Improving Protections for Workers in Temporary Agricultural Employment in the United States
| Published date | 15 September 2023 |
| Citation | 88 FR 63750 |
| Pages | 63750-63832 |
| FR Document | 2023-19852 |
| Section | Proposed rules |
| Issuer | Labor Department,Employment and Training Administration,Wage and Hour Division |
Federal Register, Volume 88 Issue 178 (Friday, September 15, 2023)
[Federal Register Volume 88, Number 178 (Friday, September 15, 2023)]
[Proposed Rules]
[Pages 63750-63832]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-19852]
[[Page 63749]]
Vol. 88
Friday,
No. 178
September 15, 2023
Part III Department of Labor-----------------------------------------------------------------------Employment and Training AdministrationWage and Hour Division-----------------------------------------------------------------------20 CFR Parts 651, 653, 655, et al.
29 CFR Part 501Improving Protections for Workers in Temporary Agricultural Employment
in the United States; Proposed Rule
Federal Register / Vol. 88 , No. 178 / Friday, September 15, 2023 /
Proposed Rules
[[Page 63750]]
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DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Parts 651, 653, 655, and 658
Wage and Hour Division
29 CFR Part 501
[DOL Docket No. ETA-2023-0003]
RIN 1205-AC12
Improving Protections for Workers in Temporary Agricultural
Employment in the United States
AGENCY: Employment and Training Administration and Wage and Hour
Division, Department of Labor.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Department of Labor (Department or DOL) proposes to amend
its regulations governing the certification of temporary employment of
nonimmigrant workers employed in temporary or seasonal agricultural
employment and the enforcement of the contractual obligations
applicable to employers of these nonimmigrant workers. The revisions
proposed in this notice of proposed rulemaking (NPRM or proposed rule)
focus on strengthening protections for temporary agricultural workers
and enhancing the Department's capabilities to monitor program
compliance and take necessary enforcement actions against program
violators.
DATES: Interested persons are invited to submit written comments on the
proposed rule on or before November 14, 2023.
ADDRESSES: You may submit comments electronically by the following
method:
Federal eRulemaking Portal: https://www.regulations.gov. Follow the
instructions on the website for submitting comments.
Instructions: Include the agency's name and docket number ETA-2023-
0003 in your comments. All comments received will become a matter of
public record and will be posted without change to https://www.regulations.gov. Please do not include any personally identifiable
or confidential business information you do not want publicly
disclosed.
FOR FURTHER INFORMATION CONTACT: For further information regarding 20
CFR parts 651, 653, and 658, contact Kimberly Vitelli, Administrator,
Office of Workforce Investment, Employment and Training Administration,
Department of Labor, Room C-4526, 200 Constitution Avenue NW,
Washington, DC 20210, telephone: (202) 693-3980 (this is not a toll-
free number). For further information regarding 20 CFR part 655,
contact Brian Pasternak, Administrator, Office of Foreign Labor
Certification, Employment and Training Administration, Department of
Labor, 200 Constitution Avenue NW, Room N-5311, Washington, DC 20210,
telephone: (202) 693-8200 (this is not a toll-free number). For further
information regarding 29 CFR part 501, contact Amy DeBisschop, Director
of the Division of Regulations, Legislation, and Interpretation, Wage
and Hour Division, Department of Labor, Room S-3502, 200 Constitution
Avenue NW, Washington, DC 20210, telephone: (202) 693-0406 (this is not
a toll-free number). Individuals with hearing or speech impairments may
access the telephone number above via TTY by calling the toll-free
Federal Information Relay Service at 1-800-877-5627.
SUPPLEMENTARY INFORMATION:
Preamble Table of Contents
I. Acronyms and Abbreviations
II. Background and Overview
A. Legal Authority
B. Current Regulatory Framework
C. Need for Rulemaking
D. Summary of Major Provisions of This Proposed Rule
III. Discussion of Proposed Revisions to Employment Service
Regulations
A. Introduction
B. Discussion of Proposed Revisions to 20 CFR Part 651
C. Discussion of Proposed Revisions to 20 CFR Part 653
D. Discussion of Proposed Revisions to 20 CFR Part 658, Subpart
F
IV. Discussion of Proposed Revisions to 20 CFR Part 655, Subpart B
A. Introductory Sections
B. Prefiling Procedures
C. Application for Temporary Employment Certification Filing
Procedures
D. Labor Certification Determinations
E. Post-Certification
F. Integrity Measures
V. Discussion of Proposed Revisions to 29 CFR Part 501
A. Section 501.3 Definitions
B. Section 501.4 Discrimination Prohibited
C. Section 501.10 Severability
D. Sections 501.20, 501.33, 501.42 Debarment and Revocation
E. Section 501.33 Request for Hearing
VI. Administrative Information
A. Executive Order 12866: Regulatory Planning and Review;
Executive Order 14094: Modernizing Regulatory Review; and Executive
Order 13563: Improving Regulation and Regulatory Review
B. Regulatory Flexibility Analysis and Small Business Regulatory
Enforcement Fairness Act and Executive Order 13272: Proper
Consideration of Small Entities in Agency Rulemaking
C. Paperwork Reduction Act
D. Unfunded Mandates Reform Act of 1995
E. Executive Order 13132 (Federalism)
F. Executive Order 13175 (Consultation and Coordination With
Indian Tribal Governments)
I. Acronyms and Abbreviations
AEWR Adverse effect wage rate
AIE Area(s) of intended employment
ALJ Administrative Law Judge
AOWL Agricultural Online Wage Library
ARB Administrative Review Board
ARIMA Autoregressive integrated moving average
BALCA Board of Alien Labor Certification Appeals
BLS Bureau of Labor Statistics
CBA Collective bargaining agreement
CDC Centers for Disease Control and Prevention
CFR Code of Federal Regulations
CO Certifying Officer
CY Calendar year
DBA Doing Business As
DHS Department of Homeland Security
DOJ Department of Justice
DOL Department of Labor
DOT Department of Transportation
EEOC Equal Employment Opportunity Commission
E.O. Executive Order
ES Employment Service
ES system Employment Service system
ETA Employment and Training Administration
FEIN Federal Employer Identification Number
FLS Farm Labor Survey
FLSA Fair Labor Standards Act
FR Federal Register
FY Fiscal year
GAO Government Accountability Office
GHSA Governors Highway Safety Association
GVWR Gross vehicle weight rating
H-2ALC H-2A labor contractor
HR Human resources
ICR Information Collection Request
INA Immigration and Nationality Act
IRCA Immigration Reform and Control Act of 1986
MSFW Migrant or seasonal farmworker
MSPA Migrant and Seasonal Agricultural Worker Protection Act
NAICS North American Industry Classification System
NGO Nongovernmental organization
NHTSA National Highway Traffic Safety Administration
NLRA National Labor Relations Act
NLRB National Labor Relations Board
NMA National Monitor Advocate
NOD Notice of Deficiency
NPC National Processing Center
NPRM Notice of proposed rulemaking
OALJ Office of Administrative Law Judges
OEWS Occupational Employment and Wage Statistics
OFLC Office of Foreign Labor Certification
OIG Office of Inspector General
OIRA Office of Information and Regulatory Affairs
OMB Office of Management and Budget
OSHA Occupational Safety and Health Administration
PRA Paperwork Reduction Act
[[Page 63751]]
Pub.L. Public Law
PY Program year
RFA Regulatory Flexibility Act
RIN Regulation Identifier Number
SBA Small Business Administration
Sec. Section of a Public Law
Secretary Secretary of Labor
SOC Standard Occupational Classification
Stat. U.S. Statutes at Large
SWA State workforce agency
TVPA Victims of Trafficking and Violence Protection Act of 2000
UMRA Unfunded Mandates Reform Act of 1995
U.S. United States
U.S.C. United States Code
USDA U.S. Department of Agriculture
VSL Value of a statistical life
WHD Wage and Hour Division
II. Background and Overview
A. Legal Authority
The Immigration and Nationality Act (INA), as amended by the
Immigration Reform and Control Act of 1986 (IRCA), establishes an ``H-
2A'' nonimmigrant visa classification for a worker ``having a residence
in a foreign country which he has no intention of abandoning who is
coming temporarily to the United States to perform agricultural labor
or services . . . of a temporary or seasonal nature.'' 8 U.S.C.
1101(a)(15)(H)(ii)(a); see also 8 U.S.C. 1184(c)(1) and 1188.\1\
Permanent, year-round job opportunities cannot be classified as
temporary or seasonal. 2022 H-2A Final Rule, 87 FR 61660, 61684 (Oct.
12, 2022); see also 8 U.S.C. 1101(a)(15)(H)(ii)(a) (the INA permits
only ``agricultural labor or services . . . of a temporary or seasonal
nature'' to be performed under the H-2A visa category).
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\1\ For ease of reference, sections of the INA are referred to
by their corresponding section in the United States Code.
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The H-2A nonimmigrant worker visa program enables U.S. agricultural
employers to employ foreign workers on a temporary basis to perform
temporary or seasonal agricultural labor or services only where the
Secretary of Labor (Secretary) certifies that (1) there are not
sufficient workers who are able, willing, and qualified, and who will
be available at the time and place needed, to perform the labor or
services involved in the petition, and (2) the employment of the
foreign worker in such labor or services will not adversely affect the
wages and working conditions of workers in the United States similarly
employed. 8 U.S.C. 1188(a)(1).\2\ The INA prohibits the Secretary from
issuing this certification--known as a ``temporary agricultural labor
certification''--unless both of the above-referenced conditions are
met. The INA further prohibits the Secretary from issuing a temporary
agricultural labor certification if any of the conditions in 8 U.S.C.
1188(b) apply concerning strikes or lock-outs, labor certification
program debarments, workers' compensation assurances, and positive
recruitment.
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\2\ Following certification by DOL, the employer must file an H-
2A petition (defined at 20 CFR 655.103(b) as the U.S. Citizenship
and Immigration Services (USCIS) Form I-129, Petition for a
Nonimmigrant Worker, with H Supplement or successor form and/or
supplement, and accompanying documentation required by DHS for
employers seeking to employ foreign persons as H-2A nonimmigrant
workers) with USCIS, requesting one or more workers not to exceed
the total listed on the temporary labor certification. Generally,
USCIS must approve this petition before the worker(s) can be
considered eligible for an H-2A visa or for H-2A nonimmigrant
status.
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The Secretary has delegated the authority to issue temporary
agricultural labor certifications to the Assistant Secretary for
Employment and Training, who in turn has delegated that authority to
the Employment and Training Administration's (ETA) Office of Foreign
Labor Certification (OFLC). See Secretary's Order 06-2010 (Oct. 20,
2010), 75 FR 66268 (Oct. 27, 2010). In addition, the Secretary has
delegated to WHD the responsibility under 8 U.S.C. 1188(g)(2) to assure
employer compliance with the terms and conditions of employment under
the H-2A program. See Secretary's Order 01-2014 (Dec. 19, 2014), 79 FR
77527 (Dec. 24, 2014). Pursuant to the INA and implementing regulations
promulgated by DOL and the Department of Homeland Security (DHS), DOL
evaluates an employer's need for agricultural labor or services to
determine whether it is seasonal or temporary during the review of an
H-2A Application. 20 CFR 655.161(a); 8 CFR 214.2(h)(5)(i)(A) and
(h)(5)(iv).
B. Current Regulatory Framework
Since 1987, the Department has operated the H-2A temporary labor
certification program under regulations promulgated pursuant to the
INA. The standards and procedures applicable to the certification and
employment of workers under the H-2A program are found in 20 CFR part
655, subpart B, and 29 CFR part 501. The majority of the Department's
current regulations governing the H-2A program were published in 2010
and many were strengthened in a final rule the Department published in
October 2022.\3\ The Department incorporated the provisions for
employment of workers in the herding and production of livestock on the
range into the H-2A regulations, with modifications, in 2015.\4\ The
provisions governing the employment of workers in the herding and
production of livestock on the range are codified at 20 CFR 655.200
through 655.235.\5\
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\3\ Final Rule, Temporary Agricultural Employment of H-2A Aliens
in the United States, 75 FR 6884 (Feb. 12, 2010) (2010 H-2A Final
Rule); Final Rule, Temporary Agricultural Employment of H-2A
Nonimmigrants in the United States, 87 FR 61660 (Oct. 12, 2022)
(2022 H-2A Final Rule).
\4\ Final Rule, Temporary Agricultural Employment of H-2A
Foreign Workers in the Herding or Production of Livestock on the
Range in the United States, 80 FR 62958 (Oct. 16, 2015) (2015 H-2A
Herder Final Rule).
\5\ Consistent with a court-approved settlement agreement in
Hispanic Affairs Project, et al. v. Scalia et al., No. 15-cv-1562
(D.D.C.), the Department recently rescinded 20 CFR 655.215(b)(2).
Final Rule, Adjudication of Temporary and Seasonal Need for Herding
and Production of Livestock on the Range Applications Under the H-2A
Program, 86 FR 71373 (Dec. 16, 2021).
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The Department protects against adverse effect on the wages of
workers in the United States similarly employed, in part, by requiring
at Sec. 655.120(a) that an employer offer, advertise in its
recruitment, and pay a wage that is the highest of the adverse effect
wage rate (AEWR), the prevailing wage, the agreed-upon collective
bargaining wage, the Federal minimum wage, or the State minimum wage.
If an updated AEWR for the occupational classification and geographic
area is published during the work contract and becomes the highest
applicable wage rate, the employer must pay at least the updated AEWR
upon the effective date of the updated AEWR, as published in the
Federal Register. Section 655.120(b)(3). In accordance with Sec.
655.120(b)(2) and (3), the Department publishes the updated AEWR at
least once annually in the Federal Register. One Federal Register
notice provides annual adjustments to the AEWRs for the field and
livestock workers (combined) occupational grouping based on the U.S.
Department of Agriculture's (USDA) publication of the Farm Labor
Reports (better known as the Farm Labor Survey, or FLS), effective on
or about January 1, and a second Federal Register notice will provide
annual adjustments to the AEWRs for all other non-range occupations
based on the Department's Bureau of Labor Statistics' (BLS) publication
of the Occupational Employment and Wage Statistics (OEWS) survey,
effective on or about July 1.\6\ Each notice specifies the effective
date of the new AEWRs, which, in recent notices, has been not
[[Page 63752]]
more than 14 calendar days after publication.
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\6\ 2022 H-2A Final Rule; Final Rule, Adverse Effect Wage Rate
Methodology for the Temporary Employment of H-2A Nonimmigrants in
Non-Range Occupations in the United States, 88 FR 12760 (Feb. 28,
2023) (2023 AEWR Final Rule).
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OFLC currently requires disclosure of information about the
identity of employers, agents, and attorneys, the places where work
will be performed, and the employer's use of a foreign labor recruiter
through the provision of agreements with recruiters when requested by
the certifying officer (CO), which is necessary for the Department to
assess the nature of the employer's job opportunity, monitor program
compliance, and protect program integrity. See Sec. 655.135(k); Form
ETA-9142A; Form ETA-790A; Form ETA-790A, Addendum B. For example,
employers must identify in the H-2A Application and job order all
places of employment, provide the Department a copy of agreements with
foreign labor recruiters that expressly prohibit unlawful fees (upon
request by the CO), and provide identifying information like the
Federal Employer Identification Number (FEIN) and Doing Business As
(DBA) name on the Form ETA-9142A, Form ETA-790A, and Form ETA-790A,
Addendum B. OFLC may provide any information received while processing
H-2A applications, or in the course of conducting program integrity
measures to WHD and to any other Federal agency with authority to
enforce compliance with program requirements and combat fraud and
abuse. Section 655.130(f); 29 CFR 501.2 (providing that WHD and OFLC
may share information with each other and with other agencies as
appropriate for investigative or enforcement purposes). For example,
the Department may refer certain discrimination complaints to the
Department of Justice (DOJ) Civil Rights Division, Immigrant and
Employee Rights Section, under Sec. 655.185, or refer information
related to debarred employers or to employers' fraudulent or willful
misrepresentations to DHS under Sec. Sec. 655.182 and 655.184.
Under Sec. 655.145, an employer may request to amend its
application to increase the number of workers or to make minor changes
to the period of employment. In addition, an employer may request
modifications to its job order under Sec. 655.121(e)(2) before
submitting its H-2A Application. Current Sec. 655.145(b) permits the
employer to submit a request to the CO to delay the start date of need
when the delay is due to unforeseen circumstances and the employer's
crops or commodities will be in jeopardy prior to expiration of an
additional recruitment period. The employer's request to the CO must
explain the circumstances necessitating the request and the employer
must include with the request a written assurance that all workers who
are already traveling to the place of employment will be provided
housing and subsistence, without cost to the workers, until work
commences. The regulations do not permit amendments to an application
after the CO issues a Final Determination. An employer that experiences
changed circumstances after certification is required to submit a new
and substantially similar application and job order.
The regulations implementing the Wagner-Peyser Act establish the
Agricultural Recruitment System (ARS), through which employers can
recruit U.S. workers for agricultural employment opportunities, and
which prospective H-2A employers must use to recruit U.S. workers as a
condition of receiving a temporary labor certification. Among other
things, these regulations require employers to provide notice of
delayed start dates and provide protections for workers in cases where
the employer's start date is delayed. The ARS uses the term
``anticipated'' in relation to start dates and provides a process close
to the start date the employer identified in the job order through
which the employer, the State workforce agency (SWA), and referred
farmworkers communicate regarding the actual start date of work. See
Sec. 653.501(c)(1)(iv)(D), (c)(3)(i) and (iv), (c)(5), and (d)(4).
These regulations currently require an employer to notify the SWA of
start date changes at least 10 business days before the originally
anticipated start date and require the SWA to notify farmworkers that
they should contact the SWA between 9 and 5 business days before the
anticipated start date to verify the actual start date of work. Section
653.501(c)(5) and (d)(4). If an employer fails to timely notify the SWA
of a start date change (i.e., at least 10 business days before the
anticipated first date identified in the job order), beginning on the
first date of need, it must pay eligible workers the specified hourly
rate of pay as stated on the clearance order, or if the pay is piece-
rate, the higher of the Federal or State minimum wage for the first
week or offer alternative work to each farmworker who followed the
procedure to contact the SWA for updated start date information. See
Sec. 653.501(c)(3)(i) and (c)(5). Under the Department's H-2A
regulations at Sec. 655.145(b), if an employer requests a start date
delay after workers have departed for the place of employment, the
employer must assure the CO that it will provide housing and
subsistence to all workers who are already traveling to the place of
employment, without cost to the workers, until work commences. If an
employer fails to comply with its obligations, the SWA may notify WHD
for possible enforcement as provided in Sec. 653.501(c)(5), the SWA
may pursue discontinuation of services under part 658, subpart F, or
the Department may, either upon referral of the SWA or upon its own
initiative, pursue revocation of the labor certification under the
procedures at Sec. 655.181, or debarment of the employer under the
procedures at Sec. 655.182 or 29 CFR 501.20.
The regulations also currently permit the Department to debar an
employer, successor-in-interest to that employer, attorney, or agent
from participating in any action under 8 U.S.C. 1188, 20 CFR part 655,
subpart B, or 29 CFR part 501 if the employer, agent, or attorney
substantially violated a material term or condition of the temporary
agricultural labor certification with respect to H-2A workers, workers
in corresponding employment, or U.S. workers improperly rejected for
employment, improperly laid off or displaced. 20 CFR 655.182(a); 29 CFR
501.20(a). The Department provides the employer with a notice of
debarment in these cases and also provides an opportunity to appeal
these determinations using the procedures at 20 CFR 655.182(f) and 29
CFR 501.20(e) and 501.33. Similarly, the Wagner-Peyser Act regulations
at 20 CFR parts 653 and 658 currently require the SWA to discontinue
services if it determines an employer has committed one of several
violations enumerated at 20 CFR 658.501(a)(1) through (7), such as
misrepresentation of the terms and conditions of employment specified
on job orders or failure to comply fully with assurances made on job
orders.
As noted above, the Department recently published the 2022 H-2A
Final Rule, which strengthened worker protections in the H-2A program,
clarified the obligations of joint employers and the existing
prohibitions on fees related to foreign labor recruitment, authorized
debarment of agents and attorneys for their own misconduct, enhanced
surety bond obligations and related enforcement authorization,
modernized the prevailing wage determination process, enhanced
regulation of H-2A labor contractors (H-2ALCs), and provided additional
safeguards related to employer-provided housing and wage obligations.
87 FR 61660 (Oct. 12, 2022). In response to the NPRM published prior to
the 2022 H-2A Final Rule, the Department received many comments
suggesting changes that were beyond the scope of that rulemaking, such
as suggestions relating to increased
[[Page 63753]]
enforcement and transparency regarding the foreign labor recruitment
process, increased worker protections, revisions to the definition of
employer, stronger integrity provisions to account for complex business
organizations and for methods used to circumvent the regulations,
strengthening provisions related to piece rate pay, and suggestions to
revise the Wagner-Peyser Act regulations to ensure stronger protections
for workers in the event of harmful last-minute start date delays.
C. Need for Rulemaking
The Department proposes important provisions in this NPRM that will
further strengthen protections for agricultural workers and enhance the
Department's enforcement capabilities, thereby permitting more
effective enforcement against fraud and program violations. The
Department has determined the proposed revisions will help prevent
exploitation and abuse of agricultural workers and ensure that
unscrupulous employers do not financially gain from their violations or
contribute to economic and workforce instability by circumventing the
law, both of which would adversely affect the wages and working
conditions of workers in the United States similarly employed, and
undermines the Department's ability to determine whether there are, in
fact, insufficient U.S. workers for proposed H-2A jobs. It is the
policy of the Department to maintain robust protections for workers and
vigorously enforce all laws within its jurisdiction governing the
administration and enforcement of nonimmigrant visa programs. This
includes the coordination of the administration and enforcement
activities of ETA, WHD, and the Department's Office of the Solicitor in
the promotion of the hiring of U.S. workers and the safeguarding of
wages and working conditions for workers in the United States. In
addition, these agencies make criminal referrals to the Department's
Office of Inspector General (OIG) in appropriate circumstances, such as
when the agencies encounter visa-related fraud. The Department has
determined through program experience, recent litigation, challenges in
enforcement, comments on prior rulemaking, and reports from various
stakeholders that the proposals in this NPRM are necessary to
strengthen protections for agricultural workers, ensure that employers,
agents, attorneys, and labor recruiters comply with the law, and
enhance program integrity by improving the Department's ability to
monitor compliance and investigate and pursue remedies from program
violators. The recent surge in use of the H-2A program further
underscores the need to strengthen protections for this vulnerable
population.\7\
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\7\ See, e.g., Office of Foreign Labor Certification,
Performance Data, https://www.dol.gov/agencies/eta/foreign-labor/performance (providing disclosure data for the H-2A labor
certification program since FY 2008).
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The proposed rule aims to address some of the comments that were
beyond the scope of the 2022 H-2A Final Rule and concerns expressed by
various stakeholders during that rulemaking. It also seeks to respond
to recent court decisions and program experience indicating a need to
enhance the Department's ability to enforce regulations related to
foreign labor recruitment, and to improve accountability for
successors-in-interest and employers who use various methods to attempt
to evade the law and regulatory requirements, and to enhance worker
protections for a vulnerable workforce, as explained further in the
sections that follow.\8\
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\8\ The Department's enforcement experience demonstrates that
workers in agriculture, particularly H-2A workers, remain highly
vulnerable to workplace abuses. In FY 2022, WHD conducted 420
investigations of employers using the H-2A program, resulting in
more than $3.6 million assessed in back wages and more than $6.3
assessed in civil money penalties. Recent investigations have
demonstrated that H-2A workers continue to be vulnerable to human
trafficking; see, e.g., Press Release, U.S. Dep't of Just., Owner of
Farm Labor Contracting Company Pleads Guilty in Racketeering
conspiracy Involving the Forced Labor of Mexican Workers (Sept. 27,
2022), https://www.justice.gov/opa/pr/owner-farm-labor-contracting-company-pleads-guilty-racketeering-conspiracy-involving-forced;
Jessica Looman, U.S. Dep't of Lab. Blog: Exposing the Brutality of
Human Trafficking (Jan. 13, 2022), https://blog.dol.gov/2022/01/13/exposing-the-brutality-of-human-trafficking. H-2A workers continue
to be vulnerable to retaliation when asserting their rights or
engaging in self advocacy; see, e.g., Press Release, U.S. Dep't of
Lab., Federal Court Orders Louisiana Farm, Owners to Stop
Retaliation After Operator Denied Workers' Request for Water,
Screamed Obscenities, Fired Shots (Oct. 28, 2021), https://www.dol.gov/newsroom/releases/whd/whd20211028-0; Press Release, U.S.
Dep't of Lab., U.S. Labor Department Obtains Order Stopping Arizona
Agricultural Employer from Abusing Workers, Exposing them to
Workplace Dangers (Oct. 28, 2022), https://www.dol.gov/newsroom/releases/whd/whd20221028-0. Additionally, recent vehicle crashes
involving agricultural workers demonstrate the need for
transportation reform; see, e.g., Press Release, U.S. Dep't of Lab.,
U.S. Department of Labor Urges Greater Focus on Safety by Employers,
Workers as Deaths, Injuries in Agricultural Transportation Incidents
Rises Sharply (Sept. 20, 2022), https://www.dol.gov/newsroom/releases/whd/whd20220920-0.
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Section D below provides an overview of major proposed changes,
followed by an in-depth section-by-section discussion of all proposed
changes. The Department is soliciting public comment on all aspects of
this proposed rule but has suggested in each section the types of
comments that would be most useful to the Department when considering
which provisions to include, exclude, or revise in the final rule.
Generally, the Department is most interested in comments that cite
evidence of the need to remedy through this rulemaking ongoing
violations, worker abuse or exploitation, coercion, employer or agent
subterfuge to avoid the law or other ways the Department's enforcement
of the law may be hindered to the detriment of H-2A workers and workers
in the United States impacted by the program and the Department's
ability to fulfill its statutory responsibilities. The Department is
particularly interested in comments that suggest ways the Department
can use this rulemaking to better protect the rights and liberties,
health and safety, and wages and working conditions of agricultural
workers and best safeguard the integrity of the H-2A program, while
continuing to ensure that responsible employers have access to willing
and available agricultural workers and are not unfairly disadvantaged
by employers that exploit workers and attempt to evade the law.
D. Summary of Major Provisions of This Proposed Rule
1. Protections for Workers Who Advocate for Better Working Conditions
and Labor Organizing Activities
The Department proposes revisions to Sec. 655.135 that will
provide stronger protections for workers protected by the H-2A program
to advocate for better working conditions on behalf of themselves and
their coworkers and prevent employers from suppressing this activity.
As detailed in Section IV, the Department believes that these proposed
protections are necessary to prevent an adverse effect on the working
conditions of workers in the United States similarly employed. 8 U.S.C.
1188(a)(1). These protections will significantly bolster the
Department's efforts to prevent such adverse effect because when H-2A
workers and other workers protected under the H-2A program cannot
advocate and negotiate with employers on their own behalf, employers
are able to impose exploitative working conditions that also leave H-2A
workers vulnerable to other abuses, and this unfairly deprives
similarly employed agricultural workers of jobs with better working
conditions. Specifically, the Department proposes to broaden Sec.
655.135(h), which prohibits unfair treatment, by expanding and
explicitly protecting certain activities workers must be able to engage
in
[[Page 63754]]
without fear of intimidation, threats, and other forms of retaliation.
For those workers engaged in agriculture as defined and applied in 29
U.S.C. 203(f), who are exempt from the protections of the National
Labor Relations Act (NLRA), 29 U.S.C. 151 et seq., the Department also
proposes in Sec. 655.135(h) to include some protections that the
Department believes will safeguard collective action. The Department
also proposes to add new provisions at Sec. 655.135(m) to ensure
employers do not interfere with efforts by vulnerable workers under the
H-2A program to advocate for better working conditions by including a
number of requirements that would advance worker voice and empowerment
and further protect the rights proposed under Sec. 655.135(h), and at
Sec. 655.135(n) to permit workers to invite or accept guests to worker
housing and provide labor organizations a narrow right of access to
worker housing, as explained in detail below.
2. Clarification of Justifiable Termination for Cause
The Department proposes to define ``termination for cause'' at
Sec. 655.122(n) by proposing six criteria that must be satisfied to
ensure that disciplinary and/or termination processes are justified and
reasonable, which are intended to promote the integrity and regularity
of any such processes. These proposed changes will help to ensure
employers do not arbitrarily and unjustly terminate workers, thereby
stripping them of essential rights to which they would otherwise be
entitled, and will assist the Department in determining whether an
individual worker was terminated for pretextual reasons.
3. Immediate Effective Date for Updated AEWRs
The Department proposes to revise Sec. 655.120(b)(2) to designate
the effective date of updated AEWRs as the date of publication in the
Federal Register, and to revise paragraph (b)(3) to state that the
employer is obligated to pay the updated AEWR immediately upon
publication of the new AEWR in the Federal Register. This change is
intended to help ensure workers are paid at least the updated AEWR, as
soon as it is published, for all work they perform, and thereby help to
ensure the employment of H-2A workers will not adversely affect the
wages and working conditions of workers in the United States similarly
employed.
4. Enhanced Transparency for Job Opportunity and Foreign Labor
Recruitment
The Department proposes new disclosure requirements to enhance
transparency in the foreign worker recruitment chain and bolster the
Department's capacity to protect vulnerable agricultural workers from
exploitation and abuse, as explained more fully below. The Department
proposes a new Sec. 655.137, Disclosure of foreign worker recruitment,
and a new Sec. 655.135(p), Foreign worker recruitment, that are
similar to the regulations governing disclosure of foreign worker
recruitment in the H-2B program. The proposed provisions would require
an employer and its attorney or agent, as applicable, to provide a copy
of all agreements with any agent or recruiter that the employer engages
or plans to engage in the recruitment of prospective H-2A workers,
regardless of whether the agent or recruiter is located in the United
States or abroad. The proposed provisions also would require the
employer to disclose the identity (i.e., name and, if applicable,
identification number) and geographic location of persons and entities
hired by or working for the foreign labor recruiter and any of the
agents or employees of those persons and entities who will recruit or
solicit prospective H-2A workers. As explained more fully below, the
Department proposes to gather the additional recruitment chain
information when the employer files its H-2A Application and will
require the employer to submit a proposed Form ETA-9142A, Appendix D,
that mirrors the Form ETA-9142B, Appendix C. Consistent with current
practice in the H-2B program, proposed Sec. 655.137(d) provides for
the Department's public disclosure of the names of the agents and
foreign labor recruiters used by employers. These additional
disclosures of information about the recruitment chain are necessary
for the Department to carry out its enforcement obligations, protect
vulnerable agricultural workers and program integrity, and ensure
equitable administration of the H-2A program for law abiding employers.
The Department also proposes to require the employer to provide the
full name, date of birth, address, telephone number, and email address
for the owner(s) of each employer, any person or entity who is an
operator of the place(s) of employment (including the fixed-site
agricultural business that contracts with the H-2ALC), and any person
who manages or supervises the H-2A workers and workers in corresponding
employment under the H-2A Application. The Department proposes to
revise the Form ETA-9142A to require, where applicable, additional
information about prior trade or DBA names the employer has used in the
most recent 3-year period preceding its filing of the H-2A Application.
The Department proposes conforming changes to Sec. Sec. 655.130 and
655.167 to clarify that the employer would be required to continue to
update the information required by the above paragraphs until the end
of the work contract period, including extensions thereto, and retain
this information post-certification and produce it upon request by the
Department. The Department believes the proposed disclosure
requirements will increase transparency in the international
recruitment chain, aid the Department in assessing the nature of the
job opportunity and the employer's need, enhance the Department's
ability to enforce the prohibition against recruitment-related fees and
to pursue remedies from program violators, assist the Department in
identifying potential successors in interest to debarred employers, and
better protect agricultural workers from abuse and exploitation in the
United States and abroad.
5. Enhanced Transparency and Protections for Agricultural Workers
a. Disclosure of Minimum Productivity Standards, Applicable Wage Rates,
and Overtime Opportunities
The Department proposes to revise Sec. 655.122(l) to require
employers to disclose any minimum productivity standards they will
impose as a condition of job retention, regardless of whether the
employer pays on a piece rate or hourly basis. This proposal is
intended to help ensure that agricultural workers are fully apprised of
the material terms and conditions of employment, including any
productivity standards that may serve as a basis for termination for
cause. Proposed changes at Sec. 655.122(n) would prohibit the employer
from terminating a worker for failure to meet a minimum productivity
standard if the employer did not disclose the standard in accordance
with Sec. 655.122(l). An existing regulatory provision, Sec.
655.122(b), would require that any such minimum productivity standard
be bona fide and normal and accepted among non-H-2A employers in the
same or comparable similar occupations and crops.
The Department also proposes to revise Sec. Sec. 655.120(a) and
655.122(l) to
[[Page 63755]]
require employers to offer and advertise on the job order any
applicable prevailing piece rate, the highest applicable hourly wage
rate, and any other rate the employer intends to pay, and to pay
workers the highest of these wage rates, as calculated at the time work
is performed. A new proposed Sec. 655.122(l)(4) would explicitly
require the employer to specify in the job order any applicable
overtime premium wage rate(s) for overtime hours worked and the
circumstances under which the wage rate(s) for such overtime hours will
be paid. These proposals are intended to help ensure that agricultural
workers are fully apprised of the material terms and conditions of
employment, including any productivity standards that may serve as a
basis for termination for cause, and to aid the Department in its
administration and enforcement of the H-2A program.
b. Enhanced Protections for Workers Through the Employment Service
System (ES System)
The Department proposes revisions to the Wagner-Peyser Act
implementing regulations at 20 CFR 653.501 to clarify an employer's
obligations in the event of a delayed start date and to make conforming
revisions to the H-2A regulations at 20 CFR 655.145 and a new Sec.
655.175 to clarify pre-certification H-2A Application amendments and
employer obligations in the event of post-certification changes to the
start date. As noted above, the current regulations require an employer
to provide notice to the ES Office holding the job order of delayed
start dates and impose obligations on employers that fail to provide
the requisite notice, but do not require employers to notify workers
directly of any such delay.
The Department proposes revisions to part 658, subpart F, and
related definitions at Sec. 651.10, regarding the discontinuation of
Wagner-Peyser Act Employment Service (ES) services to employers. The
Department proposes to clarify and expand the scope of entities whose
ES services can be discontinued to also include agents, farm labor
contractors, joint employers, and successors in interest. The
Department also proposes revisions to clarify the bases for
discontinuation at Sec. 658.501, and to clarify and streamline the
discontinuation procedures at Sec. Sec. 658.502 through 658.504,
including the notice requirements for SWAs, evidentiary requirements
for employers, when and how employers may request a hearing, and
procedures for requesting reinstatement. These changes are designed to
increase the reach and utility of the discontinuation of services
regulations, which SWAs have underutilized in recent years. These
proposed changes are described in more detail below.
c. Enhanced Transportation Safety Requirements
The Department proposes to revise Sec. 655.122(h)(4) to require
the provision, maintenance, and wearing of seat belts in most employer-
provided transportation, which would reduce the hazards associated with
agricultural worker transportation, thus making these jobs more
attractive to workers in the United States. Specifically, as explained
in detail below, the Department proposes to revise Sec. 655.122(h)(4)
to prohibit an employer from operating any employer-provided
transportation that is required by the U.S. Department of
Transportation (DOT) highway safety regulations to be manufactured with
seat belts unless all passengers and the driver are properly restrained
by seat belts meeting standards established by DOT. Essentially, if the
vehicle is manufactured with seat belts, the proposed rule would
require the employer to retain and maintain those seat belts in good
working order and ensure that each worker is wearing a seat belt before
the vehicle is operated.
d. Protection Against Passport and Other Immigration Document
Withholding
The Department proposes a new Sec. 655.135(o) that would directly
prohibit an employer from holding or confiscating a worker's passport,
visa, or other immigration or government identification documents,
independent of the employer's compliance with the Victims of
Trafficking and Violence Protection Act of 2000 (TVPA), Public Law 106-
386 (2000), 18 U.S.C. 1592(a), which is required under the current H-2A
regulations. The proposal is intended to better protect workers from
potential labor trafficking, as explained below.
e. Protections in the Event of a Minor Delay in the Start of Work
The Department proposes a new Sec. 655.175 that addresses post-
certification changes currently addressed at Sec. 655.145(b) and
proposes new obligations and procedures in the event an employer must
briefly delay the start of work due to unforeseen circumstances that
jeopardize crops or commodities prior to the expiration of an
additional recruitment period. Proposed Sec. 655.175 limits minor
delays to 14 calendar days or less and would require an employer to
notify each worker and the SWA of any delay in the start date of work.
Consistent with Sec. 653.501(c), proposed Sec. 655.175 includes new
compensation obligations that would require the employer to pay workers
the applicable wage rate for each day work is delayed, for a period of
up to 14 calendar days, starting with the certified start date, if the
employer fails to provide adequate notice of the delay.
6. Enhanced Integrity and Enforcement Capabilities
a. Reduced Submission Periods for Appeal Requests for Debarment Matters
and Submittal of Rebuttal Evidence to OFLC
To help protect and uphold program integrity, and to further
protect workers in the United States, the Department proposes to
increase the speed with which debarments become effective by decreasing
the time for parties to submit rebuttal evidence to OFLC, the time for
parties to appeal Notices of Debarment to the Office of Administrative
Law Judges (OALJ), and the time for parties to appeal debarment
decisions to the ARB from the OALJ. This would lead to faster final
agency adjudications and thereby better protect and uphold program
integrity and agricultural workers by more efficiently and effectively
preventing H-2A program violators from accessing the program. As
explained more fully below, the Department proposes to amend Sec.
655.182(f)(1) and (2) by reducing the period to file rebuttal evidence
from 30 calendar days to 14 calendar days, unless the employer requests
an extension of the allowable rebuttal period, in writing, and
demonstrates good and substantial cause necessitating an extension. For
the same reasons, the Department also proposes to shorten the time to
appeal the OFLC Administrator's Notice of Debarment, in lieu of
submitting rebuttal evidence; to shorten the time to appeal the OFLC
Administrator's final determination, after review of rebuttal evidence;
to shorten the time for all parties to request review of OFLC
debarments by the ARB from 30 days to 14 calendar days; to shorten the
time to request a hearing with the OALJ on any WHD determination
involving debarment from 30 calendar days to 14 calendar days; and also
to shorten the time for all parties to request review by the ARB of an
OALJ determination involving debarment from 30 days to 14 calendar
days. Determinations by the WHD Administrator that do not include
debarment, but only include, for example, an assessment of civil money
[[Page 63756]]
penalties or the payment of back wages, would retain a 30-calendar-day
timeframe for appeal to the OALJ and to the ARB.
b. Enhancements to the Department's Ability To Apply Orders of
Debarment Against Successors-in-Interest
The Department proposes a new Sec. 655.104 regarding successors in
interest, that would clarify the liability of successors in interest
for debarment purposes and streamline the Department's procedures to
deny labor certifications filed by or on behalf of successors in
interest to debarred employers, agents, and attorneys. The Department
proposes conforming revisions to Sec. Sec. 655.103(b), 655.181, and
655.182 and 29 CFR 501.20. These proposed revisions are intended to
better reflect the liability of successors in interest under the well-
established successorship doctrine, and to better ensure that debarred
entities do not circumvent the effects of debarment.
c. Defining the Single Employer Test for Assessing Temporary Need, or
for Enforcement of Contractual Obligations
The Department proposes to define the term single employer at a new
Sec. 655.103(e) and proposes factors to determine if multiple
nominally separate employers are acting as one. Defining the term would
codify the Department's long-standing practice of using the single
employer test (sometimes referred to as an ``integrated employer''
test), or similar analysis, to determine if separate employers are a
single employer for purposes of assessing seasonal or temporary need,
or for enforcement of contractual obligations. In relation to seasonal
or temporary need, the Department has received applications for
temporary labor certification that purport to be for job opportunities
with different employers when, in reality, the workers hired under
these certifications are employed by companies so intertwined that they
are operating as a de facto single employer in one area of intended
employment for a period of need that is not truly temporary or
seasonal. In its enforcement experience, the Department has
increasingly encountered H-2A employers that employ H-2A workers under
one corporate entity and domestic workers under another, creating the
appearance that the H-2A employer has no non-H-2A workers in
corresponding employment when actually, the corporate entities are so
intertwined that all the H-2A workers are employed by a single H-2A
employer, and the non-H-2A workers are engaged in corresponding
employment. Some employers have attempted to use these arrangements to
avoid the obligation to offer workers in corresponding employment the
terms and conditions offered to H-2A workers, including the required
wage rate. Codifying the definition of single employer will prevent
employers from using their corporate structures to circumvent statutory
and regulatory requirements.
III. Discussion of Proposed Revisions to Employment Service Regulations
A. Introduction
In this proposed rule, the Department proposes to revise the ES
regulations (20 CFR parts 651 through 654 and 658 and 29 CFR part 75)
that implement the Wagner-Peyser Act of 1933. These regulations include
the provision of ES services with a particular emphasis on migrant or
seasonal farmworkers (MSFWs), as well as provisions governing the
discontinuation of ES services to employers. The proposed rule will
update the language and content of the regulations to, among other
things, improve and strengthen the regulations governing
discontinuation of ES services to employers, including the applicable
bases and procedures. In some areas, these proposals establish entirely
new responsibilities and procedures; in other areas, the proposals
clarify and update requirements already established. The proposed
revisions make important changes to the following components of the ES
system: definitions, requirements for processing clearance orders, and
the discontinuation of ES services provided to employers.
The Wagner-Peyser Act of 1933 provided the Department the authority
to establish a national ES system to improve the functioning of the
nation's labor markets by bringing together individuals seeking
employment with employers seeking workers. Section 3(a) of the Act sets
forth the basic responsibilities of the Department, which include
assisting in coordinating the State public employment service offices
throughout the country and in increasing their usefulness by
prescribing standards for efficiency, promoting uniformity in
procedures, and maintaining a system of clearing labor between the
States.
To that end, the ES system provides labor exchange services to its
participants and has undergone numerous changes to align its activities
with broader national workforce development policies and statutory
requirements. The Workforce Innovation and Opportunity Act, passed in
2014, expanded upon the previous workforce reforms in the Workforce
Investment Act of 1998 and, among other things, identified the ES
system as a core program in the One-Stop local delivery system, also
called the American Job Center network.
In 1974, the case National Ass'n for the Advancement of Colored
People (NAACP), Western Region, et al. v. Brennan et al., No. 2010-72,
1974 WL 229 (D.D.C. Aug. 13, 1974) resulted in a detailed court order
mandating various Federal and State actions consistent with applicable
law (referred to as the Judge Richey Court Order, or Richey Order). The
Richey Order required the Department to implement and maintain a
Federal and State monitoring and advocacy system and set forth
requirements to ensure the delivery of ES services, benefits, and
protections to MSFWs on a non-discriminatory basis, and to provide such
services in a manner that is qualitatively equivalent and
quantitatively proportionate to those provided to non-farmworkers. In
1977 and 1980, consistent with its authority under the Wagner-Peyser
Act, the Department published regulations at 20 CFR parts 651, 653, and
658 to implement the requirements of the Richey Order. Part 653 sets
forth standards and procedures for providing services to MSFWs and
provides regulations governing the ARS, a system for interstate and
intrastate agricultural job recruitment. Part 658 sets forth standards
and procedures for the administrative handling of complaints alleging
violations of ES regulations and of employment-related laws, the
discontinuation of services provided by the ES system to employers, the
review and assessment of State agency compliance with ES regulations,
and the Federal application of remedial action to State agencies.
Note that on April 20, 2022, the Department issued an NPRM
regarding Wagner-Peyser Act staffing (Staffing NPRM). 87 FR 23700 (Apr.
20, 2022). The Staffing NPRM included proposed changes to several
sections in 20 CFR parts 653 and 658 that govern the provision of ES
services to MSFWs. As relevant here, in the Staffing NPRM, the
Department proposed changes to 20 CFR 653.501(b)(4) and (c)(3) (ES
office and SWA requirements for processing clearance orders); Sec.
658.501(a)(4), (b), and (c); Sec. 658.502(a) and (b) (notification
requirements for discontinuation of ES services); and Sec. 658.504(a)
and (b) (procedures for reinstatement of ES services). 87 FR 23717,
23722, 23736, 23740-23741. In this proposed rule, the Department has
proposed further changes to these provisions, which in
[[Page 63757]]
some instances conflict with changes proposed in the Staffing NPRM.
Because the Department has not issued a final Staffing Rule, the
Department recognizes that the proposed changes in this rulemaking may
generate questions within the regulated community about how the
Department ultimately proposes to revise these provisions, including
how the proposed changes in this rulemaking affect the proposed changes
in the Staffing NPRM, and what the Department might do in finalizing
the changes proposed in the Staffing NPRM. Where this NPRM proposes
changes that conflict or intersect with changes proposed in the
Staffing NPRM, the Department will be using this proposed rule as the
operative rulemaking proceeding to provide notice and an opportunity to
comment on the proposed changes to the provisions referenced above.
Consistent with this approach, the Department does not intend to
finalize changes to the above referenced provisions in the Staffing
NPRM as part of that rulemaking proceeding. Any changes to the above
referenced provisions will be made through this rulemaking. The
Department has concluded that the proposed changes to these provisions
are better suited for this rulemaking because they are meant to
strengthen protections for agricultural workers and, therefore, better
align with the overall purpose of this rulemaking. Further, the
Department has concluded that this is the most transparent approach to
address the overlap, and is the approach that best minimizes confusion
within the regulated community while ensuring the public the full
opportunity to receive notice and provide comments on the proposed
changes.
B. Discussion of Proposed Revisions to 20 CFR Part 651
Part 651 (Sec. 651.10) sets forth definitions for parts 652, 653,
654, and 658. The Department proposes to add or revise the following
definitions primarily to clarify aspects of its discontinuation of
Wagner-Peyser Act ES regulation at 20 CFR part 658, including new
provisions that it proposes to add in this rulemaking. Where
appropriate, as discussed below, the Department has sought to align
these new definitions with the same or similar definitions at 20 CFR
655.103.
The Department proposes to add a definition to Sec. 651.10 for
agent as an entity authorized to act on behalf of employers with
respect to ES clearance system activities. The Department has observed
that individuals and entities meeting the proposed definition of agent
often engage the ES clearance system by submitting clearance orders on
behalf of employers, as defined in part 651, and control many aspects
of employers' recruitment activities relating to clearance orders.
Adding this proposed definition clarifies that agents (which include
attorneys) are among the entities subject to discontinuation of
services as a result of the proposed changes to part 658. Additionally,
because an employer's agent for purposes of the ES clearance system is
often the same agent that an employer uses for purposes of the H-2A
labor certification process, the Department proposes a definition of
agent at Sec. 651.10 that aligns with the definition of agent in Sec.
655.103.
The Department proposes to add definitions to Sec. 651.10 for
criteria clearance order and non-criteria clearance order because they
are terms that are currently used in the ES regulations but were
previously undefined. Adding the definitions clarifies that criteria
clearance orders are those placed in connection with an H-2A
Application filed pursuant to part 655, subpart B, while non-criteria
clearance orders are those not placed in connection with an H-2A
Application. By defining these terms, it will be clearer which orders
must comply with the requirements at part 653, subpart F, and part 655,
subpart B, and which orders do not have to comply with the requirements
at part 655, subpart B.
The Department proposes to add to Sec. 651.10 a definition for
discontinuation of services because it is referenced throughout the ES
regulations and is the subject of part 658, subpart F, but was
previously undefined. The proposed definition explains what services
would be unavailable pursuant to the process described in part 658,
subpart F, and the entities subject to discontinuation. Under the
proposed discontinuation of services, the scope of services to which
discontinuation applies includes any Wagner-Peyser Act ES service
provided by the ES to employers pursuant to parts 652 and 653. The
scope of individuals and entities to whom discontinuation applies
includes employers, as defined in part 651, and agents, farm labor
contractors, joint employers, and successors in interest, as proposed
to be defined in part 651.
The Department proposes to revise the definition of employment-
related laws to clarify that the term also includes the regulations
that implement employment-related laws in addition to the laws
themselves. Revising the definition clarifies its meaning and scope for
ES staff who observe or process complaints relating to violations of
employment-related laws, such as outreach workers, complaint system
representatives, and those who conduct field checks.
The Department proposes to add to Sec. 651.10 a definition for
farm labor contractor as an entity, excluding agricultural employers,
agricultural associations, or employees of agricultural employers or
agricultural associations, that agrees to recruit, solicit, hire,
employ, furnish, or transport an MSFW. The Department proposes to add
this definition to Sec. 651.10 because the term is used throughout the
ES regulations, most notably in part 653, subpart F, which recognizes
that farm labor contractors use the ES clearance system, but it has
never been defined. Adding this proposed definition also clarifies the
entities subject to discontinuation of services as a result of the
proposed changes to part 658. As with the term agent, because many farm
labor contractors that use the ES clearance system also seek temporary
labor certifications from OFLC as H-2ALCs under part 655, subpart B,
the Department proposes a definition of farm labor contractor that both
aligns with the definition of H-2A labor contractor found at 20 CFR
655.103 and with the definition of farm labor contractor and farm labor
contracting activity found at 29 U.S.C. 1802 and 29 CFR 500.20 to
maintain consistency between Departmental program areas.
The Department recognizes that joint employment relationships are
common in agriculture, and that joint employers are required to comply
with the requirements in part 653, subpart F, while filing a joint
application for temporary labor certification under 20 CFR part 655,
subpart B. See Sec. 655.131. The Department therefore proposes to add
a definition for joint employer to Sec. 651.10 to clarify how the
concept will be applied in the ES system and to clarify the entities
subject to discontinuation of services as a result of the proposed
changes to part 658. The proposed definition is also intended to ensure
consistency with recent changes to the Department's H-2A regulation, 87
FR 61660, 61793-61794 (Oct. 12, 2022), and as with the definitions of
agent and farm labor contractor, the proposed definition is modeled on
the definition of joint employment at 20 CFR 655.103 because of the
connection between the ES system and H-2A labor certification program.
The Department proposes to add to Sec. 651.10 a definition for
successor in interest that describes the inexhaustive factors that SWAs
should use to determine if an entity is a successor in interest to
another entity. The proposed
[[Page 63758]]
definition allows SWAs and stakeholders to better understand which
entities may be subject to discontinuation as a result of the proposed
changes to part 658. To maintain consistency between the regulations
governing the ES system and the regulations governing the H-2A labor
certification program, the Department proposes to adapt the definition
of successor in interest as proposed in Sec. 655.104.
The Department proposes to add a definition for week to clarify
that a week, as used in parts 652, 653, 654, and 658, means 7
consecutive calendar days. Adding the definition allows for SWAs and
employers to calculate time periods used in the ES regulations
uniformly, including for wage calculations and other time-related
procedures.
C. Discussion of Proposed Revisions to 20 CFR Part 653
Part 653 sets forth the principal regulations of the ES concerning
the provision of services for MSFWs consistent with the requirement
that all services of the workforce development system be available to
all job seekers in an equitable fashion and in a way ``that meets their
unique needs.'' 20 CFR 653.100(a). Part 653 also describes requirements
for participation in the ARS. Subpart F provides the requirements SWAs
and employers must follow when employers seek access to the ARS by
submitting clearance orders for temporary or seasonal farmwork. Section
653.501 provides the responsibilities of ES Offices and SWAs when they
review clearance orders submitted by employers, and the process by
which they place approved clearance orders into intra- and interstate
clearance. Once the order is approved and placed into clearance, ES
Offices and SWAs recruit and refer workers for the position described
on the clearance order.
The Department proposes to add a fourth paragraph to Sec.
653.501(b), at Sec. 653.501(b)(4), which would require ES staff to
consult the OFLC and WHD H-2A and H-2B debarment lists, and an ETA
Office of Workforce Investment discontinuation of services list, before
placing a job order into intrastate or interstate clearance. The
Department further proposes a new paragraph (b)(4)(i), which states
that SWAs must initiate discontinuation of ES services if the employer
seeking placement of a clearance order is on a debarment list, and new
paragraph (b)(4)(ii), which states that SWAs must not approve clearance
orders from employers whose ES services have been discontinued by any
State. Finally, the Department proposes a new paragraph (b)(4)(iii) to
make clear that the provisions in paragraph (b)(4) would apply to all
entities subject to discontinuation under part 658, subpart F, and not
just to employers as defined in Sec. 651.10.
The Department's mission is to promote the welfare of workers.
Regarding consultation with the H-2A and H-2B debarment lists, the
proposed additions are intended to further that mission by ensuring
that ES offices do not place U.S. workers with employers who are
presently barred from employing nonimmigrant workers via the H-2A and
H-2B visa programs. This requirement, and the proposed addition to
Sec. 658.501(a)(4), would protect workers by ensuring that the ES
system is not used to place a worker with an employer that has failed
to comply with its obligation(s) as an employer of foreign workers. As
with the H-2A program, employers participating in the H-2B program must
first file job orders through the SWA's labor exchange and therefore
must comply with ES requirements. As discussed more fully below in the
discussion of the proposed changes to Sec. 658.501(a)(4), the proposed
inclusion of H-2B programs also recognizes that employers seeking
nonimmigrant workers may improperly misclassify H-2A agricultural work
as H-2B non-agricultural work. The proposed addition seeks to protect
workers who use the ES system from employers who engage in improper
misclassification, and to maintain a fair labor system for employers
who seek temporary labor certification via the proper channels.
