise in its
recruitment, and pay a wage that is at
least the highest of:
(i) The AEWR;
(ii) A prevailing wage rate, if the
OFLC Administrator has approved a
prevailing wage survey for the
applicable crop activity or agricultural
activity and, if applicable, a distinct
work task or tasks performed in that
activity, meeting the requirements of
paragraph (c) of this section;
(iii) The agreed-upon collective
bargaining wage;
(iv) The Federal minimum wage;
(v) The State minimum wage; or
(vi) Any other wage rate the employer
intends to pay.
(2) Where the wage rates set forth in
paragraph (a)(1) of this section are
expressed in different units of pay, the
employer must list the highest
applicable wage rate for each unit of pay
in its job order and must offer and
advertise all of these wage rates in its
recruitment. The employer’s obligation
to pay the highest of these wage rates is
set forth at § 655.122(l)(2).
(b) * * *
(2) The OFLC Administrator will
publish a notice in the Federal Register,
at least once in each calendar year, on
a date to be determined by the OFLC
Administrator, establishing each AEWR.
The updated AEWRs will be effective as
of the date of publication of the notice
in the Federal Register.
(3) If an updated AEWR for the
occupational classification and
geographic area is published in the
Federal Register during the work
contract, and the updated AEWR is
higher than the highest of the previous
AEWR; a prevailing wage for the crop
activity or agricultural activity and, if
applicable, a distinct work task or tasks
performed in that activity and
geographic area; the agreed-upon
collective bargaining wage; the Federal
minimum wage; or the State minimum
wage, the employer must pay at least the
updated AEWR beginning on the date
the updated AEWR is published in the
Federal Register.
*
*
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*
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9. Amend § 655.122 by revising
paragraphs (h)(4), (i)(1)(i) and (ii), (l),
and (n) to read as follows:
■
§ 655.122
Contents of job offers.
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(h) * * *
(4) Employer provided transportation.
(i) All employer-provided transportation
must comply with all applicable local,
State, or Federal laws and regulations,
and must provide, at a minimum, the
same transportation safety standards,
driver’s licensure, and vehicle insurance
required under 29 U.S.C. 1841, 29 CFR
500.104 or 500.105, and 29 CFR 500.120
through 500.128.
(ii) The employer shall not operate
any employer-provided transportation
that is required by the U.S. Department
of Transportation regulations, including
49 CFR 571.208, to be manufactured
with seat belts, unless all passengers
and the driver are properly restrained by
seat belts meeting standards established
by the U.S. Department of
Transportation, including 49 CFR
571.209 and 571.210.
(iii) The job offer must include a
description of the modes of
transportation (e.g., type of vehicle) that
will be used for inbound, outbound,
daily, and any other transportation.
(iv) If workers’ compensation is used
to cover transportation in lieu of vehicle
insurance, the employer must either
ensure that the workers’ compensation
covers all travel or that vehicle
insurance exists to provide coverage for
travel not covered by workers’
compensation and it must have property
damage insurance.
(i) * * *
(1) * * *
(i) For purposes of this paragraph
(i)(1), a workday means the number of
hours in a workday as stated in the job
order and excludes the worker’s Sabbath
and Federal holidays. The employer
must offer a total number of hours to
ensure the provision of sufficient work
to reach the three-fourths guarantee. The
work hours must be offered during the
work period specified in the work
contract.
(ii) In the event the worker begins
working later than the specified
beginning date of the contract, the
guarantee period begins with the first
workday after the arrival of the worker
at the place of employment, and
continues until the last day during
which the work contract and all
extensions thereof are in effect.
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(l) Rates of pay. Except for
occupations covered by §§ 655.200
through 655.235, the employer must pay
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the worker at least the highest wage rate
set forth in § 655.120(a)(1).
(1) The employer must calculate
workers’ wages using the wage rate that
will result in the highest wages for each
worker in each pay period. When
calculating wages based on an hourly
wage rate, the calculation must reflect
every hour or portion thereof worked
during a pay period. The wages actually
paid cannot be lower than the wages
that would result from the wage rate(s)
guaranteed in the job order.
(2) Where the wage rates set forth in
§ 655.120(a)(1) include both hourly and
non-hourly wage rates, the employer
must calculate each worker’s wages, in
each pay period, using the highest wage
rate for each unit of pay, and pay the
worker the highest of these wages for
that pay period. The wage actually paid
cannot be lower than the wages that
would result from the wage rate(s)
guaranteed in the job offer.
(3) If the employer requires one or
more minimum productivity standards
of workers as a condition of job
retention, such standards must be
specified in the job offer and be no more
than those required by the employer in
1977, unless the OFLC Administrator
approves a higher minimum, or, if the
employer first applied for temporary
agricultural labor certification after
1977, such standards must be no more
than those normally required (at the
time of the first Application for
Temporary Employment Certification)
by other employers for the activity in
the area of intended employment.
(4) If applicable, the employer must
state in the job order:
(i) That overtime hours may be
available;
(ii) The wage rate(s) to be paid for any
such overtime hours;
(iii) The circumstances under which
the wage rate(s) for overtime hours will
be paid, including, but not limited to,
after how many hours in a day or
workweek the overtime wage rate will
be paid, and whether overtime wage
rates will vary between places of
employment; and
(iv) Where the overtime pay is
required by law, the applicable Federal,
State, or local law requiring the
overtime pay.
*
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*
(n) Termination for cause or
abandonment of employment. (1) If a
worker is terminated for cause or
voluntarily abandons employment
before the end of the contract period,
and the employer notifies the NPC, and
DHS in the case of an H–2A worker, in
writing or by any other method
specified by the Department in a notice
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published in the Federal Register or
specified by DHS not later than 2
working days after such termination for
cause or abandonment occurs, the
employer will not be responsible for
providing or paying for the subsequent
transportation and subsistence expenses
of that worker under this section, and
that worker is not entitled to the threefourths guarantee described in
paragraph (i) of this section, and, in the
case of a U.S. worker, the employer will
not be obligated to contact that worker
under § 655.153.
(2) A worker is terminated for cause
when the employer terminates the
worker for failure to meet productivity
standards or failure to comply with
employer policies or rules.
(i) An employer may terminate a
worker for cause only if all of the
following conditions are satisfied:
(A) The employee has been informed
(in a language understood by the
worker) of the policy, rule, or
productivity standard, or reasonably
should have known of the policy, rule,
or productivity standard;
(B) If the termination is for failure to
meet a productivity standard, such
standard is disclosed in the job offer;
(C) Compliance with the policy, rule,
or productivity standard is within the
worker’s control;
(D) The policy, rule, or productivity
standard is reasonable and applied
consistently;
(E) The employer undertakes a fair
and objective investigation into the job
performance or misconduct; and
(F) The employer engages in
progressive discipline to correct the
worker’s performance or behavior.
(ii) Progressive discipline is a system
of graduated and reasonable responses
to an employee’s failure to meet
productivity standards or failure to
comply with employer policies or rules.
Disciplinary measures should be
proportional to the failure but may
increase in severity if the failure is
repeated, and may include immediate
termination for egregious misconduct.
Prior to each disciplinary measure, the
employer must notify the worker of the
infraction and allow the worker to
present evidence in their defense.
Following each disciplinary measure,
except where the appropriate
disciplinary measure is termination, the
employer must provide relevant and
adequate instruction to the worker, and
the employer must afford the worker
reasonable time to correct the behavior
or to meet the productivity standard
following such instruction. The
employer must document each
disciplinary measure, evidence the
worker presented in their defense, and
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resulting instruction, and must clearly
communicate to the worker that a
disciplinary measure has been imposed.
(iii) A worker is not terminated for
cause where the termination is: contrary
to a Federal, State, or local law; for an
employee’s refusal to work under
conditions that the employee reasonably
believes will expose them or other
employees to an unreasonable health or
safety risk; because of discrimination on
the basis of race, color, national origin,
age, sex (including sexual orientation or
gender identity), religion, disability, or
citizenship; or, where applicable, where
the employer failed to comply with its
obligations under § 655.135(m)(4) in a
meeting that contributed to the
termination.
(iv) The employer bears the burden of
demonstrating that any termination for
cause meets the requirements of this
paragraph (n)(2).
(3) Abandonment will be deemed to
begin after a worker fails to report to
work at the regularly scheduled time for
5 consecutive working days without the
consent of the employer.
(4) The employer is required to
maintain records described in this
section for not less than 3 years from the
date of the certification.
(i) Records of notification to the NPC,
and to DHS in the case of an H–2A
worker, of termination for cause or
abandonment.
(ii) Disciplinary records, including
each step of progressive discipline, any
evidence the worker presented in their
defense, any investigation related to the
termination, and any subsequent
instruction afforded the worker.
(iii) Records indicating the reason(s)
for termination of any worker, including
disciplinary records as described in
paragraph (n)(4)(ii) of this section and
§ 655.167.
*
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*
■ 10. Amend § 655.130 by revising
paragraph (a) to read as follows:
§ 655.130
Application filing requirements.
ddrumheller on DSK120RN23PROD with PROPOSALS2
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(a) What to file. (1) An employer that
desires to apply for temporary
agricultural labor certification of one or
more nonimmigrant workers must file a
completed Application for Temporary
Employment Certification, all
supporting documentation and
information required at the time of filing
under §§ 655.131 through 655.137, and,
unless a specific exemption applies, a
copy of Form ETA–790/790A, submitted
as set forth in § 655.121(a).
(2) The Application for Temporary
Employment Certification must include
the employer’s legal name, trade
name(s), and a valid FEIN as well as a
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valid place of business (physical
location) in the United States and a
means by which it may be contacted by
prospective U.S. applicants for
employment. For each employer of any
worker employed under this
application, the Application for
Temporary Employment Certification
must include the identity, location, and
contact information of all persons who
are the owners of that entity.
(3) For each place of employment
identified in the job order, the
Application for Temporary Employment
Certification must include the identity,
location, and contact information of all
persons and entities, if different than
the employer(s), who are the operators
of the place of employment, and of all
persons who manage or supervise any
worker employed under this
application, regardless whether those
managers or supervisors are employed
by the employer or another entity.
(4) If the information specified in
paragraphs (a)(2) and (3) of this section
changes during the work contract
period, the employer must update its
records to reflect the change. The
employer must continue to keep this
information up to date until the end of
the work contract period, including any
extensions. The employer must retain
the updated information in accordance
with § 655.167(c)(9) and must make this
updated information available in the
event of a post-certification audit or
upon request by the Department. The
Department may share the information
it receives from employers with any
other Federal agency, as appropriate for
investigative or enforcement purpose, as
set forth in paragraph (f) of this section.
*
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*
■ 11. Amend § 655.132 by revising
paragraph (e)(1) to read as follows:
§ 655.132 H–2A labor contractor filing
requirements.
*
*
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*
(e) * * *
(1) All housing used by workers and
owned, operated, or secured by the
fixed-site agricultural business complies
with the applicable standards as set
forth in § 655.122(d) and certified by the
SWA and that the fixed-site agricultural
business has agreed to comply with the
requirements at § 655.135(n); and
*
*
*
*
*
■ 12. Amend § 655.135 by revising the
introductory text and paragraph (h) and
adding paragraphs (m), (n), (o), and (p)
to read as follows:
§ 655.135 Assurance and obligations of H–
2A employers.
An employer seeking to employ H–2A
workers must agree as part of the
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Application for Temporary Employment
Certification and job offer that it will
abide by the requirements of this
subpart and of 29 CFR part 501 and
must make each of the following
additional assurances:
*
*
*
*
*
(h) No unfair treatment. (1) The
employer has not and will not
intimidate, threaten, restrain, coerce,
blacklist, discharge or in any manner
discriminate against, and has not and
will not cause any person to intimidate,
threaten, restrain, coerce, blacklist, or in
any manner discriminate against, any
person who has:
(i) Filed a complaint under or related
to 8 U.S.C. 1188 or this subpart or any
Department regulation in this chapter or
29 CFR part 501 promulgated under 8
U.S.C. 1188;
(ii) Instituted or caused to be
instituted any proceeding under or
related to 8 U.S.C. 1188 or this subpart
or any Department regulation in this
chapter or 29 CFR part 501 promulgated
under 8 U.S.C. 1188;
(iii) Testified or is about to testify in
any proceeding under or related to 8
U.S.C. 1188 or this subpart or any
Department regulation in this chapter or
29 CFR part 501 promulgated under 8
U.S.C. 1188;
(iv) Consulted with an employee of a
legal assistance program or an attorney
on matters related to 8 U.S.C. 1188 or
this subpart or any Department
regulation in this chapter or 29 CFR part
501 promulgated under 8 U.S.C. 1188;
(v) Consulted with a key service
provider on matters related to 8 U.S.C.
1188 or this subpart or any Department
regulation in this chapter or 29 CFR part
501 promulgated under 8 U.S.C. 1188;
(vi) Exercised or asserted on behalf of
themself or others any right or
protection afforded by 8 U.S.C. 1188 or
this subpart or any Department
regulation in this chapter or 29 CFR part
501 promulgated under 8 U.S.C. 1188;
or
(vii) Filed a complaint, instituted or
caused to be instituted any proceeding,
or testified or is about to testify in any
proceeding under or related to any
applicable Federal, State, or local laws
or regulations, including safety and
health laws.
(2) With respect to any person
engaged in agriculture as defined and
applied in 29 U.S.C. 203(f), the
employer has not and will not
intimidate, threaten, restrain, coerce,
blacklist, discharge, or in any manner
discriminate against, and has not and
will not cause any person to intimidate,
threaten, restrain, coerce, blacklist, or in
any manner discriminate against, any
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person who has engaged in activities
related to self-organization, including:
any effort to form, join, or assist a labor
organization; a secondary activity such
as a secondary boycott or picket; or
other concerted activities for the
purpose of mutual aid or protection
relating to wages or working conditions;
or refused to engage in any or all of such
activities.
*
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*
(m) Worker voice and empowerment.
With respect to any H–2A worker or
worker in corresponding employment
engaged in agriculture as defined and
applied in 29 U.S.C. 203(f), employed at
the place(s) of employment included in
the Application for Temporary
Employment Certification, the employer
agrees to:
(1) Provide to a requesting labor
organization a complete list of H–2A
workers and workers in corresponding
employment employed at the place(s) of
employment included in the
Application for Temporary Employment
Certification within 1 week of the
request. The list will be in alphabetical
order (last name first) and will show the
worker’s full name, date of hire, job
title, work location address and ZIP
code, and if available, personal email
address, personal cellular telephone
number and/or profile name for a
messaging application used by the
worker to communicate, home country
address with postal code, and home
country telephone number. The list will
be provided in an agreed-upon format
and transmitted electronically. The
employer must update the worker
contact list upon the labor
organization’s request, but no more than
once within the period of employment
listed in the job order.
(2) Permit workers to designate a
representative to attend any meeting
between the employer and a worker
where the worker reasonably believes
that the meeting may lead to discipline
and permit workers to receive advice
and active assistance from the
designated representative during any
such meeting. Where such meetings are
held at a worker’s place of employment
or other privately owned property,
workers’ designated representatives
must be given access to the place of
employment or property as needed to
attend and participate.
(3)(i) Refrain from engaging in
coercive employer speech intended to
oppose workers’ protected activity
unless the employer:
(A) Explains the purpose of the
meeting or communication;
(B) Assures workers that attendance
or participation is voluntary, and that
they are free to leave at any time;
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(C) Assures workers that
nonattendance or nonparticipation will
not result in reprisals (including any
loss of pay if the meeting or discussion
occurs during their regularly scheduled
working hours); and
(D) Assures workers that attendance
or participation will not result in
rewards or benefits (including
additional pay for attending meetings or
discussions concerning their rights to
engage in protected activity outside
their regularly scheduled working
hours).
(ii)(A) Obtain affirmative consent
from a worker to talk to that worker in
work areas during working hours
concerning their rights to engage in
protected activity; and
(B) Assure the worker that such
discussions are entirely voluntary and
that they may end the meeting or
discussion at any time without loss of
pay (either by leaving or by asking the
employer to stop).
(4) Attest that the employer will
either:
(i) Bargain in good faith with a
requesting labor organization over the
terms of a proposed labor neutrality
agreement, meaning an agreement in
which the employer agrees to not take
a position for or against a labor
organizing effort; or
(ii) Not bargain in good faith with a
requesting labor organization over the
terms of a proposed labor neutrality
agreement and provide an explanation
for why it has declined to do so.
(n) Access to worker housing. (1)
Workers residing in employer-furnished
housing must be permitted to invite, or
accept at their discretion, guests to their
living quarters and/or the common areas
or outdoor spaces near such housing
during time that is outside of the
workers’ workday subject only to
reasonable restrictions designed to
protect worker safety or prevent
interference with other workers’
enjoyment of these areas.
(2) Where employer-furnished
housing in which any H–2A worker or
worker in corresponding employment
engaged in agriculture as defined and
applied in 29 U.S.C. 203(f) resides is
located on property or in a facility not
readily accessible to the public, a labor
organization must not be denied access
to the common areas or outdoor spaces
near such housing for the purpose of
meeting with workers, provided that
such meetings occur outside of the
workers’ workday and do not exceed a
total of 10 hours per month.
(o) Passport withholding. During the
period of employment that is the subject
of the Application for Temporary Labor
Certification, the employer may not
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hold or confiscate a worker’s passport,
visa, or other immigration or
government identification document
except where the worker states in
writing that: the worker voluntarily
requested that the employer keep these
documents safe, the employer did not
direct the worker to submit such a
request, and the worker understands
that the passport, visa, or other
immigration or government
identification document will be
returned to the worker immediately
upon the worker’s request.
(p) Foreign worker recruitment. The
employer, and its attorney or agent, as
applicable, must comply with
§ 655.137(a) by providing a copy of all
agreements with any agent or recruiter
whom it engages or plans to engage in
the recruitment of H–2A workers, and
the identity and location of the persons
and entities hired by or working for the
agent or recruiter and any of the agents
and employees of those persons and
entities, to recruit foreign workers.
Pursuant to § 655.130(a), the agreements
and information must be filed with the
Application for Temporary Employment
Certification. The employer must update
this documentation in accordance with
§ 655.137(c).
■ 13. Add § 655.137 to read as follows:
§ 655.137 Disclosure of foreign worker
recruitment.
(a) If the employer engaged an agent
or foreign labor recruiter, directly or
indirectly, in international recruitment,
the employer, and its attorney or agent,
as applicable, must provide copies of all
contracts and agreements with any agent
and/or recruiter, executed in connection
with the job opportunity, as specified in
§ 655.135(p). These agreements must
contain the contractual prohibition
against charging fees as set forth in
§ 655.135(k).
(b) The employer, and its attorney or
agent, as applicable, must provide all
recruitment-related information
required in the Application for
Temporary Employment Certification,
as defined in § 655.103(b), which
includes the identity and location of all
persons and entities hired by or working
for the recruiter or agent, and any of the
agents or employees of those persons
and entities, to recruit prospective
foreign workers for the H–2A job
opportunity.
(c) The employer must continue to
keep the foreign labor recruiter
information referenced in paragraphs (a)
and (b) of this section up to date until
the end of the work contract period. The
employer must retain the updated
information in accordance with
§ 655.167(c)(8) and must make this
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updated information available in the
event of a post-certification audit or
upon request by the Department. The
Department may share the foreign
worker recruitment information it
receives from employers with any other
Federal agency, as appropriate for
investigative or enforcement purpose, as
set forth in § 655.130(f).
(d) The Department of Labor will
maintain a publicly available list of
agents and recruiters (including
government registration numbers, if
any) who are party to the agreements
employers submit, as well as the
persons and entities the employer
identified as hired by or working for the
recruiter and the locations in which
they are operating.
■ 14. Amend § 655.145 by revising the
section heading and paragraph (b) to
read as follows:
§ 655.145 Pre-determination amendments
to applications for temporary employment
certification.
*
*
*
*
(b) Minor changes to the period of
employment. The Application for
Temporary Employment Certification
may be amended to make minor changes
in the total period of employment before
the CO issues a final determination.
Changes will not be effective until
submitted in writing and approved by
the CO. In considering whether to
approve the request, the CO will review
the reason(s) for the request, determine
whether the reason(s) are on the whole
justified, and take into account the
effect any change(s) would have on the
adequacy of the underlying test of the
domestic labor market for the job
opportunity. An employer must
demonstrate that the change to the
period of employment could not have
been foreseen, and the crops or
commodities will be in jeopardy prior to
the expiration of an additional
recruitment period. Upon acceptance of
an amendment, the CO will submit to
the SWA any necessary modification to
the job order.
■ 15. Amend § 655.167 by revising
paragraphs (c)(6) and (7) and adding
paragraphs (c)(8) through (12) to read as
follows:
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§ 655.167 Document retention
requirements of H–2A employers.
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(c) * * *
(6) The work contract or a copy of the
Application for Temporary Employment
Certification as defined in § 655.103(b)
and specified in § 655.122(q).
(7) If applicable, records of notice to
the NPC and to DHS of the
abandonment of employment or
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termination for cause of a worker as set
forth in § 655.122(n).
(8) Written contracts with agents or
recruiters as specified in § 655.137(a)
and the identities and locations of
persons hired by or working for the
agent or recruiter and the agents and
employees of these agents and
recruiters, as specified in § 655.137(b).
(9) The identity, location, and contact
information of all persons who are the
owners of each employer, as specified in
§ 655.130(a)(2), and the identity,
location, and contact information of all
persons and entities who are the
operators of the place of employment (if
different than the employers) and of all
persons who manage or supervise any
worker employed under the application,
as specified in § 655.130(a)(3).
(10) If applicable, disciplinary
records, including each step of
progressive discipline, any evidence the
worker presented in their defense, any
investigation related to the termination,
and any subsequent instruction afforded
the worker.
(11) If applicable, records indicating
the reason(s) for termination of any
worker, including disciplinary records
described in § 655.122(n)(4)(ii) and this
section, relating to the termination as set
forth in § 655.122(n).
(12) If applicable, evidence
demonstrating the employer notified the
SWA and each worker of an unforeseen
minor delay in the start date of need, as
specified in § 655.175(b)(2)(i).
*
*
*
*
*
■ 16. Add § 655.175 to read as follows:
§ 655.175 Post-certification changes to
applications for temporary employment
certification.
(a) No post-certification changes. The
Application for Temporary Employment
Certification may not be changed after
certification, except where authorized in
this subpart. The employer is obligated
to comply with the terms and
conditions of employment contained in
the Application for Temporary
Employment Certification and job order
with respect to all workers recruited in
connection with its certification.
(b) Post-certification changes to the
first date of work. Where the work under
the approved Application for
Temporary Employment Certification
will not begin on the first date of need
certified and will be delayed for a
period of no more than 14 calendar
days, due to circumstances that could
not have been foreseen, and the crops or
commodities will be in jeopardy prior to
the expiration of an additional
recruitment period, the employer need
not withdraw an approved Application
for Temporary Employment
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Certification, provided the employer
complies with the obligations at
paragraphs (b)(1) and (2) of this section.
(1) In the event of a minor delay (no
more than 14 calendar days), the
employer must provide to all workers
who are already traveling to the place of
employment, upon their arrival and
without cost to the workers until work
commences, daily subsistence in the
same amount required during travel
under § 655.122(h)(1), except for days
for which the worker receives
compensation under paragraph (b)(2)(ii)
of this section. The employer must
fulfill this subsistence obligation to the
worker no later than the first date the
worker would have been paid had they
begun employment on time. Employers
must comply with all other
requirements of the certified
Application for Temporary Employment
Certification beginning on the first date
of need certified, including but not
limited to housing under § 655.122(d).
(2)(i) In the event of a minor delay (no
more than 14 calendar days), the
employer must notify the SWA and each
worker to be employed under the
approved Application for Temporary
Employment Certification of the delay at
least 10 business days before the
certified start date of need. The
employer must contact the worker in
writing (email and other forms of
electronic and written notification are
acceptable), using the contact
information the worker provided to the
employer. The employer must retain
evidence of such notification under
§ 655.167.
(ii) If the employer fails to provide
timely notification required under
paragraph (b)(2)(i) of this section to any
worker(s), the employer must pay such
worker(s) the same rate of pay required
under this subpart, for each hour of the
offered work schedule in the job order,
for each day that work is delayed, for a
period up to 14 calendar days. The
employer must fulfill this obligation to
the worker no later than the first date
the worker would have been paid had
they begun employment on time.
(iii) For purposes of an employer’s
compliance with the three-fourths
guarantee under § 655.122(i), any
compensation paid to a worker under
paragraph (b)(2)(ii) of this section for
any workday included within the time
period described in § 655.122(i) will be
considered hours offered to the worker.
■ 17. Amend § 655.181 by revising
paragraph (a)(1) to read as follows:
§ 655.181
Revocation.
(a) * * *
(1) The issuance of the temporary
agricultural labor certification was not
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justified due to fraud or
misrepresentation in the application
process, including because the
certification was issued in error to a
debarred employer, including a
successor in interest, during the period
of debarment as set forth in
§ 655.182(c)(2);
*
*
*
*
*
■ 18. Amend § 655.182 by revising
paragraphs (a), (b), (d)(1)(viii), (f)(1)
through (4), and (f)(5)(i) to read as
follows:
ddrumheller on DSK120RN23PROD with PROPOSALS2
§ 655.182
Debarment.
(a) Debarment of an employer, agent,
or attorney. The OFLC Administrator
may debar an employer, agent, or
attorney from participating in any action
under 8 U.S.C. 1188, this subpart, or 29
CFR part 501 subject to the time limits
set forth in paragraph (c) of this section,
if the OFLC Administrator finds that the
employer, agent, or attorney
substantially violated a material term or
condition of the temporary agricultural
labor certification, with respect to H–2A
workers; workers in corresponding
employment; or U.S. workers
improperly rejected for employment, or
improperly laid off or displaced.
(b) Effect on future applications. (1)
No application for H–2A workers may
be filed by or on behalf of a debarred
employer, or by an employer
represented by a debarred agent or
attorney, subject to the term limits set
forth in paragraph (c)(2) of this section.
If such an application is filed, it will be
denied without review.
(2) No application for H–2A workers
may be filed by or on behalf of a
successor in interest to a debarred
employer, agent, or attorney, subject to
the term limits set forth in paragraph
(c)(2) of this section. If the CO
determines that such an application is
filed, the CO will issue a NOD pursuant
to § 655.141 or deny the application
pursuant to § 655.164, as appropriate
depending upon the status of the
Application for Temporary Employment
Certification, solely on the basis that the
entity is a successor in interest to a
debarred employer, agent, or attorney.
The employer, agent, or attorney may
appeal its status as a successor in
interest to the debarred entity, pursuant
to the procedures for appeals of CO
determinations at § 655.171.
*
*
*
*
*
(d) * * *
(1) * * *
(viii) A violation of the requirements
of § 655.135(j), (k), or (o);
*
*
*
*
*
(f) * * *
(1) Notice of debarment. If the OFLC
Administrator makes a determination to
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debar an employer, agent, or attorney,
the OFLC Administrator will send the
party a Notice of Debarment. The Notice
will state the reason for the debarment
finding, including a detailed
explanation of the grounds for and the
duration of the debarment, and it will
inform the party subject to the Notice of
its right to submit rebuttal evidence or
to request a debarment hearing. If the
party does not file rebuttal evidence or
request a hearing within 14 calendar
days of the date of the Notice of
Debarment, the Notice will be the final
agency action and the debarment will
take effect at the end of the 14-day
period.
(2) Rebuttal. The party who received
the Notice of Debarment may choose to
submit evidence to rebut the grounds
stated in the Notice within 14 calendar
days of the date the Notice is issued. If
rebuttal evidence is timely filed, the
OFLC Administrator will issue a final
determination on the debarment within
30 calendar days of receiving the
rebuttal evidence. If the OFLC
Administrator determines that the party
should be debarred, the OFLC
Administrator will inform the party of
its right to request a debarment hearing
according to the procedures of
paragraph (f)(3) of this section. The
party must request a hearing within 14
calendar days after the date of the OFLC
Administrator’s final determination, or
the OFLC Administrator’s determination
will be the final agency action and the
debarment will take effect at the end of
the 14-calendar-day period.
(i) The OFLC Administrator may grant
one extension of the time period for
filing rebuttal evidence for any party
that has shown good and substantial
cause.
(ii) If the party seeks to request a onetime extension of time to submit
rebuttal evidence, the party must make
the request in writing to the OFLC
Administrator and the written request
for extension must be received by the
OFLC Administrator within 14 calendar
days of the date the Notice of Debarment
is issued. Such a request must be made
in writing to the OFLC Administrator.
(iii) Only requests that include
detailed information and supporting
documentation describing the good and
substantial cause that has necessitated
the one-time extension request may be
granted. Good and substantial cause
may include, but is not limited to,
health-related emergencies, catastrophic
fire- or weather-related incidents, or
other similar conditions that are wholly
outside the party’s control and hinder
the party’s ability to respond with
rebuttal evidence within the required
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timeframe. A denial of a one-time
extension request is not appealable.
(3) Hearing. The recipient of a Notice
of Debarment may request a debarment
hearing within 14 calendar days of the
date of a Notice of Debarment or the
date of a final determination of the
OFLC Administrator after review of
rebuttal evidence submitted pursuant to
paragraph (f)(2) of this section. To
obtain a debarment hearing, the
debarred party must, within 14 calendar
days of the date of the Notice or the
final determination, file a written
request to the Chief Administrative Law
Judge, United States Department of
Labor, 800 K Street NW, Suite 400–N,
Washington, DC 20001–8002, and
simultaneously serve a copy to the
OFLC Administrator. The debarment
will take effect 14 calendar days from
the date the Notice of Debarment or
final determination is issued, unless a
request for review is properly filed
within 14 calendar days from the
issuance of the Notice of Debarment or
final determination. The timely filing of
a request for a hearing stays the
debarment pending the outcome of the
hearing. Within 10 calendar days of
receipt of the request for a hearing, the
OFLC Administrator will send a
certified copy of the ETA case file to the
Chief ALJ by means normally assuring
next-day delivery. The Chief ALJ will
immediately assign an ALJ to conduct
the hearing. The procedures in 29 CFR
part 18 apply to such hearings, except
that the request for a hearing will not be
considered to be a complaint to which
an answer is required.
(4) Decision. After the hearing, the
ALJ must affirm, reverse, or modify the
OFLC Administrator’s determination.
The ALJ will prepare the decision
within 60 calendar days after
completion of the hearing and closing of
the record. The ALJ’s decision will be
provided immediately to the parties to
the debarment hearing by means
normally assuring next-day delivery.
The ALJ’s decision is the final agency
action, unless either party, within 14
calendar days of the ALJ’s decision,
seeks review of the decision with the
Administrative Review Board (ARB).
(5) * * *
(i) Any party wishing review of the
decision of an ALJ must, within 14
calendar days of the decision of the ALJ,
petition the ARB to review the decision.
Copies of the petition must be served on
all parties and on the ALJ. The ARB will
decide whether to accept the petition
within 30 calendar days of receipt. If the
ARB declines to accept the petition, or
if the ARB does not issue a notice
accepting a petition within 30 calendar
days after the receipt of a timely filing
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of the petition, the decision of the ALJ
will be deemed the final agency action.
If a petition for review is accepted, the
decision of the ALJ will be stayed unless
and until the ARB issues an order
affirming the decision. The ARB must
serve notice of its decision to accept or
not to accept the petition upon the ALJ
and upon all parties to the proceeding.
*
*
*
*
*
■ 19. Add § 655.190 to read as follows:
§ 655.190
Severability.
If any provision of this subpart is held
to be invalid or unenforceable by its
terms, or as applied to any person or
circumstance, or stayed pending further
agency action, the provision shall be
construed so as to continue to give the
maximum effect to the provision
permitted by law, unless such holding
is one of total invalidity or
unenforceability, in which event the
provision or sub-provision shall be
severable from this subpart and shall
not affect the remainder thereof.
■ 20. Amend § 655.210 by adding
paragraph (g)(3) to read as follows:
§ 655.210 Contents of herding and range
livestock job orders.
*
*
*
*
*
(g) * * *
(3) If applicable, the employer must
state in the job order:
(i) That overtime hours may be
available;
(ii) The wage rate(s) to be paid for any
such overtime hours;
(iii) The circumstances under which
the wage rate(s) for overtime hours will
be paid, including, but not limited to,
after how many hours in a day or
workweek the overtime wage rate will
be paid, and whether overtime wage
rates will vary between-place(s) of
employment; and
(iv) Where the overtime pay is
required by law, the applicable Federal,
State, or local law requiring the
overtime pay.
*
*
*
*
*
PART 658—ADMINISTRATIVE
PROVISIONS GOVERNING THE
WAGNER-PEYSER ACT EMPLOYMENT
SERVICE
21. The authority citation for part 658
continues to read as follows:
ddrumheller on DSK120RN23PROD with PROPOSALS2
■
Authority: Secs. 189, 503, Pub. L. 113–
128, 128 Stat. 1425 (Jul. 22, 2014); 29 U.S.C.
chapter 4B.
22. Revise § 658.500 to read as
follows:
■
§ 658.500
Scope and purpose of subpart.
(a) This subpart contains the
regulations governing the
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discontinuation of services provided by
the ES to employers pursuant to parts
652 and 653 of this chapter.
(b) For purposes of this subpart only,
where the term ‘‘employer’’ is used, it
refers to employers, agents, farm labor
contractors, joint employers, and
successors in interest to any employer,
agent, farm labor contractor, or joint
employer, as defined at § 651.10 of this
chapter.
■ 23. Amend § 658.501 by:
■ a. Revising paragraphs (a)(1), (2), and
(4) through (8) and (b); and
■ b. Removing paragraph (c).
The revisions read as follows:
§ 658.501
services.
Basis for discontinuation of
(a) * * *
(1) Submit and refuse to correct or
withdraw job orders containing terms
and conditions which are contrary to
employment-related laws;
(2) Submit job orders and refuse to
provide assurances, or refuse to
withdraw job orders that do not contain
assurances, required pursuant to the
Agricultural Recruitment System for
U.S. Workers at part 653, subpart F, of
this chapter;
*
*
*
*
*
(4) Are found by a final determination
by an appropriate enforcement agency
to have violated any employmentrelated laws and notification of this
final determination has been provided
to the Department or the SWA by that
enforcement agency, including those
who are currently debarred from
participating in the H–2A or H–2B
foreign labor certification programs
pursuant to § 655.73 or § 655.182 of this
chapter or 29 CFR 501.20 or 503.24;
(5) Are found to have violated ES
regulations pursuant to § 658.411 or
§ 658.419;
(6) Refuse to accept qualified workers
referred through the clearance system
for criteria clearance orders filed
pursuant to part 655, subpart B, of this
chapter;
(7) Refuse to cooperate in field checks
conducted pursuant to § 653.503 of this
chapter; or
(8) Repeatedly cause the initiation of
the procedures for discontinuation of
services pursuant to paragraphs (a)(1)
through (7) of this section.
(b) If an ES office or SWA has
information that an employer
participating in the ES may not have
complied with the terms of its current
or prior temporary labor certification,
under, for example the H–2A and H–2B
visa programs, SWA officials must
determine whether there is a basis
under paragraph (a) of this section for
which the SWA must initiate
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procedures for discontinuation of
services. SWA officials must
simultaneously notify the OFLC
National Processing Center of the
alleged non-compliance.
■ 24. Revise § 658.502 to read as
follows:
§ 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 employmentrelated 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; or
(ii) Withdraws the terms and
conditions and resubmits the job order
in compliance with all employmentrelated 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
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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; or
(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
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(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
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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.
■ 25. Revise § 658.503 to read as
follows:
§ 658.503
Discontinuation of services.
(a) Within 20 working days of receipt
of the employer’s response to the SWA’s
notification under § 658.502(a), or at
least 20 working days after the SWA’s
notification has been received by the
employer if the SWA does not receive
a response, the SWA must notify the
employer in writing of its final
determination. If the SWA determines
that the employer did not provide a
satisfactory response in accordance with
§ 658.502(a), the SWA’s notification
must specify the reasons for its
determination and state that the
discontinuation of services is effective
20 working days from the date of the
notification. The notification must also
state that the employer may request
reinstatement or appeal the
determination by requesting a hearing
pursuant to § 658.504, and that a request
for a hearing stays the discontinuation
pending the outcome of the hearing. If
the employer does not request a hearing,
the SWA must also notify the ETA
Office of Workforce Investment of any
final determination to discontinue ES
services within 10 working days of the
date the determination becomes
effective.
(b) Where the SWA discontinues
services immediately under
§ 658.502(b), the SWA’s written
notification must specify the facts
supporting the applicable basis for
discontinuation under § 658.501(a), the
reasons that exhaustion of the
administrative procedures would cause
substantial harm to workers, and that
services are discontinued as of the date
of the notification. The notification
must also state that the employer may
request reinstatement or appeal the
determination by requesting a hearing
pursuant to § 658.504, and that a request
for a hearing relating to immediate
discontinuation does not stay the
discontinuation pending the outcome of
the hearing. Within 10 working days of
the date of issuance, the SWA must also
notify the ETA Office of Workforce
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Investment of any determination to
immediately discontinue ES services.
(c) If the SWA discontinues services
to an employer that is subject to Federal
Contractor Job Listing Requirements, the
SWA must notify the ETA regional
office immediately.
(d) If the SWA discontinues services
to an employer based on a complaint
filed pursuant to § 658.411, the SWA
must notify the complainant of the
employer’s discontinuation of services.
(e) If the SWA discontinues services
to an employer, the employer cannot
participate in or receive Wagner-Peyser
Act ES Services provided by the ES,
including by any SWA, to employers
pursuant to parts 652 and 653 of this
chapter. From the date of
discontinuance, the SWA that issued
the determination must remove the
employer’s active job orders from the
clearance system. No SWA may process
any future job orders from the employer
or provide any other services pursuant
to parts 652 and 653 of this chapter to
the employer unless services have been
reinstated under § 658.504.
(f) SWAs must continue to provide
the full range of ES and other
appropriate services to workers whose
employers experience discontinuation
of services under this subpart.
■ 26. Revise § 658.504 to read as
follows:
ddrumheller on DSK120RN23PROD with PROPOSALS2
§ 658.504
Reinstatement of services.
(a) Where the SWA discontinues
services to an employer under
§ 658.502(b) or § 658.503, the employer
may submit a written request for
reinstatement of services to the SWA or
may, within 20 working days of
receiving notice of the SWA’s final
determination, appeal the
discontinuation by submitting a written
request for a hearing.
(b) If the employer submits a written
request for reinstatement of services to
the SWA:
(1) Within 20 working days of receipt
of the employer’s request for
reinstatement, the SWA must notify the
employer of its decision to grant or deny
the request. If the SWA denies the
request for reinstatement, it must
specify the reasons for the denial and
notify the employer that it may request
a hearing, in accordance with paragraph
(c) of this section, within 20 working
days.
(2) The SWA must reinstate services
if:
(i) The employer provides adequate
evidence that the policies, procedures,
or conditions responsible for the
previous discontinuation of services
have been corrected and that the same
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or similar circumstances are not likely
to occur in the future; and
(ii) The employer provides adequate
evidence that it has responded to all
findings of an enforcement agency,
SWA, or ETA, including payment of any
fines or restitution to remediate the
violation, which were the basis of the
discontinuation of services, if
applicable.
(c) If the employer submits a timely
request for a hearing:
(1) The SWA must follow the
procedures set forth in § 658.417.
(2) The SWA must reinstate services
to the employer if ordered to do so by
a State hearing official, Regional
Administrator, or Federal
Administrative Law Judge as a result of
a hearing offered pursuant to paragraph
(c)(1) of this section.
(d) Within 10 working days of the
date of issuance, the SWA must notify
the ETA Office of Workforce Investment
of any determination to reinstate ES
services, or any decision on appeal
upholding a SWA’s determination to
discontinue services.
TITLE 29: LABOR
Wage and Hour Division
PART 501—ENFORCEMENT OF
CONTRACTUAL OBLIGATIONS FOR
TEMPORARY ALIEN AGRICULTURAL
WORKERS ADMITTED UNDER
SECTION 218 OF THE IMMIGRATION
AND NATIONALITY ACT
27. The authority citation for part 501
continues to read as follows:
■
Authority: 8 U.S.C. 1101(a)(15)(H)(ii)(a),
1184(c), and 1188; 28 U.S.C. 2461 note; and
sec. 701, Pub. L. 114–74, 129 Stat. 584.
28. Amend § 501.3 by:
a. In paragraph (a), adding the
definitions of Key service provider and
Labor organization in alphabetical order
and removing the definition of
Successor in interest; and
■ b. Adding paragraph (d).
The additions read as follows:
■
■
§ 501.3
Definitions.
(a) * * *
Key service provider. A health-care
provider; a community health worker;
an education provider; an attorney, legal
advocate, or other legal service provider;
a government official, including a
consular representative; a member of the
clergy; and any other service provider to
which a worker may need access.
Labor organization. Any organization
of any kind, or any agency or employee
representation committee or plan, in
which workers participate and which
exists for the purpose, in whole or in
part, of dealing with employers
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concerning grievances, labor disputes,
wages, rates of pay, hours of
employment, or conditions of work.
*
*
*
*
*
(d) Definition of single employer for
purposes of temporary or seasonal need
and contractual obligations. Separate
entities will be deemed a single
employer (sometimes referred to as an
‘‘integrated employer’’) for purposes of
assessing temporary or seasonal need
and for enforcement of contractual
obligations if they meet the definition of
single employer in this paragraph (d).
Under the definition of single employer,
a determination of whether separate
entities are a single employer is not
determined by a single factor, but rather
the entire relationship is viewed in its
totality. Factors considered in
determining whether two or more
entities consist of a single employer
include:
(1) Common management;
(2) Interrelation between operations;
(3) Centralized control of labor
relations; and
(4) Degree of common ownership/
financial control.
■ 29. Amend § 501.4 by revising
paragraph (a) to read as follows:
§ 501.4
Discrimination prohibited.
(a)(1) A person may not intimidate,
threaten, restrain, coerce, blacklist,
discharge, or in any manner
discriminate against any person who
has:
(i) Filed a complaint under or related
to 8 U.S.C. 1188 or this part;
(ii) Instituted or caused to be
instituted any proceedings related to 8
U.S.C. 1188, 20 CFR part 655, subpart B,
or this part;
(iii) Testified or is about to testify in
any proceeding under or related to 8
U.S.C. 1188, 20 CFR part 655, subpart B,
or this part;
(iv) Consulted with an employee of a
legal assistance program or an attorney
on matters related to 8 U.S.C. 1188, 20
CFR part 655, subpart B, or this part;
(v) Consulted with a key service
provider on matters related to 8 U.S.C.
1188, 20 CFR part 655, subpart B, or this
part;
(vi) Exercised or asserted on behalf of
themself or others any right or
protection afforded by 8 U.S.C. 1188, 20
CFR part 655, subpart B, or this part; or
(vii) Filed a complaint, instituted or
caused to be instituted any proceeding,
or testified or is about to testify in any
proceeding under or related to any
applicable Federal, State, or local laws
or regulations, including safety and
health laws.
(2) With respect to any person
engaged in agriculture as defined and
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applied in 29 U.S.C. 203(f), a person
may not intimidate, threaten, restrain,
coerce, blacklist, discharge or in any
manner discriminate against, and may
not cause any person to intimidate,
threaten, restrain, coerce, blacklist, or in
any manner discriminate against, any
person who has engaged in activities
related to self-organization, including:
any effort to form, join, or assist a labor
organization; a secondary activity such
as a secondary boycott or picket; or
other concerted activities for the
purpose of mutual aid or protection
relating to wages or working conditions;
or refused to engage in any or all of such
activities except to the extent that such
right may be affected by an agreement
requiring membership in a labor
organization as a condition of
employment.
*
*
*
*
*
■ 30. Add § 501.10 to subpart A to read
as follows:
§ 501.10
Severability.
If any provision of this part is held to
be invalid or unenforceable by its terms,
or as applied to any person or
circumstance, or stayed pending further
agency action, the provision shall be
construed so as to continue to give the
maximum effect to the provision
permitted by law, unless such holding
is one of total invalidity or
unenforceability, in which event the
provision or sub-provision shall be
severable from this part and shall not
affect the remainder thereof.
■ 31. Amend § 501.20 by revising
paragraphs (a), (b), (d)(1)(viii), and (e)
and adding paragraph (j) to read as
follows:
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§ 501.20
Debarment and revocation.
