Farmworker pay, safety changes set

The U.S. Department of Labor has announced a rule change to the H-2A guestworker program intended to increase wages and provide job safety protections for both U.S. and foreign workers.

"This new rule will make it possible for all workers who are working hard on American soil to receive fair pay while at the same time expand opportunities for U.S. workers," said U.S. Secretary of Labor Hilda L. Solis. "The actions that we have taken through this rule making also will enable us to detect and remedy different forms of worker violations."

The rule change, announced Thursday, will force growers to make more of an effort to find domestic workers to fill temporary or seasonal jobs picking crops, as well as increase wages and provide more job-safety protections for the thousands of foreign farmworkers who are hired.

"The intent of the new rule is twofold," said Deanne Amaden, regional director of public affairs for the U.S. Department of Labor in San Francisco. "We want to protect the workers  who are coming over here legally while at the same time making sure willing domestic workers aren't being overlooked and aren't being given lower wages and fewer benefits."

The Labor Department will publish the new rule in the Feb. 12 edition of the Federal Register. The new rule is slated to go into effect on March 15.

The rule change will not only increase the average wage for  temporary farmworkers by up to a dollar, it also creates a national electronic job registry for employers to list their job openings in order to find workers from across the country.

It will also require state work-force agencies to inspect worker housing before employers can get the approval to hire foreign workers.

Something else the new rule will do is protect against worker abuses by prohibiting cost-shifting from the employer to the worker for recruitment fees, visa fees, border crossing fees and other U.S. government-mandated fees.

The rule change also extends H-2A program benefits to workers in “corresponding employment” (other workers employed by an H-2A employer in any work included in the job order and any work performed by the H-2A workers) to ensure that similarly employed U.S. workers are not provided with lower wages or fewer benefits.

Every year, employers around the country hire several thousands of workers through the H-2A guestworker program to perform temporary or seasonal agriculture work.

During fiscal year 2009, employers filed 8,150 labor certification applications requesting 103,955 H-2A workers for temporary agricultural work. The Department of Labor certified 94 percent of the applications submitted for a total of 86,014 workers.

Some other features of the final rule change:

• The employer must provide the Department of Labor with documentation that it has complied with the prerequisites for bringing H-2A workers into the country, including the requirements related to recruiting for qualified U.S. workers, instead of simply attesting to compliance.

• Requires employers to provide workers with copies of the job orders no later than before departure, including from the workers’ home countries and to display a poster describing employee rights and protections in English and another language common to the workers at the work site.

• Prohibits the use of multi-area itineraries by H-2A Labor Contractors, ending the practice of moving H-2A workers from site to site in multiple areas of employment under one labor certification. Labor contractors participating in this program will now have the same regulatory standards as fixed-site farmers. Required surety bond amounts for H-2ALCs have been increased.

• Reinstates the critical role of the State Workforce Agencies in assisting employers by using their expertise on local labor market conditions and recruitment patterns, thereby expanding job opportunities for U.S. workers.

• Strengthens revocation and debarment authorities by providing the Wage and Hour Division with independent debarment authority in addition to Employment and Training Administration, raises civil money penalties and expands audit authority to include housing.

• Continues to include logging as an H-2A occupation. The notice of proposed rulemaking proposed to add other forestry-related occupations such as tree planting and related reforestation activities as well as pine straw gathering, but this was not included in the final rule in response to concerns from both the industry and advocates about the costs and the workers’ potential loss of Migrant and Seasonal Agricultural Worker Protection Act protections, including a private right of action.

• Prohibits the approval of labor certification applications for worksites where workers are on strike or locked out and protects U.S. workers who are denied employment or laid off.

Amaden said the Labor Department's review is the result of the department's review of the regulations published in late 2008, but suspended in May 2009.