Additionally, the H-2A regulations at 20 CFR 655.182 and 29 CFR 501.20,
and the H-2B regulations at 20 CFR 655.73 and 29 CFR 503.24, describe
the violations that may result in an employer's debarment from
receiving future labor certifications under those programs. The
potential reasons for debarment include serious violations that could
affect worker safety, for example ``[a] single heinous act showing such
flagrant disregard for the law'' that future compliance with program
requirements cannot reasonably be expected (Sec. 655.182(d)(1)(x)).
Such reasons also include an employer's substantial failure to comply
with regulatory requirements, including an employer's failure to pay or
provide the required wages or working conditions, an employer's failure
to comply with its obligations to recruit U.S. workers, or an
employer's failure to cooperate with required audits or investigations.
In the Department's view, the employer subject to debarment should also
be excluded from participation in the ES system. The Department does
not want the ES system to facilitate placement of U.S. workers with
employers whom the Department has determined should not be permitted to
employ nonimmigrant workers through its H-2A and H-2B programs,
particularly where the U.S. workers may perform similar work and, thus,
be subject to the same or similar violations giving rise to the
employer's debarment.
Regarding consultation with the proposed Office of Workforce
Investment discontinuation of services list, as discussed below, the
effect of a final decision to discontinue services to an employer would
be to prohibit that employer from receiving any services from the ES
system, not just from offices in the State that discontinued services.
The Department recognizes that SWAs need a mechanism to ensure that
they are not providing services, including the processing and placement
of clearance orders, to entities whose services have been discontinued,
and that any such mechanism should be straightforward for the SWAs to
use for it to be effective. The Department believes that maintaining a
list of discontinued entities--like the debarment lists maintained by
OFLC and WHD--that SWAs could access when reviewing clearance orders is
the most straightforward approach to effectuate this goal. In order to
avoid unnecessary burden, SWAs and ES offices would consult the Office
of Workforce Investment discontinuation of services list and would not
provide ES services to any employers on the list, without having to go
through the steps described in part 658, subpart F, to discontinue
services to the same employer in their specific State. The Department
also notes that the proposed changes in part 658, subpart F, discussed
below, address the entities subject to discontinuation. Proposed Sec.
658.503(e) would mandate that if the SWA discontinues services to an
employer, the employer, which includes successors in interest, cannot
participate in or receive Wagner-Peyser Act ES services provided by the
ES to employers pursuant to parts 652 and 653; therefore, no SWA would
be able to process any future job orders from the employer or a
successor in interest, unless services are reinstated under Sec.
658.504.
Section 653.501(c)(3) lists the assurances that each clearance
order must include before it can be placed into clearance. Paragraph
(c)(3)(i) currently requires that the clearance
[[Page 63759]]
order include an assurance that the employer will provide workers
referred through the clearance system the number of hours of work, as
indicated on the clearance order, for the week beginning with the
anticipated date of need unless the employer notifies the order-holding
office of a change to the anticipated start date at least 10 business
days prior to the original start date, and states that the SWA must
make a record of the notification and must attempt to inform referred
workers of the change. Section 653.501(c)(3)(iv) currently requires
that the clearance order include an assurance that the employer filing
the order will promptly notify the order-holding office or SWA that
crops are maturing faster or slower than expected or of other events
that change the terms of employment. Section 653.501(c)(5) currently
provides that if the employer fails to provide the required notice, the
employer is obligated to provide eligible (pursuant to paragraph (d)(4)
of this section) workers referred through the clearance system the
first week's pay at the rate stated on the clearance order or find
alternative work, if such alternative work is included in the clearance
order. For criteria clearance orders, any alternative work provided to
U.S. workers referred through the ARS will be agricultural work, in
order to comply with the H-2A program requirements for work offered on
such orders. For non-criteria orders, because the order is placed
through the ARS, it is anticipated that alternative work provided in
these situations also will be agricultural work.
The Department has determined these requirements do not provide
adequate notice to workers placed on the clearance order when the terms
of their employment change and do not adequately protect workers from
the potential consequences of those changes. The current notification
requirement, which inadvertently incorporates a requirement on the SWA
into the employer assurances, is not sufficient to prevent unnecessary
delay because it requires that notification occur in two steps--first
from the employer to the SWA, and then from the SWA to the workers.
Additionally, given the transient nature of temporary and seasonal
farmwork, coupled with increased housing, transportation, and food
costs in recent years, the requirement that employers provide 1 week's
pay if they fail to satisfy the notification requirement does not
sufficiently protect workers from resulting financial hardship. The
Department proposes several changes to address these concerns by
improving notice and wage protections for workers hired under ARS
clearance orders.
Specifically, the Department proposes to revise Sec. 653.501(c) to
require that, in the event the employer's date of need changes from the
date the employer indicated on the clearance order, the employer must
notify the SWA and all workers placed on the clearance order of the
change at least 10 business days before the original start date. The
proposed revisions clarify that notification is only to workers placed
on the clearance order, and not to workers who were referred but not
hired. The proposed revisions recognize that employers, rather than the
SWA or the order holding office, are in the best position to contact
and notify workers placed on the order of changes to the date of need
because the employer has already contracted to employ the workers and
should have up-to-date contact information for each worker. The
requirement to document this outreach is a minimally burdensome means
to allow the SWA to assess compliance with this assurance. This
proposed change will increase the likelihood that workers will receive
timely notification of any change to the start date and that employers
maintain accurate records of notices they provide. To ensure consistent
protections for workers in the United States who apply to the employer
directly, as well as to H-2A workers and workers in corresponding
employment who may be impacted by a delayed start date of work, the
Department proposes conforming protections at a new Sec. 655.175 of
the H-2A program regulations.
The Department further proposes that employers that fail to comply
with these notice requirements must provide housing and subsistence to
all workers placed on the clearance order who are already traveling to
the place of employment, without cost to the workers, until work
commences, and must pay all workers placed on the clearance order the
applicable wages for each day work is delayed for a period of up to 2
weeks, starting with the originally anticipated date of need. The
Department's proposal to require the provision of housing and
subsistence would align the protections U.S. workers placed on non-
criteria clearance orders receive with protections workers on criteria
clearance orders receive under current Sec. 655.145(b) and proposed
Sec. 655.175(b). The Department does not anticipate that requiring the
provision of housing will burden employers as they are required to have
their housing ready and inspected prior to the start date.
The Department's proposal to expand the period during which
employers must pay the applicable wage to 2 weeks, from the current 1-
week period, will better protect agricultural workers from financial
hardship they are likely to experience should they travel or otherwise
rely on the job opportunity articulated on the clearance order and find
that work is not available to them. Providing up to 2 weeks of wages
provides a safety net for workers to support themselves when work is
not available. The Department believes 1 week of wages is insufficient
to protect workers from the financial hardships associated with a
delayed starting date when such delays were not communicated,
particularly if a worker traveled for the job. In lieu of paying the 2
weeks' worth of wages, if the employer fails to comply with the notice
requirements, employers can provide such workers alternative work if
such alternative work is listed on the clearance order. The Department
has determined that this alternative effectively addresses the hardship
concern by providing the worker a source of income while continuing to
allow the employer flexibility to adjust their anticipated start date.
To accomplish these changes, the Department proposes several
specific revisions. The Department proposes to revise Sec.
653.501(c)(3)(i) to remove the requirement that the SWA must make a
record of the notification and attempt to inform referred workers of
the change in the date of need. The current language improperly
incorporates a SWA requirement into the employer assurances, and, as
discussed below, the Department proposes to shift these
responsibilities to the employer which, as discussed below, the
Department has determined is better situated to make timely contact
with workers. The Department also proposes to move language in this
paragraph regarding the employer's notice to the order-holding office
to Sec. 653.501(c)(3)(iv), which contains other instructions the
employer must follow when giving notice of changed terms and conditions
of the opportunity. The proposed regulation at Sec. 653.501(c)(3)(i)
would maintain that the employer's notice must comply with paragraph
(c)(3)(iv), which would more clearly explain the employer's assurance
to comply with the full notice requirements.
The Department proposes to make additional revisions to paragraph
(c)(3)(iv). First, the Department proposes to remove a redundancy in
the first sentence, which currently states that the
[[Page 63760]]
employer must expeditiously notify the order-holding office or SWA
immediately. Because immediate notice is expeditious, the use of the
word ``expeditiously'' is not necessary. Second, the Department
proposes that the assurance on the clearance order require that when
there is a change to the start date of need, the employer, rather than
the order-holding office or SWA, notify the office or SWA and each
worker placed on the order. When there is a change in the date of need
it is imperative that workers placed on the order be notified as
quickly as possible to allow the worker to change any travel
arrangements and otherwise remain informed about the opportunity. As
noted above, the Department has determined that the employer, which has
already contracted or communicated with the worker, is better
positioned to make timely contact with workers and therefore proposes
that the employer agree to do so as a condition of the participation in
the ARS. Third, the Department, in this assurance and in paragraph
(c)(5), proposes to require notification to workers placed on the order
rather than eligible workers referred from the order. The Department
proposes this change because the obligation to provide housing and
subsistence to workers who are already traveling to the place of
employment, and to pay wages for up to 2 weeks or provide alternative
work is relevant only to workers who were actually placed with the
employer rather than to workers referred to the employer through the
ARS. Additionally, under current paragraph (c)(5), the obligation to
pay or provide alternative work is for eligible workers, meaning those
referred workers who contact the ES Office to verify the date of need
pursuant to paragraph (d)(4). As discussed below, the Department
proposes to remove paragraph (d)(4), which includes this verification
requirement. With the proposed change to have employers notify workers
of any change in their start date, the requirement that referred
workers verify their start date with the ES Office is no longer
necessary. Finally, the Department proposes to include the requirement
to provide housing and subsistence to all workers who are already
traveling to the place of employment, without cost to the workers,
until work commences and to pay up to 2 weeks of wages or find
alternative work from paragraph (c)(5), as the Department proposes to
amend it, in the assurance. This change will make this obligation clear
to the employer at the time they complete and sign the clearance order.
The Department also proposes several changes to paragraph (c)(5).
First, the Department proposes to specify that the employer must
provide notice to the worker placed under the clearance order, which
will align this paragraph with paragraph (c)(3)(iv) and the proposed
changes to the assurance described therein. For the same reason, the
Department proposes to remove language stating employers must pay only
workers who are eligible pursuant to paragraph (d)(4).
The Department proposes to further revise paragraph (c)(5) to
clarify that the employer would be required to provide housing and
subsistence to all workers who are already traveling to the place of
employment, without cost to the workers, until work commences and to
pay the specified hourly rate of pay on the clearance order, or if the
pay listed on the clearance order is a piece-rate, the higher of the
Federal or State minimum wage, or if applicable, any prevailing
wage.\9\ If the order is a criteria clearance order the employer would
be required to pay the rate of pay under part 655, subpart B. These
proposed edits would align the wage requirement in this paragraph with
proposed wage requirements in part 655, subpart B, as applicable. The
Department further proposes to require that employers, if they fail to
provide the required notice at least 10 business days before the
original date of need, must pay the required wage for up to 2 weeks
instead of the 1 week currently required. The Department proposes this
change because, as discussed above, the Department believes 1 week of
wages is not sufficient to ensure workers do not experience the
financial hardship that would come with being unable to start work on
time, particularly if these workers have traveled for the job.
---------------------------------------------------------------------------
\9\ For requirements on costs for workers traveling from abroad,
including in the event of a minor delay, see Sec. 655.122 and the
discussion of proposed Sec. 655.175 in section IV.E.
---------------------------------------------------------------------------
The Department proposes to revise paragraph (c)(5) to clarify that
any alternative work must be in the approved clearance order to help
ensure employers do not require workers to perform work at sites not
approved by the SWA and, for criteria clearance orders, the Department.
The Department proposes to add language to clearly instruct the SWA to
process violations of these requirements as apparent violations, which
Sec. 658.419 describes as violations that SWAs, ES office staff, or
outreach staff observe or of which they have information, and which
staff must document and refer for further action. The Department
proposes these changes because SWAs have identified many apparent
violations where employers caused workers to work at worksites that
were not approved in their clearance orders. In some recent cases, the
workers were not properly trained and were caused to perform dangerous
tasks, which presented serious health and safety risks. It is
critically important that all worksites are known and approved by the
SWA and, as appropriate, the Department, to avoid workplace injuries,
improper wage payments related to performance of non-agricultural work,
and potential human trafficking.
Finally, the Department proposes to remove paragraphs (d)(4), (7),
and (8) in their entirety because, with the proposed change to have
employers notify workers of any change in the start date, the
requirement that the applicant holding office notify workers of any
changes is no longer relevant or necessary.
D. Discussion of Proposed Revisions to 20 CFR Part 658, Subpart F
This subpart sets forth the regulations governing the
discontinuation of Wagner-Peyser Act ES services to employers. In 1977,
the Department published regulations at 20 CFR part 658 governing the
monitoring of all ES activities and enforcement of ES regulations.
Subpart F provided procedures for discontinuation of services where a
State agency, through its director, determined that an employer
violated ES regulations. Under subpart F, where a complaint alleging an
employer violated ES regulations could not be resolved or, in the
absence of a complaint, where the State had reason to believe an
employer violated ES regulations and could not informally resolve the
matter, the State would refer it to the State director for formal
investigation. Where the director issued a formal, written
determination that an employer violated ES regulations, the
determination would include a notification that the State would
initiate discontinuation procedures in 30 days unless the employer
provided sufficient evidence that it did not violate the ES regulations
or had corrected the violation. If the matter was not resolved in 30
days, the State would then notify the employer in writing that it would
terminate ES services in 15 days unless the employer requested a
hearing or provided sufficient evidence that it did not violate ES
regulations. Where the employer did neither, the State would
discontinue ES services to the employer until the employer provided
sufficient evidence that it did not violate ES
[[Page 63761]]
regulations or that it corrected the violation.
In 1980, the Department published regulations to clarify and
streamline the discontinuation provisions. In addition to violations of
ES regulations, the Department set forth several, specific bases for
discontinuation (e.g., where the employer is found to have
misrepresented the terms and conditions of a job order, or found by an
enforcement agency to have violated an employment-related law). The
Department also revised the discontinuation procedures to include (1) a
notice of intent to discontinue services, (2) an opportunity for
employer to respond and/or request a hearing, (3) a final
determination, and (4) an opportunity to request reinstatement or a
hearing.
The Department proposes revisions throughout this subpart to
further clarify the bases and process for discontinuing services
because the Department has observed a need for greater clarity among
SWAs about the circumstances under which they must discontinue services
to employers and the specific requirements they must follow to do so.
As discussed below, in the Department's view, SWAs do not utilize the
discontinuation process to the fullest extent because of uncertainty
regarding the process and requirements to discontinue services.
In this subpart, the Department also proposes to reorganize
regulations to more accurately group subjects and to more logically
arrange procedural steps, including when and how employers may request
a hearing. Finally, the Department proposes to clarify what ES services
would be unavailable after discontinuation and the entities subject to
discontinuation.
The existing regulations in this subpart require SWAs to
discontinue services to employers who meet any of the bases for
discontinuation detailed at Sec. 658.501(a), by utilizing the
procedures outlined in Sec. Sec. 658.501 through 658.504. However, the
Department has observed hesitancy among SWAs to utilize the existing
discontinuation provisions, and SWAs have shared information with the
Department that they do not fully understand the requirements to
discontinue services to employers and have sought instructions and
Departmental review of notifications to employers. The Department's
data suggests that this lack of clarity is limiting the SWA's use of
discontinuation. For example, a SWA is required to discontinue services
if an employer fails to fully comply with assurances made on clearance
orders. These assurances include compliance with housing standards,
wage payment, contract disclosure, recordkeeping, and other common
areas of employer noncompliance. As reported in the National Monitor
Advocate's (NMA) Annual Report on Services to MSFWs for program year
(PY) 2020, the most recent year for which data is available, Form ETA-
5148 (Services to Migrant and Seasonal Farmworkers Reports) documents
that SWAs processed 598 ES-related complaints against employers
involving non-MSFWs and 94 ES-related complaints against employers
involving MSFWs. Of the 2,581 total complaints received, which include
ES and non-ES related complaints involving MSFWs and non-MSFWs, SWAs
processed, 950 complaints related to wages, 270 complaints involved
discrimination, 173 complaints involved health and safety, and 88
complaints involved housing, in addition to other categories. Also, in
PY 2020, SWAs reported that they processed 453 apparent violations, as
described at Sec. 658.419, including 218 wage-related issues, 175
health and safety related issues, and 51 housing-related issues, in
addition to other categories. Despite the number of complaints and
apparent violations in these areas, SWAs reported that they
discontinued services to only 17 employers in PY 2020. While not every
complaint or apparent violation will result in discontinuation of
services, the low number of discontinuations relative to the number of
complaints and violations may suggest that enhanced clarity in the
bases and procedures for discontinuation is needed, and could aid SWAs
in better utilizing the discontinuation provisions to hold employers
accountable and protect workers from additional violations.
Similarly, SWAs must initiate discontinuation of services when the
Department or a SWA receives notification from an appropriate
enforcement agency of a final determination that includes a violation
of an employment-related law. Applicable enforcement agencies may
include any State, Federal, or local agencies that enforce employment-
related laws, for example the Department's Occupational Safety and
Health Administration (OSHA), WHD, the National Labor Relations Board
(NLRB), the Equal Employment Opportunity Commission (EEOC), State or
local departments of health, and other related agencies. WHD public
enforcement data documents thousands of investigations between PY 2012
and PY 2019 that involve employers who used the ES to place criteria
clearance orders and violated employment-related laws. However, between
PY 2012 to 2019, SWAs reported that they only discontinued services
twice (once in PY 2016 and once in PY 2019). Again, the glaring
disparity between the number of violations found by WHD and the actual
discontinuation of services by the SWAs during the same time period may
suggest that the SWAs would benefit from clarifying revisions to the ES
regulations governing the discontinuation process.
The Department believes that the increase in discontinuation of
services in PY 2020 is likely attributable to the NMA's increased
training of SWA staff in this area of the regulation and not due to an
increase in the number of employers meeting the conditions for
discontinuation of services. While this training provided needed
clarity to the SWAs, and therefore produced results, the Department
sees the need for additional clarity and support for SWAs to
discontinue services and mitigate the possibility of misunderstanding
or incorrectly utilizing the discontinuation provisions. As noted
above, in recent years, SWAs have shared information with the
Department that they do not fully understand the requirements to
discontinue services to employers and have sought instructions and
Departmental review of notifications to employers. In the Department's
review, the Department identified that SWAs have made errors regarding
citing applicable bases to discontinue services under Sec. 658.501(a),
describing necessary facts to justify the discontinuation, and
notifying employers of their right to a hearing. These issues
contributed to several instances where SWA were not successful in
discontinuing services to employers even though the SWAs believed they
had a sufficient basis to discontinue services. The Department believes
that revising the regulations, as described below, provides SWAs the
needed additional clarity to better implement the discontinuation
provisions and would allow ETA, including its regional offices, to
better monitor and support SWAs to ensure they initiate discontinuation
of services as required by the regulations. This would improve worker
protection by preventing noncompliant employers from using the ES
service to obtain workers (including H-2A workers, as employers seeking
to use the H-2A visa program must first file a clearance order through
the ES) which, in turn, aids the Department in ensuring a fair labor
exchange system for compliant employers, and meeting its statutory
obligations to maintain and increase the
[[Page 63762]]
usefulness of the ES system. Additionally, the proposed clarifications
and improvements to the discontinuation procedures provide greater
certainty to employers seeking to provide information to SWAs in
response to a notice of intent to discontinue, or seeking to reinstate
services, and protect employers' interests by ensuring that they
receive informative and timely determinations from SWAs. Specific
proposed changes are discussed below.
The Department proposes to revise Sec. 658.500, which describes
the scope and purpose of subpart F, to add language consistent with
proposed revisions to Sec. 658.503 that discontinued services include
services otherwise available under parts 652 and 653. This revision
clarifies the scope of services discontinued to include the labor
exchange services--such as recruitment, career, and labor market
information services--available to employers under part 652.
The Department also proposes to add paragraph (b) to Sec. 658.500,
which would explain that for purposes of this subpart, employer refers
to employers, as defined at Sec. 651.10, and agents, farm labor
contractors, joint employers, and successors in interest, as proposed
to be defined at Sec. 651.10. Proposed paragraph (b) would therefore
describe which entities may experience discontinuation of services.
Each of these entities may engage in the ES clearance system by
creating or submitting clearance orders, or by managing or utilizing
workers placed on ES clearance orders. Agents and farm labor
contractors often engage the ES clearance system by submitting
clearance orders and controlling many aspects of recruitment activities
relating to clearance orders. Joint employers may utilize workers
placed on clearance orders in the same or similar manner as the
employer, defined at Sec. 651.10, with whom they jointly employ those
workers. A successor in interest may have reincorporated itself from an
employer whose ES services have been discontinued into another business
entity that maintains the same operations or interests, allowing that
entity to undermine the effect of the discontinuation of the original
entity in contravention of the purpose of the discontinuation
regulation. The proposed revisions are meant to clarify and expand the
entities who engage the ES clearance system and are, thus, subject to
discontinuation. Specifically, this change makes it clear that agents,
farm labor contractors, joint employers, and any successor in interest
to an agent, farm labor contractor, or joint employer, are subject to
discontinuation of services. This proposed change addresses a
limitation of the current regulation, allowing SWAs to take action that
will better protect workers.
Finally, as the proposed agents, farm labor contractors, joint
employers, and successors in interest also seek temporary labor
certifications from OFLC under part 655, subpart B, adding these
entities here brings the discontinuation regulation in line with the
existing H-2A regulations, which permit the debarment of agents, farm
labor contractors, joint employers, and successors in interest, as well
as fixed-site H-2A employers, and agricultural associations.
Section 658.501 describes eight bases for which SWA officials must
initiate discontinuation of services to employers. The Department
proposes several edits to paragraphs (a)(1) through (7), except
paragraph (a)(3), including a substantive revision to paragraph (a)(4).
In paragraph (a)(1), the Department proposes to state that SWA
officials must discontinue services to employers who submit and refuse
to correct or withdraw job orders containing terms and conditions
contrary to employment-related laws. The existing regulation contains
the terms alter and specifications. The Department proposes to change
``alter'' to ``correct'' to more clearly articulate that the employer
must specifically correct the noncompliant condition rather than simply
changing the condition, which might not result in correction of the
noncompliance. This change would also clarify which action will lead to
the initiation of the discontinuation process. The Department proposes
to change ``specifications'' to ``terms and conditions'' to align the
language in paragraph (a)(1) with the language used in Sec. 653.501,
and proposes to change this term in the corresponding provision at
Sec. 658.502(a)(1) to conform to this proposed change to Sec.
658.501(a)(1).
The Department proposes to reorganize paragraph (a)(2) for clarity
by moving the language regarding withdrawal of job orders that do not
contain required assurances to earlier in the sentence. The Department
also proposes to remove language in paragraph (a)(2) that currently
limits this basis for discontinuation to only those assurances
involving employment-related laws. The Department proposes to remove
this language because employers must provide all assurances described
at Sec. 653.501(c)(3), which include more than the assurance to comply
with employment-related laws. The Department has determined that a
failure to provide any required assurance should be grounds for
discontinuation because each assurance is necessary to ensure workers
referred on clearance orders are fully apprised of and protected by the
assurances if placed on the order.
The Department proposes to amend paragraph (a)(4) to add that SWA
officials must initiate procedures for discontinuation of services for
employers who are currently debarred from participating in the
Department's H-2A or H-2B foreign labor certification programs. The
Department recognizes that many employers who use the ARS also seek
temporary labor certifications from OFLC under part 655, subpart B.
These employers may attempt to recruit workers through non-criteria
orders in the ARS if they are prohibited from using the H-2A program as
a result of their debarment. In its experience OFLC has seen many
instances where employers who should file H-2B applications because
they are seeking to employ workers in non-agricultural occupations
instead inappropriately file H-2A applications. Similarly, in its
enforcement experience WHD has seen employers that have
mischaracterized the nature of their labor needs on their applications
for labor certification to obtain labor certification to hire workers
from one program to work in job opportunities that are appropriately
classified in the other program. Failure to utilize the appropriate H-2
program results in the posting of inaccurate job orders, thereby
undermining the labor market test. It also deprives workers of the
specific protections available to them under each of the respective
programs, such as the right to housing free of cost under the H-2A
program. Likewise, it harms law-abiding employers as their competitors
gain an unfair advantage by offering fewer benefits to their workforce
or by avoiding the H-2B visa cap to which other employers must adhere.
In light of these experiences, the Department has determined that it is
appropriate for SWAs to initiate discontinuation proceedings against
entities debarred from participation in the H-2A or H-2B temporary
labor certification programs to protect workers seeking employment
through the ES system and to maintain a fair system for law-abiding
employers. The Department notes that Sec. 655.73 currently prohibits
employers debarred from the H-2B program from participating in any of
the Department's other foreign labor programs, including the H-2A
program; this proposal reinforces that prohibition.
The Department proposes this requirement to protect workers who use
the ARS by ensuring that ES offices do
[[Page 63763]]
not place U.S. workers with employers during any such period of
debarment. Debarment is a serious sanction that results from
substantial violations of a material term or condition of the
employer's temporary labor certification, and that is imposed only
after an employer has exhausted or forfeited an opportunity to respond
to the proposed action as well as substantial appeals procedures. These
may include violations related to worker safety, failure to provide
required wages or working conditions, failure to comply with
recruitment requirements or participate in required investigations or
audits, or failure to pay required fees. Entities that have committed
such violations should be excluded from participation in the ES, and
the Department's proposal will better protect U.S. workers by ensuring
that they will not be placed with debarred employers that have
substantially violated a material term or condition of their temporary
labor certification. The proposed changes would also ensure that law-
abiding employers have greater access to ES services and are better
able to recruit available U.S. workers for jobs because SWAs would
spend less time and resources serving noncompliant employers, and law-
abiding employers would receive referrals of qualified U.S. workers
that might otherwise go to noncompliant employers.
The Department invites comments on this proposed basis for
discontinuation and the inclusion of employers debarred from
participation in the H-2B program. In addition, the Department is
considering whether to expand this provision to require SWAs to
initiate discontinuation proceedings against employers that have been
debarred from any of the Department's other foreign labor certification
programs--the H-1B, CW-1, and PERM programs. The Department invites
comments on whether to expand this provision to all of the foreign
labor certification programs, or to some but not all of the other
foreign labor certification programs, the scope of employers to whom
this may apply, and the effect(s) of expanding this provision.
The Department proposes to amend Sec. 658.501(a)(5) by adding that
this basis for discontinuing services includes employers who are found
to have violated ES regulations pursuant to Sec. 658.411 or Sec.
658.419. This edit is intended to clarify that ES violations may be
found as a result of apparent violations, which are described at Sec.
658.419.
The requirement to accept qualified workers referred through the
clearance system applies only to criteria clearance orders filed
pursuant to Sec. 655.121; therefore, the Department proposes to amend
paragraph (a)(6) by clarifying that discontinuation on the basis of
failure to accept qualified workers would be appropriate only for
employers placing criteria clearance orders. For non-criteria clearance
orders, the regulations at part 653, subpart F, do not require
employers to hire all qualified workers referred through the ES, so
this basis for discontinuation would not apply.
In paragraph (a)(7), the Department proposes to remove the words in
the conduct of, which are currently present but do not add meaning and
are therefore extraneous and unnecessary.
Current Sec. 658.501(b) explains the circumstances and procedures
for immediate discontinuation of services. The Department proposes to
move paragraph (b) to Sec. Sec. 658.502 and 658.503 to clarify that
existing paragraph (b) is not an independent basis for discontinuation
and to better align it with the discontinuation procedures in
Sec. Sec. 658.502 and 658.503. Additional proposed changes are
discussed below.
The Department is redesignating current Sec. 658.501(c), which
recognizes the unique interplay between the ES and H visa programs, to
Sec. 658.501(b), with revisions. The proposed new Sec. 658.501(b)
explains what a SWA must do when it has learned that an employer
participating in the ES system may not have complied with the terms of
its temporary labor certification under, for example, the H-2A and H-2B
programs. The current regulation states that SWA officials must engage
in the procedures for discontinuation of services to employers pursuant
to paragraphs (a)(1) through (8) of Sec. 658.501. The Department
proposes to clarify that SWA officials must determine whether the SWA
must initiate discontinuation of services pursuant to Sec. 658.501(a).
The proposed change clarifies that SWAs cannot proceed with
discontinuation procedures based solely on information that an employer
may have violated the terms of its temporary labor certification.
Rather, SWAs must take that information and look to paragraph (a) to
determine whether one of the bases for discontinuation applies. Once a
SWA determines that one of the bases for discontinuation under
paragraph (a) does apply, then the SWA must initiate discontinuation of
services. Finally, as the proposed paragraph (b) would apply to both
currently active and previous labor certifications, the Department
invites comments on whether it would be appropriate to limit the scope
of previous labor certifications or potential violations of a labor
certification to a particular time period.
Section 658.502 describes the notification and procedural
requirements a SWA must follow when it intends to discontinue services
to an employer. The Department proposes several changes throughout
Sec. 658.502 to clarify and streamline these requirements. First, the
Department proposes to revise the section heading to state that it
relates to notification to employers of the SWA's intent to discontinue
services. This change clarifies that this section relates only to
initial notices proposing discontinuation and not to the final notices
described in Sec. 658.503. The Department also proposes to add
introductory language to the beginning of paragraph (a) to clarify that
these procedures apply where the SWA determines that there is an
applicable basis for discontinuation of services under Sec.
658.501(a). The Department proposes additional revisions to paragraph
(a) to clarify that the initial notices must provide the reasons for
proposing discontinuation and must state that the SWA intends to
discontinue services in accordance with this section. The proposed
language removes the reference to part 654, to which discontinuation of
services does not apply. These proposed revisions are intended to
address issues SWAs encountered in PY 2020 and 2021 in initiating
discontinuation of services, including insufficient notification to
employers of the applicable bases for discontinuation and insufficient
factual detail in the notices to support the applicable bases. The
Department notes that if more than one basis under paragraph (a)
applies, the SWA must initiate discontinuation under all applicable
bases.
Paragraphs (a)(1) through (7) of Sec. 658.502 provide specific
notification requirements for each of the corresponding bases for
discontinuation outlined in Sec. 658.501(a)(1) through (7). The
Department proposes to remove language in Sec. 658.502(a)(1) through
(7) that describes the applicable bases for discontinuation and instead
cross-reference the applicable citations for clarity. For example, the
Department proposes to revise Sec. 658.502(a)(1) to state that the
paragraph applies where the proposed discontinuation is based on Sec.
658.501(a)(1). This would replace current language that describes Sec.
658.501(a)(1) and more clearly and succinctly direct the SWA to Sec.
658.501(a)(1) as the applicable basis.
The Department also proposes to remove language in Sec.
658.502(a)(1) through (7) that provides employers the
[[Page 63764]]
opportunity for a pre-discontinuation hearing. In response to a SWA's
notice of intent to discontinue services, the existing language
provides an employer the opportunity to submit evidence contesting the
proposed discontinuation and/or to request a hearing pursuant to Sec.
658.417. The proposed revisions will better align the hearing
procedures for discontinuation of services at part 658, subpart F, with
the hearing procedures for the ES Complaint System at Sec. Sec.
658.411(d) and 658.417, which allow for a hearing by a State hearing
official only after the SWA issues a final decision on a complaint. As
currently written, the discontinuation proceedings at Sec.
658.502(a)(1) through (3) and (5) through (7) allow for a hearing under
Sec. 658.417 without the SWA ever issuing a final determination under
Sec. 658.503. This prevents SWAs from uniformly issuing final
determinations in all discontinuation proceedings. Additionally, it
inadvertently allows employers to bypass a formal decision from the SWA
anytime they request a hearing and, because State administrative
hearings may take several months to complete, inadvertently prolongs
any formal determinations. The Department believes that removing the
opportunity for a pre-discontinuation hearing--while maintaining the
opportunity for employers to submit evidence contesting the proposed
discontinuation under Sec. 658.502 and the opportunity for a post-
discontinuation hearing in Sec. 658.504--allows SWAs to expeditiously
and fairly resolve discontinuation proceedings while providing
sufficient due process to employers. The proposed change allows for a
more complete record than would result from an immediate appeal of a
notice from the SWA proposing discontinuation. This proposed change
also better aligns with the ES Complaint System regulations which do
not contemplate pre-determination hearings. Moreover, as discussed
above, the 1977 discontinuation regulations only allowed for pre-
discontinuation hearings and, in an effort to clarify and streamline
the discontinuation provisions, the 1980 regulations allowed for both a
pre- and post-discontinuation hearing pursuant to Sec. 658.417. In
doing so, the pre-discontinuation hearing currently available under
Sec. 658.502 is no different than the post-discontinuation hearing
available under Sec. 658.504. Removing the identical pre-
discontinuation hearing allows for a more efficient process without
removing due process protections for employers and ensures that post-
discontinuation hearings are decided on a more complete record.
Finally, in Sec. 658.502(a)(1) through (7), the Department
proposes changing the language that SWAs must notify employers that all
employment services will be terminated to state that all ES services
will be terminated. The proposed language clarifies that the services
at issue are specific to the ES.
In addition to the changes described above, the Department proposes
revisions to paragraphs (a)(1) through (7) to provide greater detail
and specificity regarding the type of information that SWAs must
provide to employers when proposing to discontinue services. The
proposed changes ensure that SWAs adequately explain their reasons for
proposing discontinuation, and that employers have sufficient factual
detail to respond to the proposed discontinuation. In these paragraphs,
the Department also proposes small changes for clarity, including
rewording sentences so they use the active voice.
In paragraph (a)(2), the Department proposes to add language
explaining that SWAs must specify the assurances involved and must
explain how the employer refused to provide the assurances. The
proposed edits ensure that SWAs describe the basic facts that led them
to initiate discontinuation of services so employers understand the
scope of the alleged violation and have sufficient information to
respond. The Department also proposes a revision to paragraph
(a)(2)(ii) to align this paragraph with the proposed changes to Sec.
658.501(a)(2), discussed above, regarding the scope of the required
assurances.
In paragraph (a)(3), to provide clearer direction to SWAs and
better notice to entities receiving a notice, the Department proposes
to add language stating that SWAs must specify the terms and conditions
the employer misrepresented or the assurances with which the employer
did not fully comply, and explain how the employer misrepresented the
terms or conditions or failed to comply with assurances on the job
order. In paragraph (a)(3)(iii), the Department proposes removing the
requirement that employers provide resolution of a complaint which is
satisfactory to a complainant referred by the ES, replacing it with the
requirement that an employer provide adequate evidence that it has
resolved the misrepresentation of terms and conditions of employment or
noncompliance with assurance. Evidence is adequate if the SWA could
reasonably conclude that the employer has resolved the
misrepresentation or noncompliance. The proposed change removes
unnecessary and out-of-place language regarding ES complaints, which
are addressed in paragraph (a)(5), and better aligns Sec.
658.502(a)(3) with proposed Sec. 658.501(a)(3). The Department also
proposes combining paragraphs (a)(3)(iii) and (iv) to make clear that
employers need to provide the information in paragraphs (a)(3)(iii) and
(iv) together.
In paragraph (a)(4), the Department proposes to add language that
SWAs must provide evidence of the final determination by an enforcement
agency of a violation of an employment-related law or debarment with
the notice of intent to discontinue services. For purposes of
discontinuation, a final determination is a decision by an enforcement
agency, such as WHD, OSHA, or other Federal, State, or local agency
responsible for enforcing employment-related laws, that has become
operative under applicable law. For final determinations, the
Department proposes adding language clarifying that the SWA must
specify--as discussed in the final determination or debarment--the
enforcement agency's findings of facts and conclusions of law as to the
employment-related law violation(s). For final debarment orders, the
Department proposes adding language requiring the SWA to specify the
time period for which the employer is debarred from participating in
one of the Department's foreign labor certification programs. These
proposed revisions ensure the SWA has confirmed that a final
determination or debarment exists and that the employer has sufficient
information regarding the final determination at issue to respond.
The Department proposes revisions to Sec. 658.502(a)(4)(i) through
(iii) to clarify and explain the evidence and assurances that employer
may provide to avoid discontinuation of services. In paragraph
(a)(4)(i), the Department proposes to remove existing language stating
that the employer may provide evidence that the enforcement agency
reversed its ruling and that the employer did not violate employment-
related laws; and to replace it with language stating that the employer
may provide evidence that the determination at issue is not final
because, for example, it has been stayed pending appeal, overturned, or
reversed. The proposed change clarifies that employers may contest the
finality of the determination under paragraph (a)(4) and clarifies that
SWAs may not discontinue services where a determination is not, in
fact, final. The Department proposes a new paragraph
[[Page 63765]]
(a)(4)(ii) which requires employers to submit evidence that their
period of debarment is no longer in effect and that they have taken all
actions required by the enforcement agency as a consequence of the
violation. If the proposed discontinuation is based only on a final
determination of a violation of an employment related law, then
evidence that the debarment is no longer in effect is not needed;
similarly, if the proposed discontinuation is based on a debarment then
evidence that the employer has taken necessary remedial actions is not
necessary. The proposed addition in paragraph (a)(4)(ii)(A) is
necessary to address employer responses to debarment or
disqualification. The proposed paragraph (a)(4)(ii)(B) incorporates
existing language and is meant to more clearly encompass any and all
actions required by final determination but does not substantively
change what an employer has to show under current Sec.
658.502(a)(4)(ii).
In paragraph (a)(5), the Department proposes additional language to
clarify that the SWA must specify which ES regulation the employer has
violated and must provide basic facts to explain the violation. The
proposed language ensures that SWAs provide sufficient factual detail
regarding the ES violation at issue so the employer can respond.
The Department proposes to revise Sec. 658.502(a)(6) to explain
that SWAs must state that the job order at issue was filed pursuant to
Sec. 655.121 and specify the name of each worker who was referred and
not accepted. The proposed revision is consistent with the proposed
change to Sec. 658.501(a)(6) and ensures that SWAs provide sufficient
factual detail regarding the workers at issue so the employer can
respond. In paragraph (a)(6)(iii), the Department proposes changing and
to or to decouple paragraph (a)(6)(iii) from the assurances required in
existing paragraph (a)(6)(iv), as it is not necessary for employers
that did not violate the requirement to provide assurances of future
compliance. The Department proposes a new paragraph (a)(6)(iv), to add
an option for the employer to show that it was not required to accept
the referred workers, because the time period under 20 CFR 655.135(d)
had lapsed, and a new paragraph (a)(6)(v), to add an option for the
employer to show that, after initial refusal, it subsequently accepted
and offered the job to the referred workers or to show that it has
provided all appropriate relief imposed as a result of the refusal. It
is necessary to update this paragraph because the current regulation
does not provide for the scenario where an employer subsequently offers
employment to qualified workers after first refusing, as the current
paragraph (a)(6)(i) is intended to capture scenarios where an employer
accepted qualified workers and did not refuse them as found by the SWA.
It is also possible that SWAs may attempt to resolve apparent
violations involving failure to hire qualified U.S. workers referred
through the ES, resulting in employers hiring those individuals.
Finally, the Department proposes to move existing paragraph (a)(6)(iv)
to paragraph (a)(6)(vi) to maintain the requirement that the employer
provide assurances that qualified workers referred in the future will
be accepted; and adds new language to clarify the assurance that is
required depending on whether the period described in 20 CFR 655.135(d)
has lapsed, as after the end of the period the employer would no longer
be required to accept referred workers on the particular clearance
order involved. This change provides a means of ensuring future
compliance with the requirement that the employer submitting criteria
clearance orders hires all qualified workers referred to the order.
In paragraph (a)(7), the Department proposes clarifying edits that
provide clearer direction to the SWA but that do not change the
regulation's meaning, including rephrasing sentences and changing the
pronoun used for employers to it instead of he/she.
The Department proposes to add a new paragraph (a)(8) to explain
information the SWA must include in its notice to an employer proposing
to discontinue services where the decision is based on Sec.
658.501(a)(8) (repeatedly causes the initiation of discontinuation of
services). The Department proposes that the SWA must list and provide
basic facts explaining the prior instances where the employer has
repeatedly caused initiation of discontinuation proceedings to provide
notice of the basis for the SWA's action to facilitate their response.
The SWA must notify the employer that all ES services will be
terminated unless the employer within that time provides adequate
evidence that the SWA's initiation of discontinuation in prior
proceedings was unfounded. The proposed paragraph (a)(8) replaces
existing paragraph (c), which discusses discontinuation based on Sec.
658.501(a)(8) but does not include clear direction to the SWA and does
not provide sufficient notice to employers to allow them to respond.
The Department proposes to remove existing Sec. 658.502(b) and (d)
because these paragraphs pertain to the employer's pre-determination
opportunity to request a hearing. As described above, the Department
proposes to eliminate the opportunity for an employer to request a
hearing until after the SWA has provided its final notice on
discontinuation of services to the employer.
The Department proposes a new Sec. 658.502(b) to explain the
circumstances that warrant immediate discontinuation of services. The
proposed addition replaces existing Sec. 658.501(b), in part, and
states that SWA officials must discontinue services immediately, in
accordance with Sec. 658.503, without providing the notice of intent
and opportunity to respond described in this section, if an employer
has met any of the bases for discontinuation of services under Sec.
658.501(a) and, in the judgment of the State Administrator, exhaustion
of the administrative procedures set forth in this section would cause
substantial harm to workers. The existing Sec. 658.501(b) states that
SWA officials may discontinue services immediately in these
circumstances, whereas the proposed new Sec. 658.502(b) states that
SWAs must discontinue services immediately. Additionally, existing
Sec. 658.501(b) allows for discontinuation when there would be
substantial harm to a significant number of workers, whereas proposed
new Sec. 658.502(b) requires immediate discontinuation when there
would be substantial harm to workers. The proposed changes recognize
that immediate discontinuation is warranted where the harm at issue
would involve only one or a small number of workers, and that where
such harm would occur SWAs must be required to initiate discontinuation
to prevent the harm from actually occurring to workers. Finally, this
proposed paragraph clarifies that immediate discontinuation is
appropriate only when a basis under proposed Sec. 658.501 exists and
the SWA determines that substantial harm would occur; risk of
substantial harm alone is not enough for a SWA to immediately
discontinue services.
Section 658.503 describes the procedural requirements a SWA must
follow when issuing a final determination regarding discontinuation of
services to an employer. The Department proposes to revise paragraph
(a) to require that within 20 working days of receipt of the employer's
response to the SWA's notification under Sec. 658.502, or at least 20
working days after the SWA's notification is received by the employer
if the SWA does not receive a response, the SWA must notify the
employer of its
[[Page 63766]]
final determination. When the SWA sends its notification, it must do so
in a manner that allows the SWA to track receipt of the notification,
such as certified mail. If the SWA determines that the employer did not
provide a satisfactory response in accordance with Sec. 658.502 the
SWA's notification must specify the reasons for its determination,
state that the discontinuation of services is effective 20 working days
from the date of the notification, state that the employer may request
reinstatement or a hearing pursuant to Sec. 658.504, and state that a
request for a hearing stays the discontinuation pending the outcome of
the hearing. The Department is proposing this stay pending appeal and
the 20-working-day period to ensure that employers are provided an
opportunity to challenge the SWA's determination before losing access
to all ES services. Staying the effect of discontinuation during the
pendency of an appeal is appropriate to allow for full adjudication and
resolution of any issues related to the SWA's findings before they
become final and binding on the employer and the ES system, mitigating
the risk that an employer is erroneously deprived of access to
services, similar to the procedures in Sec. 658.502. Additionally,
placing the effective date at the end of the 20-day period, rather than
at the issuance of the notification, avoids depriving appealing
employers of ES services for a short period of time prior to their
request for hearing. This also makes for a more efficient process for
SWAs and ETA, as these agencies would otherwise expend time and
resources to effectuate a discontinuation that may be premature--if the
employer requests a hearing a short time later, agencies would need to
use additional resources to then stay the discontinuation they just
effectuated. To facilitate implementation and maintenance of the
proposed Office of Workforce Investment discontinuation of services
list, discussed above, the SWA must also notify the ETA Office of
Workforce Investment of any final determination to discontinue ES
services, including any decision on appeal upholding a SWA's
determination to discontinue services.
The proposed Sec. 658.503(a) removes language regarding pre-
discontinuation hearings to correspond with proposed changes to Sec.
658.502. The Department believes that this timeline for SWAs is
appropriate because an expeditious resolution of the matter both
minimizes the uncertainty an employer faces when a SWA has proposed to
discontinue services, and it allows the SWA to deny services to
employers that have engaged in impermissible conduct. The effect of an
adverse final determination would be, among other things, to protect
workers from being placed with those employers and would prevent the
employer from seeking a temporary labor certification under part 655,
subpart B, of the title. Because of the potential consequences to both
employers and workers, the Department has determined that an
expeditious process would be necessary.
The Department proposes to add a new Sec. 658.503(b) to explain
the procedures for immediate discontinuation of services and to
incorporate them into the general discontinuation procedures at Sec.
658.503. The proposed new paragraph (b) replaces existing Sec.
658.501(b), in part, and states that the SWA must notify the employer
in writing that its services are discontinued as of the date of the
notice. The notification must also state that the employer may request
reinstatement or a hearing pursuant to Sec. 658.504, and that a
request for a hearing relating to immediate discontinuation does not
stay the discontinuation pending the outcome of the hearing. The
proposed new Sec. 658.503(b) adds that SWA must specify the facts
supporting the applicable basis for discontinuation under Sec.
658.501(a) and the reasons that exhaustion of the administrative
procedures would cause substantial harm to workers. The proposed
addition ensures that employers have sufficient information regarding
the SWA's rationale for immediate discontinuation, and makes clear that
employers have recourse to the State administrative hearing process or
reinstatement process if a SWA immediately discontinues services. While
discontinuation under a determination issued under Sec. 658.503(a) is
delayed until the employer's time to appeal the determination has
ended, the Department thinks that the circumstances justifying a notice
of immediate discontinuation also justify that the discontinuation be
effective immediately, irrespective of the employer's opportunity to
appeal, and that it remain in effect unless the employer is reinstated
or the determination is overturned. Immediate discontinuation is
reserved for those situations where the State Administrator determines
that substantial harm to workers will occur if action is not
immediately taken. For example, State Administrators may determine that
immediate discontinuation is justified when they receive information
evidencing that employers have made threats or have perpetrated
violence against workers, or that involve other substantial harm like
human trafficking and other significant health and safety issues. SWA
quarterly ETA Form-5148 reports evidence that SWAs processed 36
complaints and four apparent violations involving sexual harassment,
coercion, or assault, as well as two complaints and six apparent
violations involving trafficking in PY 2020.\10\ Additionally, over the
last several years, the Department has received information evidencing
that employers have made threats of physical violence against workers.
In two cases, employers were recorded on video threatening workers with
firearms. Delaying the effective date of the discontinuation would
undermine the protection that the immediate discontinuation procedure
is designed to provide. While the Department recognizes the burden that
employers may face if they do not have access to any ES services
pending an appeal of an immediate discontinuation, the Department
thinks that this burden is outweighed by the interest in protecting
workers from harmful, potentially dangerous situations. The Department
notes that in lieu of an appeal, an employer subject to immediate
discontinuation of services can request reinstatement from the SWA, and
that the proposed 20-day timeframe for the SWA to respond to such a
request may provide for timely and efficient resolution of an immediate
discontinuation. Finally, as with proposed Sec. 658.503(a), to
facilitate implementation and maintenance of the proposed Office of
Workforce Investment discontinuation of services list, discussed above,
the SWA must also notify the ETA Office of Workforce Investment of any
final determination to discontinue ES services.
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\10\ See Appendix IV LEARS 5148 Report Part 1 National Data for
PY 2020, https://www.dol.gov/sites/dolgov/files/ETA/mas/pdfs/APPENDIX%20IV%20LEARS%205148%20REPORT%20PART%201%20NATIONAL%20DATA.xlsx.
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The Department proposes to move current Sec. 658.503(b), which
requires the SWA to notify the relevant ETA regional office if services
are discontinued to an employer subject to Federal Contractor Job
Listing Requirements, to proposed new paragraph (c) and to make minor
edits to use active voice and to improve clarity, which do not change
the meaning of the requirement. The Department proposes to add
paragraph (d) to require SWAs to notify the complainant of the
employer's discontinuation of services, if the discontinuation of
services is based on a complaint filed pursuant to Sec. 658.411.
[[Page 63767]]
This requirement would align with section Sec. 658.411(b)(2) and (d).
The Department proposes to add a new paragraph (e) to explain the
effect discontinuation of services has on employers. The proposed new
paragraph explains that employers that experience discontinuation of
services may not use any ES activities described in parts 652 and 653,
and that SWAs must remove the employer's active job orders from the
clearance system and must not process any future job orders from the
employer for as long as services are discontinued. An employer's loss
of access to ES services applies in all locations throughout the
country where such services may be available. If the effect of the
discontinuation were limited to just the State that discontinued
services, it would frustrate the purpose of discontinuation.
This proposed new paragraph responds to common questions the
Department receives regarding the effect of discontinuation of services
on current and future job orders and, as with proposed revisions to
Sec. 658.500, clarifies that the scope of services discontinued to
include those ES services available to employers under part 652.
Proposed Sec. 658.501(b) would require SWA officials to notify the
OFLC National Processing Center (NPC) when an ES office or SWA has
information that an employer may not have complied with the terms of
its temporary labor certification, under, for example the H-2A and H-2B
programs. Therefore, in addition to closing the employer's active
clearance orders so that the employer will not receive additional U.S.
worker referrals, the NPC would be aware of the alleged noncompliance
so that it may investigate and apply appropriate actions to the foreign
labor certification. The Department is interested in comments on the
effect on both workers and employers of removing active job orders,
particularly criteria orders. The Department proposes new paragraph (f)
to explain that SWAs must continue to provide the full range of ES and
other appropriate services to workers whose employers' services have
been discontinued. The proposed new paragraph makes it clear that
discontinuation of services to employers does not, and should not,
negatively affect workers. SWAs must continue to provide necessary
support to workers, including outreach to MSFWs, access to the ES and
Employment-Related Law Complaint System, and all available ES services.
Section 658.504 describes the procedural requirements for seeking
reinstatement of ES services, which can be done either by requesting
that the SWA reconsider its decision or by requesting a hearing. The
Department proposes to restructure this section to more clearly explain
how services may be reinstated, the timeframes in which the employers
and SWA must act, and the circumstances under which services must be
reinstated.
The Department proposes to revise paragraph (a) to make clear that
employers have two avenues with which to seek reinstatement of
services--via a hearing within 20 working days of the discontinuation
or a written request to the SWA at any time following the
discontinuation. An employer cannot, however, simultaneously appeal a
discontinuation and submit a written request to the SWA for
reinstatement. The revised paragraph (a) adds the new requirement that
an employer who requests a hearing following discontinuation do so
within 20 working days of the date of discontinuation. These avenues
are available under the current regulation, but the Department has
added a requirement that the employer file an appeal within 20 working
days of the SWA's final determination because both the employer and the
State have an interest in timely and efficient adjudication of
disputes.
The Department proposes to revise Sec. 658.504(b) to explain the
circumstances and procedures under which SWAs must reinstate services
when an employer submits a written request for reinstatement. The
Department proposes new paragraph (b)(1), which retains the current 20-
day timeline in existing paragraph (b) within which the SWA must notify
the employer whether it grants or denies the employer's reinstatement
request. The proposed paragraph (b)(1) also requires that if the SWA
denies the request, the SWA must specify the reasons for the denial and
must notify the employer that it may request a hearing, in accordance
with proposed paragraph (c), within 20 working days.
The Department proposes to move current paragraph (a)(2), which
describes the evidence necessary for reinstatement, to proposed
paragraph (b)(2) to align with the overall restructuring of the
section. The Department also proposes to remove the word any to require
that the employer show evidence that all applicable specific policies,
procedures, or conditions responsible for the previous discontinuation
are corrected, instead of any policies, procedures, or conditions
responsible for the previous discontinuation. The Department is
concerned that the current language could permit reinstatement despite
an employer not correcting all relevant policies, procedures, or
conditions, which would be inconsistent with the purpose of
discontinuation. Finally, the Department also proposes to change the
pronoun used for employers to it instead of his/her.
The Department proposes to revise Sec. 658.504(c) to explain the
circumstances and procedures under which SWAs must reinstate services
when an employer submits a timely, written request for a hearing. The
proposed revisions maintain the procedures in existing paragraphs
(a)(1), (c), and (d), but have reorganized them into the same paragraph
for clarity. Finally, the Department proposes to replace the
abbreviated term ``Federal ALJ'' in the existing regulation with
``Federal Administrative Law Judge,'' commonly abbreviated as ALJ.