(a) Debarment of an employer, agent,
or attorney. The WHD Administrator
may debar an employer, agent, or
attorney from participating in any action
under 8 U.S.C. 1188, 20 CFR part 655,
subpart B, or this part, subject to the
time limits set forth in paragraph (c) of
this section, if the WHD Administrator
finds that the employer, agent, or
attorney substantially violated a
material term or condition of the
temporary agricultural labor
certification, with respect to H–2A
workers, workers in corresponding
employment, or U.S. workers
improperly rejected for employment, or
improperly laid off or displaced, by
issuing a Notice of Debarment.
(b) Effect on future applications. (1)
No application for H–2A workers may
be filed by or on behalf of a debarred
employer, or by an employer
represented by a debarred agent or
attorney, subject to the time limits set
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18:55 Sep 14, 2023
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forth in paragraph (c)(2) of this section.
If such an application is filed, it will be
denied without review.
(2) No application for H–2A workers
may be filed by or on behalf of a
successor in interest, as defined in 20
CFR 655.104, to a debarred employer,
agent, or attorney, subject to the term
limits set forth in paragraph (c)(2) of this
section. If the CO determines that such
an application is filed, the CO will issue
a Notice of Deficiency (NOD) pursuant
to 20 CFR 655.141 or deny the
application pursuant to 20 CFR 655.164,
as appropriate depending upon the
status of the Application for Temporary
Employment Certification, solely on the
basis that the entity is a successor in
interest to a debarred employer, agent,
or attorney. The employer, agent, or
attorney may appeal its status as a
successor in interest to the debarred
entity, pursuant to the procedures for
appeals of CO determinations at 20 CFR
655.171.
*
*
*
*
*
(d) * * *
(1) * * *
(viii) A violation of the requirements
of 20 CFR 655.135(j), (k), or (o);
*
*
*
*
*
(e) Procedural requirements. The
Notice of Debarment must be in writing,
must state the reason for the debarment
finding, including a detailed
explanation of the grounds for and the
duration of the debarment, must
identify appeal opportunities under
§ 501.33 and a timeframe under which
such rights must be exercised and must
comply with § 501.32. The debarment
will take effect 14 calendar days from
the date the Notice of Debarment is
issued, unless a request for review is
properly filed within 14 calendar days
from the issuance of the Notice of
Debarment. The timely filing of an
administrative appeal stays the
debarment pending the outcome of the
appeal as provided in § 501.33(d).
*
*
*
*
*
(j) Successors in interest. When an
employer, agent, or attorney is debarred
under this section, any successor in
interest to the debarred employer, agent,
or attorney is also debarred, regardless
of whether the successor is named or
not named in the notice of debarment
issued under paragraph (a) of this
section.
■ 32. Amend § 501.33 by revising
paragraphs (a), (b)(2), and (c) to read as
follows:
§ 501.33
Request for hearing.
(a)(1) Any person desiring review of a
determination referred to in § 501.32,
including judicial review, except any
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63831
determination that includes debarment,
shall make a written request for an
administrative hearing to the official
who issued the determination at the
WHD address appearing on the
determination notice, no later than 30
calendar days after the date of issuance
of the notice referred to in § 501.32.
(2) Any person desiring review of any
determination that includes debarment,
including judicial review, shall make a
written request for an administrative
hearing to the official who issued the
determination at the WHD address
appearing on the determination notice,
no later than 14 calendar days after the
date of issuance of the notice referred to
in § 501.32.
(b) * * *
(2) Specify the issue or issues stated
in the notice of determination giving
rise to such request (any issues not
raised in the request ordinarily will be
deemed waived);
*
*
*
*
*
(c) The request for such hearing must
be received by the official who issued
the determination, at the WHD address
appearing on the determination notice,
within the time set forth in paragraph
(a)(1) or (2) of this section. Requests may
be made by certified mail or by means
normally assuring overnight delivery.
*
*
*
*
*
■ 33. Amend § 501.42 by revising
paragraph (a) to read as follows:
§ 501.42 Procedures for initiating and
undertaking review.
(a) A respondent, WHD, or any other
party wishing review, including judicial
review, of a decision of an ALJ not
including debarment must, within 30
calendar days of the decision of the ALJ,
petition the ARB to review the decision.
A respondent, WHD, or any other party
wishing review, including judicial
review, of a decision of an ALJ
involving debarment must, within 14
calendar days of the decision of the ALJ,
petition the ARB to review the decision.
Copies of the petition must be served on
all parties and on the ALJ. If the ARB
does not issue a notice accepting a
petition for review of any decision
(whether involving debarment, or not)
within 30 calendar days after receipt of
a timely filing of the petition, the
decision of the ALJ will be deemed the
final agency action. If within 30
calendar days of the date of a decision
not involving debarment, or within 14
calendar days of the date of a decision
involving debarment no petition has
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been received, the decision of the ALJ
will be deemed the final agency action.
*
*
*
*
*
Julie A. Su,
Acting Secretary of Labor.
[FR Doc. 2023–19852 Filed 9–13–23; 8:45 am]
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Agencies
[Federal Register Volume 88, Number 178 (Friday, September 15, 2023)]
[Proposed Rules]
[Pages 63750-63832]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-19852]
[[Page 63749]]
Vol. 88
Friday,
No. 178
September 15, 2023
Part III
Department of Labor
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Employment and Training Administration
Wage and Hour Division
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20 CFR Parts 651, 653, 655, et al.
29 CFR Part 501
Improving Protections for Workers in Temporary Agricultural Employment
in the United States; Proposed Rule
Federal Register / Vol. 88 , No. 178 / Friday, September 15, 2023 /
Proposed Rules
[[Page 63750]]
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DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Parts 651, 653, 655, and 658
Wage and Hour Division
29 CFR Part 501
[DOL Docket No. ETA-2023-0003]
RIN 1205-AC12
Improving Protections for Workers in Temporary Agricultural
Employment in the United States
AGENCY: Employment and Training Administration and Wage and Hour
Division, Department of Labor.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Department of Labor (Department or DOL) proposes to amend
its regulations governing the certification of temporary employment of
nonimmigrant workers employed in temporary or seasonal agricultural
employment and the enforcement of the contractual obligations
applicable to employers of these nonimmigrant workers. The revisions
proposed in this notice of proposed rulemaking (NPRM or proposed rule)
focus on strengthening protections for temporary agricultural workers
and enhancing the Department's capabilities to monitor program
compliance and take necessary enforcement actions against program
violators.
DATES: Interested persons are invited to submit written comments on the
proposed rule on or before November 14, 2023.
ADDRESSES: You may submit comments electronically by the following
method:
Federal eRulemaking Portal: https://www.regulations.gov. Follow the
instructions on the website for submitting comments.
Instructions: Include the agency's name and docket number ETA-2023-
0003 in your comments. All comments received will become a matter of
public record and will be posted without change to https://www.regulations.gov. Please do not include any personally identifiable
or confidential business information you do not want publicly
disclosed.
FOR FURTHER INFORMATION CONTACT: For further information regarding 20
CFR parts 651, 653, and 658, contact Kimberly Vitelli, Administrator,
Office of Workforce Investment, Employment and Training Administration,
Department of Labor, Room C-4526, 200 Constitution Avenue NW,
Washington, DC 20210, telephone: (202) 693-3980 (this is not a toll-
free number). For further information regarding 20 CFR part 655,
contact Brian Pasternak, Administrator, Office of Foreign Labor
Certification, Employment and Training Administration, Department of
Labor, 200 Constitution Avenue NW, Room N-5311, Washington, DC 20210,
telephone: (202) 693-8200 (this is not a toll-free number). For further
information regarding 29 CFR part 501, contact Amy DeBisschop, Director
of the Division of Regulations, Legislation, and Interpretation, Wage
and Hour Division, Department of Labor, Room S-3502, 200 Constitution
Avenue NW, Washington, DC 20210, telephone: (202) 693-0406 (this is not
a toll-free number). Individuals with hearing or speech impairments may
access the telephone number above via TTY by calling the toll-free
Federal Information Relay Service at 1-800-877-5627.
SUPPLEMENTARY INFORMATION:
Preamble Table of Contents
I. Acronyms and Abbreviations
II. Background and Overview
A. Legal Authority
B. Current Regulatory Framework
C. Need for Rulemaking
D. Summary of Major Provisions of This Proposed Rule
III. Discussion of Proposed Revisions to Employment Service
Regulations
A. Introduction
B. Discussion of Proposed Revisions to 20 CFR Part 651
C. Discussion of Proposed Revisions to 20 CFR Part 653
D. Discussion of Proposed Revisions to 20 CFR Part 658, Subpart
F
IV. Discussion of Proposed Revisions to 20 CFR Part 655, Subpart B
A. Introductory Sections
B. Prefiling Procedures
C. Application for Temporary Employment Certification Filing
Procedures
D. Labor Certification Determinations
E. Post-Certification
F. Integrity Measures
V. Discussion of Proposed Revisions to 29 CFR Part 501
A. Section 501.3 Definitions
B. Section 501.4 Discrimination Prohibited
C. Section 501.10 Severability
D. Sections 501.20, 501.33, 501.42 Debarment and Revocation
E. Section 501.33 Request for Hearing
VI. Administrative Information
A. Executive Order 12866: Regulatory Planning and Review;
Executive Order 14094: Modernizing Regulatory Review; and Executive
Order 13563: Improving Regulation and Regulatory Review
B. Regulatory Flexibility Analysis and Small Business Regulatory
Enforcement Fairness Act and Executive Order 13272: Proper
Consideration of Small Entities in Agency Rulemaking
C. Paperwork Reduction Act
D. Unfunded Mandates Reform Act of 1995
E. Executive Order 13132 (Federalism)
F. Executive Order 13175 (Consultation and Coordination With
Indian Tribal Governments)
I. Acronyms and Abbreviations
AEWR Adverse effect wage rate
AIE Area(s) of intended employment
ALJ Administrative Law Judge
AOWL Agricultural Online Wage Library
ARB Administrative Review Board
ARIMA Autoregressive integrated moving average
BALCA Board of Alien Labor Certification Appeals
BLS Bureau of Labor Statistics
CBA Collective bargaining agreement
CDC Centers for Disease Control and Prevention
CFR Code of Federal Regulations
CO Certifying Officer
CY Calendar year
DBA Doing Business As
DHS Department of Homeland Security
DOJ Department of Justice
DOL Department of Labor
DOT Department of Transportation
EEOC Equal Employment Opportunity Commission
E.O. Executive Order
ES Employment Service
ES system Employment Service system
ETA Employment and Training Administration
FEIN Federal Employer Identification Number
FLS Farm Labor Survey
FLSA Fair Labor Standards Act
FR Federal Register
FY Fiscal year
GAO Government Accountability Office
GHSA Governors Highway Safety Association
GVWR Gross vehicle weight rating
H-2ALC H-2A labor contractor
HR Human resources
ICR Information Collection Request
INA Immigration and Nationality Act
IRCA Immigration Reform and Control Act of 1986
MSFW Migrant or seasonal farmworker
MSPA Migrant and Seasonal Agricultural Worker Protection Act
NAICS North American Industry Classification System
NGO Nongovernmental organization
NHTSA National Highway Traffic Safety Administration
NLRA National Labor Relations Act
NLRB National Labor Relations Board
NMA National Monitor Advocate
NOD Notice of Deficiency
NPC National Processing Center
NPRM Notice of proposed rulemaking
OALJ Office of Administrative Law Judges
OEWS Occupational Employment and Wage Statistics
OFLC Office of Foreign Labor Certification
OIG Office of Inspector General
OIRA Office of Information and Regulatory Affairs
OMB Office of Management and Budget
OSHA Occupational Safety and Health Administration
PRA Paperwork Reduction Act
[[Page 63751]]
Pub.L. Public Law
PY Program year
RFA Regulatory Flexibility Act
RIN Regulation Identifier Number
SBA Small Business Administration
Sec. Section of a Public Law
Secretary Secretary of Labor
SOC Standard Occupational Classification
Stat. U.S. Statutes at Large
SWA State workforce agency
TVPA Victims of Trafficking and Violence Protection Act of 2000
UMRA Unfunded Mandates Reform Act of 1995
U.S. United States
U.S.C. United States Code
USDA U.S. Department of Agriculture
VSL Value of a statistical life
WHD Wage and Hour Division
II. Background and Overview
A. Legal Authority
The Immigration and Nationality Act (INA), as amended by the
Immigration Reform and Control Act of 1986 (IRCA), establishes an ``H-
2A'' nonimmigrant visa classification for a worker ``having a residence
in a foreign country which he has no intention of abandoning who is
coming temporarily to the United States to perform agricultural labor
or services . . . of a temporary or seasonal nature.'' 8 U.S.C.
1101(a)(15)(H)(ii)(a); see also 8 U.S.C. 1184(c)(1) and 1188.\1\
Permanent, year-round job opportunities cannot be classified as
temporary or seasonal. 2022 H-2A Final Rule, 87 FR 61660, 61684 (Oct.
12, 2022); see also 8 U.S.C. 1101(a)(15)(H)(ii)(a) (the INA permits
only ``agricultural labor or services . . . of a temporary or seasonal
nature'' to be performed under the H-2A visa category).
---------------------------------------------------------------------------
\1\ For ease of reference, sections of the INA are referred to
by their corresponding section in the United States Code.
---------------------------------------------------------------------------
The H-2A nonimmigrant worker visa program enables U.S. agricultural
employers to employ foreign workers on a temporary basis to perform
temporary or seasonal agricultural labor or services only where the
Secretary of Labor (Secretary) certifies that (1) 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 (2) the employment of the
foreign worker in such labor or services will not adversely affect the
wages and working conditions of workers in the United States similarly
employed. 8 U.S.C. 1188(a)(1).\2\ The INA prohibits the Secretary from
issuing this certification--known as a ``temporary agricultural labor
certification''--unless both of the above-referenced conditions are
met. The INA further prohibits the Secretary from issuing a temporary
agricultural labor certification if any of the conditions in 8 U.S.C.
1188(b) apply concerning strikes or lock-outs, labor certification
program debarments, workers' compensation assurances, and positive
recruitment.
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\2\ Following certification by DOL, the employer must file an H-
2A petition (defined at 20 CFR 655.103(b) as the U.S. Citizenship
and Immigration Services (USCIS) Form I-129, Petition for a
Nonimmigrant Worker, with H Supplement or successor form and/or
supplement, and accompanying documentation required by DHS for
employers seeking to employ foreign persons as H-2A nonimmigrant
workers) with USCIS, requesting one or more workers not to exceed
the total listed on the temporary labor certification. Generally,
USCIS must approve this petition before the worker(s) can be
considered eligible for an H-2A visa or for H-2A nonimmigrant
status.
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The Secretary has delegated the authority to issue temporary
agricultural labor certifications to the Assistant Secretary for
Employment and Training, who in turn has delegated that authority to
the Employment and Training Administration's (ETA) Office of Foreign
Labor Certification (OFLC). See Secretary's Order 06-2010 (Oct. 20,
2010), 75 FR 66268 (Oct. 27, 2010). In addition, the Secretary has
delegated to WHD the responsibility under 8 U.S.C. 1188(g)(2) to assure
employer compliance with the terms and conditions of employment under
the H-2A program. See Secretary's Order 01-2014 (Dec. 19, 2014), 79 FR
77527 (Dec. 24, 2014). Pursuant to the INA and implementing regulations
promulgated by DOL and the Department of Homeland Security (DHS), DOL
evaluates an employer's need for agricultural labor or services to
determine whether it is seasonal or temporary during the review of an
H-2A Application. 20 CFR 655.161(a); 8 CFR 214.2(h)(5)(i)(A) and
(h)(5)(iv).
B. Current Regulatory Framework
Since 1987, the Department has operated the H-2A temporary labor
certification program under regulations promulgated pursuant to the
INA. The standards and procedures applicable to the certification and
employment of workers under the H-2A program are found in 20 CFR part
655, subpart B, and 29 CFR part 501. The majority of the Department's
current regulations governing the H-2A program were published in 2010
and many were strengthened in a final rule the Department published in
October 2022.\3\ The Department incorporated the provisions for
employment of workers in the herding and production of livestock on the
range into the H-2A regulations, with modifications, in 2015.\4\ The
provisions governing the employment of workers in the herding and
production of livestock on the range are codified at 20 CFR 655.200
through 655.235.\5\
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\3\ Final Rule, Temporary Agricultural Employment of H-2A Aliens
in the United States, 75 FR 6884 (Feb. 12, 2010) (2010 H-2A Final
Rule); Final Rule, Temporary Agricultural Employment of H-2A
Nonimmigrants in the United States, 87 FR 61660 (Oct. 12, 2022)
(2022 H-2A Final Rule).
\4\ Final Rule, Temporary Agricultural Employment of H-2A
Foreign Workers in the Herding or Production of Livestock on the
Range in the United States, 80 FR 62958 (Oct. 16, 2015) (2015 H-2A
Herder Final Rule).
\5\ Consistent with a court-approved settlement agreement in
Hispanic Affairs Project, et al. v. Scalia et al., No. 15-cv-1562
(D.D.C.), the Department recently rescinded 20 CFR 655.215(b)(2).
Final Rule, Adjudication of Temporary and Seasonal Need for Herding
and Production of Livestock on the Range Applications Under the H-2A
Program, 86 FR 71373 (Dec. 16, 2021).
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The Department protects against adverse effect on the wages of
workers in the United States similarly employed, in part, by requiring
at Sec. 655.120(a) that an employer offer, advertise in its
recruitment, and pay a wage that is the highest of the adverse effect
wage rate (AEWR), the prevailing wage, the agreed-upon collective
bargaining wage, the Federal minimum wage, or the State minimum wage.
If an updated AEWR for the occupational classification and geographic
area is published during the work contract and becomes the highest
applicable wage rate, the employer must pay at least the updated AEWR
upon the effective date of the updated AEWR, as published in the
Federal Register. Section 655.120(b)(3). In accordance with Sec.
655.120(b)(2) and (3), the Department publishes the updated AEWR at
least once annually in the Federal Register. One Federal Register
notice provides annual adjustments to the AEWRs for the field and
livestock workers (combined) occupational grouping based on the U.S.
Department of Agriculture's (USDA) publication of the Farm Labor
Reports (better known as the Farm Labor Survey, or FLS), effective on
or about January 1, and a second Federal Register notice will provide
annual adjustments to the AEWRs for all other non-range occupations
based on the Department's Bureau of Labor Statistics' (BLS) publication
of the Occupational Employment and Wage Statistics (OEWS) survey,
effective on or about July 1.\6\ Each notice specifies the effective
date of the new AEWRs, which, in recent notices, has been not
[[Page 63752]]
more than 14 calendar days after publication.
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\6\ 2022 H-2A Final Rule; Final Rule, Adverse Effect Wage Rate
Methodology for the Temporary Employment of H-2A Nonimmigrants in
Non-Range Occupations in the United States, 88 FR 12760 (Feb. 28,
2023) (2023 AEWR Final Rule).
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OFLC currently requires disclosure of information about the
identity of employers, agents, and attorneys, the places where work
will be performed, and the employer's use of a foreign labor recruiter
through the provision of agreements with recruiters when requested by
the certifying officer (CO), which is necessary for the Department to
assess the nature of the employer's job opportunity, monitor program
compliance, and protect program integrity. See Sec. 655.135(k); Form
ETA-9142A; Form ETA-790A; Form ETA-790A, Addendum B. For example,
employers must identify in the H-2A Application and job order all
places of employment, provide the Department a copy of agreements with
foreign labor recruiters that expressly prohibit unlawful fees (upon
request by the CO), and provide identifying information like the
Federal Employer Identification Number (FEIN) and Doing Business As
(DBA) name on the Form ETA-9142A, Form ETA-790A, and Form ETA-790A,
Addendum B. OFLC may provide any information received while processing
H-2A applications, or in the course of conducting program integrity
measures to WHD and to any other Federal agency with authority to
enforce compliance with program requirements and combat fraud and
abuse. Section 655.130(f); 29 CFR 501.2 (providing that WHD and OFLC
may share information with each other and with other agencies as
appropriate for investigative or enforcement purposes). For example,
the Department may refer certain discrimination complaints to the
Department of Justice (DOJ) Civil Rights Division, Immigrant and
Employee Rights Section, under Sec. 655.185, or refer information
related to debarred employers or to employers' fraudulent or willful
misrepresentations to DHS under Sec. Sec. 655.182 and 655.184.
Under Sec. 655.145, an employer may request to amend its
application to increase the number of workers or to make minor changes
to the period of employment. In addition, an employer may request
modifications to its job order under Sec. 655.121(e)(2) before
submitting its H-2A Application. Current Sec. 655.145(b) permits the
employer to submit a request to the CO to delay the start date of need
when the delay is due to unforeseen circumstances and the employer's
crops or commodities will be in jeopardy prior to expiration of an
additional recruitment period. The employer's request to the CO must
explain the circumstances necessitating the request and the employer
must include with the request a written assurance that all workers who
are already traveling to the place of employment will be provided
housing and subsistence, without cost to the workers, until work
commences. The regulations do not permit amendments to an application
after the CO issues a Final Determination. An employer that experiences
changed circumstances after certification is required to submit a new
and substantially similar application and job order.
The regulations implementing the Wagner-Peyser Act establish the
Agricultural Recruitment System (ARS), through which employers can
recruit U.S. workers for agricultural employment opportunities, and
which prospective H-2A employers must use to recruit U.S. workers as a
condition of receiving a temporary labor certification. Among other
things, these regulations require employers to provide notice of
delayed start dates and provide protections for workers in cases where
the employer's start date is delayed. The ARS uses the term
``anticipated'' in relation to start dates and provides a process close
to the start date the employer identified in the job order through
which the employer, the State workforce agency (SWA), and referred
farmworkers communicate regarding the actual start date of work. See
Sec. 653.501(c)(1)(iv)(D), (c)(3)(i) and (iv), (c)(5), and (d)(4).
These regulations currently require an employer to notify the SWA of
start date changes at least 10 business days before the originally
anticipated start date and require the SWA to notify farmworkers that
they should contact the SWA between 9 and 5 business days before the
anticipated start date to verify the actual start date of work. Section
653.501(c)(5) and (d)(4). If an employer fails to timely notify the SWA
of a start date change (i.e., at least 10 business days before the
anticipated first date identified in the job order), beginning on the
first date of need, it must pay eligible workers the specified hourly
rate of pay as stated on the clearance order, or if the pay is piece-
rate, the higher of the Federal or State minimum wage for the first
week or offer alternative work to each farmworker who followed the
procedure to contact the SWA for updated start date information. See
Sec. 653.501(c)(3)(i) and (c)(5). Under the Department's H-2A
regulations at Sec. 655.145(b), if an employer requests a start date
delay after workers have departed for the place of employment, the
employer must assure the CO that it will provide housing and
subsistence to all workers who are already traveling to the place of
employment, without cost to the workers, until work commences. If an
employer fails to comply with its obligations, the SWA may notify WHD
for possible enforcement as provided in Sec. 653.501(c)(5), the SWA
may pursue discontinuation of services under part 658, subpart F, or
the Department may, either upon referral of the SWA or upon its own
initiative, pursue revocation of the labor certification under the
procedures at Sec. 655.181, or debarment of the employer under the
procedures at Sec. 655.182 or 29 CFR 501.20.
The regulations also currently permit the Department to debar an
employer, successor-in-interest to that employer, attorney, or agent
from participating in any action under 8 U.S.C. 1188, 20 CFR part 655,
subpart B, or 29 CFR part 501 if the employer, agent, or attorney
substantially violated a material term or condition of the temporary
agricultural labor certification with respect to H-2A workers, workers
in corresponding employment, or U.S. workers improperly rejected for
employment, improperly laid off or displaced. 20 CFR 655.182(a); 29 CFR
501.20(a). The Department provides the employer with a notice of
debarment in these cases and also provides an opportunity to appeal
these determinations using the procedures at 20 CFR 655.182(f) and 29
CFR 501.20(e) and 501.33. Similarly, the Wagner-Peyser Act regulations
at 20 CFR parts 653 and 658 currently require the SWA to discontinue
services if it determines an employer has committed one of several
violations enumerated at 20 CFR 658.501(a)(1) through (7), such as
misrepresentation of the terms and conditions of employment specified
on job orders or failure to comply fully with assurances made on job
orders.
As noted above, the Department recently published the 2022 H-2A
Final Rule, which strengthened worker protections in the H-2A program,
clarified the obligations of joint employers and the existing
prohibitions on fees related to foreign labor recruitment, authorized
debarment of agents and attorneys for their own misconduct, enhanced
surety bond obligations and related enforcement authorization,
modernized the prevailing wage determination process, enhanced
regulation of H-2A labor contractors (H-2ALCs), and provided additional
safeguards related to employer-provided housing and wage obligations.
87 FR 61660 (Oct. 12, 2022). In response to the NPRM published prior to
the 2022 H-2A Final Rule, the Department received many comments
suggesting changes that were beyond the scope of that rulemaking, such
as suggestions relating to increased
[[Page 63753]]
enforcement and transparency regarding the foreign labor recruitment
process, increased worker protections, revisions to the definition of
employer, stronger integrity provisions to account for complex business
organizations and for methods used to circumvent the regulations,
strengthening provisions related to piece rate pay, and suggestions to
revise the Wagner-Peyser Act regulations to ensure stronger protections
for workers in the event of harmful last-minute start date delays.
C. Need for Rulemaking
The Department proposes important provisions in this NPRM that will
further strengthen protections for agricultural workers and enhance the
Department's enforcement capabilities, thereby permitting more
effective enforcement against fraud and program violations. The
Department has determined the proposed revisions will help prevent
exploitation and abuse of agricultural workers and ensure that
unscrupulous employers do not financially gain from their violations or
contribute to economic and workforce instability by circumventing the
law, both of which would adversely affect the wages and working
conditions of workers in the United States similarly employed, and
undermines the Department's ability to determine whether there are, in
fact, insufficient U.S. workers for proposed H-2A jobs. It is the
policy of the Department to maintain robust protections for workers and
vigorously enforce all laws within its jurisdiction governing the
administration and enforcement of nonimmigrant visa programs. This
includes the coordination of the administration and enforcement
activities of ETA, WHD, and the Department's Office of the Solicitor in
the promotion of the hiring of U.S. workers and the safeguarding of
wages and working conditions for workers in the United States. In
addition, these agencies make criminal referrals to the Department's
Office of Inspector General (OIG) in appropriate circumstances, such as
when the agencies encounter visa-related fraud. The Department has
determined through program experience, recent litigation, challenges in
enforcement, comments on prior rulemaking, and reports from various
stakeholders that the proposals in this NPRM are necessary to
strengthen protections for agricultural workers, ensure that employers,
agents, attorneys, and labor recruiters comply with the law, and
enhance program integrity by improving the Department's ability to
monitor compliance and investigate and pursue remedies from program
violators. The recent surge in use of the H-2A program further
underscores the need to strengthen protections for this vulnerable
population.\7\
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\7\ See, e.g., Office of Foreign Labor Certification,
Performance Data, https://www.dol.gov/agencies/eta/foreign-labor/performance (providing disclosure data for the H-2A labor
certification program since FY 2008).
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The proposed rule aims to address some of the comments that were
beyond the scope of the 2022 H-2A Final Rule and concerns expressed by
various stakeholders during that rulemaking. It also seeks to respond
to recent court decisions and program experience indicating a need to
enhance the Department's ability to enforce regulations related to
foreign labor recruitment, and to improve accountability for
successors-in-interest and employers who use various methods to attempt
to evade the law and regulatory requirements, and to enhance worker
protections for a vulnerable workforce, as explained further in the
sections that follow.\8\
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\8\ The Department's enforcement experience demonstrates that
workers in agriculture, particularly H-2A workers, remain highly
vulnerable to workplace abuses. In FY 2022, WHD conducted 420
investigations of employers using the H-2A program, resulting in
more than $3.6 million assessed in back wages and more than $6.3
assessed in civil money penalties. Recent investigations have
demonstrated that H-2A workers continue to be vulnerable to human
trafficking; see, e.g., Press Release, U.S. Dep't of Just., Owner of
Farm Labor Contracting Company Pleads Guilty in Racketeering
conspiracy Involving the Forced Labor of Mexican Workers (Sept. 27,
2022), https://www.justice.gov/opa/pr/owner-farm-labor-contracting-company-pleads-guilty-racketeering-conspiracy-involving-forced;
Jessica Looman, U.S. Dep't of Lab. Blog: Exposing the Brutality of
Human Trafficking (Jan. 13, 2022), https://blog.dol.gov/2022/01/13/exposing-the-brutality-of-human-trafficking. H-2A workers continue
to be vulnerable to retaliation when asserting their rights or
engaging in self advocacy; see, e.g., Press Release, U.S. Dep't of
Lab., Federal Court Orders Louisiana Farm, Owners to Stop
Retaliation After Operator Denied Workers' Request for Water,
Screamed Obscenities, Fired Shots (Oct. 28, 2021), https://www.dol.gov/newsroom/releases/whd/whd20211028-0; Press Release, U.S.
Dep't of Lab., U.S. Labor Department Obtains Order Stopping Arizona
Agricultural Employer from Abusing Workers, Exposing them to
Workplace Dangers (Oct. 28, 2022), https://www.dol.gov/newsroom/releases/whd/whd20221028-0. Additionally, recent vehicle crashes
involving agricultural workers demonstrate the need for
transportation reform; see, e.g., Press Release, U.S. Dep't of Lab.,
U.S. Department of Labor Urges Greater Focus on Safety by Employers,
Workers as Deaths, Injuries in Agricultural Transportation Incidents
Rises Sharply (Sept. 20, 2022), https://www.dol.gov/newsroom/releases/whd/whd20220920-0.
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Section D below provides an overview of major proposed changes,
followed by an in-depth section-by-section discussion of all proposed
changes. The Department is soliciting public comment on all aspects of
this proposed rule but has suggested in each section the types of
comments that would be most useful to the Department when considering
which provisions to include, exclude, or revise in the final rule.
Generally, the Department is most interested in comments that cite
evidence of the need to remedy through this rulemaking ongoing
violations, worker abuse or exploitation, coercion, employer or agent
subterfuge to avoid the law or other ways the Department's enforcement
of the law may be hindered to the detriment of H-2A workers and workers
in the United States impacted by the program and the Department's
ability to fulfill its statutory responsibilities. The Department is
particularly interested in comments that suggest ways the Department
can use this rulemaking to better protect the rights and liberties,
health and safety, and wages and working conditions of agricultural
workers and best safeguard the integrity of the H-2A program, while
continuing to ensure that responsible employers have access to willing
and available agricultural workers and are not unfairly disadvantaged
by employers that exploit workers and attempt to evade the law.
D. Summary of Major Provisions of This Proposed Rule
1. Protections for Workers Who Advocate for Better Working Conditions
and Labor Organizing Activities
The Department proposes revisions to Sec. 655.135 that will
provide stronger protections for workers protected by the H-2A program
to advocate for better working conditions on behalf of themselves and
their coworkers and prevent employers from suppressing this activity.
As detailed in Section IV, the Department believes that these proposed
protections are necessary to prevent an adverse effect on the working
conditions of workers in the United States similarly employed. 8 U.S.C.
1188(a)(1). These protections will significantly bolster the
Department's efforts to prevent such adverse effect because when H-2A
workers and other workers protected under the H-2A program cannot
advocate and negotiate with employers on their own behalf, employers
are able to impose exploitative working conditions that also leave H-2A
workers vulnerable to other abuses, and this unfairly deprives
similarly employed agricultural workers of jobs with better working
conditions. Specifically, the Department proposes to broaden Sec.
655.135(h), which prohibits unfair treatment, by expanding and
explicitly protecting certain activities workers must be able to engage
in
[[Page 63754]]
without fear of intimidation, threats, and other forms of retaliation.
For those workers engaged in agriculture as defined and applied in 29
U.S.C. 203(f), who are exempt from the protections of the National
Labor Relations Act (NLRA), 29 U.S.C. 151 et seq., the Department also
proposes in Sec. 655.135(h) to include some protections that the
Department believes will safeguard collective action. The Department
also proposes to add new provisions at Sec. 655.135(m) to ensure
employers do not interfere with efforts by vulnerable workers under the
H-2A program to advocate for better working conditions by including a
number of requirements that would advance worker voice and empowerment
and further protect the rights proposed under Sec. 655.135(h), and at
Sec. 655.135(n) to permit workers to invite or accept guests to worker
housing and provide labor organizations a narrow right of access to
worker housing, as explained in detail below.
2. Clarification of Justifiable Termination for Cause
The Department proposes to define ``termination for cause'' at
Sec. 655.122(n) by proposing six criteria that must be satisfied to
ensure that disciplinary and/or termination processes are justified and
reasonable, which are intended to promote the integrity and regularity
of any such processes. These proposed changes will help to ensure
employers do not arbitrarily and unjustly terminate workers, thereby
stripping them of essential rights to which they would otherwise be
entitled, and will assist the Department in determining whether an
individual worker was terminated for pretextual reasons.
3. Immediate Effective Date for Updated AEWRs
The Department proposes to revise Sec. 655.120(b)(2) to designate
the effective date of updated AEWRs as the date of publication in the
Federal Register, and to revise paragraph (b)(3) to state that the
employer is obligated to pay the updated AEWR immediately upon
publication of the new AEWR in the Federal Register. This change is
intended to help ensure workers are paid at least the updated AEWR, as
soon as it is published, for all work they perform, and thereby help to
ensure the employment of H-2A workers will not adversely affect the
wages and working conditions of workers in the United States similarly
employed.
4. Enhanced Transparency for Job Opportunity and Foreign Labor
Recruitment
The Department proposes new disclosure requirements to enhance
transparency in the foreign worker recruitment chain and bolster the
Department's capacity to protect vulnerable agricultural workers from
exploitation and abuse, as explained more fully below. The Department
proposes a new Sec. 655.137, Disclosure of foreign worker recruitment,
and a new Sec. 655.135(p), Foreign worker recruitment, that are
similar to the regulations governing disclosure of foreign worker
recruitment in the H-2B program. The proposed provisions would require
an employer and its attorney or agent, as applicable, to provide a copy
of all agreements with any agent or recruiter that the employer engages
or plans to engage in the recruitment of prospective H-2A workers,
regardless of whether the agent or recruiter is located in the United
States or abroad. The proposed provisions also would require the
employer to disclose the identity (i.e., name and, if applicable,
identification number) and geographic location of persons and entities
hired by or working for the foreign labor recruiter and any of the
agents or employees of those persons and entities who will recruit or
solicit prospective H-2A workers. As explained more fully below, the
Department proposes to gather the additional recruitment chain
information when the employer files its H-2A Application and will
require the employer to submit a proposed Form ETA-9142A, Appendix D,
that mirrors the Form ETA-9142B, Appendix C. Consistent with current
practice in the H-2B program, proposed Sec. 655.137(d) provides for
the Department's public disclosure of the names of the agents and
foreign labor recruiters used by employers. These additional
disclosures of information about the recruitment chain are necessary
for the Department to carry out its enforcement obligations, protect
vulnerable agricultural workers and program integrity, and ensure
equitable administration of the H-2A program for law abiding employers.
The Department also proposes to require the employer to provide the
full name, date of birth, address, telephone number, and email address
for the owner(s) of each employer, any person or entity who is an
operator of the place(s) of employment (including the fixed-site
agricultural business that contracts with the H-2ALC), and any person
who manages or supervises the H-2A workers and workers in corresponding
employment under the H-2A Application. The Department proposes to
revise the Form ETA-9142A to require, where applicable, additional
information about prior trade or DBA names the employer has used in the
most recent 3-year period preceding its filing of the H-2A Application.
The Department proposes conforming changes to Sec. Sec. 655.130 and
655.167 to clarify that the employer would be required to continue to
update the information required by the above paragraphs until the end
of the work contract period, including extensions thereto, and retain
this information post-certification and produce it upon request by the
Department. The Department believes the proposed disclosure
requirements will increase transparency in the international
recruitment chain, aid the Department in assessing the nature of the
job opportunity and the employer's need, enhance the Department's
ability to enforce the prohibition against recruitment-related fees and
to pursue remedies from program violators, assist the Department in
identifying potential successors in interest to debarred employers, and
better protect agricultural workers from abuse and exploitation in the
United States and abroad.
5. Enhanced Transparency and Protections for Agricultural Workers
a. Disclosure of Minimum Productivity Standards, Applicable Wage Rates,
and Overtime Opportunities
The Department proposes to revise Sec. 655.122(l) to require
employers to disclose any minimum productivity standards they will
impose as a condition of job retention, regardless of whether the
employer pays on a piece rate or hourly basis. This proposal is
intended to help ensure that agricultural workers are fully apprised of
the material terms and conditions of employment, including any
productivity standards that may serve as a basis for termination for
cause. Proposed changes at Sec. 655.122(n) would prohibit the employer
from terminating a worker for failure to meet a minimum productivity
standard if the employer did not disclose the standard in accordance
with Sec. 655.122(l). An existing regulatory provision, Sec.
655.122(b), would require that any such minimum productivity standard
be bona fide and normal and accepted among non-H-2A employers in the
same or comparable similar occupations and crops.
The Department also proposes to revise Sec. Sec. 655.120(a) and
655.122(l) to
[[Page 63755]]
require employers to offer and advertise on the job order any
applicable prevailing piece rate, the highest applicable hourly wage
rate, and any other rate the employer intends to pay, and to pay
workers the highest of these wage rates, as calculated at the time work
is performed. A new proposed Sec. 655.122(l)(4) would explicitly
require the employer to specify in the job order any applicable
overtime premium wage rate(s) for overtime hours worked and the
circumstances under which the wage rate(s) for such overtime hours will
be paid. These proposals are intended to help ensure that agricultural
workers are fully apprised of the material terms and conditions of
employment, including any productivity standards that may serve as a
basis for termination for cause, and to aid the Department in its
administration and enforcement of the H-2A program.
b. Enhanced Protections for Workers Through the Employment Service
System (ES System)
The Department proposes revisions to the Wagner-Peyser Act
implementing regulations at 20 CFR 653.501 to clarify an employer's
obligations in the event of a delayed start date and to make conforming
revisions to the H-2A regulations at 20 CFR 655.145 and a new Sec.
655.175 to clarify pre-certification H-2A Application amendments and
employer obligations in the event of post-certification changes to the
start date. As noted above, the current regulations require an employer
to provide notice to the ES Office holding the job order of delayed
start dates and impose obligations on employers that fail to provide
the requisite notice, but do not require employers to notify workers
directly of any such delay.
The Department proposes revisions to part 658, subpart F, and
related definitions at Sec. 651.10, regarding the discontinuation of
Wagner-Peyser Act Employment Service (ES) services to employers. The
Department proposes to clarify and expand the scope of entities whose
ES services can be discontinued to also include agents, farm labor
contractors, joint employers, and successors in interest. The
Department also proposes revisions to clarify the bases for
discontinuation at Sec. 658.501, and to clarify and streamline the
discontinuation procedures at Sec. Sec. 658.502 through 658.504,
including the notice requirements for SWAs, evidentiary requirements
for employers, when and how employers may request a hearing, and
procedures for requesting reinstatement. These changes are designed to
increase the reach and utility of the discontinuation of services
regulations, which SWAs have underutilized in recent years. These
proposed changes are described in more detail below.
c. Enhanced Transportation Safety Requirements
The Department proposes to revise Sec. 655.122(h)(4) to require
the provision, maintenance, and wearing of seat belts in most employer-
provided transportation, which would reduce the hazards associated with
agricultural worker transportation, thus making these jobs more
attractive to workers in the United States. Specifically, as explained
in detail below, the Department proposes to revise Sec. 655.122(h)(4)
to prohibit an employer from operating any employer-provided
transportation that is required by the U.S. Department of
Transportation (DOT) highway safety regulations to be manufactured with
seat belts unless all passengers and the driver are properly restrained
by seat belts meeting standards established by DOT. Essentially, if the
vehicle is manufactured with seat belts, the proposed rule would
require the employer to retain and maintain those seat belts in good
working order and ensure that each worker is wearing a seat belt before
the vehicle is operated.
d. Protection Against Passport and Other Immigration Document
Withholding
The Department proposes a new Sec. 655.135(o) that would directly
prohibit an employer from holding or confiscating a worker's passport,
visa, or other immigration or government identification documents,
independent of the employer's compliance with the Victims of
Trafficking and Violence Protection Act of 2000 (TVPA), Public Law 106-
386 (2000), 18 U.S.C. 1592(a), which is required under the current H-2A
regulations. The proposal is intended to better protect workers from
potential labor trafficking, as explained below.
e. Protections in the Event of a Minor Delay in the Start of Work
The Department proposes a new Sec. 655.175 that addresses post-
certification changes currently addressed at Sec. 655.145(b) and
proposes new obligations and procedures in the event an employer must
briefly delay the start of work due to unforeseen circumstances that
jeopardize crops or commodities prior to the expiration of an
additional recruitment period. Proposed Sec. 655.175 limits minor
delays to 14 calendar days or less and would require an employer to
notify each worker and the SWA of any delay in the start date of work.
Consistent with Sec. 653.501(c), proposed Sec. 655.175 includes new
compensation obligations that would require the employer to pay workers
the applicable wage rate for each day work is delayed, for a period of
up to 14 calendar days, starting with the certified start date, if the
employer fails to provide adequate notice of the delay.
6. Enhanced Integrity and Enforcement Capabilities
a. Reduced Submission Periods for Appeal Requests for Debarment Matters
and Submittal of Rebuttal Evidence to OFLC
To help protect and uphold program integrity, and to further
protect workers in the United States, the Department proposes to
increase the speed with which debarments become effective by decreasing
the time for parties to submit rebuttal evidence to OFLC, the time for
parties to appeal Notices of Debarment to the Office of Administrative
Law Judges (OALJ), and the time for parties to appeal debarment
decisions to the ARB from the OALJ. This would lead to faster final
agency adjudications and thereby better protect and uphold program
integrity and agricultural workers by more efficiently and effectively
preventing H-2A program violators from accessing the program. As
explained more fully below, the Department proposes to amend Sec.
655.182(f)(1) and (2) by reducing the period to file rebuttal evidence
from 30 calendar days to 14 calendar days, unless the employer requests
an extension of the allowable rebuttal period, in writing, and
demonstrates good and substantial cause necessitating an extension. For
the same reasons, the Department also proposes to shorten the time to
appeal the OFLC Administrator's Notice of Debarment, in lieu of
submitting rebuttal evidence; to shorten the time to appeal the OFLC
Administrator's final determination, after review of rebuttal evidence;
to shorten the time for all parties to request review of OFLC
debarments by the ARB from 30 days to 14 calendar days; to shorten the
time to request a hearing with the OALJ on any WHD determination
involving debarment from 30 calendar days to 14 calendar days; and also
to shorten the time for all parties to request review by the ARB of an
OALJ determination involving debarment from 30 days to 14 calendar
days. Determinations by the WHD Administrator that do not include
debarment, but only include, for example, an assessment of civil money
[[Page 63756]]
penalties or the payment of back wages, would retain a 30-calendar-day
timeframe for appeal to the OALJ and to the ARB.
b. Enhancements to the Department's Ability To Apply Orders of
Debarment Against Successors-in-Interest
The Department proposes a new Sec. 655.104 regarding successors in
interest, that would clarify the liability of successors in interest
for debarment purposes and streamline the Department's procedures to
deny labor certifications filed by or on behalf of successors in
interest to debarred employers, agents, and attorneys. The Department
proposes conforming revisions to Sec. Sec. 655.103(b), 655.181, and
655.182 and 29 CFR 501.20. These proposed revisions are intended to
better reflect the liability of successors in interest under the well-
established successorship doctrine, and to better ensure that debarred
entities do not circumvent the effects of debarment.
c. Defining the Single Employer Test for Assessing Temporary Need, or
for Enforcement of Contractual Obligations
The Department proposes to define the term single employer at a new
Sec. 655.103(e) and proposes factors to determine if multiple
nominally separate employers are acting as one. Defining the term would
codify the Department's long-standing practice of using the single
employer test (sometimes referred to as an ``integrated employer''
test), or similar analysis, to determine if separate employers are a
single employer for purposes of assessing seasonal or temporary need,
or for enforcement of contractual obligations. In relation to seasonal
or temporary need, the Department has received applications for
temporary labor certification that purport to be for job opportunities
with different employers when, in reality, the workers hired under
these certifications are employed by companies so intertwined that they
are operating as a de facto single employer in one area of intended
employment for a period of need that is not truly temporary or
seasonal. In its enforcement experience, the Department has
increasingly encountered H-2A employers that employ H-2A workers under
one corporate entity and domestic workers under another, creating the
appearance that the H-2A employer has no non-H-2A workers in
corresponding employment when actually, the corporate entities are so
intertwined that all the H-2A workers are employed by a single H-2A
employer, and the non-H-2A workers are engaged in corresponding
employment. Some employers have attempted to use these arrangements to
avoid the obligation to offer workers in corresponding employment the
terms and conditions offered to H-2A workers, including the required
wage rate. Codifying the definition of single employer will prevent
employers from using their corporate structures to circumvent statutory
and regulatory requirements.
