The Benefits and Risks of the H-2A Program

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1 The Benefits and Risks of the H-2A Program Brendan V. Monahan

2 H-2A Program in Jeopardy?

3 Make America s Grapes Again Trump Vineyard Estates LLC filed a request Dec. 2, 2016, with the Labor Department for six H-2A visas. Job is for pruning grapevines at $10.72 per hour for a 40-hour, six-day week. The jobs are anticipated to last from January to June. Trump also seeks to hire 513 workers at Mar-A-Lago estate under H-2B.

4 H-2A: Legislative History The term H-2A comes from the 1952 version of the Immigration and Nationality Act, 8 USC 1101, section (H)(ii)(a) The statutory provision, which has been on the books for over 60 years, allows for work visas to be issued to foreign workers to perform agricultural work in the United States to offset any documented seasonal labor shortages.

5 H-2A Usage The United States seasonal agricultural labor pool has by no means been consistent, but the H-2A guest worker program was only marginally utilized in Washington from Before 1986 employers were not required to certify lawful working status, and the amnesty provisions of the INA allowed many seasonal laborers to live and work in the US year-round.

6 H-2A Usage on West Coast WA OR CA , , , , , , , , ,072 * 6, , ,591

7 H-2A Usage Nationwide 2015 Florida 17,942 North Carolina 17,696 Georgia 14,393 Washington 11,844 California 8,591 Louisiana 7,787 Kentucky 6,722 New York 5,039 Arizona 3,763

8 H-2A Usage by Farm Acreage California: Washington: 25.5 million acres/ 8,591 guest workers 14.7 million acres/ 11,844 guest workers So California has 73% more farmland than Washington but uses about 27% less guest labor.

9 H-2A Usage by Ag Sector There are no clear statistics, but records appear to indicate that more than 90% of H-2A usage in Washington is by tree fruit farmers. Minor usage in hops, row crops, sheepherding, but overwhelming shortage and demand is in tree fruit Upticks in blueberry and vineyard operations

10 H-2A Benefit: Legal Workforce No pressure of I-9 scrutiny/audit No risk of ICE raid or investigation No RICO lawsuits Fewer conflicts regarding wage rates No mid-season labor loss due to voluntary disclosures/ssn notice

11 H-2A Benefit: Stable Workforce Clarity on size of available labor force Reduced risk of mid-season loss of labor due to competing wages Reduced risk of late-season loss of labor due to competing crops 6-7 day week core workforce for both hourly and piece rate work

12 H-2A Costs: Infrastructure and Logistics Housing Cooking Permitting/Inspections Visa/border crossing Transportation Wage Rules Recruiting Legal Exposure AEWR

13 H-2A Risks: Domestic Recruiting and Hiring Radio advertising Print advertising FLCA licensing State and Fed Interviewing Documenting Gate hires DOL hire/fire/quit reports Housing, food and transportation for domestic workers

14 H-2A Risks: Litigation and Governmental Enforcment DOL Audits Transportation liability/wage grey zone Legal Services Domestic Workers Hiring Opportunities Wages for similar work EEOC Human Trafficking Attorney General: Preferences on rehire

15 H-2A Top Five Risks: Number 1 FOREIGN RECRUITING The only way to locate and hire foreign guest workers is to recruit them in Mexico. Unless the recruiting is done by employees of the same legal entity who employs the guest workers you ll need to hire an outside recruiter

16 Foreign Recruiting - FLCA Anyone who recruits agricultural workers for you must have a Washington Farm Labor Contractor s License. RCW Failure to have a FLC license is a violation of statute and automatically results in $500/per worker fine for recruiter and employer. RCW

17 Foreign Recruiting - FLCA FLCA requires recruiter to provide at the time of recruiting a written statement on a form proscribed by the Director a description of: Compensation, including bonus Transportation and housing Length of season and types of crops FLC bond information, etc. RCW (7).

18 Foreign Recruiting - FLCA Absence of license and failure to provide written disclosures in Mexico at time of recruitment will result in mandatory $1,000 penalty per worker, plus $500 per worker/violation for any claims of misrepresentation or failure to pay/record wages in strict compliance with law/contract.. PLUS Plaintiffs attorney fees

19 H-2A Top Five Risks: Number 2 DOMESTIC RECRUITING The H-2A program is designed to allow employers to pursue foreign laborers only when it has been demonstrated that there are insufficient domestic laborers to perform the specifically defined work in geographically defined areas. Advocates for agricultural workers who live and work in the United States have been openly opposed to the growth of the H-2A and have come up with increasingly creative ways to sue employers for allegedly depriving local workers of the opportunities offered to H-2A workers.