The Department proposes a new paragraph (d) to require that SWAs
notify the ETA Office of Workforce Investment of any determination to
reinstate ES services, or any decision on appeal upholding a SWA's
determination to discontinue services, within 10 working days of the
date of issuance of the determination. As discussed above, the
Department believes that prompt notification to the Office of Workforce
Investment will facilitate implementation and maintenance of the
proposed Office of Workforce Investment discontinuation of services
list and will ensure that employers whose services have been reinstated
may promptly access ES services.
IV. Discussion of Proposed Revisions to 20 CFR Part 655, Subpart B
A. Introductory Sections
1. Section 655.103(e), Defining Single Employer Test
The Department proposes to define a new term ``single employer'' to
codify and clarify its long-standing approach to determining if
multiple nominally separate employers are operating as one employer for
the purposes of the H-2A program. The Department has encountered
numerous instances over at least the last decade where it appears
separate entities are using their corporate structure--intentionally or
otherwise--to bypass statutory and regulatory requirements to receive a
temporary labor certification, or to circumvent regulations aimed at
protecting workers in the United States. See, e.g., Lancaster Truck
Line, 2014-TLC-00004, at *3, *5 (BALCA Nov. 26,
[[Page 63768]]
2013) (employer was ``frank about separating the legal entities of his
operation'' from his father's operation to ``comply with the H-2A
program's seasonal permitting restrictions'' and the ALJ held the
attempt to divide work did not demonstrate temporary need).
OFLC regularly receives and reviews applications for temporary
labor certification that appear to be for job opportunities with
different employers when in reality the workers hired under these
certifications are employed by companies so intertwined that they are
operating as a single employer in one area of intended employment for a
period of need that is not temporary or seasonal. The Department has
also increasingly encountered H-2A employers that employ H-2A workers
under one corporate entity and non-H-2A workers under another, creating
the appearance that the H-2A employer has no workers in corresponding
employment when actually, the corporate entities are intertwined and
all the H-2A workers are employed by a single H-2A employer, and the
non-H-2A workers are engaged in corresponding employment. Employers may
attempt to use these schemes to evade requirements of the H-2A program,
such as paying workers in corresponding employment the required wage
rate or abiding by the housing and transportation requirements of the
H-2A program.
OFLC currently uses, and has used for more than a decade, some form
of a ``single employer'' test to determine if nominally separate
employers should be considered as one entity for purposes of assessing
temporary or seasonal need (discussed further below under Temporary or
Seasonal Need). However, because this test is not incorporated into the
Department's regulations, it has been criticized and inconsistently
applied by the Board of Alien Labor Certification Appeals (BALCA).
Compare Mid-State Farms, LLC, 2021-TLC-00115, at *16, *25-27 (BALCA
Apr. 16, 2021) (noting that the ``single employer test'' has not been
subject to public comment, and thus using the ``joint employer test''
instead) (more discussion below) with K.S. Datthyn Farms, LLC, 2019-
TLC-00086, at *4-6 (BALCA Oct. 7, 2019) (applying the single employer
test to determine that two H-2A applicants for temporary labor
certification were one single employer with a single labor need).
Relying on Federal and BALCA case law, WHD currently also applies the
``single employer'' test to determine the H-2A employer's compliance
with program requirements.
The Department's proposal to add a definition of ``single
employer,'' which would explicitly permit the use of the single
employer test when reviewing applications for temporary labor
certification and for purposes of enforcement, is meant to codify the
Department's long-standing practice. Doing so would prevent employers
from using their corporate structures to circumvent regulatory
requirements and would provide notice and clarity to the stakeholder
community regarding the Department's single employer analysis. A
clearly articulated definition also could serve to deter employers from
utilizing practices that appear to circumvent the obligations of H-2A
employers by making explicit the obligations of the single employer.
This section discusses (1) the single employer definition the
Department proposes to add to a new subordinate paragraph (e) within
Sec. 655.103, including the factors the Department will consider when
determining whether two or more entities satisfy this definition; (2)
the use of the single employer test by OFLC when analyzing whether an
employer has a temporary or seasonal need; and (3) the use of the
single employer test in enforcement of contractual obligations.
a. Definition
As noted, the Department already applies a ``single employer'' test
(sometimes referred to as an ``integrated employer'' test) under the H-
2A program in certain contexts. OFLC currently uses this test to
determine if multiple nominally separate employers should be considered
as one entity for the purposes of determining whether an applicant for
labor certification has a temporary or seasonal need, and WHD uses this
test to determine whether H-2A employers complied with program
requirements. This test originated with the NLRB and has been adopted
by courts and Federal agencies under a wide variety of statutes. See S.
Prairie Const. Co. v. Local No. 627, Int'l Union of Operating Eng'rs,
AFL-CIO, 425 U.S. 800, 802-803 (1975). As the Second Circuit has
explained, the single employer test may be used to determine liability
for employment-related violations, as well as to determine employer
coverage, and the policy underlying the doctrine is ``fairness . . .
where two nominally independent entities do not act under an arm's
length relationship.'' Murray v. Miner, 74 F.3d 402, 404 n.1, 405 (2d
Cir. 1996).
Consistent with judicial and administrative precedent, the
Department has typically looked to four factors to determine whether
the entities at issue should be considered a single employer for
purposes of temporary need and compliance: (1) common management, (2)
interrelation between operations, (3) centralized control of labor
relations, and (4) degree of common ownership/financial control. See,
e.g., Sugar Loaf Cattle Co., 2016-TLC-00033, at *6 (BALCA Apr. 6, 2016)
(citing to Spurlino Materials, LLC v. NLRB, 805 F.3d 1131, 1141 (D.C.
Cir. 2015)). The proposed definition would incorporate the four factors
noted above and, as under current practice, the Department would
consider the totality of the circumstances surrounding the relationship
among the entities, and no one factor would be determinative in the
analysis.\11\
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\11\ See also Travis Hollifield, Integrated Employer/Enterprise
Doctrine in Labor & Employment Cases, The Federal Lawyer, December
2017, at 56, 58, http://www.fedbar.org/wp-content/uploads/2017/12/Labor-and-Empl-pdf-1.pdf.
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The Department's main concern in determining whether two or more
entities are operating as one is preventing employers from utilizing
their corporate structure(s) to circumvent the program's statutory and
regulatory requirements. As such, the Department's focus when examining
whether two or more entities are a single employer is both the
relationship between the entities themselves and each entity's use of
the H-2A program. See Knitter v. Corvias Military Living, LLC, 758 F.3d
1214, 1227 (10th Cir. 2014) (in a Title VII case, the court noted that
``the single employer test focuses on the relationship between the
potential employers themselves''). The Department emphasizes again that
no one factor is determinative as to whether entities are acting as
one.
Regarding the ``common management'' factor, the ``relevant inquiry
is whether there is `overall control of critical matters at the policy
level.' '' K.S. Datthyn Farms, LLC, 2019-TLC-00086, at *6 (citations
omitted) (quoting Spurlino Materials, 805 F.3d at 1142). Shared day-to-
day management may also indicate common management. Spurlino Materials,
805 F.3d at 1142. For example, where the same president, treasurer, and
chief operating officer oversee the actions of multiple entities and
resolve disputes, this suggests a common management between entities.
Pepperco-USA, Inc., 2015-TLC-00015, at *30-31 (BALCA Feb. 23, 2015).
Regarding the ``interrelation between operations'' factor, the
Department may look to whether the entities operate at arm's length.
Id. It may examine whether companies share products or services, costs,
worksites, worker
[[Page 63769]]
housing, insurance, software, or if they share a website, supplies, or
equipment. See, e.g., id.; Sugar Loaf Cattle Co., 2016-TLC-00033, at
*6-7 (finding an interrelation of operations in part because the work
locations were ``fundamentally at the same place''); David J.
Woestehoff, 2021-TLC-00112, at *11 (BALCA Apr. 2, 2021) (comparing
employers' housing locations and worksites to analyze their
relationship).
Regarding the ``centralized control of labor relations'' factor,
for example, the Department may look to whether the persons who have
the authority to set employment terms and ensure compliance with the H-
2A program are the same. K.S. Datthyn Farms, 2019-TLC-00086, at *5
(noting that the same manager signed different H-2A applications and
this was a ``fundamental labor practice [ ], at the core of employer-
employee relations for any business'').
Finally, regarding ``common ownership and financial control,'' the
Department may look to the corporate structure and who owns the
entities, whether it be, for example, a parent company or individuals.
See Pepperco-USA, Inc., 2015-TLC-00015, at *30-31 (two nominally
distinct entities were owned by one parent company). It may also
explore whether the owners of the entities at issue are related in some
way. See, e.g., JSF Enters., 2015-TLC-00009, at *13 (BALCA Jan. 22,
2015) (entities owned in varying degrees by members of the same
family); Larry Ulmer, 2015-TLC-00003, at *3 (BALCA Nov. 4, 2014) (two
companies with similar names were owned by father and son); Lancaster
Truck Line, 2014-TLC-00004, at *2-3 (father and son sought to separate
a business in an attempt to meet seasonal need requirements); see also
Overlook Harvesting Co., 2021-TLC-00205, at *13 (BALCA Sept. 9, 2021)
(the marital relationships between two companies' owners suggested
shared control).
These examples of analysis and lines of inquiry related to each of
the factors are not exhaustive.
b. Temporary or Seasonal Need
OFLC's COs will use the single employer test to determine if an
employer's need is truly temporary or seasonal. Section
101(a)(15)(H)(ii)(a) of the INA permits only ``agricultural labor or
services . . . of a temporary or seasonal nature'' to be performed
under the H-2A visa category. 8 U.S.C. 1101(a)(15)(H)(ii)(a). Thus, as
part of the Department's adjudication of applications for temporary
agricultural labor certification, the Department assesses on a case-by-
case basis whether the employer has established a temporary or seasonal
need for the agricultural work to be performed. See 20 CFR 655.103(d),
655.161(a).
As noted above, some nominally distinct employers have intertwined
agricultural operations such that when they apply for H-2A workers it
appears that two or more separate entities are each requesting a
different temporary labor certification. However, in reality, the
workers on these certifications are employed by a single enterprise in
the same area of intended employment and in the same job opportunity
for longer than the attested period of need on any one application. For
example, if Employer A has a need for two Agricultural Equipment
Operators from February to December, and Employer B has a need for two
Agricultural Equipment Operators from December to February at the same
worksite, this may reflect a single year-round need for Agricultural
Equipment Operators. See, e.g., Katie Heger, 2014-TLC-00001, at *6
(BALCA Nov. 12, 2013) (``Considering that the [two entities] appear to
function as a single business entity and have identified sequential
dates of need for the same work, their `temporary' needs merge into a
single year-round need for equipment operators.''). In these
situations, the two nominally separate employers may be applying for
certification for, and advertising for, one continuous, sometimes
permanent, job opportunity, which calls into question whether either
employer has a temporary or seasonal need.
This situation arises only when employers are filing multiple
applications for the same or similar job opportunities in the same area
of intended employment, such that the combined period of need is
continuous or permanent. Applications for job opportunities in
different occupations, involving different duties and requirements, or
opportunities in different areas of intended employment may not
demonstrate one singular continuous need for workers, regardless of
whether the two employers would satisfy the single employer test.
Furthermore, if the periods of need of two or more entities reflect the
same, or similar, need for labor, this is also not necessarily
problematic because the need is not continuous. For example, Employer A
has a need from January to April, and Employer B has a need from
February to April--the two employers may be a single employer, but the
need for workers, assuming the required labor levels are far above
necessary for ongoing operations, may still be seasonal.
Even if employers have genuine business needs for dividing their
business and then separately applying for H-2A workers, this approach
to filing labor certification applications is still problematic. It
undermines the statutorily required labor market test and the
Department's ability to protect workers in the United States as each
application, standing alone, does not fully convey the potential job
opportunity to any applicant--for example, the job opportunity could be
for 12 total months rather than 6 months with one employer, and 6
months with only a nominally separate entity. It is possible that a
U.S. worker would be interested in a job that could last a year, or
even permanently, rather than only 6 months. More importantly, it is a
statutory requirement that the H-2A work be of a temporary or seasonal
nature, and therefore employers submitting an application for temporary
labor certification are required to establish that they have a
temporary or seasonal need for agricultural labor. 8 U.S.C.
1101(a)(15)(H)(ii)(a), 20 CFR 655.103(d), 655.161. Permitting employers
with a permanent need to simply divide their business so that multiple
entities can establish a temporary or seasonal need, and thereby obtain
a labor certification, would violate the statute. See, e.g., Intergrow
East, Inc., 2019-TLC-00073, at *5 (BALCA Sept. 11, 2019) (``An employer
may not circumvent the temporary need requirement by using a closely
related business entity to file an overlapping application . . . .'')
(citations omitted). An employer need not be willful in its attempt to
circumvent program requirements to nevertheless engage in a business
practice that inhibits the Department's ability to protect workers and
carry out its statutory mandate.
To address these situations, for years OFLC has used an informal,
fact-focused method of inquiry, involving a comparison of case
information (e.g., owner and manager names, locations, recruitment
information, and other operational similarities across applications).
In approximately 2015, OFLC began to frame its single employer analysis
using the NLRB's single employer test (see above under Definition) to
improve consistency and transparency and to address more complex
business structures (e.g., corporate organizations) filing H-2A
applications through nominally different employers. See Pepperco-USA,
Inc., 2015-TLC-00015, at *4-5. Historically, BALCA has affirmed many
OFLC denials that either explicitly used the single employer test or
used a
[[Page 63770]]
similar analysis. See, e.g., K.S. Datthyn Farms, LLC, 2019-TLC-00086,
at *4-6 (affirming the CO and applying the four-part NLRA and Title VII
integrated employer test to determine that two H-2A applicants for
temporary labor certification were one integrated employer with a
single labor need); JSF Enters., 2015-TLC-00009, at *12 (affirming the
CO and finding that ``[t]he four entities . . . fill the same need on a
year round basis because of the interlocking nature of the businesses
and regardless of the distinction in crops each harvests [sic]'');
Altendorf Transp., Inc., 2013-TLC-00026, at *8 (BALCA Mar. 28, 2013)
(affirming the CO and noting that Employer's argument ``does not
overcome the interlocking nature of the business organizations . . . .
The Employer has the burden of persuasion to demonstrate it and [the
other entity] are truly independent entities.''); D & G Frey Crawfish,
LLC, 2012-TLC-00099, at *2, *4 (BALCA Oct. 19, 2012) (affirming the CO
and stating that ``[Employer's] ability to separate her operation into
two entities does not enable her to hire temporary H-2A workers to
fulfill her permanent need . . .'').
However, in more recent decisions, BALCA has sometimes rejected the
single employer test, noting that it had not been promulgated through
notice and comment rulemaking. See Mid-State Farms, LLC, 2021-TLC-
00115, at *16 (``This court can find no published instance where the
`Single Employer Test' has been debated openly, subjected to public
comment or accepted as official Department policy.''); Crop Transp.,
LLC, 2018-TLC-00027, at *6 n.6 (BALCA Oct. 19, 2018) (noting that the
single employer test ``is lamentable'' because of its ``awkward fit to
immigration practice and its ambiguity. . . . It would be helpful . . .
if meaningful regulatory criteria were promulgated through notice and
comment procedures as to when ETA will consider two nominally separate
entities as a single applicant for purposes of temporary labor
certifications under the Act.'').
In response to these concerns some ALJs have applied the ``joint
employer'' test to analyze temporary need because a definition of
``joint employment'' is included in the regulations. See, e.g., Mid-
State Farms, LLC, 2021-TLC-00115, at *26; Overlook Harvesting Co.,
2021-TLC-00205, at *10. Joint employment generally is ``where two or
more employers each have sufficient definitional indicia of being a
joint employer of a worker under the common law of agency.'' 20 CFR
655.103(b). Joint employment thus takes into consideration the
relationship between the employer and the employees, while the single
employer test focuses on the relationship between the nominally
distinct employers. See Knitter, 758 F.3d at 1227 (``Unlike the joint
employer test, which focuses on the relationship between an employee
and its two potential employers, the single employer test focuses on
the relationship between the potential employers themselves.'').
Finally, joint employment assumes that the entities are separate while
the single employer test asks whether ``two nominally separate entities
should in fact be treated as an integrated enterprise.'' Id. at 1226-27
(quoting Bristol v. Bd. of Cnty. Comm'rs, 312 F.3d 1213, 1218 (10th
Cir. 2002) (en banc)).
Determining whether two entities are joint employers, contrary to
BALCA's assertion in Mid-State Farms, LLC, is unhelpful when assessing
temporary or seasonal need where, for example, an employer splits their
business between two seemingly separate entities to circumvent the
requirement to establish a temporary or seasonal need. See Overlook
Harvesting Co., 2021-TLC-00205, at *10 (noting modified ``joint
employer'' test to analyze temporary or seasonal need was problematic
because two related companies could ``manipulate [their] seasonal
need'' under this test by splitting one, potentially year-long, season
into two seasons with one company working one season, and the other
working the other). In those situations, employees are generally not
employed by both nominally distinct employers at the same time, though
there may be overlap between the periods of need, making the analysis
of joint employment largely inapplicable. In assessing temporary or
seasonal need, the focus of the Department's analysis is not on the
relationship between the employer and the employees, but rather between
the employers themselves.
In light of the conflicting BALCA case law, and to codify its long-
standing practice, the Department proposes to incorporate the single
employer definition into the regulations and also notes that COs will
use the definition to analyze the temporary or seasonal need of
nominally separate entities.
The Department emphasizes that joint employment can still be useful
in analyzing temporary or seasonal need in the H-2A program, and this
proposal is not meant to eliminate or undermine appropriate use of the
joint employment test. For example, there may be a situation where an
employer applies for workers from January to April and then hires an H-
2ALC or subcontractor for the months of May to December. It is possible
that this subcontracting (or even a parent and subsidiary) relationship
could be joint employment as defined in the regulations. If such an
employer-applicant hires workers from January to April, and then
jointly employs workers in the same occupation in the same area of
intended employment from May to December, this employer-applicant would
have a year-round need and would therefore be unable to establish the
required temporary need for the H-2A program. The use of the single
employer test in temporary or seasonal need analysis will cover
situations where employees are not jointly employed.
Should a CO suspect that an employer-applicant has a true need that
stretches longer than their stated need because it is a single employer
together with another entity, the COs may issue a Notice of Deficiency
(NOD) to clarify the status of said entities. To analyze whether two
entities are a single employer, COs may request, via NOD, information
necessary for this determination, including, but not limited to: (1)
documents describing the corporate and/or management structure for the
entities at issue; (2) the names of directors, officers and/or managers
and their job descriptions; (3) incorporation documents; or (4)
documents identifying whether the same individual(s) have ownership
interest or control. The COs may additionally ask for explanation as
to: (1) why the businesses may authorize the same person or persons to
act on their behalf when signing contracts, or applications, etc.; (2)
whether the businesses intermingle money or share resources; (3)
whether workspaces are shared; and (4) whether the companies produce
similar products or provide similar services. These lists of
documentation or evidence are not exclusive, and the COs may request
other information or documentation as necessary.
c. Enforcement
The proposed definition of single employer also would explicitly
provide that the Department may apply this test for purposes of
enforcing an H-2A employer's contractual obligations. The Department
has increasingly encountered H-2A employers that employ H-2A workers
under one corporate entity and non-H-2A workers under another, such
that it appears that the H-2A employer has no non-H-2A workers in
corresponding employment when in reality, the companies are so
intertwined that all the workers are employed by a single employer, and
the
[[Page 63771]]
non-H-2A workers are employed in corresponding employment.
As noted above, and consistent with BALCA and Federal case law, WHD
already applies the single employer test in certain circumstances to
determine whether an H-2A employer has complied with its program
obligations. Over the past several years, WHD has increasingly
encountered employers employing temporary nonimmigrant workers that
utilize multiple, seemingly distinct corporate entities under common
ownership. In the H-2A context, these employers have divided their H-2A
and non-H-2A workforces onto separate payrolls, such that it appears
that the employer has no workers in corresponding employment, and
paying the non-H-2A workers less than the H-2A workers. However, the H-
2A and non-H-2A workers generally work alongside one another,
performing the same work, under the same common group of managers,
subject to the same personnel policies and operations. In these
circumstances, to determine whether the H-2A employer listed on the H-
2A Application employed the non-H-2A workers in corresponding
employment, the common law test for joint employment may not be a
useful inquiry because the interrelation of operations makes it
difficult to determine the relationship between each distinct corporate
entity and the workers. The single employer test is a more useful
inquiry because it focuses on the relationship between the corporate
entities to determine whether they are so intertwined as to constitute
a single, integrated employer, such that it is appropriate and ``fair''
to treat them as one for enforcement purposes. Absent application of
the single employer test, this burgeoning business practice might be
used--whether intentionally or not--to deprive domestic workers of the
protections of the H-2A program by superficially circumventing an
employment relationship with the H-2A employer as described herein,
contrary to the statute's requirements. 8 U.S.C. 1188(a)(1).
While WHD already utilizes the single employer test, the Department
believes that explicitly noting in the regulations the potential
applicability of this test for purposes of enforcement, and the factors
the Department will consider in applying this test, will provide
clarity for internal and external stakeholders and also could deter
employers from intentionally seeking to circumvent the H-2A program's
requirements in this manner. Just as the single employer test is not
meant to displace the joint employer test when analyzing temporary or
seasonal need, the Department does not propose to replace or supersede
the definition of ``joint employment'' under the existing regulations
for purposes of enforcement. Rather, depending upon the facts and
circumstances of a given case, the Department may apply the single
employer test, the joint employment test, or both in the alternative,
to determine an H-2A employer's compliance with program requirements.
d. Conclusion
In conclusion, the Department proposes a new paragraph (e) to Sec.
655.103 that grants the Department explicit authority to use the
definition of ``single employer'' to determine if nominally separate
employers should be considered one single employer for the purpose of
determining the applicant's temporary or seasonal need, or for purposes
of enforcement. The Department believes that incorporating this single
employer test into the regulations would allow for more consistent
application of the temporary or seasonal need requirement and improve
compliance with program obligations.
The Department recognizes that the adoption of the single employer
definition as it relates to temporary need assessments may impact some
businesses more than others. Regardless of the impact on certain
employers, the Department believes proposing this regulatory text is
necessary to ensure compliance with statutory and regulatory
requirements and clarify the appropriate standard to assess the nature
of the relationship between two or more entities. The Department
welcomes comments on these proposed revisions, especially comments
relating to the impact this may have on specific industries or types of
employers.
2. Section 655.104, Successors in Interest
The Department proposes several revisions to its current
regulations to clarify the liability of successors in interest and
revise the procedures for applying debarment to successors in interest
to a debarred employer, agent, or attorney. Since 2008, the
Department's H-2A regulations have made explicit that successors in
interest to employers, agents, and attorneys may be held liable for the
responsibilities and obligations of their predecessors, including
debarment. As the Department explained in the preamble to the H-2A
final rule issued in 2008, holding successors liable, particularly in
the context of debarment, is necessary ``to ensure that violators are
not able to reincorporate to circumvent the effect of the debarment
provisions,'' and ``to prevent persons or firms who were complicit in
the cause of debarment from reconstituting themselves as a new entity
to take over the debarred employer's business.'' 73 FR 77110, 77116,
77188 (Dec. 18, 2008) (2008 H-2A Final Rule). Despite these intentions,
the Department's current regulations governing debarment, as
interpreted by the ARB and the BALCA, are insufficient to effectively
prevent program violators from ``circumvent[ing] the effect of the
debarment'' as the Department originally intended. Id. at 77110.
Specifically, under the Department's current regulations and
controlling administrative precedent, before OFLC may deny an H-2A
Application filed by or on behalf of a successor in interest to a
debarred employer, agent, or attorney, the Department must first debar
the successor in interest pursuant to the full procedures for debarring
the original violating employer, agent, or attorney. See Admin. v.
Fernandez Farms, ARB No. 2016-0097, 2019 WL 5089592, at *2-4 (ARB Sept.
16, 2019) (holding that 29 CFR 501.31 requires WHD to issue a new
notice of debarment to a successor before subjecting the successor to
the original employer's WHD order of debarment); Gons Go, Inc., BALCA
Nos. 2013-TLC-00051, -00055, -00063 (BALCA Sept. 25, 2013) (holding 20
CFR 655.182 requires OFLC to first debar a successor of a debarred
employer, by completing the full debarment procedures in Sec. 655.182,
before it may deny the successor's application for labor
certification). These requirements are unnecessary under the principles
of the successorship doctrine, and unduly burden the Department's
ability to apply debarment to successors in interest, thus allowing
those known to have committed substantial H-2A violations to continue
to participate in the H-2A program.
Under the successorship doctrine, a putative successor in interest
to a debarred employer, agent, or attorney is entitled to notice and an
opportunity for hearing prior to denial of a future application only on
the question of its status as a successor in interest. See Golden State
Bottling Co., Inc. v. NLRB, 414 U.S. 168, 180 (1973) (discussing due
process rights of successors). The Department need not obtain a new
order of debarment against the successor directly; that is the ``whole
point'' of the successorship doctrine, that the liabilities of the
predecessor attach to the successor. Criswell v. Delta Air Lines, 868
F.2d 1093, 1095 (9th Cir. 1989).
[[Page 63772]]
Accordingly, the Department proposes several revisions to its
regulations to streamline the procedures by which it may apply a
debarment of an employer, agent, or attorney to a successor in interest
while affording putative successors due process. First, the Department
proposes a new Sec. 655.104, Successors in interest. Proposed
paragraphs (a) and (b) are similar to the longstanding definition of
``successors in interest,'' currently in Sec. 655.103(b), Definitions.
However, proposed paragraph (a) omits language in the current
regulation stating that liability of successors in interest arises
where an employer, agent, or attorney ``has ceased doing business or
cannot be located for purposes of enforcement.'' Instead, the
Department proposes adding to proposed paragraph (b) a similar--but
broader--definition of successors in interest. The new language in
proposed paragraph (b) would specify that ``[a] successor in interest
includes an entity that is controlling and carrying on the business of
a previous employer, agent, or farm labor contractor, regardless of
whether such successor in interest has succeeded to all the rights and
liabilities of the predecessor entity.'' This proposed revision
recognizes that successorship law does not typically limit successor
liability to scenarios where an entity has ceased doing business or
cannot be located. The Department believes these revisions will more
accurately capture successorship scenarios that may arise in the H-2A
context. In the same vein, in proposed Sec. 655.104(b) the Department
proposes minor revisions to the current definition in Sec. 655.103(b),
regarding the nonexhaustive factors that the Department would use in
determining successor status. The proposed revisions to the factors
would provide that the personal involvement of the successor firm's
supervisors and management in the violations underlying the debarment
is one of several factors, rather than the ``primary'' factor, to be
considered in cases of debarment. In its experience, the Department has
found the current regulation's reliance on this factor as the
``primary'' factor to be unduly limiting, and in tension with the
general principle in paragraph (i) of the definition of successor in
interest that no one factor should be dispositive in determining
successor status. 20 CFR 655.103(b) (paragraph (i) of the definition of
``successor in interest''). The Department also proposes a
corresponding revision to delete the definition of ``successor in
interest'' from the Definitions at Sec. 655.103(b).
Proposed Sec. 655.104(c) explains that when an employer, agent, or
attorney is debarred, any successor in interest to the debarred
employer, agent, or attorney is also debarred. Accordingly,
applications filed by or on behalf of a putative successor in interest
to a debarred employer, agent, or attorney would be treated like
applications filed by the debarred employer, attorney, or agent.
Specifically, under this proposal, if the CO determines that such an
application was filed during the debarment period, the CO would issue a
NOD under Sec. 655.142 or deny the application under Sec. 655.164,
depending upon the procedural status of the application. The NOD or
denial would be based solely on the basis of the applying entity's
successor status and would not address (nor would it waive) any other
potential deficiencies in the application. If the CO determines that
the entity is not a successor, the CO would resume with processing of
the application under Sec. 655.140. However, if the CO determines that
the entity is a successor, the CO would deny the application without
further review pursuant to Sec. 655.164. As with any other
certification denial, the putative successor could appeal the CO's
determination under the appeal procedures at Sec. 655.171;
specifically here, the question of whether the entity is, in fact, a
successor in interest to a debarred employer, agent, or attorney.
However, such appeal would be limited to the entity's status as a
successor given the narrow scope of the CO's determination under these
provisions. Accordingly, should a reviewing ALJ conclude that the
entity is not a successor, the application would require further
consideration and thus the ALJ would remand the application to OFLC for
further processing.
The Department proposes corresponding revisions to Sec. 655.182,
governing debarment, to state clearly that debarment of an employer,
agent, or attorney applies to any successor in interest to that
debarred employer, agent, or attorney. These proposed revisions would
remove references to successors in interest from current paragraphs (a)
and (b), would redesignate current paragraph (b) to paragraph (b)(1),
and would include a new paragraph (b)(2) that reiterates the procedures
for determining successor status as outlined in proposed Sec.
655.104(c).
Similarly, proposed Sec. 655.104(c) also would explain that the
OFLC Administrator may revoke a certification that was issued, in
error, to a successor in interest to a debarred employer, pursuant to
Sec. 655.181(a). The entity may appeal its successor status pursuant
to Sec. 655.171. The Department notes that it may revoke a
certification issued, in error, to a debarred employer or to a
successor of a debarred employer under its current revocation
authorities, but the Department proposes revisions to the bases for
revocation at Sec. 655.181(a)(1), to clarify that fraud or
misrepresentation in the application includes an application filed by a
debarred employer (and, by extension, an application filed by a
successor to a debarred employer). These proposed changes would simply
clarify this existing authority. However, given the impact of
revocation on both employers and workers, proposed Sec. Sec.
655.104(c) and 655.181(a)(1) would not explicitly contemplate
revocation of a certification issued, in error, based on an application
filed by a debarred agent or attorney, or by successors to a debarred
agent or attorney, as distinct from a debarred employer or successor in
interest to a debarred employer. The Department invites comment on
whether revocation may be warranted in such circumstances.
Finally, the Department proposes corresponding revisions to the
procedures governing WHD debarments under 29 CFR 501.20, including a
new proposed paragraph (j) that explicitly addresses successors in
interest. Under the successorship doctrine, as discussed above, and
under this proposed rule, WHD would not be required to issue a notice
of debarment to a successor in interest to a debarred employer, agent,
or attorney; rather, debarment of the predecessor would apply equally
to any successor in interest. However, as provided in proposed
paragraph (j), as a matter of expediency WHD could, but would not be
required to, name any known successors to an employer, agent, or
attorney in a notice of debarment issued under Sec. 501.20(a).
The Department has determined that these proposed revisions would
better effectuate the intent of the Department's current successor in
interest regulations, which are critically important to ensuring that
program violators cannot circumvent a debarment. The proposed
procedures would allow OFLC to apply a final order of debarment of an
employer, agent, or attorney to any successor in interest to the
debarred entity. The proposed procedures also would provide for
sufficient due process to putative successors, as the proposed
procedures would require OFLC to provide notice to the successor of the
basis for the deficiency under Sec. 655.141 or denial under Sec.
655.164 (i.e., its status as a successor), and an opportunity for
hearing on its successor status under
[[Page 63773]]
Sec. 655.171. The Department welcomes comments on these proposed
revisions.
3. Section 655.190, Severability
The Department proposes to add a severability clause to 20 CFR part
655, subpart B. This clause would explain that if any provision is held
to be invalid or unenforceable by its terms, or as applied to any
person or circumstance, or stayed pending further agency action, the
provision shall be construed so as to continue to give the maximum
effect to the provision permitted by law, unless such holding is one of
total invalidity or unenforceability, in which event the provision or
sub-provision shall be severable from the corresponding subpart or part
and shall not affect the remainder thereof. The Department proposes to
add this severability clause because generally, each provision within
the H-2A regulations is capable of operating independently from one
another, including where the Department has proposed multiple methods
to strengthen worker protections and to enhance the Department's
capabilities to conduct enforcement and monitor compliance. Further,
the severability clause demonstrates the Department's intent that the
remaining provisions of the regulations should continue in effect if
any provision or provisions are held to be invalid or unenforceable. It
is the Department's intent that the remaining provisions of the
regulations should continue in effect if any provision or provisions
are held to be invalid or unenforceable. It is of great importance to
the Department and the regulated community that even if a portion of
the H-2A regulations were held to be invalid or unenforceable that the
larger program could operate consistent with the expectations of
employers and workers.
The Department seeks comments both on the substance and scope of
this proposed severability clause and requests the public's views on
any other issues related to severability, such as whether the rule in
general includes provisions amenable to severability; whether specific
parts of the rule could operate independently; whether the benefits of
the rule would continue to justify the costs should particular
provisions be severed; or whether individual provisions are essential
to the entire rule's workability.
B. Prefiling Procedures
1. Section 655.120(b), Offered Wage Rate
Currently, Sec. 655.120(b)(2) provides that the Department will
update each AEWR at least annually by publication in the Federal
Register.\12\ In addition, paragraph (b)(3) requires employers to
adjust workers' pay, if necessary, so that the employer pays workers at
least the updated AEWR upon the effective date of the updated AEWRs in
the Federal Register. However, the present regulatory text does not
address when the AEWR published in a Federal Register notice becomes
effective. The Department therefore proposes to revise paragraph (b)(2)
and (3) to designate the effective date of updated AEWRs as the date of
publication in the Federal Register.
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\12\ Under 44 U.S.C. 1507, publication in the Federal Register
provides legal notice of the new wage rates.
---------------------------------------------------------------------------
The duty to pay an updated AEWR where it is higher than the other
wage sources is not a new requirement, nor is the requirement to pay an
increased AEWR immediately upon publication in the Federal Register.
Between 1987 and January 2018, the Department required employers
participating in the H-2A program to offer and pay the highest of the
AEWR, the prevailing wage, any agreed-upon collective bargaining wage,
or the Federal or State minimum wage at the time the work is performed
effective upon the date of publication in the Federal Register.\13\
Under more recent practice, however, when publishing the Federal
Register notice containing updated AEWRs, the Department has stated the
effective date of the new AEWRs in the notice and generally set the
effective date of the new AEWRs at no later than 14 calendar days from
the publication of that notice.
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\13\ See, e.g., 1987 H-2A interim final rule (IFR), 52 FR 20496,
20521; Labor Certification Process for the Temporary Employment of
Aliens in Agriculture in the United States; H-2A Program Handbook,
53 FR 22076, 22095 (June 13, 1988) (``Certified H-2A employers must
agree, as a condition for receiving certification, to pay a higher
AEWR than the one in effect at the time an application is submitted
in the event publication of the [higher] AEWR coincides with the
period of employment.'').
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In this rule, the Department proposes to revise paragraph (b)(2) to
designate the effective date of updated AEWRs as the date of
publication in the Federal Register. For further clarity, the
Department also proposes to revise paragraph (b)(3) to state that the
employer is obligated to pay the updated AEWR immediately upon the date
of publication of the new AEWR in the Federal Register. As noted above,
the proposal to remove an effective date which differs from the
publication date of the AEWRs represents a return to longstanding prior
practice. This change will also ensure that agricultural workers are
paid at least the most current AEWR when work is performed, which
better aligns with the Department's mandate to prevent adverse effect
on the wages of workers in the U.S. similarly employed. To eliminate
any potential confusion among either employers or workers as to when
the new AEWR will need to be paid, the NPRM also proposes to update the
regulatory text, which is currently silent on this issue, to clearly
state when the obligation to pay the new AEWRs begins.
While the Department recognizes that this proposal is a departure
from more recent practice that allowed a wage adjustment period, the
vast majority of employers will still have the opportunity to view and
assess the impact of the new AEWR rates prior to their publication by
the OFLC Administrator in the Federal Register on or around January
1.\14\ Prior to that publication, USDA publishes its FLS in late
November \15\ showing the wage data findings that become the new AEWRs
for the field and livestock workers (combined) occupational grouping.
Similarly, BLS publishes its OEWS data in March, which contains the
wage data that become the new AEWRs on or around July 1 for the small
percentage of job opportunities that cannot be encompassed within the
six Standard Occupational Classification (SOC) codes and titles in the
FLS field and livestock workers (combined) reporting category. The
Department will post a notice on the OFLC website when USDA publishes
the FLS and when BLS publishes the OEWS data that will direct employers
to the publicly available information. The Department recognizes that
the employers of the small number of field and livestock workers
(combined) job opportunities in
[[Page 63774]]
States or regions, or equivalent districts or territories, for which
the FLS does not report a wage (e.g., Alaska and Puerto Rico) will not
have similar direct access to information enabling them to predict the
applicable AEWR for planning purposes. However, as the Department noted
in the 2010 H-2A Final Rule, ``[as] . . . these wage adjustments may
alter employer budgets for the season,'' employers are encouraged ``to
include into their contingency planning certain flexibility to account
for any possible wage adjustments.'' 75 FR 6884, 6901 (Feb. 12, 2010).
The Department believes these proposed revisions will clarify employer
wage obligations and ensure that agricultural workers are paid at least
the AEWR in effect at the time the work is performed, without new or
additional impact to most employers' ability to budget and plan. The
Department seeks comments on all aspects of this proposal.
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\14\ See, e.g., 88 FR 12760, 12766 (the Department's program
estimates indicate that 98 percent of H-2A job opportunities are
classified within the six SOC titles and codes of the field and
livestock workers (combined) occupational grouping).
\15\ USDA's National Agricultural Statistics Service publishes
the Farm Labor report on its website at https://www.nass.usda.gov/Surveys/Guide_to_NASS_Surveys/Farm_Labor/. OEWS wages for each SOC
code and geographic area are available using the Department's search
tool or searchable spreadsheet that may be accessed at https://flag.dol.gov. BLS publishes OEWS data on its website at https://www.bls.gov/oes/data-overview.htm. An overview of the OEWS survey
methodology may be accessed at https://www.bls.gov/oes/current/oes_tec.htm. An explanation of the survey standards and estimation
procedures can be found at https://www.bls.gov/opub/hom/oews/pdf/oews.pdf.
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2. Sections 655.120(a) and 655.122(l), Requirement To Offer, Advertise,
and Pay the Highest Applicable Wage Rate
The Department proposes revisions to Sec. Sec. 655.120(a) and
655.122(l) to clarify that where there is an applicable prevailing
piece rate, or where an employer intends to pay a piece rate or other
non-hourly wage rate, the employer must include the non-hourly wage
rate on the job order along with the highest hourly rate. All potential
wage rates must be listed on the job order notwithstanding the fact
that it may not be possible to determine in advance which of these
rates is the highest. Once work has been performed, the employer must
then calculate and pay workers' wages using the wage rate that will
result in the highest wages for each worker in each pay period.
The Department's current regulations at 20 CFR 655.120(a) and
655.122(l) require an employer to ``offer, advertise in its
recruitment, and pay'' the highest of the AEWR, prevailing wage rate,
collective bargaining agreement (CBA) rate, or Federal or State minimum
wage. While seemingly straightforward, this requirement has been
difficult to apply in practice. For instance, where there is an
applicable prevailing piece rate, it is usually not possible to
determine until the time work is performed whether the prevailing piece
rate will be higher than the highest of the applicable hourly wage
rates as this will depend on worker productivity.
In such instances, OFLC currently only requires H-2A employers to
list a wage offer that is at least equal to the highest applicable
hourly wage--usually the AEWR--on job orders, consistent with BALCA
decisions dating from 2009 to 2011, which concluded that, under the
regulations, OFLC cannot require employers to include an applicable
prevailing piece rate on the job order where OFLC does not know at the
certification stage whether the prevailing piece rate will be higher
than the highest hourly wage. See, e.g., Golden Harvest Farm, 2011-TLC-
00442, at *3 (BALCA Aug. 17, 2011); Dellamano & Assocs., 2010-TLC-
00028, at *5-7 (BALCA May 21, 2010); Twin Star Farm, 2009-TLC-00051, at
*4-5 (BALCA May 28, 2009). While this has been the Department's
longstanding practice, the Department is concerned with the uncertainty
this practice can generate as to which rate or rates an employer must
include as the required wage in a job order and pay to H-2A workers and
workers in corresponding employment. Moreover, because the prevailing
piece rate is not included on the job order, in most such instances,
WHD is not able to enforce the prevailing piece rate.
In other instances, such as when there is not a prevailing wage,
employers may voluntarily elect to pay a piece rate or other non-hourly
wage rate but fail to include such rates on the job order, potentially
mispresenting the offered wage rate and failing to meet their
recruitment obligations.
The Department proposes several changes to the existing regulations
to address these issues. First, the Department proposes to retain the
current list of wage rates in Sec. 655.120(a), redesignated as Sec.
655.120(a)(1)(i) through (v), and to add to this list, at paragraph
(a)(1)(vi), ``[a]ny other wage rate the employer intends to pay.'' This
proposed addition will clarify an employer's obligation to include on
the job order any wage rate it intends to pay that could end up being
the highest applicable wage rate for some workers, in some pay periods.
The Department also proposes to add at Sec. 655.120(a)(2) an explicit
requirement that, where the wage rates in paragraph (a)(1) are
expressed in different units of pay, the employer must list the highest
applicable wage rate for each unit of pay in its job order and must
advertise all of these wage rates in its recruitment. Under this
proposal, where one of the wage rates in paragraph (a)(1) is expressed
as a piece rate and the others are expressed as hourly wage rates, the
employer must list both the piece rate and the highest hourly wage rate
on the job order. Where more than one of the wage rates in paragraph
(a)(1) are expressed as non-hourly wage rates the employer would be
required to list the highest applicable wage rate for each potential
unit of pay on the job order.
Next, the Department proposes corresponding changes at Sec.
655.122(l), including replacing the list of wage rates with a cross-
reference to Sec. 655.120(a)(1), removing the current language in
Sec. 655.122(l)(1) which would be made redundant by the changes to
Sec. 655.120(a), and making other technical edits. In addition, the
Department proposes to remove the current language at Sec.
655.122(l)(2)(i) and (ii), which requires an employer to supplement
workers' pay where a worker is paid by the piece and does not earn
enough to meet the required hourly wage rate for each hour worked, but
does not include an analogous requirement that an employer supplement
workers' pay when a worker who is paid by the hour does not earn enough
to meet the applicable prevailing piece rate. The Department proposes
to replace this language with a new provision at paragraph (l)(1)
explaining that the employer must always calculate and pay workers'
wages using the wage rate that will result in the highest wages for
each worker, in each pay period. Because employers would be required to
pay whichever wage rate will result in the highest wages in a
particular pay period, supplementing workers' pay to ensure that the
required hourly wage is met will no longer be necessary. Proposed new
paragraph (l)(2) explains that, where the wage rates set forth in Sec.
655.120(a)(1) include both hourly and non-hourly wage rates, the
employer must calculate each worker's wages in each pay period using
the highest wage rate for each unit of pay and must pay the worker the
highest of these wages for that pay period. Under this proposal, the
employer is responsible for evaluating the different wage rates
applicable in each pay period of the growing season, including any mid-
season increases in wage rate(s) that might not be reflected in the job
order. Proposed paragraphs (l)(1) and (2) also make clear that the
wages actually paid cannot be lower than the wages that would result
from the wage rate(s) guaranteed in the job order, so that, if there is
a mid-season decrease in wage rate(s), the workers are still entitled
to the higher wage rate(s) listed on the job order.
Under this proposal, where an employer includes multiple activities
or tasks, each of which have different applicable wage rates, in a
single job order, the employer must engage in the analysis set forth
above with respect to each activity or task. For example, if a job
order includes harvesting several varieties of apples, each with a
different
[[Page 63775]]
prevailing wage rate, the employer must list on the job order, for each
variety, both the highest applicable hourly wage rate and the highest
applicable wage rate for any other unit of pay, including any piece
rates. The employer would then be responsible for evaluating, with
respect to each activity or task performed in the pay period, which of
the applicable wage rates would result in the highest wage for the
worker for the work performed and to pay the worker the highest wage
with respect to each activity or task performed.
The Department believes that these proposed changes would help
ensure that employers' recruitment efforts reflect the correct
applicable wage rates so as to more accurately determine whether there
are U.S. workers who would be available and willing to accept the
employment. They also would help ensure that H-2A workers and workers
in corresponding employment are paid the wages to which they are
entitled (i.e., the highest of the AEWR, prevailing hourly wage or
piece rate, CBA rate, Federal minimum wage, State minimum wage, or any
other wage rate the employer intends to pay). Because H-2A employers
are already required to accurately track and record both hours worked
and field tallies pursuant to Sec. 655.122(j), the Department believes
that employers should already have processes in place to accurately
record information needed for compliance with the proposed changes to
Sec. Sec. 655.120(a) and 655.122(l), minimizing any additional
administrative burden these proposed changes would place on employers.
The Department welcomes comments on this proposal. In particular,
the Department is interested in examples of how this proposal would
work in practice, whether there are circumstances, such as when an
employer includes multiple activities or tasks in a single job order,
where further clarification is needed on which wage rates must be
listed in the job order and how to calculate the worker's wages, and
whether corresponding changes to the recordkeeping requirements at
Sec. 655.122(j) and (k) or to the requirements for SWAs' review of job
orders at part 653, subpart F, are needed. In addition, the Department
seeks comments on whether the requirement to list the highest
applicable wage rate for each unit of pay on job orders placed in
connection with an H-2A application renders unnecessary the requirement
at 20 CFR 653.501(c)(2)(i) that an employer that pays by the piece or
other non-hourly unit calculate and submit an estimated hourly wage
rate with the job order. Under the proposed rule, the job order in such
cases should guarantee payment of the highest of the applicable hourly
or non-hourly wage rates. The Department welcomes comment on whether
the calculation of an estimated hourly wage would still be necessary to
prevent adverse effect on similarly employed workers in the United
States and/or on agricultural workers generally.
The Department is considering making similar revisions to the
regulations at Sec. Sec. 655.210(g) and 655.211, governing the rates
of pay and contents of job orders for herding and range livestock
production occupations, to require an employer to disclose all
potentially applicable rates of pay in the job order. Under such a
proposal, for example, an employer would be required to disclose on the
job order both the monthly AEWR and a State minimum hourly wage rate
applicable to the job opportunity that could potentially result in
higher earnings based on hours worked. As explained above, the
Department believes that such disclosure would likely benefit potential
applicants to better understand the potential earnings for a job
opportunity, and would assist the Department with more efficient
program administration and enforcement. The Department welcomes comment
on whether it should include these similar revisions in any final rule.
The Department is also considering making similar revisions to the
regulations at 20 CFR 653.501(c), governing the requirements for SWAs'
review of clearance orders, to require an employer to disclose all
potentially applicable rates of pay in a non-H-2A (or non-criteria)
clearance order. Under such a proposal, an employer would be required
to disclose on the clearance order the highest applicable hourly wage
rate, if any (i.e., the highest of any applicable prevailing hourly
wage rate, the Federal or State minimum wage, or an hourly wage rate
the employer intends to pay), as well as any piece rate or other non-
hourly wage rate applicable to the job opportunity that could
potentially result in higher earnings, and to pay workers the highest
of these rates. The Department believes that such disclosure would
likely benefit potential applicants to better understand the potential
earnings for a job opportunity, and that it would minimize confusion to
require similar information for both criteria and non-criteria
clearance orders. The Department welcomes comment on whether it should
include these similar revisions in any final rule.
3. Section 655.122, Contents of Job Offers
a. Paragraph (h)(4) Employer Provided Transportation
The Department proposes to revise Sec. 655.122(h)(4) to require
the provision, maintenance, and wearing of seat belts in most employer-
provided transportation. The Department believes that existing vehicle
safety standards provide important safeguards for workers, but that
they are insufficient to adequately address transportation safety
challenges. The inclusion of regulations related to seat belts would
reduce the hazards associated with agricultural work, thus making these
H-2A jobs more attractive to workers in the United States.
Studies have shown that seat belt use dramatically decreases
occupant fatalities and injuries in the event of a vehicle crash. Seat
belts reduce fatalities and serious injuries by keeping occupants
inside the vehicle and close to their original seating position,
gradually decelerating the occupant as the vehicle deforms, and
prevents occupants from hitting the vehicle interior or other
passengers.\16\ DOT's National Highway Traffic Safety Administration
(NHTSA), which regulates vehicle manufacturing standards and studies
the efficacy of safety enhancements, began to require seat belts in at
least some vehicles beginning in 1968, and identifies seat belt
technology and usage as one of the most significant safety enhancements
of the past 60 years. NHTSA estimates that using a seat belt in the
front seat of a passenger car can reduce fatal injury by 45 percent and
reduce moderate to critical injury by 50 percent.\17\ The safety effect
increases in a light truck, where seat belts reduce fatal injury by 60
percent and reduce moderate to critical injury by 65 percent.\18\
Between 1960 and 2012, NHTSA estimates that seat belts have saved
329,715 lives, which constitutes more than half of the estimated lives
saved by safety improvements in this time period
[[Page 63776]]
(613,501).\19\ In 2020, estimated average passenger vehicle seat belt
use in the United States was 90.3 percent,\20\ but between 46 and 51
percent of those killed in passenger vehicle crashes were not wearing
seat belts.\21\
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\16\ See Nat'l Highway Traffic Safety Admin., Dep't of Transp.,
DOT HS-812-069, Lives Saved By Vehicle Safety Technologies and
Associated Federal Motor Vehicle Safety Standards, 1960 to 2012--
Passenger Cars and LTVs--With Reviews of 26 FMVSS and the
Effectiveness of Their Associated Safety Technologies in Reducing
Fatalities, Injuries, and Crashes 89 (2015) (2015 NHTSA Report),
https://crashstats.nhtsa.dot.gov/Api/Public/ViewPublication/812069.
\17\ Id. at 107-11. See also Seat Belts, Nat'l Highway Traffic
Safety Admin., https://www.nhtsa.gov/risky-driving/seat-belts#resources (``Seat Belts'').
\18\ 2015 NHTSA Report at 107-11.
\19\ Id. at xxxi-xxxii.
\20\ See Nat'l Highway Traffic Safety Administration, U.S. Dep't
of Transp., DOT HS 813-072, Traffic Safety Facts Research Note: Seat
Belt Use in 2020--Overall Results (2021) (2021 NHTSA Report),
https://crashstats.nhtsa.dot.gov/Api/Public/ViewPublication/813072.
\21\ Nat'l Highway Traffic Safety Administration, U.S. Dep't of
Transp., DOT HS 813-266, Overview of Motor Vehicle Crashes in 2020
11, 13 (2022), https://crashstats.nhtsa.dot.gov/Api/Public/ViewPublication/813266. NHTSA appears to estimate overall fatality
rates of unrestrained passengers compared only to other fatalities
where seat belt use was known and estimates that 51% of vehicle
occupants who are killed were not wearing seat belts. See id. at 13.
On the other hand, the Governors Highway Safety Association (GHSA)
cites the same data, but computes instead that 46% of occupants
killed were unrestrained, which likely reflects that GHSA compared
unrestrained fatalities with total fatalities, including where seat
belt use was unknown. See Seat Belts, Governors' Highway Safety
Ass'n, https://www.ghsa.org/issues/seat-belts.
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Individual State laws have significantly contributed to increased
seat belt usage in the United States.\22\ New York passed the first law
requiring the use of seat belts in 1984.\23\ Between 1984 and 1987,
State legislatures passed seat belt laws in 29 States.\24\ Today, all
States except New Hampshire require seat belt usage in the front seats,
and 40 of these States, as well as the District of Columbia and two
territories, also require seat belt usage in the rear seat.\25\ These
laws, in conjunction with sustained national campaigns to encourage
seat belt use (e.g., ``Click It or Ticket''), have increased seat belt
usage dramatically; estimated seat belt use in 1990 was 49 percent,
but, as mentioned, the estimated seat belt use in 2020 was 90.3
percent.\26\
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\22\ See 2015 NHTSA Report at 103-105.
\23\ See Nell Henderson, N.Y. Is First State to Get Seat Belt
Law, Wash. Post (July 13, 1984), https://www.washingtonpost.com/archive/business/1984/07/13/ny-is-first-state-to-get-seat-belt-law/b86fd522-bb32-4286-980a-caefdb3edfa5. This law, however, only
required the use of seat belts in the front seat.
\24\ See 2015 NHTSA Report at 105.
\25\ See Seat Belts.
\26\ See 2015 NHTSA Report at 105; 2021 NHTSA Report at 1.
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However, seat belt use in rural areas lags behind other parts of
the United States, and rural vehicle crashes are disproportionately
deadly. An analysis completed by the Centers for Disease Control and
Prevention (CDC) revealed that in 2014, age-adjusted passenger vehicle
occupant death rates per 100,000 population increased with increasing
rurality. For example, in the southern United States, the age-adjusted
death rate in vehicle crashes per 100,000 population in rural counties
was more than four times as high as those in urban counties (6.8 deaths
per 100,000 population in the most urban counties as compared to 29.2
deaths per 100,000 population in the most rural counties); this same
study showed that self-reported seat belt use in 2014 for the most
rural counties was only 74.7 percent, compared to 88.8 percent in the
most urban counties.\27\ As most agriculture is in rural areas,
agricultural workers are more likely to be exposed to dangers inherent
in rural transportation. The CDC also acknowledges that agriculture
itself is one of the most hazardous industries in the United States. In
2021, workers in the agriculture, forestry, fishing and hunting
industry experienced one of the highest fatal injury rates at 20 deaths
per 100,000 full-timeworkers--and nearly half of those deaths resulted
from transportation incidents.\28\ The Occupational Injury Surveillance
of Production Agriculture survey demonstrated that, in surveyed years
between 2001 and 2014, transportation related accidents (including
tractor rollovers) constituted approximately 12.7 percent of all
agricultural work-related injuries to adults 20 years and older.\29\
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\27\ Laure F. Beck, et al., Ctrs. for Disease Control &
Prevention, Rural and Urban Differences in Passenger-Vehicle-
Occupant Deaths and Seat Belt Use Among Adults, CDC Morbidity and
Mortality Weekly Report, Sept. 22, 2017, at 4, 6 https://www.cdc.gov/mmwr/volumes/66/ss/ss6617a1.htm.