III. Discussion of Proposed Revisions to Employment Service Regulations
A. Introduction
In this proposed rule, the Department proposes to revise the ES
regulations (20 CFR parts 651 through 654 and 658 and 29 CFR part 75)
that implement the Wagner-Peyser Act of 1933. These regulations include
the provision of ES services with a particular emphasis on migrant or
seasonal farmworkers (MSFWs), as well as provisions governing the
discontinuation of ES services to employers. The proposed rule will
update the language and content of the regulations to, among other
things, improve and strengthen the regulations governing
discontinuation of ES services to employers, including the applicable
bases and procedures. In some areas, these proposals establish entirely
new responsibilities and procedures; in other areas, the proposals
clarify and update requirements already established. The proposed
revisions make important changes to the following components of the ES
system: definitions, requirements for processing clearance orders, and
the discontinuation of ES services provided to employers.
The Wagner-Peyser Act of 1933 provided the Department the authority
to establish a national ES system to improve the functioning of the
nation's labor markets by bringing together individuals seeking
employment with employers seeking workers. Section 3(a) of the Act sets
forth the basic responsibilities of the Department, which include
assisting in coordinating the State public employment service offices
throughout the country and in increasing their usefulness by
prescribing standards for efficiency, promoting uniformity in
procedures, and maintaining a system of clearing labor between the
States.
To that end, the ES system provides labor exchange services to its
participants and has undergone numerous changes to align its activities
with broader national workforce development policies and statutory
requirements. The Workforce Innovation and Opportunity Act, passed in
2014, expanded upon the previous workforce reforms in the Workforce
Investment Act of 1998 and, among other things, identified the ES
system as a core program in the One-Stop local delivery system, also
called the American Job Center network.
In 1974, the case National Ass'n for the Advancement of Colored
People (NAACP), Western Region, et al. v. Brennan et al., No. 2010-72,
1974 WL 229 (D.D.C. Aug. 13, 1974) resulted in a detailed court order
mandating various Federal and State actions consistent with applicable
law (referred to as the Judge Richey Court Order, or Richey Order). The
Richey Order required the Department to implement and maintain a
Federal and State monitoring and advocacy system and set forth
requirements to ensure the delivery of ES services, benefits, and
protections to MSFWs on a non-discriminatory basis, and to provide such
services in a manner that is qualitatively equivalent and
quantitatively proportionate to those provided to non-farmworkers. In
1977 and 1980, consistent with its authority under the Wagner-Peyser
Act, the Department published regulations at 20 CFR parts 651, 653, and
658 to implement the requirements of the Richey Order. Part 653 sets
forth standards and procedures for providing services to MSFWs and
provides regulations governing the ARS, a system for interstate and
intrastate agricultural job recruitment. Part 658 sets forth standards
and procedures for the administrative handling of complaints alleging
violations of ES regulations and of employment-related laws, the
discontinuation of services provided by the ES system to employers, the
review and assessment of State agency compliance with ES regulations,
and the Federal application of remedial action to State agencies.
Note that on April 20, 2022, the Department issued an NPRM
regarding Wagner-Peyser Act staffing (Staffing NPRM). 87 FR 23700 (Apr.
20, 2022). The Staffing NPRM included proposed changes to several
sections in 20 CFR parts 653 and 658 that govern the provision of ES
services to MSFWs. As relevant here, in the Staffing NPRM, the
Department proposed changes to 20 CFR 653.501(b)(4) and (c)(3) (ES
office and SWA requirements for processing clearance orders); Sec.
658.501(a)(4), (b), and (c); Sec. 658.502(a) and (b) (notification
requirements for discontinuation of ES services); and Sec. 658.504(a)
and (b) (procedures for reinstatement of ES services). 87 FR 23717,
23722, 23736, 23740-23741. In this proposed rule, the Department has
proposed further changes to these provisions, which in
[[Page 63757]]
some instances conflict with changes proposed in the Staffing NPRM.
Because the Department has not issued a final Staffing Rule, the
Department recognizes that the proposed changes in this rulemaking may
generate questions within the regulated community about how the
Department ultimately proposes to revise these provisions, including
how the proposed changes in this rulemaking affect the proposed changes
in the Staffing NPRM, and what the Department might do in finalizing
the changes proposed in the Staffing NPRM. Where this NPRM proposes
changes that conflict or intersect with changes proposed in the
Staffing NPRM, the Department will be using this proposed rule as the
operative rulemaking proceeding to provide notice and an opportunity to
comment on the proposed changes to the provisions referenced above.
Consistent with this approach, the Department does not intend to
finalize changes to the above referenced provisions in the Staffing
NPRM as part of that rulemaking proceeding. Any changes to the above
referenced provisions will be made through this rulemaking. The
Department has concluded that the proposed changes to these provisions
are better suited for this rulemaking because they are meant to
strengthen protections for agricultural workers and, therefore, better
align with the overall purpose of this rulemaking. Further, the
Department has concluded that this is the most transparent approach to
address the overlap, and is the approach that best minimizes confusion
within the regulated community while ensuring the public the full
opportunity to receive notice and provide comments on the proposed
changes.
B. Discussion of Proposed Revisions to 20 CFR Part 651
Part 651 (Sec. 651.10) sets forth definitions for parts 652, 653,
654, and 658. The Department proposes to add or revise the following
definitions primarily to clarify aspects of its discontinuation of
Wagner-Peyser Act ES regulation at 20 CFR part 658, including new
provisions that it proposes to add in this rulemaking. Where
appropriate, as discussed below, the Department has sought to align
these new definitions with the same or similar definitions at 20 CFR
655.103.
The Department proposes to add a definition to Sec. 651.10 for
agent as an entity authorized to act on behalf of employers with
respect to ES clearance system activities. The Department has observed
that individuals and entities meeting the proposed definition of agent
often engage the ES clearance system by submitting clearance orders on
behalf of employers, as defined in part 651, and control many aspects
of employers' recruitment activities relating to clearance orders.
Adding this proposed definition clarifies that agents (which include
attorneys) are among the entities subject to discontinuation of
services as a result of the proposed changes to part 658. Additionally,
because an employer's agent for purposes of the ES clearance system is
often the same agent that an employer uses for purposes of the H-2A
labor certification process, the Department proposes a definition of
agent at Sec. 651.10 that aligns with the definition of agent in Sec.
655.103.
The Department proposes to add definitions to Sec. 651.10 for
criteria clearance order and non-criteria clearance order because they
are terms that are currently used in the ES regulations but were
previously undefined. Adding the definitions clarifies that criteria
clearance orders are those placed in connection with an H-2A
Application filed pursuant to part 655, subpart B, while non-criteria
clearance orders are those not placed in connection with an H-2A
Application. By defining these terms, it will be clearer which orders
must comply with the requirements at part 653, subpart F, and part 655,
subpart B, and which orders do not have to comply with the requirements
at part 655, subpart B.
The Department proposes to add to Sec. 651.10 a definition for
discontinuation of services because it is referenced throughout the ES
regulations and is the subject of part 658, subpart F, but was
previously undefined. The proposed definition explains what services
would be unavailable pursuant to the process described in part 658,
subpart F, and the entities subject to discontinuation. Under the
proposed discontinuation of services, the scope of services to which
discontinuation applies includes any Wagner-Peyser Act ES service
provided by the ES to employers pursuant to parts 652 and 653. The
scope of individuals and entities to whom discontinuation applies
includes employers, as defined in part 651, and agents, farm labor
contractors, joint employers, and successors in interest, as proposed
to be defined in part 651.
The Department proposes to revise the definition of employment-
related laws to clarify that the term also includes the regulations
that implement employment-related laws in addition to the laws
themselves. Revising the definition clarifies its meaning and scope for
ES staff who observe or process complaints relating to violations of
employment-related laws, such as outreach workers, complaint system
representatives, and those who conduct field checks.
The Department proposes to add to Sec. 651.10 a definition for
farm labor contractor as an entity, excluding agricultural employers,
agricultural associations, or employees of agricultural employers or
agricultural associations, that agrees to recruit, solicit, hire,
employ, furnish, or transport an MSFW. The Department proposes to add
this definition to Sec. 651.10 because the term is used throughout the
ES regulations, most notably in part 653, subpart F, which recognizes
that farm labor contractors use the ES clearance system, but it has
never been defined. Adding this proposed definition also clarifies the
entities subject to discontinuation of services as a result of the
proposed changes to part 658. As with the term agent, because many farm
labor contractors that use the ES clearance system also seek temporary
labor certifications from OFLC as H-2ALCs under part 655, subpart B,
the Department proposes a definition of farm labor contractor that both
aligns with the definition of H-2A labor contractor found at 20 CFR
655.103 and with the definition of farm labor contractor and farm labor
contracting activity found at 29 U.S.C. 1802 and 29 CFR 500.20 to
maintain consistency between Departmental program areas.
The Department recognizes that joint employment relationships are
common in agriculture, and that joint employers are required to comply
with the requirements in part 653, subpart F, while filing a joint
application for temporary labor certification under 20 CFR part 655,
subpart B. See Sec. 655.131. The Department therefore proposes to add
a definition for joint employer to Sec. 651.10 to clarify how the
concept will be applied in the ES system and to clarify the entities
subject to discontinuation of services as a result of the proposed
changes to part 658. The proposed definition is also intended to ensure
consistency with recent changes to the Department's H-2A regulation, 87
FR 61660, 61793-61794 (Oct. 12, 2022), and as with the definitions of
agent and farm labor contractor, the proposed definition is modeled on
the definition of joint employment at 20 CFR 655.103 because of the
connection between the ES system and H-2A labor certification program.
The Department proposes to add to Sec. 651.10 a definition for
successor in interest that describes the inexhaustive factors that SWAs
should use to determine if an entity is a successor in interest to
another entity. The proposed
[[Page 63758]]
definition allows SWAs and stakeholders to better understand which
entities may be subject to discontinuation as a result of the proposed
changes to part 658. To maintain consistency between the regulations
governing the ES system and the regulations governing the H-2A labor
certification program, the Department proposes to adapt the definition
of successor in interest as proposed in Sec. 655.104.
The Department proposes to add a definition for week to clarify
that a week, as used in parts 652, 653, 654, and 658, means 7
consecutive calendar days. Adding the definition allows for SWAs and
employers to calculate time periods used in the ES regulations
uniformly, including for wage calculations and other time-related
procedures.
C. Discussion of Proposed Revisions to 20 CFR Part 653
Part 653 sets forth the principal regulations of the ES concerning
the provision of services for MSFWs consistent with the requirement
that all services of the workforce development system be available to
all job seekers in an equitable fashion and in a way ``that meets their
unique needs.'' 20 CFR 653.100(a). Part 653 also describes requirements
for participation in the ARS. Subpart F provides the requirements SWAs
and employers must follow when employers seek access to the ARS by
submitting clearance orders for temporary or seasonal farmwork. Section
653.501 provides the responsibilities of ES Offices and SWAs when they
review clearance orders submitted by employers, and the process by
which they place approved clearance orders into intra- and interstate
clearance. Once the order is approved and placed into clearance, ES
Offices and SWAs recruit and refer workers for the position described
on the clearance order.
The Department proposes to add a fourth paragraph to Sec.
653.501(b), at Sec. 653.501(b)(4), which would require ES staff to
consult the OFLC and WHD H-2A and H-2B debarment lists, and an ETA
Office of Workforce Investment discontinuation of services list, before
placing a job order into intrastate or interstate clearance. The
Department further proposes a new paragraph (b)(4)(i), which states
that SWAs must initiate discontinuation of ES services if the employer
seeking placement of a clearance order is on a debarment list, and new
paragraph (b)(4)(ii), which states that SWAs must not approve clearance
orders from employers whose ES services have been discontinued by any
State. Finally, the Department proposes a new paragraph (b)(4)(iii) to
make clear that the provisions in paragraph (b)(4) would apply to all
entities subject to discontinuation under part 658, subpart F, and not
just to employers as defined in Sec. 651.10.
The Department's mission is to promote the welfare of workers.
Regarding consultation with the H-2A and H-2B debarment lists, the
proposed additions are intended to further that mission by ensuring
that ES offices do not place U.S. workers with employers who are
presently barred from employing nonimmigrant workers via the H-2A and
H-2B visa programs. This requirement, and the proposed addition to
Sec. 658.501(a)(4), would protect workers by ensuring that the ES
system is not used to place a worker with an employer that has failed
to comply with its obligation(s) as an employer of foreign workers. As
with the H-2A program, employers participating in the H-2B program must
first file job orders through the SWA's labor exchange and therefore
must comply with ES requirements. As discussed more fully below in the
discussion of the proposed changes to Sec. 658.501(a)(4), the proposed
inclusion of H-2B programs also recognizes that employers seeking
nonimmigrant workers may improperly misclassify H-2A agricultural work
as H-2B non-agricultural work. The proposed addition seeks to protect
workers who use the ES system from employers who engage in improper
misclassification, and to maintain a fair labor system for employers
who seek temporary labor certification via the proper channels.
Additionally, the H-2A regulations at 20 CFR 655.182 and 29 CFR 501.20,
and the H-2B regulations at 20 CFR 655.73 and 29 CFR 503.24, describe
the violations that may result in an employer's debarment from
receiving future labor certifications under those programs. The
potential reasons for debarment include serious violations that could
affect worker safety, for example ``[a] single heinous act showing such
flagrant disregard for the law'' that future compliance with program
requirements cannot reasonably be expected (Sec. 655.182(d)(1)(x)).
Such reasons also include an employer's substantial failure to comply
with regulatory requirements, including an employer's failure to pay or
provide the required wages or working conditions, an employer's failure
to comply with its obligations to recruit U.S. workers, or an
employer's failure to cooperate with required audits or investigations.
In the Department's view, the employer subject to debarment should also
be excluded from participation in the ES system. The Department does
not want the ES system to facilitate placement of U.S. workers with
employers whom the Department has determined should not be permitted to
employ nonimmigrant workers through its H-2A and H-2B programs,
particularly where the U.S. workers may perform similar work and, thus,
be subject to the same or similar violations giving rise to the
employer's debarment.
Regarding consultation with the proposed Office of Workforce
Investment discontinuation of services list, as discussed below, the
effect of a final decision to discontinue services to an employer would
be to prohibit that employer from receiving any services from the ES
system, not just from offices in the State that discontinued services.
The Department recognizes that SWAs need a mechanism to ensure that
they are not providing services, including the processing and placement
of clearance orders, to entities whose services have been discontinued,
and that any such mechanism should be straightforward for the SWAs to
use for it to be effective. The Department believes that maintaining a
list of discontinued entities--like the debarment lists maintained by
OFLC and WHD--that SWAs could access when reviewing clearance orders is
the most straightforward approach to effectuate this goal. In order to
avoid unnecessary burden, SWAs and ES offices would consult the Office
of Workforce Investment discontinuation of services list and would not
provide ES services to any employers on the list, without having to go
through the steps described in part 658, subpart F, to discontinue
services to the same employer in their specific State. The Department
also notes that the proposed changes in part 658, subpart F, discussed
below, address the entities subject to discontinuation. Proposed Sec.
658.503(e) would mandate that if the SWA discontinues services to an
employer, the employer, which includes successors in interest, cannot
participate in or receive Wagner-Peyser Act ES services provided by the
ES to employers pursuant to parts 652 and 653; therefore, no SWA would
be able to process any future job orders from the employer or a
successor in interest, unless services are reinstated under Sec.
658.504.
Section 653.501(c)(3) lists the assurances that each clearance
order must include before it can be placed into clearance. Paragraph
(c)(3)(i) currently requires that the clearance
[[Page 63759]]
order include an assurance that the employer will provide workers
referred through the clearance system the number of hours of work, as
indicated on the clearance order, for the week beginning with the
anticipated date of need unless the employer notifies the order-holding
office of a change to the anticipated start date at least 10 business
days prior to the original start date, and states that the SWA must
make a record of the notification and must attempt to inform referred
workers of the change. Section 653.501(c)(3)(iv) currently requires
that the clearance order include an assurance that the employer filing
the order will promptly notify the order-holding office or SWA that
crops are maturing faster or slower than expected or of other events
that change the terms of employment. Section 653.501(c)(5) currently
provides that if the employer fails to provide the required notice, the
employer is obligated to provide eligible (pursuant to paragraph (d)(4)
of this section) workers referred through the clearance system the
first week's pay at the rate stated on the clearance order or find
alternative work, if such alternative work is included in the clearance
order. For criteria clearance orders, any alternative work provided to
U.S. workers referred through the ARS will be agricultural work, in
order to comply with the H-2A program requirements for work offered on
such orders. For non-criteria orders, because the order is placed
through the ARS, it is anticipated that alternative work provided in
these situations also will be agricultural work.
The Department has determined these requirements do not provide
adequate notice to workers placed on the clearance order when the terms
of their employment change and do not adequately protect workers from
the potential consequences of those changes. The current notification
requirement, which inadvertently incorporates a requirement on the SWA
into the employer assurances, is not sufficient to prevent unnecessary
delay because it requires that notification occur in two steps--first
from the employer to the SWA, and then from the SWA to the workers.
Additionally, given the transient nature of temporary and seasonal
farmwork, coupled with increased housing, transportation, and food
costs in recent years, the requirement that employers provide 1 week's
pay if they fail to satisfy the notification requirement does not
sufficiently protect workers from resulting financial hardship. The
Department proposes several changes to address these concerns by
improving notice and wage protections for workers hired under ARS
clearance orders.
Specifically, the Department proposes to revise Sec. 653.501(c) to
require that, in the event the employer's date of need changes from the
date the employer indicated on the clearance order, the employer must
notify the SWA and all workers placed on the clearance order of the
change at least 10 business days before the original start date. The
proposed revisions clarify that notification is only to workers placed
on the clearance order, and not to workers who were referred but not
hired. The proposed revisions recognize that employers, rather than the
SWA or the order holding office, are in the best position to contact
and notify workers placed on the order of changes to the date of need
because the employer has already contracted to employ the workers and
should have up-to-date contact information for each worker. The
requirement to document this outreach is a minimally burdensome means
to allow the SWA to assess compliance with this assurance. This
proposed change will increase the likelihood that workers will receive
timely notification of any change to the start date and that employers
maintain accurate records of notices they provide. To ensure consistent
protections for workers in the United States who apply to the employer
directly, as well as to H-2A workers and workers in corresponding
employment who may be impacted by a delayed start date of work, the
Department proposes conforming protections at a new Sec. 655.175 of
the H-2A program regulations.
The Department further proposes that employers that fail to comply
with these notice requirements must provide housing and subsistence to
all workers placed on the clearance order who are already traveling to
the place of employment, without cost to the workers, until work
commences, and must pay all workers placed on the clearance order the
applicable wages for each day work is delayed for a period of up to 2
weeks, starting with the originally anticipated date of need. The
Department's proposal to require the provision of housing and
subsistence would align the protections U.S. workers placed on non-
criteria clearance orders receive with protections workers on criteria
clearance orders receive under current Sec. 655.145(b) and proposed
Sec. 655.175(b). The Department does not anticipate that requiring the
provision of housing will burden employers as they are required to have
their housing ready and inspected prior to the start date.
The Department's proposal to expand the period during which
employers must pay the applicable wage to 2 weeks, from the current 1-
week period, will better protect agricultural workers from financial
hardship they are likely to experience should they travel or otherwise
rely on the job opportunity articulated on the clearance order and find
that work is not available to them. Providing up to 2 weeks of wages
provides a safety net for workers to support themselves when work is
not available. The Department believes 1 week of wages is insufficient
to protect workers from the financial hardships associated with a
delayed starting date when such delays were not communicated,
particularly if a worker traveled for the job. In lieu of paying the 2
weeks' worth of wages, if the employer fails to comply with the notice
requirements, employers can provide such workers alternative work if
such alternative work is listed on the clearance order. The Department
has determined that this alternative effectively addresses the hardship
concern by providing the worker a source of income while continuing to
allow the employer flexibility to adjust their anticipated start date.
To accomplish these changes, the Department proposes several
specific revisions. The Department proposes to revise Sec.
653.501(c)(3)(i) to remove the requirement that the SWA must make a
record of the notification and attempt to inform referred workers of
the change in the date of need. The current language improperly
incorporates a SWA requirement into the employer assurances, and, as
discussed below, the Department proposes to shift these
responsibilities to the employer which, as discussed below, the
Department has determined is better situated to make timely contact
with workers. The Department also proposes to move language in this
paragraph regarding the employer's notice to the order-holding office
to Sec. 653.501(c)(3)(iv), which contains other instructions the
employer must follow when giving notice of changed terms and conditions
of the opportunity. The proposed regulation at Sec. 653.501(c)(3)(i)
would maintain that the employer's notice must comply with paragraph
(c)(3)(iv), which would more clearly explain the employer's assurance
to comply with the full notice requirements.
The Department proposes to make additional revisions to paragraph
(c)(3)(iv). First, the Department proposes to remove a redundancy in
the first sentence, which currently states that the
[[Page 63760]]
employer must expeditiously notify the order-holding office or SWA
immediately. Because immediate notice is expeditious, the use of the
word ``expeditiously'' is not necessary. Second, the Department
proposes that the assurance on the clearance order require that when
there is a change to the start date of need, the employer, rather than
the order-holding office or SWA, notify the office or SWA and each
worker placed on the order. When there is a change in the date of need
it is imperative that workers placed on the order be notified as
quickly as possible to allow the worker to change any travel
arrangements and otherwise remain informed about the opportunity. As
noted above, the Department has determined that the employer, which has
already contracted or communicated with the worker, is better
positioned to make timely contact with workers and therefore proposes
that the employer agree to do so as a condition of the participation in
the ARS. Third, the Department, in this assurance and in paragraph
(c)(5), proposes to require notification to workers placed on the order
rather than eligible workers referred from the order. The Department
proposes this change because the obligation to provide housing and
subsistence to workers who are already traveling to the place of
employment, and to pay wages for up to 2 weeks or provide alternative
work is relevant only to workers who were actually placed with the
employer rather than to workers referred to the employer through the
ARS. Additionally, under current paragraph (c)(5), the obligation to
pay or provide alternative work is for eligible workers, meaning those
referred workers who contact the ES Office to verify the date of need
pursuant to paragraph (d)(4). As discussed below, the Department
proposes to remove paragraph (d)(4), which includes this verification
requirement. With the proposed change to have employers notify workers
of any change in their start date, the requirement that referred
workers verify their start date with the ES Office is no longer
necessary. Finally, the Department proposes to include the requirement
to provide housing and subsistence to all workers who are already
traveling to the place of employment, without cost to the workers,
until work commences and to pay up to 2 weeks of wages or find
alternative work from paragraph (c)(5), as the Department proposes to
amend it, in the assurance. This change will make this obligation clear
to the employer at the time they complete and sign the clearance order.
The Department also proposes several changes to paragraph (c)(5).
First, the Department proposes to specify that the employer must
provide notice to the worker placed under the clearance order, which
will align this paragraph with paragraph (c)(3)(iv) and the proposed
changes to the assurance described therein. For the same reason, the
Department proposes to remove language stating employers must pay only
workers who are eligible pursuant to paragraph (d)(4).
The Department proposes to further revise paragraph (c)(5) to
clarify that the employer would be required to provide housing and
subsistence to all workers who are already traveling to the place of
employment, without cost to the workers, until work commences and to
pay the specified hourly rate of pay on the clearance order, or if the
pay listed on the clearance order is a piece-rate, the higher of the
Federal or State minimum wage, or if applicable, any prevailing
wage.\9\ If the order is a criteria clearance order the employer would
be required to pay the rate of pay under part 655, subpart B. These
proposed edits would align the wage requirement in this paragraph with
proposed wage requirements in part 655, subpart B, as applicable. The
Department further proposes to require that employers, if they fail to
provide the required notice at least 10 business days before the
original date of need, must pay the required wage for up to 2 weeks
instead of the 1 week currently required. The Department proposes this
change because, as discussed above, the Department believes 1 week of
wages is not sufficient to ensure workers do not experience the
financial hardship that would come with being unable to start work on
time, particularly if these workers have traveled for the job.
---------------------------------------------------------------------------
\9\ For requirements on costs for workers traveling from abroad,
including in the event of a minor delay, see Sec. 655.122 and the
discussion of proposed Sec. 655.175 in section IV.E.
---------------------------------------------------------------------------
The Department proposes to revise paragraph (c)(5) to clarify that
any alternative work must be in the approved clearance order to help
ensure employers do not require workers to perform work at sites not
approved by the SWA and, for criteria clearance orders, the Department.
The Department proposes to add language to clearly instruct the SWA to
process violations of these requirements as apparent violations, which
Sec. 658.419 describes as violations that SWAs, ES office staff, or
outreach staff observe or of which they have information, and which
staff must document and refer for further action. The Department
proposes these changes because SWAs have identified many apparent
violations where employers caused workers to work at worksites that
were not approved in their clearance orders. In some recent cases, the
workers were not properly trained and were caused to perform dangerous
tasks, which presented serious health and safety risks. It is
critically important that all worksites are known and approved by the
SWA and, as appropriate, the Department, to avoid workplace injuries,
improper wage payments related to performance of non-agricultural work,
and potential human trafficking.
Finally, the Department proposes to remove paragraphs (d)(4), (7),
and (8) in their entirety because, with the proposed change to have
employers notify workers of any change in the start date, the
requirement that the applicant holding office notify workers of any
changes is no longer relevant or necessary.
D. Discussion of Proposed Revisions to 20 CFR Part 658, Subpart F
This subpart sets forth the regulations governing the
discontinuation of Wagner-Peyser Act ES services to employers. In 1977,
the Department published regulations at 20 CFR part 658 governing the
monitoring of all ES activities and enforcement of ES regulations.
Subpart F provided procedures for discontinuation of services where a
State agency, through its director, determined that an employer
violated ES regulations. Under subpart F, where a complaint alleging an
employer violated ES regulations could not be resolved or, in the
absence of a complaint, where the State had reason to believe an
employer violated ES regulations and could not informally resolve the
matter, the State would refer it to the State director for formal
investigation. Where the director issued a formal, written
determination that an employer violated ES regulations, the
determination would include a notification that the State would
initiate discontinuation procedures in 30 days unless the employer
provided sufficient evidence that it did not violate the ES regulations
or had corrected the violation. If the matter was not resolved in 30
days, the State would then notify the employer in writing that it would
terminate ES services in 15 days unless the employer requested a
hearing or provided sufficient evidence that it did not violate ES
regulations. Where the employer did neither, the State would
discontinue ES services to the employer until the employer provided
sufficient evidence that it did not violate ES
[[Page 63761]]
regulations or that it corrected the violation.
In 1980, the Department published regulations to clarify and
streamline the discontinuation provisions. In addition to violations of
ES regulations, the Department set forth several, specific bases for
discontinuation (e.g., where the employer is found to have
misrepresented the terms and conditions of a job order, or found by an
enforcement agency to have violated an employment-related law). The
Department also revised the discontinuation procedures to include (1) a
notice of intent to discontinue services, (2) an opportunity for
employer to respond and/or request a hearing, (3) a final
determination, and (4) an opportunity to request reinstatement or a
hearing.
The Department proposes revisions throughout this subpart to
further clarify the bases and process for discontinuing services
because the Department has observed a need for greater clarity among
SWAs about the circumstances under which they must discontinue services
to employers and the specific requirements they must follow to do so.
As discussed below, in the Department's view, SWAs do not utilize the
discontinuation process to the fullest extent because of uncertainty
regarding the process and requirements to discontinue services.
In this subpart, the Department also proposes to reorganize
regulations to more accurately group subjects and to more logically
arrange procedural steps, including when and how employers may request
a hearing. Finally, the Department proposes to clarify what ES services
would be unavailable after discontinuation and the entities subject to
discontinuation.
The existing regulations in this subpart require SWAs to
discontinue services to employers who meet any of the bases for
discontinuation detailed at Sec. 658.501(a), by utilizing the
procedures outlined in Sec. Sec. 658.501 through 658.504. However, the
Department has observed hesitancy among SWAs to utilize the existing
discontinuation provisions, and SWAs have shared information with the
Department that they do not fully understand the requirements to
discontinue services to employers and have sought instructions and
Departmental review of notifications to employers. The Department's
data suggests that this lack of clarity is limiting the SWA's use of
discontinuation. For example, a SWA is required to discontinue services
if an employer fails to fully comply with assurances made on clearance
orders. These assurances include compliance with housing standards,
wage payment, contract disclosure, recordkeeping, and other common
areas of employer noncompliance. As reported in the National Monitor
Advocate's (NMA) Annual Report on Services to MSFWs for program year
(PY) 2020, the most recent year for which data is available, Form ETA-
5148 (Services to Migrant and Seasonal Farmworkers Reports) documents
that SWAs processed 598 ES-related complaints against employers
involving non-MSFWs and 94 ES-related complaints against employers
involving MSFWs. Of the 2,581 total complaints received, which include
ES and non-ES related complaints involving MSFWs and non-MSFWs, SWAs
processed, 950 complaints related to wages, 270 complaints involved
discrimination, 173 complaints involved health and safety, and 88
complaints involved housing, in addition to other categories. Also, in
PY 2020, SWAs reported that they processed 453 apparent violations, as
described at Sec. 658.419, including 218 wage-related issues, 175
health and safety related issues, and 51 housing-related issues, in
addition to other categories. Despite the number of complaints and
apparent violations in these areas, SWAs reported that they
discontinued services to only 17 employers in PY 2020. While not every
complaint or apparent violation will result in discontinuation of
services, the low number of discontinuations relative to the number of
complaints and violations may suggest that enhanced clarity in the
bases and procedures for discontinuation is needed, and could aid SWAs
in better utilizing the discontinuation provisions to hold employers
accountable and protect workers from additional violations.
Similarly, SWAs must initiate discontinuation of services when the
Department or a SWA receives notification from an appropriate
enforcement agency of a final determination that includes a violation
of an employment-related law. Applicable enforcement agencies may
include any State, Federal, or local agencies that enforce employment-
related laws, for example the Department's Occupational Safety and
Health Administration (OSHA), WHD, the National Labor Relations Board
(NLRB), the Equal Employment Opportunity Commission (EEOC), State or
local departments of health, and other related agencies. WHD public
enforcement data documents thousands of investigations between PY 2012
and PY 2019 that involve employers who used the ES to place criteria
clearance orders and violated employment-related laws. However, between
PY 2012 to 2019, SWAs reported that they only discontinued services
twice (once in PY 2016 and once in PY 2019). Again, the glaring
disparity between the number of violations found by WHD and the actual
discontinuation of services by the SWAs during the same time period may
suggest that the SWAs would benefit from clarifying revisions to the ES
regulations governing the discontinuation process.
The Department believes that the increase in discontinuation of
services in PY 2020 is likely attributable to the NMA's increased
training of SWA staff in this area of the regulation and not due to an
increase in the number of employers meeting the conditions for
discontinuation of services. While this training provided needed
clarity to the SWAs, and therefore produced results, the Department
sees the need for additional clarity and support for SWAs to
discontinue services and mitigate the possibility of misunderstanding
or incorrectly utilizing the discontinuation provisions. As noted
above, in recent years, SWAs have shared information with the
Department that they do not fully understand the requirements to
discontinue services to employers and have sought instructions and
Departmental review of notifications to employers. In the Department's
review, the Department identified that SWAs have made errors regarding
citing applicable bases to discontinue services under Sec. 658.501(a),
describing necessary facts to justify the discontinuation, and
notifying employers of their right to a hearing. These issues
contributed to several instances where SWA were not successful in
discontinuing services to employers even though the SWAs believed they
had a sufficient basis to discontinue services. The Department believes
that revising the regulations, as described below, provides SWAs the
needed additional clarity to better implement the discontinuation
provisions and would allow ETA, including its regional offices, to
better monitor and support SWAs to ensure they initiate discontinuation
of services as required by the regulations. This would improve worker
protection by preventing noncompliant employers from using the ES
service to obtain workers (including H-2A workers, as employers seeking
to use the H-2A visa program must first file a clearance order through
the ES) which, in turn, aids the Department in ensuring a fair labor
exchange system for compliant employers, and meeting its statutory
obligations to maintain and increase the
[[Page 63762]]
usefulness of the ES system. Additionally, the proposed clarifications
and improvements to the discontinuation procedures provide greater
certainty to employers seeking to provide information to SWAs in
response to a notice of intent to discontinue, or seeking to reinstate
services, and protect employers' interests by ensuring that they
receive informative and timely determinations from SWAs. Specific
proposed changes are discussed below.
The Department proposes to revise Sec. 658.500, which describes
the scope and purpose of subpart F, to add language consistent with
proposed revisions to Sec. 658.503 that discontinued services include
services otherwise available under parts 652 and 653. This revision
clarifies the scope of services discontinued to include the labor
exchange services--such as recruitment, career, and labor market
information services--available to employers under part 652.
The Department also proposes to add paragraph (b) to Sec. 658.500,
which would explain that for purposes of this subpart, employer refers
to employers, as defined at Sec. 651.10, and agents, farm labor
contractors, joint employers, and successors in interest, as proposed
to be defined at Sec. 651.10. Proposed paragraph (b) would therefore
describe which entities may experience discontinuation of services.
Each of these entities may engage in the ES clearance system by
creating or submitting clearance orders, or by managing or utilizing
workers placed on ES clearance orders. Agents and farm labor
contractors often engage the ES clearance system by submitting
clearance orders and controlling many aspects of recruitment activities
relating to clearance orders. Joint employers may utilize workers
placed on clearance orders in the same or similar manner as the
employer, defined at Sec. 651.10, with whom they jointly employ those
workers. A successor in interest may have reincorporated itself from an
employer whose ES services have been discontinued into another business
entity that maintains the same operations or interests, allowing that
entity to undermine the effect of the discontinuation of the original
entity in contravention of the purpose of the discontinuation
regulation. The proposed revisions are meant to clarify and expand the
entities who engage the ES clearance system and are, thus, subject to
discontinuation. Specifically, this change makes it clear that agents,
farm labor contractors, joint employers, and any successor in interest
to an agent, farm labor contractor, or joint employer, are subject to
discontinuation of services. This proposed change addresses a
limitation of the current regulation, allowing SWAs to take action that
will better protect workers.
Finally, as the proposed agents, farm labor contractors, joint
employers, and successors in interest also seek temporary labor
certifications from OFLC under part 655, subpart B, adding these
entities here brings the discontinuation regulation in line with the
existing H-2A regulations, which permit the debarment of agents, farm
labor contractors, joint employers, and successors in interest, as well
as fixed-site H-2A employers, and agricultural associations.
Section 658.501 describes eight bases for which SWA officials must
initiate discontinuation of services to employers. The Department
proposes several edits to paragraphs (a)(1) through (7), except
paragraph (a)(3), including a substantive revision to paragraph (a)(4).
In paragraph (a)(1), the Department proposes to state that SWA
officials must discontinue services to employers who submit and refuse
to correct or withdraw job orders containing terms and conditions
contrary to employment-related laws. The existing regulation contains
the terms alter and specifications. The Department proposes to change
``alter'' to ``correct'' to more clearly articulate that the employer
must specifically correct the noncompliant condition rather than simply
changing the condition, which might not result in correction of the
noncompliance. This change would also clarify which action will lead to
the initiation of the discontinuation process. The Department proposes
to change ``specifications'' to ``terms and conditions'' to align the
language in paragraph (a)(1) with the language used in Sec. 653.501,
and proposes to change this term in the corresponding provision at
Sec. 658.502(a)(1) to conform to this proposed change to Sec.
658.501(a)(1).
The Department proposes to reorganize paragraph (a)(2) for clarity
by moving the language regarding withdrawal of job orders that do not
contain required assurances to earlier in the sentence. The Department
also proposes to remove language in paragraph (a)(2) that currently
limits this basis for discontinuation to only those assurances
involving employment-related laws. The Department proposes to remove
this language because employers must provide all assurances described
at Sec. 653.501(c)(3), which include more than the assurance to comply
with employment-related laws. The Department has determined that a
failure to provide any required assurance should be grounds for
discontinuation because each assurance is necessary to ensure workers
referred on clearance orders are fully apprised of and protected by the
assurances if placed on the order.
The Department proposes to amend paragraph (a)(4) to add that SWA
officials must initiate procedures for discontinuation of services for
employers who are currently debarred from participating in the
Department's H-2A or H-2B foreign labor certification programs. The
Department recognizes that many employers who use the ARS also seek
temporary labor certifications from OFLC under part 655, subpart B.
These employers may attempt to recruit workers through non-criteria
orders in the ARS if they are prohibited from using the H-2A program as
a result of their debarment. In its experience OFLC has seen many
instances where employers who should file H-2B applications because
they are seeking to employ workers in non-agricultural occupations
instead inappropriately file H-2A applications. Similarly, in its
enforcement experience WHD has seen employers that have
mischaracterized the nature of their labor needs on their applications
for labor certification to obtain labor certification to hire workers
from one program to work in job opportunities that are appropriately
classified in the other program. Failure to utilize the appropriate H-2
program results in the posting of inaccurate job orders, thereby
undermining the labor market test. It also deprives workers of the
specific protections available to them under each of the respective
programs, such as the right to housing free of cost under the H-2A
program. Likewise, it harms law-abiding employers as their competitors
gain an unfair advantage by offering fewer benefits to their workforce
or by avoiding the H-2B visa cap to which other employers must adhere.
In light of these experiences, the Department has determined that it is
appropriate for SWAs to initiate discontinuation proceedings against
entities debarred from participation in the H-2A or H-2B temporary
labor certification programs to protect workers seeking employment
through the ES system and to maintain a fair system for law-abiding
employers. The Department notes that Sec. 655.73 currently prohibits
employers debarred from the H-2B program from participating in any of
the Department's other foreign labor programs, including the H-2A
program; this proposal reinforces that prohibition.
The Department proposes this requirement to protect workers who use
the ARS by ensuring that ES offices do
[[Page 63763]]
not place U.S. workers with employers during any such period of
debarment. Debarment is a serious sanction that results from
substantial violations of a material term or condition of the
employer's temporary labor certification, and that is imposed only
after an employer has exhausted or forfeited an opportunity to respond
to the proposed action as well as substantial appeals procedures. These
may include violations related to worker safety, failure to provide
required wages or working conditions, failure to comply with
recruitment requirements or participate in required investigations or
audits, or failure to pay required fees. Entities that have committed
such violations should be excluded from participation in the ES, and
the Department's proposal will better protect U.S. workers by ensuring
that they will not be placed with debarred employers that have
substantially violated a material term or condition of their temporary
labor certification. The proposed changes would also ensure that law-
abiding employers have greater access to ES services and are better
able to recruit available U.S. workers for jobs because SWAs would
spend less time and resources serving noncompliant employers, and law-
abiding employers would receive referrals of qualified U.S. workers
that might otherwise go to noncompliant employers.
The Department invites comments on this proposed basis for
discontinuation and the inclusion of employers debarred from
participation in the H-2B program. In addition, the Department is
considering whether to expand this provision to require SWAs to
initiate discontinuation proceedings against employers that have been
debarred from any of the Department's other foreign labor certification
programs--the H-1B, CW-1, and PERM programs. The Department invites
comments on whether to expand this provision to all of the foreign
labor certification programs, or to some but not all of the other
foreign labor certification programs, the scope of employers to whom
this may apply, and the effect(s) of expanding this provision.
The Department proposes to amend Sec. 658.501(a)(5) by adding that
this basis for discontinuing services includes employers who are found
to have violated ES regulations pursuant to Sec. 658.411 or Sec.
658.419. This edit is intended to clarify that ES violations may be
found as a result of apparent violations, which are described at Sec.
658.419.
The requirement to accept qualified workers referred through the
clearance system applies only to criteria clearance orders filed
pursuant to Sec. 655.121; therefore, the Department proposes to amend
paragraph (a)(6) by clarifying that discontinuation on the basis of
failure to accept qualified workers would be appropriate only for
employers placing criteria clearance orders. For non-criteria clearance
orders, the regulations at part 653, subpart F, do not require
employers to hire all qualified workers referred through the ES, so
this basis for discontinuation would not apply.
In paragraph (a)(7), the Department proposes to remove the words in
the conduct of, which are currently present but do not add meaning and
are therefore extraneous and unnecessary.
Current Sec. 658.501(b) explains the circumstances and procedures
for immediate discontinuation of services. The Department proposes to
move paragraph (b) to Sec. Sec. 658.502 and 658.503 to clarify that
existing paragraph (b) is not an independent basis for discontinuation
and to better align it with the discontinuation procedures in
Sec. Sec. 658.502 and 658.503. Additional proposed changes are
discussed below.
The Department is redesignating current Sec. 658.501(c), which
recognizes the unique interplay between the ES and H visa programs, to
Sec. 658.501(b), with revisions. The proposed new Sec. 658.501(b)
explains what a SWA must do when it has learned that an employer
participating in the ES system may not have complied with the terms of
its temporary labor certification under, for example, the H-2A and H-2B
programs. The current regulation states that SWA officials must engage
in the procedures for discontinuation of services to employers pursuant
to paragraphs (a)(1) through (8) of Sec. 658.501. The Department
proposes to clarify that SWA officials must determine whether the SWA
must initiate discontinuation of services pursuant to Sec. 658.501(a).
The proposed change clarifies that SWAs cannot proceed with
discontinuation procedures based solely on information that an employer
may have violated the terms of its temporary labor certification.
Rather, SWAs must take that information and look to paragraph (a) to
determine whether one of the bases for discontinuation applies. Once a
SWA determines that one of the bases for discontinuation under
paragraph (a) does apply, then the SWA must initiate discontinuation of
services. Finally, as the proposed paragraph (b) would apply to both
currently active and previous labor certifications, the Department
invites comments on whether it would be appropriate to limit the scope
of previous labor certifications or potential violations of a labor
certification to a particular time period.
Section 658.502 describes the notification and procedural
requirements a SWA must follow when it intends to discontinue services
to an employer. The Department proposes several changes throughout
Sec. 658.502 to clarify and streamline these requirements. First, the
Department proposes to revise the section heading to state that it
relates to notification to employers of the SWA's intent to discontinue
services. This change clarifies that this section relates only to
initial notices proposing discontinuation and not to the final notices
described in Sec. 658.503. The Department also proposes to add
introductory language to the beginning of paragraph (a) to clarify that
these procedures apply where the SWA determines that there is an
applicable basis for discontinuation of services under Sec.
658.501(a). The Department proposes additional revisions to paragraph
(a) to clarify that the initial notices must provide the reasons for
proposing discontinuation and must state that the SWA intends to
discontinue services in accordance with this section. The proposed
language removes the reference to part 654, to which discontinuation of
services does not apply. These proposed revisions are intended to
address issues SWAs encountered in PY 2020 and 2021 in initiating
discontinuation of services, including insufficient notification to
employers of the applicable bases for discontinuation and insufficient
factual detail in the notices to support the applicable bases. The
Department notes that if more than one basis under paragraph (a)
applies, the SWA must initiate discontinuation under all applicable
bases.
Paragraphs (a)(1) through (7) of Sec. 658.502 provide specific
notification requirements for each of the corresponding bases for
discontinuation outlined in Sec. 658.501(a)(1) through (7). The
Department proposes to remove language in Sec. 658.502(a)(1) through
(7) that describes the applicable bases for discontinuation and instead
cross-reference the applicable citations for clarity. For example, the
Department proposes to revise Sec. 658.502(a)(1) to state that the
paragraph applies where the proposed discontinuation is based on Sec.
658.501(a)(1). This would replace current language that describes Sec.
658.501(a)(1) and more clearly and succinctly direct the SWA to Sec.
658.501(a)(1) as the applicable basis.
The Department also proposes to remove language in Sec.
658.502(a)(1) through (7) that provides employers the
[[Page 63764]]
opportunity for a pre-discontinuation hearing. In response to a SWA's
notice of intent to discontinue services, the existing language
provides an employer the opportunity to submit evidence contesting the
proposed discontinuation and/or to request a hearing pursuant to Sec.
