How to Employ Legal Temporary Labor Participation in the H-2A Temporary Agricultural Program 1-877-422-3392 www.fewaglobal.org 1
1-877-422-3392 www.fewaglobal.org Jarrod Sharp is the General Counsel at FEWA. He is responsible for advising the Association and its staff in legal matters as well as staying current on legislative and regulatory issues that could impact FEWA members. He has been involved in presenting various educational programs including webinars, conference speaking engagements, written articles, etc. Jarrod graduated cum laude with a Doctor of Jurisprudence from the University of Houston Law Center in 2010. He graduated summa cum laude with a Bachelor of Business Administration from the University of Houston in 2005. He has been a member of numerous honor societies and volunteer organizations. Arnulfo Hinojosa is the Vice President for the Federation of Employers and Workers of America. Mr. Hinojosa has been approved by the US Department of Justice Board of Immigration Appeals (BIA) as an Accredited Representative for FEWA Foundation. This designation takes into consideration his experience and knowledge of immigration law and procedure, and it authorizes him to practice before the Department of Homeland Security. Mr. Hinojosa is bilingual (English/Spanish) and his Hispanic heritage and culture gives him a unique insight to the Hispanic work force in today's America. 2
Disclaimer The materials in this presentation are general in nature and are for informational purposes only; they are not offered for and do not constitute specific legal advice. Nothing provided within this presentation should be used as a substitute for the advice of your own independent counsel. 3
What is the H-2A Program? The H-2A Program is authorized under the Immigration and Nationality Act (INA) and allows a U.S. employer to hire foreign workers on a temporary basis to perform agricultural work when there are not sufficient U.S. workers available. 1 1 USDOL Employer Guide to Participation in the H-2A Temporary Agricultural Program 4
Basic Criteria for Participation The U.S. employer must have full-time work that needs to be performed on a temporary seasonal basis. 1 Employer must have a physical place of business in the U.S., have a FEIN, and ability to hire, pay, fire, supervise, or otherwise control the work of the workers employed; 1 The work must consist of agricultural labor or services, such as planting, raising, cultivating, harvesting, or production of any agricultural or horticultural commodity; 1 The work must be full-time (at least 35 hours/week); and 1 The need for the work must be seasonal or temporary in nature and tied to a certain time of the year by recurring events or patterns, such as an annual growing cycle, normally lasting 10 months or less. 1 Qualifications do not substantially deviate from the normal and accepted qualifications required by non-h2a employers in the same or comparable occupations and crops. 4 1 USDOL Employer Guide to Participation in the H-2A Temporary Agricultural Program 4 ETA Form 9142-Appendix A 5
What Agencies are Involved? State Workforce Agency (SWA) assists with the processing of the agricultural job order and with U.S. worker recruitment. 1 The U.S. Department of Labor (USDOL) must issue a certification indicating that qualified U.S. workers are not available for the job and the employment of temporary foreign workers will not adversely affect the wages and working conditions of U.S. workers similarly employed. 1 The U.S. Citizenship and Immigration Services (USCIS) must then approve a visa petition. 1 The U.S. Department of State (DOS) through U.S. Consulates abroad screens individual workers and issues visas for applicable workers. The USDOL Wage and Hour Division (WHD) enforces the terms and conditions of the worker protections under the H-2A program. 1 1 USDOL Employer Guide to Participation in the H-2A Temporary Agricultural Program 6
Basic Process Elements (not in chronological order) Agricultural job order request must be filed with the SWA no more than 75 calendar days and no less than 60 calendar days before the date of need. 1 Employer application packages submitted to USDOL (at least 45 calendar days before date of need 1 ), USCIS, and individual workers processing at consular locations will have their own applications to submit. Recruitment of U.S. Workers: Job order, newspaper advertisements, and reporting to the USDOL on the results of recruitment. 1 1 USDOL Employer Guide to Participation in the H-2A Temporary Agricultural Program 7
Basic Process Elements Continued 8
Concepts, Obligations, Assurances, & Enforcement 9