\28\ See Table A-1, Fatal Occupational Injuries by Industry and
Event or Exposure, All United States, 2021, Bureau of Lab. Stats.
(Dec. 16, 2022), https://www.bls.gov/iif/fatal-injuries-tables/fatal-occupational-injuries-table-a-1-2021.html. However, this
category includes tractor rollovers, which may not qualify as
employer-provided transportation as it is being discussed in this
section.
\29\ Out of 334,606 injury events recorded, 42.527 of those
injury events (12.7 percent) were related to transportation. See
Table AI-11, National Estimates of Agricultural Work-Related
Injuries to Adults (20 Years and Older) on US Farms By Injury Event,
Nat'l Inst. for Occupational Safety & Health, Ctrs. for Disease
Control & Prevention (Apr. 10, 2018), https://www.cdc.gov/niosh/topics/aginjury/oispa/pdfs/AI-15-508.pdf.
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The Department's enforcement experience is consistent with the
statistics described above. Of the agriculture-related injuries and
fatalities that the Department has investigated in the last 5 years,
more than 60 percent related to farmworker transportation.
Additionally, some of the most significant injuries and fatalities
resulted when workers were not wearing seat belts. For example, in
calendar year (CY) 2022 alone, WHD investigated eight incidents
involving serious injury or death of farmworkers. Of these incidents,
seven involved agriculture-related vehicle crashes and only one
involved other safety issues. Of the crashes investigated in 2022, all
involved at least some workers who were not restrained by seat belts,
sometimes with fatal or serious consequences. For example, on May 31,
2022, in Indiana, a vehicle being driven by one H-2A worker and
carrying another H-2A worker collided with a semi-truck. The two
workers were ejected from the vehicle, as neither was wearing a seat
belt. The driver died and the passenger was air-lifted to the hospital
with life-threatening injuries. In another example, on April 15, 2022,
a vehicle carrying eight farmworkers in California ran a stop sign and
collided with an SUV. One occupant was not wearing a seat belt and was
ejected. The ejected passenger died, and seven other workers suffered
minor to moderate injuries.
Despite the statistics showing the dangers related to rural
transportation, agricultural transportation, and the failure to use
seat belts, as well as its own enforcement experience, the Department
has limited tools to address seat belt use in employer-provided
transportation. Current Sec. 655.122(h)(4) requires employers to
comply with all applicable local, State, or Federal laws and
regulations and, at a minimum, the same transportation safety
standards, driver's licensure, and vehicle insurance required under the
Migrant and Seasonal Agricultural Worker Protection Act (MSPA).
However, MSPA vehicle safety regulations were promulgated in 1983 when
seat belt use was less common, and they do not mandate that seat belts
be provided or worn.\30\ When State law requires the wearing of seat
belts, the Department may enforce the provision and wearing of seat
belts through State law under current Sec. 655.122(h)(4). However, not
all States require the provision and wearing of seat belts in all
seats,\31\ and other States exclude certain vehicles from seat belt
provisions.\32\ Even where States have farmworker-specific laws
requiring seat belts, such as in Florida, California, and Maine, these
laws often do not cover all vehicles used to transport farmworkers.\33\
Finally, many State seat
[[Page 63777]]
belt laws apply only on public roads and highways,\34\ but some vehicle
crashes involving H-2A or corresponding workers occur on private
property. Therefore, the Department is regularly unable to cite a
violation for an H-2A employer's failure to provide seat belts to
workers.
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\30\ See 29 CFR 500.104 and 500.105. See also 48 FR 15800 (Apr.
12, 1983); 48 FR 36736 (Aug. 12, 1983).
\31\ See, e.g., Ga. Code Ann. 40-8-76.1 (only requiring the use
of seat belts in the front seat).
\32\ See, e.g., N.C. Gen. Stat. 20-135.2A (exempting any vehicle
registered and licensed as a property-carrying vehicle in accordance
with North Carolina General Statutes section 20-88, while being used
for agricultural purposes in intrastate commerce, from seat belt
requirements).
\33\ See Cal. Veh. Code sec. 31405 (applying only to farm labor
vehicles); Fla. Stat. sec. 316.622 (same); Me. Rev. Stat. tit. 26,
sec. 643, tit. 29, sec. 2088. Both California and Florida law define
a ``farm labor vehicle'' as a vehicle used for the transportation of
nine or more farmworkers, in addition to the driver. See Cal. Veh.
Code sec. 322; Fla. Stat. sec. 316.003(26).
\34\ See, e.g., Cal. Veh. Code sec. 31405(d) (stating that ``no
person shall operate a farm labor vehicle on a highway'') (emphasis
added); Cal Veh. Code sec. 360 (defining highway as ``a way or place
of whatever nature, publicly maintained and open to the use of the
public for purposes of vehicular travel''). See also, e.g., N.C.
Gen. Stat. sec. 20-125.2A(a) (stating that ``each occupant of a
motor vehicle . . . shall have a seat belt properly fastened about
his or her body at all times when the vehicle is in forward motion
on a street or highway in this State'') (emphasis added); N.C. Gen.
Stat. sec. 20.4.01(13) (providing that a highway is ``[t]he entire
width between property or right-of-way lines of every way or place
of whatever nature, when any part thereof is open to the use of the
public as a matter of right for the purposes of vehicular traffic''
and that ``[t]he terms `highway' and `street' and their cognates are
synonymous'').
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The Department has periodically considered the inclusion of seat
belt requirements in farmworker transportation safety regulations. In
1983, the Department promulgated MSPA transportation safety regulations
pursuant to its authority under MSPA (29 U.S.C. 1801-1872) establishing
vehicle safety, drivers' licensure, and insurance standards for
vehicles transporting MSFWs, a category that excludes H-2A workers but
may include workers in corresponding employment (see 29 CFR 500.20).
See 48 FR 15800 (Apr. 12, 1983); 48 FR 36736 (Aug. 12, 1983). In these
regulations, the Department declined to require seat belts, stating
that requiring seat belts could place an unreasonable economic burden
on employers and lead them to discontinue transporting migrant workers
at short distances.\35\ See 48 FR 36736, 36738. Beginning in 2010, the
Department required all employer-provided transportation in the H-2A
program to comply with MSPA standards for vehicle safety, drivers'
licensure, and insurance. See 20 CFR 655.122(h)(4); 75 FR 6884, 6965
(Feb. 12, 2010). Seat belts were not discussed in the 2010 rulemaking.
Prior to the 2010 H-2A Final Rule, H-2A regulations required only that
all employer-provided transportation comply with all applicable laws
and regulations. In an NPRM published in 2019, the Department solicited
comments on additional transportation-related provisions to help
protect workers against driver fatigue and other unsafe driving
conditions. See 84 FR 36168, 36195 (Jul. 26, 2019). In the
corresponding final rule, the Department declined to include any
additional vehicle safety standards at the time, including seat belts,
but noted that employers must comply with State laws, many of which
required seat belts. See 87 FR 61660, 61719 (Oct. 12, 2022).
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\35\ 29 U.S.C. 1841(2)(B) explicitly requires the Department to
consider the extent to which a proposed transportation standard
under MSPA would cause an undue burden on agricultural employers,
agricultural associations, or farm labor contractors, a standard not
included in the H-2A provisions of the INA. Also, unlike the H-2A
program, MSPA does not require employers to provide transportation
between living quarters and the worksite, or inbound or outbound
transportation (unless disclosed that such transportation would be
provided). Additionally, the Department reached this conclusion
nearly four decades ago, when seat belts were less commonly used.
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Much has changed with respect to seat belts since the MSPA vehicle
safety standards were first developed in 1983. Many of the regulations
requiring the inclusion of seat belts when manufacturing vehicles and
incorporating new technologies to increase safety have been published
since 1983. Additionally, since 1983, seat belt use has become
significantly more common, increasing from 14 percent to 90.3 percent
in 2020.\36\ Research completed since 1983 has emphasized the
importance of seat belts as a lifesaving and injury-reducing essential
technology, and every State except one has passed seat belt laws since
the MSPA vehicle safety regulations were promulgated. Although the
Department does not propose to amend the MSPA regulations at this time,
it seeks to apply the knowledge gained regarding the importance of seat
belts to the rapidly growing H-2A program.
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\36\ Compare 2021 NHTSA Report at 1 (estimating that seat belt
use by adult front-seat passengers was about 90.3 percent in 2020),
with Transp. Research Bd. of the Nat'l Acads. Buckling Up:
Technologies to Increase Seat Belt Use 5 (2003) (estimating that
seat belt use was about 14 percent in 1984).
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Therefore, pursuant to its authority to determine the minimum terms
and conditions of employment acceptable under the H-2A program, 8
U.S.C. 1188(a)(1), the Department proposes to revise Sec.
655.122(h)(4) to prohibit an employer from operating any employer-
provided transportation that is required by DOT NHTSA regulations at 49
CFR 571.208 to be manufactured with seat belts unless all passengers
and the driver are properly restrained by seat belts meeting standards
established by 49 CFR 571.209 and 571.210. Essentially, if the vehicle
is manufactured with seat belts, the employer would be required to
retain and maintain those seat belts in good working order and ensure
that each worker is wearing a seat belt before the vehicle is operated.
By relying on DOT's regulations to determine which vehicles pose an
unreasonable risk of death or injury in a vehicle crash without seat
belts, the Department intends to depend on DOT's considerable research
and expertise to identify which types of vehicles require seat belts
for sufficient occupant protection and which types of vehicles have
sufficient occupant protection even without seat belts. The most common
vehicles that the Department encounters in its enforcement are
passenger cars,\37\ 15-passenger vans (which would constitute a bus per
the NHTSA definition),\38\ and buses (both school buses \39\ and over-
the-road buses \40\). Currently, 49 CFR 571.208 requires that all
passenger cars and buses with a gross vehicle weight rating (GVWR) of
10,000 pounds or fewer (such as most 15-passenger vans), be
manufactured with seat belts.\41\ Therefore, the Department would
require that these vehicles maintain seat belts in good working order
when transporting workers (e.g., replace the seat belt when it is cut
or broken). However, 49 CFR 571.208 does not currently require that
school buses with a GVWR of 10,000 pounds or more, or an over-the-road
bus with a GVWR between 10,000 pounds and 26,000 pounds GVWR, be
manufactured with seat belts for passengers.\42\ Currently, NHTSA does
not consider these vehicles to constitute an unreasonable safety risk
to the public without seat belts.\43\ Therefore, at this time the
[[Page 63778]]
Department would not require that school buses exceeding 10,000 pounds
GVWR and over-the-road buses between 10,000 pounds and 26,000 pounds
GVWR install and maintain seat belts. However, if, at a later date,
NHTSA were to amend 49 CFR 571.208 to require these vehicles to be
manufactured with seat belts, the Department's proposed regulation
would automatically, without further revision, similarly require the
employer to require occupants of those vehicles to wear seat belts. The
Department believes that reliance on NHTSA's standards for vehicle
manufacturing strikes a reasonable balance between safety measures
intended to protect vulnerable workers and significant costs associated
with retrofitting relatively safe vehicles with seat belts when such
vehicles were not engineered for seat belt installation.\44\
Additionally, these regulations would be consistent with those issued
by OSHA for motor vehicles used in the construction industry and in
shipyard employment, which include similar exemptions from providing
seat belts for vehicles not manufactured with seat belts.\45\
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\37\ NHTSA defines a passenger car as a motor vehicle with
motive power, except a low-speed vehicle, multipurpose passenger
vehicle, motorcycle, or trailer, designed for carrying 10 persons or
less. 49 CFR 571.3(c).
\38\ A 15-passenger van would constitute a bus as defined by
NHTSA. NHTSA defines a bus as a motor vehicle with motive power,
except a trailer, designed for carrying more than 10 persons. 49 CFR
571.3(c).
\39\ NHTSA defines a school bus as a bus that is sold, or
introduced in interstate commerce, for purposes that include
carrying students to and from school or related events, but does not
include a bus designed and sold for operation as a common carrier in
urban transportation. 49 CFR 571.3(c).
\40\ NHTSA defines an over-the-road bus as a bus characterized
by an elevated passenger deck located over a baggage compartment,
except a school bus. 49 CFR 571.136, S4.
\41\ See 49 CFR 571.208, S4.4.3.
\42\ See 49 CFR 571.208, S4.4.4.
\43\ See 78 FR 70416, 70422-23 (Nov. 25, 2013) (discussing over-
the-road buses between 10,000 pounds and 26,000 pounds GVWR); 73 FR
62744 (Oct. 21, 2008) (upgrading school bus passenger crash
protection requirements). See also Nat'l Highway Traffic Safety
Admin., School Bus Safety: Crashworthiness Research (April 2002)
(discussing school bus occupant safety), https://www.nhtsa.gov/sites/nhtsa.gov/files/sbreportfinal.pdf.
\44\ NHTSA has provided guidance for retrofitting school buses
with seat belts. See Guideline for the Safe Transportation of Pre-
school Age Children in School Buses, Nat'l Highway Traffic Safety
Admin. (February 1999). Cost estimates for retrofitting a school bus
with seat belts vary, but are generally around $15,000 per bus, with
one estimate as high as $36,000 per bus. See Stephen Satterly,
School Bus Seat Belts: Opening a Dialogue, Safe Havens Int'l (Dec.
5, 2016), https://safehavensinternational.org/school-bus-seat-belts-opening-dialogue, Matthew Simon, Report: Adding Seatbelts Could Cost
$15k per school bus, WSAW-TV (Sept. 1, 2016), https://www.wsaw.com/
content/news/NewsChannel-7-Investigates_Report-Adding-seat-belts-
could-cost-15K-per-school-bus-392104851.html; Mike Chouinard, Island
District Holds Off School Bus Seatbelt Retrofits, N. Island Gazette
(Oct. 7, 2020), https://www.northislandgazette.com/news/island-district-holds-off-school-bus-seatbelt-retrofits-1407935.
\45\ See 29 CFR 1915.93(b) (seat belt standards in shipyard
work); 29 CFR 1926.601(b)(9) (seat belt standards for construction
work); Occupational Safety & Health Admin., Standard Interpretation
No. 1926.601(b)(9) on Seat Belts (Jan. 19, 1994) (explaining that
seat belt standards in construction work refer to DOT regulations).
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The Department welcomes comments on this proposal, including if
there are any other factors or types of vehicles that it should
consider in promulgating these regulations. The Department also seeks
comments as to whether employers ever retrofit vehicles with additional
seats (or any seats, if the vehicle was manufactured without passenger
seats) in such a way that complies with existing vehicle safety
standards under 20 CFR 655.122(h)(4), and how these vehicles should
comply with proposed seat belt standards.
The Department further proposes that the seat belts must comply
with NHTSA regulations for seat belt assembly and anchorages at 49 CFR
571.209 and 571.210. The Department believes that referencing these
standards in regulations would ensure that seat belts meet existing
standards for manufacture and clarify to the regulated community that
makeshift or jerry-rigged restraints would not constitute a seat belt.
The proposed regulation also would prohibit the employer from
operating any employer-provided transportation unless all passengers
and the driver are properly restrained by a seat belt. The Department
often finds that workers do not use seat belts even when they are
provided. As demonstrated by NHTSA's research referenced above, the
provision of seat belts is often insufficient to increase seat belt
usage without enforcement and public awareness campaigns. Therefore,
the Department believes this regulation would be most effective if the
employer requires workers to wear seat belts. Additionally, while the
proposed regulation refers specifically to the employer not operating
the transportation, the Department understands that driving vehicles is
often delegated to supervisors or workers. An employer would be
responsible for ensuring that all drivers, including employees or
agents of the employer, do not operate the vehicle until all occupants
are properly restrained. The Department seeks comment as to whether,
and how, it should require employers to enforce the wearing of seat
belts, or whether it should require employers only to provide seat
belts.
Finally, the Department seeks comment as to how this requirement
for seat belts should interact with vehicles subject to the limited
exemption from seat requirements found in MSPA regulations at 29 CFR
500.104(l), which is also applicable to some H-2A employer-provided
transportation. Transportation subject to this exemption is limited to
those vehicles that are subject to the vehicle safety standards in 29
CFR 500.104 when those vehicles are primarily operated on private farm
roads when the total distance traveled does not exceed 10 miles, so
long as the trip begins and ends on a farm owned or operated by the
same employer.\46\ As a vehicle without seats cannot be equipped with
seat belts, the Department is considering whether vehicles subject to
this limited exemption also should be exempted from seat belt
requirements during these same trips, or, alternatively, whether this
exemption should be inapplicable to H-2A employers. The Department
seeks comment on this issue, including the circumstances in which
employers use the limited exemption from seats found in 29 CFR
500.104(l) and the import of this limited exemption to business
practices. The Department also seeks comment on known vehicle crashes
or other safety hazards that have resulted or been exacerbated due to
the use of this limited exemption and any anticipated hazards.
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\46\ See 29 CFR 500.102; 29 CFR 500.104(l). See also Wage & Hour
Div., Dep't of Lab., Fact Sheet #50, Transportation Under the
Migrant and Seasonal Agricultural Worker Protection Act (2016),
https://www.dol.gov/agencies/whd/fact-sheets/50-mspa-transportation.
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The Department also proposes non-substantive changes to Sec.
655.122(h)(4) to divide this paragraph into separate paragraphs
(h)(1)(i) through (iv).
b. Paragraphs (i)(1)(i) and (ii) Shortened Work Contract Period
The Department proposes to remove the language at Sec.
655.122(i)(1)(i) and (ii) that explains the work contract period can be
shortened by agreement of the parties with the approval of the CO.
These minor conforming changes will ensure these paragraphs are
consistent with proposed changes to delayed start of work requirements
at proposed Sec. 655.175(b), which permits only minor delays to the
start date of work and requires notice to workers and the SWA, but not
CO approval, as discussed in the preamble explaining changes in
proposed Sec. 655.175.
c. Paragraph (l)(3) Productivity Standards as a Condition of Job
Retention
The Department proposes revisions to the regulations governing
productivity standards at Sec. 655.122(l). Current Sec.
655.122(l)(2)(iii) requires the employer to disclose productivity
standards in the job offer only when the employer pays on a piece rate
basis and requires one or more productivity standards as a condition of
job retention. The Department proposes to redesignate Sec.
655.122(l)(2)(iii) as Sec. 655.122(l)(3) and require all employers
with minimum productivity standards as a condition of job retention to
disclose such standards in the job offer, regardless of whether the
employer pays on a piece rate or hourly basis.
The Department believes that this revision is necessary so that
workers fully understand the material terms and conditions of
employment, including any productivity standards that may serve as a
basis for termination for cause, at the time the offer of
[[Page 63779]]
employment is made. The revisions proposed in this section conform with
those proposed in Sec. 655.122(n)(2)(i), where the Department proposes
that termination for cause for failure to comply with a productivity
standard would only be permissible when such productivity standard is
included in the job offer (among other conditions).
As explained further in the preamble section addressing proposed
Sec. 655.122(n), the Department proposes that, among other conditions,
termination for cause for failure to meet a productivity standard may
only be invoked by an employer when workers were informed of, or
reasonably should have known, the productivity standard; the
productivity standard is listed in the job offer; and the productivity
standard is reasonable and applied consistently. The disclosure in the
job offer of any productivity standards required as a condition of job
retention helps to achieve these other requirements. Specifically, it
ensures that workers are aware of the productivity standard, and that
all workers are held to the same productivity standard. The disclosure
in the job offer also ensures that productivity standards do not change
after the employer communicates those standards to the worker.
Different productivity standards for different crops, grades of crops,
or job duties are permissible so long as all are disclosed in the job
offer. Consistent with current guidance, productivity standards must be
static, objective, and specifically quantify the expected output per
worker required for job retention in the specific crop or agricultural
activity. Vague standards, such as requiring workers to ``perform work
in a timely and proficient manner,'' ``perform work at a sustained,
vigorous pace,'' or ``keep up with the crew,'' are not acceptable
productivity standards as they lack objectivity, quantification, and
clarity. Failure to meet such vague standards will not be accepted by
the Department as termination for cause. See preamble section
corresponding with proposed Sec. 655.122(n) for further
discussion.\47\
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\47\ See OFLC, Frequently Asked Questions, H-2A Temporary
Agricultural Foreign Labor Certification Program, 2010 Final Rule,
Round 9 (October 30, 2015), https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/H-2A_FAQ_Round9.pdf.
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Current Sec. 655.122(l)(2)(iii) also requires that productivity
standards listed in the job offer be no more than those required by the
employer in 1977, unless the OFLC Administrator approves a higher
minimum, or if the employer first applied for temporary agricultural
labor certification after 1977, productivity standards listed in the
job order must be no more than those normally required (at the time of
the first H-2A Application) by other employers for the activity in the
area of intended employment. In other words, without OFLC's approval,
an employer cannot increase productivity standards beyond those
normally required by other employers when it first used the H-2A
program, unless the employer first used the H-2A program in 1977 or
earlier, in which case the employer cannot increase productivity
standards beyond those it required in 1977. Proposed Sec.
655.122(l)(3) would mandate that all productivity standards required as
a condition of job retention be disclosed in the job offer regardless
if the worker is paid a piece rate or an hourly wage. The proposal
would broaden this requirement to workers paid on an hourly basis, not
only those paid on a piece rate basis.
The Department believes this revision is appropriate because
pressure for increased worker productivity exists regardless of how
workers are paid. As stated in the preamble to the 2010 H-2A Final
Rule, the regulations have reflected concerns about productivity
standards for more than 30 years. Initial concerns focused on employers
paying piece rates; the Department found that, when faced with an
increased hourly guarantee, some employers simply required workers to
work faster instead of increasing piece rates, which may have adversely
affected the wages of similarly employed workers in the United States.
See 43 FR 10306, 10309 (Mar. 10, 1978). Therefore, H-2A regulations
published in 1987 froze productivity standards at the 1977 level
(unless a higher rate was approved) or, if the employer began using the
program after 1977, to those normally required by other employers for
the activity in the area of intended employment at the time the
employer first used the program (unless a higher rate was approved).
See 52 FR 20496-01, 20515 (June 1, 1987). The 2010 H-2A Final Rule
instituted the same standards as the 1987 rule, and these standards
remained unchanged in the 2022 rule. See 75 FR 6884, 6913-6914 (Feb 12,
2010); 87 FR 61660-01, 61801 (Oct. 12, 2022).
Although the Department has historically recognized this issue as
affecting workers paid on a piece rate basis, workers paid on an hourly
basis may also be subject to productivity standards as a condition of
job retention, which may adversely affect the working conditions of
similarly employed workers in the United States and inhibit the ability
to determine if there are sufficient workers who are able, willing,
qualified, and available to perform the work. Advocacy organizations
have identified that some employers may set productivity standards so
high that workers in the United States are reluctant to accept or keep
these jobs without a pay increase.\48\ Without a ceiling on excessively
high productivity standards for hourly employees, working conditions
for both H-2A and domestic workers may be adversely affected as
productivity demands rise, and domestic workers may leave the
agricultural workforce. To prevent this adverse effect, this proposed
rule would require all employers establishing productivity standards as
a condition of job retention to refrain from setting such productivity
standards above the permitted levels, which were previously required
only if the employer was paying on a piece rate basis.
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\48\ See Farmworker Justice, No Way to Treat a Guest: Why The H-
2A Visa Program Fails U.S. and Foreign Workers 21, 25 (2012)
(Farmworker Justice Report).
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d. Paragraph (l)(4); 655.210(g)(3) Disclosure of Available Overtime Pay
The Department proposes a new Sec. 655.122(l)(4) that would
explicitly clarify that the employer must specify in the job offer any
applicable overtime premium wage rate(s) for overtime hours worked and
the circumstances under which the wage rate(s) for such overtime hours
will be paid. The H-2A program does not mandate the payment of an
overtime premium wage rate for hours worked exceeding a certain number
in the day, week, or pay period. However, the Fair Labor Standards
Act's (FLSA) overtime requirements, as well as various State and local
laws that require overtime pay, apply independently of the H-2A
program's wage requirements. Some H-2A workers and workers in
corresponding employment may be entitled to overtime pay under one or
more of these laws.
Under the Department's longstanding regulations, an H-2A employer
must assure that it will comply with all applicable Federal, State, and
local laws, including any applicable overtime laws, during the work
contract period. See Sec. 655.135(e).\49\ In addition, an H-2A
employer must accurately disclose the actual, material terms and
conditions of employment, including those related to wages, in the job
order. See Sec. Sec. 655.103(b), 655.121(a)(3), and 655.122(l); see
also Sec. 655.210. Pursuant to these authorities, an H-2A employer
already must disclose in the job order any available overtime pay,
whether required under Federal, State, or local
[[Page 63780]]
law, or otherwise voluntarily offered by the employer. Despite these
existing authorities, OFLC and WHD frequently encounter job orders
filed in connection with H-2A applications that either omit disclosure
of or fail to accurately describe applicable overtime pay. Failure to
clearly and fully disclose any available overtime pay in the job order
harms prospective workers, who may be more interested in the job
opportunity if aware of the availability of overtime. Incomplete or
nonexistent disclosures also hamper the Department's administration and
enforcement of the H-2A program requirements.
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\49\ See, e.g., Cal. Lab. Code secs. 500-556, 558.1; Cal. Indus.
Welfare Comm'n Order No. 14-2001.
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Therefore, the Department proposes to revise the current wage
disclosure requirements found at Sec. 655.122(l) to expressly clarify
in a new paragraph (l)(4) that an employer must disclose in the job
order any applicable overtime pay. Specifically, under proposed Sec.
655.122(l)(4), whenever overtime pay is required by law or otherwise
voluntarily offered by an employer, an employer would be required to
disclose in the job order: the availability of overtime hours; the wage
rate to be paid for any overtime hours; and the circumstances under
which overtime will be paid; and, where the overtime is required by law
(rather than voluntarily offered by the employer), the applicable
Federal, State, or local law governing the overtime pay. The proposed
subordinate paragraph (l)(4)(iii) provides examples of circumstances
that might apply, such as after how many hours in a day, week, or pay
period the overtime premium wage rate will be paid, or if overtime
premium wage rates will vary between places of employment. This
proposed list is intended to be illustrative only; an employer must
accurately disclose the actual circumstances under which overtime would
be paid. The disclosures required under proposed Sec. 655.122(l)(4)
are similar to the overtime disclosure requirement under the H-2B
program regulations at Sec. 655.18(b)(6). See also U.S. Dep't of Lab.,
Wage & Hour Div., Field Assistance Bulletin No. 2021-3, Overtime
Obligations Pursuant to the H-2B Visa Program (Dec. 7, 2021).\50\ Where
multiple overtime laws apply, the employer must comply with the law
that provides the greatest benefit to the employee. For example, if an
employer is required by Federal law to pay time and a half after 40
hours in a week, but is required by State law to pay overtime at time
and a half after 46 hours in a week, the employer must comply with the
Federal law as it is more beneficial to the employee. The Department
has also proposed corresponding amendments to the Forms ETA-790A and
ETA-9142A to include dedicated spaces for disclosure of any applicable
overtime pay. The Department believes these proposed revisions would
improve the frequency and accuracy of disclosures of available overtime
pay, thereby improving notice to prospective workers of the actual
terms and conditions of the job opportunity and improving the
Department's enforcement of any applicable overtime pay requirements.
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\50\ https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/fab_2021_3.pdf.
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Similarly, the Department proposes to amend the pay disclosure
requirements at Sec. 655.210(g), governing the contents of job orders
for herding and range livestock production occupations, to include a
new paragraph (g)(3) that would require employers to disclose any
available overtime pay, whether voluntarily offered by the employer or
required by State or Federal law, and the details regarding such pay.
The Department welcomes comment on this proposal.
e. Paragraph (n) Termination for Cause or Abandonment of Employment
The Department proposes revisions to Sec. 655.122(n), regulating
employer obligations when an employer terminates an employee for cause
or an employee has abandoned employment, to define termination for
cause. By proposing a definition of termination for cause, the
Department seeks to ensure that disciplinary and/or termination
processes be justified and reasonable. The Department believes it is
necessary to clarify the definition of termination for cause because
workers terminated for cause under the H-2A program are stripped of
essential rights to which they would otherwise be entitled. This
proposed definition is also necessary because the termination without
cause of one or more workers may constitute a layoff for lawful, job-
related reasons, and particular employer obligations apply to layoffs
of U.S. workers. See Sec. 655.135(g).
The current regulations specify when job abandonment occurs,
outline procedures for notifying the NPC and DHS, and require the
maintenance of records of this notification, but they do not define
termination for cause. A worker who abandons employment or is
terminated for cause is not entitled to payment for outbound
transportation under Sec. 655.122(h)(2) or the three-fourths guarantee
under Sec. 655.122(i), and a U.S. worker who abandons employment or is
terminated for cause need not be contacted for employment in the
subsequent year as required by Sec. 655.153. On the other hand, a
worker who is terminated without cause is entitled to outbound
transportation (Sec. 655.122(h)(2)), the three-fourths guarantee
(including meals and housing until the worker departs for other H-2A
employment or to the place outside the United States from which the
worker came) (Sec. 655.122(i)), and, if a U.S. worker, to be contacted
for work in the next year (Sec. 655.153), with one limited exception.
An employer is not liable for the payment of the three-fourths
guarantee to an H-2A worker whom the CO certifies is displaced because
of the employer's fulfillment of its obligation to hire U.S. workers in
compliance with the 50-percent rule described in Sec. 655.135(d). See
Sec. 655.122(i)(4). Therefore, such H-2A worker would be terminated
without cause but would not be entitled to the three-fourths guarantee.
However, this displaced H-2A worker remains entitled to payment for
outbound transportation pursuant to Sec. 655.122(h)(2).
The Department has long acknowledged that employers need not cover
some obligations for workers terminated for cause. See, e.g., 43 FR
10306, 10315 (Mar. 10, 1978) (employer need not pay outbound
transportation for H-2 workers terminated for cause); 52 FR 20496-01,
20501, 20515 (June 1, 1987) (where an H-2A worker is terminated for
cause, the worker is not entitled to the three-fourths guarantee and
the employer need not pay outbound transportation). But the Department
has also recognized that some employers may abuse this provision in
order to avoid those obligations. See, e.g., 73 FR 77110-01, 77135
(Dec. 18, 2008) (requiring employers to contact former U.S. workers
except for those dismissed for cause and noting that if employers were
``allowed . . . to reject former workers who completed their previous
term on the alleged ground that the workers were actually poor
performers, it would open the door to bad actor employers to reject
former workers on the basis of essentially pretextual excuses'').
Given the serious consequences associated with a designation of
termination for cause, and the potential for misuse, the Department
believes that a clear, regulatory definition of termination for cause
would benefit employers, associations, agents, workers, advocates, and
the public in general and therefore proposes to insert one. Providing a
clear definition of termination for cause would not only provide
structure and clarity to both workers and employers, but also make
[[Page 63781]]
it easier for the Department to identify pretextual terminations.
The Department's enforcement experience also supports the need for
a specific and clear definition of termination for cause. Some
employers, in seeking to evade responsibilities under Sec.
655.122(h)(2), Sec. 655.122(i), Sec. 655.153, or all three, have
terminated workers ostensibly ``for cause.'' For example, one employer
terminated 114 H-2A workers, out of a total of 240 H-2A workers
employed, and an additional 20 workers in corresponding employment, for
failing to meet production quotas. The employer alleged that workers
were not eligible for the three-fourths guarantee because they were
terminated for cause. However, the Department's investigation revealed
that the employer had employed, in some weeks, more than 100 more
workers than it employed the previous year without a proportional
increase in acres planted. With the surplus in employees, worker
productivity decreased significantly. An analysis of one crew showed
that workers, who were paid a consistent piece rate, earned an average
of $12.32 per hour when the crew consisted of 39 employees, but earned
only $6.72 per hour on average when the crew consisted of 123
employees. Once crew sizes were again proportional to prior years,
worker productivity increased. A different crew, also paid a consistent
piece rate, earned an average of $8.14 per hour when the crew consisted
of 121 workers, but, following terminations, earned an average of
$12.43 per hour when the crew consisted of 91 workers. The employer
terminated workers assigned to the less productive fields, even when
their production rates matched those of their coworkers working the
same fields. The terminations were unequally applied to workers and
were for conditions outside the workers' control. The three-fourths
guarantee is intended to safeguard against this very situation--
employers overstating their labor needs--but the employer attempted to
evade its three-fourths guarantee obligations by terminating employees
without cause.
In light of this enforcement experience, the Department believes it
needs stronger regulatory requirements to more easily prevent or detect
attempts to evade these important worker protections. This is necessary
in order for the Department to fulfill its statutory mandate to ensure
that H-2A workers are employed only when there are not sufficient
workers who are able, willing, qualified, and available to perform the
labor or services involved in the petition and when the employment of
H-2A workers will not adversely affect the wages and working conditions
of similarly employed workers in the United States. See 8 U.S.C.
1188(a)(1). The proposed regulations would achieve this goal by
protecting worker access to the three-fourths guarantee (including
meals and housing until the worker departs for other H-2A employment or
to the place outside the United States from which the worker came)
(Sec. 655.122(h)(2)), outbound transportation (Sec. 655.122(i)), and/
or, if a U.S. worker, to be contacted for work in the next year (Sec.
655.153), unless a reasonable and justified disciplinary process
results in a termination for cause and thus nullifies the worker's
entitlement to these rights. An unreasonable or unjustified termination
that an employer ostensibly describes as being ``for cause''
undoubtedly has an adverse effect on similarly employed workers in the
United States and interferes with the Department's ability to determine
that there are not sufficient workers to perform the labor or services.
For example, where an employer denies an H-2A worker payment for
outbound transportation under Sec. 655.122(h)(2) on the grounds that
the worker was terminated, ostensibly ``for cause,'' but for
unjustified and unreasonable reasons, the worker would be required to
pay for their own transportation to return to their country of origin.
The Department has long recognized that inbound and outbound
transportation expenses for H-2 workers are an inescapable consequence
of using the H-2 programs and are primarily for the benefit of the
employer under the FLSA. H-2A regulations (and, prior to 1987, H-2
regulations) have reflected this reality by requiring these expenses to
be borne by employers. See 43 FR 10306 (Mar. 10, 1978); 52 FR 20496-01
(June 1, 1987); 73 FR 77110-01 (Dec. 18, 2008); 75 FR 6884 (Feb. 12,
2010); 87 FR 61660 (Oct. 12, 2022); U.S. Dep't of Lab., Wage & Hour
Div., Field Assistance Bulletin No. 2009-2, Travel and Visa Expenses of
H-2B Workers Under the FLSA (Aug. 21, 2009); \51\ Arriaga v. Florida
Pacific Farms, L.L.C., 305 F.3d 1228 (11th Cir. 2002). An employer who
unreasonably and unjustifiably requires a worker to pay for their own
outbound transportation has artificially reduced its cost to use the H-
2A program by shifting outbound transportation costs to the workers
themselves, which may reduce the worker's earnings below the amount
required by Sec. 655.122(l) in the worker's last workweek. As the wage
required by Sec. 655.122(l) is the minimum amount required to prevent
adverse effect, any cost-shifting that reduces wages below this amount
may adversely affect wages and working conditions of similarly employed
workers in the United States. Clarifying that workers are terminated
for cause only where the termination is reasonable and justified would
minimize such adverse effect.
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\51\ https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/FieldAssistanceBulletin2009_2.pdf.
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Similarly, adverse effects on similarly employed workers in the
United States may result when an employer denies the three-fourths
guarantee required by Sec. 655.122(i) to a worker who is unjustly and
unreasonably terminated, ostensibly ``for cause.'' The three-fourths
guarantee is an essential protection that requires employers to provide
an accurate description of the amount of work available and the periods
in which work is available, which gives workers an opportunity to
evaluate the desirability of the offered job. An employer that fails to
provide the work promised during recruitment must pay workers for work
hours equivalent to three-fourths of the workdays offered, which
disincentivizes employers from hiring workers without sufficient work.
The Department has long held that the three-fourths guarantee is an
essential protection to prevent adverse effect on similarly employed
workers in the United States. See 43 FR 10306, 10308 (Mar. 10, 1978);
73 FR 77110-01, 77152 (Dec. 18, 2008). A job with insufficient work
creates undesirable conditions because the workers may not earn
sufficient wages to pay bills and support their families. In this
situation, both H-2A and U.S. workers may be induced to seek work
elsewhere if the promised work does not materialize. The employer has
therefore failed to determine if there are sufficient U.S. workers
able, willing, and qualified to perform the work, and the wages and
working conditions of similarly employed workers in the United States
may be adversely affected if H-2A workers seek work outside the terms
of their H-2A nonimmigrant status because the job they were promised
does not actually exist. See 80 FR 24042-01, 24066 (Apr. 29, 2015).
Finally, where an employer declines to rehire a U.S. worker under
Sec. 655.153 on the grounds that the worker was terminated, ostensibly
``for cause,'' but the termination was unreasonable and unjustified,
the employer fails to adequately test the labor market for able,
willing, and qualified workers because it has unreasonably and unjustly
removed this worker from the labor pool.
In addition, the proposed definition of termination for cause will
assist the Department in identifying terminations
[[Page 63782]]
for pretextual reasons. These pretextual reasons may attempt to mask
violations of other provisions, such as the prohibitions on layoffs of
U.S. workers (Sec. 655.135(g)) and retaliatory termination (Sec.
655.135(h)), for which the appropriate remedy may be reinstatement or
make-whole relief. See 29 CFR 501.16. Workers also would be protected
from terminations for pretextual reasons for actions that may not be
otherwise protected by the current H-2A regulations. Even if the
underlying activity is not protected by the H-2A protections, the
Department retains an interest in ensuring that reasonable activities
and communications are not misused or mischaracterized as a basis for
termination for cause. This ensures that a worker may advocate on their
own behalf without fear of being terminated, ostensibly ``for cause.''
This additional safeguard on the ability to engage in self-advocacy
would prevent adverse impact on working conditions for similarly
employed workers in the United States by ensuring that employers cannot
evade their obligations with respect to workers engaged in self-
advocacy.
Finally, the Department believes that its proposed definition of
termination for cause will also benefit employers by providing
regulatory certainty and increasing the quality and desirability of
agricultural jobs. Employers will have clear guidelines as to how the
Department will define termination for cause. Where there are farm
labor shortages, employers may experience improved ability to recruit
agricultural workers where workers are assured that they will be
entitled to the three-fourths guarantee and outbound transportation
costs unless they are terminated for cause or they abandon their
employment.
For these reasons, the Department proposes to clarify in the
regulations that a worker is terminated for cause only when the
employer terminates the worker for failure to meet productivity
standards or failure to comply with employer policies or rules. This
definition is substantively similar to current enforcement guidance
that appears in U.S. Department of Labor, Wage and Hour Division, Field
Assistance Bulletin No. 2012-1, H-2A ``Abandonment or Termination for
Cause'' Enforcement of 20 CFR 655.122(n) (Feb. 28, 2012).\52\ There,
WHD stated that termination for cause refers to termination based on a
specific act of omission or commission by the employee, and that, for
example, insubordination, deliberately violating company policies or
rules, lying, stealing, breaching the employment contract, and other
job-related misconduct are all possible bases for termination for
cause. Id. at 6.
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\52\ https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/fab2012_1.pdf.
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Further, the Department proposes that an employer may terminate a
worker for cause only if six conditions listed in proposed Sec.
655.122(n)(2)(i) are met. Importantly, the employer must comply with
all six conditions for the employer's actions to qualify as termination
for cause. These proposed conditions, explained in the following
paragraphs, clarify that termination for cause exists only where
disciplinary and/or termination processes are justified and reasonable;
it does not exist where rules, policies, and/or standards are
arbitrary, unknown, or selectively enforced. These conditions serve to
promote the integrity and fairness of any disciplinary and/or
termination process, and help to reduce the possibility that an
employer may, purposefully or subconsciously, discriminate against a
worker for reasons that are unrelated to work. These proposed
conditions reflect common-sense personnel practices, and some of these
conditions may also be found in State and local laws or bills
prohibiting wrongful discharge.\53\ The Department believes that many
agricultural employers already follow similar standards when
terminating a worker for cause, as records of these types are often
essential in responding to discrimination complaints investigated by
the EEOC or DOJ's Immigrant and Employee Rights Section, claims filed
pursuant to State unemployment insurance programs, or the Department
when investigating retaliatory termination under the laws that it
enforces (including the H-2A program). These requirements would apply
to H-2A workers and workers in corresponding employment. Accordingly,
these proposed conditions would preserve worker access to outbound
transportation (Sec. 655.122(h)(2)), the three-fourths guarantee
(Sec. 655.122(i)), and/or, if a U.S. worker, to be contacted for work
in the next year (Sec. 655.153) unless a reasonable and justified
disciplinary process has resulted in termination for cause, which
prevents adverse effect on similarly employed workers in the United
States and ensures that jobs are available to workers in the United
States who are able, willing, and qualified to perform the work.
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\53\ See, e.g., N.Y.C. Admin. Code sec. 20-1272, https://codelibrary.amlegal.com/codes/newyorkcity/latest/NYCadmin/0-0-0-131240; Phila. Code sec. 9-4703, https://codelibrary.amlegal.com/codes/philadelphia/latest/philadelphia_pa/0-0-0-280911#JD_Chapter9-4700; H.B. 3530, \10\2nd Gen. Assemb. (Ill. 2021 & 2022), https://www.ilga.gov/legislation/102/HB/PDF/10200HB3530lv.pdf.
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First, proposed Sec. 655.122(n)(2)(i)(A) would require that the
employees were informed (in a language understood by the employee) of,
or reasonably should have known of, the policy, rule, or productivity
standard that is the basis for the termination for cause. Basic
concepts of fairness preclude the termination of a worker for cause if
that worker was not informed, or had no reasonable basis for knowing,
that the infraction or performance issue constituted grounds for
termination. Policies and rules are not required to be listed in the
job offer but must be clearly communicated to and understood by the
workers. Ways in which the employer may communicate policies and rules
to workers include employee handbooks, posters, trainings, staff
meetings, and verbal instruction. If the policy or rule is not
explicitly communicated, the Department will review whether a
reasonable person would know that the policy or rule exists. For
example, a reasonable person would know that conduct that is obviously
illegal, such as unlawful sexual harassment or assault, can be a basis
for discipline or termination. Similarly, a reasonable person would
know that purposefully damaging the crop would be a basis for
discipline or termination.
Second, the Department proposes in Sec. 655.122(n)(2)(i)(B) that,
if the termination is for failure to meet a productivity standard, such
standard must be disclosed in the job offer. The Department has long
held that if an employer pays a piece rate and requires a productivity
standard, such productivity standard must be disclosed in the job
offer. See current Sec. 655.122(l)(2)(iii). In this proposed rule, the
Department proposes that any productivity standard must be disclosed in
the job offer regardless of whether the worker is paid on a piece rate
or hourly basis. See proposed Sec. 655.122(l)(3). The job offer
communicates the material terms and conditions of employment to H-2A
workers and workers in corresponding employment, and therefore any
productivity standard which may serve as a basis for termination should
be disclosed to the worker in the job offer. This disclosure in the job
offer ensures that the employer informs the workers of the productivity
standard, and that the productivity standard is consistent for all
workers, both of which are essential elements of any just disciplinary
process. Consistent with current
[[Page 63783]]
guidance, and discussed in the preamble corresponding with proposed
Sec. 655.122(l)(3), any productivity standard that serves as a basis
for termination for cause must be static, quantified, and
objective.\54\ Vague standards (i.e., those that are not quantified and
depend on the employer's subjective judgement) do not constitute
productivity standards, and failure to comply with such vague standards
will not be accepted by the Department as a valid reason for
termination for cause.
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\54\ See OFLC, Frequently Asked Questions, H-2A Temporary
Agricultural Foreign Labor Certification Program, 2010 Final Rule,
Round 9 (October 30, 2015), https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/H-2A_FAQ_Round9.pdf.
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Third, proposed Sec. 655.122(n)(2)(i)(C) would allow termination
for cause only if compliance with the policy, rule, or productivity
standard is within the employee's control. For example, termination for
cause would not apply if a worker were unable to meet productivity
standards if working in a field where compliance with the productivity
standard is impossible for any worker (e.g., in a field where most
fruit to be picked remains unripe, or where the employer has hired
significantly more employees than required to complete available work).
Similarly, termination for cause would not apply where a worker is
regularly tardy but arrives using employer-provided transportation that
habitually arrives late through no fault of the worker. Reasonable
disciplinary processes should not penalize workers for infractions
outside of their control.
Fourth, proposed Sec. 655.122(n)(2)(i)(D) would clarify that
termination for cause would apply only where the policy, rule, or
productivity standard is reasonable and applied consistently. A just
and equitable discipline system requires equal treatment under the
rules for all H-2A and corresponding workers. Termination for cause
would not apply where one worker is terminated for noncompliance with a
policy with which another worker performing a similar job is not
required to comply. Similarly, termination for cause would not apply
where a worker is terminated pretextually for noncompliance with a
policy or rule that the employer infrequently or sporadically enforces.
Fifth, proposed Sec. 655.122(n)(2)(i)(E) would outline that
termination for cause would apply only where the employer undertakes a
fair and objective investigation into the job performance or
misconduct. Termination for cause would not apply where an employer
merely assumes that the worker has failed to comply with a policy,
rule, or productivity standard, or relies on a dubious third-party
account as the basis for the termination.
Sixth, proposed Sec. 655.122(n)(2)(i)(F) would require the
employer to engage in progressive discipline to correct the worker's
performance or behavior before terminating that worker for cause.
Proposed Sec. 655.122(n)(2)(ii) would define progressive discipline as
a system of graduated and reasonable responses to an employee's failure
to meet productivity standards or failure to comply with employer
policies or rules. Examples of disciplinary measures may include
counseling, verbal warnings, written warnings, and, when appropriate,
termination for cause. Disciplinary measures are proportional to the
failure but may increase in severity if the failure is repeated. For
example, a worker who blatantly and willfully ignores known safety
procedures when operating heavy machinery, putting their safety and/or
the safety of others at risk, should encounter different disciplinary
consequences than a worker who is 15 minutes tardy for the first time
that season. Additionally, a worker who is tardy for the first time may
experience different disciplinary consequences than a worker who is
tardy for the fifth time in 2 weeks. Progressive discipline ensures
that workers are not harshly punished for minor, first-time infractions
and reinforces the conditions for termination for cause in proposed
Sec. 655.122(n)(2)(i), specifically that rules, policies, and
productivity standards are communicated to the workers and are
reasonable. This furthers the Department's objective of ensuring that
disciplinary procedures resulting in termination for cause are
reasonable and justified, thus avoiding adverse impact on similarly
employed workers in the United States by protecting access to outbound
transportation (Sec. 655.122(h)(2)), the three-fourths guarantee
(including meals and housing until the worker departs for other H-2A
employment or to the place outside the United States from which the
worker came) (Sec. 655.122(i)), and, if a U.S. worker, to be contacted
for work in the next year (Sec. 655.153).
The Department recognizes that in rare circumstances, termination
for cause may be an appropriate disciplinary consequence for a first-
time offense of egregious misconduct even in a progressive discipline
system. Egregious misconduct means behavior that is plainly illegal or
that a reasonable person would understand as being offensive, such as
violence, drug or alcohol use on the job, or unlawful assault, as
opposed to failure to meet performance expectations or productivity
standards. The Department also emphasizes that all other conditions
outlined in proposed Sec. 655.122(n)(2)(i) must be met in cases of
termination for cause involving egregious misconduct. Specifically, the
worker must be informed, or reasonably should have known, about the
policy or rule; compliance with the policy or rule must be within the
worker's control; the policy or rule must be reasonable and applied
consistently; and the employer must undertake a fair and objective
investigation into the purported misconduct. Egregious misconduct need
not be explicitly prohibited verbally or in writing--workers are
generally expected to understand that the behavior is prohibited--but
the Department encourages employers to clearly communicate to workers
that activities like unlawful harassment, substance abuse, and illegal
or violent conduct will not be tolerated.
Prior to each disciplinary measure, the employer must notify the
worker of the infraction and allow the worker an opportunity to present
evidence in their defense to dispute the accuracy of the employer's
description of the infraction or failure to meet the productivity
standards. Fair and just disciplinary policies should ensure that the
employer undertakes reasonable steps to determine whether the worker
committed an infraction that was within their control or failed to meet
productivity standards. Such policies also should ensure that the
employer considers any mitigating circumstances that may provide
context to any infraction or failure to meet productivity standards.
The Department also proposes that, after imposing any disciplinary
measure prior to termination, the employer must provide relevant and
adequate instruction to the worker, and the worker must be afforded
reasonable time to correct the behavior or meet the productivity
standard following instruction. The type of instruction and the amount
of time afforded to fix the issue may vary depending on the misconduct
or performance issue. For example, if the worker is not meeting
productivity standards, the worker should be provided training on
harvesting techniques and a reasonable amount of time to develop those
techniques to meet the productivity standard. In another example, if a
worker arrives late to work one morning and is verbally counseled, the
employer should make clear the time the worker is expected to arrive at
work. In this second example, the employer can
[[Page 63784]]
reasonably expect the worker to correct the behavior by the next shift.
Of course, there may be extenuating circumstances for the tardiness and
the employer should take those into account as part of any counseling.
In the proposed regulation, the employer must also document, in
writing, each disciplinary measure, evidence the worker presented in
their defense, and resulting instruction, and the employer must clearly
communicate to the worker, either verbally or in writing, in a language
the worker understands, that a disciplinary action occurred, so as to
create a record of the discipline and minimize the potential
misunderstanding as to whether a disciplinary action occurred. The
employer must also document any explanation that the employee provided
in response to any purported infraction. These requirements--
instruction, a reasonable period to fix issues, employee explanation,
and documentation--are intended to ensure a worker is not prematurely
terminated and deprived of their rights to the three-fourths guarantee
(including meals and housing until the worker departs for other H-2A
employment or to the place outside the United States from which the
worker came) (Sec. 655.122(h)(2)), outbound transportation (Sec.
655.122(i)), and/or, if a U.S. worker, to be contacted for work in the
next year (Sec. 655.153), for misconduct or performance issues that
are unknown to the worker and/or are easily remedied.
Proposed Sec. 655.122(n)(2)(iii) would outline specific reasons
for which workers may not be terminated for cause. This proposed
language makes clear that an employee continues to be entitled to
outbound transportation (Sec. 655.122(h)(2)), the three-fourths
guarantee (including meals and housing until the worker departs for
other H-2A employment or to the place outside the United States from
which the worker came) (Sec. 655.122(i)), and, if a U.S. worker, to be
contacted for work in the next year (Sec. 655.15) if the employer has
broken the law in terminating the worker, or if the worker is
reasonably exercising their rights to a safe workplace. Specifically,
termination for cause would not apply where the termination is contrary
to a Federal, State, or local law; for an employee's refusal to work
under conditions that the employee reasonably believes will expose them
or other employees to an unreasonable health or safety risk; for
discrimination on the basis of race, color, national origin, age, sex
(including sexual orientation and gender identity),\55\ religion,
disability, or citizenship; or, where applicable, where the employer
fails to comply with its obligation under Sec. 655.135(m)(4) in a
meeting that contributed to the employee's termination. The Department
seeks comment on these reasons for termination excluded from
termination for cause, and whether any other reasons should explicitly
be included in this list.
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\55\ ``Sex'' includes sexual orientation and gender identity
because differential treatment on those bases necessarily involves
discrimination because of sex. See Bostock v. Clayton Cnty., 140 S.
Ct. 1731, 1741 (2020) (``it is impossible to discriminate against a
person'' under Title VII because of their sexual orientation or
gender identity ``without discriminating against that individual
based on sex'').