658.417. The proposed revisions will better align the hearing
procedures for discontinuation of services at part 658, subpart F, with
the hearing procedures for the ES Complaint System at Sec. Sec.
658.411(d) and 658.417, which allow for a hearing by a State hearing
official only after the SWA issues a final decision on a complaint. As
currently written, the discontinuation proceedings at Sec.
658.502(a)(1) through (3) and (5) through (7) allow for a hearing under
Sec. 658.417 without the SWA ever issuing a final determination under
Sec. 658.503. This prevents SWAs from uniformly issuing final
determinations in all discontinuation proceedings. Additionally, it
inadvertently allows employers to bypass a formal decision from the SWA
anytime they request a hearing and, because State administrative
hearings may take several months to complete, inadvertently prolongs
any formal determinations. The Department believes that removing the
opportunity for a pre-discontinuation hearing--while maintaining the
opportunity for employers to submit evidence contesting the proposed
discontinuation under Sec. 658.502 and the opportunity for a post-
discontinuation hearing in Sec. 658.504--allows SWAs to expeditiously
and fairly resolve discontinuation proceedings while providing
sufficient due process to employers. The proposed change allows for a
more complete record than would result from an immediate appeal of a
notice from the SWA proposing discontinuation. This proposed change
also better aligns with the ES Complaint System regulations which do
not contemplate pre-determination hearings. Moreover, as discussed
above, the 1977 discontinuation regulations only allowed for pre-
discontinuation hearings and, in an effort to clarify and streamline
the discontinuation provisions, the 1980 regulations allowed for both a
pre- and post-discontinuation hearing pursuant to Sec. 658.417. In
doing so, the pre-discontinuation hearing currently available under
Sec. 658.502 is no different than the post-discontinuation hearing
available under Sec. 658.504. Removing the identical pre-
discontinuation hearing allows for a more efficient process without
removing due process protections for employers and ensures that post-
discontinuation hearings are decided on a more complete record.
Finally, in Sec. 658.502(a)(1) through (7), the Department
proposes changing the language that SWAs must notify employers that all
employment services will be terminated to state that all ES services
will be terminated. The proposed language clarifies that the services
at issue are specific to the ES.
In addition to the changes described above, the Department proposes
revisions to paragraphs (a)(1) through (7) to provide greater detail
and specificity regarding the type of information that SWAs must
provide to employers when proposing to discontinue services. The
proposed changes ensure that SWAs adequately explain their reasons for
proposing discontinuation, and that employers have sufficient factual
detail to respond to the proposed discontinuation. In these paragraphs,
the Department also proposes small changes for clarity, including
rewording sentences so they use the active voice.
In paragraph (a)(2), the Department proposes to add language
explaining that SWAs must specify the assurances involved and must
explain how the employer refused to provide the assurances. The
proposed edits ensure that SWAs describe the basic facts that led them
to initiate discontinuation of services so employers understand the
scope of the alleged violation and have sufficient information to
respond. The Department also proposes a revision to paragraph
(a)(2)(ii) to align this paragraph with the proposed changes to Sec.
658.501(a)(2), discussed above, regarding the scope of the required
assurances.
In paragraph (a)(3), to provide clearer direction to SWAs and
better notice to entities receiving a notice, the Department proposes
to add language stating that SWAs 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. In paragraph (a)(3)(iii), the Department proposes removing the
requirement that employers provide resolution of a complaint which is
satisfactory to a complainant referred by the ES, replacing it with the
requirement that an employer provide adequate evidence that it has
resolved the misrepresentation of terms and conditions of employment or
noncompliance with assurance. Evidence is adequate if the SWA could
reasonably conclude that the employer has resolved the
misrepresentation or noncompliance. The proposed change removes
unnecessary and out-of-place language regarding ES complaints, which
are addressed in paragraph (a)(5), and better aligns Sec.
658.502(a)(3) with proposed Sec. 658.501(a)(3). The Department also
proposes combining paragraphs (a)(3)(iii) and (iv) to make clear that
employers need to provide the information in paragraphs (a)(3)(iii) and
(iv) together.
In paragraph (a)(4), the Department proposes to add language that
SWAs must provide evidence of the final determination by an enforcement
agency of a violation of an employment-related law or debarment with
the notice of intent to discontinue services. For purposes of
discontinuation, a final determination is a decision by an enforcement
agency, such as WHD, OSHA, or other Federal, State, or local agency
responsible for enforcing employment-related laws, that has become
operative under applicable law. For final determinations, the
Department proposes adding language clarifying that the SWA must
specify--as discussed in the final determination or debarment--the
enforcement agency's findings of facts and conclusions of law as to the
employment-related law violation(s). For final debarment orders, the
Department proposes adding language requiring the SWA to specify the
time period for which the employer is debarred from participating in
one of the Department's foreign labor certification programs. These
proposed revisions ensure the SWA has confirmed that a final
determination or debarment exists and that the employer has sufficient
information regarding the final determination at issue to respond.
The Department proposes revisions to Sec. 658.502(a)(4)(i) through
(iii) to clarify and explain the evidence and assurances that employer
may provide to avoid discontinuation of services. In paragraph
(a)(4)(i), the Department proposes to remove existing language stating
that the employer may provide evidence that the enforcement agency
reversed its ruling and that the employer did not violate employment-
related laws; and to replace it with language stating that the employer
may provide evidence that the determination at issue is not final
because, for example, it has been stayed pending appeal, overturned, or
reversed. The proposed change clarifies that employers may contest the
finality of the determination under paragraph (a)(4) and clarifies that
SWAs may not discontinue services where a determination is not, in
fact, final. The Department proposes a new paragraph
[[Page 63765]]
(a)(4)(ii) which requires employers to submit evidence that their
period of debarment is no longer in effect and that they have taken all
actions required by the enforcement agency as a consequence of the
violation. If the proposed discontinuation is based only on a final
determination of a violation of an employment related law, then
evidence that the debarment is no longer in effect is not needed;
similarly, if the proposed discontinuation is based on a debarment then
evidence that the employer has taken necessary remedial actions is not
necessary. The proposed addition in paragraph (a)(4)(ii)(A) is
necessary to address employer responses to debarment or
disqualification. The proposed paragraph (a)(4)(ii)(B) incorporates
existing language and is meant to more clearly encompass any and all
actions required by final determination but does not substantively
change what an employer has to show under current Sec.
658.502(a)(4)(ii).
In paragraph (a)(5), the Department proposes additional language to
clarify that the SWA must specify which ES regulation the employer has
violated and must provide basic facts to explain the violation. The
proposed language ensures that SWAs provide sufficient factual detail
regarding the ES violation at issue so the employer can respond.
The Department proposes to revise Sec. 658.502(a)(6) to explain
that SWAs must state that the job order at issue was filed pursuant to
Sec. 655.121 and specify the name of each worker who was referred and
not accepted. The proposed revision is consistent with the proposed
change to Sec. 658.501(a)(6) and ensures that SWAs provide sufficient
factual detail regarding the workers at issue so the employer can
respond. In paragraph (a)(6)(iii), the Department proposes changing and
to or to decouple paragraph (a)(6)(iii) from the assurances required in
existing paragraph (a)(6)(iv), as it is not necessary for employers
that did not violate the requirement to provide assurances of future
compliance. The Department proposes a new paragraph (a)(6)(iv), to add
an option for the employer to show that it was not required to accept
the referred workers, because the time period under 20 CFR 655.135(d)
had lapsed, and a new paragraph (a)(6)(v), to add an option for the
employer to show that, after initial refusal, it subsequently accepted
and offered the job to the referred workers or to show that it has
provided all appropriate relief imposed as a result of the refusal. It
is necessary to update this paragraph because the current regulation
does not provide for the scenario where an employer subsequently offers
employment to qualified workers after first refusing, as the current
paragraph (a)(6)(i) is intended to capture scenarios where an employer
accepted qualified workers and did not refuse them as found by the SWA.
It is also possible that SWAs may attempt to resolve apparent
violations involving failure to hire qualified U.S. workers referred
through the ES, resulting in employers hiring those individuals.
Finally, the Department proposes to move existing paragraph (a)(6)(iv)
to paragraph (a)(6)(vi) to maintain the requirement that the employer
provide assurances that qualified workers referred in the future will
be accepted; and adds new language to clarify the assurance that is
required depending on whether the period described in 20 CFR 655.135(d)
has lapsed, as after the end of the period the employer would no longer
be required to accept referred workers on the particular clearance
order involved. This change provides a means of ensuring future
compliance with the requirement that the employer submitting criteria
clearance orders hires all qualified workers referred to the order.
In paragraph (a)(7), the Department proposes clarifying edits that
provide clearer direction to the SWA but that do not change the
regulation's meaning, including rephrasing sentences and changing the
pronoun used for employers to it instead of he/she.
The Department proposes to add a new paragraph (a)(8) to explain
information the SWA must include in its notice to an employer proposing
to discontinue services where the decision is based on Sec.
658.501(a)(8) (repeatedly causes the initiation of discontinuation of
services). The Department proposes that the SWA must list and provide
basic facts explaining the prior instances where the employer has
repeatedly caused initiation of discontinuation proceedings to provide
notice of the basis for the SWA's action to facilitate their response.
The SWA must notify the employer that all ES services will be
terminated unless the employer within that time provides adequate
evidence that the SWA's initiation of discontinuation in prior
proceedings was unfounded. The proposed paragraph (a)(8) replaces
existing paragraph (c), which discusses discontinuation based on Sec.
658.501(a)(8) but does not include clear direction to the SWA and does
not provide sufficient notice to employers to allow them to respond.
The Department proposes to remove existing Sec. 658.502(b) and (d)
because these paragraphs pertain to the employer's pre-determination
opportunity to request a hearing. As described above, the Department
proposes to eliminate the opportunity for an employer to request a
hearing until after the SWA has provided its final notice on
discontinuation of services to the employer.
The Department proposes a new Sec. 658.502(b) to explain the
circumstances that warrant immediate discontinuation of services. The
proposed addition replaces existing Sec. 658.501(b), in part, and
states that SWA officials must discontinue services immediately, in
accordance with Sec. 658.503, without providing the notice of intent
and opportunity to respond described in this section, if an employer
has met any of the bases for discontinuation of services under Sec.
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. The existing Sec. 658.501(b) states that
SWA officials may discontinue services immediately in these
circumstances, whereas the proposed new Sec. 658.502(b) states that
SWAs must discontinue services immediately. Additionally, existing
Sec. 658.501(b) allows for discontinuation when there would be
substantial harm to a significant number of workers, whereas proposed
new Sec. 658.502(b) requires immediate discontinuation when there
would be substantial harm to workers. The proposed changes recognize
that immediate discontinuation is warranted where the harm at issue
would involve only one or a small number of workers, and that where
such harm would occur SWAs must be required to initiate discontinuation
to prevent the harm from actually occurring to workers. Finally, this
proposed paragraph clarifies that immediate discontinuation is
appropriate only when a basis under proposed Sec. 658.501 exists and
the SWA determines that substantial harm would occur; risk of
substantial harm alone is not enough for a SWA to immediately
discontinue services.
Section 658.503 describes the procedural requirements a SWA must
follow when issuing a final determination regarding discontinuation of
services to an employer. The Department proposes to revise paragraph
(a) to require that within 20 working days of receipt of the employer's
response to the SWA's notification under Sec. 658.502, or at least 20
working days after the SWA's notification is received by the employer
if the SWA does not receive a response, the SWA must notify the
employer of its
[[Page 63766]]
final determination. When the SWA sends its notification, it must do so
in a manner that allows the SWA to track receipt of the notification,
such as certified mail. If the SWA determines that the employer did not
provide a satisfactory response in accordance with Sec. 658.502 the
SWA's notification must specify the reasons for its determination,
state that the discontinuation of services is effective 20 working days
from the date of the notification, state that the employer may request
reinstatement or a hearing pursuant to Sec. 658.504, and state that a
request for a hearing stays the discontinuation pending the outcome of
the hearing. The Department is proposing this stay pending appeal and
the 20-working-day period to ensure that employers are provided an
opportunity to challenge the SWA's determination before losing access
to all ES services. Staying the effect of discontinuation during the
pendency of an appeal is appropriate to allow for full adjudication and
resolution of any issues related to the SWA's findings before they
become final and binding on the employer and the ES system, mitigating
the risk that an employer is erroneously deprived of access to
services, similar to the procedures in Sec. 658.502. Additionally,
placing the effective date at the end of the 20-day period, rather than
at the issuance of the notification, avoids depriving appealing
employers of ES services for a short period of time prior to their
request for hearing. This also makes for a more efficient process for
SWAs and ETA, as these agencies would otherwise expend time and
resources to effectuate a discontinuation that may be premature--if the
employer requests a hearing a short time later, agencies would need to
use additional resources to then stay the discontinuation they just
effectuated. To facilitate implementation and maintenance of the
proposed Office of Workforce Investment discontinuation of services
list, discussed above, the SWA must also notify the ETA Office of
Workforce Investment of any final determination to discontinue ES
services, including any decision on appeal upholding a SWA's
determination to discontinue services.
The proposed Sec. 658.503(a) removes language regarding pre-
discontinuation hearings to correspond with proposed changes to Sec.
658.502. The Department believes that this timeline for SWAs is
appropriate because an expeditious resolution of the matter both
minimizes the uncertainty an employer faces when a SWA has proposed to
discontinue services, and it allows the SWA to deny services to
employers that have engaged in impermissible conduct. The effect of an
adverse final determination would be, among other things, to protect
workers from being placed with those employers and would prevent the
employer from seeking a temporary labor certification under part 655,
subpart B, of the title. Because of the potential consequences to both
employers and workers, the Department has determined that an
expeditious process would be necessary.
The Department proposes to add a new Sec. 658.503(b) to explain
the procedures for immediate discontinuation of services and to
incorporate them into the general discontinuation procedures at Sec.
658.503. The proposed new paragraph (b) replaces existing Sec.
658.501(b), in part, and states that the SWA must notify the employer
in writing that its services are discontinued as of the date of the
notice. The notification must also state that the employer may request
reinstatement or a hearing pursuant to Sec. 658.504, and that a
request for a hearing relating to immediate discontinuation does not
stay the discontinuation pending the outcome of the hearing. The
proposed new Sec. 658.503(b) adds that SWA must specify the facts
supporting the applicable basis for discontinuation under Sec.
658.501(a) and the reasons that exhaustion of the administrative
procedures would cause substantial harm to workers. The proposed
addition ensures that employers have sufficient information regarding
the SWA's rationale for immediate discontinuation, and makes clear that
employers have recourse to the State administrative hearing process or
reinstatement process if a SWA immediately discontinues services. While
discontinuation under a determination issued under Sec. 658.503(a) is
delayed until the employer's time to appeal the determination has
ended, the Department thinks that the circumstances justifying a notice
of immediate discontinuation also justify that the discontinuation be
effective immediately, irrespective of the employer's opportunity to
appeal, and that it remain in effect unless the employer is reinstated
or the determination is overturned. Immediate discontinuation is
reserved for those situations where the State Administrator determines
that substantial harm to workers will occur if action is not
immediately taken. For example, State Administrators may determine that
immediate discontinuation is justified when they receive information
evidencing that employers have made threats or have perpetrated
violence against workers, or that involve other substantial harm like
human trafficking and other significant health and safety issues. SWA
quarterly ETA Form-5148 reports evidence that SWAs processed 36
complaints and four apparent violations involving sexual harassment,
coercion, or assault, as well as two complaints and six apparent
violations involving trafficking in PY 2020.\10\ Additionally, over the
last several years, the Department has received information evidencing
that employers have made threats of physical violence against workers.
In two cases, employers were recorded on video threatening workers with
firearms. Delaying the effective date of the discontinuation would
undermine the protection that the immediate discontinuation procedure
is designed to provide. While the Department recognizes the burden that
employers may face if they do not have access to any ES services
pending an appeal of an immediate discontinuation, the Department
thinks that this burden is outweighed by the interest in protecting
workers from harmful, potentially dangerous situations. The Department
notes that in lieu of an appeal, an employer subject to immediate
discontinuation of services can request reinstatement from the SWA, and
that the proposed 20-day timeframe for the SWA to respond to such a
request may provide for timely and efficient resolution of an immediate
discontinuation. Finally, as with proposed Sec. 658.503(a), to
facilitate implementation and maintenance of the proposed Office of
Workforce Investment discontinuation of services list, discussed above,
the SWA must also notify the ETA Office of Workforce Investment of any
final determination to discontinue ES services.
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\10\ See Appendix IV LEARS 5148 Report Part 1 National Data for
PY 2020, https://www.dol.gov/sites/dolgov/files/ETA/mas/pdfs/APPENDIX%20IV%20LEARS%205148%20REPORT%20PART%201%20NATIONAL%20DATA.xlsx.
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The Department proposes to move current Sec. 658.503(b), which
requires the SWA to notify the relevant ETA regional office if services
are discontinued to an employer subject to Federal Contractor Job
Listing Requirements, to proposed new paragraph (c) and to make minor
edits to use active voice and to improve clarity, which do not change
the meaning of the requirement. The Department proposes to add
paragraph (d) to require SWAs to notify the complainant of the
employer's discontinuation of services, if the discontinuation of
services is based on a complaint filed pursuant to Sec. 658.411.
[[Page 63767]]
This requirement would align with section Sec. 658.411(b)(2) and (d).
The Department proposes to add a new paragraph (e) to explain the
effect discontinuation of services has on employers. The proposed new
paragraph explains that employers that experience discontinuation of
services may not use any ES activities described in parts 652 and 653,
and that SWAs must remove the employer's active job orders from the
clearance system and must not process any future job orders from the
employer for as long as services are discontinued. An employer's loss
of access to ES services applies in all locations throughout the
country where such services may be available. If the effect of the
discontinuation were limited to just the State that discontinued
services, it would frustrate the purpose of discontinuation.
This proposed new paragraph responds to common questions the
Department receives regarding the effect of discontinuation of services
on current and future job orders and, as with proposed revisions to
Sec. 658.500, clarifies that the scope of services discontinued to
include those ES services available to employers under part 652.
Proposed Sec. 658.501(b) would require SWA officials to notify the
OFLC National Processing Center (NPC) when an ES office or SWA has
information that an employer may not have complied with the terms of
its temporary labor certification, under, for example the H-2A and H-2B
programs. Therefore, in addition to closing the employer's active
clearance orders so that the employer will not receive additional U.S.
worker referrals, the NPC would be aware of the alleged noncompliance
so that it may investigate and apply appropriate actions to the foreign
labor certification. The Department is interested in comments on the
effect on both workers and employers of removing active job orders,
particularly criteria orders. The Department proposes new paragraph (f)
to explain that SWAs must continue to provide the full range of ES and
other appropriate services to workers whose employers' services have
been discontinued. The proposed new paragraph makes it clear that
discontinuation of services to employers does not, and should not,
negatively affect workers. SWAs must continue to provide necessary
support to workers, including outreach to MSFWs, access to the ES and
Employment-Related Law Complaint System, and all available ES services.
Section 658.504 describes the procedural requirements for seeking
reinstatement of ES services, which can be done either by requesting
that the SWA reconsider its decision or by requesting a hearing. The
Department proposes to restructure this section to more clearly explain
how services may be reinstated, the timeframes in which the employers
and SWA must act, and the circumstances under which services must be
reinstated.
The Department proposes to revise paragraph (a) to make clear that
employers have two avenues with which to seek reinstatement of
services--via a hearing within 20 working days of the discontinuation
or a written request to the SWA at any time following the
discontinuation. An employer cannot, however, simultaneously appeal a
discontinuation and submit a written request to the SWA for
reinstatement. The revised paragraph (a) adds the new requirement that
an employer who requests a hearing following discontinuation do so
within 20 working days of the date of discontinuation. These avenues
are available under the current regulation, but the Department has
added a requirement that the employer file an appeal within 20 working
days of the SWA's final determination because both the employer and the
State have an interest in timely and efficient adjudication of
disputes.
The Department proposes to revise Sec. 658.504(b) to explain the
circumstances and procedures under which SWAs must reinstate services
when an employer submits a written request for reinstatement. The
Department proposes new paragraph (b)(1), which retains the current 20-
day timeline in existing paragraph (b) within which the SWA must notify
the employer whether it grants or denies the employer's reinstatement
request. The proposed paragraph (b)(1) also requires that if the SWA
denies the request, the SWA must specify the reasons for the denial and
must notify the employer that it may request a hearing, in accordance
with proposed paragraph (c), within 20 working days.
The Department proposes to move current paragraph (a)(2), which
describes the evidence necessary for reinstatement, to proposed
paragraph (b)(2) to align with the overall restructuring of the
section. The Department also proposes to remove the word any to require
that the employer show evidence that all applicable specific policies,
procedures, or conditions responsible for the previous discontinuation
are corrected, instead of any policies, procedures, or conditions
responsible for the previous discontinuation. The Department is
concerned that the current language could permit reinstatement despite
an employer not correcting all relevant policies, procedures, or
conditions, which would be inconsistent with the purpose of
discontinuation. Finally, the Department also proposes to change the
pronoun used for employers to it instead of his/her.
The Department proposes to revise Sec. 658.504(c) to explain the
circumstances and procedures under which SWAs must reinstate services
when an employer submits a timely, written request for a hearing. The
proposed revisions maintain the procedures in existing paragraphs
(a)(1), (c), and (d), but have reorganized them into the same paragraph
for clarity. Finally, the Department proposes to replace the
abbreviated term ``Federal ALJ'' in the existing regulation with
``Federal Administrative Law Judge,'' commonly abbreviated as ALJ.
The Department proposes a new paragraph (d) to require that SWAs
notify the ETA Office of Workforce Investment of any determination to
reinstate ES services, or any decision on appeal upholding a SWA's
determination to discontinue services, within 10 working days of the
date of issuance of the determination. As discussed above, the
Department believes that prompt notification to the Office of Workforce
Investment will facilitate implementation and maintenance of the
proposed Office of Workforce Investment discontinuation of services
list and will ensure that employers whose services have been reinstated
may promptly access ES services.
IV. Discussion of Proposed Revisions to 20 CFR Part 655, Subpart B
A. Introductory Sections
1. Section 655.103(e), Defining Single Employer Test
The Department proposes to define a new term ``single employer'' to
codify and clarify its long-standing approach to determining if
multiple nominally separate employers are operating as one employer for
the purposes of the H-2A program. The Department has encountered
numerous instances over at least the last decade where it appears
separate entities are using their corporate structure--intentionally or
otherwise--to bypass statutory and regulatory requirements to receive a
temporary labor certification, or to circumvent regulations aimed at
protecting workers in the United States. See, e.g., Lancaster Truck
Line, 2014-TLC-00004, at *3, *5 (BALCA Nov. 26,
[[Page 63768]]
2013) (employer was ``frank about separating the legal entities of his
operation'' from his father's operation to ``comply with the H-2A
program's seasonal permitting restrictions'' and the ALJ held the
attempt to divide work did not demonstrate temporary need).
OFLC regularly receives and reviews applications for temporary
labor certification that appear to be for job opportunities with
different employers when in reality the workers hired under these
certifications are employed by companies so intertwined that they are
operating as a single employer in one area of intended employment for a
period of need that is not temporary or seasonal. The Department has
also increasingly encountered H-2A employers that employ H-2A workers
under one corporate entity and non-H-2A workers under another, creating
the appearance that the H-2A employer has no workers in corresponding
employment when actually, the corporate entities are intertwined and
all the H-2A workers are employed by a single H-2A employer, and the
non-H-2A workers are engaged in corresponding employment. Employers may
attempt to use these schemes to evade requirements of the H-2A program,
such as paying workers in corresponding employment the required wage
rate or abiding by the housing and transportation requirements of the
H-2A program.
OFLC currently uses, and has used for more than a decade, some form
of a ``single employer'' test to determine if nominally separate
employers should be considered as one entity for purposes of assessing
temporary or seasonal need (discussed further below under Temporary or
Seasonal Need). However, because this test is not incorporated into the
Department's regulations, it has been criticized and inconsistently
applied by the Board of Alien Labor Certification Appeals (BALCA).
Compare Mid-State Farms, LLC, 2021-TLC-00115, at *16, *25-27 (BALCA
Apr. 16, 2021) (noting that the ``single employer test'' has not been
subject to public comment, and thus using the ``joint employer test''
instead) (more discussion below) with K.S. Datthyn Farms, LLC, 2019-
TLC-00086, at *4-6 (BALCA Oct. 7, 2019) (applying the single employer
test to determine that two H-2A applicants for temporary labor
certification were one single employer with a single labor need).
Relying on Federal and BALCA case law, WHD currently also applies the
``single employer'' test to determine the H-2A employer's compliance
with program requirements.
The Department's proposal to add a definition of ``single
employer,'' which would explicitly permit the use of the single
employer test when reviewing applications for temporary labor
certification and for purposes of enforcement, is meant to codify the
Department's long-standing practice. Doing so would prevent employers
from using their corporate structures to circumvent regulatory
requirements and would provide notice and clarity to the stakeholder
community regarding the Department's single employer analysis. A
clearly articulated definition also could serve to deter employers from
utilizing practices that appear to circumvent the obligations of H-2A
employers by making explicit the obligations of the single employer.
This section discusses (1) the single employer definition the
Department proposes to add to a new subordinate paragraph (e) within
Sec. 655.103, including the factors the Department will consider when
determining whether two or more entities satisfy this definition; (2)
the use of the single employer test by OFLC when analyzing whether an
employer has a temporary or seasonal need; and (3) the use of the
single employer test in enforcement of contractual obligations.
a. Definition
As noted, the Department already applies a ``single employer'' test
(sometimes referred to as an ``integrated employer'' test) under the H-
2A program in certain contexts. OFLC currently uses this test to
determine if multiple nominally separate employers should be considered
as one entity for the purposes of determining whether an applicant for
labor certification has a temporary or seasonal need, and WHD uses this
test to determine whether H-2A employers complied with program
requirements. This test originated with the NLRB and has been adopted
by courts and Federal agencies under a wide variety of statutes. See S.
Prairie Const. Co. v. Local No. 627, Int'l Union of Operating Eng'rs,
AFL-CIO, 425 U.S. 800, 802-803 (1975). As the Second Circuit has
explained, the single employer test may be used to determine liability
for employment-related violations, as well as to determine employer
coverage, and the policy underlying the doctrine is ``fairness . . .
where two nominally independent entities do not act under an arm's
length relationship.'' Murray v. Miner, 74 F.3d 402, 404 n.1, 405 (2d
Cir. 1996).
Consistent with judicial and administrative precedent, the
Department has typically looked to four factors to determine whether
the entities at issue should be considered a single employer for
purposes of temporary need and compliance: (1) common management, (2)
interrelation between operations, (3) centralized control of labor
relations, and (4) degree of common ownership/financial control. See,
e.g., Sugar Loaf Cattle Co., 2016-TLC-00033, at *6 (BALCA Apr. 6, 2016)
(citing to Spurlino Materials, LLC v. NLRB, 805 F.3d 1131, 1141 (D.C.
Cir. 2015)). The proposed definition would incorporate the four factors
noted above and, as under current practice, the Department would
consider the totality of the circumstances surrounding the relationship
among the entities, and no one factor would be determinative in the
analysis.\11\
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\11\ See also Travis Hollifield, Integrated Employer/Enterprise
Doctrine in Labor & Employment Cases, The Federal Lawyer, December
2017, at 56, 58, https://www.fedbar.org/wp-content/uploads/2017/12/Labor-and-Empl-pdf-1.pdf.
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The Department's main concern in determining whether two or more
entities are operating as one is preventing employers from utilizing
their corporate structure(s) to circumvent the program's statutory and
regulatory requirements. As such, the Department's focus when examining
whether two or more entities are a single employer is both the
relationship between the entities themselves and each entity's use of
the H-2A program. See Knitter v. Corvias Military Living, LLC, 758 F.3d
1214, 1227 (10th Cir. 2014) (in a Title VII case, the court noted that
``the single employer test focuses on the relationship between the
potential employers themselves''). The Department emphasizes again that
no one factor is determinative as to whether entities are acting as
one.
Regarding the ``common management'' factor, the ``relevant inquiry
is whether there is `overall control of critical matters at the policy
level.' '' K.S. Datthyn Farms, LLC, 2019-TLC-00086, at *6 (citations
omitted) (quoting Spurlino Materials, 805 F.3d at 1142). Shared day-to-
day management may also indicate common management. Spurlino Materials,
805 F.3d at 1142. For example, where the same president, treasurer, and
chief operating officer oversee the actions of multiple entities and
resolve disputes, this suggests a common management between entities.
Pepperco-USA, Inc., 2015-TLC-00015, at *30-31 (BALCA Feb. 23, 2015).
Regarding the ``interrelation between operations'' factor, the
Department may look to whether the entities operate at arm's length.
Id. It may examine whether companies share products or services, costs,
worksites, worker
[[Page 63769]]
housing, insurance, software, or if they share a website, supplies, or
equipment. See, e.g., id.; Sugar Loaf Cattle Co., 2016-TLC-00033, at
*6-7 (finding an interrelation of operations in part because the work
locations were ``fundamentally at the same place''); David J.
Woestehoff, 2021-TLC-00112, at *11 (BALCA Apr. 2, 2021) (comparing
employers' housing locations and worksites to analyze their
relationship).
Regarding the ``centralized control of labor relations'' factor,
for example, the Department may look to whether the persons who have
the authority to set employment terms and ensure compliance with the H-
2A program are the same. K.S. Datthyn Farms, 2019-TLC-00086, at *5
(noting that the same manager signed different H-2A applications and
this was a ``fundamental labor practice [ ], at the core of employer-
employee relations for any business'').
Finally, regarding ``common ownership and financial control,'' the
Department may look to the corporate structure and who owns the
entities, whether it be, for example, a parent company or individuals.
See Pepperco-USA, Inc., 2015-TLC-00015, at *30-31 (two nominally
distinct entities were owned by one parent company). It may also
explore whether the owners of the entities at issue are related in some
way. See, e.g., JSF Enters., 2015-TLC-00009, at *13 (BALCA Jan. 22,
2015) (entities owned in varying degrees by members of the same
family); Larry Ulmer, 2015-TLC-00003, at *3 (BALCA Nov. 4, 2014) (two
companies with similar names were owned by father and son); Lancaster
Truck Line, 2014-TLC-00004, at *2-3 (father and son sought to separate
a business in an attempt to meet seasonal need requirements); see also
Overlook Harvesting Co., 2021-TLC-00205, at *13 (BALCA Sept. 9, 2021)
(the marital relationships between two companies' owners suggested
shared control).
These examples of analysis and lines of inquiry related to each of
the factors are not exhaustive.
b. Temporary or Seasonal Need
OFLC's COs will use the single employer test to determine if an
employer's need is truly temporary or seasonal. Section
101(a)(15)(H)(ii)(a) of the INA permits only ``agricultural labor or
services . . . of a temporary or seasonal nature'' to be performed
under the H-2A visa category. 8 U.S.C. 1101(a)(15)(H)(ii)(a). Thus, as
part of the Department's adjudication of applications for temporary
agricultural labor certification, the Department assesses on a case-by-
case basis whether the employer has established a temporary or seasonal
need for the agricultural work to be performed. See 20 CFR 655.103(d),
655.161(a).
As noted above, some nominally distinct employers have intertwined
agricultural operations such that when they apply for H-2A workers it
appears that two or more separate entities are each requesting a
different temporary labor certification. However, in reality, the
workers on these certifications are employed by a single enterprise in
the same area of intended employment and in the same job opportunity
for longer than the attested period of need on any one application. For
example, if Employer A has a need for two Agricultural Equipment
Operators from February to December, and Employer B has a need for two
Agricultural Equipment Operators from December to February at the same
worksite, this may reflect a single year-round need for Agricultural
Equipment Operators. See, e.g., Katie Heger, 2014-TLC-00001, at *6
(BALCA Nov. 12, 2013) (``Considering that the [two entities] appear to
function as a single business entity and have identified sequential
dates of need for the same work, their `temporary' needs merge into a
single year-round need for equipment operators.''). In these
situations, the two nominally separate employers may be applying for
certification for, and advertising for, one continuous, sometimes
permanent, job opportunity, which calls into question whether either
employer has a temporary or seasonal need.
This situation arises only when employers are filing multiple
applications for the same or similar job opportunities in the same area
of intended employment, such that the combined period of need is
continuous or permanent. Applications for job opportunities in
different occupations, involving different duties and requirements, or
opportunities in different areas of intended employment may not
demonstrate one singular continuous need for workers, regardless of
whether the two employers would satisfy the single employer test.
Furthermore, if the periods of need of two or more entities reflect the
same, or similar, need for labor, this is also not necessarily
problematic because the need is not continuous. For example, Employer A
has a need from January to April, and Employer B has a need from
February to April--the two employers may be a single employer, but the
need for workers, assuming the required labor levels are far above
necessary for ongoing operations, may still be seasonal.
Even if employers have genuine business needs for dividing their
business and then separately applying for H-2A workers, this approach
to filing labor certification applications is still problematic. It
undermines the statutorily required labor market test and the
Department's ability to protect workers in the United States as each
application, standing alone, does not fully convey the potential job
opportunity to any applicant--for example, the job opportunity could be
for 12 total months rather than 6 months with one employer, and 6
months with only a nominally separate entity. It is possible that a
U.S. worker would be interested in a job that could last a year, or
even permanently, rather than only 6 months. More importantly, it is a
statutory requirement that the H-2A work be of a temporary or seasonal
nature, and therefore employers submitting an application for temporary
labor certification are required to establish that they have a
temporary or seasonal need for agricultural labor. 8 U.S.C.
1101(a)(15)(H)(ii)(a), 20 CFR 655.103(d), 655.161. Permitting employers
with a permanent need to simply divide their business so that multiple
entities can establish a temporary or seasonal need, and thereby obtain
a labor certification, would violate the statute. See, e.g., Intergrow
East, Inc., 2019-TLC-00073, at *5 (BALCA Sept. 11, 2019) (``An employer
may not circumvent the temporary need requirement by using a closely
related business entity to file an overlapping application . . . .'')
(citations omitted). An employer need not be willful in its attempt to
circumvent program requirements to nevertheless engage in a business
practice that inhibits the Department's ability to protect workers and
carry out its statutory mandate.
To address these situations, for years OFLC has used an informal,
fact-focused method of inquiry, involving a comparison of case
information (e.g., owner and manager names, locations, recruitment
information, and other operational similarities across applications).
In approximately 2015, OFLC began to frame its single employer analysis
using the NLRB's single employer test (see above under Definition) to
improve consistency and transparency and to address more complex
business structures (e.g., corporate organizations) filing H-2A
applications through nominally different employers. See Pepperco-USA,
Inc., 2015-TLC-00015, at *4-5. Historically, BALCA has affirmed many
OFLC denials that either explicitly used the single employer test or
used a
[[Page 63770]]
similar analysis. See, e.g., K.S. Datthyn Farms, LLC, 2019-TLC-00086,
at *4-6 (affirming the CO and applying the four-part NLRA and Title VII
integrated employer test to determine that two H-2A applicants for
temporary labor certification were one integrated employer with a
single labor need); JSF Enters., 2015-TLC-00009, at *12 (affirming the
CO and finding that ``[t]he four entities . . . fill the same need on a
year round basis because of the interlocking nature of the businesses
and regardless of the distinction in crops each harvests [sic]'');
Altendorf Transp., Inc., 2013-TLC-00026, at *8 (BALCA Mar. 28, 2013)
(affirming the CO and noting that Employer's argument ``does not
overcome the interlocking nature of the business organizations . . . .
The Employer has the burden of persuasion to demonstrate it and [the
other entity] are truly independent entities.''); D & G Frey Crawfish,
LLC, 2012-TLC-00099, at *2, *4 (BALCA Oct. 19, 2012) (affirming the CO
and stating that ``[Employer's] ability to separate her operation into
two entities does not enable her to hire temporary H-2A workers to
fulfill her permanent need . . .'').
However, in more recent decisions, BALCA has sometimes rejected the
single employer test, noting that it had not been promulgated through
notice and comment rulemaking. See Mid-State Farms, LLC, 2021-TLC-
00115, at *16 (``This court can find no published instance where the
`Single Employer Test' has been debated openly, subjected to public
comment or accepted as official Department policy.''); Crop Transp.,
LLC, 2018-TLC-00027, at *6 n.6 (BALCA Oct. 19, 2018) (noting that the
single employer test ``is lamentable'' because of its ``awkward fit to
immigration practice and its ambiguity. . . . It would be helpful . . .
if meaningful regulatory criteria were promulgated through notice and
comment procedures as to when ETA will consider two nominally separate
entities as a single applicant for purposes of temporary labor
certifications under the Act.'').
In response to these concerns some ALJs have applied the ``joint
employer'' test to analyze temporary need because a definition of
``joint employment'' is included in the regulations. See, e.g., Mid-
State Farms, LLC, 2021-TLC-00115, at *26; Overlook Harvesting Co.,
2021-TLC-00205, at *10. Joint employment generally is ``where two or
more employers each have sufficient definitional indicia of being a
joint employer of a worker under the common law of agency.'' 20 CFR
655.103(b). Joint employment thus takes into consideration the
relationship between the employer and the employees, while the single
employer test focuses on the relationship between the nominally
distinct employers. See Knitter, 758 F.3d at 1227 (``Unlike the joint
employer test, which focuses on the relationship between an employee
and its two potential employers, the single employer test focuses on
the relationship between the potential employers themselves.'').
Finally, joint employment assumes that the entities are separate while
the single employer test asks whether ``two nominally separate entities
should in fact be treated as an integrated enterprise.'' Id. at 1226-27
(quoting Bristol v. Bd. of Cnty. Comm'rs, 312 F.3d 1213, 1218 (10th
Cir. 2002) (en banc)).
Determining whether two entities are joint employers, contrary to
BALCA's assertion in Mid-State Farms, LLC, is unhelpful when assessing
temporary or seasonal need where, for example, an employer splits their
business between two seemingly separate entities to circumvent the
requirement to establish a temporary or seasonal need. See Overlook
Harvesting Co., 2021-TLC-00205, at *10 (noting modified ``joint
employer'' test to analyze temporary or seasonal need was problematic
because two related companies could ``manipulate [their] seasonal
need'' under this test by splitting one, potentially year-long, season
into two seasons with one company working one season, and the other
working the other). In those situations, employees are generally not
employed by both nominally distinct employers at the same time, though
there may be overlap between the periods of need, making the analysis
of joint employment largely inapplicable. In assessing temporary or
seasonal need, the focus of the Department's analysis is not on the
relationship between the employer and the employees, but rather between
the employers themselves.
In light of the conflicting BALCA case law, and to codify its long-
standing practice, the Department proposes to incorporate the single
employer definition into the regulations and also notes that COs will
use the definition to analyze the temporary or seasonal need of
nominally separate entities.
The Department emphasizes that joint employment can still be useful
in analyzing temporary or seasonal need in the H-2A program, and this
proposal is not meant to eliminate or undermine appropriate use of the
joint employment test. For example, there may be a situation where an
employer applies for workers from January to April and then hires an H-
2ALC or subcontractor for the months of May to December. It is possible
that this subcontracting (or even a parent and subsidiary) relationship
could be joint employment as defined in the regulations. If such an
employer-applicant hires workers from January to April, and then
jointly employs workers in the same occupation in the same area of
intended employment from May to December, this employer-applicant would
have a year-round need and would therefore be unable to establish the
required temporary need for the H-2A program. The use of the single
employer test in temporary or seasonal need analysis will cover
situations where employees are not jointly employed.
Should a CO suspect that an employer-applicant has a true need that
stretches longer than their stated need because it is a single employer
together with another entity, the COs may issue a Notice of Deficiency
(NOD) to clarify the status of said entities. To analyze whether two
entities are a single employer, COs may request, via NOD, information
necessary for this determination, including, but not limited to: (1)
documents describing the corporate and/or management structure for the
entities at issue; (2) the names of directors, officers and/or managers
and their job descriptions; (3) incorporation documents; or (4)
documents identifying whether the same individual(s) have ownership
interest or control. The COs may additionally ask for explanation as
to: (1) why the businesses may authorize the same person or persons to
act on their behalf when signing contracts, or applications, etc.; (2)
whether the businesses intermingle money or share resources; (3)
whether workspaces are shared; and (4) whether the companies produce
similar products or provide similar services. These lists of
documentation or evidence are not exclusive, and the COs may request
other information or documentation as necessary.
c. Enforcement
The proposed definition of single employer also would explicitly
provide that the Department may apply this test for purposes of
enforcing an H-2A employer's contractual obligations. The Department
has increasingly encountered H-2A employers that employ H-2A workers
under one corporate entity and non-H-2A workers under another, such
that it appears that the H-2A employer has no non-H-2A workers in
corresponding employment when in reality, the companies are so
intertwined that all the workers are employed by a single employer, and
the
[[Page 63771]]
non-H-2A workers are employed in corresponding employment.
As noted above, and consistent with BALCA and Federal case law, WHD
already applies the single employer test in certain circumstances to
determine whether an H-2A employer has complied with its program
obligations. Over the past several years, WHD has increasingly
encountered employers employing temporary nonimmigrant workers that
utilize multiple, seemingly distinct corporate entities under common
ownership. In the H-2A context, these employers have divided their H-2A
and non-H-2A workforces onto separate payrolls, such that it appears
that the employer has no workers in corresponding employment, and
paying the non-H-2A workers less than the H-2A workers. However, the H-
2A and non-H-2A workers generally work alongside one another,
performing the same work, under the same common group of managers,
subject to the same personnel policies and operations. In these
circumstances, to determine whether the H-2A employer listed on the H-
2A Application employed the non-H-2A workers in corresponding
employment, the common law test for joint employment may not be a
useful inquiry because the interrelation of operations makes it
difficult to determine the relationship between each distinct corporate
entity and the workers. The single employer test is a more useful
inquiry because it focuses on the relationship between the corporate
entities to determine whether they are so intertwined as to constitute
a single, integrated employer, such that it is appropriate and ``fair''
to treat them as one for enforcement purposes. Absent application of
the single employer test, this burgeoning business practice might be
used--whether intentionally or not--to deprive domestic workers of the
protections of the H-2A program by superficially circumventing an
employment relationship with the H-2A employer as described herein,
contrary to the statute's requirements. 8 U.S.C. 1188(a)(1).
While WHD already utilizes the single employer test, the Department
believes that explicitly noting in the regulations the potential
applicability of this test for purposes of enforcement, and the factors
the Department will consider in applying this test, will provide
clarity for internal and external stakeholders and also could deter
employers from intentionally seeking to circumvent the H-2A program's
requirements in this manner. Just as the single employer test is not
meant to displace the joint employer test when analyzing temporary or
seasonal need, the Department does not propose to replace or supersede
the definition of ``joint employment'' under the existing regulations
for purposes of enforcement. Rather, depending upon the facts and
circumstances of a given case, the Department may apply the single
employer test, the joint employment test, or both in the alternative,
to determine an H-2A employer's compliance with program requirements.
d. Conclusion
In conclusion, the Department proposes a new paragraph (e) to Sec.
655.103 that grants the Department explicit authority to use the
definition of ``single employer'' to determine if nominally separate
employers should be considered one single employer for the purpose of
determining the applicant's temporary or seasonal need, or for purposes
of enforcement. The Department believes that incorporating this single
employer test into the regulations would allow for more consistent
application of the temporary or seasonal need requirement and improve
compliance with program obligations.
The Department recognizes that the adoption of the single employer
definition as it relates to temporary need assessments may impact some
businesses more than others. Regardless of the impact on certain
employers, the Department believes proposing this regulatory text is
necessary to ensure compliance with statutory and regulatory
requirements and clarify the appropriate standard to assess the nature
of the relationship between two or more entities. The Department
welcomes comments on these proposed revisions, especially comments
relating to the impact this may have on specific industries or types of
employers.