Corresponding Employment The Department of Labor s regulations governing the H-2A Program also apply to the employment of U.S. workers by an employer of H-2A workers in any work included in the approved job order or in any agricultural work performed by the H- 2A workers during the period of the job order. 2 2 WHD Fact Sheet #26: Section H-2A of the Immigration and Nationality Act (INA) 10
Offer of Employment to U.S. Workers Preferential Treatment Prohibited: Must offer U.S. workers terms and working conditions which are not less favorable than those offered to H-2A workers 3 May not impose any restrictions or obligations on U.S. workers that will not also be imposed on H-2A workers 3 Positive Recruitment: Independently conduct DOLspecified recruitment activities and cooperate with the SWA by accepting referrals of eligible U.S. workers 3 50% Rule: Provide employment to any qualified, eligible U.S. worker who applies for the job opportunity until 50% of the period of the work contract has elapsed 3 3 WHD Agricultural Enforcement: H-2A Presentation, March 2010 11
Layoff and Displacement of U.S. Workers No layoffs within 60 days of the date of need, except for lawful, job-related reasons 3 If such a layoff has occurred, the employer must first offer the job opportunity to those laid-off U.S. workers before hiring any H-2A workers. 3 Employers may only reject eligible U.S. workers for lawful, job-related reasons. 4 Applies to any similarly employed U.S. worker in the occupation that is the subject of the Application in the area of intended employment 3 During the contract period, permissible only if all H-2A workers are laid off before any U.S. worker in corresponding employment 3 3 WHD Agricultural Enforcement: H-2A Presentation, March 2010 4 ETA Form 9142-Appendix A 12
Payment of Required Wages Highest of the following applicable rates in effect at the time work is performed: 3 Adverse Effect Wage Rate (AEWR) Prevailing wage Agreed-upon collective bargaining rate Federal or State minimum wage Wages may be calculated based on an hourly rate of pay or on a piece rate basis (as specified in the employer s application). 3 Per pay period, piece rates must average no less than the highest required hourly wage rate. 2 3 WHD Agricultural Enforcement: H-2A Presentation, March 2010 2 WHD Fact Sheet #26: Section H-2A of the Immigration and Nationality Act (INA) 13
¾ Guarantee Guarantee to offer the worker employment for a total number of hours equal to at least ¾ of the workdays in the contract period 3 Begins on the first workday after the worker arrives at the place of employment (or the contractual first date of need, whichever is later) and ends on the date the contract expires 3 Each workday must consist of a full number of hours of work time as specified in the job order 3 Failure to meet this provision would require the employer to supplement the worker s pay to meet the ¾ guarantee 3 Does not apply to H-2A workers displaced due to referrals of U.S. workers after the employer s date of need 3 Employers must maintain accurate records of hours offered and hours actually worked 3 3 WHD Agricultural Enforcement: H-2A Presentation, March 2010 14
¾ Guarantee Example If a contract is for a 10-week period, during which a normal workweek is specified as 6 days a week, 8 hours per day, the worker would need to be guaranteed employment for at least 360 hours (e.g., 10 weeks x 48 hours/week = 480 hours x 75% = 360). 2 2 WHD Fact Sheet #26: Section H-2A of the Immigration and Nationality Act (INA) 15
Transportation Inbound: Provide or pay for transportation and daily meals to the place of employment or reimburse workers once 50% of the work contract period has elapsed 3 Note: FLSA requirement for Federal Minimum Wage and reimbursement in first work week where wages fall below FLSA minimum wage 3 2 Outbound: Provide or pay for return transportation and daily meals upon completion of the work contract period 3 Daily: Provide to/from worksite and employerprovided housing at no cost 2 Must comply with all applicable laws and regulations, be properly insured, and be operated by licensed drivers 3 3 WHD Agricultural Enforcement: H-2A Presentation, March 2010 2 WHD Fact Sheet #26: Section H-2A of the Immigration and Nationality Act (INA) 16
Housing Provided at no cost to H-2A workers and those workers in corresponding employment who are not reasonably able to return to their residence within the same day 3 Inspected and approved by SWA prior to occupancy 3 Maintained during occupancy to meet the appropriate OSHA or ETA standards 3 Failure to provide compliant housing may result in revocation of an existing labor certification 3 Rental/Public Accommodations Must meet local standards 3 Housing-related charges must be paid directly by the employer to the housing s management 3 If certified housing becomes unavailable, substitute housing must still be in compliance with the applicable housing standards 3 3 WHD Agricultural Enforcement: H-2A Presentation, March 2010 17