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The Department does not propose changes to the prohibition on
preferential treatment of H-2A workers (Sec. 655.122(a) or layoffs of
U.S. workers (Sec. 655.135(g)), but reminds employers that they are
prohibited from offering preferential treatment to H-2A workers over
U.S. workers. See Sec. 655.122(a). Similarly, employers are prohibited
from laying off similarly employed U.S. workers in the occupation that
is the subject of the H-2A Application in the area of intended
employment in the period beginning 60 days before the first date of
need and continuing throughout the period certified on the H-2A
Application, except on the basis of lawful, job-related reasons. While
U.S. workers in corresponding employment may be laid off for lawful,
job-related reasons such as lack of work or the end of the growing
season, such a layoff is permissible only after all H-2A workers have
been laid off. See Sec. 655.135(g). As noted above, a worker in
corresponding employment may only be terminated for cause using the
same procedures, found in proposed Sec. 655.122(n)(2), as those used
to terminate an H-2A worker for cause. However, such processes must be
applied fairly and consistently (and in compliance with the conditions
set forth in Sec. 655.122(n)(2)(ii)). In addition, to comply with the
prohibitions on preferential treatment (Sec. 655.122(a)) and layoffs
of U.S. workers (Sec. 655.135(g)), U.S. workers in corresponding
employment may not be terminated without cause, or laid off, before all
H-2A workers are terminated without cause. Of course, any worker
terminated without cause, or laid off, is entitled to outbound
transportation (Sec. 655.122(h)(2)), the three-fourths guarantee
(including meals and housing until the worker departs for other H-2A
employment or to the place outside the United States from which the
worker came) (Sec. 655.122(i)), and, if a U.S. worker, to be contacted
for work in the next year (Sec. 655.153). Where the employer
terminates an H-2A or worker in corresponding employment without cause,
Department will, as appropriate, cite violations, assess civil money
penalties, compute back wages, and/or pursue debarment for (1) failure
to pay outbound transportation, (2) failure to comply with the three-
fourths guarantee, and/or (3) failure to contact a U.S. worker for
employment in the following season. When computing back wages owed
under the three-fourths guarantee, the Department will compute for the
hours not offered pursuant to Sec. 655.122(i)(1) as well as any
housing and meals not provided when required pursuant to Sec.
655.122(i)(5).
Proposed Sec. 655.122(n)(2)(iv) would require the employer to bear
the burden of demonstrating to the Department that any termination for
cause meets the requirements of proposed Sec. 655.122(n)(2). The
employer would be required to prove that the termination was justified
and proper progressive discipline procedures were followed. The
Department believes that it is reasonable to require employers, as the
entities seeking an exemption from outbound transportation, the three-
fourths guarantee (including meals and housing until the worker departs
for other H-2A employment or to the place outside the United States
from which the worker came), and notification requirements found in
Sec. Sec. 655.122(h)(2) and (i) and 655.153, to demonstrate why
termination for cause was warranted.\56\
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\56\ Termination for cause provides employers with an exception
from certain provisions of the H-2A program. Where a party seeks an
exemption from prescribed terms or from a generally applicable
provision, it is generally appropriate to assign to that party the
burden of demonstrating the conditions for such an exemption. See,
e.g., Meacham v. Knolls Atomic Power Lab'y, 554 U.S. 84, 91-94
(2008) (employers bear burden of proving certain exemptions to Age
Discrimination in Employment Act); Karawia v. U.S. Dep't of Lab.,
627 F. Supp. 2d 137, 146 (S.D.N.Y. 2009) (under 29 CFR 4.188, a
contractor found by the Secretary to have violated the Service
Contract Act bears the burden of establishing unusual circumstances
to warrant relief from the debarment sanction that generally applies
to violators); 29 CFR 525.21(c) (where an employer that has obtained
a special certificate under FLSA section 14(c) allowing the employer
to pay special minimum wage rates to certain workers with
disabilities, and the employer seeks to obtain authority to lower
the wage rate of a worker with a disability below the rate specified
in the certificate, the employer has the burden of establishing the
necessity of lowering the wage of that worker); 29 CFR 779.101
(stating that ``[a]n employer who claims an exemption under the
[FLSA] has the burden of showing that it applies'') (citing Walling
v. Gen. Indus. Co., 330 U.S. 545 (1947) and A.H. Phillips, Inc. v.
Walling, 324 U.S. 490 (1945)).
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Consistent with current policy, where an employer constructively
discharges a worker, the Department will consider
[[Page 63785]]
that worker to be terminated without cause. Constructive discharge
occurs when a worker departs employment because working conditions have
become so difficult that a reasonable person would have felt compelled
to leave the job. Constructive discharge may occur in a wide variety of
situations, such as where a worker departs employment because of unsafe
or intolerable housing conditions (such as grossly inadequate heating
during the winter, lack of running water, or exposure of bare
electrical wires), because the employer requires the worker to work in
an unsafe workplace (for example, where an employer requires a worker
to work in a field that was recently sprayed with pesticides before the
required re-entry interval has elapsed), or because the worker has not
received work assignments for an extended period of time, despite being
available and willing to take on new work. Along the same lines, where
a worker involuntarily leaves employment prior to the end of the
contract period, the employee's departure may be deemed constructive
discharge rather than abandonment under Sec. 655.122(n)(1). Consistent
with current practice, in assessing whether alleged abandonment is
voluntary, the Department will consider, for example, whether the
employer sought to influence workers to leave a job prior to the end of
the contract period or whether the employer took other steps to render
working conditions so intolerable that a reasonable person in the
worker's position would not stay. See U.S. Dep't of Lab., Wage & Hour
Div., Field Assistance Bulletin No. 2012-1, H-2A ``Abandonment or
Termination for Cause'' Enforcement of 20 CFR 655.122(n) (Feb. 28,
2012).\57\
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\57\ https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/fab2012_1.pdf.
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The Department also proposes additional recordkeeping obligations
in Sec. 655.122(n)(4). The regulations at current Sec. 655.122(n)
require employers to maintain records of notification to the NPC, and
to DHS in the case of an H-2A worker. Proposed Sec. 655.122(n)(4)(i)
would make a minor clarification that such records of notification must
be maintained with respect to both abandonment and termination for
cause, which is consistent with DOL's established interpretation of the
current regulations. Further, proposed Sec. 655.122(n)(4)(ii) would
require the employer to maintain disciplinary records, including each
step of progressive discipline, any evidence the worker presented in
their defense, any investigation related to the termination, and any
subsequent instruction afforded the worker. Finally, proposed Sec.
655.122(n)(4)(iii) would require that the employer maintain records
indicating the reason(s) for termination of any employee, including
disciplinary records as described in Sec. Sec. 655.122(n)(4)(ii) and
655.167. These records are necessary to show that an employer complied
with the regulations throughout the process leading to the termination
for cause. An employer that does not maintain these records may not
meet the burden of demonstrating to the Department that any termination
for cause meets the requirements of proposed Sec. 655.122(n)(2), as
required by proposed Sec. 655.122(n)(2)(iv). The Department also
proposes conforming edits to Sec. 655.167, specifically by adding
paragraphs (c)(10) and (11), requiring employers to retain records
indicating the reason(s) for termination of any employee, including
records of each step of progressive discipline, any subsequent
instruction afforded the worker, and any investigation, including any
evidence or information that the worker presented in their defense,
relating to the termination as set forth in Sec. 655.122(n). The
maintenance of disciplinary records for all employees, not simply those
who were terminated, will assist employers in meeting their burden to
demonstrate that discipline leading to termination was not pretextual
and was consistent with company policies and procedures. The Department
seeks comments as to whether it should require any other records in
support of these proposed requirements.
Finally, the Department proposes minor edits to Sec. 655.122(n) to
improve readability and clarity. Specifically, the Department proposes
to number paragraphs within this section and to reorder the mentions of
termination for cause and abandonment of employment. Additionally, the
Department proposes to clarify that the employer must notify the NPC
and, in the case of an H-2A worker, DHS, not later than 2 working days
after any termination for cause or abandonment occurs. This edit would
be consistent with DOL's established interpretation of the current
regulations at Sec. 655.122(n) and would clarify ambiguous language to
specify that the notice procedures apply both to termination for cause
and to abandonment.
C. Application for Temporary Employment Certification Filing Procedures
1. Section 655.130, Application Filing Requirements
a. The Department Proposes To Require Enhanced Disclosure of
Information About Employers: Owners, Operators, Managers, and
Supervisors
The Department proposes to expand its collection of information
about employers and the managers and supervisors of workers at places
of employment by collecting additional information about the owner(s)
of agricultural businesses that employ workers under the H-2A
Application, the operators of the place(s) of employment identified in
the job order, and the managers and supervisors of the workers when
performing labor or services at those place(s) of employment.
Specifically, the Department proposes to require that each prospective
H-2A employer, as defined at 20 CFR 655.103(b), provide the following
information in relation to the owner(s) of each employer, any person or
entity (if different than the employer(s)) who is an operator of the
place(s) of employment, including an H-2ALC's fixed-site agricultural
business client(s), and any person who manages or supervises the H-2A
workers and workers in corresponding employment under the H-2A
Application: full name, date of birth, address, telephone number, and
email address. The Department also proposes to revise the Form ETA-
9142A to require the employer provide additional information about
prior trade or DBA names the employer has used in the 3 years preceding
its filing of the H-2A Application, if any, rather than collecting only
the DBA name the employer currently uses. Accordingly, the Department
proposes to revise and restructure Sec. 655.130 by adding four new
paragraphs, (a)(1) through (4), to specify the information employers
must provide at the time of filing an H-2A Application.
In a new paragraph (a)(1), the Department proposes to retain the
language currently in Sec. 655.130(a) that addresses the H-2A
Application and supporting documentation the employer must submit. The
remainder of Sec. 655.130(a), which contains language regarding
collection of the employer's information--i.e., FEIN, valid physical
location in the United States, and means of contact for recruitment--
would be moved to proposed paragraph (a)(2). Also, in paragraph (a)(2),
the Department proposes to explicitly
[[Page 63786]]
require disclosure of the employer's name and the additional employer
information collection the Department proposes to require (i.e., the
identity, location, and means of contact for each owner). Proposed
paragraph (a)(3) would require the employer to provide the identity,
location, and contact information of all persons or entities who are
operators of the place(s) of employment listed in the job order, if
different from the employer(s) identified under paragraph (a)(2),
including an H-2ALC's fixed-site agricultural business client(s) who
operate the place(s) of employment where the workers employed under the
H-2A Application will perform labor or services. In addition, paragraph
(a)(3) would require the employer to provide the identity, location,
and contact information of all persons who will manage or supervise H-
2A workers and workers in corresponding employment under the H-2A
Application at each place of employment. Proposed paragraph (a)(4)
would require the employer to continue to update the information
required by the above paragraphs until the end of the work contract
period, including extensions thereto, and retain this information post-
certification and produce it upon request by the Department. To
effectuate proposed Sec. 655.130(a)(4), the Department proposes a new
record retention paragraph at Sec. 655.167(c)(9) that would require
the employer to retain the information specified in paragraphs (a)(2)
and (3) of Sec. 655.130 for the 3-year period specified in Sec.
655.167(b).
The additional information the Department proposes to collect is
necessary to improve program administration and better protect
vulnerable agricultural workers. The new collections would allow the
Department to gain a more accurate and detailed understanding of the
scope and structure of the employer's agricultural operation, which is
essential to the Department's fulfillment of various obligations in the
administration and enforcement of the H-2A program. During the
application process, this information would assist the Department in
determining whether the employer has demonstrated a bona fide temporary
or seasonal need, or, conversely, whether an employer has, through
multiple related entities, sought to obtain year-round H-2A labor. The
additional information would enhance the Department's enforcement
capabilities by helping the Department identify, investigate, and
pursue remedies from program violators; ensure that sanctions, such as
debarment or civil money penalties, are appropriately assessed and
applied to responsible entities, including individuals and successors
in interest when appropriate; and determine whether an H-2A employer
subject to investigation has prior investigative history under a
different name. For example, contact information for owners, operators,
and supervisors may assist the Department in locating the employer and
workers for the purposes of conducting an investigation, presenting
findings (either verbally or in a written determination) and obtaining
payment for back wages and civil money penalties following a final
order of the Secretary. Similarly, this information provided at the
application stage may assist the Department to identify whether an
individual or successor in interest should be named on any
determination and therefore subject to any sanctions or remedies
assessed. As explained in the discussion of proposed Sec. 655.104, in
the experience of the Department, some H-2A employers have sought to
avoid penalties and continue participating in the program despite
having been debarred by reconstituting as a new legal entity while
ultimately retaining the underlying business that was debarred from the
H-2A program. In an audit or investigation of an employer, this
information would allow the Department to better identify those persons
with a financial stake in the certified H-2A employer who employ
agricultural workers through non-petitioning entities. In addition, and
as set forth in the discussion of proposed Sec. 655.103(e), in the
experience of the Department, some employers have established one
entity that pays the firm's H-2A workers and another entity that pays
the firm's other workers, while in fact the entire agricultural
operation constitutes a single employer. This information will assist
the Department in determining quickly whether the employees of the non-
petitioning entity are in corresponding employment as employees of a
single employer with an H-2A labor certification.
OFLC may use this information in post-adjudication audit
examinations and/or program integrity proceedings (e.g., revocation or
debarment actions). The information will help OFLC verify that persons
representing employers both in the labor certification process and in
the process of recruiting, managing, or supervising workers are acting
on behalf of the employers within the scope of the terms and conditions
of the labor certification and any contracts or agreements with
employers, and in compliance with the revised regulations and all
employment-related laws, such as laws prohibiting discrimination,
retaliation, or the imposition of unlawful recruitment or visa-related
fees. Collection of prior DBA names and identifying information for
people other than the employer will make it easier for OFLC and WHD to
search across applications within a filing system database to identify
instances in which employers have changed names or roles to avoid
complying with program regulations or avoid monetary penalties or
serious sanctions such as program debarment. The proposed information
collections also will facilitate interagency information sharing and
permit OFLC and WHD to share relevant identifying information with
other agencies when necessary to aid an investigation or enforcement
action.
The Department will collect this information primarily through the
H-2A Application the employer must complete to obtain temporary labor
certification, and the Department proposes revisions to these forms
under the Paperwork Reduction Act (PRA) for this purpose. In
particular, the Department proposes revisions to the Form ETA-790A,
Addendum B, to collect more detailed information about employers and
the places of employment at which workers will provide the agricultural
labor or services described in the job order. In addition, the
Department proposes a new Form ETA-9142A, Appendix C, to collect the
additional identifying information for owners and operators of places
where work is performed and the people who manage and supervise workers
under the H-2A Application, discussed above. The Department will
collect, store, and disseminate all information and records in
accordance with the Department's information sharing agreements and
System of Records Notices, principles set forth by the Office of
Management and Budget (OMB), and all applicable laws, including the
Privacy Act of 1974 (Pub. L. 93-579, sec. 7, Dec. 31, 1974, 88 Stat.
1909), Federal Records Act of 1950 (Pub. L. 81-754, 64 Stat. 585
[codified as amended in chapters 21, 29, 31, and 33 of 44 U.S.C.]), the
PRA (44 U.S.C. 3501 et seq.), and the E-Government Act of 2002 (Pub. L.
107-347 (2002)). More information about the Department's proposed
changes to the H-2A information collection instruments and the
Department's collection and use of this information is available in
supporting documentation in the PRA package the Department has prepared
for this rulemaking.
[[Page 63787]]
2. Section 655.135, Assurances and Obligations of H-2A Employers
a. Section 655.135 Introductory Language, WHD Authority
The Department proposes a minor, clarifying revision to the
introductory language to Sec. 655.135 to include explicit reference to
29 CFR part 501 as part of the obligations and assurances of an
employer seeking to employ H-2A workers. The current introductory
language specifies that an employer seeking to employ H-2A workers must
agree as part of the job order and Application that it will comply with
all requirements under 20 CFR part 655, subpart B. Those requirements
currently include compliance with WHD's investigative and enforcement
authority under 29 CFR part 501. See, e.g., 20 CFR 655.103(b),
655.101(b). The proposed revisions here would simply make these
obligations more explicit in Sec. 655.135 and on the job order, to
better ensure that both workers and employers are fully aware of WHD's
authorities. The Department welcomes comments on this proposed
revision.
b. Sections 655.135(h), (m), and (n), 655.103(b), Protections for
Workers Who Advocate for Better Working Conditions
The Department proposes to revise the assurances and obligations of
H-2A employers to include stronger protections for workers who advocate
for better working conditions on behalf of themselves and their
coworkers. The Department believes that these protections will
significantly improve the Department's efforts to prevent adverse
effect on the working conditions of similarly employed agricultural
workers in the United States because the hiring of H-2A workers may
suppress the ability of domestic workers to negotiate with employers
and advocate on their own behalf. Even if workers in the United States
were to demand better conditions or pay, under the current H-2A
regulatory framework, employers may turn to the H-2A program for an
alternative, vulnerable workforce that faces significant barriers to
pushing for better conditions or organizing, thus undermining advocacy
efforts by or on behalf of workers in the United States. The proposals
in this rule seek to correct this imbalance in bargaining power by
protecting the rights of H-2A and other workers to advocate for better
working conditions. In other words, the protections that the Department
proposes would provide an important ``baseline'' or minimum condition
of employment under the H-2A program below which workers in the United
States would be adversely affected, for the reasons set forth below.
Specifically, the Department proposes to broaden the provision at
Sec. 655.135(h), which prohibits unfair treatment, by adding a number
of protected activities that the Department has determined will play a
significant role in safeguarding collective action, and that workers
must be able to engage in without fear of intimidation, threats, and
other forms of retaliation. The Department also proposes a new employer
obligation at Sec. 655.135(m) that would ensure that H-2A employers do
not interfere with efforts by their vulnerable workforce to advocate
for better working conditions by including a number of requirements
that would advance worker voice and empowerment and further protect the
rights proposed under Sec. 655.135(h). The Department also proposes a
new employer obligation at Sec. 655.135(n) that would explicitly allow
H-2A workers and workers in corresponding employment the right to
invite or accept guests to worker housing and also would provide a
narrow right of access to worker housing to labor organizations. Some
of these proposed protections would be limited to those workers who are
engaged in agriculture as defined and applied in 29 U.S.C. 203(f)--that
is, those who are exempt from the protections of the NLRA.
The Department believes that the proposed protections are necessary
to prevent an adverse effect on the working conditions of workers in
the United States similarly employed. 8 U.S.C. 1188(a)(1). The
Department has historically understood the INA's adverse effect
requirement both as requiring parity between the terms and conditions
of employment provided to domestic and H-2A workers and as establishing
a baseline ``acceptable'' standard for working conditions below which
workers in the United States would be adversely affected. Courts have
long recognized that Congress delegated to the Department broad
authority to implement the prohibition on adverse effect. See, e.g.,
Overdevest Nurseries, L.P. v. Walsh, 2 F.4th 977, 984 (D.C. Cir. 2021);
AFL-CIO v. Dole, 923 F.2d 182, 187 (D.C. Cir. 1991) (citing AFL-CIO v.
Brock, 835 F.2d 912, 915 n.5 (D.C. Cir. 1987)).
In the 1978 H-2 regulations for agricultural employment, the
Department characterized many of the longstanding terms and conditions
of the program now found at 20 CFR 655.122--including housing, workers'
compensation insurance, the provision of tools and equipment, the
maximum meal charge, inbound and outbound and daily transportation, the
three-fourths guarantee, and recordkeeping and earning statements--as
``the minimum level'' of working conditions ``below which similarly
employed'' workers in the United States ``would be adversely
affected.'' 20 CFR 655.0(d), 655.202(b) (1978), 43 FR 10306, 10312,
10314 (Mar. 10, 1978). The 1978 rule further explained that ``[i]f it
is concluded that adverse effect would result,'' the Department would
not be able to separately determine whether U.S. workers are available
because ``U.S. workers cannot be expected to accept employment under
conditions below the established minimum levels.'' 43 FR 10306, 10312
(Mar. 10, 1978).
In IRCA, which bifurcated the H-2 program and created the separate
H-2A program, Congress explicitly adopted the adverse effect
requirement, stating that the Secretary may not issue a temporary labor
certification unless the petitioning employer has established, among
other things, that the employment of H-2A workers ``will not adversely
affect the . . . working conditions of workers in the United States
similarly employed.'' 8 U.S.C. 1188(a)(1). The Department retained the
``minimum'' terms and conditions of employment required under the
program, explicitly described in the regulations as intended to prevent
adverse effect, in its 1987 rulemaking. 52 FR 16770, 16779-80 (May 5,
1987); 52 FR 20496, 20508, 20513 (June 1, 1987); see also Garcia-
Celestino v. Ruiz Harvesting, Inc., 843 F.3d 1276, 1285 (11th Cir.
2016) (explaining that the regulations' provision of minimum benefits
to H-2A workers, including sound working conditions, ``ensure[s] that
foreign workers will not appear more attractive to the employer than
domestic workers, thus avoiding any adverse effects for domestic
workers'') (citations omitted).
Over the past decade, use of the H-2A program has grown
dramatically while overall agricultural employment in the United States
has remained stable, meaning that fewer domestic workers are employed
as farmworkers.\58\ The Department believes that this is because the
dangers and physical hardships inherent in agricultural
[[Page 63788]]
employment,\59\ combined with the lack of protections for worker
organizing and bargaining power, have together contributed to worsening
working conditions in agricultural employment--a lowering baseline--
leading to a decreasing number of domestic workers willing to accept
such work.\60\ Congress explicitly prohibited in the INA the granting
of labor certifications in the event of a strike or lockout at the
worksite, a prohibition that recognizes the potential for the hiring of
H-2A workers to suppress domestic workers' bargaining power and
organizing efforts and, thus, have a negative impact on workers in the
United States. 8 U.S.C. 1188(b)(1).
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\58\ According to USDA's Economic Research Service, employment
of farmworkers in the United States has remained stable since the
1990s, but the number of positions certified in the H-2A program has
increased sixfold from 2005 to 2021. See Farm Labor, U.S. Dep't of
Agriculture, https://www.ers.usda.gov/topics/farm-economy/farm-labor; H-2A Seasonal Worker Program Has Expanded Over Time, U.S.
Dep't of Agriculture, https://www.ers.usda.gov/data-products/chart-gallery/gallery/chart-detail/?chartId=104874.
\59\ Workplace Safety and Health Topics: Agricultural Safety,
National Inst. for Occupational Safety & Health, Ctrs. for Disease
Control & Prevention.
\60\ Centro de los Derechos del Migrante, Ripe for Reform:
Abuses of Agricultural Workers in the H-2A Visa Program 4, 6 (CDM
Report), https://cdmigrante.org/ripe-for-reform; Farmworker Justice
Report at 7, 11, 17, 31; Miriam Jordan, Black Farmworkers Say They
Lost Jobs to Foreigners Who Were Paid More, N.Y. Times (Nov. 12,
2021), https://www.nytimes.com/2021/11/12/us/black-farmworkers-mississippi-lawsuit.html; Polaris, Labor Trafficking on Specific
Temporary Work Visas, a Data Analysis 2018-2020 13, 18 (May 2022)
(Polaris 2018-2020 Report), https://polarisproject.org/wp-content/uploads/2022/07/Labor-Trafficking-on-Specific-Temporary-Work-Visas-by-Polaris.pdf.
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Some of the characteristics of the H-2A program, including the
temporary nature of the work, frequent geographic isolation of the
workers, and dependency on a single employer, create a vulnerable
population of workers for whom it is uniquely difficult to advocate or
organize to seek better working conditions.\61\ In its enforcement
experience, the Department has received reports of employers that have
prohibited or effectively prevented H-2A workers from receiving
assistance from certain service providers. For example, some employers
have prevented H-2A workers from consulting with legal aid
organizations regarding workers' rights under the H-2A program. Others
have refused to transport workers to a medical provider for care in the
United States, and one employer required instead that workers return to
Mexico to access medical care for an on-the-job injury. The Department
has seen flyers prohibiting workers from talking to visitors at the
housing site without supervisor permission and posters prohibiting
visitors to agricultural establishments unless the visitors first check
in with the employer. See also Rivero v. Montgomery Cnty., 259 F. Supp.
3d 334, 337-40 (D. Md. 2017) (employer unlawfully blocked legal aid
workers from visiting H-2A workers in employer-provided housing).
Nongovernmental organizations (NGOs) that work with H-2A workers report
similar employer interference with workers' rights to access services
and information, including medical treatment and legal assistance.\62\
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\61\ CDM Report at 4-6, 9, 13, 18-19, 23, 27; Farmworker Justice
Report at 17; Polaris 2018-2020 Report at 13, 18-19, 26.
\62\ CDM Report at 5, 23, 27, 30; Farmworker Justice Report at
22, 33; Polaris 2018-2020 Report at 7, 8, 19, 26.
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Workers in the H-2A program are also vulnerable to retaliation,
which discourages workers from advocating for their own rights and the
rights of their coworkers.\63\ For example, the Department debarred and
assessed penalties against an H-2A employer that instructed workers to
lie about their pay to investigators and threatened to kill workers who
talked to authorities.\64\ The Department also recently obtained a
temporary restraining order and preliminary injunction against an H-2A
employer who, after workers requested more food and water, threatened
workers with a gun, shooting twice near the workers.\65\ In another
example, the Department recently debarred and assessed penalties
against an employer who underpaid workers by more than $5.00 per hour
and confiscated workers' passports to keep them from leaving employment
upon realizing they were being underpaid.\66\ These examples are just a
few among the many instances of retaliation that the Department has
witnessed, and that workers experience, that demonstrate that workers
can face significant hurdles when advocating on their own behalf to
assert even their basic rights under the current H-2A program
regulations.
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\63\ Farmworker Justice Report at 30-31; Polaris 2018-2020
Report at 16-17, 26.
\64\ Individuals associated with this employer also pleaded
guilty to criminal charges for their role in forced labor
racketeering conspiracy. See Press Release, U.S. Dep't of Just.,
Owner of Farm Labor Contracting Company Pleads Guilty in
Racketeering Conspiracy Involving the Forced Labor of Mexican
Workers (Sept. 27, 2022), https://www.justice.gov/opa/pr/owner-farm-labor-contracting-company-pleads-guilty-racketeering-conspiracy-involving-forced; Press Release, U.S. Dep't of Just., Three
Defendants Sentenced in Multi-State Racketeering Conspiracy
Involving Forced Labor of Mexican Agricultural H-2A Workers (Oct.
27, 2022), https://www.justice.gov/opa/pr/three-defendants-sentenced-multi-state-racketeering-conspiracy-involving-forced-labor-mexican.
\65\ See Press Release, U.S. Dep't of Lab., Federal Court Orders
Louisiana Farm, Owners to Stop Retaliation After Operator Denied
Workers' Request for Water, Screamed Obscenities, Fired Shots (Oct.
28, 2021), https://www.dol.gov/newsroom/releases/whd/whd20211028-0.
\66\ See Press Release, U.S. Dep't of Lab., US Department of
Labor Investigation Results in Judge Debarring North Carolina Farm
Labor Contractor for Numerous Guest Worker Visa Program Violations.
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As explained, the Department believes that the fear of retaliation,
combined with the lack of clear protections for H-2A workers and
corresponding workers to self-organize and advocate on their own
behalf, has contributed to low union density in the agricultural
workforce.\67\ In addition, based on its enforcement experience, the
Department has determined that the H-2A program currently does not
provide sufficient protections for such workers to safely and
consistently assert their rights under the program and engage in self-
advocacy. This lack of sufficient protections adversely affects the
ability of domestic workers to advocate for acceptable working
conditions, leading to reduced worker bargaining power and, ultimately,
deterioration of working conditions in agricultural employment.
However, when these workers have engaged in organizing, it has led to
better working conditions for all workers. According to the Farm Labor
Organizing Committee, AFL-CIO, union advocacy has improved conditions
for the workers it represents (over 10,000 H-2A workers employed at
North Carolina agricultural sites), including by helping H-2A workers
to obtain remedies for likely violations of the H-2A program's
requirements relating to housing safety standards, travel
reimbursements, wages, and other requirements.\68\
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\67\ According to BLS data, in 2021, union representation in
agriculture was just 3.1 percent of total workers employed compared
to the 11.6 percent of workers employed overall represented by
unions; in 2022, agricultural union representation was 4.3 percent
of workers employed, compared to 11.3 percent of workers employed
overall. BLS News Release, Union Members--2022 tbls 1, 3, Bureau of
Lab. Stats., https://www.bls.gov/news.release/pdf/union2.pdf. See
also Report for Congress, Farm Labor: The Adverse Effect Wage Rate
(AEWR), Congressional Research Service (updated March 26, 2008)
n.17; Farmworker Justice Report at 31.
\68\ See Farmworker Justice Report at 30-31; 2017 Grievance
Summary, Farm Lab. Org. Comm., https://floc.com/2017-grievance-summary.
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Therefore, the Department believes that changes proposed here,
which would expand the H-2A anti-retaliation regulation and include
employer obligations that would make advocacy and organizing more
available to workers in the H-2A program, would help improve the
working conditions of workers protected under the H-2A program, and
thus prevent an adverse effect on similarly employed workers in the
United States. The Department believes that the proposed protections
also would increase U.S. worker response to H-2A employers' recruitment
efforts, both by improving working conditions under the H-2A program
and by increasing U.S. workers'
[[Page 63789]]
interest in H-2A job opportunities that include protections for
advocacy and organizing efforts that would not be undermined by the
availability of an alternative, more vulnerable workforce. These
proposals also would enhance worker bargaining power and meaningfully
equip workers to prevent further deterioration of working conditions
that adversely affect workers in the United States.
The Department welcomes comments on whether, in fact, foreign
workers employed under the H-2A program are more vulnerable to labor
exploitation than similarly employed domestic workers, due to the
temporary nature of the work; frequent geographic isolation of the
workers; dependency on a single employer for work, housing,
transportation, and necessities, including access to food and water;
language barriers; possible lack of knowledge about their legal rights;
or other factors. It also welcomes evidence or experience regarding, or
refuting, the unique vulnerability of these workers, and whether
existing worker protections are adequate to prevent violations of H-2A
program requirements, dangerous working conditions, retaliation, and
labor trafficking, or to promote H-2A workers' ability to advocate or
organize to seek better working conditions. The Department also seeks
comments on whether domestic agricultural workers have greater voice
and empowerment at work generally than foreign agricultural workers,
despite the fact that they are not covered by the NLRA, due to their
established presence in the United States, their domestic network of
family and friends, their greater familiarity with services and
supports available to workers in the United States, and their ability
to find alternative employment. And more generally, the Department also
seeks comment on how to increase, or increase awareness of existing,
protections for workers advocating for better working conditions and to
help prevent adverse effect on workers in the United States, without
infringing on employers' rights to manage their workplaces. It welcomes
the views of employers, workers, worker advocates, labor organizations,
and other stakeholders on these issues. In particular, the Department
welcomes any evidence, research, and/or empirical data regarding these
issues. The Department also welcomes comments on whether further
protections for workers' advocacy and organization, in addition to the
protections contained within the following sections, are necessary to
ensure that the employment of foreign workers under the H-2A program
does not adversely affect the wages or working conditions of domestic
workers.
i. The Department's Proposed Regulations Would Not Be Preempted by the
NLRA
Some of the provisions included in the Department's proposed
regulations would be limited to persons who are engaged in agriculture
as defined and applied in 29 U.S.C. 203(f) (``FLSA agriculture''). For
these workers, and these workers alone, the proposed regulations would
protect some conduct and provide some rights necessary to safeguard
collective action and protect against retaliation. The NLRA's coverage
extends only to workers who qualify as ``employee[s]'' under section
2(3) of that Act, and the NLRA's definition of employee expressly
excludes ``any individual employed as an agricultural worker.'' 29
U.S.C. 152(3). Congress has provided that the definition of
``agricultural'' in section 3(f) of the FLSA also applies to the NLRA.
See, e.g., Holly Farms v. NLRB, 517 U.S. 392, 397-98 (1996). Following
the plain text of the statute, both Federal courts and the NLRB have
long held that the NLRA does not apply to agricultural workers, worker
organizing by agricultural workers, or unions ``composed exclusively of
agricultural laborers.'' Di Giorgio Fruit Corp. v. NLRB, 191 F.2d 642,
647 (D.C. Cir. 1951); see also, e.g., Villegas v. Princeton Farms,
Inc., 893 F.2d 919, 921 (7th Cir. 1990). Because portions of the
Department's proposed regulations would apply only to workers who fall
within the NLRA and FLSA definitions of agricultural labor, those
proposed provisions would apply exclusively to workers who are exempt
from the NLRA. Thus, to the extent that one might argue that the
proposed changes in this section safeguarding collective action would
be preempted by Federal labor law, the NLRA's exemption of agricultural
labor shows that the proposal here is not preempted. As the Supreme
Court explained in San Diego Building Trades Council v. Garmon, 359
U.S. 236 (1959), the NLRA preempts regulation of activities that either
are or arguably are ``protected by [section] 7 of the National Labor
Relations Act, or . . . an unfair labor practice under [section] 8.''
Id. at 244; see also UAW-Labor Emp. & Training Corp. v. Chao, 325 F.3d
360, 363 (D.C. Cir. 2003). Conduct may be ``arguably'' governed by
section 7 or 8 of the NLRA when there is a plausible argument for
preemption ``that is not plainly contrary to [the Act's] language and
that has not been authoritatively rejected by the courts or the
Board.'' Int'l Longshoremen's Ass'n v. Davis, 476 U.S. 380, 395 (1986).
Because agricultural workers are expressly excluded from the NLRA by
the plain text of the statute, agricultural worker organizing is
neither protected by section 7 of the Act nor subject to section 8's
limitations on unfair labor practices. See 29 U.S.C. 152(3); see also
Di Giorgio, 191 F.2d at 647-49 (holding that section 8's prohibition on
secondary boycotts did not apply to a Farm Union, because an
organization composed exclusively of agricultural workers is not
governed by the NLRA). Moreover, because any argument that the NLRA
governs agricultural workers would be ``plainly contrary to [the
NLRA's] language,'' the conduct that would be protected under the
Department's proposed rule is not even arguably governed by the NLRA.
See Int'l Longshoremen's Ass'n, 476 U.S. at 395; see also Wilmar
Poultry Co., Inc. v. Jones, 430 F. Supp. 573, 578 (D. Minn. 1977)
(holding that Garmon preemption does not apply to State regulation of
agricultural workers' labor activity ``because the NLRA's protections
and prohibitions do not apply to agricultural laborers.'').
The Supreme Court held in International Ass'n of Machinists &
Aerospace Workers v. Wisconsin Employment Relations Commission, 427
U.S. 132 (1976), that the NLRA also preempts regulation of employer or
worker conduct that Congress intended to leave unregulated ``to be
controlled by the free play of economic forces.'' Id. at 140
(quotations omitted). Machinists preemption applies to State or Federal
regulation of ``economic weapons'' that would ``frustrate effective
implementation of the Act's processes.'' Id. at 147-48 (quotations
omitted). The Department's proposed rule could not frustrate effective
implementation of the NLRA's processes, because the relevant portions
of the proposal would apply exclusively to a set of H-2A agricultural
workers to whom the NLRA's processes do not apply. Thus, the text and
structure of the NLRA indicate that Machinists field preemption does
not extend to agricultural worker organizing. See United Farm Workers
v. Arizona Ag. Emp. Rels. Bd., 669 F.2d 1249, 1257 (9th Cir. 1982)
(explaining that when ``Congress has chosen not to create a national
labor policy in a particular field, the states remain free to legislate
as they see fit'' and Machinists preemption does not apply); Wilmar
Poultry, 430 F. Supp. at 578 (holding that Machinists preemption does
not apply to State regulation of agricultural laborers). Similarly,
courts have held
[[Page 63790]]
that Machinists preemption does not prevent State labor relations
regulations that apply to other workers excluded from the NLRA. See,
e.g., Davenport v. Wash. Educ. Ass'n, 551 U.S. 177, 181 (2007) (public
employees); Chamber of Commerce v. City of Seattle, 890 F.3d 769, 792
(9th Cir. 2018) (independent contractors); Greene v. Dayton, 806 F.3d
1146, 1149 (8th Cir. 2015) (domestic service workers).
Furthermore, in these proposed regulations the Department would be
exercising its authority under the INA to regulate the labor market to
prevent adverse effect on the working conditions of agricultural
workers in the United States. 8 U.S.C. 1188(a)(1). Congress could not
have intended for the NLRA to ``occupy the `field' with respect to the
regulation of all labor concerns,'' as it delegated authority under the
INA to the Department. See Nat'l Ass'n of Mfrs. v. Perez, 103 F. Supp.
3d 7, 25 (D.D.C. 2015) (citing UAW-Lab. Emp. & Training Corp., 325 F.3d
at 364) (holding that a DOL regulation was not preempted under
Machinists because it was an exercise of the President's procurement
power, rather than an exercise of authority conferred by the NLRA, and
because Congress did not intend for the NLRA to ``foreclose all other''
labor regulation). For these reasons, no part of the Department's
proposed regulation would be preempted by the NLRA.
Because certain provisions of this proposed rule would be limited
to workers engaged in FLSA agriculture, the Department notes that
workers who are not engaged in FLSA agricultural labor (e.g., those
workers engaged in logging occupations) would not be covered by those
proposed provisions. The vast majority of workers excluded from those
proposed provisions, however, are covered by the NLRA, and are thus
already afforded the right to self-organization. Nothing in this
proposed rule would alter or circumscribe the rights of workers already
protected by the NLRA to engage in conduct and exercise rights afforded
under that law.
ii. Section 655.103(b), Definitions
In support of the new employer obligations the Department is
proposing, the Department proposes to add two new definitions to Sec.
655.103(b).
The Department proposes to define ``key service provider'' to mean
a health-care provider; a community health worker; an education
provider; an attorney; a legal advocate or other legal service
provider; a government official, including a consular representative; a
member of the clergy; and any other service provider to which an
agricultural worker may need access. The Department has adapted this
proposed definition from one used in the Colorado Agricultural Labor
Rights and Responsibilities Act, Colo. Rev. Stat. 8-13.5-201, because
it believes that a definition and examples of the types of service
providers that workers should have access to would be useful for both
workers and employers. The list of service providers included in the
proposed definition is intended to be illustrative and not exhaustive.
For example, the Department would consider a non-union worker center to
be a key service provider under the proposed definition, as well as the
representatives, directors, or other individual employees of a worker
center. Worker centers are generally non-union, community-led
organizations that provide or engage in services, advocacy, and
organizing to support workers in low-wage industries and occupations,
particularly in those industries and occupations excluded from Federal
labor law, such as agriculture.\69\ The Department is soliciting
comment on the scope of this proposed definition, in particular as to
whether it is sufficient, whether other types of service providers
should be included in the list of examples in the regulation, or
whether this definition is too broad.
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\69\ For example, the Coalition of Immokalee Workers is a
worker-based human rights organization that focuses on fighting
human trafficking and gender-based harassment and violence affecting
farmworkers, and improving labor standards through a voluntary code
of conduct called the Fair Food Program (``FFP''), a market-centered
approach to the protection of human rights in corporate supply
chains. ``Key service providers'' under the voluntary FFP might
include worker educators who provide regular training at
participating farms; investigators who conduct audits and accept,
investigate, and resolve complaints; and representatives who work
with participating buyers to enforce the voluntary FFP at
participating farms. See Coalition of Immokalee Workers, Fair Food
Program (2021), https://ciw-online.org/blog/2021/09/released-2021-fair-food-program-report. Similar worker centers serve farm workers
in other States. See also Economic Policy Institute, Briefing Paper
No. 159: Worker Centers: Organizing Communities at the Edge of the
Dream (Dec. 31, 2005), https://www.epi.org/publication/bp159.
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The Department proposes to define ``labor organization'' to mean an
organization in which employees participate and that exists for the
purpose, in whole or in part, of dealing with employers over
grievances, labor disputes, or terms or conditions of employment. This
definition is similar to the one used under the NLRA with key
differences to reflect the nature of the H-2A program. While this
definition would thus incorporate many NLRA principles regarding the
meaning of the term ``labor organization,'' the Department intends the
range of organizations that would be considered labor organizations
under these proposed regulations to be broader than under the NLRA
because the Department's proposed definition would include
organizations in which agricultural workers participate, whereas such
organizations are excluded under the NLRA. The Department believes this
broader definition is appropriate given the unique characteristics of
the H-2A program. The Department seeks comment on the scope of this
proposed definition. The Department also seeks comment on whether the
definition should include additional criteria or protections in order
to ensure that any such organization is not dominated, interfered with,
or supported by employers, as would be prohibited by section 8(a)(2) of
the NLRA, 29 U.S.C. 158(a)(2).
The Department also welcomes comments on whether other terms
introduced by the proposed regulations should be defined in Sec.
655.103(b), and on other definitions that the Department should
consider.
iii. Section 655.135(h) No Unfair Treatment
The Department proposes to expand the scope of what constitutes
prohibited unfair treatment under Sec. 655.135(h) to better protect
workers from intimidation or discrimination in response to worker
advocacy. As detailed above, the Department believes that these
protections are necessary to prevent an adverse effect on the working
conditions of workers in the United States similarly employed. 8 U.S.C.
1188(a)(1). Workers' rights cannot be secured unless they are protected
from all forms of discrimination resulting from any worker's attempt to
advocate on behalf of themselves or their coworkers. The Department has
long recognized that such protections are essential to the effective
functioning of a complaints-based enforcement regime. Mitchell v.
Robert DeMario Jewelry, Inc., 361 U.S. 288, 292 (1960) (agreeing with
the Department's interpretation of the FLSA's anti-retaliation
provision and explaining that Congress ``chose to rely on information
and complaints received from employees seeking to vindicate rights''
and ``effective enforcement could thus only be expected if employees
felt free to approach officials with their grievances''); see also U.S.
Dep't of Lab., Wage & Hour Div., Field Assistance Bulletin No. 2022-02,
Protecting Workers From Retaliation
[[Page 63791]]
(Mar. 10, 2022).\70\ Stated differently, an employer who is free to
intimidate workers to discourage them from raising or reporting legal
violations, or to retaliate against those who do so, interferes with
the Department's ability to enforce the legal requirements of the H-2A
statute and regulations. This is particularly true for workers in the
H-2A program. Due to the temporary nature of their work; their
geographic isolation and lack of independent transportation; their
dependency on a single employer for work, housing, and other
necessities, including access to food and water; language barriers;
and, often, a lack of knowledge about their legal rights, H-2A workers
are especially vulnerable to retaliation. This vulnerability makes H-2A
workers less likely to assert their legal rights or to raise or report
H-2A violations, including illegal or intolerable working conditions.
See section IV.C.2.b of this preamble. And as set forth above, the
availability of H-2A workers who are less likely to complain about such
working conditions makes it less likely that H-2A workers will come
together to seek better working conditions, and it is similarly less
likely that workers in the United States will be able to organize with
their fellow H-2A workers or otherwise seek improvements to their
working conditions alongside H-2A workers. Thus, the Department has
determined that strengthening and expanding the regulations' existing
protections against intimidation or discrimination in the H-2A program
is necessary to prevent further adverse effect on the working
conditions of workers in the United States.
---------------------------------------------------------------------------
\70\ https://www.dol.gov/sites/dolgov/files/WHD/fab/fab-2022-2.pdf.
---------------------------------------------------------------------------
Currently, the prohibition on unfair treatment provides that an
employer ``has not or will not intimidate, threaten, restrain, coerce,
blacklist, or in any manner discriminate against, any person'' who has
engaged in certain enumerated protected activities pertaining to the H-
2A program requirements, namely, filing a complaint, instituting a
proceeding, testifying in a proceeding, or consulting with an attorney
or legal assistance program regarding any H-2A violation, or exercising
or asserting any right or protection under the H-2A program. 20 CFR
655.135(h)(1) through (5). The Department proposes to redesignate and
expand current paragraphs (h)(1) through (h)(5) into proposed (h)(1)(i)
through (h)(1)(vii). The Department also proposes a new category of
protected activity, limited to those workers engaged in FLSA
agriculture, at proposed Sec. 655.135(h)(2). Finally, to help inform
workers of their rights under the H-2A program, the Department is
proposing to include the protections that would be afforded under
proposed Sec. 655.135(h) in the disclosures required on the job order.
iv. Section 655.135(h)(1)(v) Consulting With Key Service Providers
Recognizing the barriers that H-2A workers frequently face in
accessing certain services (see section IV.C.2.b of this preamble), the
Department proposes to broaden the range of service providers and
advocates with whom consultation regarding the terms and conditions of
employment under the H-2A program is explicitly protected.
Specifically, the Department proposes to add a new paragraph (v) to the
list of protected activities at Sec. 655.135(h)(1), consulting with a
``key service provider,'' as defined in proposed Sec. 655.103(b),
regarding matters under the H-2A program. This proposal would not be
limited to persons engaged in FLSA agriculture. The Department notes
that workers are already entitled to access and meet with many
different service providers to discuss or assert rights under the H-2A
program, without fear of retaliation for doing so, under the
Department's current regulatory framework. See, e.g., 20 CFR 655.135(e)
and (h)(5). For example, under the current regulations, an employer may
not retaliate against a worker because the worker goes to see a doctor
to care for an injury the worker incurred while on the job, or because
the worker consults a worker advocacy organization regarding the
employer's failure to pay the wages promised in the job order. Id. The
proposal here is intended to simply make these rights explicit. And
because this explicit assurance would be included on the job order
(Form ETA-790A), this clarification would help ensure that workers will
be aware of this protection through the terms of the job order. The
Department believes that clarifying protections for workers'
consultation with such providers would increase the likelihood that
workers will receive necessary services and help prevent the frequent
isolation that renders workers more vulnerable to H-2A violations and
other forms of labor exploitation, including worsening working
conditions. The Department seeks comment on this proposal.
v. Section 655.135(h)(1)(vi) Exercising or Asserting Any Rights Under
the H-2A Program
The Department proposes to redesignate current paragraph (h)(5),
which protects any person from discrimination for exercising or
asserting any rights protected or afforded under the H-2A program, to
(h)(1)(vi). The Department does not propose any substantive changes to
this paragraph. However, the Department notes that this category of
protected activity would protect any person from any form of
discrimination for asserting any rights or protections afforded under
the H-2A program, including those rights and protections afforded under
the Department's proposed paragraphs (m), (n), and (o) of this section.
vi. Section 655.135(h)(1)(vii) Exercising Rights Under Federal, State,
or Local Laws
The Department also proposes to clarify existing regulations by
adding Sec. 655.135(h)(1)(vii) to explicitly protect complaints,
proceedings, and testimony under any applicable labor- or employment-
related Federal, State, or local law or regulation, including those
related to health and safety. This would explicitly prohibit employers
from retaliating against any person who files a complaint, institutes
or causes to be instituted any proceeding, or testifies or is about to
testify in any proceeding under or related to any applicable Federal,
State, or local labor- or employment-related law, rule, or regulation.
The Department notes that these activities are already protected under
the Department's current regulatory framework because employers already
must comply with all applicable Federal, State, and local laws as a
requirement of the H-2A program. See 20 CFR 655.135(e) and (h)(1), (5).
The proposal here is intended to make these rights explicit, in order
to better inform workers and employers of the protected rights under
the H-2A program. Moreover, because there are Federal, State, and local
labor- or employment-related laws and regulations that may apply to
workers protected under the H-2A program (e.g., the Occupational Safety
and Health Act, 29 U.S.C. ch. 15, or the FLSA, 29 U.S.C. 201 et seq.),
explicitly prohibiting retaliation against persons who share
information with or assist those seeking to enforce these other laws
would better protect workers advocating for better working conditions
and would help prevent adverse effect on workers in the United States.
The Department emphasizes that nothing in this proposed rule is
intended to preempt more protective local, State, or Federal laws,
including labor and employment laws and regulations at the State level
that expressly protect agricultural workers, as well as those that
protect workers
[[Page 63792]]
generally against discrimination, unsafe working conditions, or other
adverse impacts, such as those referenced above. Moreover, the remedies
provided for under this proposed regulation are not intended to be
exclusive; if an agricultural worker has other remedies available under
State or local law, the remedies contemplated under this proposal are
not intended to displace them. The Department welcomes comments on how
best to ensure that its proposals do not conflict with existing laws
and regulations and how best to preserve available remedies under those
laws, in particular State laws that provide for a system of collective
bargaining for farmworkers and explicitly prohibit retaliation against
farmworkers.
The Department seeks comments on this proposal.
vii. Prohibitions on Seeking To Alter or Waive the Terms and Conditions
of Employment, Including the Right To Communicate With the Department
The Department's current regulations, including current Sec.
655.135(h), have long protected a worker's ability to communicate with
the Department. In addition, the Department's H-2A regulations have
long required employers to fully disclose in the job order the material
terms and conditions of employment under the job opportunity, and have
long prohibited employers from seeking to later alter those terms and
conditions. See 20 CFR 655.103(b), 655.122(b) and (q); 29 CFR 501.5.
However, in recent years, the Department has observed a troubling trend
of H-2A employers imposing ``side agreements'' that purport to add or
waive certain terms and conditions of employment as compared to those
disclosed in the job order. For example, after terminating a group of
workers without cause, one H-2A employer presented the workers with
forms falsely asserting that the workers had left voluntarily,
purporting to waive the workers' rights to the three-fourths guarantee.
WHD v. Sun Valley Orchards, LLC, ARB No. 2020-18, 2021 WL 2407468, at
*10-11 (ARB May 27, 2021), aff'd, No. 1:21-cv-16625, 2023 WL 4784204
(D.N.J July 27, 2023), appeal filed. Other H-2A employers have required
workers to sign arbitration agreements after the workers have arrived
at the place of employment, without having disclosed such a requirement
in the job order. See, e.g., Martinez-Gonzalez v. Elkhorn Packing Co.,
LLC, 25 F.4th 613 (9th Cir. 2022); Magana-Mu[ntilde]oz v. West Coast
Berry Farms, LLC, No. 5:20-cv-02087, 2020 WL 3869188, at *5 (N.D. Cal.
July 9, 2020). These practices violate the Department's H-2A
regulations and may mislead workers regarding their rights under the H-
2A program, including their ability to communicate with the Department.
Therefore, the Department takes this opportunity to reiterate its
longstanding requirements relevant to these ``side agreements.''
First, the Department's H-2A regulations include robust disclosure
requirements. Specifically, employers must disclose in the job order
all material terms and conditions of employment. See 20 CFR 655.103(b)
(defining ``job order'' as ``[t]he document containing the material
terms and conditions of employment''); 655.121(a)(4) (requiring H-2A
job orders to meet the requirements specified for agricultural
clearance orders under 20 CFR part 653, subpart F); 653.501(c)(1)(iv)
and (3)(viii) (requiring agricultural clearance orders to include
material terms and conditions of employment). Each job qualification
and requirement listed in the job order must be bona fide, as well as
normal and accepted among non-H-2A employers in the same or similar
occupations. 20 CFR 655.122(b) (job qualifications and requirements).
Finally, the employer must provide H-2A workers with a copy of the
written work contract (at minimum, the terms of the job order) before
the worker travels to the place of employment. 20 CFR 655.122(q)
(disclosure of work contract). Such written disclosure must be made to
workers in corresponding employment no later than the first day work
commences. Id.
These requirements ensure that employers seeking to employ H-2A
workers are adequately testing the local labor market to determine the
availability of U.S. workers for the actual job opportunity and are not
imposing inappropriate requirements that discourage otherwise qualified
U.S. workers from applying. See 75 FR at 6901. These requirements also
ensure that workers are apprised of the accurate terms and conditions
of employment before accepting employment with the employer and, in the
case of many workers, traveling great distances and at significant
personal expense to do so. Adm'r v. Frank's Nursery LLC, ARB Nos. 2020-
0015 and 2020-0016, 2021 WL 4155563, at *3-4 (ARB Aug. 25, 2021)
(describing the importance of disclosure to workers of all material
terms and conditions of employment before the worker accepts the job
offer), aff'd, No. 21-cv-3485, 2022 WL 2757373 (S.D. Tex. July 14,
2022).
Thus, pursuant to these requirements, an employer may not seek to
add new material terms and conditions of employment after the worker
arrives at the place of employment, even if such terms and conditions
would otherwise be permissible if they had been disclosed in the job
order. For example, even if a mandatory arbitration agreement would be
a permissible term and condition of employment for a particular H-2A
job opportunity if disclosed in the job order, it is a violation of the
H-2A regulations for the employer to impose such a material term and
condition of employment on the workers if it was not disclosed in the
job order. See Frank's Nursery, 2022 WL 2757373, at *3-4 (affirming WHD
Administrator's determination of violation and assessment of a civil
money penalty for employer's failure to disclose in the job order a
drug testing policy); see also Magana-Mu[ntilde]oz v. West Coast Berry
Farms, LLC, No. 5:20-cv-02087, 2020 WL 3869188, at *5 (N.D. Cal. July
9, 2020) (discussing the Department's regulatory requirements for H-2A
job orders and concluding that an arbitration agreement is a material
term or condition of employment that must be disclosed in the job
order); cf. ETA v. DeEugenio & Sons #2, OALJ No. 2011-TLC-00410, slip
op. at 3-4 (OALJ June 13, 2011) (affirming CO's denial of labor
certification because employer failed to demonstrate that arbitration
and grievance clauses listed in job order were normal and accepted
requirements among non-H-2A employers in the occupation); ETA v.
Bourne, et al., OALJ No. 2011-TLC-00399, slip op. at 9-11 (OALJ June 6,
2011) (same); ETA v. Head Bros., OALJ No. 2011-TLC-00394 (OALJ May 18,
2011) (same); but see ETA v. Frey Produce et al., OALJ No. 2011-TLC-
403, slip op. at 6 (OALJ June 3, 2011) (concluding arbitration is a not
a job ``qualification or requirement'').