2. Section 655.104, Successors in Interest
The Department proposes several revisions to its current
regulations to clarify the liability of successors in interest and
revise the procedures for applying debarment to successors in interest
to a debarred employer, agent, or attorney. Since 2008, the
Department's H-2A regulations have made explicit that successors in
interest to employers, agents, and attorneys may be held liable for the
responsibilities and obligations of their predecessors, including
debarment. As the Department explained in the preamble to the H-2A
final rule issued in 2008, holding successors liable, particularly in
the context of debarment, is necessary ``to ensure that violators are
not able to reincorporate to circumvent the effect of the debarment
provisions,'' and ``to prevent persons or firms who were complicit in
the cause of debarment from reconstituting themselves as a new entity
to take over the debarred employer's business.'' 73 FR 77110, 77116,
77188 (Dec. 18, 2008) (2008 H-2A Final Rule). Despite these intentions,
the Department's current regulations governing debarment, as
interpreted by the ARB and the BALCA, are insufficient to effectively
prevent program violators from ``circumvent[ing] the effect of the
debarment'' as the Department originally intended. Id. at 77110.
Specifically, under the Department's current regulations and
controlling administrative precedent, before OFLC may deny an H-2A
Application filed by or on behalf of a successor in interest to a
debarred employer, agent, or attorney, the Department must first debar
the successor in interest pursuant to the full procedures for debarring
the original violating employer, agent, or attorney. See Admin. v.
Fernandez Farms, ARB No. 2016-0097, 2019 WL 5089592, at *2-4 (ARB Sept.
16, 2019) (holding that 29 CFR 501.31 requires WHD to issue a new
notice of debarment to a successor before subjecting the successor to
the original employer's WHD order of debarment); Gons Go, Inc., BALCA
Nos. 2013-TLC-00051, -00055, -00063 (BALCA Sept. 25, 2013) (holding 20
CFR 655.182 requires OFLC to first debar a successor of a debarred
employer, by completing the full debarment procedures in Sec. 655.182,
before it may deny the successor's application for labor
certification). These requirements are unnecessary under the principles
of the successorship doctrine, and unduly burden the Department's
ability to apply debarment to successors in interest, thus allowing
those known to have committed substantial H-2A violations to continue
to participate in the H-2A program.
Under the successorship doctrine, a putative successor in interest
to a debarred employer, agent, or attorney is entitled to notice and an
opportunity for hearing prior to denial of a future application only on
the question of its status as a successor in interest. See Golden State
Bottling Co., Inc. v. NLRB, 414 U.S. 168, 180 (1973) (discussing due
process rights of successors). The Department need not obtain a new
order of debarment against the successor directly; that is the ``whole
point'' of the successorship doctrine, that the liabilities of the
predecessor attach to the successor. Criswell v. Delta Air Lines, 868
F.2d 1093, 1095 (9th Cir. 1989).
[[Page 63772]]
Accordingly, the Department proposes several revisions to its
regulations to streamline the procedures by which it may apply a
debarment of an employer, agent, or attorney to a successor in interest
while affording putative successors due process. First, the Department
proposes a new Sec. 655.104, Successors in interest. Proposed
paragraphs (a) and (b) are similar to the longstanding definition of
``successors in interest,'' currently in Sec. 655.103(b), Definitions.
However, proposed paragraph (a) omits language in the current
regulation stating that liability of successors in interest arises
where an employer, agent, or attorney ``has ceased doing business or
cannot be located for purposes of enforcement.'' Instead, the
Department proposes adding to proposed paragraph (b) a similar--but
broader--definition of successors in interest. The new language in
proposed paragraph (b) would specify that ``[a] successor in interest
includes an entity that is controlling and carrying on the business of
a previous employer, agent, or farm labor contractor, regardless of
whether such successor in interest has succeeded to all the rights and
liabilities of the predecessor entity.'' This proposed revision
recognizes that successorship law does not typically limit successor
liability to scenarios where an entity has ceased doing business or
cannot be located. The Department believes these revisions will more
accurately capture successorship scenarios that may arise in the H-2A
context. In the same vein, in proposed Sec. 655.104(b) the Department
proposes minor revisions to the current definition in Sec. 655.103(b),
regarding the nonexhaustive factors that the Department would use in
determining successor status. The proposed revisions to the factors
would provide that the personal involvement of the successor firm's
supervisors and management in the violations underlying the debarment
is one of several factors, rather than the ``primary'' factor, to be
considered in cases of debarment. In its experience, the Department has
found the current regulation's reliance on this factor as the
``primary'' factor to be unduly limiting, and in tension with the
general principle in paragraph (i) of the definition of successor in
interest that no one factor should be dispositive in determining
successor status. 20 CFR 655.103(b) (paragraph (i) of the definition of
``successor in interest''). The Department also proposes a
corresponding revision to delete the definition of ``successor in
interest'' from the Definitions at Sec. 655.103(b).
Proposed Sec. 655.104(c) explains that when an employer, agent, or
attorney is debarred, any successor in interest to the debarred
employer, agent, or attorney is also debarred. Accordingly,
applications filed by or on behalf of a putative successor in interest
to a debarred employer, agent, or attorney would be treated like
applications filed by the debarred employer, attorney, or agent.
Specifically, under this proposal, if the CO determines that such an
application was filed during the debarment period, the CO would issue a
NOD under Sec. 655.142 or deny the application under Sec. 655.164,
depending upon the procedural status of the application. The NOD or
denial would be based solely on the basis of the applying entity's
successor status and would not address (nor would it waive) any other
potential deficiencies in the application. If the CO determines that
the entity is not a successor, the CO would resume with processing of
the application under Sec. 655.140. However, if the CO determines that
the entity is a successor, the CO would deny the application without
further review pursuant to Sec. 655.164. As with any other
certification denial, the putative successor could appeal the CO's
determination under the appeal procedures at Sec. 655.171;
specifically here, the question of whether the entity is, in fact, a
successor in interest to a debarred employer, agent, or attorney.
However, such appeal would be limited to the entity's status as a
successor given the narrow scope of the CO's determination under these
provisions. Accordingly, should a reviewing ALJ conclude that the
entity is not a successor, the application would require further
consideration and thus the ALJ would remand the application to OFLC for
further processing.
The Department proposes corresponding revisions to Sec. 655.182,
governing debarment, to state clearly that debarment of an employer,
agent, or attorney applies to any successor in interest to that
debarred employer, agent, or attorney. These proposed revisions would
remove references to successors in interest from current paragraphs (a)
and (b), would redesignate current paragraph (b) to paragraph (b)(1),
and would include a new paragraph (b)(2) that reiterates the procedures
for determining successor status as outlined in proposed Sec.
655.104(c).
Similarly, proposed Sec. 655.104(c) also would explain that the
OFLC Administrator may revoke a certification that was issued, in
error, to a successor in interest to a debarred employer, pursuant to
Sec. 655.181(a). The entity may appeal its successor status pursuant
to Sec. 655.171. The Department notes that it may revoke a
certification issued, in error, to a debarred employer or to a
successor of a debarred employer under its current revocation
authorities, but the Department proposes revisions to the bases for
revocation at Sec. 655.181(a)(1), to clarify that fraud or
misrepresentation in the application includes an application filed by a
debarred employer (and, by extension, an application filed by a
successor to a debarred employer). These proposed changes would simply
clarify this existing authority. However, given the impact of
revocation on both employers and workers, proposed Sec. Sec.
655.104(c) and 655.181(a)(1) would not explicitly contemplate
revocation of a certification issued, in error, based on an application
filed by a debarred agent or attorney, or by successors to a debarred
agent or attorney, as distinct from a debarred employer or successor in
interest to a debarred employer. The Department invites comment on
whether revocation may be warranted in such circumstances.
Finally, the Department proposes corresponding revisions to the
procedures governing WHD debarments under 29 CFR 501.20, including a
new proposed paragraph (j) that explicitly addresses successors in
interest. Under the successorship doctrine, as discussed above, and
under this proposed rule, WHD would not be required to issue a notice
of debarment to a successor in interest to a debarred employer, agent,
or attorney; rather, debarment of the predecessor would apply equally
to any successor in interest. However, as provided in proposed
paragraph (j), as a matter of expediency WHD could, but would not be
required to, name any known successors to an employer, agent, or
attorney in a notice of debarment issued under Sec. 501.20(a).
The Department has determined that these proposed revisions would
better effectuate the intent of the Department's current successor in
interest regulations, which are critically important to ensuring that
program violators cannot circumvent a debarment. The proposed
procedures would allow OFLC to apply a final order of debarment of an
employer, agent, or attorney to any successor in interest to the
debarred entity. The proposed procedures also would provide for
sufficient due process to putative successors, as the proposed
procedures would require OFLC to provide notice to the successor of the
basis for the deficiency under Sec. 655.141 or denial under Sec.
655.164 (i.e., its status as a successor), and an opportunity for
hearing on its successor status under
[[Page 63773]]
Sec. 655.171. The Department welcomes comments on these proposed
revisions.
3. Section 655.190, Severability
The Department proposes to add a severability clause to 20 CFR part
655, subpart B. This clause would explain that if any provision is held
to be invalid or unenforceable by its terms, or as applied to any
person or circumstance, or stayed pending further agency action, the
provision shall be construed so as to continue to give the maximum
effect to the provision permitted by law, unless such holding is one of
total invalidity or unenforceability, in which event the provision or
sub-provision shall be severable from the corresponding subpart or part
and shall not affect the remainder thereof. The Department proposes to
add this severability clause because generally, each provision within
the H-2A regulations is capable of operating independently from one
another, including where the Department has proposed multiple methods
to strengthen worker protections and to enhance the Department's
capabilities to conduct enforcement and monitor compliance. Further,
the severability clause demonstrates the Department's intent that the
remaining provisions of the regulations should continue in effect if
any provision or provisions are held to be invalid or unenforceable. It
is the Department's intent that the remaining provisions of the
regulations should continue in effect if any provision or provisions
are held to be invalid or unenforceable. It is of great importance to
the Department and the regulated community that even if a portion of
the H-2A regulations were held to be invalid or unenforceable that the
larger program could operate consistent with the expectations of
employers and workers.
The Department seeks comments both on the substance and scope of
this proposed severability clause and requests the public's views on
any other issues related to severability, such as whether the rule in
general includes provisions amenable to severability; whether specific
parts of the rule could operate independently; whether the benefits of
the rule would continue to justify the costs should particular
provisions be severed; or whether individual provisions are essential
to the entire rule's workability.
B. Prefiling Procedures
1. Section 655.120(b), Offered Wage Rate
Currently, Sec. 655.120(b)(2) provides that the Department will
update each AEWR at least annually by publication in the Federal
Register.\12\ In addition, paragraph (b)(3) requires employers to
adjust workers' pay, if necessary, so that the employer pays workers at
least the updated AEWR upon the effective date of the updated AEWRs in
the Federal Register. However, the present regulatory text does not
address when the AEWR published in a Federal Register notice becomes
effective. The Department therefore proposes to revise paragraph (b)(2)
and (3) to designate the effective date of updated AEWRs as the date of
publication in the Federal Register.
---------------------------------------------------------------------------
\12\ Under 44 U.S.C. 1507, publication in the Federal Register
provides legal notice of the new wage rates.
---------------------------------------------------------------------------
The duty to pay an updated AEWR where it is higher than the other
wage sources is not a new requirement, nor is the requirement to pay an
increased AEWR immediately upon publication in the Federal Register.
Between 1987 and January 2018, the Department required employers
participating in the H-2A program to offer and pay the highest of the
AEWR, the prevailing wage, any agreed-upon collective bargaining wage,
or the Federal or State minimum wage at the time the work is performed
effective upon the date of publication in the Federal Register.\13\
Under more recent practice, however, when publishing the Federal
Register notice containing updated AEWRs, the Department has stated the
effective date of the new AEWRs in the notice and generally set the
effective date of the new AEWRs at no later than 14 calendar days from
the publication of that notice.
---------------------------------------------------------------------------
\13\ See, e.g., 1987 H-2A interim final rule (IFR), 52 FR 20496,
20521; Labor Certification Process for the Temporary Employment of
Aliens in Agriculture in the United States; H-2A Program Handbook,
53 FR 22076, 22095 (June 13, 1988) (``Certified H-2A employers must
agree, as a condition for receiving certification, to pay a higher
AEWR than the one in effect at the time an application is submitted
in the event publication of the [higher] AEWR coincides with the
period of employment.'').
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In this rule, the Department proposes to revise paragraph (b)(2) to
designate the effective date of updated AEWRs as the date of
publication in the Federal Register. For further clarity, the
Department also proposes to revise paragraph (b)(3) to state that the
employer is obligated to pay the updated AEWR immediately upon the date
of publication of the new AEWR in the Federal Register. As noted above,
the proposal to remove an effective date which differs from the
publication date of the AEWRs represents a return to longstanding prior
practice. This change will also ensure that agricultural workers are
paid at least the most current AEWR when work is performed, which
better aligns with the Department's mandate to prevent adverse effect
on the wages of workers in the U.S. similarly employed. To eliminate
any potential confusion among either employers or workers as to when
the new AEWR will need to be paid, the NPRM also proposes to update the
regulatory text, which is currently silent on this issue, to clearly
state when the obligation to pay the new AEWRs begins.
While the Department recognizes that this proposal is a departure
from more recent practice that allowed a wage adjustment period, the
vast majority of employers will still have the opportunity to view and
assess the impact of the new AEWR rates prior to their publication by
the OFLC Administrator in the Federal Register on or around January
1.\14\ Prior to that publication, USDA publishes its FLS in late
November \15\ showing the wage data findings that become the new AEWRs
for the field and livestock workers (combined) occupational grouping.
Similarly, BLS publishes its OEWS data in March, which contains the
wage data that become the new AEWRs on or around July 1 for the small
percentage of job opportunities that cannot be encompassed within the
six Standard Occupational Classification (SOC) codes and titles in the
FLS field and livestock workers (combined) reporting category. The
Department will post a notice on the OFLC website when USDA publishes
the FLS and when BLS publishes the OEWS data that will direct employers
to the publicly available information. The Department recognizes that
the employers of the small number of field and livestock workers
(combined) job opportunities in
[[Page 63774]]
States or regions, or equivalent districts or territories, for which
the FLS does not report a wage (e.g., Alaska and Puerto Rico) will not
have similar direct access to information enabling them to predict the
applicable AEWR for planning purposes. However, as the Department noted
in the 2010 H-2A Final Rule, ``[as] . . . these wage adjustments may
alter employer budgets for the season,'' employers are encouraged ``to
include into their contingency planning certain flexibility to account
for any possible wage adjustments.'' 75 FR 6884, 6901 (Feb. 12, 2010).
The Department believes these proposed revisions will clarify employer
wage obligations and ensure that agricultural workers are paid at least
the AEWR in effect at the time the work is performed, without new or
additional impact to most employers' ability to budget and plan. The
Department seeks comments on all aspects of this proposal.
---------------------------------------------------------------------------
\14\ See, e.g., 88 FR 12760, 12766 (the Department's program
estimates indicate that 98 percent of H-2A job opportunities are
classified within the six SOC titles and codes of the field and
livestock workers (combined) occupational grouping).
\15\ USDA's National Agricultural Statistics Service publishes
the Farm Labor report on its website at https://www.nass.usda.gov/Surveys/Guide_to_NASS_Surveys/Farm_Labor/. OEWS wages for each SOC
code and geographic area are available using the Department's search
tool or searchable spreadsheet that may be accessed at https://flag.dol.gov. BLS publishes OEWS data on its website at https://www.bls.gov/oes/data-overview.htm. An overview of the OEWS survey
methodology may be accessed at https://www.bls.gov/oes/current/oes_tec.htm. An explanation of the survey standards and estimation
procedures can be found at https://www.bls.gov/opub/hom/oews/pdf/oews.pdf.
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2. Sections 655.120(a) and 655.122(l), Requirement To Offer, Advertise,
and Pay the Highest Applicable Wage Rate
The Department proposes revisions to Sec. Sec. 655.120(a) and
655.122(l) to clarify that where there is an applicable prevailing
piece rate, or where an employer intends to pay a piece rate or other
non-hourly wage rate, the employer must include the non-hourly wage
rate on the job order along with the highest hourly rate. All potential
wage rates must be listed on the job order notwithstanding the fact
that it may not be possible to determine in advance which of these
rates is the highest. Once work has been performed, the employer must
then calculate and pay workers' wages using the wage rate that will
result in the highest wages for each worker in each pay period.
The Department's current regulations at 20 CFR 655.120(a) and
655.122(l) require an employer to ``offer, advertise in its
recruitment, and pay'' the highest of the AEWR, prevailing wage rate,
collective bargaining agreement (CBA) rate, or Federal or State minimum
wage. While seemingly straightforward, this requirement has been
difficult to apply in practice. For instance, where there is an
applicable prevailing piece rate, it is usually not possible to
determine until the time work is performed whether the prevailing piece
rate will be higher than the highest of the applicable hourly wage
rates as this will depend on worker productivity.
In such instances, OFLC currently only requires H-2A employers to
list a wage offer that is at least equal to the highest applicable
hourly wage--usually the AEWR--on job orders, consistent with BALCA
decisions dating from 2009 to 2011, which concluded that, under the
regulations, OFLC cannot require employers to include an applicable
prevailing piece rate on the job order where OFLC does not know at the
certification stage whether the prevailing piece rate will be higher
than the highest hourly wage. See, e.g., Golden Harvest Farm, 2011-TLC-
00442, at *3 (BALCA Aug. 17, 2011); Dellamano & Assocs., 2010-TLC-
00028, at *5-7 (BALCA May 21, 2010); Twin Star Farm, 2009-TLC-00051, at
*4-5 (BALCA May 28, 2009). While this has been the Department's
longstanding practice, the Department is concerned with the uncertainty
this practice can generate as to which rate or rates an employer must
include as the required wage in a job order and pay to H-2A workers and
workers in corresponding employment. Moreover, because the prevailing
piece rate is not included on the job order, in most such instances,
WHD is not able to enforce the prevailing piece rate.
In other instances, such as when there is not a prevailing wage,
employers may voluntarily elect to pay a piece rate or other non-hourly
wage rate but fail to include such rates on the job order, potentially
mispresenting the offered wage rate and failing to meet their
recruitment obligations.
The Department proposes several changes to the existing regulations
to address these issues. First, the Department proposes to retain the
current list of wage rates in Sec. 655.120(a), redesignated as Sec.
655.120(a)(1)(i) through (v), and to add to this list, at paragraph
(a)(1)(vi), ``[a]ny other wage rate the employer intends to pay.'' This
proposed addition will clarify an employer's obligation to include on
the job order any wage rate it intends to pay that could end up being
the highest applicable wage rate for some workers, in some pay periods.
The Department also proposes to add at Sec. 655.120(a)(2) an explicit
requirement that, where the wage rates in paragraph (a)(1) are
expressed in different units of pay, the employer must list the highest
applicable wage rate for each unit of pay in its job order and must
advertise all of these wage rates in its recruitment. Under this
proposal, where one of the wage rates in paragraph (a)(1) is expressed
as a piece rate and the others are expressed as hourly wage rates, the
employer must list both the piece rate and the highest hourly wage rate
on the job order. Where more than one of the wage rates in paragraph
(a)(1) are expressed as non-hourly wage rates the employer would be
required to list the highest applicable wage rate for each potential
unit of pay on the job order.
Next, the Department proposes corresponding changes at Sec.
655.122(l), including replacing the list of wage rates with a cross-
reference to Sec. 655.120(a)(1), removing the current language in
Sec. 655.122(l)(1) which would be made redundant by the changes to
Sec. 655.120(a), and making other technical edits. In addition, the
Department proposes to remove the current language at Sec.
655.122(l)(2)(i) and (ii), which requires an employer to supplement
workers' pay where a worker is paid by the piece and does not earn
enough to meet the required hourly wage rate for each hour worked, but
does not include an analogous requirement that an employer supplement
workers' pay when a worker who is paid by the hour does not earn enough
to meet the applicable prevailing piece rate. The Department proposes
to replace this language with a new provision at paragraph (l)(1)
explaining that the employer must always calculate and pay workers'
wages using the wage rate that will result in the highest wages for
each worker, in each pay period. Because employers would be required to
pay whichever wage rate will result in the highest wages in a
particular pay period, supplementing workers' pay to ensure that the
required hourly wage is met will no longer be necessary. Proposed new
paragraph (l)(2) explains that, where the wage rates set forth in Sec.
655.120(a)(1) include both hourly and non-hourly wage rates, the
employer must calculate each worker's wages in each pay period using
the highest wage rate for each unit of pay and must pay the worker the
highest of these wages for that pay period. Under this proposal, the
employer is responsible for evaluating the different wage rates
applicable in each pay period of the growing season, including any mid-
season increases in wage rate(s) that might not be reflected in the job
order. Proposed paragraphs (l)(1) and (2) also make clear that the
wages actually paid cannot be lower than the wages that would result
from the wage rate(s) guaranteed in the job order, so that, if there is
a mid-season decrease in wage rate(s), the workers are still entitled
to the higher wage rate(s) listed on the job order.
Under this proposal, where an employer includes multiple activities
or tasks, each of which have different applicable wage rates, in a
single job order, the employer must engage in the analysis set forth
above with respect to each activity or task. For example, if a job
order includes harvesting several varieties of apples, each with a
different
[[Page 63775]]
prevailing wage rate, the employer must list on the job order, for each
variety, both the highest applicable hourly wage rate and the highest
applicable wage rate for any other unit of pay, including any piece
rates. The employer would then be responsible for evaluating, with
respect to each activity or task performed in the pay period, which of
the applicable wage rates would result in the highest wage for the
worker for the work performed and to pay the worker the highest wage
with respect to each activity or task performed.
The Department believes that these proposed changes would help
ensure that employers' recruitment efforts reflect the correct
applicable wage rates so as to more accurately determine whether there
are U.S. workers who would be available and willing to accept the
employment. They also would help ensure that H-2A workers and workers
in corresponding employment are paid the wages to which they are
entitled (i.e., the highest of the AEWR, prevailing hourly wage or
piece rate, CBA rate, Federal minimum wage, State minimum wage, or any
other wage rate the employer intends to pay). Because H-2A employers
are already required to accurately track and record both hours worked
and field tallies pursuant to Sec. 655.122(j), the Department believes
that employers should already have processes in place to accurately
record information needed for compliance with the proposed changes to
Sec. Sec. 655.120(a) and 655.122(l), minimizing any additional
administrative burden these proposed changes would place on employers.
The Department welcomes comments on this proposal. In particular,
the Department is interested in examples of how this proposal would
work in practice, whether there are circumstances, such as when an
employer includes multiple activities or tasks in a single job order,
where further clarification is needed on which wage rates must be
listed in the job order and how to calculate the worker's wages, and
whether corresponding changes to the recordkeeping requirements at
Sec. 655.122(j) and (k) or to the requirements for SWAs' review of job
orders at part 653, subpart F, are needed. In addition, the Department
seeks comments on whether the requirement to list the highest
applicable wage rate for each unit of pay on job orders placed in
connection with an H-2A application renders unnecessary the requirement
at 20 CFR 653.501(c)(2)(i) that an employer that pays by the piece or
other non-hourly unit calculate and submit an estimated hourly wage
rate with the job order. Under the proposed rule, the job order in such
cases should guarantee payment of the highest of the applicable hourly
or non-hourly wage rates. The Department welcomes comment on whether
the calculation of an estimated hourly wage would still be necessary to
prevent adverse effect on similarly employed workers in the United
States and/or on agricultural workers generally.
The Department is considering making similar revisions to the
regulations at Sec. Sec. 655.210(g) and 655.211, governing the rates
of pay and contents of job orders for herding and range livestock
production occupations, to require an employer to disclose all
potentially applicable rates of pay in the job order. Under such a
proposal, for example, an employer would be required to disclose on the
job order both the monthly AEWR and a State minimum hourly wage rate
applicable to the job opportunity that could potentially result in
higher earnings based on hours worked. As explained above, the
Department believes that such disclosure would likely benefit potential
applicants to better understand the potential earnings for a job
opportunity, and would assist the Department with more efficient
program administration and enforcement. The Department welcomes comment
on whether it should include these similar revisions in any final rule.
The Department is also considering making similar revisions to the
regulations at 20 CFR 653.501(c), governing the requirements for SWAs'
review of clearance orders, to require an employer to disclose all
potentially applicable rates of pay in a non-H-2A (or non-criteria)
clearance order. Under such a proposal, an employer would be required
to disclose on the clearance order the highest applicable hourly wage
rate, if any (i.e., the highest of any applicable prevailing hourly
wage rate, the Federal or State minimum wage, or an hourly wage rate
the employer intends to pay), as well as any piece rate or other non-
hourly wage rate applicable to the job opportunity that could
potentially result in higher earnings, and to pay workers the highest
of these rates. The Department believes that such disclosure would
likely benefit potential applicants to better understand the potential
earnings for a job opportunity, and that it would minimize confusion to
require similar information for both criteria and non-criteria
clearance orders. The Department welcomes comment on whether it should
include these similar revisions in any final rule.
3. Section 655.122, Contents of Job Offers
a. Paragraph (h)(4) Employer Provided Transportation
The Department proposes to revise Sec. 655.122(h)(4) to require
the provision, maintenance, and wearing of seat belts in most employer-
provided transportation. The Department believes that existing vehicle
safety standards provide important safeguards for workers, but that
they are insufficient to adequately address transportation safety
challenges. The inclusion of regulations related to seat belts would
reduce the hazards associated with agricultural work, thus making these
H-2A jobs more attractive to workers in the United States.
Studies have shown that seat belt use dramatically decreases
occupant fatalities and injuries in the event of a vehicle crash. Seat
belts reduce fatalities and serious injuries by keeping occupants
inside the vehicle and close to their original seating position,
gradually decelerating the occupant as the vehicle deforms, and
prevents occupants from hitting the vehicle interior or other
passengers.\16\ DOT's National Highway Traffic Safety Administration
(NHTSA), which regulates vehicle manufacturing standards and studies
the efficacy of safety enhancements, began to require seat belts in at
least some vehicles beginning in 1968, and identifies seat belt
technology and usage as one of the most significant safety enhancements
of the past 60 years. NHTSA estimates that using a seat belt in the
front seat of a passenger car can reduce fatal injury by 45 percent and
reduce moderate to critical injury by 50 percent.\17\ The safety effect
increases in a light truck, where seat belts reduce fatal injury by 60
percent and reduce moderate to critical injury by 65 percent.\18\
Between 1960 and 2012, NHTSA estimates that seat belts have saved
329,715 lives, which constitutes more than half of the estimated lives
saved by safety improvements in this time period
[[Page 63776]]
(613,501).\19\ In 2020, estimated average passenger vehicle seat belt
use in the United States was 90.3 percent,\20\ but between 46 and 51
percent of those killed in passenger vehicle crashes were not wearing
seat belts.\21\
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\16\ See Nat'l Highway Traffic Safety Admin., Dep't of Transp.,
DOT HS-812-069, Lives Saved By Vehicle Safety Technologies and
Associated Federal Motor Vehicle Safety Standards, 1960 to 2012--
Passenger Cars and LTVs--With Reviews of 26 FMVSS and the
Effectiveness of Their Associated Safety Technologies in Reducing
Fatalities, Injuries, and Crashes 89 (2015) (2015 NHTSA Report),
https://crashstats.nhtsa.dot.gov/Api/Public/ViewPublication/812069.
\17\ Id. at 107-11. See also Seat Belts, Nat'l Highway Traffic
Safety Admin., https://www.nhtsa.gov/risky-driving/seat-belts#resources (``Seat Belts'').
\18\ 2015 NHTSA Report at 107-11.
\19\ Id. at xxxi-xxxii.
\20\ See Nat'l Highway Traffic Safety Administration, U.S. Dep't
of Transp., DOT HS 813-072, Traffic Safety Facts Research Note: Seat
Belt Use in 2020--Overall Results (2021) (2021 NHTSA Report),
https://crashstats.nhtsa.dot.gov/Api/Public/ViewPublication/813072.
\21\ Nat'l Highway Traffic Safety Administration, U.S. Dep't of
Transp., DOT HS 813-266, Overview of Motor Vehicle Crashes in 2020
11, 13 (2022), https://crashstats.nhtsa.dot.gov/Api/Public/ViewPublication/813266. NHTSA appears to estimate overall fatality
rates of unrestrained passengers compared only to other fatalities
where seat belt use was known and estimates that 51% of vehicle
occupants who are killed were not wearing seat belts. See id. at 13.
On the other hand, the Governors Highway Safety Association (GHSA)
cites the same data, but computes instead that 46% of occupants
killed were unrestrained, which likely reflects that GHSA compared
unrestrained fatalities with total fatalities, including where seat
belt use was unknown. See Seat Belts, Governors' Highway Safety
Ass'n, https://www.ghsa.org/issues/seat-belts.
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Individual State laws have significantly contributed to increased
seat belt usage in the United States.\22\ New York passed the first law
requiring the use of seat belts in 1984.\23\ Between 1984 and 1987,
State legislatures passed seat belt laws in 29 States.\24\ Today, all
States except New Hampshire require seat belt usage in the front seats,
and 40 of these States, as well as the District of Columbia and two
territories, also require seat belt usage in the rear seat.\25\ These
laws, in conjunction with sustained national campaigns to encourage
seat belt use (e.g., ``Click It or Ticket''), have increased seat belt
usage dramatically; estimated seat belt use in 1990 was 49 percent,
but, as mentioned, the estimated seat belt use in 2020 was 90.3
percent.\26\
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\22\ See 2015 NHTSA Report at 103-105.
\23\ See Nell Henderson, N.Y. Is First State to Get Seat Belt
Law, Wash. Post (July 13, 1984), https://www.washingtonpost.com/archive/business/1984/07/13/ny-is-first-state-to-get-seat-belt-law/b86fd522-bb32-4286-980a-caefdb3edfa5. This law, however, only
required the use of seat belts in the front seat.
\24\ See 2015 NHTSA Report at 105.
\25\ See Seat Belts.
\26\ See 2015 NHTSA Report at 105; 2021 NHTSA Report at 1.
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However, seat belt use in rural areas lags behind other parts of
the United States, and rural vehicle crashes are disproportionately
deadly. An analysis completed by the Centers for Disease Control and
Prevention (CDC) revealed that in 2014, age-adjusted passenger vehicle
occupant death rates per 100,000 population increased with increasing
rurality. For example, in the southern United States, the age-adjusted
death rate in vehicle crashes per 100,000 population in rural counties
was more than four times as high as those in urban counties (6.8 deaths
per 100,000 population in the most urban counties as compared to 29.2
deaths per 100,000 population in the most rural counties); this same
study showed that self-reported seat belt use in 2014 for the most
rural counties was only 74.7 percent, compared to 88.8 percent in the
most urban counties.\27\ As most agriculture is in rural areas,
agricultural workers are more likely to be exposed to dangers inherent
in rural transportation. The CDC also acknowledges that agriculture
itself is one of the most hazardous industries in the United States. In
2021, workers in the agriculture, forestry, fishing and hunting
industry experienced one of the highest fatal injury rates at 20 deaths
per 100,000 full-timeworkers--and nearly half of those deaths resulted
from transportation incidents.\28\ The Occupational Injury Surveillance
of Production Agriculture survey demonstrated that, in surveyed years
between 2001 and 2014, transportation related accidents (including
tractor rollovers) constituted approximately 12.7 percent of all
agricultural work-related injuries to adults 20 years and older.\29\
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\27\ Laure F. Beck, et al., Ctrs. for Disease Control &
Prevention, Rural and Urban Differences in Passenger-Vehicle-
Occupant Deaths and Seat Belt Use Among Adults, CDC Morbidity and
Mortality Weekly Report, Sept. 22, 2017, at 4, 6 https://www.cdc.gov/mmwr/volumes/66/ss/ss6617a1.htm.
\28\ See Table A-1, Fatal Occupational Injuries by Industry and
Event or Exposure, All United States, 2021, Bureau of Lab. Stats.
(Dec. 16, 2022), https://www.bls.gov/iif/fatal-injuries-tables/fatal-occupational-injuries-table-a-1-2021.html. However, this
category includes tractor rollovers, which may not qualify as
employer-provided transportation as it is being discussed in this
section.
\29\ Out of 334,606 injury events recorded, 42.527 of those
injury events (12.7 percent) were related to transportation. See
Table AI-11, National Estimates of Agricultural Work-Related
Injuries to Adults (20 Years and Older) on US Farms By Injury Event,
Nat'l Inst. for Occupational Safety & Health, Ctrs. for Disease
Control & Prevention (Apr. 10, 2018), https://www.cdc.gov/niosh/topics/aginjury/oispa/pdfs/AI-15-508.pdf.
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The Department's enforcement experience is consistent with the
statistics described above. Of the agriculture-related injuries and
fatalities that the Department has investigated in the last 5 years,
more than 60 percent related to farmworker transportation.
Additionally, some of the most significant injuries and fatalities
resulted when workers were not wearing seat belts. For example, in
calendar year (CY) 2022 alone, WHD investigated eight incidents
involving serious injury or death of farmworkers. Of these incidents,
seven involved agriculture-related vehicle crashes and only one
involved other safety issues. Of the crashes investigated in 2022, all
involved at least some workers who were not restrained by seat belts,
sometimes with fatal or serious consequences. For example, on May 31,
2022, in Indiana, a vehicle being driven by one H-2A worker and
carrying another H-2A worker collided with a semi-truck. The two
workers were ejected from the vehicle, as neither was wearing a seat
belt. The driver died and the passenger was air-lifted to the hospital
with life-threatening injuries. In another example, on April 15, 2022,
a vehicle carrying eight farmworkers in California ran a stop sign and
collided with an SUV. One occupant was not wearing a seat belt and was
ejected. The ejected passenger died, and seven other workers suffered
minor to moderate injuries.
Despite the statistics showing the dangers related to rural
transportation, agricultural transportation, and the failure to use
seat belts, as well as its own enforcement experience, the Department
has limited tools to address seat belt use in employer-provided
transportation. Current Sec. 655.122(h)(4) requires employers to
comply with all applicable local, State, or Federal laws and
regulations and, at a minimum, the same transportation safety
standards, driver's licensure, and vehicle insurance required under the
Migrant and Seasonal Agricultural Worker Protection Act (MSPA).
However, MSPA vehicle safety regulations were promulgated in 1983 when
seat belt use was less common, and they do not mandate that seat belts
be provided or worn.\30\ When State law requires the wearing of seat
belts, the Department may enforce the provision and wearing of seat
belts through State law under current Sec. 655.122(h)(4). However, not
all States require the provision and wearing of seat belts in all
seats,\31\ and other States exclude certain vehicles from seat belt
provisions.\32\ Even where States have farmworker-specific laws
requiring seat belts, such as in Florida, California, and Maine, these
laws often do not cover all vehicles used to transport farmworkers.\33\
Finally, many State seat
[[Page 63777]]
belt laws apply only on public roads and highways,\34\ but some vehicle
crashes involving H-2A or corresponding workers occur on private
property. Therefore, the Department is regularly unable to cite a
violation for an H-2A employer's failure to provide seat belts to
workers.
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\30\ See 29 CFR 500.104 and 500.105. See also 48 FR 15800 (Apr.
12, 1983); 48 FR 36736 (Aug. 12, 1983).
\31\ See, e.g., Ga. Code Ann. 40-8-76.1 (only requiring the use
of seat belts in the front seat).
\32\ See, e.g., N.C. Gen. Stat. 20-135.2A (exempting any vehicle
registered and licensed as a property-carrying vehicle in accordance
with North Carolina General Statutes section 20-88, while being used
for agricultural purposes in intrastate commerce, from seat belt
requirements).
\33\ See Cal. Veh. Code sec. 31405 (applying only to farm labor
vehicles); Fla. Stat. sec. 316.622 (same); Me. Rev. Stat. tit. 26,
sec. 643, tit. 29, sec. 2088. Both California and Florida law define
a ``farm labor vehicle'' as a vehicle used for the transportation of
nine or more farmworkers, in addition to the driver. See Cal. Veh.
Code sec. 322; Fla. Stat. sec. 316.003(26).
\34\ See, e.g., Cal. Veh. Code sec. 31405(d) (stating that ``no
person shall operate a farm labor vehicle on a highway'') (emphasis
added); Cal Veh. Code sec. 360 (defining highway as ``a way or place
of whatever nature, publicly maintained and open to the use of the
public for purposes of vehicular travel''). See also, e.g., N.C.
Gen. Stat. sec. 20-125.2A(a) (stating that ``each occupant of a
motor vehicle . . . shall have a seat belt properly fastened about
his or her body at all times when the vehicle is in forward motion
on a street or highway in this State'') (emphasis added); N.C. Gen.
Stat. sec. 20.4.01(13) (providing that a highway is ``[t]he entire
width between property or right-of-way lines of every way or place
of whatever nature, when any part thereof is open to the use of the
public as a matter of right for the purposes of vehicular traffic''
and that ``[t]he terms `highway' and `street' and their cognates are
synonymous'').
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The Department has periodically considered the inclusion of seat
belt requirements in farmworker transportation safety regulations. In
1983, the Department promulgated MSPA transportation safety regulations
pursuant to its authority under MSPA (29 U.S.C. 1801-1872) establishing
vehicle safety, drivers' licensure, and insurance standards for
vehicles transporting MSFWs, a category that excludes H-2A workers but
may include workers in corresponding employment (see 29 CFR 500.20).
See 48 FR 15800 (Apr. 12, 1983); 48 FR 36736 (Aug. 12, 1983). In these
regulations, the Department declined to require seat belts, stating
that requiring seat belts could place an unreasonable economic burden
on employers and lead them to discontinue transporting migrant workers
at short distances.\35\ See 48 FR 36736, 36738. Beginning in 2010, the
Department required all employer-provided transportation in the H-2A
program to comply with MSPA standards for vehicle safety, drivers'
licensure, and insurance. See 20 CFR 655.122(h)(4); 75 FR 6884, 6965
(Feb. 12, 2010). Seat belts were not discussed in the 2010 rulemaking.
Prior to the 2010 H-2A Final Rule, H-2A regulations required only that
all employer-provided transportation comply with all applicable laws
and regulations. In an NPRM published in 2019, the Department solicited
comments on additional transportation-related provisions to help
protect workers against driver fatigue and other unsafe driving
conditions. See 84 FR 36168, 36195 (Jul. 26, 2019). In the
corresponding final rule, the Department declined to include any
additional vehicle safety standards at the time, including seat belts,
but noted that employers must comply with State laws, many of which
required seat belts. See 87 FR 61660, 61719 (Oct. 12, 2022).
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\35\ 29 U.S.C. 1841(2)(B) explicitly requires the Department to
consider the extent to which a proposed transportation standard
under MSPA would cause an undue burden on agricultural employers,
agricultural associations, or farm labor contractors, a standard not
included in the H-2A provisions of the INA. Also, unlike the H-2A
program, MSPA does not require employers to provide transportation
between living quarters and the worksite, or inbound or outbound
transportation (unless disclosed that such transportation would be
provided). Additionally, the Department reached this conclusion
nearly four decades ago, when seat belts were less commonly used.
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Much has changed with respect to seat belts since the MSPA vehicle
safety standards were first developed in 1983. Many of the regulations
requiring the inclusion of seat belts when manufacturing vehicles and
incorporating new technologies to increase safety have been published
since 1983. Additionally, since 1983, seat belt use has become
significantly more common, increasing from 14 percent to 90.3 percent
in 2020.\36\ Research completed since 1983 has emphasized the
importance of seat belts as a lifesaving and injury-reducing essential
technology, and every State except one has passed seat belt laws since
the MSPA vehicle safety regulations were promulgated. Although the
Department does not propose to amend the MSPA regulations at this time,
it seeks to apply the knowledge gained regarding the importance of seat
belts to the rapidly growing H-2A program.
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\36\ Compare 2021 NHTSA Report at 1 (estimating that seat belt
use by adult front-seat passengers was about 90.3 percent in 2020),
with Transp. Research Bd. of the Nat'l Acads. Buckling Up:
Technologies to Increase Seat Belt Use 5 (2003) (estimating that
seat belt use was about 14 percent in 1984).
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Therefore, pursuant to its authority to determine the minimum terms
and conditions of employment acceptable under the H-2A program, 8
U.S.C. 1188(a)(1), the Department proposes to revise Sec.
655.122(h)(4) to prohibit an employer from operating any employer-
provided transportation that is required by DOT NHTSA regulations at 49
CFR 571.208 to be manufactured with seat belts unless all passengers
and the driver are properly restrained by seat belts meeting standards
established by 49 CFR 571.209 and 571.210. Essentially, if the vehicle
is manufactured with seat belts, the employer would be required to
retain and maintain those seat belts in good working order and ensure
that each worker is wearing a seat belt before the vehicle is operated.
By relying on DOT's regulations to determine which vehicles pose an
unreasonable risk of death or injury in a vehicle crash without seat
belts, the Department intends to depend on DOT's considerable research
and expertise to identify which types of vehicles require seat belts
for sufficient occupant protection and which types of vehicles have
sufficient occupant protection even without seat belts. The most common
vehicles that the Department encounters in its enforcement are
passenger cars,\37\ 15-passenger vans (which would constitute a bus per
the NHTSA definition),\38\ and buses (both school buses \39\ and over-
the-road buses \40\). Currently, 49 CFR 571.208 requires that all
passenger cars and buses with a gross vehicle weight rating (GVWR) of
10,000 pounds or fewer (such as most 15-passenger vans), be
manufactured with seat belts.\41\ Therefore, the Department would
require that these vehicles maintain seat belts in good working order
when transporting workers (e.g., replace the seat belt when it is cut
or broken). However, 49 CFR 571.208 does not currently require that
school buses with a GVWR of 10,000 pounds or more, or an over-the-road
bus with a GVWR between 10,000 pounds and 26,000 pounds GVWR, be
manufactured with seat belts for passengers.\42\ Currently, NHTSA does
not consider these vehicles to constitute an unreasonable safety risk
to the public without seat belts.\43\ Therefore, at this time the
[[Page 63778]]
Department would not require that school buses exceeding 10,000 pounds
GVWR and over-the-road buses between 10,000 pounds and 26,000 pounds
GVWR install and maintain seat belts. However, if, at a later date,
NHTSA were to amend 49 CFR 571.208 to require these vehicles to be
manufactured with seat belts, the Department's proposed regulation
would automatically, without further revision, similarly require the
employer to require occupants of those vehicles to wear seat belts. The
Department believes that reliance on NHTSA's standards for vehicle
manufacturing strikes a reasonable balance between safety measures
intended to protect vulnerable workers and significant costs associated
with retrofitting relatively safe vehicles with seat belts when such
vehicles were not engineered for seat belt installation.\44\
Additionally, these regulations would be consistent with those issued
by OSHA for motor vehicles used in the construction industry and in
shipyard employment, which include similar exemptions from providing
seat belts for vehicles not manufactured with seat belts.\45\
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\37\ NHTSA defines a passenger car as a motor vehicle with
motive power, except a low-speed vehicle, multipurpose passenger
vehicle, motorcycle, or trailer, designed for carrying 10 persons or
less. 49 CFR 571.3(c).
\38\ A 15-passenger van would constitute a bus as defined by
NHTSA. NHTSA defines a bus as a motor vehicle with motive power,
except a trailer, designed for carrying more than 10 persons. 49 CFR
571.3(c).
\39\ NHTSA defines a school bus as a bus that is sold, or
introduced in interstate commerce, for purposes that include
carrying students to and from school or related events, but does not
include a bus designed and sold for operation as a common carrier in
urban transportation. 49 CFR 571.3(c).
\40\ NHTSA defines an over-the-road bus as a bus characterized
by an elevated passenger deck located over a baggage compartment,
except a school bus. 49 CFR 571.136, S4.
\41\ See 49 CFR 571.208, S4.4.3.
\42\ See 49 CFR 571.208, S4.4.4.
\43\ See 78 FR 70416, 70422-23 (Nov. 25, 2013) (discussing over-
the-road buses between 10,000 pounds and 26,000 pounds GVWR); 73 FR
62744 (Oct. 21, 2008) (upgrading school bus passenger crash
protection requirements). See also Nat'l Highway Traffic Safety
Admin., School Bus Safety: Crashworthiness Research (April 2002)
(discussing school bus occupant safety), https://www.nhtsa.gov/sites/nhtsa.gov/files/sbreportfinal.pdf.
\44\ NHTSA has provided guidance for retrofitting school buses
with seat belts. See Guideline for the Safe Transportation of Pre-
school Age Children in School Buses, Nat'l Highway Traffic Safety
Admin. (February 1999). Cost estimates for retrofitting a school bus
with seat belts vary, but are generally around $15,000 per bus, with
one estimate as high as $36,000 per bus. See Stephen Satterly,
School Bus Seat Belts: Opening a Dialogue, Safe Havens Int'l (Dec.