Meals Provide three meals per day to each worker at no more than a DOL-specified cost 3 OR Furnish free and convenient cooking and kitchen facilities where workers can prepare their own meals 3 3 WHD Agricultural Enforcement: H-2A Presentation, March 2010 18
Other Contractual Obligations Disclosure Provide a copy of the work contract to each worker 3 No later than the time at which the H-2A worker applies for the visa 3 No later than on the first day of work for workers in corresponding employment 3 Must be in a language understood by the worker 3 3 WHD Agricultural Enforcement: H-2A Presentation, March 2010 19
Other Contractual Obligations Deductions Specify in the work contract all deductions which are not required by law which will be made (undisclosed=impermissible) 3 The amount of any deduction must be reasonable (not include profit to employer, etc.) 3 Certain deductions are specifically prohibited: Employer s attorney fees, application fees, and recruitment costs, tools, supplies, and equipment required, housing, daily transportation to/from fields and employer-provided housing 3 3 WHD Agricultural Enforcement: H-2A Presentation, March 2010 20
Other Contractual Obligations Notification Notify DOL (and DHS in the case of an H-2A worker) within two (2) working days regarding voluntary abandonment of employment or termination for cause 3 Abandonment: Failure to report for work for five (5) consecutive working days without the consent of the employer 3 Employers who provide timely notice are not obligated to meet the ¾ guarantee or provide return transportation for such workers 3 Employer must inform H-2A workers of the requirement that they leave the U.S. at the end of the certification period or separation from the employer (whichever is earlier) 4 3 WHD Agricultural Enforcement: H-2A Presentation, March 2010 4 ETA Form 9142-Appendix A 21
Other Contractual Obligations Notice of Worker Rights Poster may be obtained from the DOL 3 Must be posted in English and in another language, as necessary, and posted in a location where employees can readily see it 3 Miscellaneous Provide state workers compensation insurance or its equivalent at no cost to the worker 3 Furnish an hours and earnings statement to each worker each payday (which must be at least twice monthly) 3 Provide all tools, supplies, and equipment required to perform the assigned duties at no cost to the worker 3 3 WHD Agricultural Enforcement: H-2A Presentation, March 2010 22
Other Obligations Employer and its agents have not sought or received payment from the H-2A worker for any activity related to obtaining labor certification 4 Employer will contractually forbid any foreign labor contractor/recruiter engaged in international recruitment of H-2A workers to seek payments from employees. 4 Employer has not and will not intimidate, threaten, restrain, coerce, blacklist, or in any manner discriminate against (and will not cause any other person to do so) a person who has with just cause filed a complaint, instituted a proceeding, testified, consulted with an attorney, etc.. 4 4 ETA Form 9142-Appendix A 23
Document Retention All Records and documents supporting the H-2A application must be retained for a period of 3 years from the date the USDOL granted or denied certification. 1 1 USDOL Employer Guide to Participation in the H-2A Temporary Agricultural Program 24
H-2A WHD Enforcement Authority Conduct investigations, and when appropriate: 3 Impose penalties Debar from future certification Recommend revocation of existing certification Seek injunctive relief and specific performance of contractual obligations 3 WHD Agricultural Enforcement: H-2A Presentation, March 2010 25
Citations 1. Office of Foreign Labor Certification, Employment and Training Administration, U.S. Department of Labor, Employer Guide to Participation in the H-2A Temporary Agricultural Program (2012), https://www.foreignlaborcert.doleta.gov/pdf/h- 2A_Employer_Handbook.pdf 2. Wage and Hour Division, U.S. Department of Labor, Fact Sheet #26: Section H-2A of the Immigration and Nationality Act(INA) (2010), https://www.dol.gov/whd/regs/compliance/whdfs26.pdf 3. Wage and Hour Division, U.S. Department of Labor, Agricultural Enforcement: H-2A, https://www.foreignlaborcert.doleta.gov/pdf/whd_2010_h2a_final_rule_public_r ollout.ppt (last visited April 7, 2017). 4. Office of Foreign Labor Certification, Employment and Training Administration, U.S. Department of Labor, H-2A Application for Temporary Employment Certification: Form ETA-9142A-Appendix A, https://www.foreignlaborcert.doleta.gov/pdf/eta_form_9142a_appendix_a.pdf (last visited April 7, 2017). 26
Questions Jarrod Sharp, General Counsel 979-245-7577 ext. 100 jsharp@fewaglobal.org Arnulfo Hinojosa, Vice President 979-245-7577 ext. 101 ahinojosa@fewaglobal.org 1-877-422-3392 www.fewaglobal.org 27