Second, and in addition to the disclosure requirements, the
Department's H-2A regulations prohibit any person from seeking to have
a worker waive any right afforded under the H-2A program. 29 CFR 501.5.
Thus, an employer may not--at any time--request that a worker waive or
reduce any of the terms and conditions of employment disclosed in the
job order or other rights under the H-2A program, such as the provision
of meals as disclosed in the job order, the right to the three-fourths
guarantee, the prohibition on the payment of fees, or the payment of
the H-2A wage rate for hours spent engaged in corresponding employment.
For example, through its enforcement experience, the Department has
learned of H-2A employers presenting their entire workforces with
[[Page 63793]]
side ``opt-out'' agreements under which the workers purport to waive
their right to employer-provided meals on certain days, despite the
employer's disclosure in the job order that meals will be provided
every day. The regulations prohibit such practices. In addition, an
employer may never seek to prevent a worker from engaging in activity
protected under the H-2A regulations, such as filing a complaint with,
speaking with, or cooperating with the Department. See 20 CFR
655.135(h); 29 CFR 501.4(a).
The Department is concerned that ``side agreements'' carry
significant potential to mislead workers regarding their rights under
the H-2A program, including the right to file complaints with and
communicate with the Department. For example, an H-2A worker who is
terminated without cause but is required to sign a form purportedly
``resigning'' the job may believe--incorrectly--that they may no longer
file a complaint with the Department to enforce their right to the
three-fourths guarantee or their right to the cost of return
transportation and subsistence. Another worker may misunderstand a
``side'' arbitration agreement as preventing the worker from filing a
complaint with the Department before first submitting the issue to the
employer's arbitration procedures, even though an employee who agrees
to arbitrate a statutory claim is not waiving any substantive rights
under the statute. Gilmer v. Interstate/Johnson Lane Corp., 500 U.S.
20, 25 (1991). Moreover, an H-2A worker's agreement with their employer
to arbitrate employment disputes does not limit the Department's
ability to enforce the H-2A program's requirements. EEOC v. Waffle
House, Inc., 122 S. Ct. 754 (2002); Walsh v. Arizona Logistics, Inc.,
998 F.3d 393, 396-97 (9th Cir. 2021) (same). Accordingly, where an H-2A
employer's job order does include an arbitration clause that is
otherwise permissible, the SWA and OFLC review the disclosure for
actual or implied restrictions on workers' access to complaint systems
and may require employers to include language in the job order
affirmatively stating that the worker may not be prevented from filing
complaints with the Department. For efficiency and clarity, and
consistent with the other proposals in this NPRM that would serve to
protect worker voice and better inform workers of their rights under
the H-2A program, the Department is proposing to add standard language
to the job order affirmatively stating that a worker may not be
prevented from communicating with the Department of Labor or any other
Federal, State or local governmental agencies regarding the worker's
rights. The Department welcomes comments suggesting other means it can
use to better inform workers of their rights and to better inform
employers and workers alike of the longstanding limitations on ``side
agreements.''
viii. Section 655.135(h)(2) Activities Related to Self-Organization and
Concerted Activity
The Department proposes a new protected activity for any person
engaged in FLSA agriculture at proposed Sec. 655.135(h)(2), relating
to self-organization and concerted activity, for those workers who are
exempt from similar protections under the NLRA. As discussed above, the
Department believes that these proposed protections are necessary to
prevent an adverse effect on the working conditions of workers in the
United States similarly employed. 8 U.S.C. 1188(a)(1). Specifically,
the Department proposes at Sec. 655.135(h)(2) to protect engaging in
activities related to self-organization, including any effort to form,
join, or assist a labor organization, as defined in proposed Sec.
655.103(b); a secondary activity such as a secondary boycott or picket;
or other concerted activities for the purpose of mutual aid or
protection relating to wages or working conditions. The Department also
proposes to protect a person's refusal to engage in any such
activities.
By proposing to add protections for such activities, the Department
intends to prohibit an employer from intimidating, threatening,
restraining, coercing, blacklisting, or in any manner discriminating
against, any person engaged in FLSA agriculture for engaging, or
refusing to engage, in activities related to self-organization,
including, among other things, concerted activity for mutual aid or
protection. The Department's proposed use of the terms ``concerted
activity'' and ``mutual aid or protection'' draws upon the general body
of case law from the Federal courts and the NLRB broadly construing
similar language in the NLRA. However, the Department notes that these
terms must ultimately be interpreted consistently with the statutory
purpose of the INA and the H-2A program, including the need to prevent
adverse effect on workers in the United States, and in light of the H-
2A program's unique characteristics.
The Department proposes that concerted activity include employee
activity ``engaged in with or on the authority of other employees, and
not solely by and behalf of the employee himself.'' Meyers Indus.
(Meyers I), 268 NLRB 493, 497 (1984), remanded sub nom., Prill v. NLRB,
755 F.2d 941 (D.C. Cir. 1985); see also NLRB v. City Disposal Sys.
Inc., 465 U.S. 822, 830 (1984). For example, concerted activity
includes two or more employees presenting joint requests or grievances
to their employers; \71\ a series of ``spontaneous individual pleas''
from employees about shared concerns; \72\ two or more workers
circulating or signing a petition; \73\ two or more workers striking or
walking off the job; \74\ participating in a concerted refusal to work
in unsafe or intolerably bad conditions; \75\ two or more workers
talking directly to their employer, to a government agency, or to the
media about problems in their workplace; \76\ or cooperating as a group
with law enforcement investigations (including investigations by
DOL).\77\ The term concerted activity also includes worker organizing
``outside the immediate employee-employer relationship'' and ``common
cause'' activity, including concerted activity ``in support of
employees of employers other than their own.'' See Eastex, Inc. v.
NLRB, 437 U.S. 556, 564-65 (1978). These examples are intended to be
illustrative and not exhaustive. The proposed regulation's protections
for concerted activity would apply to both workers that have joined a
labor organization and those that have not. See Indiana Gear Works v.
NLRB, 371 F.2d 273, 274 (7th Cir. 1967).
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\71\ See, e.g., NLRB v. Sequoyah Mills, Inc., 409 F.2d 606, 608
(10th Cir. 1969).
\72\ See, e.g., NLRB v. Washington Aluminum Co., 370 U.S. 9, 15
(1962).
\73\ See, e.g., Richardson Paint Co. v. NLRB, 574 F.2d 1195,
1206 (5th Cir. 1978).
\74\ See, e.g., Case Farms of North Carolina, Inc., 353 NLRB 26
(2008), enforced, 2010 WL 1255941 (D.C. Cir. Mar. 3, 2010).
\75\ See, e.g., Washington Aluminum, 370 U.S. at 17; Brown &
Root, Inc. v. NLRB, 634 F.2d 816, 817-18 (5th Cir. 1981).
\76\ See, e.g., Case Farms, 353 NLRB 26.
\77\ See, e.g., A.N. Elec. Corp., 276 NLRB 887, 889 (1985);
Squier Dist. Co. v. Int'l Bhd. of Teamsters, Local 7, 801 F.2d 238,
242 (6th Cir. 1986).
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The Department proposes that the term concerted activity also
encompass workers' individual actions when they seek to initiate,
induce, or prepare for group action, or when workers bring shared
complaints to the attention of management. See Meyers Indus. (Meyers
II), 281 NLRB 882, 887 (1987) (citing Mushroom Transp. Co. v. NLRB, 330
F.2d 683 (3d Cir. 1964)). For example, if an individual attempts to
``enlist [ ] the support of his fellow employees'' in shared activity,
the worker's attempt is protected regardless of whether other
[[Page 63794]]
employees ultimately participate in ongoing efforts. Whittaker Corp.,
289 NLRB 933, 933 (1988); Salt River Valley Water Users Ass'n, 99 NLRB
849, 853 (1952) (``[G]roup action is not deemed a prerequisite to
concerted activity for the reason that a single person's action may be
the preliminary step to acting in concert.''). An individual's goal of
initiating, inducing, or preparing for group activity can be inferred
from the totality of the circumstances. See Whittaker Corp., 289 NLRB
at 934. For example, the fact that a person refers to the possibility
of taking group action in a conversation with their co-workers, or the
fact that a conversation among co-workers is about wages and working
conditions, can support a finding that the conversation was aimed at
inducing group action. See id.; Jeanette Corp v. NLRB, 532 F.2d 916,
918-20 (3d Cir. 1976) (holding that an employer rule prohibiting
workers from discussing wages among themselves suppressed concerted
activity). An individual's actions to enforce the terms of a CBA
qualifies as concerted activity even if pursued singly, because those
actions are a continuation of the concerted activity of negotiating.
See City Disposal Systems, 465 U.S. at 830-31. Likewise, an employee is
engaged in collective activity when an individual worker's actions are
a ``logical outgrowth'' of an earlier protest by workers. See, e.g.,
NLRB v. Mike Yurosek & Son, Inc., 53 F.3d 261, 265 (9th Cir. 1995)
(workers' refusal to work additional hour was a logical outgrowth of
earlier, collective protestations regarding the employer's reduction in
scheduled hours); Every Woman's Place, 282 NLRB 413, 415 (1986) (single
employee's call to WHD regarding overtime pay was a logical outgrowth
of prior, collective complaints to supervisor regarding overtime
without receiving any response).
The Department intends to define activity for ``mutual aid or
protection'' to encompass activities for which ``there is a link
between the activity and matters concerning the workplace or employees'
interests as employees.'' Fresh & Easy Neighborhood Market, 361 NLRB
151, 153 (2014). For example, agricultural employees' activity would be
deemed to be for mutual aid or protection for the purposes of proposed
Sec. 655.135(h)(2) when it concerns wages, hours, benefits, working
conditions, worker safety, workplace equity, housing conditions, worker
voice, or other issues pertaining to their workplace or their interests
as employees. Employee activity aimed at ``channels outside the
immediate employee-employer relationship,'' or ``in support of
employees of employers other than their own'' may also be for ``mutual
aid or protection.'' Eastex, 437 U.S. at 565. For example, political
and social advocacy may be for mutual aid or protection when it has a
nexus to employees' ``interests as employees.'' Id. at 566; see also
Kaiser Eng'rs, 213 NLRB 108 (1974).
Although the terms ``concerted activity'' for ``mutual aid or
protection'' would encompass secondary activity, such as secondary
boycotts and pickets, the Department proposes to expressly list this
among the protected activities related to self-organization in light of
the differences between workers covered by the NLRA and those that
would be covered by this proposed provision. The Department notes that,
while the NLRA, as amended by the Taft-Hartley Act, prohibits many
labor organizations from engaging in secondary boycotts or pickets, see
29 U.S.C. 158(b)(4), this prohibition would not apply to the
agricultural employees to whom the Department's proposed rule would
apply, see 29 U.S.C. 152(3). Therefore, this proposed rule is
consistent with the longstanding consensus under the NLRA that it is
not unlawful for agricultural workers, or labor organizations composed
exclusively of agricultural employees, to participate in secondary
activity. See Di Giorgio Fruit, 191 F.2d at 647. However, the
Department believes that it would benefit employees, employers, and the
Department to reiterate this longstanding legal principle by making
this principle clear in this proposed rule at Sec. 655.135(h) and,
therefore, on the job order. This clarity would help ensure that
workers could refer to the job order to understand what activity is
protected under the regulation. Likewise, this additional clarity would
help employers comply with their obligations under the proposed rule.
The Department believes that clearly explaining these obligations for
both H-2A employers and workers would prevent unnecessary confusion and
resulting disputes.
Additionally, the Department recognizes that this proposal to
include activities related to self-organization as a protected activity
may prompt questions about when and where an employer must permit the
conduct of such activities. Under the proposed regulations, an employer
could not prohibit activities related to self-organization or other
concerted activities for the purpose of mutual aid or protection that
occur during nonproductive time. Nonproductive time means any time the
worker is not actively performing work, even if the worker remains on
the clock or the time is otherwise compensable. For example,
nonproductive time generally includes lunch breaks, rest breaks, and
time spent riding as a passenger in a vehicle when being transported
between worksites. Nonproductive time also includes any noncompensable
time, such as time after the end of the worker's workday. Similarly,
under the proposed regulations, an employer would be required to permit
self-organization or other concerted activities for the purpose of
mutual aid or protection in nonwork or mixed-use areas, even if such
areas are on the employer's premises. For example, the employer would
not be allowed to prohibit employees from meeting with one another
after the end of the workers' workday to discuss wages or working
conditions in the parking lot of the employer's establishment, insofar
as employees would otherwise have access to the parking lot after the
end of the workers' workday. Similarly, consistent with the proposed
access provision at Sec. 655.135(n), the employer would not be allowed
to prohibit employees from meeting with one another, or with one or
more representatives from a labor organization or with employee guests
for such discussions in or around employer-furnished housing that occur
outside of the workers' workday.
Furthermore, although an employer could establish reasonable work
rules that limit discussions, meetings, and gatherings not related to
the job while the worker is actively performing the work, the employer
could not apply or enforce work rules selectively to discourage worker
self-organization. For example, the employer may place reasonable
restrictions on employees' use of personal devices while in the field.
However, if the employer selectively applied such restrictions to
certain individuals who the employer suspected were engaged in
organizing, or only to those text messages or phone conversations that
the employer perceived to be related to worker self-organization or
other concerted activities while permitting them in other instances,
such a practice would violate the proposed requirement at 20 CFR
655.135(h)(2). Similarly, while an employer could reasonably establish
a work rule limiting personal conversations during productive working
hours where such conversations would affect productivity, if the
employer selectively enforced this work rule against employees for
conversing about self-organization or other concerted activities, such
a practice would be impermissible.
[[Page 63795]]
Nothing in this proposal would require or prohibit the adoption of
any specific term of a collective bargaining agreement ultimately
negotiated between the employer and the workers; rather, any such
agreement would be subject to any applicable Federal, State, or local
law. In addition, as noted above, the Department does not intend to
preempt any applicable State laws or regulations that may regulate
labor-management relations, organizing, or collective bargaining by
agricultural workers. Moreover, the remedies provided for under this
proposed regulation are not intended to be exclusive; if an
agricultural worker has other remedies available under State or local
law, the remedies contemplated under this proposal are not intended to
displace them.
The Department seeks comments on the proposal to protect certain
concerted activity related to self-organization in Sec. 655.135(h)(2)
with respect to workers who are engaged in FLSA agriculture.
Specifically, the Department seeks comments on whether to expressly
list secondary boycotts and pickets among the protected activities
related to self-organization, the scope of the proposed protections and
the proposed definitions of ``concerted activity'' and ``mutual aid or
protection,'' the impact that expressly protecting such activity would
have on the working conditions of H-2A workers, workers in
corresponding employment, and agricultural workers in the United States
more generally, and how this proposal would interact with State labor
laws. The Department also welcomes comments on how best to ensure that
its proposals do not conflict with existing State laws and regulations
that provide for a system of collective bargaining for farmworkers and
explicitly prohibit retaliation against farmworkers.
ix. Section 655.135(m) Worker Voice and Empowerment
The Department proposes a new employer obligation at Sec.
655.135(m) that would include a number of protections that the
Department has determined are necessary to prevent an adverse effect on
the working conditions of workers in the United States similarly
employed, 8 U.S.C. 1188(a)(1), as discussed above, by protecting the
rights of workers under the H-2A program to self-organization and
concerted activity as proposed in Sec. 655.135(h)(2). The employer's
obligations under this proposed provision would apply only to workers
engaged in FLSA agriculture. Specifically, the Department proposes to
add requirements that an employer provide to a requesting labor
organization the contact information of H-2A workers and workers in
corresponding employment employed at the place(s) of employment; permit
workers to designate a representative of their choosing to attend any
meeting that may lead to discipline; refrain from captive audience
meetings unless the employer provides certain information to ensure
that such meeting is not coercive; and attest either that they will
bargain in good faith over the terms of a proposed labor neutrality
agreement with a requesting labor organization, or that they will not
do so and provide an explanation for why they have declined. The
Department believes that these requirements would provide H-2A workers
and workers in corresponding employment with important tools to allow
them to more successfully organize and advocate for better working
conditions from their employers and thereby prevent adverse effect on
the working conditions of similarly employed workers in the United
States. Finally, to help inform workers of their rights under proposed
Sec. 655.135(m), the Department is proposing to include these proposed
protections in the disclosures required on the job order.
A. Section 655.135(m)(1) Employee Contact Information
The Department proposes in Sec. 655.135(m)(1) to require employers
to provide worker contact information to a requesting labor
organization. As explained further below, this proposal is similar to
but more expansive than the ``voter list'' requirements under the NLRA,
differing in various respects due to the unique characteristics of the
H-2A workforce. Under this provision, employers would be required to
provide to the labor organization a list of all H-2A workers and
workers in corresponding employment engaged in agriculture as defined
under the FLSA and employed at the place(s) of employment included
within the employer's H-2A Application. The proposed list would be in
alphabetical order, and include each worker's full name, date of hire,
job title, work location address and ZIP code, and (if available to the
employer) personal email, personal cellular number and/or profile name
for a messaging application, home country address with postal code, and
home country telephone number. The Department proposes to require the
employer to update the list once per certification period, if requested
by the labor organization. In addition, the proposed list would be
provided to the requesting labor organization in a format agreed upon
by the requesting labor organization and the employer and would be
transmitted electronically.
The Department believes that this proposed requirement would
significantly bolster the ability of workers to effectively self-
organize and to engage in concerted activity protected under proposed
Sec. 655.135(h)(2), by ensuring that workers have access to
information regarding the arguments both for and against organization,
and that workers have access to information and resources necessary to
engage in concerted activity regarding working conditions. Under the
NLRA, the NLRB has long recognized the importance to organizing rights
of workers' access to information regarding the arguments for and
against organization, and has held that the rights to self-organization
and to engage in concerted activity ``necessarily encompass employees'
rights to communicate with one another and with third parties'' about
organization and working conditions. Quicken Loans, Inc. v. NLRB, 830
F.3d 542, 545 (D.C. Cir. 2016) (quotations omitted) (citing Beth Israel
Hospital v. NLRB, 437 U.S. 483, 491 (1978) and Eastex, 437 U.S. at
565); see also Oakwood Hosp. v. NLRB, 983 F.2d 698, 701 (6th Cir.
1993); Hutzler Bros. Co. v. NLRB, 630 F.2d 1012, 1015 (4th Cir. 1980).
To ensure the effective exercise of these rights, the NLRB has long
required employers to provide worker contact information to unions in
certain circumstances because this requirement improves the likelihood
that workers will understand the arguments both for and against
organization. See 29 CFR 102.62(d), 102.67(l); RadNet Mgmt., Inc. v.
NLRB, 992 F.3d 1114, 1122-23 (D.C. Cir. 2021) (provision of contact
information to labor organizations is fundamental to effective exercise
of organizing rights).
The Department's proposal here contains similar information
requirements as those listed in the NLRB's requirements at 29 CFR
102.62(d), but is more expansive given the unique characteristics of
the H-2A program, including the temporary and migrant nature of the
workforce in which the majority of workers are exempt from the NLRA's
protections and thus may be even less likely than NLRA-covered workers
to be aware of the benefits of self-organization and engaging in
concerted activity. Workers under the H-2A program also are often
employed and housed in remote locations. In light of these
characteristics, to better protect against adverse effect, the
Department has tailored this proposal to the needs of the H-2A
workforce. For example, the
[[Page 63796]]
Department proposes to require the employer to provide available
contact information for the worker in the worker's home country and for
any messaging application the worker uses to communicate (e.g.,
``WhatsApp''). The Department also proposes to require that the contact
list be updated once per season, if such an update is requested by the
labor organization. The Department believes that, given the potential
for organizing activities to occur at any time throughout the job order
period (as opposed to a more time-limited event such as an election, as
is the case in the context of the NLRB voter list requirements),
allowing the union to request an updated list at the time of its
choosing would best ensure that workers are able to receive information
regarding the arguments both for and against organization, in the event
of workforce turnover over the course of the work contract. However,
the Department proposes to limit this ability to request an updated
list to one time per season, to avoid unduly burdening the employer
with complying with this request. The Department believes that this
proposed requirement would significantly bolster the ability of workers
to effectively self-organize and to engage in concerted activity by
ensuring that workers have equal access to information regarding the
arguments both for and against organization, and that workers have
access to information and resources necessary to engage in concerted
activity regarding working conditions.
The Department also recognizes that the ability to self-organize
and to engage in concerted activity must be balanced against the
workers' rights to the privacy of their personal information. In the
context of the NLRA, the NLRB has reasoned that any privacy concerns
raised by an employer providing employee contact information to unions
are outweighed by the benefits and necessity of protecting the rights
to self-organization and to engage in concerted activity. RadNet Mgmt.,
992 F.3d at 1122-23. Under the H-2A program, the importance of these
benefits is arguably even greater and arises earlier in the organizing
process for the reasons discussed above. Therefore, the Department
believes it is imperative that labor organizations have access to the
information they need to communicate with these workers effectively,
and that this goal would outweigh any privacy concerns. However, the
Department welcomes comment on whether it should include a worker
``opt-out'' provision, under which a worker could decline to have their
contact information included in the list the employer would provide to
the union, or if other protections for worker privacy may be warranted.
The Department also welcomes comment on whether organizations other
than labor organizations (defined as proposed in Sec. 655.103(b)) also
should be able to request this information, particularly in light of
the unique circumstances of the H-2A program, such as ``key service
providers'' as defined in proposed Sec. 655.103(b). The Department
also requests comments regarding the best methods to ensure workers are
adequately notified of these employer obligations.
Finally, the Department notes that nothing in this proposed
provision would limit a worker's ability to gather coworkers' contact
information to share both amongst themselves and with unions, which is
central to effective rights to self-organize and engage in concerted
activity. Cf. Quicken Loans, 830 F.3d at 548. Moreover, a worker's
ability to gather and share coworker information with unions would be
protected under proposed Sec. 655.135(h)(2). For example, a worker who
gathers coworkers' contact information and shares that information with
a union so that the union can contact the workers regarding the
benefits of unionization is engaging in protected, concerted activity
and self-organization. Under proposed Sec. 655.135(h)(2), an employer
may not retaliate against the worker for gathering or sharing this
information.
B. Section 655.135(m)(2) Right To Designate a Representative
The Department proposes in Sec. 655.135(m)(2) to require employers
to permit workers to designate a representative of their choosing to
attend any meeting between the employer and a worker where the worker
reasonably believes that the meeting may lead to discipline. Under the
proposed provision, the employer also would have an obligation to
permit the worker to receive advice and active assistance from the
designated representative during any such meeting.
The Department believes that proposed Sec. 655.135(m)(2) would
significantly bolster the ability of H-2A and corresponding workers to
engage in concerted activity as protected in proposed Sec.
655.135(h)(2). In the context of the NLRA, it is well established that
in a workplace covered by a CBA, an employer interferes with an
employee's right to engage in concerted activities for mutual aid or
protection under section 7 of the NLRA when the employer denies an
employee's request that a union representative accompany the employee
at an investigatory interview that the employee reasonably believes
might result in disciplinary action. See NLRB v. J. Weingarten, Inc.,
420 U.S. 251, 254, 267 (1975). As courts and the NLRB have explained,
such a request by an employee constitutes concerted activity because
the presence of a representative safeguards the interests of employees
generally, not solely the particular employee's interest. See id. at
260-61.
In any workplace, union or nonunion, the presence of a
representative at a meeting that may lead to discipline, and the
ability of such representative to provide assistance and advice, gives
the employee a witness, an advisor, and an advocate in a potentially
adversarial situation, thus preventing the imposition of unjust
discipline by the employer. Proposed Sec. 655.135(m)(2) thus also
helps ensure that workers have access to representation to assist in
safeguarding workers against unjust termination under the Department's
proposed definition of for cause termination. More generally, the
ability to request a representative's presence at such a meeting
enhances employees' ability to act in concert with their coworkers to
protect their mutual interest in ensuring that their employer does not
impose punishment unjustly. Courts have cited similar considerations in
deeming reasonable the view that section 7 of the NLRA permits nonunion
workers to designate a coworker to provide assistance during
investigatory interviews that may lead to disciplinary action. See
Epilepsy Found. of Ne. Ohio v. NLRB, 268 F.3d 1095, 1100 (D.C. Cir.
2001). The Department acknowledges that the NLRB has frequently shifted
its position on whether section 7 applies in nonunion workplaces, but
the Department's proposed regulations for the H-2A program apply
independently of the NLRA, and would cover workers that are outside the
NLRB's purview. Thus, any shifts in the NLRB's position would not alter
proposed Sec. 655.135(m)(2).\78\ Moreover, the need for a
representative is particularly acute for workers in the H-2A program,
given their unique vulnerabilities and
[[Page 63797]]
dependence on the employer for meals, housing, and transportation.
---------------------------------------------------------------------------
\78\ Compare, e.g., Epilepsy Found. of Ne. Ohio, 331 NLRB No. 92
(2000) (interpreting section 7 to extend the Weingarten rule to
nonunion workplaces); Materials Research Corp., 262 NLRB 1010 (1982)
(same), with, e.g., I.B.M. Corp., 341 NLRB 1288 (2004) (limiting
Weingarten rights to employees covered by CBAs); Sears, Roebuck &
Co., 274 NLRB 230 (1985) (same). The Department recognizes that the
workforce in the H-2A program is largely not unionized, and so the
proposed regulation is not limited to workers that are members of a
labor organization.
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Proposed Sec. 655.135(m)(2) would not limit whom a worker may
designate as a representative. For example, a worker may designate a
coworker, an outside advocate, a representative from a labor
organization (regardless of whether the worker is a member), or any
other individual. The Department believes it is appropriate to permit
workers to designate a broader scope of representatives than the
representatives contemplated under section 7 of the NLRA. The benefits
of a representative apply even where the representative is not employed
by the employer, such as a legal aid advocate or member of the clergy,
because a single worker's efforts to seek such assistance and advice
broadly advances other workers' shared interest in preventing the
imposition of unjust punishment. Moreover, in H-2A workplaces, it is
impractical to limit such representatives to union representatives or
coworkers. Due to low union density in agricultural workplaces, workers
in H-2A workplaces will seldom have the ability to designate union
representatives, and workers may face difficulties identifying trusted
coworkers to serve as representatives because the temporary nature of
the work may limit opportunities to develop relationships with
coworkers and because the high incidence of retaliation in H-2A
workplaces may discourage coworkers from involvement.
The Department proposes that the employer's obligation under Sec.
655.135(m)(2) would apply in the context of ``meetings between the
employer and a worker where the worker reasonably believes that the
meeting may lead to discipline.'' Under this proposal, the scope of
situations in which this obligation would apply is broader than the
``investigatory interviews'' in which a worker's right to a
representative arises under section 7 of the NLRA. See Weingarten, 420
U.S. at 253, 257-58 (recognizing right to representative in
``investigatory interview which the employee reasonably believed might
result in disciplinary action''). The Department believes that, given
the realities of employer-worker interactions in H-2A workplaces, it is
appropriate to apply the employer's obligation under proposed Sec.
655.135(m)(2) beyond such ``investigatory interviews.'' Disciplinary
action in H-2A workplaces may often occur in informal contexts or in
worksite settings such as fields, and limiting employers' obligation to
``investigatory interviews may constrain workers' ability to designate
representatives in such contexts or settings. However, the Department
welcomes comments regarding the scope of situations in which employers'
obligation under proposed Sec. 655.135(m)(2) should apply, including,
for example, comments addressing whether this obligation should apply
in all situations, not just meetings, that a worker may reasonably
believe could involve or lead to discipline, including in situations
where, for example, employers correct work techniques, give
instructions, or provide training, or whether the obligation should
apply in situations more analogous to the ``investigatory interviews''
addressed in Weingarten. The Department also seeks comment as to
whether it should draw on sources other than Weingarten--including
State, local, or other Federal law--in determining when this obligation
should be applicable, and whether it should take into account any other
considerations particular to workers in nonunion settings, or to
agricultural workers and their interactions with their employers.
The Department also welcomes comments on how to ensure that workers
are adequately informed of the employer's obligation to permit workers
to request a representative and of the circumstances under which this
obligation would arise. In a workplace covered by a CBA and the NLRA,
workers may rely on their unions for information regarding when
Weingarten rights apply, but the Department acknowledges that most
agricultural workers are not unionized. The Department welcomes
comments regarding the best methods to ensure adequate notification,
including comments that address whether employers should be required to
inform workers of their obligation to permit workers to request a
representative and whether employers should be required to notify
workers explicitly that a meeting may lead to discipline. For example,
possible methods of notifying workers may include requiring that all
job orders and job assurances shared with workers include information
about the employer's obligation to permit workers to request a
representative; requiring that employers provide other means of written
notification in a language that workers understand; and/or requiring
that employers provide oral notification in a language that workers
understand and that employers maintain records of such oral
notifications.
In addition to comments on the specific questions the Department
has posed to commenters, the Department welcomes comments on the
general question of how proposed Sec. 655.135(m)(2) can best be
implemented in the context of agricultural employment and the way
agricultural workers and employers interact, including in the contexts
of herding and range livestock production occupations subject to
Sec. Sec. 655.200 through 655.235 and itinerant animal shearing,
commercial beekeeping, and custom combining occupations subject to
Sec. Sec. 655.300 through 655.304.
C. Section 655.135(m)(3) Prohibition on Coercive Speech
The Department proposes a new provision at Sec. 655.135(m)(3) to
prohibit employers from engaging in coercive speech to try to prevent
workers from advocating for better working conditions on behalf of
themselves and their coworkers. Specifically, the Department proposes
to add new protections at Sec. 655.135(m)(3) prohibiting coercive
speech, sometimes referred to as ``captive audience meetings'' or
``cornering.'' As under section 7 of the NLRA, a worker's right to
engage, or not engage, in self-organization and concerted activity
under proposed Sec. 655.135(h)(2) would include the worker's right to
listen and the worker's right to refrain from listening to employer
speech concerning the worker's exercise of those rights. The proposed
regulation at Sec. 655.135(m)(3) would thus prohibit H-2A employers
from coercing and/or requiring workers to listen to or attend an
employer's speech or meeting concerning the exercise of their rights to
engage in activities related to self-organization, including any effort
to form, join, or assist a labor organization or engage in other
concerted activities for the purpose of mutual aid or protection
relating to wages or working conditions. Such ``captive audience
meetings,'' which would typically occur in the workplace during working
hours, while the workers are on the clock (though they might also occur
during travel to the worksite or in situations where workers are not on
the clock), inherently involve an unlawful threat that employees will
be disciplined or suffer other reprisals if they exercise their
protected right not to listen to such speech. The Department believes
that such meetings are inherently coercive and should not be permitted.
In the NLRB context, the Supreme Court has instructed that employer
actions should be evaluated from the perspective of employees who are
in a position of ``economic dependence'' and would necessarily pick up
threatening implications ``that might be more
[[Page 63798]]
readily dismissed by a more disinterested ear.'' NLRB v. Gissel Packing
Co., 395 U.S. 575, 617 (1969); see also Hill v. Colorado, 530 U.S. 703,
717 (2000) (noting that within the employment relationship, persistent
communication after refusal can become intimidation, and that persons
have ``a right to be free'' from unwanted communication) (quoting Rowan
v. U.S. Post Office Dep't, 397 U.S. 728, 736 (1970)). Here, H-2A
workers and their employers do not have equal bargaining power, due in
large part to H-2A workers' significant economic dependence on their
employers. The Department is concerned that H-2A workers should not be
forced to listen to such employer speech under threat or potential
threat of discipline--directly leveraging the workers' dependence on
their jobs.
The fact that such threats may arise in the context of employer
speech would not immunize their unlawful coercive effect. Under the
NLRA, the Supreme Court has made clear that threats fall outside the
scope of employers' NLRA-related speech rights and constitutional free-
speech protections. Gissel Packing, 395 U.S. at 617-20. Nevertheless,
employers frequently use explicit or implicit threats to force
employees into meetings concerning unionization or other NLRA-
statutorily protected activity. See 2 Sisters Food Grp., 357 NLRB 1816,
1825 n.1 (2011) (Member Becker, dissenting in part) (citing study
finding ``that in 89 percent of [representation election] campaigns
surveyed, employers required employees to attend captive audience
meetings during work time and that the majority of employees attended
at least five such meeting[s] during the course of the campaign'').
These same employers often carry out those threats by seeking to
discharge or discipline employees who assert their right to refrain
from listening by refusing to attend such mandatory meetings. The
Department believes that employers should not be permitted to coerce H-
2A workers in this way under this proposed rule, but instead should be
required to honor H-2A workers' free choice and their rights to listen
or to refrain from listening to such coercive speech.
The Department recognizes that employers generally have a right
under the First Amendment to communicate their views to their
employees. See Gissel Packing, 395 U.S. at 617. However, protecting
workers' right to refrain from listening, as proposed Sec.
655.135(h)(2) does, would not impair employers' constitutional freedom
of expression. As the Supreme Court has recognized, ``employers'
attempts to persuade to action with respect to joining or not joining
unions are within the First Amendment's guaranty.'' Thomas v. Collins,
323 U.S. 516, 537 (1945). But ``[w]hen to this persuasion other things
are added which bring about coercion, or give it that character, the
limit of the right has been passed.'' Id. at 537-38.
The Department therefore proposes to prohibit employers from
engaging in coercive speech intended to oppose workers' protected
activity unless the employer: (a) explains the purpose of the meeting
or communication; (b) informs employees that attendance or
participation is voluntary, and that they are free to leave at any
time; (c) assures employees that nonattendance or nonparticipation will
not result in reprisals (including any loss of pay if the meeting or
discussion occurs during their regularly scheduled working hours); and
(d) assures employees that attendance or participation will not result
in rewards or benefits (including additional pay for attending meetings
or discussions concerning their rights to engage in protected activity
outside their regularly scheduled working hours).
These safeguards were developed many years ago by the NLRB to avoid
``the inherent danger of coercion'' when an employer seeks to interfere
with protected labor rights. See Johnnie's Poultry Co., 146 NLRB 770,
774 (1964), enforcement denied, 344 F.2d 617 (8th Cir. 1965). There,
the NLRB recognized that inherent in the employment relationship is the
understanding that employees cannot, without consequences, either
refuse to comply with their employer's stated requirement (e.g., that
they attend a meeting) or abandon their assigned work duties (e.g., by
walking away from employer speech directed at them as they work).
Therefore, the NLRB has crafted safeguards to ensure that workers'
participation is voluntary at all times. See, e.g., Johnnie's Poultry
Co., 146 NLRB 770, 774 (1964) (providing safeguards required when
employer questions employees about protected activity in order to
prepare defense against unfair-labor-practice charges); Struksnes
Constr. Co., 165 NLRB 1062, 1062-63 (1967) (same for when employer
conducts poll to ascertain whether union enjoys majority employee
support); Allegheny Ludlum Corp., 333 NLRB 734, 734 (2001) (same for
when employer may lawfully include visual images of workers in anti-
union campaign presentations), enforced, 301 F.3d 167 (3d Cir. 2002);
Sunbelt Rentals, Inc., 374 NLRB No. 24 (2022) (reaffirming Johnnie's
Poultry rule).
The Department believes that such safeguards would appropriately
protect employers' constitutional free speech right to express views,
argument, or opinion concerning protected organizing activity without
unduly infringing on the rights of workers to refrain from listening to
such expressions as proposed in this rule. Therefore, to ensure that
workers are not held captive to coercive employer speech about their
protected activity, the Department proposes to adopt these sensible
disclosures that an employer must convey to workers in order to make
clear that their attendance at any meeting or discussion in work areas
during working hours concerning their rights to engage in protected
activity is truly voluntary. Note that no disclosures would need to be
given when employers require workers to attend meetings on subjects
other than their exercise of protected rights (e.g., work assignments
for the day, tools, job training or safety instructions). But these
safeguards would be required if, for example, the employer uses a
regular daily meeting or a portion of that meeting to seek to dissuade
employees from acting together to improve working conditions or safety
or engaging in other protected concerted activity. The Department's
approach is intended to protect both the workers' rights to engage in
(or to refrain from engaging in) concerted activity under this proposed
rule, and employers' speech concerning any such activity, without
unduly infringing on either party's expression. It also seeks to make
clear that an employer cannot retaliate against a worker (or provide
rewards or benefits) for attending or refusing to attend a ``captive
audience'' meeting or discussion concerning their rights to engage in
protected activity, even if the meeting occurs during their regularly
scheduled working hours.
The Department welcomes comments on this proposal, including,
specifically, whether there are other ways to protect workers' rights
to refrain from listening to employers' coercive speech, whether other
safeguards or employer disclosures are appropriate, or how to most
appropriately tailor the prohibition to avoid infringing on employer's
free speech rights while protecting workers' right to engage in
protected activity.
D. Section 655.135(m)(4) Commitment To Bargain in Good Faith Over
Proposed Labor Neutrality Agreement
The Department proposes in Sec. 655.135(m)(4) to require employers
to attest either that they will bargain in good faith over the terms of
a proposed
[[Page 63799]]
labor neutrality agreement with a requesting labor organization, or
that they will not do so and provide an explanation for why they have
declined. This attestation will provide workers, worker advocates, and
the public with valuable information about prospective employers in the
H-2A program.
As noted in the proposed regulatory text, a labor neutrality
agreement is an agreement between a labor organization and an employer
in which the employer agrees not to take a position for or against a
labor organizing effort. Such agreements are effective mechanisms to
improve workers' organizing success, as they address the major
impediments to successful organizing efforts: ``intimidation and
delay.'' \79\
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\79\ See Non-Legislative Labor Law Reform and Pre-Recognition
Labor Neutrality Agreements: The Newest Civil Rights Movement,
Hartley, 22 Berkeley J. Emp. & Lab. L. 369, 378-85 (2001).
---------------------------------------------------------------------------
As described above, coercive employer speech about collective
bargaining or labor organizations can prevent workers from advocating
for better working conditions on behalf of themselves and their
coworkers. A labor neutrality agreement would protect workers from both
coercive and non-coercive anti-organizing speech and provide workers
with a free and fair choice about whether to organize. The Department
believes that labor neutrality agreements negotiated between H-2A
employers and labor organizations could help to correct the imbalance
in bargaining power in the H-2A program that the Department has
identified as having an adverse effect on agricultural workers in the
United States.
However, as also explained above, employers generally have the
right under the First Amendment to communicate their views on
unionization to their employees. See Gissel Packing, 395 U.S. at 617
(distinguishing lawful communications from threats or coercion). Thus,
an employer's choice whether to bargain over any labor neutrality
agreement at the request of a labor organization, and whether to
ultimately enter into such an agreement, is entirely voluntary. The
Department does not intend to oversee or monitor any bargaining that
ultimately takes place, although an employer that chooses to agree to
bargain in good faith yet fails to do so would violate this proposed
regulation.
In general, if the employer chooses to bargain in good faith, doing
so means that, upon request by a labor organization, the employer will
meet at reasonable times and confer, in good faith, with respect to
negotiating the terms of a proposed labor neutrality agreement. Good-
faith bargaining must be at arm's length and must involve engaging in
genuine efforts to reach an accord. See, e.g., NLRB v. Ins. Agents'
Int'l Union, 361 U.S. 477, 485 (1960); NLRB v. Overnite Transp. Co.,
938 F.2d 815, 821 (7th Cir. 1991). It means that the employer must
approach bargaining with a good faith intention to reach an agreement,
not just engage in ``surface bargaining'' or ``going through the
motions.'' Overnite Transp. Co., 938 F.2d at 821-22. If requested by
either party, the execution of a written contract incorporating any
agreement reached is part of good faith bargaining. However, neither
party is compelled to agree to a proposal or make concessions, and the
Department will not, either directly or indirectly, ``compel
concessions or otherwise sit in judgment upon the substantive terms of
collective bargaining agreements.'' Id. at 821 (quoting NLRB v. Am.
Nat'l Ins. Co., 343 U.S. 395, 404 (1952)) (construing 29 U.S.C.
158(d)).
The Department believes that disclosure and information about
employers can be a powerful tool for workers, and throughout this
proposed rule has sought to enhance transparency and increase workers'
access to important information about the job opportunity and workers'
rights. Therefore, knowing whether an employer has chosen to commit to
bargain in good faith over a labor neutrality agreement, or not, can
provide workers with important information about such employers. Under
proposed Sec. 655.135(m)(4)(ii), employers that choose not to bargain
over labor neutrality agreements must state that they are not willing
to do so and disclose their reasons for making that choice. Because
this information would be disclosed on the job orders, workers would be
able to use it to decide whether they want to work for certain
employers. In addition, worker advocacy groups and labor organizations
may be able to use this information to decide whether to engage with
certain employers or whether workers for such employers might need
additional assistance from key service providers.
The Department welcomes comments addressing any aspect of this
proposed regulatory provision. In particular, the Department seeks
comment on whether the organization with which an employer would
bargain should be limited other than by the general requirement to
bargain in good faith, such as by including only those labor
organizations that are subject to the Labor Management Reporting and
Disclosure Act, 29 U.S.C. 401 et seq. The Department also welcomes
comments regarding whether this proposed requirement will, as intended,
advance the goal of ensuring that H-2A workers have a free and fair
choice over whether to exercise their freedom of association rights to
join together and negotiate with their employer as one body.
x. Section 655.135(n) Access to Worker Housing
The Department proposes the addition of a new provision, Sec.
655.135(n), governing access to worker housing, which is intended to
protect the right of association and access to information for H-2A
workers and workers in corresponding employment and address the
isolation that contributes to the vulnerability of some H-2A workers.
As set forth above in section IV.C.2.b of this preamble, the
temporary nature of their work and dependency on a single employer for
work, housing, transportation, and necessities, among other factors,
make H-2A workers particularly vulnerable to labor exploitation,
including violations of H-2A program requirements, dangerous working
conditions, retaliation, and labor trafficking. Geographic isolation
and employer-imposed limitations on workers' movements and
communication exacerbate this vulnerability.
Studies by nongovernmental organizations highlight the
vulnerability faced by H-2A workers and some employers' use of
isolation and monitoring to control workers so that they do not feel
they have any option but to accept substandard and illegal working
conditions. Polaris, the organization that operates the National Human
Trafficking Hotline, identified over 2,800 H-2A workers that were
victims of labor trafficking between 2018 and 2020 (because human
trafficking is notoriously underreported, it is extremely likely that
more H-2A workers faced similar experiences). Polaris 2018-2020 Report
at 7, 10. Similarly, Centro de los Derechos del Migrante conducted
interviews with 100 H-2A workers between September 2019 and January
2020 and found that many experienced indicators of labor trafficking.
For instance, 34 percent reported restrictions on their movement, such
as not being permitted to leave employer-furnished housing or worksites
and 32 percent described themselves as not feeling free to quit. CDM
Report at 5. Both organizations described H-2A workers being subject to
extreme isolation, such as being left
[[Page 63800]]
in remote areas without transportation or means of communicating with
others, requiring permission to leave employer-furnished housing, being
deliberately limited in accessing their support systems, having their
personal cellular phones and passports confiscated, and being denied
access to other forms of communication. Polaris 2018-2020 Report at 19;
CDM Report at 23-24; Farmworker Justice Report at 22, 33; see also
Indictment, U.S. v. Patricio, No. 5:21-cr-00009 (S.D. Ga.) (describing
H-2A workers being detained in a work camp surrounded by an electric
fence and having their identification documents and personal cellular
telephones confiscated).\80\ Thus, the Department seeks to protect
workers' rights to association and access to information both to make
them less susceptible to labor exploitation, including trafficking, and
to interrupt factors that permit the deterioration of working
conditions for agricultural workers in the United States and thus have
an adverse effect on workers in the United States similarly employed. 8
U.S.C. 1188(a)(1).
---------------------------------------------------------------------------
\80\ In late 2021, the United States Attorney's Office for the
Southern District of Georgia indicted 24 defendants on felony
charges including human smuggling and forced labor. Defendants
fraudulently used the H-2A program to smuggle agricultural workers
into the United States from Mexico, Guatemala, Honduras, and other
countries. Once in the United States, workers were forced to dig
onions with their bare hands, earning $0.20 for each bucket
harvested, and were threatened with guns and violence. The workers
were detained in crowded, unsanitary buildings with little or no
food. See Press Release, U.S. Attorney's Off. for the S. Dist. of
Ga., Operation Blooming Onion Human Trafficking Investigation (Nov.
22, 2021), https://www.justice.gov/usao-sdga/pr/human-smuggling-forced-labor-among-allegations-south-georgia-federal-indictment. See
also Jessica Looman, U.S. Dep't of Lab. Blog: Exposing the Brutality
of Human Trafficking (Jan. 13, 2022), https://blog.dol.gov/2022/01/13/exposing-the-brutality-of-human-trafficking.
---------------------------------------------------------------------------
In light of these serious concerns, proposed Sec. 655.135(n)(1)
would provide that workers residing in employer-furnished housing must
be permitted to invite, or accept at their discretion, guests to their
living quarters and/or the common areas or outdoor spaces near such
housing during time that is outside of workers' workday and subject
only to reasonable restrictions designed to protect worker safety or
prevent interference with other workers' enjoyment of these areas. This
protection would recognize that workers do not relinquish their rights
to association or access to information simply by virtue of residing in
employer-furnished housing. Nor could employers use the statutorily
required provision of housing as a means to isolate or control their
workforce by blocking their access to information and assistance from
the outside. The proposed regulation would explicitly permit workers to
invite guests or to accept (or reject) visitors wishing to speak with
them. Because the right to invite or accept visitors is limited to
housing areas and to time that is outside of workers' workday, the
Department does not anticipate that this will disrupt employers'
business operations.
Under the Department's proposed regulation, this protection is
intended to apply to all housing furnished by the employer pursuant to
the employer's statutory and regulatory obligations. While the
Department anticipates that this protection would be the most
beneficial for workers who reside in housing that is geographically
isolated, it recognizes that even workers whose housing is more
centrally located may be isolated by virtue of employer policies that
limit their ability to leave housing or to interact with the public
even during time that is outside of workers' workday. The Department is
aware of instances in which employers used abusive restrictions to keep
workers isolated and to restrict their access to services, for example,
by forbidding workers to leave housing areas that may otherwise have
been accessible except when being transported to work or for other
limited purposes such as to buy groceries, or by retaining keys to
worker housing or employing armed guards such that workers did not feel
that they could leave or have guests. Regardless of whether housing is
located in a remote or densely populated area, workers would benefit
from a protected right to invite and accept visitors. The Department
seeks comments on whether the protection in Sec. 655.135(n)(1) should
be limited to workers residing in certain types of employer-furnished
housing or in certain locations.
Because workers typically reside in shared quarters, the Department
recognizes the need to balance different workers' competing needs. It
therefore proposes to permit reasonable restrictions designed to
protect worker safety or to prevent interference with other workers'
enjoyment of the housing. For example, it could be reasonable for an
employer to limit visitors' access to shared sleeping quarters during
sleeping hours, but to permit visitors in the common areas and outdoor
spaces surrounding worker housing provided that they are quiet.
Similarly, it could be reasonable for an employer to limit all visitor
access during sleeping hours, provided that the employer does not use
such a restriction to effectively bar most visitors. The Department
seeks comments on what would constitute reasonable or unreasonable
restrictions and other means of balancing different workers' interests
in shared housing, as well as comments on visitor policies that may
unduly hinder workers' rights to invite or accept guests.
The Department recognizes that the effectiveness of proposed Sec.
655.135(n)(1) may be limited where H-2A workers are unaware of, or
afraid to exercise, their right to invite or accept visitors in
employer-furnished housing. To bolster the effectiveness of this
proposed requirement, Sec. 655.135(n)(2) would provide a narrow right
of access to labor organizations, which have an incentive to report
concerns of labor exploitation to the Department or other law
enforcement agencies, as well as to provide information to workers on
their rights under the H-2A program and to engage in self-organization.
Specifically, where employer-furnished housing for H-2A workers and
workers in corresponding employment who are engaged in FLSA agriculture
is not readily accessible to the public, a labor organization would be
permitted to access the common areas or outdoor spaces near worker
housing for the purposes of meeting with workers during time that is
outside of workers' workday for up to 10 hours per month.
The protections of paragraphs (n)(1) and (2) would be distinct, but
would complement and bolster one another. Whereas the former would
permit all resident H-2A workers and those in corresponding employment
to invite or accept guests to their living quarters, as well as the
common areas and outdoor spaces surrounding worker housing, the latter
would permit labor organizations to, without explicit invitation, seek
out workers only in the common areas and outdoor spaces surrounding
worker housing in which H-2A workers and those in corresponding
employment who perform FLSA agriculture reside. The former would permit
workers to invite or accept guests during all time that is outside of
workers' workday subject only to reasonable restrictions designed to
balance their rights with the rights of other workers. The latter would
limit labor organizations' access to 10 hours per month, an amount of
time reasonable to make contact with new workers that may have started
between labor organization visits. Finally, the latter would only apply
in instances where the worker housing is on property or in a facility
that is not readily accessible to the public such that labor
organizations have limited alternatives for in-person meetings with
workers. While the Department also
[[Page 63801]]
proposes the means for labor organizations to request worker contact
information, including, when available, workers' personal cellular
telephone numbers, it does not consider this a substitute for in-person
meetings since it is aware of multiple instances in which workers'
personal cellular telephones have been seized by employers. See also
Patricio Indictment at 23; Polaris 2018-2020 Report at 19. To help
inform workers of their rights under this proposal, the Department is
proposing to include the protections that would be afforded under
proposed Sec. 655.135(n) in the disclosures required on the job order.
The Department seeks comments on all aspects of this proposal. The
Department is particularly interested in comments on proposed Sec.
655.135(n)(2), such as those regarding the limitations placed on labor
organizations' right of access, including the cap of 10 hours per month
and how to understand when worker housing is not readily accessible to
the public, how this would apply when workers engaged in FLSA
agriculture share housing with workers not engaged in FLSA agriculture
(Sec. 655.135(n)(2) applies only with respect to the former), whether
the right of access in this provision should be expanded to provide
similar access to some or all key service providers as defined in
proposed Sec. 655.103(b), and, if so, whether the Department should
limit the scope of the catchall term ``any other service providers to
which an agricultural worker may need access.'' In addition, the
Department is interested in comments on whether and how proposed Sec.
655.135(n)(1) and (2) should apply with respect to workers housed
pursuant to Sec. Sec. 655.230 (housing for work performed on the range
in herding and range production of livestock occupations) and 655.304
(mobile housing for workers engaged in animal shearing or custom
combining).
Finally, the Department proposes corresponding edits to Sec.
655.132(e)(1) to address instances in which the employer-furnished
housing is provided by the fixed-site agricultural business
(``grower'') as part of its agreement with an H-2ALC. Under the current
provision, where housing is owned, operated, or secured by the grower,
the H-2ALC is required to include with its H-2A Application proof that
the housing complies with the applicable standards set forth in Sec.
655.122(d) and certified by the SWA. The Department proposes to add to
this provision the requirement that the H-2ALC also provide with its H-
2A Application proof that the grower has agreed to comply with the
requirements of proposed Sec. 655.135(n). In doing so, the Department
seeks to ensure that the protections for access to worker housing would
be met even where the H-2ALC fulfills its obligation to furnish housing
through its agreement with its client grower. The Department welcomes
comments on what would constitute the requisite proof that an H-2ALC
would be required to submit with its application, as well as
alternative means of ensuring compliance with the access protections
where housing is provided directly by a grower.
xi. Section 655.135(o) Passport Withholding
The Department proposes to add a new paragraph (o) to Sec. 655.135
to better protect workers from potential labor trafficking by directly
prohibiting an employer from confiscating a worker's passport, visa, or
other immigration or government identification documents. Under this
proposal, the only exceptions to this prohibition would be where the
worker has stated in writing: that the worker voluntarily requested
that the employer keep these documents safe, that the employer did not
direct the worker to submit such a request, and that the worker
understands that the passport, visa, or other immigration or government
identification document will be returned to the worker immediately upon
the worker's request. Even where the worker has voluntarily requested
that the employer safeguard such documents, the worker must be able to
have ready access to the document, at least during regular business
hours and at a location that does not meaningfully restrict the
worker's ability to access the document. As detailed in section
IV.C.2.b of this preamble, H-2A workers are extremely vulnerable to
labor exploitation, and an employer taking or holding a worker's
passport is an egregious act that can be a strong indication of such
exploitation.\81\ Labor trafficking, including the restriction of a
worker's movements, harms not only the worker but also the agricultural
workforce in the area by subjecting workers to depressed working
conditions.\82\ The current regulation at Sec. 655.135(e) requires an
employer to comply with all applicable Federal, State, and local laws.
That section explicitly references the William Wilberforce Trafficking
Victims Protection Reauthorization Act of 2008, Pub. L. 110-457, which
amended the TVPA, Pub. L. 106-386 (2000), 18 U.S.C. 1592(a). The TVPA,
as amended, prohibits the unlawful destruction, concealment, removal,
confiscation or possession of another person's passport or other
immigration documents, under the conditions set forth in that statute
(e.g., with the intent to obtain forced labor in violation of 18 U.S.C.
