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DOL issues rule change for workers on farms

published in McAfee & Taft AgLINC Ag Industry Alert | March 1, 2010

By Nathan Whatley

On February 12, 2010, the U.S. Department of Labor (DOL) issued a final rule changing the regulations governing the labor certification process for the temporary agricultural employment of H-2A aliens. The revised regulations, which go into effect on March 15, 2010, are, in large part, designed to reverse changes made to the H-2A program by the outgoing administration of George W. Bush.

The H-2A program is designed to help provide a more reliable workforce for American agriculture. The program applies to agricultural jobs that are “temporary or seasonal in nature,” which is defined as employment performed at certain seasons of the year, usually in relation to the production and/or harvesting of a crop, or for less than one year when an employer can show that the need for the foreign worker is truly temporary. Through this program, domestic employers receive approval from the DOL to hire seasonal guest workers. In 2007, approximately 51,000 seasonal guest visas were approved under this program.

The new regulations are designed to increase protections for workers. Some of the most important changes made by the new regulations include: a new wage formula that will require that workers be paid $1.00/hour more; an obligation to pay for the transportation from the workers’ homes; a requirement that an employer open the housing locations for H-2A workers to ensure that the locations meet OSHA standards and are safe and healthy; a prohibition on certain deductions from worker’s wages; a required disclosure of job terms in a language the worker understands, including the identity of the grower and the period of work; requirement that the employer provide meals and/or cooking facilities to workers; strengthened requirements for posting a surety bond; tougher labor certification requirements and advertising requirements.

The new regulations significantly impact how the H-2A regulations apply to agricultural businesses. Employers should take steps to ensure they are in compliance with the H-2A program.

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