This article is posted with permission from NGFA’s September 15, 2023, Volume 75 Issue 33 newsletter.
The U.S. Department of Labor on September 12 proposed a new rule that would expand protections for farm workers in the H-2A program. The proposal, which builds on a final rule published in October 2022, would “add new protections for worker self-advocacy, better protect workers against retaliation, make foreign labor recruitment more transparent and enhance the department’s enforcement.”
The proposed rule protects workers from retaliation if they meet with labor representatives and clears pathways for labor unions to contact and interact with H-2A workers. It also would expand workers’ rights to invite labor organizations to employer-provided housing. The proposal would clarify conditions that must be met for an employer to terminate a worker “for cause.”
To address concerns about human trafficking, the proposed rule would require employers to provide a copy of all agreements with any agent or recruiter the employer engages in recruiting prospective H-2A workers to the department. In line with the Government Accountability Office and the department’s Office of Inspector General, the DOL said: “Increased transparency is necessary to help protect agricultural workers from predatory practices during the recruitment process.”
The proposed rule would make wages more predictable in the H-2A program by making new wage rates applicable immediately upon their publication in the Federal Register rather than weeks later. The proposal would further require enhanced transparency for employers to communicate minimum productivity standards, applicable wage rates, overtime opportunities and delayed start dates to workers.
The rule would also require farmers who employ H-2A workers to provide seat belts in vehicles that are used to transport workers. Transportation accidents are a leading cause of death for farm workers, according to the department.
DOL certified over 370,000 temporary H-2A jobs in FY 2022, more than seven times the number certified in 2005 and twice that of 2016, the agency said. DOL said in 420 investigations of employees utilizing the program last year, the department “assessed more than $3.6 million in back wages and more than $6.3 million in civil money penalties.”
Upon publication in the Federal Register, the notice of proposed rulemaking will be open for public comment for 60 days. The department will consider all comments received before publishing a final rule.
Learn More at CEC: A panel of experts will discuss the H-2A and other agricultural labor programs during the NGFA’s 52nd annual Country Elevator Conference and Trade Show (CEC) in Louisville, Ky., on Dec. 3-5. Kristi Boswell, counsel at Alston & Bird, is confirmed as a speaker on the panel.
For more information provided by DOL, visit www.dol.gov.