1589). 18 U.S.C. 1592(a). The Department's current regulation at 20 CFR
655.135(e) thus provides that an employer may not hold or confiscate a
worker's passport, visa, or other immigration documents, in compliance
with the TVPA and other applicable laws. The Department added this
explicit reference to the TVPA and passport withholding in the 2010 H-
2A Final Rule, in response to a comment received on the issue, because
the Department ``recognize[d] the worker's right not to relinquish
possession of his or her passport to the employer.'' See 75 FR 6923.
---------------------------------------------------------------------------
\81\ See also Polaris 2018-2020 Report at 26; CDM Report at 23-
24; Farmworker Justice Report at 33; Indictment, U.S. v. Patricio,
No. 5:21-cr-00009 (S.D. Ga.) (confiscation of identity documents
used in scheme to traffic H-2A workers).
\82\ See, e.g., Jessica Looman, U.S. Dep't of Lab. Blog:
Exposing the Brutality of Human Trafficking (Jan. 13, 2022), https://blog.dol.gov/2022/01/13/exposing-the-brutality-of-human-trafficking.
---------------------------------------------------------------------------
Despite the requirements of the current regulation at Sec.
655.135(e), however, WHD has uncovered multiple instances of employers
taking or withholding a worker's documents against the worker's
wishes.\83\ Under the current regulation, which is dependent upon
compliance with the TVPA, it is often difficult for WHD to ascertain
the intent of the employer each time a passport or document is
withheld. Further, under the current regulation, it can be difficult
for WHD to cite a violation for passport withholding absent a
conviction of a trafficking offense by a law enforcement agency. As
noted above, the Department believes it is important to prevent
passport and document withholding to protect the workers subject to
this practice from potential labor trafficking, as well as to protect
other agricultural workers in the area from resulting adverse effects
on working conditions, pursuant to 8 U.S.C. 1188(a)(1). Accordingly, to
better address these issues, and pursuant to its authority under 8
U.S.C. 1188(a)(1), the Department proposes to flatly prohibit the
taking or withholding of a worker's passport, visa, or other
immigration or identification documents against the worker's wishes,
independent of any other requirements under other Federal, State, or
local laws, in a new paragraph at Sec. 655.135(o). In addition, to
promote
[[Page 63802]]
compliance with and deter violations of this requirement, the
Department proposes to include failure to comply with this assurance
and obligation within the definition of violations subject to debarment
under Sec. 655.182(d)(1)(viii) and 29 CFR 501.20(d)(1)(viii). We note,
however, that even under the current regulations, debarment may be
appropriate due to passport withholding in certain circumstances. See
20 CFR 655.182(d)(1)(x) and 29 CFR 501.20(d)(1)(x). Finally, to help
inform workers of their rights under this proposal, the Department is
proposing to include the protections that would be afforded under
proposed Sec. 655.135(o) in the disclosures required on the job order.
---------------------------------------------------------------------------
\83\ See, e.g., Press Release, U.S. Dep't of Lab., Federal court
sentences South Carolina labor contractor, operators after
investigation finds fraud, labor trafficking, abuses of farmworkers
(Aug. 3, 2023), https://www.dol.gov/newsroom/releases/whd/whd20230803.
---------------------------------------------------------------------------
The Department recognizes that an employer and/or its agent(s)
often facilitate a prospective H-2A worker's submission of the worker's
passport, visa, or other identification documents to the United States
Government for purposes of visa application, processing, or entry to
the United States. Nothing in the current regulation at Sec.
655.135(e), or in proposed Sec. 655.135(o), is intended to prohibit
such facilitation, provided that the worker voluntarily requests the
employer's assistance in these processes and that the documents are
returned to the worker immediately upon return by the United States
Government.
The Department welcomes comments on this proposal, particularly
regarding whether the Department should include any other requirements
for application of the proposed exception to this prohibition, and
whether the Department should include any additional exceptions to this
prohibition.
3. Section 655.137, Disclosure of Foreign Worker Recruitment
The Department proposes new disclosure requirements to enhance
foreign worker recruitment chain transparency and bolster the
Department's capacity to protect vulnerable agricultural workers from
exploitation and abuse, as explained more fully below. As the
Government Accountability Office (GAO) has explained, ``[w]ithout
accurate, accessible information about employers, recruiters, and jobs
during the recruitment process, potential foreign workers are unable to
effectively evaluate the existence and nature of specific jobs or the
legitimate parties contracted to recruit for employers, potentially
making them more vulnerable to abuse.'' \84\ More recently, the
Department's OIG released a report that emphasized the need for
increased transparency in the recruiting chain to enhance the
Department's enforcement capabilities.\85\ Concerns expressed by
workers' rights advocacy organizations and human trafficking prevention
groups, in addition to the Department's own experience in finding
continuing abuses by foreign labor recruiters, also indicate the need
for enhanced transparency to aid enforcement and protect vulnerable
agricultural workers from predatory and abusive practices during the
recruitment process. A recent report published by Polaris, an
organization working to combat labor trafficking, notes that abuses by
foreign labor recruiters continue, with workers reporting unlawful fees
charged by ``foreign labor recruiters, their employers, or their direct
supervisors at their jobs,'' and that additional transparency in the
recruitment chain is needed to ensure the Department can identify,
investigate, and hold accountable those employers and other entities
who engage in abusive and unlawful behavior at various stages of the
international recruitment process.\86\ The Department's proposed
changes are also consistent with the assessment of organizations
looking at migrant worker abuse globally. For example, the United
Nations Office on Drugs and Crime, in a 2015 report entitled ``The Role
of Recruitment Fees and Abusive and Fraudulent Practices of Recruitment
Agencies in Trafficking in Persons,'' noted that recruitment systems
are often ``opaque,'' and that a ``[l]ack of evidence,'' contributes to
low levels of trafficking convictions for recruiters and recruitment
agencies.\87\
---------------------------------------------------------------------------
\84\ U.S. Gov't Accountability Office, GAO-15-154, H-2A and H-2B
Visa Programs: Increased Protections Needed for Foreign Workers 33-
34 (2015; Rev. 2017), https://www.gao.gov/assets/gao-15-154.pdf.
\85\ Office of Inspector Gen., U.S. Dep't of Lab., Rep. No. 06-
21-001-03-321, Overview of Vulnerabilities and Challenges in Foreign
Lab. Certification Programs (2020).
\86\ Polaris, Human Trafficking on Temporary Work Visas: A Data
Analysis 2015-2017 12-13 (2018), https://polarisproject.org/wp-content/uploads/2019/01/Human-Trafficking-on-Temporary-Work-Visas.pdf (noting that workers continue to be charged unlawful fees,
and stating there is ``a general sense of confusion among victims as
to the relationship between the person or agency who facilitated
their recruitment and the person or company who would ultimately
employ them'' and ``many victims were not sure to whom they had paid
recruitment fees or why they had been required'').
\87\ U.N. Office on Drugs and Crime, The Role of Recruitment
Fees and Abusive and Fraudulent Recruitment Practices of Recruitment
Agencies in Trafficking in Persons 23, 47 (2015), https://www.unodc.org/documents/human-trafficking/2015/Recruitment_Fees_Report-Final-22_June_2015_AG_Final.pdf. See also
International Labour Organization, Fair Recruitment Initiative,
http://www.ilo.org/global/topics/fair-recruitment/fri/lang_en/
index.htm; International Labour Organization, General principles and
operational guidelines for fair recruitment and Definition of
recruitment fees and related costs (2019), http://www.ilo.org/
wcmsp5/groups/public/_-ed_protect/_-protrav/_-migrant/documents/
publication/wcms_536755.pdf.
---------------------------------------------------------------------------
Pursuant to its authority under the INA, the Department can
regulate the conduct of U.S. employers using foreign labor
certification programs and doing business with foreign labor
recruiters. The INA expressly authorizes the Department to promulgate
regulations governing recruitment. The Department may only issue a
labor certification to an employer that has ``complied with the
criteria for certification (including criteria for the recruitment of
eligible individuals as prescribed by the Secretary).'' 8 U.S.C.
1188(c)(3)(A)(i). The INA states that ``[t]he Secretary of Labor is
authorized to take such actions, including imposing appropriate
penalties and seeking appropriate injunctive relief and specific
performance of contractual obligations, as may be necessary to assure
employer compliance with terms and conditions of employment under this
section.'' 8 U.S.C. 1188(g)(2). As the Department has noted in prior
rulemaking, though there are limits to the liability the Department can
impose on employers for the actions of recruiters abroad, the
Department can regulate the conduct of recruiters in the H-2A program
through enforcement of employer obligations to foreign workers, such as
enforcement of the prohibition on imposition of recruitment fees. 73 FR
77110, 77160 (Dec. 18, 2008, suspended). Currently, employers must
contractually forbid any foreign labor contractor or recruiter (or any
agent of such foreign labor contractor or recruiter) whom the employer
engages, either directly or indirectly, in international recruitment
from seeking payments or other compensation from prospective employees,
in both the H-2A and H-2B programs, at 20 CFR 655.135(k) and 655.20(p),
respectively. The H-2B regulations at Sec. Sec. 655.9 and 655.20(aa)
additionally require employers to provide copies of their agreements
with foreign labor recruiters and disclose information about the
foreign labor recruiters that have or will be engaged in connection
with their H-2B applications. The Department proposes similar
additional foreign labor recruiter disclosure requirements in the H-2A
program, specifically to require, as a condition for approving an H-2A
Temporary Labor Certification, that the employer identify any foreign
labor
[[Page 63803]]
recruiters, provide copies of the agreements between the employer and
recruiter, and ensure the agreement clearly prohibits the foreign labor
contractor or recruiter from seeking or receiving payments or other
compensation from prospective employees. This proposed requirement to
disclose information about the recruitment chain would assist the
Department to carry out its enforcement obligations, protect vulnerable
agricultural workers and program integrity, and ensure equitable
administration of the H-2A program for law abiding employers.
In particular, the Department proposes a new Sec. 655.137,
Disclosure of foreign worker recruitment, and a new Sec. 655.135(p),
Foreign worker recruitment, which are similar to Sec. Sec. 655.9 and
655.20(aa) in the regulations governing disclosure of foreign worker
recruitment in the H-2B program. Consistent with Sec. Sec. 655.9(a)
and 655.20(aa), proposed Sec. Sec. 655.137(a) and 655.135(p) would
require an employer and its attorney or agent, as applicable, to
provide a copy of all agreements with any agent or recruiter that the
employer engages or plans to engage in the recruitment of prospective
H-2A workers, regardless of whether the agent or recruiter is located
in the United States or abroad. Consistent with the H-2B program, the
proposed rule would require employers to provide a copy of the
agreement at the time the employer files the H-2A Application. The
Department does not propose revisions to Sec. 655.135(k), which will
continue to apply to employers that have engaged with agents and
foreign labor recruiters, directly or indirectly, in international
recruitment of H-2A workers and will continue to require the employer
to contractually prohibit the recruiter(s) from seeking or receiving
payment from any worker at any time. As such, the written contract(s)
the employer submits under this proposed rule must contain this
contractual prohibition on charging fees and the prohibition language
must include the quoted language specified in Sec. 655.135(k). At the
time of collection, the Department will review the agreements to obtain
the names of the foreign labor recruiters and government registration
and license numbers, if any (for purposes of maintaining a public list,
as described below), and to verify that these agreements include the
required contractual prohibition against charging fees.\88\ The
Department may further review the agreements during the course of an
audit examination or investigation. Certification of an employer's
application that includes such an agreement does not indicate general
approval of the agreement or the terms therein. Where the required
contractual prohibition is not readily discernible, the Department may
request further information to ensure that the contractual prohibition
is included in the agreement. Agreements between the employer and the
foreign labor recruiter will not be made public unless required by law.
Consistent with the Department's current practice in the H-2B program,
this proposal allows the Department to obtain the agreements, but the
Department will only share with the public the identity of the
recruiters, not the agreements in their entirety, as discussed further
below.
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\88\ The Department uses all available tools to ensure that
prohibited fees are not collected by employers, agents, recruiters,
or facilitators. The Department has previously stated that an
employer must make it abundantly clear that the recruiter and its
agents are not to receive remuneration from the worker recruited in
exchange for access to the job opportunity. For example, evidence
showing that the employer paid the recruiter no fee or an
extraordinarily low fee, or continued to use a recruiter about whom
the employer had received numerous credible complaints, could be an
indication that the contractual prohibition was not bona fide. See
75 FR 6925-6926. The Department has similarly stated that, if it
determines that the employer knew or reasonably should have known
that the H-2A worker paid or agreed to pay a prohibited fee to a
foreign labor contractor or recruiter, the employer may be in
violation of 20 CFR 655.135(j). However, should the circumstances
demonstrate that the employer made a good faith effort to ensure
that prospective workers were not required to pay prohibited fees
(such as inquiry of both workers and agents/recruiters/facilitators
regarding the payment of such fees), the Department will take the
circumstances into consideration in determining whether a violation
occurred. See U.S. Dep't of Lab., Wage & Hour Div., Field Assistance
Bulletin No. 2011-2, H-2A ``Prohibited Fees'' and Employer's
Obligation to Prohibit Fees (May. 6, 2011), https://www.dol.gov/agencies/whd/field-assistance-bulletins/2011-2.
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Proposed Sec. Sec. 655.137(b) and 655.135(p), consistent with the
H-2B provisions at Sec. Sec. 655.9(b) and 655.20(aa), would require an
employer and its attorney or agent, as applicable, to disclose to the
Department the identity (i.e., name and, if applicable, identification
number) and geographic location of persons and entities hired by or
working for the foreign labor recruiter and any of the agents or
employees of those persons and entities who will recruit or solicit
prospective H-2A workers for the job opportunities offered by the
employer. If the recruiter has a valid registration number or license
number, which is issued by a government agency and authorizes the
recruiter to engage in the solicitation or recruitment of workers, the
employer must provide this unique identification information.
Consistent with the H-2B program, the Department proposes to interpret
the term ``working for'' to encompass any persons or entities engaged
in recruiting prospective foreign workers for the H-2A job
opportunities offered by the employer, whether they are hired directly
by the primary recruiter or are working indirectly for that recruiter
downstream in the recruitment chain. As explained more fully in the
requisite PRA supporting statement accompanying this proposed rule, the
Department proposes to gather the additional recruitment chain
information when the employer files its application and will require
the employer to submit a proposed Form ETA-9142A, Appendix D, that
mirrors the Form ETA-9142B, Appendix C, and collects information about
the identity and location of the recruiter(s) and recruitment
organization(s) the employer used or will use to recruit foreign
workers.
Proposed Sec. 655.137(c), and corresponding language in Sec.
655.135(p), would require the employer to update the foreign worker
recruitment information disclosed in accordance with paragraphs (a) and
(b) of Sec. 655.137 with any changes to foreign labor recruiter
contracts, loss or revocation of registration number, or change to the
names and locations of people involved in recruitment after filing the
H-2A Application, and to continue to make these updates until the end
of the work contract period. The Department proposes to require the
employer to maintain updates to the foreign labor recruiter information
disclosed at the time of filing the H-2A Application and be prepared to
submit the record to the Department, upon request. To clarify the
employer's record retention obligation, proposed Sec. 655.167(c)(8)
would require the employer to maintain the foreign worker recruitment
information required by Sec. 655.137(a) and (b) for a period of 3
years, similar to the provisions at Sec. 655.167(c) that require
retention of information regarding recruitment of U.S. workers.
The proposed disclosure requirements encompass all agreements
involving the whole recruitment chain that brings an H-2A worker to the
employer's certified H-2A job opportunity in the United States.
Employers, and their attorneys or agents, as applicable, are expected
to provide these names and geographic locations to the best of their
knowledge at the time the application is filed. The Department expects
that, as a normal business practice, when completing the written
agreement with the primary recruiting agent or recruiter, the employer
will ask whom the recruiter plans to use to recruit workers in foreign
[[Page 63804]]
countries, and whether those persons or entities plan to hire other
persons or entities to conduct such recruitment, throughout the
recruitment chain.
Consistent with current practice in the H-2B program, proposed
Sec. 655.137(d) provides for the Department's public disclosure of the
names of the agents and foreign labor recruiters used by employers, as
well as the identities and locations of all the persons or entities
hired by or working for the primary recruiter in the recruitment of
prospective H-2A workers, and the agents or employees of these
entities. Determining the identity and location of persons hired by or
working for the recruiter or its agent to recruit or solicit
prospective H-2A workers--effectively acting as sub-recruiters, sub-
agents, or sub-contractors--bolsters program integrity by aiding
enforcement of provisions like Sec. 655.135(k), which prohibits the
seeking or receiving of recruitment fees. In addition, the proposed
information collection requires additional disclosures relating to
foreign worker recruitment that will bring a greater level of
transparency to the H-2A worker recruitment process. By maintaining and
making public a list of agents and recruiters, the Department will be
in a better position to map international recruitment relationships,
identify where and when prohibited fees are collected, ensure that
contractual prohibitions on collecting prohibited fees are bona fide,
and, when contractual prohibitions are not bona fide or do not exist,
implement sanctions against and collect remedies from the appropriate
entity. Finally, workers would be better protected against fraudulent
recruiting schemes because they will be able to verify whether a
recruiter is in fact recruiting for legitimate H-2A job opportunities
in the United States. A list of foreign labor recruiters also will
enhance transparency and aid enforcement by facilitating information
sharing between the Departments and the public, and assist OFLC, other
agencies, workers, and community and worker advocates to better
understand the roles of recruiters and their agents in the recruitment
chain, while permitting a closer examination of applications or
certifications involving recruiters who may be engaged in improper
behavior. Information about the identity of the international and
domestic recruiters of foreign labor will also assist the Department in
more appropriately directing its audits and investigations. For
example, in the course of its enforcement, WHD sometimes reviews
allegations from H-2A workers that they have been charged recruitment
fees. Those workers, however, are frequently unaware of the contractual
arrangements between the individuals alleged to have charged those fees
and the recruitment agencies for which they may serve as sub-agents or
sub-recruiters, and may only know the names, partial names, or
nicknames of such individuals. This information would improve WHD's
ability to identify individuals charging fees, connect such
individuals' relationships with recruitment agencies contracted by the
employer, determine whether all entities had contractually prohibited
cost-shifting as required under 20 CFR 655.135(k), and hold the
appropriate parties responsible. Such information would also improve
WHD's ability to plan enforcement actions if, for example, a sub-
recruiter working for multiple agencies or serving multiple employers
is found, as a matter of practice, to be charging prohibited fees or
otherwise engaging in conduct in violation of the requirements of the
H-2A program. Finally, enhancing tools to strengthen enforcement of the
prohibition on the collection of prohibited fees and other recruitment
abuses also ensures that employers who comply with the H-2A program
requirements are not disadvantaged by the actions of unscrupulous
employers, such as those who pass recruitment fees on to workers.
Additionally, the proposed regulatory text includes a provision
stating that the ``Department may share the foreign worker recruitment
information it receives from employers with any other Federal agency,
as appropriate for investigative or enforcement purpose, as set forth
in Sec. 655.130(f).'' The Department is considering making further
revision to this regulation to allow the Department to share the
foreign worker recruitment information it receives with the foreign
government that has territorial jurisdiction over the recruiter for
investigative or enforcement purpose. Under such a proposal, for
example, if the Department discovers that a specific foreign labor
recruiter's contracts allow for the illegal collection of recruitment
fees, the Department may refer that foreign labor recruiter to its own
government so that its government may take any appropriate
investigative or enforcement action. As discussed above with regard to
disclosure of information by recruiters generally, the Department
believes sharing this information where appropriate would not only
increase transparency throughout the international recruitment chain,
but also help hold accountable those foreign labor recruiters who
engage in improper conduct.
The Department requests comment on whether to allow the sharing of
recruitment information, including the contracts and agreements between
agents and/or recruiters and employers, with foreign governments that
have territorial jurisdiction over the agent or recruiter at issue for
investigative or enforcement purpose. In particular, the Department is
interested in public comment on the potential benefits of sharing this
information, and the scope of the content that should be shared--for
example, whether it should just be a referral of the names of certain
recruiters for investigative or enforcement purposes, or entire
contracts between recruiters and employers. In addition, because there
is no mandated template for contracts between recruiters and
employers--though there is some mandated language--the Department seeks
comment on whether confidential business information is often included
in these contracts, and whether there are concerns with disclosing the
information or contracts to foreign governments. Comments explaining
what typically may be found in these types of contracts would assist
the Department in determining whether to make further revisions to
allow the sharing of foreign worker recruitment information with
foreign governments and what safeguards might need to be in place.
The Department believes the proposed disclosure requirements will
increase transparency in the international recruitment chain, aid the
Department in enforcement, and better protect foreign workers. The
Department is soliciting public comments on its proposals and
encourages commenters to provide suggestions for ways the Department
can use this rulemaking to most effectively prevent worker exploitation
and abuse during the international recruitment process, and ways the
Department can use this rulemaking to better protect vulnerable
agricultural workers from predatory recruiters.
D. Labor Certification Determinations
1. Section 655.167, Document Retention Requirements of H-2A Employers
The Department proposes a technical change to Sec. 655.167(c)(6)
to update this paragraph's outdated cross-reference to the regulatory
citation for the definition of ``work contract.'' The Department
proposes another technical change to
[[Page 63805]]
Sec. 655.167(c)(7) to add ``to'' before ``DHS.'' As discussed above,
the Department proposes a new record retention paragraph at Sec.
655.167(c)(8) that would require the employer to maintain the foreign
worker recruitment information required by Sec. 655.137(a) and (b) for
a period of 3 years, and a new Sec. 655.167(c)(9) that would require
the employer to retain the additional employment and job related
information specified in Sec. 655.130(a)(2) and (3) for the 3-year
period specified in Sec. 655.167(b). The Department also proposes new
paragraphs at Sec. 655.167(c)(10) and (11) to require records of
progressive discipline and termination for cause, as discussed more
fully in the preamble section corresponding with Sec. 655.122(n).
Finally, the Department also proposes a new paragraph (c)(12) that
requires the employer to retain evidence demonstrating the employer
complied with proposed Sec. 655.175(b)(2)(i), which would require
employers with an unforeseen minor start date delay to notify the SWA
and each worker to be employed under the approved H-2A Application of
the delay.
E. Post-Certification
1. Section 655.175, Post-Certification Changes to Applications for
Temporary Employment Certification
The Department proposes a new provision at Sec. 655.175 that will
address an employer's obligations in the event of a post-certification
delay in the start of work more clearly and consistently with the
Department's proposals for start date delay procedures at Sec.
653.501(c). The Department's regulations currently conflate pre-
certification requests to make minor amendments to the period of
employment before the CO issues a final determination and post-
certification requests for the CO's approval of a delay in the start
date caused by unforeseeable circumstances; both types of requests are
currently addressed in the pre-determination section of subpart B at
Sec. 655.145(b). For clarity, the Department proposes to separate the
two types of requests and relocate the component of Sec. 655.145(b)
that addresses post-certification delays in the start of work from
current Sec. 655.145(b) to the new proposed provision at Sec.
655.175. Consistent with the type of situations covered by proposed
Sec. 655.175, the new provision is included in the section of the
regulations that addresses post-certification activities.
The Department proposes only minor conforming changes to the
procedure in current Sec. 655.145(b) that an employer must follow to
request a minor amendment to the period of employment during the
processing of the H-2A Application. These changes are intended to
clarify the existing procedure for such amendments, and to better
distinguish that procedure from the procedure an employer must follow
if, after certification, it seeks to delay the start of work for
reasons that the employer could not have foreseen. Currently, Sec.
655.145(b) addresses both procedures and creates confusion with respect
to the timeframes in which employers can request minor amendments. The
Department proposes to revise the pre-determination amendments
provision at Sec. 655.145(b) so that it addresses only pre-
determination amendments to the period of employment. To further
distinguish the topics, the Department retains the term ``amendment''
in Sec. 655.145(b) and uses the terms ``delay'' in Sec. 655.175 and
clarifies that post-certification changes are not permitted unless
specified in this subpart (e.g., post-certification extensions continue
to be permitted under Sec. 655.170; a contract may be shortened by CO-
approved mutual agreement under Sec. 655.122(i)(1)(ii)).
As under the current rule, the new Sec. 655.175 would permit
delays in the start of work only when such a delay is minor and due to
unforeseen circumstances and the employer's crops or commodities will
be in jeopardy prior to expiration of an additional recruitment period.
The Department proposes to define a ``minor'' delay in the start date
as a delay of 14 calendar days or fewer, which eliminates ambiguity in
the current text and aligns this provision with the conceptually
similar provision at Sec. 655.170(a), which limits ``short-term''
extensions to 2 weeks and does not require CO approval. As is the case
for non-minor delays under the current rule, where the anticipated
delay would be more than 2 weeks or indefinite and cannot be considered
``minor,'' the employer may withdraw the application and refile, using
emergency processing under Sec. 655.134, as applicable, to engage in
recruitment for the job opportunity, which will begin on a newly
identified start date. If the employer cannot employ workers under the
terms and conditions promised beginning on the certified start date and
can only offer a fraction of the work hours in the 2 weeks following
the certified start date (e.g., the employer can offer only a single
day of work, followed by several days without work or a similar offer
of only minimal hours upon the worker's arrival, followed by an
extended rest period), the Department will consider the employer's
start date delayed and the employer will be required to comply with
proposed Sec. 655.175(b), including all housing, subsistence, and
compensation obligations and the proposed obligation to provide notice
of the delay to workers and the SWA, as explained below.
Consistent with proposed Sec. 653.501(c) and current Sec.
655.170(a), proposed Sec. 655.175 would not require the employer to
submit a delay request to OFLC for CO approval. Instead, in the event
of a minor delay (no more than 14 calendar days), proposed Sec.
655.175(b)(2)(i) would require the employer to notify the SWA and each
worker to be employed under the approved H-2A Application of the delay
at least 10 business days before the certified start date consistent
with Sec. 653.501(c), and proposed Sec. 655.167(c)(12) would require
the employer to retain evidence it provided this notice to each worker
and to the SWA. As noted in the preamble explaining changes to Sec.
653.501(c), employers are in the best position to contact and notify
workers of changes to the date of need because the employer has already
contracted to employ the workers and should have up-to-date contact
information for each worker. The proposed notice obligation, together
with the proposed definition of ``minor delay'' and the current and
proposed obligations discussed below, will strike an appropriate
balance between the employer's need to respond to unforeseen exigent
circumstances and the needs of agricultural workers to be apprised of
changes to the terms and conditions of the job opportunity and
compensated in accordance with the terms of employment the workers
accepted.
Proposed paragraph (b)(1) modifies the requirements in current
Sec. 655.145(b) with respect to the employer's subsistence obligations
to workers in the event of a minor delay in the start of work.
Specifically, paragraph (b)(1) requires employers with a minor start
date delay to provide to all workers who are already traveling to the
place of employment, upon their arrival and without cost to the workers
until work commences, except for days for which the worker receives
compensation under proposed paragraph (b)(2)(ii), daily subsistence in
the same amount required during travel under 20 CFR 655.122(h)(1).\89\
The employer must
[[Page 63806]]
fulfill this subsistence obligation to the worker no later than the
first date the worker would have been paid had they begun employment on
time. Proposed Sec. 655.175(b)(1) also would remind employers that,
even in the event of a minor delay in the start of work, the employer
must continue to comply with all other requirements under the certified
H-2A Application, including but not limited to the provision of housing
as described in the job order.
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\89\ The employer also would remain responsible for compliance
with the distinct and existing inbound travel and subsistence
obligations at 20 CFR 655.121(h)(1).
---------------------------------------------------------------------------
Proposed paragraph (b)(2)(ii) includes new compensation obligations
in circumstances where the employer delays the start of work and fails
to provide adequate notice of the delay to workers, similar to the
existing provisions at Sec. 653.501(c) and consistent with changes
proposed to that section, explained above. Currently, an employer who
seeks to delay the start date after certification is subject to the
Wagner-Peyser Act provisions at Sec. 653.501(c), which describe the
process for providing notice to workers placed on the clearance order
in the event of a delayed start date and an employer's obligations
under the work contract in those circumstances. The Department's
proposals related to Sec. 653.501(c), including situations in which
the start date is delayed, are discussed in greater detail above, in
the preamble section dedicated to discussion of proposed changes to
those provisions. Proposed Sec. 655.175 retains the employer
obligations currently provided under Sec. 655.145(b) and these
obligations continue to apply both to employers who notify the SWA and
workers as required in Sec. 653.501(c) and those who do not comply
with that notice requirement.
For the same reasons described in detail in the preamble discussing
proposed changes to delayed start date obligations at Sec. 653.501(c),
the Department proposes to require employers to provide to each worker
to be employed under the approved H-2A Application the applicable wage
rate for each hour of the offered work schedule in the job order, for
each day that work is delayed, for a period up to 14 calendar days,
starting with the certified start date, if the employer fails to
provide adequate notice of the delay. Under proposed Sec.
655.175(b)(2)(ii), the employer's wage obligation would apply in any
case where the employer fails to provide notice of the delayed start of
work at least 10 business days prior to the certified start date. This
obligation would apply in conjunction with the three-fourths guarantee
at Sec. 655.122(i), which would continue to require employers to
guarantee to offer workers employment for a total number of work hours
equal to at least three-fourths of the workdays of the total period,
beginning with the first workday after the arrival of the worker at the
place of employment or the advertised contractual first date of need,
whichever is later. However, under proposed Sec. 655.175(b)(2)(iii),
compensation paid to a worker under proposed paragraph (b)(2)(ii) of
this section for any workday included within the time period described
in Sec. 655.122(i) would be considered hours offered to the worker
when determining an employer's compliance with the Sec. 655.122(i)
three-fourths guarantee obligation. As proposed, an employer would be
permitted to reduce the compensation owed to any worker(s) under
proposed Sec. 655.175(b)(2)(ii) by the amount of wages paid to the
worker(s) for work performed within the time period described in
proposed Sec. 655.175(b)(2)(ii), insofar as such wages are paid timely
and such work is otherwise authorized by law. Wages for unauthorized
work, including work performed by H-2A workers outside the location or
duties certified in the job order, may not be credited. The Department
believes this proposal will effectively address the hardship concern
(discussed above in the preamble section regarding Sec. 653.501(c)) by
providing workers a source of income should the employer fail to
provide such workers sufficient notice of a delay in the start of work,
while continuing to allow the employer flexibility to delay the start
of work for up to 14 calendar days if necessitated by circumstances
that could not have been foreseen and the crops or commodities will be
in jeopardy prior to the expiration of an additional recruitment
period.
Proposed Sec. 655.175 and the proposed compensation obligations in
situations where workers are not notified of a start date delay will
better protect agricultural workers from financial hardship they are
likely to experience should they travel or otherwise rely on the
information included in the job order, only to discover upon arriving
that work is not available to them. As workers' rights advocacy
organization and SWA commenters noted during prior rulemaking, delayed
start dates are harmful to workers, who value predictability and
certainty in employment start dates, particularly where they turn down
other work or must travel far to make themselves available to work at
the time and place advertised in the job order. In addition, these
commenters noted that farmworkers have expenses beyond housing and
meals and cannot afford to lose expected pay for up to 2 weeks, should
the actual start date be later than the first date of need offered. The
Department has determined the housing and subsistence obligations in
current Sec. 655.145(b) (proposed Sec. 655.175(b)(2)(i)) and the
existing three-fourths guarantee at Sec. 655.122(i) are not sufficient
to fully protect workers from the financial hardships associated with a
delayed start date of work when such delays are not adequately
communicated to the worker, particularly if a worker is required to
travel a great distance to accept the job. The beginning of the
certification period is a particularly vulnerable time for workers, who
may have little or no savings as they await a first paycheck; delays in
the start of work and resulting first paycheck exacerbate this
vulnerability and can lead to financial hardships. Providing up to 2
weeks of wages, due at the time workers anticipate receiving their
first paycheck had the work begun on time, provides a safety net for
workers to support themselves when work is not available. Imposing
these pay obligations in the event workers are not notified of a
delayed start of work also may help to ensure growers accurately
disclose the first date of need in the job order. The proposed changes
also will increase the likelihood that workers will receive timely
notification of any delay in the start of work and that employers
maintain accurate records of notices they provide. Sanctions and
remedies for an employer's failure to comply with the notice or
compensation obligations required under proposed Sec. 655.175 may
include, as appropriate, the recovery of such compensation, the
assessment of civil money penalties, revocation of the approved
certification under Sec. 655.181, and, if warranted, debarment of the
employer under Sec. 655.182.
The Department invites comment on all aspects of these proposed
changes, including the proposed relocation of the provision addressing
post-certification delays to a new provision at Sec. 655.175 in the
post-certification section of the rule and the proposed compensation
provision applicable to all H-2A workers, recruited U.S. workers, and
workers in corresponding employment who expected employment under the
job order to begin on the certified start date, similar to current and
proposed Sec. 653.501(c)(5). Commenters are encouraged to provide
input on the proposal to require notice to each worker and the SWA,
rather than the
[[Page 63807]]
CO, consistent with proposed changes to Sec. 653.501(c); the proposed
definition of ``minor delay'' at 14 calendar days and whether the final
rule should require the employer to fulfill the obligations at Sec.
655.175(b) in any case where it cannot offer full time work as
specified in the job order for the 14-calendar-day period beginning on
the certified start date (as opposed to solely when the employer fails
to provide 10 days of notice, as proposed here); and the proposal to
permit the employer to credit compensation paid under proposed Sec.
655.175(b)(2)(ii) toward the employer's three-fourths guarantee
obligation.
F. Integrity Measures
1. Section 655.182, Debarment
a. The Department Proposes Revisions to 20 CFR 655.182 To Shorten
Appeal Times for Debarment Matters, and Shorten the Time To Submit
Rebuttal Evidence to OFLC
To help protect and uphold program integrity, and to further
protect workers in the United States, the Department proposes to
increase the speed with which debarments become effective by decreasing
the time for parties to submit rebuttal evidence to OFLC, the time for
parties to appeal Notices of Debarment to the OALJ, and the time for
parties to appeal debarment decisions to the ARB from the OALJ.
Reducing these timeframes will lead to faster final agency
adjudications which will more efficiently prevent H-2A program
violators from accessing this program. As a result of a more expedited
debarment process, workers will be protected from further harm.
b. OFLC Debarment Actions
The Department proposes to amend Sec. 655.182(f)(1) and (2) by
reducing the period to file rebuttal evidence or request a hearing of a
Notice of Debarment from 30 calendar days to 14 calendar days. If the
party receiving a Notice of Debarment does not file rebuttal evidence
or request a hearing, the Notice of Debarment will take effect at the
end of the 14-calendar-day period unless the party has requested, and
the Administrator has granted, an extension of time to submit rebuttal
evidence. Extensions of time may be granted only in limited
circumstances as discussed further below.
This proposed change aligns with the timeframe provided in the
Department's 2008 H-2A Final Rule. 73 FR 77110 (Dec. 18, 2008). The
2008 H-2A Final Rule provided 14 calendar days for parties to submit
rebuttal evidence in response to a Notice of Intent to Debar, and if
the party's rebuttal did not persuade the Administrator to terminate
debarment proceedings, provided an additional 30-calendar-day period to
appeal the Administrator's post-rebuttal Notice of Debarment. Id. at
77228. In the preamble to that rule, the Department stated, ``[g]iven
the severity of debarment and revocation, the short timeframes set
forth in . . . [the `Administrative review and de novo hearing before
an administrative law judge' section] are neither necessary nor
appropriate for these types of determinations.'' Id. at 77184. At the
time, 14 calendar days--twice as long as the 7-calendar-day timeframe
permitted to appeal a denied application--was deemed a sufficient
timeframe to submit evidence in rebuttal both in debarment and
revocation procedures. Id. at 77187.
Subsequently, in a 2009 NPRM, the Department proposed to eliminate
the ``Notice of Intent to Debar'' and the opportunity to submit
rebuttal evidence. 74 FR 45906, 45923 (Sept. 4, 2009). The Department
ultimately decided not to eliminate the option to submit rebuttal
evidence after considering comments that expressed concerns about due
process. 75 FR 6884, 6938 (Feb. 12, 2010). In the final rule, the
Department restored the option to submit rebuttal evidence, with a
simultaneous option to appeal, but adopted a 30-calendar-day timeframe
instead of the prior rule's 14-calendar-day period for submission of
rebuttal evidence. The Department did not explicitly state that 30
calendar days was more appropriate than 14 calendar days or otherwise
explain why it now considered 30 calendar days an appropriate timeframe
for submitting rebuttal evidence in a debarment proceeding. Id. at
6938. The 2010 H-2A Final Rule noted that it had intended in the
corresponding NPRM to propose changes to the OFLC debarment procedures
to ensure ``that the procedures [were] consistent with the WHD
debarment procedures,'' which, at the time, allowed for 30 days to
appeal. 74 FR 45923, 45963; 75 FR 6938. It also noted that the
opportunity for parties to provide rebuttal evidence is ``better suited
to the method of OFLC investigations'' and parallels OFLC revocation
procedure, without addressing the now-different timeframes for
submitting rebuttal evidence in a revocation proceeding (i.e., 14 days)
and in a debarment proceeding (i.e., 30 days). 75 FR 6938. While the
Department continues to believe the ability to submit rebuttal evidence
is necessary, it does not consider the 30-calendar-day timeframe
appropriate for either OFLC or WHD debarment actions.
The benefits to expediting the debarment procedures and more
quickly removing violating parties from the program far outweigh the
limited benefits of providing 30 calendar days for rebuttal or appeal.
Not only does more quickly removing violating parties from the program
better protect workers, but it also reduces the time the debarred
parties spend awaiting a final order regarding their status. In
addition, reducing the period of time better aligns with the timeframe
available to submit rebuttal evidence under OFLC's revocation procedure
(i.e., 14 days). As both revocation and debarment serve similar
purposes--to protect workers--the Department has determined that it is
appropriate to align the two rebuttal periods. The increased use of
electronic recordkeeping, as well as the ability to submit
documentation via email, means that the shortened 14-calendar-day
timeframe to submit rebuttal documentation should not be overly
burdensome.
Nevertheless, to continue to ensure due process for parties and to
allow adequate time to establish a record, the Department proposes
permitting parties to request an extension of time to submit rebuttal
evidence in a new regulatory provision at Sec. 655.182(f)(2). The
option to request an extension of time to submit rebuttal evidence
would be available to a party who shows good and substantial cause
necessitating additional time. The proposal would require the request
to be made in writing, with detailed information and supporting
documentation, and to be received by the OFLC Administrator within 14
calendar days of the date the Notice of Debarment was issued. If the
OFLC Administrator determines that the party has established good and
substantial cause, the Administrator could grant one extension of time
to submit rebuttal evidence. As specified in proposed paragraph
(f)(2)(iii), good and substantial cause may include, but is not limited
to, health-related emergencies, catastrophic fire- or weather-related
incidents, or other similar conditions that are wholly outside the
party's control and hinder a party's ability to respond in a timely
manner. Should the OFLC Administrator deny the one-time extension
request, such denial is not appealable.
In addition, for the reasons stated above, the Department also
proposes to shorten the timeframes to appeal the OFLC Administrator's
Notice of Debarment, in lieu of submitting rebuttal evidence; to appeal
the OFLC Administrator's final determination, after review of rebuttal
evidence; and for
[[Page 63808]]
all parties to request review by the ARB from 30 days to 14 calendar
days in Sec. 655.182(f)(1), (2), and (3) and (f)(5)(i). The
Department's proposal would not permit a party to request an extension
of time to appeal the OFLC Administrator's Notice of Debarment. A party
need only submit a written request for review to appeal a debarment
decision to an ALJ; they are not required to gather or provide
additional records (as they would to submit a rebuttal), or to draft a
full legal brief, and therefore the request itself should not be
burdensome. Shortening the time to request review by the ARB to 14
calendar days should also not be burdensome for the same reasons.
As described fully in the discussion of section 29 CFR 501.20, the
Department proposes conforming revisions to WHD's regulations governing
the timeframe to appeal WHD determinations involving debarment as well.
The Department welcomes comments on this proposal, including
specific examples of how the proposed changes may affect the regulated
community.
V. Discussion of Proposed Revisions to 29 CFR Part 501
The Department proposes revisions to the regulations at 29 CFR part
501, which set forth the responsibilities of WHD to enforce the legal,
contractual, and regulatory obligations of employers under the H-2A
program. The Department proposes these amendments concurrent with and
to complement the changes ETA proposes to its regulations in 20 CFR
part 655, subpart B, governing the certification of temporary
employment of nonimmigrant workers employed in temporary or seasonal
agricultural employment. As with the proposed revisions to ETA's
regulations, the proposed revisions to 29 CFR part 501 focus on
strengthening protections for agricultural workers and enhancing the
Department's capabilities to monitor program compliance and take
necessary enforcement actions against program violators. The Department
invites comments on all of these proposed revisions.
A. Section 501.3 Definitions
The Department proposes to add definitions of the terms key service
provider and labor organization in Sec. 501.3(a), to conform to the
proposed addition of these terms to the definitions in 20 CFR
655.103(b) and for the reasons set forth in the discussion of proposed
20 CFR 655.135(h). The Department also proposes to remove the
definition of the term successor in interest from Sec. 501.3(a), to
conform to and for the reasons described in the discussion of proposed
20 CFR 655.104. Finally, the Department proposes to add a new Sec.
501.3(d), defining the term single employer, to conform to and for the
reasons described in the discussion of proposed 20 CFR 655.103(e).
B. Section 501.4 Discrimination Prohibited
The Department proposes revisions to Sec. 501.4(a) to conform to
proposed changes to 20 CFR 655.135(h) that would expand and strengthen
the Department's existing anti-retaliation provisions. The reasons for
this proposal are described fully in the discussion of proposed 20 CFR
655.135(h). The Department does not propose any revisions to Sec.
501.4(b) regarding WHD investigations and enforcement of Sec. 501.4.
C. Section 501.10 Severability
As set forth in the discussion of proposed 20 CFR 655.190, the
Department proposes a new Sec. 501.10, that would explain that if any
provision of 29 CFR part 501 is held to be invalid or unenforceable by
its terms, or as applied to any person or circumstance, or stayed
pending further agency action, the provision shall be construed so as
to continue to give the maximum effect to the provision permitted by
law, unless such holding is one of total invalidity or
unenforceability, in which event the provision or sub-provision shall
be severable from 29 CFR part 501 and shall not affect the remainder
thereof.
The Department seeks comments both on the substance and scope of
this proposed severability clause and requests the public's views on
any other issues related to severability, such as whether the rule in
general includes provisions amenable to severability; whether specific
parts of the rule could operate independently; whether the benefits of
the rule would continue to justify the costs should particular
provisions be severed; or whether individual provisions are essential
to the entire rule's workability.
D. Sections 501.20, 501.33, 501.42 Debarment and Revocation
The Department proposes revisions to WHD's regulations at
Sec. Sec. 501.20, 501.33, and 501.42, with respect to debarment, to
maintain consistency with and implement various proposed changes to
ETA's debarment regulation at 20 CFR 655.182. These proposed changes
are described briefly here, and described fully in the section-by-
section analysis of 20 CFR part 655, subpart B.
1. Successors in Interest
The Department proposes revisions to existing Sec. 501.20(a) and
(b) to conform to proposed 20 CFR 655.104 and 655.182 regarding the
effect of debarment on successors in interest. As explained fully in
the discussion of proposed 20 CFR 655.104, any WHD debarment of an
employer, agent, or attorney applies to any successor in interest to
that debarred entity, and under this proposed rule, WHD need not issue
a new notice of debarment to a successor in interest to a debarred
employer, agent, or attorney. However, as reflected in proposed new
paragraph Sec. 501.20(j), WHD would be permitted, but not required, to
identify any known successor(s) in interest in a notice of debarment
issued to an employer, agent, or attorney.
2. Passport Withholding
The Department proposes a conforming revision to Sec.
501.20(d)(1)(viii) to include within the definition of a violation, for
purposes of debarment, a violation of the proposed prohibition on
passport withholding at 20 CFR 655.135(o), as described fully in the
discussion of proposed 20 CFR 655.135(o).
3. Timeline To Appeal WHD Debarment Determinations
For consistency with and conformance to the Department's proposal
under 20 CFR 655.182 to expedite debarment processing, the Department
proposes to shorten the timeframe to appeal any WHD determination
seeking debarment from 30 calendar days to 14 calendar days as well.
Any determination seeking a debarment, including for example,
determinations which also include civil money penalties, would be
subject to the shortened timeframe. Determinations by the WHD
Administrator that do not include debarment, but only include, for
example, an assessment of civil money penalties or the payment of back
wages, would retain a 30-calendar-day timeframe for appeal.
In shortening the appeal timeframes for matters involving
debarments, the Department seeks to bolster program integrity and help
protect workers from further harm. Debarment is a remedy for a
substantial violation of the program and if a determination has been
made that this is appropriate, then it is also appropriate to expedite
the process by which a party is ultimately prohibited from using the
program. If the WHD Administrator has determined in a particular case
that debarment is not
[[Page 63809]]
necessary, then the original timeframe of 30 calendar days to appeal
will apply.
Specifically, under proposed Sec. 501.20(e), the debarment would
take effect 14 calendar days from the Notice of Debarment, unless a
request for review is properly filed within 14 calendar days of the
Notice of Debarment.
Under proposed Sec. 501.33, the regulatory text in current
paragraph (a) would be redesignated to paragraph (a)(1) and amended to
note that the 30-calendar-day timeframe would apply when seeking review
of a WHD determination, except for those determinations involving
debarment. A newly added paragraph (a)(2) would state clearly that any
person desiring review of a WHD determination involving debarment shall
make their written request no later than 14 calendar days after the
date of the notice referred to in Sec. 501.32.
Finally, under proposed Sec. 501.42, the regulatory text in
paragraph (a) would be revised to clarify that a decision of an ALJ not
involving debarment would still require appeal to the ARB within 30
calendar days, while newly added text would state that any decision
involving debarment would be required to be appealed to the ARB within
14 calendar days. The Department proposes further conforming edits to
these sections.
The Department is also considering whether the timeframe to appeal
all determinations in this subpart, not only those involving
debarments, should be shortened from 30 to 14 calendar days. In
particular, the Department is concerned that different timeframes to
appeal different types of determinations (i.e., 30 days to appeal a
determination assessing civil money penalties, but not debarment,
versus 14 days to appeal a determination assessing civil money
penalties and debarment) may result in confusion and employers missing
appeal deadlines. The Department also believes that a shortened appeal
timeframe of 14 calendar days may better ensure that back wages are
paid timely to workers, and that 14 calendar days may be sufficient to
appeal any determination, not only those determinations involving
debarment. The Department seeks comment as to whether the shortened
timeframe of 14 calendar days should apply to all determinations of the
WHD Administrator, not simply those determinations involving debarment.
E. Section 501.33 Request for Hearing
The Department proposes revisions to Sec. 501.33(b), governing the
contents of a request for review of a WHD determination before the
OALJ, to make explicit that issues not raised for review in such
requests would be deemed waived. The Department's current regulations
make explicit that administrative exhaustion is required before a party
may seek judicial review, and that the party requesting a hearing
before the OALJ must ``[s]pecify the issue or issues stated in the
notice of determination giving rise to such request'' and ``[s]tate the
specific reason or reasons why the person requesting the hearing
believes such determination is in error.'' 29 CFR 501.33(b)(2) and (3).
Despite these provisions, parties frequently attempt to raise new
issues on appeal, whether before the OALJ, the ARB, or a Federal court,
that were not raised in the party's request for a hearing. However,
under relevant case law, issue exhaustion requirements are applicable
and appropriate under the H-2A administrative review procedures. See,
Sun Valley Orchards, 2021 WL 2407468, at *7; Sandra Lee Bart, ARB No.
2018-0004, slip op. at 6-7 (ARB Sept. 22, 2020); see also Carr v. Saul,
141 S. Ct. 1352, 1358 (2021) (``Typically, issue-exhaustion rules are
creatures of statute or regulation'' but where the ``regulations are
silent, . . . courts decide whether to require issue exhaustion based
on an analogy to the rule that appellate courts will not consider
arguments not raised before trial courts.'') (quotation omitted).
Without explicit regulatory text codifying that issue exhaustion
applies, courts and the Department may be required to expend
significant resources considering or defending against issues that are
ultimately deemed to have been waived. Similarly, parties have asserted
that they lacked notice that issues not raised in a request for hearing
before the OALJ may be deemed waived. The Department thus proposes an
explicit issue exhaustion provision that will better inform parties of
the potential consequences of failing to raise an issue in requests for
review of a WHD determination (i.e., that issues not included cannot be
raised later in the ALJ proceedings or on review of any ALJ decision
before the ARB or in Federal court), as well as better preserve agency
and judicial resources.
Accordingly, the Department proposes to revise Sec. 501.33(b)(2)
to make clear that any issue not raised in a party's request for a
hearing before the OALJ ordinarily will be deemed waived in any further
proceedings. The proposed language is modeled on similar provisions in
OSHA's whistleblower regulations governing the procedures for
administrative review of OSHA's findings in those contexts. See, e.g.,
29 CFR 1982.110(a). As OSHA has explained, including such a requirement
in the Department's regulations is intended to provide clear and timely
notice to all parties that issue exhaustion may apply, thus alerting
the parties to the need to raise any and all issues and objections
before the agency to preserve them for further review. See, e.g., 80 FR
69115, 69128 (Nov. 9, 2015). The Department welcomes comments on this
proposal.
VI. Administrative Information
A. Executive Order 12866: Regulatory Planning and Review; Executive
Order 14094: Modernizing Regulatory Review; and Executive Order 13563:
Improving Regulation and Regulatory Review
Under Executive Order 12866, OMB's Office of Information and
Regulatory Affairs (OIRA) determines whether a regulatory action is
significant and, therefore, subject to the requirements of the
Executive order and review by OMB. 58 FR 51735 (Oct. 4, 1993). Section
3(f) of Executive Order 12866, as amended by Executive Order 14094,
defines a ``significant regulatory action'' as an action that is likely
to result in a rule that: (1) has an annual effect on the economy of
$200 million or more, or adversely affects in a material way a sector
of the economy, productivity, competition, jobs, the environment,
public health or safety, or State, local, territorial, or tribal
governments or communities; (2) creates serious inconsistency or
otherwise interferes with an action taken or planned by another agency;
(3) materially alters the budgetary impacts of entitlement grants, user
fees, or loan programs, or the rights and obligations of recipients
thereof; or (4) raises novel legal or policy issues arising out of
legal mandates, the President's priorities, or the principles set forth
in the Executive order. 88 FR 21879 (Apr. 11, 2023). This proposed rule
is a significant regulatory action under section 3(f)(4) of Executive
Order 12866, as amended by Executive Order 14094.
Executive Order 13563 directs agencies to propose or adopt a
regulation only upon a reasoned determination that its benefits justify
its costs; the regulation is tailored to impose the least burden on
society, consistent with achieving the regulatory objectives; and in
choosing among alternative regulatory approaches, the agency has
selected those approaches that maximize net benefits. 76 FR 3821 (Jan.
21, 2011). Executive Order 13563 recognizes that some benefits are
difficult to quantify and provides that, where appropriate and
permitted by law, agencies may consider and discuss
[[Page 63810]]
qualitatively values that are difficult or impossible to quantify,
including equity, human dignity, fairness, and distributive impacts.
Id.
Outline of the Analysis
Section VI.A.1 describes the need for the proposed rule, and
section VI.A.2 describes the process used to estimate the costs of the
rule and the general inputs used, such as wages and number of affected
entities. Section VI.A.3 explains how the provisions of the proposed
rule would result in quantified costs and transfer payments, and
presents the calculations the Department used to estimate them. In
addition, section VI.A.3 describes the unquantified transfer payments
and unquantified cost savings of the proposed rule, and a description
of qualitative benefits. Section VI.A.4 summarizes the estimated first-
year and 10-year total and annualized costs and transfer payments of
the proposed rule. Finally, section VI.A.5 describes the regulatory
alternatives that were considered during the development of the
proposed rule.
Summary of the Analysis
The Department estimates that the proposed rule would result in
costs and transfer payments. As shown in Exhibit 1, the proposed rule
is expected to have an annualized cost of $2.03 million and a total 10-
year quantifiable cost of $14.24 million, each at a discount rate of 7
percent.\90\ The proposed rule is estimated to result in annual
transfer payments from H-2A employers to H-2A employees of $12.81
million and total 10-year transfer payments of $89.95 million at a
discount rate of 7 percent.\91\
---------------------------------------------------------------------------
\90\ The proposed rule would have an annualized cost of $1.98
million and a total 10-year cost of $16.92 million at a discount
rate of 3 percent in 2021 dollars.
\91\ The proposed rule would have annualized transfer payments
from H-2A employers to H-2A employees of $12.57 million and a total
10-year transfer payments of $107.19 million at a discount rate of 3
percent in 2021 dollars.
Exhibit 1--Estimated Monetized Costs and Transfer Payments of the
Proposed Rule
[2021 $millions]
------------------------------------------------------------------------
Costs Transfer payments
------------------------------------------------------------------------
Undiscounted 10-Year Total........ $19.51 $123.83
10-Year Total with a Discount Rate 16.92 107.19
of 3%............................
10-Year Total with a Discount Rate 14.24 89.95
of 7%............................
10-Year Average................... 1.95 12.38
Annualized at a Discount Rate of 1.98 12.57
3%...............................