5, 2016), https://safehavensinternational.org/school-bus-seat-belts-opening-dialogue, Matthew Simon, Report: Adding Seatbelts Could Cost
$15k per school bus, WSAW-TV (Sept. 1, 2016), https://www.wsaw.com/
content/news/NewsChannel-7-Investigates_Report-Adding-seat-belts-
could-cost-15K-per-school-bus-392104851.html; Mike Chouinard, Island
District Holds Off School Bus Seatbelt Retrofits, N. Island Gazette
(Oct. 7, 2020), https://www.northislandgazette.com/news/island-district-holds-off-school-bus-seatbelt-retrofits-1407935.
\45\ See 29 CFR 1915.93(b) (seat belt standards in shipyard
work); 29 CFR 1926.601(b)(9) (seat belt standards for construction
work); Occupational Safety & Health Admin., Standard Interpretation
No. 1926.601(b)(9) on Seat Belts (Jan. 19, 1994) (explaining that
seat belt standards in construction work refer to DOT regulations).
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The Department welcomes comments on this proposal, including if
there are any other factors or types of vehicles that it should
consider in promulgating these regulations. The Department also seeks
comments as to whether employers ever retrofit vehicles with additional
seats (or any seats, if the vehicle was manufactured without passenger
seats) in such a way that complies with existing vehicle safety
standards under 20 CFR 655.122(h)(4), and how these vehicles should
comply with proposed seat belt standards.
The Department further proposes that the seat belts must comply
with NHTSA regulations for seat belt assembly and anchorages at 49 CFR
571.209 and 571.210. The Department believes that referencing these
standards in regulations would ensure that seat belts meet existing
standards for manufacture and clarify to the regulated community that
makeshift or jerry-rigged restraints would not constitute a seat belt.
The proposed regulation also would prohibit the employer from
operating any employer-provided transportation unless all passengers
and the driver are properly restrained by a seat belt. The Department
often finds that workers do not use seat belts even when they are
provided. As demonstrated by NHTSA's research referenced above, the
provision of seat belts is often insufficient to increase seat belt
usage without enforcement and public awareness campaigns. Therefore,
the Department believes this regulation would be most effective if the
employer requires workers to wear seat belts. Additionally, while the
proposed regulation refers specifically to the employer not operating
the transportation, the Department understands that driving vehicles is
often delegated to supervisors or workers. An employer would be
responsible for ensuring that all drivers, including employees or
agents of the employer, do not operate the vehicle until all occupants
are properly restrained. The Department seeks comment as to whether,
and how, it should require employers to enforce the wearing of seat
belts, or whether it should require employers only to provide seat
belts.
Finally, the Department seeks comment as to how this requirement
for seat belts should interact with vehicles subject to the limited
exemption from seat requirements found in MSPA regulations at 29 CFR
500.104(l), which is also applicable to some H-2A employer-provided
transportation. Transportation subject to this exemption is limited to
those vehicles that are subject to the vehicle safety standards in 29
CFR 500.104 when those vehicles are primarily operated on private farm
roads when the total distance traveled does not exceed 10 miles, so
long as the trip begins and ends on a farm owned or operated by the
same employer.\46\ As a vehicle without seats cannot be equipped with
seat belts, the Department is considering whether vehicles subject to
this limited exemption also should be exempted from seat belt
requirements during these same trips, or, alternatively, whether this
exemption should be inapplicable to H-2A employers. The Department
seeks comment on this issue, including the circumstances in which
employers use the limited exemption from seats found in 29 CFR
500.104(l) and the import of this limited exemption to business
practices. The Department also seeks comment on known vehicle crashes
or other safety hazards that have resulted or been exacerbated due to
the use of this limited exemption and any anticipated hazards.
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\46\ See 29 CFR 500.102; 29 CFR 500.104(l). See also Wage & Hour
Div., Dep't of Lab., Fact Sheet #50, Transportation Under the
Migrant and Seasonal Agricultural Worker Protection Act (2016),
https://www.dol.gov/agencies/whd/fact-sheets/50-mspa-transportation.
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The Department also proposes non-substantive changes to Sec.
655.122(h)(4) to divide this paragraph into separate paragraphs
(h)(1)(i) through (iv).
b. Paragraphs (i)(1)(i) and (ii) Shortened Work Contract Period
The Department proposes to remove the language at Sec.
655.122(i)(1)(i) and (ii) that explains the work contract period can be
shortened by agreement of the parties with the approval of the CO.
These minor conforming changes will ensure these paragraphs are
consistent with proposed changes to delayed start of work requirements
at proposed Sec. 655.175(b), which permits only minor delays to the
start date of work and requires notice to workers and the SWA, but not
CO approval, as discussed in the preamble explaining changes in
proposed Sec. 655.175.
c. Paragraph (l)(3) Productivity Standards as a Condition of Job
Retention
The Department proposes revisions to the regulations governing
productivity standards at Sec. 655.122(l). Current Sec.
655.122(l)(2)(iii) requires the employer to disclose productivity
standards in the job offer only when the employer pays on a piece rate
basis and requires one or more productivity standards as a condition of
job retention. The Department proposes to redesignate Sec.
655.122(l)(2)(iii) as Sec. 655.122(l)(3) and require all employers
with minimum productivity standards as a condition of job retention to
disclose such standards in the job offer, regardless of whether the
employer pays on a piece rate or hourly basis.
The Department believes that this revision is necessary so that
workers fully understand the material terms and conditions of
employment, including any productivity standards that may serve as a
basis for termination for cause, at the time the offer of
[[Page 63779]]
employment is made. The revisions proposed in this section conform with
those proposed in Sec. 655.122(n)(2)(i), where the Department proposes
that termination for cause for failure to comply with a productivity
standard would only be permissible when such productivity standard is
included in the job offer (among other conditions).
As explained further in the preamble section addressing proposed
Sec. 655.122(n), the Department proposes that, among other conditions,
termination for cause for failure to meet a productivity standard may
only be invoked by an employer when workers were informed of, or
reasonably should have known, the productivity standard; the
productivity standard is listed in the job offer; and the productivity
standard is reasonable and applied consistently. The disclosure in the
job offer of any productivity standards required as a condition of job
retention helps to achieve these other requirements. Specifically, it
ensures that workers are aware of the productivity standard, and that
all workers are held to the same productivity standard. The disclosure
in the job offer also ensures that productivity standards do not change
after the employer communicates those standards to the worker.
Different productivity standards for different crops, grades of crops,
or job duties are permissible so long as all are disclosed in the job
offer. Consistent with current guidance, productivity standards must be
static, objective, and specifically quantify the expected output per
worker required for job retention in the specific crop or agricultural
activity. Vague standards, such as requiring workers to ``perform work
in a timely and proficient manner,'' ``perform work at a sustained,
vigorous pace,'' or ``keep up with the crew,'' are not acceptable
productivity standards as they lack objectivity, quantification, and
clarity. Failure to meet such vague standards will not be accepted by
the Department as termination for cause. See preamble section
corresponding with proposed Sec. 655.122(n) for further
discussion.\47\
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\47\ See OFLC, Frequently Asked Questions, H-2A Temporary
Agricultural Foreign Labor Certification Program, 2010 Final Rule,
Round 9 (October 30, 2015), https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/H-2A_FAQ_Round9.pdf.
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Current Sec. 655.122(l)(2)(iii) also requires that productivity
standards listed in the job offer be no more than those required by the
employer in 1977, unless the OFLC Administrator approves a higher
minimum, or if the employer first applied for temporary agricultural
labor certification after 1977, productivity standards listed in the
job order must be no more than those normally required (at the time of
the first H-2A Application) by other employers for the activity in the
area of intended employment. In other words, without OFLC's approval,
an employer cannot increase productivity standards beyond those
normally required by other employers when it first used the H-2A
program, unless the employer first used the H-2A program in 1977 or
earlier, in which case the employer cannot increase productivity
standards beyond those it required in 1977. Proposed Sec.
655.122(l)(3) would mandate that all productivity standards required as
a condition of job retention be disclosed in the job offer regardless
if the worker is paid a piece rate or an hourly wage. The proposal
would broaden this requirement to workers paid on an hourly basis, not
only those paid on a piece rate basis.
The Department believes this revision is appropriate because
pressure for increased worker productivity exists regardless of how
workers are paid. As stated in the preamble to the 2010 H-2A Final
Rule, the regulations have reflected concerns about productivity
standards for more than 30 years. Initial concerns focused on employers
paying piece rates; the Department found that, when faced with an
increased hourly guarantee, some employers simply required workers to
work faster instead of increasing piece rates, which may have adversely
affected the wages of similarly employed workers in the United States.
See 43 FR 10306, 10309 (Mar. 10, 1978). Therefore, H-2A regulations
published in 1987 froze productivity standards at the 1977 level
(unless a higher rate was approved) or, if the employer began using the
program after 1977, to those normally required by other employers for
the activity in the area of intended employment at the time the
employer first used the program (unless a higher rate was approved).
See 52 FR 20496-01, 20515 (June 1, 1987). The 2010 H-2A Final Rule
instituted the same standards as the 1987 rule, and these standards
remained unchanged in the 2022 rule. See 75 FR 6884, 6913-6914 (Feb 12,
2010); 87 FR 61660-01, 61801 (Oct. 12, 2022).
Although the Department has historically recognized this issue as
affecting workers paid on a piece rate basis, workers paid on an hourly
basis may also be subject to productivity standards as a condition of
job retention, which may adversely affect the working conditions of
similarly employed workers in the United States and inhibit the ability
to determine if there are sufficient workers who are able, willing,
qualified, and available to perform the work. Advocacy organizations
have identified that some employers may set productivity standards so
high that workers in the United States are reluctant to accept or keep
these jobs without a pay increase.\48\ Without a ceiling on excessively
high productivity standards for hourly employees, working conditions
for both H-2A and domestic workers may be adversely affected as
productivity demands rise, and domestic workers may leave the
agricultural workforce. To prevent this adverse effect, this proposed
rule would require all employers establishing productivity standards as
a condition of job retention to refrain from setting such productivity
standards above the permitted levels, which were previously required
only if the employer was paying on a piece rate basis.
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\48\ See Farmworker Justice, No Way to Treat a Guest: Why The H-
2A Visa Program Fails U.S. and Foreign Workers 21, 25 (2012)
(Farmworker Justice Report).
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d. Paragraph (l)(4); 655.210(g)(3) Disclosure of Available Overtime Pay
The Department proposes a new Sec. 655.122(l)(4) that would
explicitly clarify that the employer must specify in the job offer any
applicable overtime premium wage rate(s) for overtime hours worked and
the circumstances under which the wage rate(s) for such overtime hours
will be paid. The H-2A program does not mandate the payment of an
overtime premium wage rate for hours worked exceeding a certain number
in the day, week, or pay period. However, the Fair Labor Standards
Act's (FLSA) overtime requirements, as well as various State and local
laws that require overtime pay, apply independently of the H-2A
program's wage requirements. Some H-2A workers and workers in
corresponding employment may be entitled to overtime pay under one or
more of these laws.
Under the Department's longstanding regulations, an H-2A employer
must assure that it will comply with all applicable Federal, State, and
local laws, including any applicable overtime laws, during the work
contract period. See Sec. 655.135(e).\49\ In addition, an H-2A
employer must accurately disclose the actual, material terms and
conditions of employment, including those related to wages, in the job
order. See Sec. Sec. 655.103(b), 655.121(a)(3), and 655.122(l); see
also Sec. 655.210. Pursuant to these authorities, an H-2A employer
already must disclose in the job order any available overtime pay,
whether required under Federal, State, or local
[[Page 63780]]
law, or otherwise voluntarily offered by the employer. Despite these
existing authorities, OFLC and WHD frequently encounter job orders
filed in connection with H-2A applications that either omit disclosure
of or fail to accurately describe applicable overtime pay. Failure to
clearly and fully disclose any available overtime pay in the job order
harms prospective workers, who may be more interested in the job
opportunity if aware of the availability of overtime. Incomplete or
nonexistent disclosures also hamper the Department's administration and
enforcement of the H-2A program requirements.
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\49\ See, e.g., Cal. Lab. Code secs. 500-556, 558.1; Cal. Indus.
Welfare Comm'n Order No. 14-2001.
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Therefore, the Department proposes to revise the current wage
disclosure requirements found at Sec. 655.122(l) to expressly clarify
in a new paragraph (l)(4) that an employer must disclose in the job
order any applicable overtime pay. Specifically, under proposed Sec.
655.122(l)(4), whenever overtime pay is required by law or otherwise
voluntarily offered by an employer, an employer would be required to
disclose in the job order: the availability of overtime hours; the wage
rate to be paid for any overtime hours; and the circumstances under
which overtime will be paid; and, where the overtime is required by law
(rather than voluntarily offered by the employer), the applicable
Federal, State, or local law governing the overtime pay. The proposed
subordinate paragraph (l)(4)(iii) provides examples of circumstances
that might apply, such as after how many hours in a day, week, or pay
period the overtime premium wage rate will be paid, or if overtime
premium wage rates will vary between places of employment. This
proposed list is intended to be illustrative only; an employer must
accurately disclose the actual circumstances under which overtime would
be paid. The disclosures required under proposed Sec. 655.122(l)(4)
are similar to the overtime disclosure requirement under the H-2B
program regulations at Sec. 655.18(b)(6). See also U.S. Dep't of Lab.,
Wage & Hour Div., Field Assistance Bulletin No. 2021-3, Overtime
Obligations Pursuant to the H-2B Visa Program (Dec. 7, 2021).\50\ Where
multiple overtime laws apply, the employer must comply with the law
that provides the greatest benefit to the employee. For example, if an
employer is required by Federal law to pay time and a half after 40
hours in a week, but is required by State law to pay overtime at time
and a half after 46 hours in a week, the employer must comply with the
Federal law as it is more beneficial to the employee. The Department
has also proposed corresponding amendments to the Forms ETA-790A and
ETA-9142A to include dedicated spaces for disclosure of any applicable
overtime pay. The Department believes these proposed revisions would
improve the frequency and accuracy of disclosures of available overtime
pay, thereby improving notice to prospective workers of the actual
terms and conditions of the job opportunity and improving the
Department's enforcement of any applicable overtime pay requirements.
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\50\ https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/fab_2021_3.pdf.
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Similarly, the Department proposes to amend the pay disclosure
requirements at Sec. 655.210(g), governing the contents of job orders
for herding and range livestock production occupations, to include a
new paragraph (g)(3) that would require employers to disclose any
available overtime pay, whether voluntarily offered by the employer or
required by State or Federal law, and the details regarding such pay.
The Department welcomes comment on this proposal.
e. Paragraph (n) Termination for Cause or Abandonment of Employment
The Department proposes revisions to Sec. 655.122(n), regulating
employer obligations when an employer terminates an employee for cause
or an employee has abandoned employment, to define termination for
cause. By proposing a definition of termination for cause, the
Department seeks to ensure that disciplinary and/or termination
processes be justified and reasonable. The Department believes it is
necessary to clarify the definition of termination for cause because
workers terminated for cause under the H-2A program are stripped of
essential rights to which they would otherwise be entitled. This
proposed definition is also necessary because the termination without
cause of one or more workers may constitute a layoff for lawful, job-
related reasons, and particular employer obligations apply to layoffs
of U.S. workers. See Sec. 655.135(g).
The current regulations specify when job abandonment occurs,
outline procedures for notifying the NPC and DHS, and require the
maintenance of records of this notification, but they do not define
termination for cause. A worker who abandons employment or is
terminated for cause is not entitled to payment for outbound
transportation under Sec. 655.122(h)(2) or the three-fourths guarantee
under Sec. 655.122(i), and a U.S. worker who abandons employment or is
terminated for cause need not be contacted for employment in the
subsequent year as required by Sec. 655.153. On the other hand, a
worker who is terminated without cause is entitled to outbound
transportation (Sec. 655.122(h)(2)), the three-fourths guarantee
(including meals and housing until the worker departs for other H-2A
employment or to the place outside the United States from which the
worker came) (Sec. 655.122(i)), and, if a U.S. worker, to be contacted
for work in the next year (Sec. 655.153), with one limited exception.
An employer is not liable for the payment of the three-fourths
guarantee to an H-2A worker whom the CO certifies is displaced because
of the employer's fulfillment of its obligation to hire U.S. workers in
compliance with the 50-percent rule described in Sec. 655.135(d). See
Sec. 655.122(i)(4). Therefore, such H-2A worker would be terminated
without cause but would not be entitled to the three-fourths guarantee.
However, this displaced H-2A worker remains entitled to payment for
outbound transportation pursuant to Sec. 655.122(h)(2).
The Department has long acknowledged that employers need not cover
some obligations for workers terminated for cause. See, e.g., 43 FR
10306, 10315 (Mar. 10, 1978) (employer need not pay outbound
transportation for H-2 workers terminated for cause); 52 FR 20496-01,
20501, 20515 (June 1, 1987) (where an H-2A worker is terminated for
cause, the worker is not entitled to the three-fourths guarantee and
the employer need not pay outbound transportation). But the Department
has also recognized that some employers may abuse this provision in
order to avoid those obligations. See, e.g., 73 FR 77110-01, 77135
(Dec. 18, 2008) (requiring employers to contact former U.S. workers
except for those dismissed for cause and noting that if employers were
``allowed . . . to reject former workers who completed their previous
term on the alleged ground that the workers were actually poor
performers, it would open the door to bad actor employers to reject
former workers on the basis of essentially pretextual excuses'').
Given the serious consequences associated with a designation of
termination for cause, and the potential for misuse, the Department
believes that a clear, regulatory definition of termination for cause
would benefit employers, associations, agents, workers, advocates, and
the public in general and therefore proposes to insert one. Providing a
clear definition of termination for cause would not only provide
structure and clarity to both workers and employers, but also make
[[Page 63781]]
it easier for the Department to identify pretextual terminations.
The Department's enforcement experience also supports the need for
a specific and clear definition of termination for cause. Some
employers, in seeking to evade responsibilities under Sec.
655.122(h)(2), Sec. 655.122(i), Sec. 655.153, or all three, have
terminated workers ostensibly ``for cause.'' For example, one employer
terminated 114 H-2A workers, out of a total of 240 H-2A workers
employed, and an additional 20 workers in corresponding employment, for
failing to meet production quotas. The employer alleged that workers
were not eligible for the three-fourths guarantee because they were
terminated for cause. However, the Department's investigation revealed
that the employer had employed, in some weeks, more than 100 more
workers than it employed the previous year without a proportional
increase in acres planted. With the surplus in employees, worker
productivity decreased significantly. An analysis of one crew showed
that workers, who were paid a consistent piece rate, earned an average
of $12.32 per hour when the crew consisted of 39 employees, but earned
only $6.72 per hour on average when the crew consisted of 123
employees. Once crew sizes were again proportional to prior years,
worker productivity increased. A different crew, also paid a consistent
piece rate, earned an average of $8.14 per hour when the crew consisted
of 121 workers, but, following terminations, earned an average of
$12.43 per hour when the crew consisted of 91 workers. The employer
terminated workers assigned to the less productive fields, even when
their production rates matched those of their coworkers working the
same fields. The terminations were unequally applied to workers and
were for conditions outside the workers' control. The three-fourths
guarantee is intended to safeguard against this very situation--
employers overstating their labor needs--but the employer attempted to
evade its three-fourths guarantee obligations by terminating employees
without cause.
In light of this enforcement experience, the Department believes it
needs stronger regulatory requirements to more easily prevent or detect
attempts to evade these important worker protections. This is necessary
in order for the Department to fulfill its statutory mandate to ensure
that H-2A workers are employed only when there are not sufficient
workers who are able, willing, qualified, and available to perform the
labor or services involved in the petition and when the employment of
H-2A workers will not adversely affect the wages and working conditions
of similarly employed workers in the United States. See 8 U.S.C.
1188(a)(1). The proposed regulations would achieve this goal by
protecting worker access to the three-fourths guarantee (including
meals and housing until the worker departs for other H-2A employment or
to the place outside the United States from which the worker came)
(Sec. 655.122(h)(2)), outbound transportation (Sec. 655.122(i)), and/
or, if a U.S. worker, to be contacted for work in the next year (Sec.
655.153), unless a reasonable and justified disciplinary process
results in a termination for cause and thus nullifies the worker's
entitlement to these rights. An unreasonable or unjustified termination
that an employer ostensibly describes as being ``for cause''
undoubtedly has an adverse effect on similarly employed workers in the
United States and interferes with the Department's ability to determine
that there are not sufficient workers to perform the labor or services.
For example, where an employer denies an H-2A worker payment for
outbound transportation under Sec. 655.122(h)(2) on the grounds that
the worker was terminated, ostensibly ``for cause,'' but for
unjustified and unreasonable reasons, the worker would be required to
pay for their own transportation to return to their country of origin.
The Department has long recognized that inbound and outbound
transportation expenses for H-2 workers are an inescapable consequence
of using the H-2 programs and are primarily for the benefit of the
employer under the FLSA. H-2A regulations (and, prior to 1987, H-2
regulations) have reflected this reality by requiring these expenses to
be borne by employers. See 43 FR 10306 (Mar. 10, 1978); 52 FR 20496-01
(June 1, 1987); 73 FR 77110-01 (Dec. 18, 2008); 75 FR 6884 (Feb. 12,
2010); 87 FR 61660 (Oct. 12, 2022); U.S. Dep't of Lab., Wage & Hour
Div., Field Assistance Bulletin No. 2009-2, Travel and Visa Expenses of
H-2B Workers Under the FLSA (Aug. 21, 2009); \51\ Arriaga v. Florida
Pacific Farms, L.L.C., 305 F.3d 1228 (11th Cir. 2002). An employer who
unreasonably and unjustifiably requires a worker to pay for their own
outbound transportation has artificially reduced its cost to use the H-
2A program by shifting outbound transportation costs to the workers
themselves, which may reduce the worker's earnings below the amount
required by Sec. 655.122(l) in the worker's last workweek. As the wage
required by Sec. 655.122(l) is the minimum amount required to prevent
adverse effect, any cost-shifting that reduces wages below this amount
may adversely affect wages and working conditions of similarly employed
workers in the United States. Clarifying that workers are terminated
for cause only where the termination is reasonable and justified would
minimize such adverse effect.
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\51\ https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/FieldAssistanceBulletin2009_2.pdf.
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Similarly, adverse effects on similarly employed workers in the
United States may result when an employer denies the three-fourths
guarantee required by Sec. 655.122(i) to a worker who is unjustly and
unreasonably terminated, ostensibly ``for cause.'' The three-fourths
guarantee is an essential protection that requires employers to provide
an accurate description of the amount of work available and the periods
in which work is available, which gives workers an opportunity to
evaluate the desirability of the offered job. An employer that fails to
provide the work promised during recruitment must pay workers for work
hours equivalent to three-fourths of the workdays offered, which
disincentivizes employers from hiring workers without sufficient work.
The Department has long held that the three-fourths guarantee is an
essential protection to prevent adverse effect on similarly employed
workers in the United States. See 43 FR 10306, 10308 (Mar. 10, 1978);
73 FR 77110-01, 77152 (Dec. 18, 2008). A job with insufficient work
creates undesirable conditions because the workers may not earn
sufficient wages to pay bills and support their families. In this
situation, both H-2A and U.S. workers may be induced to seek work
elsewhere if the promised work does not materialize. The employer has
therefore failed to determine if there are sufficient U.S. workers
able, willing, and qualified to perform the work, and the wages and
working conditions of similarly employed workers in the United States
may be adversely affected if H-2A workers seek work outside the terms
of their H-2A nonimmigrant status because the job they were promised
does not actually exist. See 80 FR 24042-01, 24066 (Apr. 29, 2015).
Finally, where an employer declines to rehire a U.S. worker under
Sec. 655.153 on the grounds that the worker was terminated, ostensibly
``for cause,'' but the termination was unreasonable and unjustified,
the employer fails to adequately test the labor market for able,
willing, and qualified workers because it has unreasonably and unjustly
removed this worker from the labor pool.
In addition, the proposed definition of termination for cause will
assist the Department in identifying terminations
[[Page 63782]]
for pretextual reasons. These pretextual reasons may attempt to mask
violations of other provisions, such as the prohibitions on layoffs of
U.S. workers (Sec. 655.135(g)) and retaliatory termination (Sec.
655.135(h)), for which the appropriate remedy may be reinstatement or
make-whole relief. See 29 CFR 501.16. Workers also would be protected
from terminations for pretextual reasons for actions that may not be
otherwise protected by the current H-2A regulations. Even if the
underlying activity is not protected by the H-2A protections, the
Department retains an interest in ensuring that reasonable activities
and communications are not misused or mischaracterized as a basis for
termination for cause. This ensures that a worker may advocate on their
own behalf without fear of being terminated, ostensibly ``for cause.''
This additional safeguard on the ability to engage in self-advocacy
would prevent adverse impact on working conditions for similarly
employed workers in the United States by ensuring that employers cannot
evade their obligations with respect to workers engaged in self-
advocacy.
Finally, the Department believes that its proposed definition of
termination for cause will also benefit employers by providing
regulatory certainty and increasing the quality and desirability of
agricultural jobs. Employers will have clear guidelines as to how the
Department will define termination for cause. Where there are farm
labor shortages, employers may experience improved ability to recruit
agricultural workers where workers are assured that they will be
entitled to the three-fourths guarantee and outbound transportation
costs unless they are terminated for cause or they abandon their
employment.
For these reasons, the Department proposes to clarify in the
regulations that a worker is terminated for cause only when the
employer terminates the worker for failure to meet productivity
standards or failure to comply with employer policies or rules. This
definition is substantively similar to current enforcement guidance
that appears in U.S. Department of Labor, Wage and Hour Division, Field
Assistance Bulletin No. 2012-1, H-2A ``Abandonment or Termination for
Cause'' Enforcement of 20 CFR 655.122(n) (Feb. 28, 2012).\52\ There,
WHD stated that termination for cause refers to termination based on a
specific act of omission or commission by the employee, and that, for
example, insubordination, deliberately violating company policies or
rules, lying, stealing, breaching the employment contract, and other
job-related misconduct are all possible bases for termination for
cause. Id. at 6.
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\52\ https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/fab2012_1.pdf.
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Further, the Department proposes that an employer may terminate a
worker for cause only if six conditions listed in proposed Sec.
655.122(n)(2)(i) are met. Importantly, the employer must comply with
all six conditions for the employer's actions to qualify as termination
for cause. These proposed conditions, explained in the following
paragraphs, clarify that termination for cause exists only where
disciplinary and/or termination processes are justified and reasonable;
it does not exist where rules, policies, and/or standards are
arbitrary, unknown, or selectively enforced. These conditions serve to
promote the integrity and fairness of any disciplinary and/or
termination process, and help to reduce the possibility that an
employer may, purposefully or subconsciously, discriminate against a
worker for reasons that are unrelated to work. These proposed
conditions reflect common-sense personnel practices, and some of these
conditions may also be found in State and local laws or bills
prohibiting wrongful discharge.\53\ The Department believes that many
agricultural employers already follow similar standards when
terminating a worker for cause, as records of these types are often
essential in responding to discrimination complaints investigated by
the EEOC or DOJ's Immigrant and Employee Rights Section, claims filed
pursuant to State unemployment insurance programs, or the Department
when investigating retaliatory termination under the laws that it
enforces (including the H-2A program). These requirements would apply
to H-2A workers and workers in corresponding employment. Accordingly,
these proposed conditions would preserve worker access to outbound
transportation (Sec. 655.122(h)(2)), the three-fourths guarantee
(Sec. 655.122(i)), and/or, if a U.S. worker, to be contacted for work
in the next year (Sec. 655.153) unless a reasonable and justified
disciplinary process has resulted in termination for cause, which
prevents adverse effect on similarly employed workers in the United
States and ensures that jobs are available to workers in the United
States who are able, willing, and qualified to perform the work.
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\53\ See, e.g., N.Y.C. Admin. Code sec. 20-1272, https://codelibrary.amlegal.com/codes/newyorkcity/latest/NYCadmin/0-0-0-131240; Phila. Code sec. 9-4703, https://codelibrary.amlegal.com/codes/philadelphia/latest/philadelphia_pa/0-0-0-280911#JD_Chapter9-4700; H.B. 3530, \10\2nd Gen. Assemb. (Ill. 2021 & 2022), https://www.ilga.gov/legislation/102/HB/PDF/10200HB3530lv.pdf.
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First, proposed Sec. 655.122(n)(2)(i)(A) would require that the
employees were informed (in a language understood by the employee) of,
or reasonably should have known of, the policy, rule, or productivity
standard that is the basis for the termination for cause. Basic
concepts of fairness preclude the termination of a worker for cause if
that worker was not informed, or had no reasonable basis for knowing,
that the infraction or performance issue constituted grounds for
termination. Policies and rules are not required to be listed in the
job offer but must be clearly communicated to and understood by the
workers. Ways in which the employer may communicate policies and rules
to workers include employee handbooks, posters, trainings, staff
meetings, and verbal instruction. If the policy or rule is not
explicitly communicated, the Department will review whether a
reasonable person would know that the policy or rule exists. For
example, a reasonable person would know that conduct that is obviously
illegal, such as unlawful sexual harassment or assault, can be a basis
for discipline or termination. Similarly, a reasonable person would
know that purposefully damaging the crop would be a basis for
discipline or termination.
Second, the Department proposes in Sec. 655.122(n)(2)(i)(B) that,
if the termination is for failure to meet a productivity standard, such
standard must be disclosed in the job offer. The Department has long
held that if an employer pays a piece rate and requires a productivity
standard, such productivity standard must be disclosed in the job
offer. See current Sec. 655.122(l)(2)(iii). In this proposed rule, the
Department proposes that any productivity standard must be disclosed in
the job offer regardless of whether the worker is paid on a piece rate
or hourly basis. See proposed Sec. 655.122(l)(3). The job offer
communicates the material terms and conditions of employment to H-2A
workers and workers in corresponding employment, and therefore any
productivity standard which may serve as a basis for termination should
be disclosed to the worker in the job offer. This disclosure in the job
offer ensures that the employer informs the workers of the productivity
standard, and that the productivity standard is consistent for all
workers, both of which are essential elements of any just disciplinary
process. Consistent with current
[[Page 63783]]
guidance, and discussed in the preamble corresponding with proposed
Sec. 655.122(l)(3), any productivity standard that serves as a basis
for termination for cause must be static, quantified, and
objective.\54\ Vague standards (i.e., those that are not quantified and
depend on the employer's subjective judgement) do not constitute
productivity standards, and failure to comply with such vague standards
will not be accepted by the Department as a valid reason for
termination for cause.
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\54\ See OFLC, Frequently Asked Questions, H-2A Temporary
Agricultural Foreign Labor Certification Program, 2010 Final Rule,
Round 9 (October 30, 2015), https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/H-2A_FAQ_Round9.pdf.
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Third, proposed Sec. 655.122(n)(2)(i)(C) would allow termination
for cause only if compliance with the policy, rule, or productivity
standard is within the employee's control. For example, termination for
cause would not apply if a worker were unable to meet productivity
standards if working in a field where compliance with the productivity
standard is impossible for any worker (e.g., in a field where most
fruit to be picked remains unripe, or where the employer has hired
significantly more employees than required to complete available work).
Similarly, termination for cause would not apply where a worker is
regularly tardy but arrives using employer-provided transportation that
habitually arrives late through no fault of the worker. Reasonable
disciplinary processes should not penalize workers for infractions
outside of their control.
Fourth, proposed Sec. 655.122(n)(2)(i)(D) would clarify that
termination for cause would apply only where the policy, rule, or
productivity standard is reasonable and applied consistently. A just
and equitable discipline system requires equal treatment under the
rules for all H-2A and corresponding workers. Termination for cause
would not apply where one worker is terminated for noncompliance with a
policy with which another worker performing a similar job is not
required to comply. Similarly, termination for cause would not apply
where a worker is terminated pretextually for noncompliance with a
policy or rule that the employer infrequently or sporadically enforces.
Fifth, proposed Sec. 655.122(n)(2)(i)(E) would outline that
termination for cause would apply only where the employer undertakes a
fair and objective investigation into the job performance or
misconduct. Termination for cause would not apply where an employer
merely assumes that the worker has failed to comply with a policy,
rule, or productivity standard, or relies on a dubious third-party
account as the basis for the termination.
Sixth, proposed Sec. 655.122(n)(2)(i)(F) would require the
employer to engage in progressive discipline to correct the worker's
performance or behavior before terminating that worker for cause.
Proposed Sec. 655.122(n)(2)(ii) would define progressive discipline as
a system of graduated and reasonable responses to an employee's failure
to meet productivity standards or failure to comply with employer
policies or rules. Examples of disciplinary measures may include
counseling, verbal warnings, written warnings, and, when appropriate,
termination for cause. Disciplinary measures are proportional to the
failure but may increase in severity if the failure is repeated. For
example, a worker who blatantly and willfully ignores known safety
procedures when operating heavy machinery, putting their safety and/or
the safety of others at risk, should encounter different disciplinary
consequences than a worker who is 15 minutes tardy for the first time
that season. Additionally, a worker who is tardy for the first time may
experience different disciplinary consequences than a worker who is
tardy for the fifth time in 2 weeks. Progressive discipline ensures
that workers are not harshly punished for minor, first-time infractions
and reinforces the conditions for termination for cause in proposed
Sec. 655.122(n)(2)(i), specifically that rules, policies, and
productivity standards are communicated to the workers and are
reasonable. This furthers the Department's objective of ensuring that
disciplinary procedures resulting in termination for cause are
reasonable and justified, thus avoiding adverse impact on similarly
employed workers in the United States by protecting access to outbound
transportation (Sec. 655.122(h)(2)), the three-fourths guarantee
(including meals and housing until the worker departs for other H-2A
employment or to the place outside the United States from which the
worker came) (Sec. 655.122(i)), and, if a U.S. worker, to be contacted
for work in the next year (Sec. 655.153).
The Department recognizes that in rare circumstances, termination
for cause may be an appropriate disciplinary consequence for a first-
time offense of egregious misconduct even in a progressive discipline
system. Egregious misconduct means behavior that is plainly illegal or
that a reasonable person would understand as being offensive, such as
violence, drug or alcohol use on the job, or unlawful assault, as
opposed to failure to meet performance expectations or productivity
standards. The Department also emphasizes that all other conditions
outlined in proposed Sec. 655.122(n)(2)(i) must be met in cases of
termination for cause involving egregious misconduct. Specifically, the
worker must be informed, or reasonably should have known, about the
policy or rule; compliance with the policy or rule must be within the
worker's control; the policy or rule must be reasonable and applied
consistently; and the employer must undertake a fair and objective
investigation into the purported misconduct. Egregious misconduct need
not be explicitly prohibited verbally or in writing--workers are
generally expected to understand that the behavior is prohibited--but
the Department encourages employers to clearly communicate to workers
that activities like unlawful harassment, substance abuse, and illegal
or violent conduct will not be tolerated.
Prior to each disciplinary measure, the employer must notify the
worker of the infraction and allow the worker an opportunity to present
evidence in their defense to dispute the accuracy of the employer's
description of the infraction or failure to meet the productivity
standards. Fair and just disciplinary policies should ensure that the
employer undertakes reasonable steps to determine whether the worker
committed an infraction that was within their control or failed to meet
productivity standards. Such policies also should ensure that the
employer considers any mitigating circumstances that may provide
context to any infraction or failure to meet productivity standards.
The Department also proposes that, after imposing any disciplinary
measure prior to termination, the employer must provide relevant and
adequate instruction to the worker, and the worker must be afforded
reasonable time to correct the behavior or meet the productivity
standard following instruction. The type of instruction and the amount
of time afforded to fix the issue may vary depending on the misconduct
or performance issue. For example, if the worker is not meeting
productivity standards, the worker should be provided training on
harvesting techniques and a reasonable amount of time to develop those
techniques to meet the productivity standard. In another example, if a
worker arrives late to work one morning and is verbally counseled, the
employer should make clear the time the worker is expected to arrive at
work. In this second example, the employer can
[[Page 63784]]
reasonably expect the worker to correct the behavior by the next shift.
Of course, there may be extenuating circumstances for the tardiness and
the employer should take those into account as part of any counseling.
In the proposed regulation, the employer must also document, in
writing, each disciplinary measure, evidence the worker presented in
their defense, and resulting instruction, and the employer must clearly
communicate to the worker, either verbally or in writing, in a language
the worker understands, that a disciplinary action occurred, so as to
create a record of the discipline and minimize the potential
misunderstanding as to whether a disciplinary action occurred. The
employer must also document any explanation that the employee provided
in response to any purported infraction. These requirements--
instruction, a reasonable period to fix issues, employee explanation,
and documentation--are intended to ensure a worker is not prematurely
terminated and deprived of their rights to the three-fourths guarantee
(including meals and housing until the worker departs for other H-2A
employment or to the place outside the United States from which the
worker came) (Sec. 655.122(h)(2)), outbound transportation (Sec.
655.122(i)), and/or, if a U.S. worker, to be contacted for work in the
next year (Sec. 655.153), for misconduct or performance issues that
are unknown to the worker and/or are easily remedied.
Proposed Sec. 655.122(n)(2)(iii) would outline specific reasons
for which workers may not be terminated for cause. This proposed
language makes clear that an employee continues to be entitled to
outbound transportation (Sec. 655.122(h)(2)), the three-fourths
guarantee (including meals and housing until the worker departs for
other H-2A employment or to the place outside the United States from
which the worker came) (Sec. 655.122(i)), and, if a U.S. worker, to be
contacted for work in the next year (Sec. 655.15) if the employer has
broken the law in terminating the worker, or if the worker is
reasonably exercising their rights to a safe workplace. Specifically,
termination for cause would not apply where the termination is contrary
to a Federal, State, or local law; for an employee's refusal to work
under conditions that the employee reasonably believes will expose them
or other employees to an unreasonable health or safety risk; for
discrimination on the basis of race, color, national origin, age, sex
(including sexual orientation and gender identity),\55\ religion,
disability, or citizenship; or, where applicable, where the employer
fails to comply with its obligation under Sec. 655.135(m)(4) in a
meeting that contributed to the employee's termination. The Department
seeks comment on these reasons for termination excluded from
termination for cause, and whether any other reasons should explicitly
be included in this list.
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\55\ ``Sex'' includes sexual orientation and gender identity
because differential treatment on those bases necessarily involves
discrimination because of sex. See Bostock v. Clayton Cnty., 140 S.
Ct. 1731, 1741 (2020) (``it is impossible to discriminate against a
person'' under Title VII because of their sexual orientation or
gender identity ``without discriminating against that individual
based on sex'').
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The Department does not propose changes to the prohibition on
preferential treatment of H-2A workers (Sec. 655.122(a) or layoffs of
U.S. workers (Sec. 655.135(g)), but reminds employers that they are
prohibited from offering preferential treatment to H-2A workers over
U.S. workers. See Sec. 655.122(a). Similarly, employers are prohibited
from laying off similarly employed U.S. workers in the occupation that
is the subject of the H-2A Application in the area of intended
employment in the period beginning 60 days before the first date of
need and continuing throughout the period certified on the H-2A
Application, except on the basis of lawful, job-related reasons. While
U.S. workers in corresponding employment may be laid off for lawful,
job-related reasons such as lack of work or the end of the growing
season, such a layoff is permissible only after all H-2A workers have
been laid off. See Sec. 655.135(g). As noted above, a worker in
corresponding employment may only be terminated for cause using the
same procedures, found in proposed Sec. 655.122(n)(2), as those used
to terminate an H-2A worker for cause. However, such processes must be
applied fairly and consistently (and in compliance with the conditions
set forth in Sec. 655.122(n)(2)(ii)). In addition, to comply with the
prohibitions on preferential treatment (Sec. 655.122(a)) and layoffs
of U.S. workers (Sec. 655.135(g)), U.S. workers in corresponding
employment may not be terminated without cause, or laid off, before all
H-2A workers are terminated without cause. Of course, any worker
terminated without cause, or laid off, is entitled to outbound
transportation (Sec. 655.122(h)(2)), the three-fourths guarantee
(including meals and housing until the worker departs for other H-2A
employment or to the place outside the United States from which the
worker came) (Sec. 655.122(i)), and, if a U.S. worker, to be contacted
for work in the next year (Sec. 655.153). Where the employer
terminates an H-2A or worker in corresponding employment without cause,
Department will, as appropriate, cite violations, assess civil money
penalties, compute back wages, and/or pursue debarment for (1) failure
to pay outbound transportation, (2) failure to comply with the three-
fourths guarantee, and/or (3) failure to contact a U.S. worker for
employment in the following season. When computing back wages owed
under the three-fourths guarantee, the Department will compute for the
hours not offered pursuant to Sec. 655.122(i)(1) as well as any
housing and meals not provided when required pursuant to Sec.
655.122(i)(5).
Proposed Sec. 655.122(n)(2)(iv) would require the employer to bear
the burden of demonstrating to the Department that any termination for
cause meets the requirements of proposed Sec. 655.122(n)(2). The
employer would be required to prove that the termination was justified
and proper progressive discipline procedures were followed. The
Department believes that it is reasonable to require employers, as the
entities seeking an exemption from outbound transportation, the three-
fourths guarantee (including meals and housing until the worker departs
for other H-2A employment or to the place outside the United States
from which the worker came), and notification requirements found in
Sec. Sec. 655.122(h)(2) and (i) and 655.153, to demonstrate why
termination for cause was warranted.\56\
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\56\ Termination for cause provides employers with an exception
from certain provisions of the H-2A program. Where a party seeks an
exemption from prescribed terms or from a generally applicable
provision, it is generally appropriate to assign to that party the
burden of demonstrating the conditions for such an exemption. See,
e.g., Meacham v. Knolls Atomic Power Lab'y, 554 U.S. 84, 91-94
(2008) (employers bear burden of proving certain exemptions to Age
Discrimination in Employment Act); Karawia v. U.S. Dep't of Lab.,
627 F. Supp. 2d 137, 146 (S.D.N.Y. 2009) (under 29 CFR 4.188, a
contractor found by the Secretary to have violated the Service
Contract Act bears the burden of establishing unusual circumstances
to warrant relief from the debarment sanction that generally applies
to violators); 29 CFR 525.21(c) (where an employer that has obtained
a special certificate under FLSA section 14(c) allowing the employer
to pay special minimum wage rates to certain workers with
disabilities, and the employer seeks to obtain authority to lower
the wage rate of a worker with a disability below the rate specified
in the certificate, the employer has the burden of establishing the
necessity of lowering the wage of that worker); 29 CFR 779.101
(stating that ``[a]n employer who claims an exemption under the
[FLSA] has the burden of showing that it applies'') (citing Walling
v. Gen. Indus. Co., 330 U.S. 545 (1947) and A.H. Phillips, Inc. v.
Walling, 324 U.S. 490 (1945)).
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Consistent with current policy, where an employer constructively
discharges a worker, the Department will consider
[[Page 63785]]
that worker to be terminated without cause. Constructive discharge
occurs when a worker departs employment because working conditions have
become so difficult that a reasonable person would have felt compelled
to leave the job. Constructive discharge may occur in a wide variety of
situations, such as where a worker departs employment because of unsafe
or intolerable housing conditions (such as grossly inadequate heating
during the winter, lack of running water, or exposure of bare
electrical wires), because the employer requires the worker to work in
an unsafe workplace (for example, where an employer requires a worker
to work in a field that was recently sprayed with pesticides before the
required re-entry interval has elapsed), or because the worker has not
received work assignments for an extended period of time, despite being
available and willing to take on new work. Along the same lines, where
a worker involuntarily leaves employment prior to the end of the
contract period, the employee's departure may be deemed constructive
discharge rather than abandonment under Sec. 655.122(n)(1). Consistent
with current practice, in assessing whether alleged abandonment is
voluntary, the Department will consider, for example, whether the
employer sought to influence workers to leave a job prior to the end of
the contract period or whether the employer took other steps to render
working conditions so intolerable that a reasonable person in the
worker's position would not stay. See U.S. Dep't of Lab., Wage & Hour
Div., Field Assistance Bulletin No. 2012-1, H-2A ``Abandonment or
Termination for Cause'' Enforcement of 20 CFR 655.122(n) (Feb. 28,
2012).\57\
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\57\ https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/fab2012_1.pdf.