20 H-2A Top Five Risks: Number 2 20 CFR The employer s job offer must offer to US workers no less than the same benefits, wages and working conditions that the employer is offering, intends to offer, or will provide to H-2A workers

21 H-2A Top Five Risks: Number 2 Duties Offer terms to prior year workers and engage in positive recruitment equivalent to practices to secure non-h-2a workers. 29 CFR Sample Cases ACL Farms. Alleged termination of domestic workers and failure to advise of H-2A Contract. Mercer Canyons: Alleged failure to offer terms to prior workers, current workers, or gate hires Global Horizons: Jury found failure to offer work to domestic workers; different work standards and termination of domestic workers; wage issues

22 H-2A Top Five Risks: Number 3 WAGES, DUTIES AND DEDUCTIONS Ensure all domestic workers making same wage as H-2A workers in same geographic region Ensure H-2A workers only perform those Ag jobs specified in Order Ensure no deductions other than those specifically allowed Front all expenses to avoid FLSA Claim Pay wages ONLY as provided in Clearance Order Have clear and meticulous understanding of whether/when domestic or foreign workers must be paid for travel time.

23 H-2A Top Five Risks: Number 4 Monterrey to Mattawa and After Hours L&I covers your employees for any injuries they sustain in the course of employment. It is unclear and untested how broadly that phrase will be construed.

24 H-2A Top Five Risks: Number 4 Worker injured en route from Mexico to work location. Unclear (but unlikely) covered by L&I. But under Mexican law recruiter responsible for medical care, and failure to pay may impact visa process Worker injured in housing provided by employer. Whether covered by L&I unclear (may depend on whether cooking devices involved). If not covered by L&I then general liability/negligence rules apply.

25 H-2A Top Five Risks: Number 5 WHITE GLOVE TREATMENT BY DOL & AG DOL has increased its audits on all ag employers, but the process is significantly more invasive for H-2A employers. Be prepared to demonstrate with documentation that you ve tracked all hours worked (even for piece rates!). That all rest and lunch breaks were taken, that FLCA licenses were displayed, that trucks and housing permitted and licensed. AWPA Notice Prominently Displayed

26 H-2A Top Five Risks: Number 5 The Washington Attorney General has taken a deep interest in agricultural issues of late. Each AG proclamation has come out consistently on the side of labor advocates, and consistently opposed to the views of the employer/grower base. Recent AG inquiries have examined precisely why any given foreign H-2A worker was not invited back in a subsequent year, and in the absence of documentation it has been alleged that the failure to re-invite a particular worker may be retaliatory.

27 Practice Pointers 1. Only recruit through licensed FLC. 2. Make sure written contract with FLC delineates duties, allocates risk, provides indemnification, and guarantees compliance with H2-A regs AND FLCA requirements. Review yearly.

28 Practice Pointers 3. Expressly and in writing forbid the collection from worker of ANY payment. Spot-audit employees upon arrival. Investigate and take immediate action upon report of kickback/bribe/fee 4. Consider insurance to cover potential exposure from Mexico to place of work; require insurance from Mexico recruiters

29 Practice Pointers 5. Double check your insurance to cover ALL liability at housing facilities. 6. Pay all costs associated with travel and subsistence up front. Do not wait until contract is 50% complete. If you seek to recover travel and subsistence expense from workers who don t complete 50% make sure it s addressed in clearance order.

30 Practice Pointers 7. Meticulous compliance with domestic recruitment requirements, including prior workers and positive recruitment steps. 8. Consult with your counsel as to geographic region and categories of employees who must be offered terms of employment described in the Clearance Order.

31 Practice Pointers 9. Make sure supervisory employees are crystal clear about HOW and WHERE domestic workers apply, and to WHOM terms will be offered. 10. Make sure your staff is trained to provide Clearance Order to ALL domestic applicants through from completion of positive recruitment and through 50% of contract. 11. Document all contact with domestic workers!

32 Practice Pointers 12. Consult with counsel to develop plan for inviting (or not inviting) individual H-2A workers to work in the first place, or to return. Make sure safeguards are in place to prevent bribery or unlawful favoritism; make sure decision to expressly not invite worker back ( blackballed, as the plaintiff s lawyers will say) is supported by documentation and applicable policies.

33 Questions?