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The Department also proposes additional recordkeeping obligations
in Sec. 655.122(n)(4). The regulations at current Sec. 655.122(n)
require employers to maintain records of notification to the NPC, and
to DHS in the case of an H-2A worker. Proposed Sec. 655.122(n)(4)(i)
would make a minor clarification that such records of notification must
be maintained with respect to both abandonment and termination for
cause, which is consistent with DOL's established interpretation of the
current regulations. Further, proposed Sec. 655.122(n)(4)(ii) would
require the employer to maintain disciplinary records, including each
step of progressive discipline, any evidence the worker presented in
their defense, any investigation related to the termination, and any
subsequent instruction afforded the worker. Finally, proposed Sec.
655.122(n)(4)(iii) would require that the employer maintain records
indicating the reason(s) for termination of any employee, including
disciplinary records as described in Sec. Sec. 655.122(n)(4)(ii) and
655.167. These records are necessary to show that an employer complied
with the regulations throughout the process leading to the termination
for cause. An employer that does not maintain these records may not
meet the burden of demonstrating to the Department that any termination
for cause meets the requirements of proposed Sec. 655.122(n)(2), as
required by proposed Sec. 655.122(n)(2)(iv). The Department also
proposes conforming edits to Sec. 655.167, specifically by adding
paragraphs (c)(10) and (11), requiring employers to retain records
indicating the reason(s) for termination of any employee, including
records of each step of progressive discipline, any subsequent
instruction afforded the worker, and any investigation, including any
evidence or information that the worker presented in their defense,
relating to the termination as set forth in Sec. 655.122(n). The
maintenance of disciplinary records for all employees, not simply those
who were terminated, will assist employers in meeting their burden to
demonstrate that discipline leading to termination was not pretextual
and was consistent with company policies and procedures. The Department
seeks comments as to whether it should require any other records in
support of these proposed requirements.
Finally, the Department proposes minor edits to Sec. 655.122(n) to
improve readability and clarity. Specifically, the Department proposes
to number paragraphs within this section and to reorder the mentions of
termination for cause and abandonment of employment. Additionally, the
Department proposes to clarify that the employer must notify the NPC
and, in the case of an H-2A worker, DHS, not later than 2 working days
after any termination for cause or abandonment occurs. This edit would
be consistent with DOL's established interpretation of the current
regulations at Sec. 655.122(n) and would clarify ambiguous language to
specify that the notice procedures apply both to termination for cause
and to abandonment.
C. Application for Temporary Employment Certification Filing Procedures
1. Section 655.130, Application Filing Requirements
a. The Department Proposes To Require Enhanced Disclosure of
Information About Employers: Owners, Operators, Managers, and
Supervisors
The Department proposes to expand its collection of information
about employers and the managers and supervisors of workers at places
of employment by collecting additional information about the owner(s)
of agricultural businesses that employ workers under the H-2A
Application, the operators of the place(s) of employment identified in
the job order, and the managers and supervisors of the workers when
performing labor or services at those place(s) of employment.
Specifically, the Department proposes to require that each prospective
H-2A employer, as defined at 20 CFR 655.103(b), provide the following
information in relation to the owner(s) of each employer, any person or
entity (if different than the employer(s)) who is an operator of the
place(s) of employment, including an H-2ALC's fixed-site agricultural
business client(s), and any person who manages or supervises the H-2A
workers and workers in corresponding employment under the H-2A
Application: full name, date of birth, address, telephone number, and
email address. The Department also proposes to revise the Form ETA-
9142A to require the employer provide additional information about
prior trade or DBA names the employer has used in the 3 years preceding
its filing of the H-2A Application, if any, rather than collecting only
the DBA name the employer currently uses. Accordingly, the Department
proposes to revise and restructure Sec. 655.130 by adding four new
paragraphs, (a)(1) through (4), to specify the information employers
must provide at the time of filing an H-2A Application.
In a new paragraph (a)(1), the Department proposes to retain the
language currently in Sec. 655.130(a) that addresses the H-2A
Application and supporting documentation the employer must submit. The
remainder of Sec. 655.130(a), which contains language regarding
collection of the employer's information--i.e., FEIN, valid physical
location in the United States, and means of contact for recruitment--
would be moved to proposed paragraph (a)(2). Also, in paragraph (a)(2),
the Department proposes to explicitly
[[Page 63786]]
require disclosure of the employer's name and the additional employer
information collection the Department proposes to require (i.e., the
identity, location, and means of contact for each owner). Proposed
paragraph (a)(3) would require the employer to provide the identity,
location, and contact information of all persons or entities who are
operators of the place(s) of employment listed in the job order, if
different from the employer(s) identified under paragraph (a)(2),
including an H-2ALC's fixed-site agricultural business client(s) who
operate the place(s) of employment where the workers employed under the
H-2A Application will perform labor or services. In addition, paragraph
(a)(3) would require the employer to provide the identity, location,
and contact information of all persons who will manage or supervise H-
2A workers and workers in corresponding employment under the H-2A
Application at each place of employment. Proposed paragraph (a)(4)
would require the employer to continue to update the information
required by the above paragraphs until the end of the work contract
period, including extensions thereto, and retain this information post-
certification and produce it upon request by the Department. To
effectuate proposed Sec. 655.130(a)(4), the Department proposes a new
record retention paragraph at Sec. 655.167(c)(9) that would require
the employer to retain the information specified in paragraphs (a)(2)
and (3) of Sec. 655.130 for the 3-year period specified in Sec.
655.167(b).
The additional information the Department proposes to collect is
necessary to improve program administration and better protect
vulnerable agricultural workers. The new collections would allow the
Department to gain a more accurate and detailed understanding of the
scope and structure of the employer's agricultural operation, which is
essential to the Department's fulfillment of various obligations in the
administration and enforcement of the H-2A program. During the
application process, this information would assist the Department in
determining whether the employer has demonstrated a bona fide temporary
or seasonal need, or, conversely, whether an employer has, through
multiple related entities, sought to obtain year-round H-2A labor. The
additional information would enhance the Department's enforcement
capabilities by helping the Department identify, investigate, and
pursue remedies from program violators; ensure that sanctions, such as
debarment or civil money penalties, are appropriately assessed and
applied to responsible entities, including individuals and successors
in interest when appropriate; and determine whether an H-2A employer
subject to investigation has prior investigative history under a
different name. For example, contact information for owners, operators,
and supervisors may assist the Department in locating the employer and
workers for the purposes of conducting an investigation, presenting
findings (either verbally or in a written determination) and obtaining
payment for back wages and civil money penalties following a final
order of the Secretary. Similarly, this information provided at the
application stage may assist the Department to identify whether an
individual or successor in interest should be named on any
determination and therefore subject to any sanctions or remedies
assessed. As explained in the discussion of proposed Sec. 655.104, in
the experience of the Department, some H-2A employers have sought to
avoid penalties and continue participating in the program despite
having been debarred by reconstituting as a new legal entity while
ultimately retaining the underlying business that was debarred from the
H-2A program. In an audit or investigation of an employer, this
information would allow the Department to better identify those persons
with a financial stake in the certified H-2A employer who employ
agricultural workers through non-petitioning entities. In addition, and
as set forth in the discussion of proposed Sec. 655.103(e), in the
experience of the Department, some employers have established one
entity that pays the firm's H-2A workers and another entity that pays
the firm's other workers, while in fact the entire agricultural
operation constitutes a single employer. This information will assist
the Department in determining quickly whether the employees of the non-
petitioning entity are in corresponding employment as employees of a
single employer with an H-2A labor certification.
OFLC may use this information in post-adjudication audit
examinations and/or program integrity proceedings (e.g., revocation or
debarment actions). The information will help OFLC verify that persons
representing employers both in the labor certification process and in
the process of recruiting, managing, or supervising workers are acting
on behalf of the employers within the scope of the terms and conditions
of the labor certification and any contracts or agreements with
employers, and in compliance with the revised regulations and all
employment-related laws, such as laws prohibiting discrimination,
retaliation, or the imposition of unlawful recruitment or visa-related
fees. Collection of prior DBA names and identifying information for
people other than the employer will make it easier for OFLC and WHD to
search across applications within a filing system database to identify
instances in which employers have changed names or roles to avoid
complying with program regulations or avoid monetary penalties or
serious sanctions such as program debarment. The proposed information
collections also will facilitate interagency information sharing and
permit OFLC and WHD to share relevant identifying information with
other agencies when necessary to aid an investigation or enforcement
action.
The Department will collect this information primarily through the
H-2A Application the employer must complete to obtain temporary labor
certification, and the Department proposes revisions to these forms
under the Paperwork Reduction Act (PRA) for this purpose. In
particular, the Department proposes revisions to the Form ETA-790A,
Addendum B, to collect more detailed information about employers and
the places of employment at which workers will provide the agricultural
labor or services described in the job order. In addition, the
Department proposes a new Form ETA-9142A, Appendix C, to collect the
additional identifying information for owners and operators of places
where work is performed and the people who manage and supervise workers
under the H-2A Application, discussed above. The Department will
collect, store, and disseminate all information and records in
accordance with the Department's information sharing agreements and
System of Records Notices, principles set forth by the Office of
Management and Budget (OMB), and all applicable laws, including the
Privacy Act of 1974 (Pub. L. 93-579, sec. 7, Dec. 31, 1974, 88 Stat.
1909), Federal Records Act of 1950 (Pub. L. 81-754, 64 Stat. 585
[codified as amended in chapters 21, 29, 31, and 33 of 44 U.S.C.]), the
PRA (44 U.S.C. 3501 et seq.), and the E-Government Act of 2002 (Pub. L.
107-347 (2002)). More information about the Department's proposed
changes to the H-2A information collection instruments and the
Department's collection and use of this information is available in
supporting documentation in the PRA package the Department has prepared
for this rulemaking.
[[Page 63787]]
2. Section 655.135, Assurances and Obligations of H-2A Employers
a. Section 655.135 Introductory Language, WHD Authority
The Department proposes a minor, clarifying revision to the
introductory language to Sec. 655.135 to include explicit reference to
29 CFR part 501 as part of the obligations and assurances of an
employer seeking to employ H-2A workers. The current introductory
language specifies that an employer seeking to employ H-2A workers must
agree as part of the job order and Application that it will comply with
all requirements under 20 CFR part 655, subpart B. Those requirements
currently include compliance with WHD's investigative and enforcement
authority under 29 CFR part 501. See, e.g., 20 CFR 655.103(b),
655.101(b). The proposed revisions here would simply make these
obligations more explicit in Sec. 655.135 and on the job order, to
better ensure that both workers and employers are fully aware of WHD's
authorities. The Department welcomes comments on this proposed
revision.
b. Sections 655.135(h), (m), and (n), 655.103(b), Protections for
Workers Who Advocate for Better Working Conditions
The Department proposes to revise the assurances and obligations of
H-2A employers to include stronger protections for workers who advocate
for better working conditions on behalf of themselves and their
coworkers. The Department believes that these protections will
significantly improve the Department's efforts to prevent adverse
effect on the working conditions of similarly employed agricultural
workers in the United States because the hiring of H-2A workers may
suppress the ability of domestic workers to negotiate with employers
and advocate on their own behalf. Even if workers in the United States
were to demand better conditions or pay, under the current H-2A
regulatory framework, employers may turn to the H-2A program for an
alternative, vulnerable workforce that faces significant barriers to
pushing for better conditions or organizing, thus undermining advocacy
efforts by or on behalf of workers in the United States. The proposals
in this rule seek to correct this imbalance in bargaining power by
protecting the rights of H-2A and other workers to advocate for better
working conditions. In other words, the protections that the Department
proposes would provide an important ``baseline'' or minimum condition
of employment under the H-2A program below which workers in the United
States would be adversely affected, for the reasons set forth below.
Specifically, the Department proposes to broaden the provision at
Sec. 655.135(h), which prohibits unfair treatment, by adding a number
of protected activities that the Department has determined will play a
significant role in safeguarding collective action, and that workers
must be able to engage in without fear of intimidation, threats, and
other forms of retaliation. The Department also proposes a new employer
obligation at Sec. 655.135(m) that would ensure that H-2A employers do
not interfere with efforts by their vulnerable workforce to advocate
for better working conditions by including a number of requirements
that would advance worker voice and empowerment and further protect the
rights proposed under Sec. 655.135(h). The Department also proposes a
new employer obligation at Sec. 655.135(n) that would explicitly allow
H-2A workers and workers in corresponding employment the right to
invite or accept guests to worker housing and also would provide a
narrow right of access to worker housing to labor organizations. Some
of these proposed protections would be limited to those workers who are
engaged in agriculture as defined and applied in 29 U.S.C. 203(f)--that
is, those who are exempt from the protections of the NLRA.
The Department believes that the proposed protections are necessary
to prevent an adverse effect on the working conditions of workers in
the United States similarly employed. 8 U.S.C. 1188(a)(1). The
Department has historically understood the INA's adverse effect
requirement both as requiring parity between the terms and conditions
of employment provided to domestic and H-2A workers and as establishing
a baseline ``acceptable'' standard for working conditions below which
workers in the United States would be adversely affected. Courts have
long recognized that Congress delegated to the Department broad
authority to implement the prohibition on adverse effect. See, e.g.,
Overdevest Nurseries, L.P. v. Walsh, 2 F.4th 977, 984 (D.C. Cir. 2021);
AFL-CIO v. Dole, 923 F.2d 182, 187 (D.C. Cir. 1991) (citing AFL-CIO v.
Brock, 835 F.2d 912, 915 n.5 (D.C. Cir. 1987)).
In the 1978 H-2 regulations for agricultural employment, the
Department characterized many of the longstanding terms and conditions
of the program now found at 20 CFR 655.122--including housing, workers'
compensation insurance, the provision of tools and equipment, the
maximum meal charge, inbound and outbound and daily transportation, the
three-fourths guarantee, and recordkeeping and earning statements--as
``the minimum level'' of working conditions ``below which similarly
employed'' workers in the United States ``would be adversely
affected.'' 20 CFR 655.0(d), 655.202(b) (1978), 43 FR 10306, 10312,
10314 (Mar. 10, 1978). The 1978 rule further explained that ``[i]f it
is concluded that adverse effect would result,'' the Department would
not be able to separately determine whether U.S. workers are available
because ``U.S. workers cannot be expected to accept employment under
conditions below the established minimum levels.'' 43 FR 10306, 10312
(Mar. 10, 1978).
In IRCA, which bifurcated the H-2 program and created the separate
H-2A program, Congress explicitly adopted the adverse effect
requirement, stating that the Secretary may not issue a temporary labor
certification unless the petitioning employer has established, among
other things, that the employment of H-2A workers ``will not adversely
affect the . . . working conditions of workers in the United States
similarly employed.'' 8 U.S.C. 1188(a)(1). The Department retained the
``minimum'' terms and conditions of employment required under the
program, explicitly described in the regulations as intended to prevent
adverse effect, in its 1987 rulemaking. 52 FR 16770, 16779-80 (May 5,
1987); 52 FR 20496, 20508, 20513 (June 1, 1987); see also Garcia-
Celestino v. Ruiz Harvesting, Inc., 843 F.3d 1276, 1285 (11th Cir.
2016) (explaining that the regulations' provision of minimum benefits
to H-2A workers, including sound working conditions, ``ensure[s] that
foreign workers will not appear more attractive to the employer than
domestic workers, thus avoiding any adverse effects for domestic
workers'') (citations omitted).
Over the past decade, use of the H-2A program has grown
dramatically while overall agricultural employment in the United States
has remained stable, meaning that fewer domestic workers are employed
as farmworkers.\58\ The Department believes that this is because the
dangers and physical hardships inherent in agricultural
[[Page 63788]]
employment,\59\ combined with the lack of protections for worker
organizing and bargaining power, have together contributed to worsening
working conditions in agricultural employment--a lowering baseline--
leading to a decreasing number of domestic workers willing to accept
such work.\60\ Congress explicitly prohibited in the INA the granting
of labor certifications in the event of a strike or lockout at the
worksite, a prohibition that recognizes the potential for the hiring of
H-2A workers to suppress domestic workers' bargaining power and
organizing efforts and, thus, have a negative impact on workers in the
United States. 8 U.S.C. 1188(b)(1).
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\58\ According to USDA's Economic Research Service, employment
of farmworkers in the United States has remained stable since the
1990s, but the number of positions certified in the H-2A program has
increased sixfold from 2005 to 2021. See Farm Labor, U.S. Dep't of
Agriculture, https://www.ers.usda.gov/topics/farm-economy/farm-labor; H-2A Seasonal Worker Program Has Expanded Over Time, U.S.
Dep't of Agriculture, https://www.ers.usda.gov/data-products/chart-gallery/gallery/chart-detail/?chartId=104874.
\59\ Workplace Safety and Health Topics: Agricultural Safety,
National Inst. for Occupational Safety & Health, Ctrs. for Disease
Control & Prevention.
\60\ Centro de los Derechos del Migrante, Ripe for Reform:
Abuses of Agricultural Workers in the H-2A Visa Program 4, 6 (CDM
Report), https://cdmigrante.org/ripe-for-reform; Farmworker Justice
Report at 7, 11, 17, 31; Miriam Jordan, Black Farmworkers Say They
Lost Jobs to Foreigners Who Were Paid More, N.Y. Times (Nov. 12,
2021), https://www.nytimes.com/2021/11/12/us/black-farmworkers-mississippi-lawsuit.html; Polaris, Labor Trafficking on Specific
Temporary Work Visas, a Data Analysis 2018-2020 13, 18 (May 2022)
(Polaris 2018-2020 Report), https://polarisproject.org/wp-content/uploads/2022/07/Labor-Trafficking-on-Specific-Temporary-Work-Visas-by-Polaris.pdf.
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Some of the characteristics of the H-2A program, including the
temporary nature of the work, frequent geographic isolation of the
workers, and dependency on a single employer, create a vulnerable
population of workers for whom it is uniquely difficult to advocate or
organize to seek better working conditions.\61\ In its enforcement
experience, the Department has received reports of employers that have
prohibited or effectively prevented H-2A workers from receiving
assistance from certain service providers. For example, some employers
have prevented H-2A workers from consulting with legal aid
organizations regarding workers' rights under the H-2A program. Others
have refused to transport workers to a medical provider for care in the
United States, and one employer required instead that workers return to
Mexico to access medical care for an on-the-job injury. The Department
has seen flyers prohibiting workers from talking to visitors at the
housing site without supervisor permission and posters prohibiting
visitors to agricultural establishments unless the visitors first check
in with the employer. See also Rivero v. Montgomery Cnty., 259 F. Supp.
3d 334, 337-40 (D. Md. 2017) (employer unlawfully blocked legal aid
workers from visiting H-2A workers in employer-provided housing).
Nongovernmental organizations (NGOs) that work with H-2A workers report
similar employer interference with workers' rights to access services
and information, including medical treatment and legal assistance.\62\
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\61\ CDM Report at 4-6, 9, 13, 18-19, 23, 27; Farmworker Justice
Report at 17; Polaris 2018-2020 Report at 13, 18-19, 26.
\62\ CDM Report at 5, 23, 27, 30; Farmworker Justice Report at
22, 33; Polaris 2018-2020 Report at 7, 8, 19, 26.
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Workers in the H-2A program are also vulnerable to retaliation,
which discourages workers from advocating for their own rights and the
rights of their coworkers.\63\ For example, the Department debarred and
assessed penalties against an H-2A employer that instructed workers to
lie about their pay to investigators and threatened to kill workers who
talked to authorities.\64\ The Department also recently obtained a
temporary restraining order and preliminary injunction against an H-2A
employer who, after workers requested more food and water, threatened
workers with a gun, shooting twice near the workers.\65\ In another
example, the Department recently debarred and assessed penalties
against an employer who underpaid workers by more than $5.00 per hour
and confiscated workers' passports to keep them from leaving employment
upon realizing they were being underpaid.\66\ These examples are just a
few among the many instances of retaliation that the Department has
witnessed, and that workers experience, that demonstrate that workers
can face significant hurdles when advocating on their own behalf to
assert even their basic rights under the current H-2A program
regulations.
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\63\ Farmworker Justice Report at 30-31; Polaris 2018-2020
Report at 16-17, 26.
\64\ Individuals associated with this employer also pleaded
guilty to criminal charges for their role in forced labor
racketeering conspiracy. See Press Release, U.S. Dep't of Just.,
Owner of Farm Labor Contracting Company Pleads Guilty in
Racketeering Conspiracy Involving the Forced Labor of Mexican
Workers (Sept. 27, 2022), https://www.justice.gov/opa/pr/owner-farm-labor-contracting-company-pleads-guilty-racketeering-conspiracy-involving-forced; Press Release, U.S. Dep't of Just., Three
Defendants Sentenced in Multi-State Racketeering Conspiracy
Involving Forced Labor of Mexican Agricultural H-2A Workers (Oct.
27, 2022), https://www.justice.gov/opa/pr/three-defendants-sentenced-multi-state-racketeering-conspiracy-involving-forced-labor-mexican.
\65\ See Press Release, U.S. Dep't of Lab., Federal Court Orders
Louisiana Farm, Owners to Stop Retaliation After Operator Denied
Workers' Request for Water, Screamed Obscenities, Fired Shots (Oct.
28, 2021), https://www.dol.gov/newsroom/releases/whd/whd20211028-0.
\66\ See Press Release, U.S. Dep't of Lab., US Department of
Labor Investigation Results in Judge Debarring North Carolina Farm
Labor Contractor for Numerous Guest Worker Visa Program Violations.
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As explained, the Department believes that the fear of retaliation,
combined with the lack of clear protections for H-2A workers and
corresponding workers to self-organize and advocate on their own
behalf, has contributed to low union density in the agricultural
workforce.\67\ In addition, based on its enforcement experience, the
Department has determined that the H-2A program currently does not
provide sufficient protections for such workers to safely and
consistently assert their rights under the program and engage in self-
advocacy. This lack of sufficient protections adversely affects the
ability of domestic workers to advocate for acceptable working
conditions, leading to reduced worker bargaining power and, ultimately,
deterioration of working conditions in agricultural employment.
However, when these workers have engaged in organizing, it has led to
better working conditions for all workers. According to the Farm Labor
Organizing Committee, AFL-CIO, union advocacy has improved conditions
for the workers it represents (over 10,000 H-2A workers employed at
North Carolina agricultural sites), including by helping H-2A workers
to obtain remedies for likely violations of the H-2A program's
requirements relating to housing safety standards, travel
reimbursements, wages, and other requirements.\68\
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\67\ According to BLS data, in 2021, union representation in
agriculture was just 3.1 percent of total workers employed compared
to the 11.6 percent of workers employed overall represented by
unions; in 2022, agricultural union representation was 4.3 percent
of workers employed, compared to 11.3 percent of workers employed
overall. BLS News Release, Union Members--2022 tbls 1, 3, Bureau of
Lab. Stats., https://www.bls.gov/news.release/pdf/union2.pdf. See
also Report for Congress, Farm Labor: The Adverse Effect Wage Rate
(AEWR), Congressional Research Service (updated March 26, 2008)
n.17; Farmworker Justice Report at 31.
\68\ See Farmworker Justice Report at 30-31; 2017 Grievance
Summary, Farm Lab. Org. Comm., https://floc.com/2017-grievance-summary.
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Therefore, the Department believes that changes proposed here,
which would expand the H-2A anti-retaliation regulation and include
employer obligations that would make advocacy and organizing more
available to workers in the H-2A program, would help improve the
working conditions of workers protected under the H-2A program, and
thus prevent an adverse effect on similarly employed workers in the
United States. The Department believes that the proposed protections
also would increase U.S. worker response to H-2A employers' recruitment
efforts, both by improving working conditions under the H-2A program
and by increasing U.S. workers'
[[Page 63789]]
interest in H-2A job opportunities that include protections for
advocacy and organizing efforts that would not be undermined by the
availability of an alternative, more vulnerable workforce. These
proposals also would enhance worker bargaining power and meaningfully
equip workers to prevent further deterioration of working conditions
that adversely affect workers in the United States.
The Department welcomes comments on whether, in fact, foreign
workers employed under the H-2A program are more vulnerable to labor
exploitation than similarly employed domestic workers, due to the
temporary nature of the work; frequent geographic isolation of the
workers; dependency on a single employer for work, housing,
transportation, and necessities, including access to food and water;
language barriers; possible lack of knowledge about their legal rights;
or other factors. It also welcomes evidence or experience regarding, or
refuting, the unique vulnerability of these workers, and whether
existing worker protections are adequate to prevent violations of H-2A
program requirements, dangerous working conditions, retaliation, and
labor trafficking, or to promote H-2A workers' ability to advocate or
organize to seek better working conditions. The Department also seeks
comments on whether domestic agricultural workers have greater voice
and empowerment at work generally than foreign agricultural workers,
despite the fact that they are not covered by the NLRA, due to their
established presence in the United States, their domestic network of
family and friends, their greater familiarity with services and
supports available to workers in the United States, and their ability
to find alternative employment. And more generally, the Department also
seeks comment on how to increase, or increase awareness of existing,
protections for workers advocating for better working conditions and to
help prevent adverse effect on workers in the United States, without
infringing on employers' rights to manage their workplaces. It welcomes
the views of employers, workers, worker advocates, labor organizations,
and other stakeholders on these issues. In particular, the Department
welcomes any evidence, research, and/or empirical data regarding these
issues. The Department also welcomes comments on whether further
protections for workers' advocacy and organization, in addition to the
protections contained within the following sections, are necessary to
ensure that the employment of foreign workers under the H-2A program
does not adversely affect the wages or working conditions of domestic
workers.
i. The Department's Proposed Regulations Would Not Be Preempted by the
NLRA
Some of the provisions included in the Department's proposed
regulations would be limited to persons who are engaged in agriculture
as defined and applied in 29 U.S.C. 203(f) (``FLSA agriculture''). For
these workers, and these workers alone, the proposed regulations would
protect some conduct and provide some rights necessary to safeguard
collective action and protect against retaliation. The NLRA's coverage
extends only to workers who qualify as ``employee[s]'' under section
2(3) of that Act, and the NLRA's definition of employee expressly
excludes ``any individual employed as an agricultural worker.'' 29
U.S.C. 152(3). Congress has provided that the definition of
``agricultural'' in section 3(f) of the FLSA also applies to the NLRA.
See, e.g., Holly Farms v. NLRB, 517 U.S. 392, 397-98 (1996). Following
the plain text of the statute, both Federal courts and the NLRB have
long held that the NLRA does not apply to agricultural workers, worker
organizing by agricultural workers, or unions ``composed exclusively of
agricultural laborers.'' Di Giorgio Fruit Corp. v. NLRB, 191 F.2d 642,
647 (D.C. Cir. 1951); see also, e.g., Villegas v. Princeton Farms,
Inc., 893 F.2d 919, 921 (7th Cir. 1990). Because portions of the
Department's proposed regulations would apply only to workers who fall
within the NLRA and FLSA definitions of agricultural labor, those
proposed provisions would apply exclusively to workers who are exempt
from the NLRA. Thus, to the extent that one might argue that the
proposed changes in this section safeguarding collective action would
be preempted by Federal labor law, the NLRA's exemption of agricultural
labor shows that the proposal here is not preempted. As the Supreme
Court explained in San Diego Building Trades Council v. Garmon, 359
U.S. 236 (1959), the NLRA preempts regulation of activities that either
are or arguably are ``protected by [section] 7 of the National Labor
Relations Act, or . . . an unfair labor practice under [section] 8.''
Id. at 244; see also UAW-Labor Emp. & Training Corp. v. Chao, 325 F.3d
360, 363 (D.C. Cir. 2003). Conduct may be ``arguably'' governed by
section 7 or 8 of the NLRA when there is a plausible argument for
preemption ``that is not plainly contrary to [the Act's] language and
that has not been authoritatively rejected by the courts or the
Board.'' Int'l Longshoremen's Ass'n v. Davis, 476 U.S. 380, 395 (1986).
Because agricultural workers are expressly excluded from the NLRA by
the plain text of the statute, agricultural worker organizing is
neither protected by section 7 of the Act nor subject to section 8's
limitations on unfair labor practices. See 29 U.S.C. 152(3); see also
Di Giorgio, 191 F.2d at 647-49 (holding that section 8's prohibition on
secondary boycotts did not apply to a Farm Union, because an
organization composed exclusively of agricultural workers is not
governed by the NLRA). Moreover, because any argument that the NLRA
governs agricultural workers would be ``plainly contrary to [the
NLRA's] language,'' the conduct that would be protected under the
Department's proposed rule is not even arguably governed by the NLRA.
See Int'l Longshoremen's Ass'n, 476 U.S. at 395; see also Wilmar
Poultry Co., Inc. v. Jones, 430 F. Supp. 573, 578 (D. Minn. 1977)
(holding that Garmon preemption does not apply to State regulation of
agricultural workers' labor activity ``because the NLRA's protections
and prohibitions do not apply to agricultural laborers.'').
The Supreme Court held in International Ass'n of Machinists &
Aerospace Workers v. Wisconsin Employment Relations Commission, 427
U.S. 132 (1976), that the NLRA also preempts regulation of employer or
worker conduct that Congress intended to leave unregulated ``to be
controlled by the free play of economic forces.'' Id. at 140
(quotations omitted). Machinists preemption applies to State or Federal
regulation of ``economic weapons'' that would ``frustrate effective
implementation of the Act's processes.'' Id. at 147-48 (quotations
omitted). The Department's proposed rule could not frustrate effective
implementation of the NLRA's processes, because the relevant portions
of the proposal would apply exclusively to a set of H-2A agricultural
workers to whom the NLRA's processes do not apply. Thus, the text and
structure of the NLRA indicate that Machinists field preemption does
not extend to agricultural worker organizing. See United Farm Workers
v. Arizona Ag. Emp. Rels. Bd., 669 F.2d 1249, 1257 (9th Cir. 1982)
(explaining that when ``Congress has chosen not to create a national
labor policy in a particular field, the states remain free to legislate
as they see fit'' and Machinists preemption does not apply); Wilmar
Poultry, 430 F. Supp. at 578 (holding that Machinists preemption does
not apply to State regulation of agricultural laborers). Similarly,
courts have held
[[Page 63790]]
that Machinists preemption does not prevent State labor relations
regulations that apply to other workers excluded from the NLRA. See,
e.g., Davenport v. Wash. Educ. Ass'n, 551 U.S. 177, 181 (2007) (public
employees); Chamber of Commerce v. City of Seattle, 890 F.3d 769, 792
(9th Cir. 2018) (independent contractors); Greene v. Dayton, 806 F.3d
1146, 1149 (8th Cir. 2015) (domestic service workers).
Furthermore, in these proposed regulations the Department would be
exercising its authority under the INA to regulate the labor market to
prevent adverse effect on the working conditions of agricultural
workers in the United States. 8 U.S.C. 1188(a)(1). Congress could not
have intended for the NLRA to ``occupy the `field' with respect to the
regulation of all labor concerns,'' as it delegated authority under the
INA to the Department. See Nat'l Ass'n of Mfrs. v. Perez, 103 F. Supp.
3d 7, 25 (D.D.C. 2015) (citing UAW-Lab. Emp. & Training Corp., 325 F.3d
at 364) (holding that a DOL regulation was not preempted under
Machinists because it was an exercise of the President's procurement
power, rather than an exercise of authority conferred by the NLRA, and
because Congress did not intend for the NLRA to ``foreclose all other''
labor regulation). For these reasons, no part of the Department's
proposed regulation would be preempted by the NLRA.
Because certain provisions of this proposed rule would be limited
to workers engaged in FLSA agriculture, the Department notes that
workers who are not engaged in FLSA agricultural labor (e.g., those
workers engaged in logging occupations) would not be covered by those
proposed provisions. The vast majority of workers excluded from those
proposed provisions, however, are covered by the NLRA, and are thus
already afforded the right to self-organization. Nothing in this
proposed rule would alter or circumscribe the rights of workers already
protected by the NLRA to engage in conduct and exercise rights afforded
under that law.
ii. Section 655.103(b), Definitions
In support of the new employer obligations the Department is
proposing, the Department proposes to add two new definitions to Sec.
655.103(b).
The Department proposes to define ``key service provider'' to mean
a health-care provider; a community health worker; an education
provider; an attorney; a legal advocate or other legal service
provider; a government official, including a consular representative; a
member of the clergy; and any other service provider to which an
agricultural worker may need access. The Department has adapted this
proposed definition from one used in the Colorado Agricultural Labor
Rights and Responsibilities Act, Colo. Rev. Stat. 8-13.5-201, because
it believes that a definition and examples of the types of service
providers that workers should have access to would be useful for both
workers and employers. The list of service providers included in the
proposed definition is intended to be illustrative and not exhaustive.
For example, the Department would consider a non-union worker center to
be a key service provider under the proposed definition, as well as the
representatives, directors, or other individual employees of a worker
center. Worker centers are generally non-union, community-led
organizations that provide or engage in services, advocacy, and
organizing to support workers in low-wage industries and occupations,
particularly in those industries and occupations excluded from Federal
labor law, such as agriculture.\69\ The Department is soliciting
comment on the scope of this proposed definition, in particular as to
whether it is sufficient, whether other types of service providers
should be included in the list of examples in the regulation, or
whether this definition is too broad.
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\69\ For example, the Coalition of Immokalee Workers is a
worker-based human rights organization that focuses on fighting
human trafficking and gender-based harassment and violence affecting
farmworkers, and improving labor standards through a voluntary code
of conduct called the Fair Food Program (``FFP''), a market-centered
approach to the protection of human rights in corporate supply
chains. ``Key service providers'' under the voluntary FFP might
include worker educators who provide regular training at
participating farms; investigators who conduct audits and accept,
investigate, and resolve complaints; and representatives who work
with participating buyers to enforce the voluntary FFP at
participating farms. See Coalition of Immokalee Workers, Fair Food
Program (2021), https://ciw-online.org/blog/2021/09/released-2021-fair-food-program-report. Similar worker centers serve farm workers
in other States. See also Economic Policy Institute, Briefing Paper
No. 159: Worker Centers: Organizing Communities at the Edge of the
Dream (Dec. 31, 2005), https://www.epi.org/publication/bp159.
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The Department proposes to define ``labor organization'' to mean an
organization in which employees participate and that exists for the
purpose, in whole or in part, of dealing with employers over
grievances, labor disputes, or terms or conditions of employment. This
definition is similar to the one used under the NLRA with key
differences to reflect the nature of the H-2A program. While this
definition would thus incorporate many NLRA principles regarding the
meaning of the term ``labor organization,'' the Department intends the
range of organizations that would be considered labor organizations
under these proposed regulations to be broader than under the NLRA
because the Department's proposed definition would include
organizations in which agricultural workers participate, whereas such
organizations are excluded under the NLRA. The Department believes this
broader definition is appropriate given the unique characteristics of
the H-2A program. The Department seeks comment on the scope of this
proposed definition. The Department also seeks comment on whether the
definition should include additional criteria or protections in order
to ensure that any such organization is not dominated, interfered with,
or supported by employers, as would be prohibited by section 8(a)(2) of
the NLRA, 29 U.S.C. 158(a)(2).
The Department also welcomes comments on whether other terms
introduced by the proposed regulations should be defined in Sec.
655.103(b), and on other definitions that the Department should
consider.
iii. Section 655.135(h) No Unfair Treatment
The Department proposes to expand the scope of what constitutes
prohibited unfair treatment under Sec. 655.135(h) to better protect
workers from intimidation or discrimination in response to worker
advocacy. As detailed above, the Department believes that these
protections are necessary to prevent an adverse effect on the working
conditions of workers in the United States similarly employed. 8 U.S.C.
1188(a)(1). Workers' rights cannot be secured unless they are protected
from all forms of discrimination resulting from any worker's attempt to
advocate on behalf of themselves or their coworkers. The Department has
long recognized that such protections are essential to the effective
functioning of a complaints-based enforcement regime. Mitchell v.
Robert DeMario Jewelry, Inc., 361 U.S. 288, 292 (1960) (agreeing with
the Department's interpretation of the FLSA's anti-retaliation
provision and explaining that Congress ``chose to rely on information
and complaints received from employees seeking to vindicate rights''
and ``effective enforcement could thus only be expected if employees
felt free to approach officials with their grievances''); see also U.S.
Dep't of Lab., Wage & Hour Div., Field Assistance Bulletin No. 2022-02,
Protecting Workers From Retaliation
[[Page 63791]]
(Mar. 10, 2022).\70\ Stated differently, an employer who is free to
intimidate workers to discourage them from raising or reporting legal
violations, or to retaliate against those who do so, interferes with
the Department's ability to enforce the legal requirements of the H-2A
statute and regulations. This is particularly true for workers in the
H-2A program. Due to the temporary nature of their work; their
geographic isolation and lack of independent transportation; their
dependency on a single employer for work, housing, and other
necessities, including access to food and water; language barriers;
and, often, a lack of knowledge about their legal rights, H-2A workers
are especially vulnerable to retaliation. This vulnerability makes H-2A
workers less likely to assert their legal rights or to raise or report
H-2A violations, including illegal or intolerable working conditions.
See section IV.C.2.b of this preamble. And as set forth above, the
availability of H-2A workers who are less likely to complain about such
working conditions makes it less likely that H-2A workers will come
together to seek better working conditions, and it is similarly less
likely that workers in the United States will be able to organize with
their fellow H-2A workers or otherwise seek improvements to their
working conditions alongside H-2A workers. Thus, the Department has
determined that strengthening and expanding the regulations' existing
protections against intimidation or discrimination in the H-2A program
is necessary to prevent further adverse effect on the working
conditions of workers in the United States.
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\70\ https://www.dol.gov/sites/dolgov/files/WHD/fab/fab-2022-2.pdf.
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Currently, the prohibition on unfair treatment provides that an
employer ``has not or will not intimidate, threaten, restrain, coerce,
blacklist, or in any manner discriminate against, any person'' who has
engaged in certain enumerated protected activities pertaining to the H-
2A program requirements, namely, filing a complaint, instituting a
proceeding, testifying in a proceeding, or consulting with an attorney
or legal assistance program regarding any H-2A violation, or exercising
or asserting any right or protection under the H-2A program. 20 CFR
655.135(h)(1) through (5). The Department proposes to redesignate and
expand current paragraphs (h)(1) through (h)(5) into proposed (h)(1)(i)
through (h)(1)(vii). The Department also proposes a new category of
protected activity, limited to those workers engaged in FLSA
agriculture, at proposed Sec. 655.135(h)(2). Finally, to help inform
workers of their rights under the H-2A program, the Department is
proposing to include the protections that would be afforded under
proposed Sec. 655.135(h) in the disclosures required on the job order.
iv. Section 655.135(h)(1)(v) Consulting With Key Service Providers
Recognizing the barriers that H-2A workers frequently face in
accessing certain services (see section IV.C.2.b of this preamble), the
Department proposes to broaden the range of service providers and
advocates with whom consultation regarding the terms and conditions of
employment under the H-2A program is explicitly protected.
Specifically, the Department proposes to add a new paragraph (v) to the
list of protected activities at Sec. 655.135(h)(1), consulting with a
``key service provider,'' as defined in proposed Sec. 655.103(b),
regarding matters under the H-2A program. This proposal would not be
limited to persons engaged in FLSA agriculture. The Department notes
that workers are already entitled to access and meet with many
different service providers to discuss or assert rights under the H-2A
program, without fear of retaliation for doing so, under the
Department's current regulatory framework. See, e.g., 20 CFR 655.135(e)
and (h)(5). For example, under the current regulations, an employer may
not retaliate against a worker because the worker goes to see a doctor
to care for an injury the worker incurred while on the job, or because
the worker consults a worker advocacy organization regarding the
employer's failure to pay the wages promised in the job order. Id. The
proposal here is intended to simply make these rights explicit. And
because this explicit assurance would be included on the job order
(Form ETA-790A), this clarification would help ensure that workers will
be aware of this protection through the terms of the job order. The
Department believes that clarifying protections for workers'
consultation with such providers would increase the likelihood that
workers will receive necessary services and help prevent the frequent
isolation that renders workers more vulnerable to H-2A violations and
other forms of labor exploitation, including worsening working
conditions. The Department seeks comment on this proposal.
v. Section 655.135(h)(1)(vi) Exercising or Asserting Any Rights Under
the H-2A Program
The Department proposes to redesignate current paragraph (h)(5),
which protects any person from discrimination for exercising or
asserting any rights protected or afforded under the H-2A program, to
(h)(1)(vi). The Department does not propose any substantive changes to
this paragraph. However, the Department notes that this category of
protected activity would protect any person from any form of
discrimination for asserting any rights or protections afforded under
the H-2A program, including those rights and protections afforded under
the Department's proposed paragraphs (m), (n), and (o) of this section.
vi. Section 655.135(h)(1)(vii) Exercising Rights Under Federal, State,
or Local Laws
The Department also proposes to clarify existing regulations by
adding Sec. 655.135(h)(1)(vii) to explicitly protect complaints,
proceedings, and testimony under any applicable labor- or employment-
related Federal, State, or local law or regulation, including those
related to health and safety. This would explicitly prohibit employers
from retaliating against any person who files a complaint, institutes
or causes to be instituted any proceeding, or testifies or is about to
testify in any proceeding under or related to any applicable Federal,
State, or local labor- or employment-related law, rule, or regulation.
The Department notes that these activities are already protected under
the Department's current regulatory framework because employers already
must comply with all applicable Federal, State, and local laws as a
requirement of the H-2A program. See 20 CFR 655.135(e) and (h)(1), (5).
The proposal here is intended to make these rights explicit, in order
to better inform workers and employers of the protected rights under
the H-2A program. Moreover, because there are Federal, State, and local
labor- or employment-related laws and regulations that may apply to
workers protected under the H-2A program (e.g., the Occupational Safety
and Health Act, 29 U.S.C. ch. 15, or the FLSA, 29 U.S.C. 201 et seq.),
explicitly prohibiting retaliation against persons who share
information with or assist those seeking to enforce these other laws
would better protect workers advocating for better working conditions
and would help prevent adverse effect on workers in the United States.
The Department emphasizes that nothing in this proposed rule is
intended to preempt more protective local, State, or Federal laws,
including labor and employment laws and regulations at the State level
that expressly protect agricultural workers, as well as those that
protect workers
[[Page 63792]]
generally against discrimination, unsafe working conditions, or other
adverse impacts, such as those referenced above. Moreover, the remedies
provided for under this proposed regulation are not intended to be
exclusive; if an agricultural worker has other remedies available under
State or local law, the remedies contemplated under this proposal are
not intended to displace them. The Department welcomes comments on how
best to ensure that its proposals do not conflict with existing laws
and regulations and how best to preserve available remedies under those
laws, in particular State laws that provide for a system of collective
bargaining for farmworkers and explicitly prohibit retaliation against
farmworkers.
The Department seeks comments on this proposal.
vii. Prohibitions on Seeking To Alter or Waive the Terms and Conditions
of Employment, Including the Right To Communicate With the Department
The Department's current regulations, including current Sec.
655.135(h), have long protected a worker's ability to communicate with
the Department. In addition, the Department's H-2A regulations have
long required employers to fully disclose in the job order the material
terms and conditions of employment under the job opportunity, and have
long prohibited employers from seeking to later alter those terms and
conditions. See 20 CFR 655.103(b), 655.122(b) and (q); 29 CFR 501.5.
However, in recent years, the Department has observed a troubling trend
of H-2A employers imposing ``side agreements'' that purport to add or
waive certain terms and conditions of employment as compared to those
disclosed in the job order. For example, after terminating a group of
workers without cause, one H-2A employer presented the workers with
forms falsely asserting that the workers had left voluntarily,
purporting to waive the workers' rights to the three-fourths guarantee.
WHD v. Sun Valley Orchards, LLC, ARB No. 2020-18, 2021 WL 2407468, at
*10-11 (ARB May 27, 2021), aff'd, No. 1:21-cv-16625, 2023 WL 4784204
(D.N.J July 27, 2023), appeal filed. Other H-2A employers have required
workers to sign arbitration agreements after the workers have arrived
at the place of employment, without having disclosed such a requirement
in the job order. See, e.g., Martinez-Gonzalez v. Elkhorn Packing Co.,
LLC, 25 F.4th 613 (9th Cir. 2022); Magana-Mu[ntilde]oz v. West Coast
Berry Farms, LLC, No. 5:20-cv-02087, 2020 WL 3869188, at *5 (N.D. Cal.
July 9, 2020). These practices violate the Department's H-2A
regulations and may mislead workers regarding their rights under the H-
2A program, including their ability to communicate with the Department.
Therefore, the Department takes this opportunity to reiterate its
longstanding requirements relevant to these ``side agreements.''
First, the Department's H-2A regulations include robust disclosure
requirements. Specifically, employers must disclose in the job order
all material terms and conditions of employment. See 20 CFR 655.103(b)
(defining ``job order'' as ``[t]he document containing the material
terms and conditions of employment''); 655.121(a)(4) (requiring H-2A
job orders to meet the requirements specified for agricultural
clearance orders under 20 CFR part 653, subpart F); 653.501(c)(1)(iv)
and (3)(viii) (requiring agricultural clearance orders to include
material terms and conditions of employment). Each job qualification
and requirement listed in the job order must be bona fide, as well as
normal and accepted among non-H-2A employers in the same or similar
occupations. 20 CFR 655.122(b) (job qualifications and requirements).
Finally, the employer must provide H-2A workers with a copy of the
written work contract (at minimum, the terms of the job order) before
the worker travels to the place of employment. 20 CFR 655.122(q)
(disclosure of work contract). Such written disclosure must be made to
workers in corresponding employment no later than the first day work
commences. Id.
These requirements ensure that employers seeking to employ H-2A
workers are adequately testing the local labor market to determine the
availability of U.S. workers for the actual job opportunity and are not
imposing inappropriate requirements that discourage otherwise qualified
U.S. workers from applying. See 75 FR at 6901. These requirements also
ensure that workers are apprised of the accurate terms and conditions
of employment before accepting employment with the employer and, in the
case of many workers, traveling great distances and at significant
personal expense to do so. Adm'r v. Frank's Nursery LLC, ARB Nos. 2020-
0015 and 2020-0016, 2021 WL 4155563, at *3-4 (ARB Aug. 25, 2021)
(describing the importance of disclosure to workers of all material
terms and conditions of employment before the worker accepts the job
offer), aff'd, No. 21-cv-3485, 2022 WL 2757373 (S.D. Tex. July 14,
2022).
Thus, pursuant to these requirements, an employer may not seek to
add new material terms and conditions of employment after the worker
arrives at the place of employment, even if such terms and conditions
would otherwise be permissible if they had been disclosed in the job
order. For example, even if a mandatory arbitration agreement would be
a permissible term and condition of employment for a particular H-2A
job opportunity if disclosed in the job order, it is a violation of the
H-2A regulations for the employer to impose such a material term and
condition of employment on the workers if it was not disclosed in the
job order. See Frank's Nursery, 2022 WL 2757373, at *3-4 (affirming WHD
Administrator's determination of violation and assessment of a civil
money penalty for employer's failure to disclose in the job order a
drug testing policy); see also Magana-Mu[ntilde]oz v. West Coast Berry
Farms, LLC, No. 5:20-cv-02087, 2020 WL 3869188, at *5 (N.D. Cal. July
9, 2020) (discussing the Department's regulatory requirements for H-2A
job orders and concluding that an arbitration agreement is a material
term or condition of employment that must be disclosed in the job
order); cf. ETA v. DeEugenio & Sons #2, OALJ No. 2011-TLC-00410, slip
op. at 3-4 (OALJ June 13, 2011) (affirming CO's denial of labor
certification because employer failed to demonstrate that arbitration
and grievance clauses listed in job order were normal and accepted
requirements among non-H-2A employers in the occupation); ETA v.
Bourne, et al., OALJ No. 2011-TLC-00399, slip op. at 9-11 (OALJ June 6,
2011) (same); ETA v. Head Bros., OALJ No. 2011-TLC-00394 (OALJ May 18,
2011) (same); but see ETA v. Frey Produce et al., OALJ No. 2011-TLC-
403, slip op. at 6 (OALJ June 3, 2011) (concluding arbitration is a not
a job ``qualification or requirement'').
Second, and in addition to the disclosure requirements, the
Department's H-2A regulations prohibit any person from seeking to have
a worker waive any right afforded under the H-2A program. 29 CFR 501.5.
Thus, an employer may not--at any time--request that a worker waive or
reduce any of the terms and conditions of employment disclosed in the
job order or other rights under the H-2A program, such as the provision
of meals as disclosed in the job order, the right to the three-fourths
guarantee, the prohibition on the payment of fees, or the payment of
the H-2A wage rate for hours spent engaged in corresponding employment.
For example, through its enforcement experience, the Department has
learned of H-2A employers presenting their entire workforces with
[[Page 63793]]
side ``opt-out'' agreements under which the workers purport to waive
their right to employer-provided meals on certain days, despite the
employer's disclosure in the job order that meals will be provided
every day. The regulations prohibit such practices. In addition, an
employer may never seek to prevent a worker from engaging in activity
protected under the H-2A regulations, such as filing a complaint with,
speaking with, or cooperating with the Department. See 20 CFR
655.135(h); 29 CFR 501.4(a).
The Department is concerned that ``side agreements'' carry
significant potential to mislead workers regarding their rights under
the H-2A program, including the right to file complaints with and
communicate with the Department. For example, an H-2A worker who is
terminated without cause but is required to sign a form purportedly
``resigning'' the job may believe--incorrectly--that they may no longer
file a complaint with the Department to enforce their right to the
three-fourths guarantee or their right to the cost of return
transportation and subsistence. Another worker may misunderstand a
``side'' arbitration agreement as preventing the worker from filing a
complaint with the Department before first submitting the issue to the
employer's arbitration procedures, even though an employee who agrees
to arbitrate a statutory claim is not waiving any substantive rights
under the statute. Gilmer v. Interstate/Johnson Lane Corp., 500 U.S.
20, 25 (1991). Moreover, an H-2A worker's agreement with their employer
to arbitrate employment disputes does not limit the Department's
ability to enforce the H-2A program's requirements. EEOC v. Waffle
House, Inc., 122 S. Ct. 754 (2002); Walsh v. Arizona Logistics, Inc.,
998 F.3d 393, 396-97 (9th Cir. 2021) (same). Accordingly, where an H-2A
employer's job order does include an arbitration clause that is
otherwise permissible, the SWA and OFLC review the disclosure for
actual or implied restrictions on workers' access to complaint systems
and may require employers to include language in the job order
affirmatively stating that the worker may not be prevented from filing
complaints with the Department. For efficiency and clarity, and
consistent with the other proposals in this NPRM that would serve to
protect worker voice and better inform workers of their rights under
the H-2A program, the Department is proposing to add standard language
to the job order affirmatively stating that a worker may not be
prevented from communicating with the Department of Labor or any other
Federal, State or local governmental agencies regarding the worker's
rights. The Department welcomes comments suggesting other means it can
use to better inform workers of their rights and to better inform
employers and workers alike of the longstanding limitations on ``side
agreements.''
viii. Section 655.135(h)(2) Activities Related to Self-Organization and
Concerted Activity
The Department proposes a new protected activity for any person
engaged in FLSA agriculture at proposed Sec. 655.135(h)(2), relating
to self-organization and concerted activity, for those workers who are
exempt from similar protections under the NLRA. As discussed above, the
Department believes that these proposed protections are necessary to
prevent an adverse effect on the working conditions of workers in the
United States similarly employed. 8 U.S.C. 1188(a)(1). Specifically,
the Department proposes at Sec. 655.135(h)(2) to protect engaging in
activities related to self-organization, including any effort to form,
join, or assist a labor organization, as defined in proposed Sec.
655.103(b); a secondary activity such as a secondary boycott or picket;
or other concerted activities for the purpose of mutual aid or
protection relating to wages or working conditions. The Department also
proposes to protect a person's refusal to engage in any such
activities.
By proposing to add protections for such activities, the Department
intends to prohibit an employer from intimidating, threatening,
restraining, coercing, blacklisting, or in any manner discriminating
against, any person engaged in FLSA agriculture for engaging, or
refusing to engage, in activities related to self-organization,
including, among other things, concerted activity for mutual aid or
protection. The Department's proposed use of the terms ``concerted
activity'' and ``mutual aid or protection'' draws upon the general body
of case law from the Federal courts and the NLRB broadly construing
similar language in the NLRA. However, the Department notes that these
terms must ultimately be interpreted consistently with the statutory
purpose of the INA and the H-2A program, including the need to prevent
adverse effect on workers in the United States, and in light of the H-
2A program's unique characteristics.
The Department proposes that concerted activity include employee
activity ``engaged in with or on the authority of other employees, and
not solely by and behalf of the employee himself.'' Meyers Indus.
(Meyers I), 268 NLRB 493, 497 (1984), remanded sub nom., Prill v. NLRB,
755 F.2d 941 (D.C. Cir. 1985); see also NLRB v. City Disposal Sys.
Inc., 465 U.S. 822, 830 (1984). For example, concerted activity
includes two or more employees presenting joint requests or grievances
to their employers; \71\ a series of ``spontaneous individual pleas''
from employees about shared concerns; \72\ two or more workers
circulating or signing a petition; \73\ two or more workers striking or
walking off the job; \74\ participating in a concerted refusal to work
in unsafe or intolerably bad conditions; \75\ two or more workers
talking directly to their employer, to a government agency, or to the
media about problems in their workplace; \76\ or cooperating as a group
with law enforcement investigations (including investigations by
DOL).\77\ The term concerted activity also includes worker organizing
``outside the immediate employee-employer relationship'' and ``common
cause'' activity, including concerted activity ``in support of
employees of employers other than their own.'' See Eastex, Inc. v.
NLRB, 437 U.S. 556, 564-65 (1978). These examples are intended to be
illustrative and not exhaustive. The proposed regulation's protections
for concerted activity would apply to both workers that have joined a
labor organization and those that have not. See Indiana Gear Works v.
NLRB, 371 F.2d 273, 274 (7th Cir. 1967).
---------------------------------------------------------------------------
\71\ See, e.g., NLRB v. Sequoyah Mills, Inc., 409 F.2d 606, 608
(10th Cir. 1969).
\72\ See, e.g., NLRB v. Washington Aluminum Co., 370 U.S. 9, 15
(1962).
\73\ See, e.g., Richardson Paint Co. v. NLRB, 574 F.2d 1195,
1206 (5th Cir. 1978).
\74\ See, e.g., Case Farms of North Carolina, Inc., 353 NLRB 26
(2008), enforced, 2010 WL 1255941 (D.C. Cir. Mar. 3, 2010).
\75\ See, e.g., Washington Aluminum, 370 U.S. at 17; Brown &
Root, Inc. v. NLRB, 634 F.2d 816, 817-18 (5th Cir. 1981).
\76\ See, e.g., Case Farms, 353 NLRB 26.
\77\ See, e.g., A.N. Elec. Corp., 276 NLRB 887, 889 (1985);
Squier Dist. Co. v. Int'l Bhd. of Teamsters, Local 7, 801 F.2d 238,
242 (6th Cir. 1986).
---------------------------------------------------------------------------
The Department proposes that the term concerted activity also
encompass workers' individual actions when they seek to initiate,
induce, or prepare for group action, or when workers bring shared
complaints to the attention of management. See Meyers Indus. (Meyers
II), 281 NLRB 882, 887 (1987) (citing Mushroom Transp. Co. v. NLRB, 330
F.2d 683 (3d Cir. 1964)). For example, if an individual attempts to
``enlist [ ] the support of his fellow employees'' in shared activity,
the worker's attempt is protected regardless of whether other
[[Page 63794]]
employees ultimately participate in ongoing efforts. Whittaker Corp.,
289 NLRB 933, 933 (1988); Salt River Valley Water Users Ass'n, 99 NLRB
849, 853 (1952) (``[G]roup action is not deemed a prerequisite to
concerted activity for the reason that a single person's action may be
the preliminary step to acting in concert.''). An individual's goal of
initiating, inducing, or preparing for group activity can be inferred
from the totality of the circumstances. See Whittaker Corp., 289 NLRB
at 934. For example, the fact that a person refers to the possibility
of taking group action in a conversation with their co-workers, or the
fact that a conversation among co-workers is about wages and working
conditions, can support a finding that the conversation was aimed at
inducing group action. See id.; Jeanette Corp v. NLRB, 532 F.2d 916,
918-20 (3d Cir. 1976) (holding that an employer rule prohibiting
workers from discussing wages among themselves suppressed concerted
activity). An individual's actions to enforce the terms of a CBA
qualifies as concerted activity even if pursued singly, because those
actions are a continuation of the concerted activity of negotiating.
See City Disposal Systems, 465 U.S. at 830-31. Likewise, an employee is
engaged in collective activity when an individual worker's actions are
a ``logical outgrowth'' of an earlier protest by workers. See, e.g.,
NLRB v. Mike Yurosek & Son, Inc., 53 F.3d 261, 265 (9th Cir. 1995)
(workers' refusal to work additional hour was a logical outgrowth of
earlier, collective protestations regarding the employer's reduction in
scheduled hours); Every Woman's Place, 282 NLRB 413, 415 (1986) (single
employee's call to WHD regarding overtime pay was a logical outgrowth
of prior, collective complaints to supervisor regarding overtime
without receiving any response).
The Department intends to define activity for ``mutual aid or
protection'' to encompass activities for which ``there is a link
between the activity and matters concerning the workplace or employees'
interests as employees.'' Fresh & Easy Neighborhood Market, 361 NLRB
151, 153 (2014). For example, agricultural employees' activity would be
deemed to be for mutual aid or protection for the purposes of proposed
Sec. 655.135(h)(2) when it concerns wages, hours, benefits, working
conditions, worker safety, workplace equity, housing conditions, worker
voice, or other issues pertaining to their workplace or their interests
as employees. Employee activity aimed at ``channels outside the
immediate employee-employer relationship,'' or ``in support of
employees of employers other than their own'' may also be for ``mutual
aid or protection.'' Eastex, 437 U.S. at 565. For example, political
and social advocacy may be for mutual aid or protection when it has a
nexus to employees' ``interests as employees.'' Id. at 566; see also
Kaiser Eng'rs, 213 NLRB 108 (1974).
Although the terms ``concerted activity'' for ``mutual aid or
protection'' would encompass secondary activity, such as secondary
boycotts and pickets, the Department proposes to expressly list this
among the protected activities related to self-organization in light of
the differences between workers covered by the NLRA and those that
would be covered by this proposed provision. The Department notes that,
while the NLRA, as amended by the Taft-Hartley Act, prohibits many
labor organizations from engaging in secondary boycotts or pickets, see
29 U.S.C. 158(b)(4), this prohibition would not apply to the
agricultural employees to whom the Department's proposed rule would
apply, see 29 U.S.C. 152(3). Therefore, this proposed rule is
consistent with the longstanding consensus under the NLRA that it is
not unlawful for agricultural workers, or labor organizations composed
exclusively of agricultural employees, to participate in secondary
activity. See Di Giorgio Fruit, 191 F.2d at 647. However, the
Department believes that it would benefit employees, employers, and the
Department to reiterate this longstanding legal principle by making
this principle clear in this proposed rule at Sec. 655.135(h) and,
therefore, on the job order. This clarity would help ensure that
workers could refer to the job order to understand what activity is
protected under the regulation. Likewise, this additional clarity would
help employers comply with their obligations under the proposed rule.
The Department believes that clearly explaining these obligations for
both H-2A employers and workers would prevent unnecessary confusion and
resulting disputes.
Additionally, the Department recognizes that this proposal to
include activities related to self-organization as a protected activity
may prompt questions about when and where an employer must permit the
conduct of such activities. Under the proposed regulations, an employer
could not prohibit activities related to self-organization or other
concerted activities for the purpose of mutual aid or protection that
occur during nonproductive time. Nonproductive time means any time the
worker is not actively performing work, even if the worker remains on
the clock or the time is otherwise compensable. For example,
nonproductive time generally includes lunch breaks, rest breaks, and
time spent riding as a passenger in a vehicle when being transported
between worksites. Nonproductive time also includes any noncompensable
time, such as time after the end of the worker's workday. Similarly,
under the proposed regulations, an employer would be required to permit
self-organization or other concerted activities for the purpose of
mutual aid or protection in nonwork or mixed-use areas, even if such
areas are on the employer's premises. For example, the employer would
not be allowed to prohibit employees from meeting with one another
after the end of the workers' workday to discuss wages or working
conditions in the parking lot of the employer's establishment, insofar
as employees would otherwise have access to the parking lot after the
end of the workers' workday. Similarly, consistent with the proposed
access provision at Sec. 655.135(n), the employer would not be allowed
to prohibit employees from meeting with one another, or with one or
more representatives from a labor organization or with employee guests
for such discussions in or around employer-furnished housing that occur
outside of the workers' workday.
Furthermore, although an employer could establish reasonable work
rules that limit discussions, meetings, and gatherings not related to
the job while the worker is actively performing the work, the employer
could not apply or enforce work rules selectively to discourage worker
self-organization. For example, the employer may place reasonable
restrictions on employees' use of personal devices while in the field.
However, if the employer selectively applied such restrictions to
certain individuals who the employer suspected were engaged in
organizing, or only to those text messages or phone conversations that
the employer perceived to be related to worker self-organization or
other concerted activities while permitting them in other instances,
such a practice would violate the proposed requirement at 20 CFR
655.135(h)(2). Similarly, while an employer could reasonably establish
a work rule limiting personal conversations during productive working
hours where such conversations would affect productivity, if the
employer selectively enforced this work rule against employees for
conversing about self-organization or other concerted activities, such
a practice would be impermissible.
[[Page 63795]]
Nothing in this proposal would require or prohibit the adoption of
any specific term of a collective bargaining agreement ultimately
negotiated between the employer and the workers; rather, any such
agreement would be subject to any applicable Federal, State, or local
law. In addition, as noted above, the Department does not intend to
preempt any applicable State laws or regulations that may regulate
labor-management relations, organizing, or collective bargaining by
agricultural workers. Moreover, the remedies provided for under this
proposed regulation are not intended to be exclusive; if an
agricultural worker has other remedies available under State or local
law, the remedies contemplated under this proposal are not intended to
displace them.
The Department seeks comments on the proposal to protect certain
concerted activity related to self-organization in Sec. 655.135(h)(2)
with respect to workers who are engaged in FLSA agriculture.
Specifically, the Department seeks comments on whether to expressly
list secondary boycotts and pickets among the protected activities
related to self-organization, the scope of the proposed protections and
the proposed definitions of ``concerted activity'' and ``mutual aid or
protection,'' the impact that expressly protecting such activity would
have on the working conditions of H-2A workers, workers in
corresponding employment, and agricultural workers in the United States
more generally, and how this proposal would interact with State labor
laws. The Department also welcomes comments on how best to ensure that
its proposals do not conflict with existing State laws and regulations
that provide for a system of collective bargaining for farmworkers and
explicitly prohibit retaliation against farmworkers.
ix. Section 655.135(m) Worker Voice and Empowerment
The Department proposes a new employer obligation at Sec.
655.135(m) that would include a number of protections that the
Department has determined are necessary to prevent an adverse effect on
the working conditions of workers in the United States similarly
employed, 8 U.S.C. 1188(a)(1), as discussed above, by protecting the
rights of workers under the H-2A program to self-organization and
concerted activity as proposed in Sec. 655.135(h)(2). The employer's
obligations under this proposed provision would apply only to workers
engaged in FLSA agriculture. Specifically, the Department proposes to
add requirements that an employer provide to a requesting labor
organization the contact information of H-2A workers and workers in
corresponding employment employed at the place(s) of employment; permit
workers to designate a representative of their choosing to attend any
meeting that may lead to discipline; refrain from captive audience
meetings unless the employer provides certain information to ensure
that such meeting is not coercive; and attest either that they will
bargain in good faith over the terms of a proposed labor neutrality
agreement with a requesting labor organization, or that they will not
do so and provide an explanation for why they have declined. The
Department believes that these requirements would provide H-2A workers
and workers in corresponding employment with important tools to allow
them to more successfully organize and advocate for better working
conditions from their employers and thereby prevent adverse effect on
the working conditions of similarly employed workers in the United
States. Finally, to help inform workers of their rights under proposed
Sec. 655.135(m), the Department is proposing to include these proposed
protections in the disclosures required on the job order.
A. Section 655.135(m)(1) Employee Contact Information
The Department proposes in Sec. 655.135(m)(1) to require employers
to provide worker contact information to a requesting labor
organization. As explained further below, this proposal is similar to
but more expansive than the ``voter list'' requirements under the NLRA,
differing in various respects due to the unique characteristics of the
H-2A workforce. Under this provision, employers would be required to
provide to the labor organization a list of all H-2A workers and
workers in corresponding employment engaged in agriculture as defined
under the FLSA and employed at the place(s) of employment included
within the employer's H-2A Application. The proposed list would be in
alphabetical order, and include each worker's full name, date of hire,
job title, work location address and ZIP code, and (if available to the
employer) personal email, personal cellular number and/or profile name
for a messaging application, home country address with postal code, and
home country telephone number. The Department proposes to require the
employer to update the list once per certification period, if requested
by the labor organization. In addition, the proposed list would be
provided to the requesting labor organization in a format agreed upon
by the requesting labor organization and the employer and would be
transmitted electronically.
The Department believes that this proposed requirement would
significantly bolster the ability of workers to effectively self-
organize and to engage in concerted activity protected under proposed
Sec. 655.135(h)(2), by ensuring that workers have access to
information regarding the arguments both for and against organization,
and that workers have access to information and resources necessary to
engage in concerted activity regarding working conditions. Under the
NLRA, the NLRB has long recognized the importance to organizing rights
of workers' access to information regarding the arguments for and
against organization, and has held that the rights to self-organization
and to engage in concerted activity ``necessarily encompass employees'
rights to communicate with one another and with third parties'' about
organization and working conditions. Quicken Loans, Inc. v. NLRB, 830
F.3d 542, 545 (D.C. Cir. 2016) (quotations omitted) (citing Beth Israel
Hospital v. NLRB, 437 U.S. 483, 491 (1978) and Eastex, 437 U.S. at
565); see also Oakwood Hosp. v. NLRB, 983 F.2d 698, 701 (6th Cir.
1993); Hutzler Bros. Co. v. NLRB, 630 F.2d 1012, 1015 (4th Cir. 1980).
To ensure the effective exercise of these rights, the NLRB has long
required employers to provide worker contact information to unions in
certain circumstances because this requirement improves the likelihood
that workers will understand the arguments both for and against
organization. See 29 CFR 102.62(d), 102.67(l); RadNet Mgmt., Inc. v.
NLRB, 992 F.3d 1114, 1122-23 (D.C. Cir. 2021) (provision of contact
information to labor organizations is fundamental to effective exercise
of organizing rights).
The Department's proposal here contains similar information
requirements as those listed in the NLRB's requirements at 29 CFR
102.62(d), but is more expansive given the unique characteristics of
the H-2A program, including the temporary and migrant nature of the
workforce in which the majority of workers are exempt from the NLRA's
protections and thus may be even less likely than NLRA-covered workers
to be aware of the benefits of self-organization and engaging in
concerted activity. Workers under the H-2A program also are often
employed and housed in remote locations. In light of these
characteristics, to better protect against adverse effect, the
Department has tailored this proposal to the needs of the H-2A
workforce. For example, the
[[Page 63796]]
Department proposes to require the employer to provide available
contact information for the worker in the worker's home country and for
any messaging application the worker uses to communicate (e.g.,
``WhatsApp''). The Department also proposes to require that the contact
list be updated once per season, if such an update is requested by the
labor organization. The Department believes that, given the potential
for organizing activities to occur at any time throughout the job order
period (as opposed to a more time-limited event such as an election, as
is the case in the context of the NLRB voter list requirements),
allowing the union to request an updated list at the time of its
choosing would best ensure that workers are able to receive information
regarding the arguments both for and against organization, in the event
of workforce turnover over the course of the work contract. However,
the Department proposes to limit this ability to request an updated
list to one time per season, to avoid unduly burdening the employer
with complying with this request. The Department believes that this
proposed requirement would significantly bolster the ability of workers
to effectively self-organize and to engage in concerted activity by
ensuring that workers have equal access to information regarding the
arguments both for and against organization, and that workers have
access to information and resources necessary to engage in concerted
activity regarding working conditions.
The Department also recognizes that the ability to self-organize
and to engage in concerted activity must be balanced against the
workers' rights to the privacy of their personal information. In the
context of the NLRA, the NLRB has reasoned that any privacy concerns
raised by an employer providing employee contact information to unions
are outweighed by the benefits and necessity of protecting the rights
to self-organization and to engage in concerted activity. RadNet Mgmt.,
992 F.3d at 1122-23. Under the H-2A program, the importance of these
benefits is arguably even greater and arises earlier in the organizing
process for the reasons discussed above. Therefore, the Department
believes it is imperative that labor organizations have access to the
information they need to communicate with these workers effectively,
and that this goal would outweigh any privacy concerns. However, the
Department welcomes comment on whether it should include a worker
``opt-out'' provision, under which a worker could decline to have their
contact information included in the list the employer would provide to
the union, or if other protections for worker privacy may be warranted.
The Department also welcomes comment on whether organizations other
than labor organizations (defined as proposed in Sec. 655.103(b)) also
should be able to request this information, particularly in light of
the unique circumstances of the H-2A program, such as ``key service
providers'' as defined in proposed Sec. 655.103(b). The Department
also requests comments regarding the best methods to ensure workers are
adequately notified of these employer obligations.
Finally, the Department notes that nothing in this proposed
provision would limit a worker's ability to gather coworkers' contact
information to share both amongst themselves and with unions, which is
central to effective rights to self-organize and engage in concerted
activity. Cf. Quicken Loans, 830 F.3d at 548. Moreover, a worker's
ability to gather and share coworker information with unions would be
protected under proposed Sec. 655.135(h)(2). For example, a worker who
gathers coworkers' contact information and shares that information with
a union so that the union can contact the workers regarding the
benefits of unionization is engaging in protected, concerted activity
and self-organization. Under proposed Sec. 655.135(h)(2), an employer
may not retaliate against the worker for gathering or sharing this
information.
B. Section 655.135(m)(2) Right To Designate a Representative
The Department proposes in Sec. 655.135(m)(2) to require employers
to permit workers to designate a representative of their choosing to
attend any meeting between the employer and a worker where the worker
reasonably believes that the meeting may lead to discipline. Under the
proposed provision, the employer also would have an obligation to
permit the worker to receive advice and active assistance from the
designated representative during any such meeting.
The Department believes that proposed Sec. 655.135(m)(2) would
significantly bolster the ability of H-2A and corresponding workers to
engage in concerted activity as protected in proposed Sec.
655.135(h)(2). In the context of the NLRA, it is well established that
in a workplace covered by a CBA, an employer interferes with an
employee's right to engage in concerted activities for mutual aid or
protection under section 7 of the NLRA when the employer denies an
employee's request that a union representative accompany the employee
at an investigatory interview that the employee reasonably believes
might result in disciplinary action. See NLRB v. J. Weingarten, Inc.,
420 U.S. 251, 254, 267 (1975). As courts and the NLRB have explained,
such a request by an employee constitutes concerted activity because
the presence of a representative safeguards the interests of employees
generally, not solely the particular employee's interest. See id. at
260-61.
In any workplace, union or nonunion, the presence of a
representative at a meeting that may lead to discipline, and the
ability of such representative to provide assistance and advice, gives
the employee a witness, an advisor, and an advocate in a potentially
adversarial situation, thus preventing the imposition of unjust
discipline by the employer. Proposed Sec. 655.135(m)(2) thus also
helps ensure that workers have access to representation to assist in
safeguarding workers against unjust termination under the Department's
proposed definition of for cause termination. More generally, the
ability to request a representative's presence at such a meeting
enhances employees' ability to act in concert with their coworkers to
protect their mutual interest in ensuring that their employer does not
impose punishment unjustly. Courts have cited similar considerations in
deeming reasonable the view that section 7 of the NLRA permits nonunion
workers to designate a coworker to provide assistance during
investigatory interviews that may lead to disciplinary action. See
Epilepsy Found. of Ne. Ohio v. NLRB, 268 F.3d 1095, 1100 (D.C. Cir.
2001). The Department acknowledges that the NLRB has frequently shifted
its position on whether section 7 applies in nonunion workplaces, but
the Department's proposed regulations for the H-2A program apply
independently of the NLRA, and would cover workers that are outside the
NLRB's purview. Thus, any shifts in the NLRB's position would not alter
proposed Sec. 655.135(m)(2).\78\ Moreover, the need for a
representative is particularly acute for workers in the H-2A program,
given their unique vulnerabilities and
[[Page 63797]]
dependence on the employer for meals, housing, and transportation.
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\78\ Compare, e.g., Epilepsy Found. of Ne. Ohio, 331 NLRB No. 92
(2000) (interpreting section 7 to extend the Weingarten rule to
nonunion workplaces); Materials Research Corp., 262 NLRB 1010 (1982)
(same), with, e.g., I.B.M. Corp., 341 NLRB 1288 (2004) (limiting
Weingarten rights to employees covered by CBAs); Sears, Roebuck &
Co., 274 NLRB 230 (1985) (same). The Department recognizes that the
workforce in the H-2A program is largely not unionized, and so the
proposed regulation is not limited to workers that are members of a
labor organization.
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Proposed Sec. 655.135(m)(2) would not limit whom a worker may
designate as a representative. For example, a worker may designate a
coworker, an outside advocate, a representative from a labor
organization (regardless of whether the worker is a member), or any
other individual. The Department believes it is appropriate to permit
workers to designate a broader scope of representatives than the
representatives contemplated under section 7 of the NLRA. The benefits
of a representative apply even where the representative is not employed
by the employer, such as a legal aid advocate or member of the clergy,
because a single worker's efforts to seek such assistance and advice
broadly advances other workers' shared interest in preventing the
imposition of unjust punishment. Moreover, in H-2A workplaces, it is
impractical to limit such representatives to union representatives or
coworkers. Due to low union density in agricultural workplaces, workers
in H-2A workplaces will seldom have the ability to designate union
representatives, and workers may face difficulties identifying trusted
coworkers to serve as representatives because the temporary nature of
the work may limit opportunities to develop relationships with
coworkers and because the high incidence of retaliation in H-2A
workplaces may discourage coworkers from involvement.
The Department proposes that the employer's obligation under Sec.
655.135(m)(2) would apply in the context of ``meetings between the
employer and a worker where the worker reasonably believes that the
meeting may lead to discipline.'' Under this proposal, the scope of
situations in which this obligation would apply is broader than the
``investigatory interviews'' in which a worker's right to a
representative arises under section 7 of the NLRA. See Weingarten, 420
U.S. at 253, 257-58 (recognizing right to representative in
``investigatory interview which the employee reasonably believed might
result in disciplinary action''). The Department believes that, given
the realities of employer-worker interactions in H-2A workplaces, it is
appropriate to apply the employer's obligation under proposed Sec.
655.135(m)(2) beyond such ``investigatory interviews.'' Disciplinary
action in H-2A workplaces may often occur in informal contexts or in
worksite settings such as fields, and limiting employers' obligation to
``investigatory interviews may constrain workers' ability to designate
representatives in such contexts or settings. However, the Department
welcomes comments regarding the scope of situations in which employers'
obligation under proposed Sec. 655.135(m)(2) should apply, including,
for example, comments addressing whether this obligation should apply
in all situations, not just meetings, that a worker may reasonably
believe could involve or lead to discipline, including in situations
where, for example, employers correct work techniques, give
instructions, or provide training, or whether the obligation should
apply in situations more analogous to the ``investigatory interviews''
addressed in Weingarten. The Department also seeks comment as to
whether it should draw on sources other than Weingarten--including
State, local, or other Federal law--in determining when this obligation
should be applicable, and whether it should take into account any other
considerations particular to workers in nonunion settings, or to
agricultural workers and their interactions with their employers.
The Department also welcomes comments on how to ensure that workers
are adequately informed of the employer's obligation to permit workers
to request a representative and of the circumstances under which this
obligation would arise. In a workplace covered by a CBA and the NLRA,
workers may rely on their unions for information regarding when
Weingarten rights apply, but the Department acknowledges that most
agricultural workers are not unionized. The Department welcomes
comments regarding the best methods to ensure adequate notification,
including comments that address whether employers should be required to
inform workers of their obligation to permit workers to request a
representative and whether employers should be required to notify
workers explicitly that a meeting may lead to discipline. For example,
possible methods of notifying workers may include requiring that all
job orders and job assurances shared with workers include information
about the employer's obligation to permit workers to request a
representative; requiring that employers provide other means of written
notification in a language that workers understand; and/or requiring
that employers provide oral notification in a language that workers
understand and that employers maintain records of such oral
notifications.
In addition to comments on the specific questions the Department
has posed to commenters, the Department welcomes comments on the
general question of how proposed Sec. 655.135(m)(2) can best be
implemented in the context of agricultural employment and the way
agricultural workers and employers interact, including in the contexts
of herding and range livestock production occupations subject to
Sec. Sec. 655.200 through 655.235 and itinerant animal shearing,
commercial beekeeping, and custom combining occupations subject to
Sec. Sec. 655.300 through 655.304.
C. Section 655.135(m)(3) Prohibition on Coercive Speech
The Department proposes a new provision at Sec. 655.135(m)(3) to
prohibit employers from engaging in coercive speech to try to prevent
workers from advocating for better working conditions on behalf of
themselves and their coworkers. Specifically, the Department proposes
to add new protections at Sec. 655.135(m)(3) prohibiting coercive
speech, sometimes referred to as ``captive audience meetings'' or
``cornering.'' As under section 7 of the NLRA, a worker's right to
engage, or not engage, in self-organization and concerted activity
under proposed Sec. 655.135(h)(2) would include the worker's right to
listen and the worker's right to refrain from listening to employer
speech concerning the worker's exercise of those rights. The proposed
regulation at Sec. 655.135(m)(3) would thus prohibit H-2A employers
from coercing and/or requiring workers to listen to or attend an
employer's speech or meeting concerning the exercise of their rights to
engage in activities related to self-organization, including any effort
to form, join, or assist a labor organization or engage in other
concerted activities for the purpose of mutual aid or protection
relating to wages or working conditions. Such ``captive audience
meetings,'' which would typically occur in the workplace during working
hours, while the workers are on the clock (though they might also occur
during travel to the worksite or in situations where workers are not on
the clock), inherently involve an unlawful threat that employees will
be disciplined or suffer other reprisals if they exercise their
protected right not to listen to such speech. The Department believes
that such meetings are inherently coercive and should not be permitted.
In the NLRB context, the Supreme Court has instructed that employer
actions should be evaluated from the perspective of employees who are
in a position of ``economic dependence'' and would necessarily pick up
threatening implications ``that might be more
[[Page 63798]]
readily dismissed by a more disinterested ear.'' NLRB v. Gissel Packing
Co., 395 U.S. 575, 617 (1969); see also Hill v. Colorado, 530 U.S. 703,
717 (2000) (noting that within the employment relationship, persistent
communication after refusal can become intimidation, and that persons
have ``a right to be free'' from unwanted communication) (quoting Rowan
v. U.S. Post Office Dep't, 397 U.S. 728, 736 (1970)). Here, H-2A
workers and their employers do not have equal bargaining power, due in
large part to H-2A workers' significant economic dependence on their
employers. The Department is concerned that H-2A workers should not be
forced to listen to such employer speech under threat or potential
threat of discipline--directly leveraging the workers' dependence on
their jobs.
The fact that such threats may arise in the context of employer
speech would not immunize their unlawful coercive effect. Under the
NLRA, the Supreme Court has made clear that threats fall outside the
scope of employers' NLRA-related speech rights and constitutional free-
speech protections. Gissel Packing, 395 U.S. at 617-20. Nevertheless,
employers frequently use explicit or implicit threats to force
employees into meetings concerning unionization or other NLRA-
statutorily protected activity. See 2 Sisters Food Grp., 357 NLRB 1816,
1825 n.1 (2011) (Member Becker, dissenting in part) (citing study
finding ``that in 89 percent of [representation election] campaigns
surveyed, employers required employees to attend captive audience
meetings during work time and that the majority of employees attended
at least five such meeting[s] during the course of the campaign'').
These same employers often carry out those threats by seeking to
discharge or discipline employees who assert their right to refrain
from listening by refusing to attend such mandatory meetings. The
Department believes that employers should not be permitted to coerce H-
2A workers in this way under this proposed rule, but instead should be
required to honor H-2A workers' free choice and their rights to listen
or to refrain from listening to such coercive speech.
The Department recognizes that employers generally have a right
under the First Amendment to communicate their views to their
employees. See Gissel Packing, 395 U.S. at 617. However, protecting
workers' right to refrain from listening, as proposed Sec.
655.135(h)(2) does, would not impair employers' constitutional freedom
of expression. As the Supreme Court has recognized, ``employers'
attempts to persuade to action with respect to joining or not joining
unions are within the First Amendment's guaranty.'' Thomas v. Collins,
323 U.S. 516, 537 (1945). But ``[w]hen to this persuasion other things
are added which bring about coercion, or give it that character, the
limit of the right has been passed.'' Id. at 537-38.
The Department therefore proposes to prohibit employers from
engaging in coercive speech intended to oppose workers' protected
activity unless the employer: (a) explains the purpose of the meeting
or communication; (b) informs employees that attendance or
participation is voluntary, and that they are free to leave at any
time; (c) assures employees that nonattendance or nonparticipation will
not result in reprisals (including any loss of pay if the meeting or
discussion occurs during their regularly scheduled working hours); and
(d) assures employees that attendance or participation will not result
in rewards or benefits (including additional pay for attending meetings
or discussions concerning their rights to engage in protected activity
outside their regularly scheduled working hours).
These safeguards were developed many years ago by the NLRB to avoid
``the inherent danger of coercion'' when an employer seeks to interfere
with protected labor rights. See Johnnie's Poultry Co., 146 NLRB 770,
774 (1964), enforcement denied, 344 F.2d 617 (8th Cir. 1965). There,
the NLRB recognized that inherent in the employment relationship is the
understanding that employees cannot, without consequences, either
refuse to comply with their employer's stated requirement (e.g., that
they attend a meeting) or abandon their assigned work duties (e.g., by
walking away from employer speech directed at them as they work).
Therefore, the NLRB has crafted safeguards to ensure that workers'
participation is voluntary at all times. See, e.g., Johnnie's Poultry
Co., 146 NLRB 770, 774 (1964) (providing safeguards required when
employer questions employees about protected activity in order to
prepare defense against unfair-labor-practice charges); Struksnes
Constr. Co., 165 NLRB 1062, 1062-63 (1967) (same for when employer
conducts poll to ascertain whether union enjoys majority employee
support); Allegheny Ludlum Corp., 333 NLRB 734, 734 (2001) (same for
when employer may lawfully include visual images of workers in anti-
union campaign presentations), enforced, 301 F.3d 167 (3d Cir. 2002);
Sunbelt Rentals, Inc., 374 NLRB No. 24 (2022) (reaffirming Johnnie's
Poultry rule).
The Department believes that such safeguards would appropriately
protect employers' constitutional free speech right to express views,
argument, or opinion concerning protected organizing activity without
unduly infringing on the rights of workers to refrain from listening to
such expressions as proposed in this rule. Therefore, to ensure that
workers are not held captive to coercive employer speech about their
protected activity, the Department proposes to adopt these sensible
disclosures that an employer must convey to workers in order to make
clear that their attendance at any meeting or discussion in work areas
during working hours concerning their rights to engage in protected
activity is truly voluntary. Note that no disclosures would need to be
given when employers require workers to attend meetings on subjects
other than their exercise of protected rights (e.g., work assignments
for the day, tools, job training or safety instructions). But these
safeguards would be required if, for example, the employer uses a
regular daily meeting or a portion of that meeting to seek to dissuade
employees from acting together to improve working conditions or safety
or engaging in other protected concerted activity. The Department's
approach is intended to protect both the workers' rights to engage in
(or to refrain from engaging in) concerted activity under this proposed
rule, and employers' speech concerning any such activity, without
unduly infringing on either party's expression. It also seeks to make
clear that an employer cannot retaliate against a worker (or provide
rewards or benefits) for attending or refusing to attend a ``captive
audience'' meeting or discussion concerning their rights to engage in
protected activity, even if the meeting occurs during their regularly
scheduled working hours.
The Department welcomes comments on this proposal, including,
specifically, whether there are other ways to protect workers' rights
to refrain from listening to employers' coercive speech, whether other
safeguards or employer disclosures are appropriate, or how to most
appropriately tailor the prohibition to avoid infringing on employer's
free speech rights while protecting workers' right to engage in
protected activity.
D. Section 655.135(m)(4) Commitment To Bargain in Good Faith Over
Proposed Labor Neutrality Agreement
The Department proposes in Sec. 655.135(m)(4) to require employers
to attest either that they will bargain in good faith over the terms of
a proposed
[[Page 63799]]
labor neutrality agreement with a requesting labor organization, or
that they will not do so and provide an explanation for why they have
declined. This attestation will provide workers, worker advocates, and
the public with valuable information about prospective employers in the
H-2A program.
As noted in the proposed regulatory text, a labor neutrality
agreement is an agreement between a labor organization and an employer
in which the employer agrees not to take a position for or against a
labor organizing effort. Such agreements are effective mechanisms to
improve workers' organizing success, as they address the major
impediments to successful organizing efforts: ``intimidation and
delay.'' \79\
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\79\ See Non-Legislative Labor Law Reform and Pre-Recognition
Labor Neutrality Agreements: The Newest Civil Rights Movement,
Hartley, 22 Berkeley J. Emp. & Lab. L. 369, 378-85 (2001).
---------------------------------------------------------------------------
As described above, coercive employer speech about collective
bargaining or labor organizations can prevent workers from advocating
for better working conditions on behalf of themselves and their
coworkers. A labor neutrality agreement would protect workers from both
coercive and non-coercive anti-organizing speech and provide workers
with a free and fair choice about whether to organize. The Department
believes that labor neutrality agreements negotiated between H-2A
employers and labor organizations could help to correct the imbalance
in bargaining power in the H-2A program that the Department has
identified as having an adverse effect on agricultural workers in the
United States.
However, as also explained above, employers generally have the
right under the First Amendment to communicate their views on
unionization to their employees. See Gissel Packing, 395 U.S. at 617
(distinguishing lawful communications from threats or coercion). Thus,
an employer's choice whether to bargain over any labor neutrality
agreement at the request of a labor organization, and whether to
ultimately enter into such an agreement, is entirely voluntary. The
Department does not intend to oversee or monitor any bargaining that
ultimately takes place, although an employer that chooses to agree to
bargain in good faith yet fails to do so would violate this proposed
regulation.
In general, if the employer chooses to bargain in good faith, doing
so means that, upon request by a labor organization, the employer will
meet at reasonable times and confer, in good faith, with respect to
negotiating the terms of a proposed labor neutrality agreement. Good-
faith bargaining must be at arm's length and must involve engaging in
genuine efforts to reach an accord. See, e.g., NLRB v. Ins. Agents'
Int'l Union, 361 U.S. 477, 485 (1960); NLRB v. Overnite Transp. Co.,
938 F.2d 815, 821 (7th Cir. 1991). It means that the employer must
approach bargaining with a good faith intention to reach an agreement,
not just engage in ``surface bargaining'' or ``going through the
motions.'' Overnite Transp. Co., 938 F.2d at 821-22. If requested by
either party, the execution of a written contract incorporating any
agreement reached is part of good faith bargaining. However, neither
party is compelled to agree to a proposal or make concessions, and the
Department will not, either directly or indirectly, ``compel
concessions or otherwise sit in judgment upon the substantive terms of
collective bargaining agreements.'' Id. at 821 (quoting NLRB v. Am.
Nat'l Ins. Co., 343 U.S. 395, 404 (1952)) (construing 29 U.S.C.
158(d)).
The Department believes that disclosure and information about
employers can be a powerful tool for workers, and throughout this
proposed rule has sought to enhance transparency and increase workers'
access to important information about the job opportunity and workers'
rights. Therefore, knowing whether an employer has chosen to commit to
bargain in good faith over a labor neutrality agreement, or not, can
provide workers with important information about such employers. Under
proposed Sec. 655.135(m)(4)(ii), employers that choose not to bargain
over labor neutrality agreements must state that they are not willing
to do so and disclose their reasons for making that choice. Because
this information would be disclosed on the job orders, workers would be
able to use it to decide whether they want to work for certain
employers. In addition, worker advocacy groups and labor organizations
may be able to use this information to decide whether to engage with
certain employers or whether workers for such employers might need
additional assistance from key service providers.
The Department welcomes comments addressing any aspect of this
proposed regulatory provision. In particular, the Department seeks
comment on whether the organization with which an employer would
bargain should be limited other than by the general requirement to
bargain in good faith, such as by including only those labor
organizations that are subject to the Labor Management Reporting and
Disclosure Act, 29 U.S.C. 401 et seq. The Department also welcomes
comments regarding whether this proposed requirement will, as intended,
advance th