Annualized with at a Discount Rate 2.03 12.81
of 7%............................
------------------------------------------------------------------------
The total cost of the proposed rule is associated with rule
familiarization, worker contact information, and application additions.
Transfer payments are the results of the elimination of the 2-week
delay in effectiveness of the AEWR after publication. See the costs and
transfer payments subsections of section VI.A.3 (Subject-by-Subject
Analysis) below for a detailed explanation.
The Department was unable to quantify some costs, transfer
payments, cost savings, and benefits of the proposed rule. Unquantified
transfer payments include compensation to workers under proposed Sec.
655.175(b)(2)(ii) in cases where the start date is delayed without
sufficient notice and clarifying that piece rate should be included in
the prevailing wage determination. Unquantified cost-savings include
the Department's ability to deny labor certification applications filed
by or on behalf of successors in interest to debarred employers,
agents, or attorneys. Unquantified benefits include better protection
from inappropriate termination, protection for worker advocacy,
reduction in risk of injury during employer-sponsored transportation,
reduction in improper holding of passports or other immigration
documents and enhanced integrity and enforcement. The Department
describes them qualitatively in section VI.A.3 (Subject-by-Subject
Analysis). The Department seeks public comments and inputs on all
aspects of the economic analysis presented here. In addition, the
Department requests public inputs about this rule's impact on labor
costs and production of agricultural products.
1. Need for Regulation
The Department proposes provisions in this NPRM that will
strengthen protections for agricultural workers and enhance the
Department's enforcement capabilities against fraud and program
violations. The Department has determined the proposed revisions will
help prevent exploitation and abuse of agricultural workers and ensure
that unscrupulous employers do not gain from their violations or
contribute to economic and workforce instability by circumventing the
law. It is the policy of the Department to maintain robust protections
for workers and vigorously enforce all laws within its jurisdiction
governing the administration and enforcement of nonimmigrant visa
programs. The Department has determined through program experience,
recent litigation, challenges in enforcement, comments on prior
rulemaking, and reports from various workers' rights advocacy
organizations that the proposals in this NPRM are necessary to
strengthen protections for agricultural workers, ensure that employers,
agents, attorneys, and labor recruiters comply with the law, and
enhance the Department's ability to monitor compliance and investigate
and pursue remedies from program violators.
The proposed rule aims to address some of the comments that were
beyond the scope of the 2022 H-2A Final Rule and concerns expressed by
workers' rights advocacy groups, labor unions, and organizations that
combat human trafficking. It also seeks to respond to recent court
decisions and program experience indicating a need to enhance the
Department's ability to enforce regulations related to foreign labor
recruitment, and to improve accountability for successors-in-interest
and employers who use various methods to attempt to evade the law and
regulatory requirements, and to enhance worker protections for a
vulnerable workforce, as explained further in the section-by-section
analysis above.
The Department can use this rulemaking to better protect the rights
and liberties, health and safety, and wages and working conditions of
agricultural workers and best safeguard the integrity of the H-2A
program, while continuing to ensure that
[[Page 63811]]
responsible employers have access to willing and available agricultural
workers and are not unfairly disadvantaged by employers that exploit
workers and attempt to evade the law.
2. Analysis Considerations
The Department estimated the costs and transfer payments of the
proposed rule relative to the existing baseline (i.e., the current
practices for complying, at a minimum, with the H-2A program as
currently codified at 20 CFR part 655, subpart B, and 29 CFR part 501).
In accordance with the regulatory analysis guidance articulated in
OMB's Circular A-4 and consistent with the Department's practices in
previous rulemakings, this regulatory analysis focuses on the likely
consequences of the proposed rule (i.e., costs, benefits, and transfer
payments that accrue to entities affected). The analysis covers 10
years (from 2024 through 2033) to ensure it captures major costs,
benefits, and transfer payments that accrue over time. The Department
expresses all quantifiable impacts in 2021 dollars and uses discount
rates of 3 and 7 percent, pursuant to Circular A-4.
Exhibit 2 presents the number of affected entities that are
expected to be impacted by the proposed rule.\92\ The average number of
affected entities is calculated using OFLC certification data from 2016
through 2021. The Department provides this estimate and uses it to
estimate the costs of the proposed rule.
---------------------------------------------------------------------------
\92\ Performance Data, U.S. Dep't of Lab., https://www.dol.gov/agencies/eta/foreign-labor/performance.
Exhibit 2--Number of Unique Employers by Type
------------------------------------------------------------------------
Fiscal year (FY) Number
------------------------------------------------------------------------
2016......................................................... 6,713
2017......................................................... 7,187
2018......................................................... 7,902
2019......................................................... 8,391
2020......................................................... 7,785
2021......................................................... 9,442
----------
Average.................................................. 7,903
------------------------------------------------------------------------
a. Growth Rate
The Department estimated growth rates for certified H-2A workers
based on FY 2012-2021 H-2A program data, presented in Exhibit 3.
Exhibit 3--Historical H-2A Program Data
------------------------------------------------------------------------
Workers
FY certified
------------------------------------------------------------------------
2012........................................................ 85,248
2013........................................................ 98,814
2014........................................................ 116,689
2015........................................................ 139,725
2016........................................................ 165,741
2017........................................................ 199,924
2018........................................................ 242,853
2019........................................................ 258,446
2020........................................................ 275,430
2021........................................................ 317,619
------------------------------------------------------------------------
The geometric growth rate for certified H-2A workers using the
program data in Exhibit 3 is calculated as 17.9 percent. This growth
rate, applied to the analysis timeframe of 2024 to 2033, would result
in more H-2A certified workers than projected employment of workers in
the relevant H-2A SOC codes by BLS.\93\ Therefore, to estimate
realistic growth rates for the analysis, the Department applied an
autoregressive integrated moving average (ARIMA) model to the FY 2012-
2021 H-2A program data to forecast workers and unique employers, and
estimated geometric growth rates based on the forecasted data. The
Department conducted multiple ARIMA models on each set of data and used
common goodness of fit measures to determine how well each ARIMA model
fit the data.\94\ Multiple models yielded indistinctive measures of
goodness of fit. Therefore, each model was used to project workers and
unique employers through 2033. Then, a geometric growth rate was
calculated using the forecasted data from each model and an average was
taken across each model. This resulted in an estimated growth rate of
6.3 percent for H-2A certified workers.
---------------------------------------------------------------------------
\93\ Comparing BLS 2030 projections for combined agricultural
workers (SOC 45-2000) with a 17.9 percent growth rate of H-2A
workers yields estimated H-2A workers that are about 127 percent
greater than BLS 2030 projections. The projected workers for the
agricultural sector were obtained from BLS's Occupational
Projections and Worker Characteristics, which may be accessed at
https://www.bls.gov/emp/tables/occupational-projections-and-characteristics.htm.
\94\ The Department estimated models with different lags for
autoregressive and moving averages, and orders of integration:
ARIMA(0,2,0); (0,2,1); (0,2,2); (1,2,1); (1,2,2); (2,2,2). For each
model we used the Akaike Information Criteria goodness of fit
measure.
---------------------------------------------------------------------------
To estimate the growth rate for unique employers, the Department
uses FY 2016-FY 2021 data on unique employers. The use of FY 2016 as
the first year is chosen due to data availability on calculated unique
employers. The Department calculates a compound annual growth rate
based on FY 2016 unique employers (6,713) and the FY 2021 unique
employers (9,442). The result is an estimate of 7.1 percent annual
growth rate.\95\
---------------------------------------------------------------------------
\95\ Calculation: 7.1% = (9,442 / 6,713)(1 / 5)-1.
---------------------------------------------------------------------------
The estimated annual growth rates for unique employers (7.1
percent) and workers (6.3 percent) were applied to the estimated costs
and transfers of the proposed rule to forecast participation in the H-
2A program.\96\
---------------------------------------------------------------------------
\96\ Final forecasted estimates of H-2A employer participation:
8,464 in 2023, 9,065 in 2024, 9,708 in 2025, 10,398 in 2026, 11,136
in 2027, 11,927 in 2028, 12,774 in 2029, 13,681 in 2030, 14,652 in
2031, and 15,692 in 2032.
---------------------------------------------------------------------------
b. Compensation Rates
In section VI.A.3 (Subject-by-Subject Analysis), the Department
presents the costs, including labor, associated with the implementation
of the provisions of the proposed rule. Exhibit 4 presents the hourly
compensation rates for the occupational categories expected to
experience a change in the number of hours necessary to comply with the
proposed rule. The Department used the mean hourly wage rate for
private sector human resources (HR) specialists (SOC code 13-1071).\97\
Wage rates are adjusted to reflect total compensation, which includes
nonwage factors such as overhead and fringe benefits (e.g., health and
retirement benefits). We use an overhead rate of 17 percent \98\ and a
fringe benefits rate based on the ratio of average total compensation
to average wages and salaries in 2021. For the private sector
employees, we use a fringe benefits rate of 42 percent.\99\ For State
and local employees, we use a fringe benefits rate of 62 percent.\100\
We then multiply the loaded wage factor by the wage rate to calculate
an hourly compensation rate. The Department used the hourly
compensation rates presented in Exhibit 4 throughout this analysis to
estimate the labor costs for each provision.
---------------------------------------------------------------------------
\97\ May 2021 National Occupational Employment and Wage
Estimates: 13-1071--Human Resources Specialists, Bureau of Lab.
Stats., https://www.bls.gov/oes/current/oes131071.htm.
\98\ Cody Rice, Wage Rates for Economic Analyses of the Toxics
Release Inventory Program, U.S. Env't Prot. Agency (June 10, 2002),
https://www.regulations.gov/document?D=EPA-HQ-OPPT-2014-0650-0005.
\99\ Employer Costs for Employee Compensation, Bureau of Lab.
Stats. (2021), https://www.bls.gov/news.release/ecec.toc.htm. Ratio
of total compensation to wages and salaries for all private industry
workers.
\100\ Employer Costs for Employee Compensation, Bureau of Lab.
Stats. (2022), https://www.bls.gov/news.release/ecec.toc.htm. Ratio
of total compensation to wages and salaries for all State and local
government workers.
[[Page 63812]]
Exhibit 4--Compensation Rates
[2021 dollars]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Base hourly Hourly
Position Grade level wage rate Loaded wage factor Overhead costs compensation rate
(a) (b) (c) d = a + b + c
--------------------------------------------------------------------------------------------------------------------------------------------------------
Private Sector Employees
--------------------------------------------------------------------------------------------------------------------------------------------------------
HR Specialist........................ N/A..................... $34.00 $14.28 ($34.00 x 0.42) $5.78 ($34.00 x 0.17) $54.06
--------------------------------------------------------------------------------------------------------------------------------------------------------
State Government Employees \101\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Educational, guidance, and career N/A..................... 29.09 $18.01 ($29.09 x 0.619) $4.95 ($29.09 x 0.17) $52.05
counselors and advisors.
--------------------------------------------------------------------------------------------------------------------------------------------------------
3. Subject-by-Subject Analysis
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\101\ As part of the discontinuation of services provision of
the proposed rule, there will be changes to the number of field
checks that will occur. The Department assumes that a single
educational, guidance, and career counselor and advisor from the SWA
will conduct the site visits.
---------------------------------------------------------------------------
The Department's analysis below covers the estimated costs,
transfer payments, and qualitative benefits of the proposed rule. In
accordance with Circular A-4, the Department considers transfer
payments as payments from one group to another that do not affect total
resources available to society. This proposed rule includes the cost of
rule familiarization, application additions, and worker contact
information, and transfer payments associated with the elimination of
the 2-week delayed effective date of the AEWR.
a. Costs
The following section describes the quantified and unquantified
costs of the proposed rule.
i. Quantified Costs
The following sections describes the quantified costs of rule
familiarization, application addition, and worker contact information
provisions of the proposed rule.
A. Rule Familiarization
When the proposed rule takes effect, H-2A employers will need to
familiarize themselves with the new regulations. Consequently, this
will impose a one-time cost in the first year. New employers in each
subsequent year would need to familiarize themselves with current
regulations regardless of this proposed rule.
To estimate the first-year cost of rule familiarization, the
Department applied the growth rate of H-2A employers (7.1 percent) to
the number of unique H-2A employers (7,903) to determine the number of
unique H-2A applicants impacted in the first year. The number of unique
H-2A employers (8,464) was multiplied by the estimated amount of time
required to review the rule (1 hour). The Department requests public
comments and inputs regarding this estimate. This number was then
multiplied by the hourly compensation rate of HR specialists ($54.06
per hour). This calculation results in a one-time undiscounted cost of
$457,570 in the first year after the proposed rule takes effect. The
annualized cost over the 10-year period is $53,641 and $65,148 at
discount rates of 3 and 7 percent, respectively.
B. Application Additions
Once the proposed rule takes effect, H-2A employers will need to
fill out additional information on the H-2A Application (such as
individual owners' names, home addresses, phone, date of birth,
identifying information for all managers/labor supervisors; DBA
information; identifying info for recruiters, including those the
petitioner directly hires and all employees, contractors, agents,
including the name and information for direct contacts to the workers;
address for worker housing; and names/contact information of recruiters
or hiring agents), which will impose a yearly cost as the additional
time is required for every application for certification.
To estimate the yearly cost of the application additions, the
Department applied the growth-rate of H-2A employers (7.1 percent) to
the current number of unique certified H-2A employers (7,903) to
determine the number of unique H-2A employers in the first year
(8,464). The number of unique certified H-2A employers in the first
year is then multiplied by the growth rate again to determine the
number of unique certified H-2A employers in the second year. This
process is repeated each year to determine the total number of unique
certified H-2A employers every year during the study period. Since it
is assumed that only a single HR specialist per employer will incur the
additional time investment, the estimated total yearly cost can be
estimated by multiplying the total number of unique certified H-2A
employers (8,464) by the HR specialist hourly wage rate ($34.00 per
hour), the loaded wage factor and the overhead rate for the private
sector (1.59), and the estimated additional time taken to gather and
enter the information on a yearly basis (2 hours on average). The
Department requests public comments and inputs regarding this estimate.
Lastly, this value is multiplied by the growth rate of unique employers
(7.1 percent) to the nth power, with n being equal to the period year.
The result is $915,140 in the first year, an undiscounted average cost
over a 10-year period of $1,270,386, and discounted annualized costs of
$1,286,884, and $1,308,447 at rates of 3 and 7 percent respectively.
C. Worker Contact Information
This provision of the proposed rule would require employers to
provide worker contact information (a list of all H-2A workers and
workers in corresponding employment employed at the place(s) of
employment within the employer's application) to a requesting labor
organization. Employers must make this disclosure upon the request of a
labor organization, and must update the disclosure, again upon the
request of the labor organization, up to one time per work contract
period. The Department assumes that on average each employer will need
to respond to requests from one labor organization and that responding
to the initial request and one request for an updated list will take 1
hour each year. The Department requests public comments and inputs
regarding this estimate.
To determine the total additional costs of this provision, the
Department used the average number of unique
[[Page 63813]]
certified H-2A employers (7,903) and applied the unique employer growth
rate (7.1 percent) and assumed that the number of labor organizations
that would request employee lists from each employer is one. The
Department then multiplied the number of requests by the estimated time
to respond to each request per year (1 hour). This number was then
multiplied by the hourly compensation rate of an HR specialist ($34.00)
and the loaded wage factor and the overhead rate for the private sector
(1.59) to obtain the total cost of the worker contact information
provision. This results in the estimated total cost for this provision
in the first year of $457,570. This process is repeated each year
resulting in an undiscounted average annual cost of $635,193 and
discounted annualized costs of $643,442, and $654,223 at discount rates
of 3 and 7 percent respectively. The Department seeks public comments
and inputs on its assumptions on the number of labor organizations that
would request employee lists from each H-2A employer and the estimated
time to respond per year.
ii. Unquantified Costs
A. Transportation: Seat Belts for Drivers and Passengers
As part of the proposed rule, employers would have to ensure seat
belts are provided for drivers and passengers in transportation
vehicles, used to transport H-2A and corresponding workers, that were
required by U.S. Department of Transportation regulations to be
manufactured with seat belts. This could impose both a one time and
annual cost to those employers who had previously, lawfully modified or
removed seat belts in such vehicles and would be required to reinstall
or retrofit seat belts to comply with the proposed rule through the
cost of installing the necessary seat belts and the decreased fuel
efficiency of transportation vehicles caused by the additional weight
of the seat belts. The Department does not have data to estimate the
number of seat belts to be retrofitted, or in the alternative vehicles
that would need to be purchased, to provide seat belts for drivers and
passengers in the above scenario. The Department seeks public comment
on data and information that would support estimating this cost,
including whether vehicle owners or users may lawfully modify or remove
a seatbelt where the vehicle is required by DOT regulations to be
manufactured with that seatbelt.
b. Unquantified Cost Savings
The following section describes the unquantified cost savings of
the proposed rule.
i. Successors in Interest
Once the proposed rule takes effect, the Department would be able
to deny labor certification applications filed by or on behalf of
successors in interest to debarred employers, agents, or attorneys.
Currently, the Department must first issue a separate notice of
debarment to the successor in interest, and go through a lengthy
administrative hearing and review process, before it may deny an
application filed by or on behalf of a successor. The proposed rule
would therefore result in cost savings from not having to go through
the process to debar successors in interest but instead apply the
predecessor's debarment to the successor. The Department lacks detailed
data on the length of time necessary to enter a final order of
debarment against successors under the current regulations, and the
annual number of successor debarments and as a result is unable to
accurately quantify this cost savings. The Department seeks public
comment on data that would support estimating this cost savings.
c. Transfer Payments
The following section describes the transfer payments of the
proposed rule.
i. Quantified Transfer Payments
This section discusses the quantifiable transfer payments related
to revisions to the elimination of the 2-week effective date delay for
AEWR publication. The Department considers transfers as payments from
one group to another that do not affect total resources available to
society. The transfers measured in this analysis are wage transfers
from U.S. employers to H-2A workers. H-2A workers are migrant workers
who will spend some of their earnings on consumption goods in the U.S.
economy but likely send a large fraction of their earnings to their
home countries.\102\ Therefore, the Department considers the wage
transfers in the analysis as transfer payments within the global
economic system.
---------------------------------------------------------------------------
\102\ Revisions to the elimination of the 2-week effective date
delay for AEWR publication will also result in wage transfers from
U.S. employers to workers in corresponding employment but the
Department is not able to quantify this transfer due to the lack of
data for workers in corresponding employment and their wages.
---------------------------------------------------------------------------
A. Elimination of the 2-Week Effective Date Delay for AEWR Publication
Currently, the Department publishes the AEWR as soon as data is
available, typically in the middle of December. There is then a 2-week
delay until the AEWR is effective, typically January 1st of the
following year. Once the proposed rule takes effect, the 2-week delay
until the AEWR is effective will be removed and the AEWR will be
effective immediately. Therefore, employers that employ workers during
the 2-week period from mid-December to early January will see a
transfer to employees due to the elimination of the 2-week delay of
wage increases from the AEWR publication.
To estimate the transfer, the Department first uses FY 2020 and FY
2021 H-2A certification data to calculate the weighted average increase
in AEWR from one year to the next.\103\ The Department weights the
average by the number of workers in each State with employment between
December 14th and the end of the year to account for regional
differences in employment during December. The result is an average
increase in the AEWR by $1.09. The Department then calculates the
average number of days worked between December 14 and the end of the
year (11.87) using the FY 2020 and FY 2021 H-2A certification data.
Finally, the Department estimates the average annual number of workers
with work during this period using the H-2A certification data
(89,208).\104\
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\103\ H-2A disclosure data may be accessed at https://www.dol.gov/agencies/eta/foreign-labor/performance.
\104\ The Department uses the 6.3 percent growth rate of H-2A
workers (6.3) percent to produce final forecasted estimates of H-2A
workers: 89,208 in 2023, 94,837 in 2024, 100,821 in 2025, 107,183 in
2026, 121,136 in 2027, 128,780 in 2028, 136,906 in 2029, 145,545 in
2030, 14,652 in 2031, and 154,729 in 2032.
---------------------------------------------------------------------------
The Department determines the total amount of the transfers by
multiplying the 2-year weighted AEWR difference for end-of-year
employment (1.09), the 2-year average number of days worked between
December 14 and the end of year (11.87), the number of work hours in a
day (8), and the number of H-2A workers during this period (89,208). To
determine the transfers for every year in the 10-year period, the total
number of H-2A workers during the period is multiplied by the growth
rate of H-2A workers (6.3 percent). The same process is repeated for
every year in the period. The total undiscounted average annual
transfers associated with this provision is $12,382,839 and the
discounted annualized transfers are $12,566,020,
[[Page 63814]]
and $12,806,284 at discount rates of 3 and 7 percent respectively.
ii. Unquantified Transfer Payments
This section discusses the unquantifiable transfer payments related
to the reverse of the 14-day grace period to start dates, and piece
rates.
A. Reverse of the 14-Day Grace Period for Start Dates
Currently, if an employer fails to contact the SWA of a start date
change at least 10 days ahead, it must offer work hours and pay wages
to each farmworker who followed the procedure to contact the SWA for
updated start date information for the first week. If the employer
requests a start date delay after workers have departed for the place
of employment, the employer must provide housing and subsistence. After
the proposed rule takes effect, employers that do not notify both the
SWA and the worker at least 10 days before the anticipated start date,
would be required to pay workers the hourly rate for the hours listed
on the job order for each day work is delayed up to 2 weeks resulting
in a transfer from employers to employees. The Department is unable to
quantify this transfer because it lacks detailed data on the prevalence
of job delays, the number of employees impacted by these delays, and
the number of hours impacted by the delays on average, or the number of
hours employers must spend contacting employees and as a result is
unable to accurately quantify this transfer. The Department seeks
public comment on data that would support estimating this transfer
payment.
B. Piece Rates
This proposed rule clarifies language within 20 CFR 655.120(a) and
655.122(l) to make clear that the employer is required to advertise and
pay the highest of the AEWR, prevailing hourly wage or piece rate, CBA
rate, or Federal or State minimum wage, or any other wage rate the
employer intends to pay. The Department is unable to quantify this
transfer because it lacks data on the frequency of instances when
employers will have to pay higher wages as a result of including and
considering applicable piece rates in job offers. The Department seeks
public comment on data that would support estimating this transfer
payment.
d. Unquantified Benefits
i. Termination for Cause
This rule proposes that workers would only be terminated for cause
for a failure to meet productivity standards or failure to comply with
employer policies and procedures, and only if the termination was
justified and reasonable. The designation of a termination as being for
cause strips workers of essential rights to which they would otherwise
be entitled--specifically the three-fourths guarantee, payment for
outbound transportation, and, if a U.S. worker, the right to be
contacted for re-hire in the following season--and therefore it is
essential that workers not be deprived of these rights using
inconsistent or unfair procedures. The proposed rule would require
fairness in disciplinary and termination proceedings if the termination
were to be designated as being for cause, which would prevent workers
from being unjustly stripped of certain rights under the H-2A program.
The Department lacks data on the numbers of terminations for cause each
year and whether those terminations were justified and reasonable, and
the number of hours required by employers to document termination
proceedings as defined by this proposed rule.
ii. Protections for Worker Advocacy and Self-Organization
The Department's proposal would provide stronger protections for
workers protected by the H-2A program to advocate for better working
conditions on behalf of themselves and their coworkers and would
prevent employers from suppressing this activity. These protections
would help prevent adverse effect on the working conditions of
similarly employed agricultural workers in the United States and would
increase the likelihood of worker advocacy and organizing while
protecting those workers from intimidation and retaliation by
employers. There are additional benefits for workers and employers.
Wages for nonunion workers are higher in industries where a larger
share of workers are union members.\105\ Unions also help close the
gender pay gap and ensure worker advocacy protection and equitable pay
for women because collectively bargained wages and pay scales are
transparent and apply equally to workers in the same job.\106\ In sum,
protection for worker advocacy and self-organization provides
unquantifiable benefits to workers under the H-2A program.
---------------------------------------------------------------------------
\105\ BLS News Release, Union Members--2022. Bureau of Lab.
Stats., https://www.bls.gov/news.release/pdf/union2.pdf.
\106\ Wendy Chun-Hoon, U.S. Dep't of Lab. Blog: Want Equal Pay?
Get a Union, https://blog.dol.gov/2022/02/15/want-equal-pay-get-a-union?_ga=2.66102894.1387872399.1678980555-949551915.1678980555.
---------------------------------------------------------------------------
Unions also complement the Department's enforcement efforts in
preventing wage-related violations and in ensuring workplace safety and
health. Unions play a central role in curbing wage-related violations
by negotiating contractual guarantees of workers' wages and a process
for enforcing these guarantees. Unions also encourage State and local
legislation to protect wages \107\ and help low-wage, vulnerable
workers understand their rights and report violations. Additionally, a
recent study of NLRB and OSHA data shows that union certification has
positive effects on the rate of OSHA safety and health inspections, the
share of inspections carried out in the presence of a union
representative, violations cited, and penalties assessed.\108\
---------------------------------------------------------------------------
\107\ Marc Doussard & Ahmad Gamal, The Rise of Wage Theft Laws:
Can Community--Labor Coalitions Win Victories in State Houses?, 52
Urb. Aff. Rev. 780-807 (2016), https://doi.org/10.1177/1078087415608008.
\108\ Aaron Sojourner & Jooyoung Yang, Effects of Unionization
on Workplace-Safety Enforcement: Regression-Discontinuity Evidence,
Inst. of Lab. Econ., IZA Discussion Papers 9610 (2015), https://ideas.repec.org/p/iza/izadps/dp9610.html.
---------------------------------------------------------------------------
Although the Department lacks data on how to quantify the benefits
of such increased worker protections, the proposed regulations should
increase workers' dignity and safety and should improve the working
conditions for all agricultural workers employed by H-2A employers.
iii. Transportation: Seat Belts for Drivers and Passengers
Once the proposed rule takes effect, employer-provided
transportation would be required to have seat belts available for all
workers transported, if those vehicles were required by DOT regulations
to be manufactured with seat belts. Seat belt use reduces the severity
of crash-related injuries and deaths. The Department lacks data on the
baseline number of crashes, whether those vehicles involved in crashes
were equipped with seat belts and the occupants were using seat belts
and subsequent injuries or fatalities involving vehicles transporting
H-2A workers and therefore is not able to estimate the benefit from
reduced fatalities or injuries. The benefit from reducing even a single
fatality or serious injuries is significant. The value of a statistical
life (VSL) that would measure the benefit of avoiding a fatality is
estimated to be $11.8 million.\109\ Recent
[[Page 63815]]
NHTSA reports suggest avoiding injury crashes can be highly beneficial,
with estimates that avoiding a critical injury crash is worth $3.8
million (32 percent of a fatality) and avoiding minor injuries is worth
$63,000 (0.5 percent of a fatality), respectively.\110\
---------------------------------------------------------------------------
\109\ The VSL is used by DOT to value fatalities associated with
vehicle crashes. The VSL is based upon the base year's VSL adjusted
for the annual change in the Consumer Price Index. Dep't of Transp.,
Departmental Guidance on Valuation of a Statistical Life in Economic
Analysis, https://www.transportation.gov/office-policy/transportation-policy/revised-departmental-guidance-on-valuation-of-a-statistical-life-in-economic-analysis.
\110\ Based on MAIS4 and MAIS1 injury per crash costs estimated
by NHTSA in Table 1-9. Summary of Comprehensive Unit Costs, The
Economic and Societal Impact of Motor Vehicle Crashes, 2019
(Revised), Nat'l Highway Traffic Safety Admin. (2023), https://crashstats.nhtsa.dot.gov/Api/Public/ViewPublication/813403.
---------------------------------------------------------------------------
iv. Protection Against Passport and Other Immigration Document
Withholding
To better protect this vulnerable workforce from potential labor
trafficking, the Department proposes to flatly prohibit an employer,
including through its agents or attorneys, from taking or withholding
of a worker's passport, visa, or other immigration or identification
documents against the worker's wishes, independent of any other
requirements under other Federal, State, or local laws, in a new
provision at 20 CFR 655.135(o). This proposal would help ensure that H-
2A workers are less likely to be subject to labor exploitation and thus
it safeguards the health, safety, and dignity of those workers and also
prevents the depression of working conditions for the local
agricultural workforce. The Department seeks comments on how it can
quantify these benefits.
v. Enhanced Integrity and Enforcement Capabilities
The Department proposes reduced time frames to submit appeal
requests for debarment matters and a reduced timeframe to submit
rebuttal evidence to OFLC. This would lead to faster final agency
adjudications and thereby better protect and uphold program integrity
and agricultural workers by more efficiently and effectively preventing
H-2A program violators from accessing the program. The Department seeks
comments on how it can quantify these benefits.
4. Summary of the Analysis
Exhibit 5 summarizes the estimated total costs and transfer
payments of the proposed rule over the 10-year analysis period. The
Department estimates the annualized costs of the proposed rule at $2.21
million and the annualized transfer payments (from H-2A employers to
employees) at $12.81 million, each at a discount rate of 7 percent.
Unquantified transfer payments include reverse of the 14-day grace
period for start dates and clarifying that piece rate should be
included in the prevailing wage determination. Unquantified cost-
savings include the Department's ability to deny labor certification
applications filed by or on behalf of successors in interest to
debarred employers, agents, or attorneys. Unquantified benefits include
better protection from inappropriate termination, protection for worker
advocacy, reduction in risk of injury during employer sponsored
transportation, reduction in improper holding of passports or
immigration documents, and enhanced integrity and enforcement. The
Department requests public comments and inputs on this rule's potential
distributional impacts and ripple effects in the economy.
Exhibit 5--Estimated Monetized Costs and Transfer Payments of the
Proposed Rule
[2021 $millions]
------------------------------------------------------------------------
Year Costs Transfer payments
------------------------------------------------------------------------
2024.............................. $1.83 $9.26
2025.............................. 1.4787 9.84
2026.............................. 1.57 10.46
2027.............................. 1.69 11.12
2028.............................. 1.81 11.83
2029.............................. 1.93 12.57
2030.............................. 2.07 13.37
2031.............................. 2.22 14.21
2032.............................. 2.38 15.11
2033.............................. 2.54 16.06
Undiscounted 10-Year Total........ 19.51 123.83
10-Year Total with a Discount 16.92 107.19
Rate of 3%...................
10-Year Total with a Discount 14.24 89.95
Rate of 7%...................
10-Year Average................... 1.95 12.38
Annualized with a Discount 1.98 12.57
Rate of 3%...................
Annualized with a Discount 2.03 12.81
Rate of 7%...................
------------------------------------------------------------------------
5. Regulatory Alternatives
The Department considered a regulatory alternative to this proposed
rule's proposal to make updated AEWRs effective on the date of
publication in the Federal Register. Under the alternative proposal,
AEWRs would become effective 7 calendar days after publication in the
Federal Register. This proposal would have been a compromise between
the immediate effective date proposed in this rule and the current
effective date, which can be as many as 14 calendar days after the
Department publishes the updated AEWRs in the Federal Register. The
benefit of the alternative proposal is that it would continue to
provide employers a short window of time to adjust payroll or
recordkeeping systems or make any other adjustments that may be
necessary after the Department's announcement of update AEWRs, while
providing a shorter adjustment window than under the current rule.
However, the Department determined the disadvantages of a 7-calendar-
day implementation period for updated AEWRs outweighed any potential
benefits. Although this alternative would require employers to begin
paying agricultural workers at least the newly required higher wage
within a calendar week of the date the updated AEWRs are published in
the Federal Register, it would not ensure that workers are paid at
least the wage rate determined to prevent adverse effect for all hours
worked. Further, unlike the possible 14-day period in the current rule,
the 7-calendar-day period would not correspond with a typical 2-week
[[Page 63816]]
pay period; potentially creating more logistical challenges than it
obviates. As the Department has explained in prior rulemaking, the duty
to pay an updated AEWR during the employment period if it is higher
than other required wage sources is not a new employer obligation. The
Department recognizes that AEWR adjustments may alter employer budgets,
but the Department believes the difference in the impact \111\ on
budget and payroll planning between the proposed immediate effective
date and a 7-day period after publication is outweighed by the benefits
to agricultural workers noted above. Moreover, as the Department noted
in the 2010 H-2A Final Rule, employers are aware of the annual AEWR
adjustment and the Department encourages employers to continue to
include the annual adjustment in their contingency planning to allow
flexibility to account for any possible wage adjustments.\112\
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\111\ The wage transfer under this alternative would be
approximately half of the impact of the proposed rule's proposal to
make updated AEWRs effective on the date of publication in the
Federal Register ($12.81 million at a discount rate of 7 percent).
\112\ See 87 FR 61660, 61688 (Oct. 12, 2022) (quoting 75 FR
6884, 6901 (Feb. 12, 2010)).
---------------------------------------------------------------------------
The Department also considered two regulatory alternatives to the
employee contact information proposal, with respect to the proposed
requirement that employers provide a labor organization with an updated
employee contact list once per season, if requested. First, the
Department considered a more stringent alternative, requiring the
employer to provide the requesting labor organization with an updated
list, if requested, up to once per month. This alternative would best
ensure that the labor organization has accurate contact information for
those workers actually employed by the employer throughout the entire
job order period, and therefore would best ensure that workers who may
have an interest in or against organizing have access to relevant
information. However, this alternative would impose significantly more
burden on the employer to comply. Second, the Department considered a
less stringent alternative, that would not require the employer to
provide any updates to the requesting labor organization; in other
words, the requesting labor organization would be entitled to one list
per season, without any updates. This alternative would be the least
burdensome of the three, but would be less likely to ensure that all
eligible workers have access to information regarding organization. The
Department therefore chose to propose that the employer provide a one-
time per season update, if requested, as the Department believes this
alternative best balances the need for workers to receive information
regarding arguments both for and against organization against unduly
burdening the employer with providing multiple updates to the employee
contact list.
B. Regulatory Flexibility Analysis and Small Business Regulatory
Enforcement Fairness Act and Executive Order 13272: Proper
Consideration of Small Entities in Agency Rulemaking
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601 et seq.,
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996, Public Law 104-121, requires agencies to determine whether
regulations will have a significant economic impact on a substantial
number of small entities. The Department certifies that the proposed
rule does not have a significant economic impact on a substantial
number of small entities. The Department presents the basis for this
certification in the analysis below.
1. Description of the Number of Small Entities to Which This Proposed
Rule Will Apply
a. Definition of Small Entity
The RFA defines a ``small entity'' as a (1) small not-for-profit
organization, (2) small governmental jurisdiction, or (3) small
business. The Department used the entity size standards defined by the
Small Business Administration (SBA), in effect as of December 19, 2022,
to classify entities as small.\113\ SBA establishes separate standards
for individual 6-digit North American Industry Classification System
(NAICS) industry codes, and standard cutoffs are typically based on
either the average number of employees, or the average annual receipts.
Small governmental jurisdictions are another noteworthy exception. They
are defined as the governments of cities, counties, towns, townships,
villages, school districts, or special districts with populations of
less than 50,000 people.\114\
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\113\ SBA Table of Small Business Size Standards Matched to
North American Industry Classification System Codes (December 19,
2022), https://www.sba.gov/document/support--table-size-standards.
\114\ See https://advocacy.sba.gov/resources/the-regulatory-flexibility-act for details.
---------------------------------------------------------------------------
b. Number of Small Entities
The Department collected employment and annual revenue data from
the business information provider Data Axle \115\ and merged those data
into the H-2A certification data for FY 2020 and FY 2021. This process
allowed the Department to identify the number and type of small
entities in the H-2A certification data as well as their annual
revenues. The Department determined the number of unique employers in
the FY 2020 and FY 2021 certification data based on the employer name
and city. The Department identified 9,927 unique employers (excluding
labor contractors). Of those 9,927 employers, the Department was able
to obtain data matches of revenue and employees for 2,615 H-2A
employers in the FY2020 and FY2021 certification data. Of those 2,615
employers, the Department determined that 2,105 were small (80.5
percent).\116\ These unique small entities had an average of 11
employees and average annual revenue of approximately $3.62 million. Of
these small unique entities, 2,085 of them had revenue data available
from Data Axle. The Department's analysis of the impact of this
proposed rule on small entities is based on the number of small unique
entities (2,085 with revenue data).
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\115\ Data Axle (Aug. 2023), https://www.data-axle.com.
\116\ SBA Table of Small Business Size Standards Matched to
North American Industry Classification System Codes (Aug. 2019),
https://www.sba.gov/document/support--table-size-standards.
---------------------------------------------------------------------------
To provide clarity on the agricultural industries impacted by this
regulation, Exhibit 6 shows the number of unique H-2A small entities
employers with certifications in the FY 2020 and FY 2021 certification
data within each NAICS code at the 6-digit level.
Exhibit 6--Number of H-2A Small Employers by NAICS Code
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of
6-digit NAICS Description employers Percent Size standard
--------------------------------------------------------------------------------------------------------------------------------------------------------
111998................................... All Other Miscellaneous Crop 611 29 $1.0 million.
Farming.
444220................................... Nursery, Garden Center, and Farm 162 8 $12.0 million.
Supply Stores.
561730................................... Landscaping Services............ 134 6 $8.0 million.
445230................................... Fruit and Vegetable Markets..... 127 6 $8.0 million.
[[Page 63817]]
424480................................... Fresh Fruit and Vegetable 84 4 100 employees.
Merchant Wholesalers.
111339................................... Other Noncitrus Fruit Farming... 78 4 $1.0 million.
112990................................... All Other Animal Production..... 57 3 $1.0 million.
424930................................... Flower, Nursery Stock, and 51 2 100 employees.
Florists' Supplies Merchant
Wholesalers.
424910................................... Farm Supplies Merchant 41 2 200 employees.
Wholesalers.
484230................................... Specialized Freight (except Used 39 2 $30.0 million.
Goods) Trucking, Long-Distance.
All Other \117\................. 701 33 .....................................
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total 2,085 100 .....................................
--------------------------------------------------------------------------------------------------------------------------------------------------------
2. Projected Impacts to Affected Small Entities
---------------------------------------------------------------------------
\117\ Size standards vary by NAICS code.
---------------------------------------------------------------------------
The Department has estimated the incremental costs for small
entities from the baseline (i.e., the current practices for complying,
at a minimum, with the H-2A program as currently codified at 20 CFR
part 655, subpart B) to this proposed rule. As discussed in previous
sections, the Department estimates impacts using historical
certification data and therefore simulates the impacts of the proposed
rule to each actual employer in the H-2A program rather than using
representative data for employers within a given sector. The Department
estimated the costs of (a) time to read and review the proposed rule,
(b) the time to send employee lists to labor organizations upon
request, (c) the time required to complete H-2A applications due to
application additions, and (d) wage transfers due to the removal of the
2-week effective date delay from the AEWR publication. The estimates
included in this analysis are consistent with those presented in the
E.O. 12866 section.
The Department estimates that 2,085 unique small entities, would
incur a one-time cost of $54.00 to familiarize themselves with the
rule, an annual cost of $54.00 to send employee contact lists to labor
organizations, and a per application cost of $108.00 to complete H-2A
applications.\118\
---------------------------------------------------------------------------
\118\ Calculation: ($34.00 + $34.00(0.42) + 34.00(0.17)) * 1 =
$54.00. $34.00 (1.59) * 1 = $54.00. $34.00 (1.59) * 2 = $108.00.
---------------------------------------------------------------------------
In addition to the cost of rule familiarization, employee contact
lists, and application additions above, each small entity will have an
increase in the wage costs due to the revisions to the wage structure.
To estimate the wage impact for each small entity we followed the
methodology presented in the E.O. 12866 section. For each certification
of a small entity, the Department calculated total wage impacts of the
proposed rule in CY 2020 and CY 2021 based on each certification for
employment between December 14th and the end of the year, and the
annual increase in AEWR. The Department estimates the wage impact to
all small entities is $826 on average.\119\ Many of the small entities
have no wage impact from the proposed rule because they do not have
workers employed at the end of December. Of small entities with wage
impacts, their average wage impact is $2,567.\120\
---------------------------------------------------------------------------
\119\ In CY 2020 the average wage impact to all small entities
is $620 and in CY 2021 $1,032.
\120\ In CY 2020 the average wage impact small entities with
wage impacts is $1,937 and in CY 2021 $3,191.
---------------------------------------------------------------------------
The Department determined the proportion of each small entity's
total revenue that would be impacted by the costs of the proposed rule
to determine if the proposed rule would have a significant and
substantial impact on small entities. The cost impacts included
estimated first-year costs and the wage impact introduced by the
proposed rule. The Department used a total cost estimate of 3 percent
of revenue as the threshold for a significant individual impact and set
a total of 15 percent of small entities incurring a significant impact
as the threshold for a substantial impact on small entities.
A threshold of 3 percent of revenues has been used in prior
rulemakings for the definition of significant economic impact.\121\
This threshold is also consistent with that sometimes used by other
agencies.\122\
---------------------------------------------------------------------------
\121\ See, e.g., NPRM, Increasing the Minimum Wage for Federal
Contractors, 79 FR 60634 (Oct. 7, 2014) (establishing a minimum wage
for contractors); Final Rule, Discrimination on the Basis of Sex, 81
FR 39108 (June 15, 2016).
\122\ See, e.g., Final Rule, Medicare and Medicaid Programs;
Regulatory Provisions to Promote Program Efficiency, Transparency,
and Burden Reduction; Part II, 79 FR 27106 (May 12, 2014)
(Department of Health and Human Services rule stating that under its
agency guidelines for conducting regulatory flexibility analyses,
actions that do not negatively affect costs or revenues by more than
three percent annually are not economically significant).
---------------------------------------------------------------------------
Exhibit 7 provides a breakdown of small entities by the proportion
of revenue affected by the costs of the proposed rule. Of the 2,085
unique small entities with revenue data in the FY 2020 and FY 2021
certification data, 0.7 percent of employers are estimated to have more
than 3 percent of their total revenue impacted in the first year based
on 2020 data and 2 percent of employers are estimated to have more than
3 percent of their total revenue impacted in the first year based on
2021 data. Based on the findings presented in Exhibit 7, the proposed
rule does not have a significant economic impact on a substantial
number of small H-2A employers.
Exhibit 7--Cost Impacts as a Proportion of Total Revenue for Small Entities
--------------------------------------------------------------------------------------------------------------------------------------------------------
2020, by NAICS Code
Proportion of revenue impacted -----------------------------------------------------------------------------------------------------
111998 444220 561730 445230 All other Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
5%........................................... 1 (0.2%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 6 (0.6%) 7 (0.3%)
-----------------------------------------------------------------------------------------------------
Total >3%..................................... 3 (0.5%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 11 (1.0%) 14 (0.7%)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Proportion of revenue impacted 2021, by NAICS Code
--------------------------------------------------------------------------------------------------------------------------------------------------------
5%............................................... 10 (1.6%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 14 (1.3%) 24 (1.2%)
-----------------------------------------------------------------------------------------------------
Total >3%..................................... 19 (3.1%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 22 (2.1%) 41 (2.0%)
--------------------------------------------------------------------------------------------------------------------------------------------------------
C. Paperwork Reduction Act
In order to meet its statutory responsibilities under the INA, the
Department collects information necessary to render determinations on
requests for temporary agricultural labor certification, which allow
employers to bring foreign labor into the United States on a seasonal
or other temporary basis under the H-2A program. The Department uses
the collected information to determine if employers are meeting their
statutory and regulatory obligations. This information is subject to
the PRA, 44 U.S.C. 3501 et seq. A Federal agency generally cannot
conduct or sponsor a collection of information, and the public is
generally not required to respond to an information collection, unless
it is approved by OMB under the PRA and displays a currently valid OMB
control number. In addition, notwithstanding any other provisions of
law, no person shall generally be subject to penalty for failing to
comply with a collection of information that does not display a valid
control number. See 5 CFR 1320.5(a) and 1320.6. The Department obtained
OMB approval for this information collection under Control Number 1205-
0466.
This information collection request (ICR), concerning OMB Control
Number 1205-0466, includes the collection of information related to the
Department's temporary agricultural labor certification determination
process in the H-2A program. The PRA helps ensure that requested data
is provided in the desired format, reporting burden (time and financial
resources) is minimized, collection instruments are clearly understood,
and the impact of collection requirements on respondents can be
properly assessed.
On October 25, 2018, as part of its ongoing effort to streamline
information collection, clarify statutory and regulatory requirements,
and provide greater oversight in the H-2A program, the Department
published a 60-day notice announcing its proposed revisions to the
collection of information under OMB Control Number 1205-0466 in the
Federal Register in connection with the proposed rule Temporary
Agricultural Employment of H-2A Nonimmigrants in the United States, 84
FR 36168 (July 26, 2019).\123\ See 83 FR 53911. The Department
published a final rule on October 12, 2022.\124\ See 87 FR 61660.
---------------------------------------------------------------------------
\123\ For administrative purposes only, the Department submitted
the July 2019 NPRM's ICR under OMB Control Number 1205-0537. OMB
authorized the NPRM's ICR as OMB Control Number 1205-0537 due to the
Department's separate renewal of the ICR under OMB Control Number
1205-0466, which currently expires on October 31, 2025. In March
2023, the Department submitted a nonmaterial change request to
transfer the burden from this OMB control number (1205-0537) to the
existing OMB control number for the H-2A Foreign Labor Certification
Program (1205-0466) and proceeded to discontinue the use of OMB
Control Number 1205-0537.
\124\ The current Form ETA-790/790A, H-2A Agricultural Clearance
Order, and addenda, provide language to employers to disclose
necessary information regarding the material terms and conditions of
the job opportunity. A copy of Form ETA-790/790A is now integrated
with the Form ETA-9142A for purposes of the Department's temporary
agricultural labor certification determination; the CO reviews the
Form ETA-790/790A in combination with Form ETA-9142A when the
employer submits Form ETA-9142A to the NPC.
---------------------------------------------------------------------------
The Department now proposes additional revisions to this
information collection, covered under OMB Control Number 1205-0466, to
further revise the information collection tools based on regulatory
changes proposed in this NPRM. The additional proposed revisions to
Form ETA-9142A and appendices and Form ETA-790/790A and addenda will
align information collection requirements with the Department's
proposed regulatory framework and continue the ongoing efforts to
provide greater clarity to employers on regulatory requirements,
standardize and streamline information collection to reduce employer
time and burden preparing applications, and promote greater efficiency
and transparency in the review and issuance of labor certification
decisions under the H-2A visa program. For example, the Department
proposes a new Form ETA-9142A, Appendix C, H-2A Owner, Operator,
Manager and Supervisor Information, to implement proposed Sec.
655.130(a), which would require employers to provide the identity,
location, and contact information of all persons who are the owners,
operators, managers, and supervisors of the agricultural business.
Additionally, the Department proposes a new Form ETA-9142A, Appendix D,
Foreign Labor Recruiter Information, to implement proposed Sec.
655.137(b), which would require the employer, and its attorney or agent
(as applicable), to provide the identity and location of all persons
and entities hired by or working for the recruiter or agent, and any of
the agent(s) or employee(s) of those persons and entities, to recruit
prospective foreign workers for the H-2A job opportunities offered by
the employer under an H-2A Application for Temporary Employment
Certification, Form ETA-9142A.
Overview of Information Collections Proposed by This NPRM
Title of Collection: H-2A Temporary Agricultural Employment
Certification Program.
[[Page 63819]]
Type of Review: Revision of a Currently Approved Information
Collection.
OMB Control Number: 1205-0466.
Description: This NPRM proposes to require (1) all agents who file
H-2A applications on behalf of employers to demonstrate that a bona
fide relationship exists between them and the employer; (2) agents who
are Farm Labor Contractors to provide a copy of their Migrant and
Seasonal Agricultural Worker Protection Act (MSPA) Certificate of
Registration; (3) employers to prohibit in a written contract any
foreign labor contractor or recruiter (or any agent of such foreign
labor contractor or recruiter) whom the employer engages, either
directly or indirectly, in international recruitment of H-2A workers,
from seeking or receiving payments or other compensation from
prospective employees; (4) employers to determine the appropriate wage
to offer, advertise, and pay workers to perform the agricultural
services or labor in preparing the Form ETA-790A; (5) that the job
order submitted to the SWA and Department must meet the content
standards set forth in 20 CFR part 653, subpart F, and 20 CFR 655.122;
(6) completion of the Form ETA-9142A when an employer seeks a temporary
labor certification to employ nonimmigrant workers under the H-2A visa
classification; and (7) employers operating as H-2A Labor Contractors
(H-2ALCs) must provide additional documentation at the time of filing
the Form ETA-9142A.
Affected Public: Individuals or Households, Private Sector--
businesses or other for-profits, Government, State, Local, and Tribal
Governments.
Form(s): ETA-9142A, H-2A Application for Temporary Employment
Certification; ETA-9142A--Appendix A; ETA-9142A--Final Determination:
H-2A Temporary Labor Certification Approval; ETA-790/790A, H-2A
Agricultural Clearance Order; ETA-790/790A--Addendum A; ETA-790/790A--
Addendum B; ETA-790/790A--Addendum B; ETA-9142A, Appendix C; ETA-9142A,
Appendix D
Obligation to Respond: Required to Obtain or Retain Benefits.
Estimated Total Annual Respondents: 467,843.
Estimated Total Annual Responses: 14,586.
Estimated Total Annual Burden Hours: 102,864.74.
Estimated Total Annual Other Burden Costs: $0.
Regulations Sections: Subpart F of part 655.
Agency: DOL-ETA.
Title of Collection: Agricultural Recruitment System Forms
Affecting Migrant and Seasonal Farmworkers.
Type of Review: Revision of a Currently Approved Information
Collection.
OMB Control Number: 1205-0134.
Description: This NPRM proposes to revise Agricultural Clearance
Order Form, ETA Form 790B, which will be attached to the Agricultural
Clearance Order Form, ETA Form 790 (see OMB Control Number 1205-0466).
ETA Form 790B is only used for employers who submit clearance orders
requesting U.S. workers for temporary agricultural jobs, which are not
attached to requests for foreign workers through the H-2A visa program
(non-criteria clearance orders). ETA is including the estimated burden
to the public for the completion of ETA Form 790 as it relates to those
employers seeking to place non-criteria job orders through the ARS in
addition to the estimated burden for ETA Form 790B because employers
would fill out both forms.
Affected Public: State Governments, Private Sector: Business or
other for-profits, not-for-profit institutions, and farms.
Obligation to Respond: Required to Obtain or Retain Benefits.
Estimated Total Annual Respondents: 5,112.
Estimated Total Annual Responses: 5,112.
Estimated Total Annual Burden Hours: 2,981.84.
Estimated Total Annual Other Burden Costs: $0.
Regulations Sections: Subpart F of part 653.
Agency: DOL-ETA.
The Department invites comments on all aspects of the PRA analysis.
Comments that are related to a specific form or a specific form's
instructions should identify the form or form's instructions using the
form number (e.g., ETA-9142A or Form ETA-790/790A) and should identify
the particular area of the form for comment. A copy of the proposed
revised information collection tools can be obtained by contacting the
office listed below in the addresses section of this notice. Written
comments must be submitted on or before November 14, 2023.
The Department is particularly interested in comments that:
evaluate whether the proposed collection of information is
necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility;
evaluate the accuracy of the agency's estimate of the
burden of the proposed collection of information, including the
validity of the methodology and assumptions used, and the agency's
estimates associated with the annual burden cost incurred by
respondents and the government cost associated with this collection of
information;
enhance the quality, utility, and clarity of the
information to be collected; and
minimize the burden of the collection of information on
those who are to respond, including through the use of appropriate
automated, electronic, mechanical, or other technological collection
techniques or other forms of information technology, e.g., permitting
electronic submissions of responses.
Comments submitted in response to this notice will be considered
and summarized or included in the ICR the Department will submit to OMB
for approval; they will also become a matter of public record.
Commenters are encouraged not to submit sensitive information (e.g.,
confidential business information or personally identifiable
information such as a Social Security number).
D. Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4,
codified at 2 U.S.C. 1501 et seq.) is intended, among other things, to
curb the practice of imposing unfunded Federal mandates on State,
local, and tribal governments. UMRA requires Federal agencies to assess
a regulation's effects on State, local, and tribal governments, as well
as on the private sector, except to the extent the regulation
incorporates requirements specifically set forth in law. Title II of
the UMRA requires each Federal agency to prepare a written statement
assessing the effects of any regulation that includes any Federal
mandate in a proposed or final agency rule that may result in $100
million or more expenditure (adjusted annually for inflation) in any
one year by State, local, and Tribal governments, in the aggregate, or
by the private sector. A Federal mandate is any provision in a
regulation that imposes an enforceable duty upon State, local, or
tribal governments, or upon the private sector, except as a condition
of Federal assistance or a duty arising from participation in a
voluntary Federal program.
This proposed rule does not result in unfunded mandates for the
public or private sector because private employers' participation in
the program
[[Page 63820]]
is voluntary, and State governments are reimbursed for performing
activities required under the program. The requirements of title II of
the UMRA, therefore, do not apply, and the Department has not prepared
a statement under the UMRA.
E. Executive Order 13132 (Federalism)
This proposed rule would not have substantial direct effects on the
States, on the relationship between the National Government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with section 6
of E.O. 13132,\125\ it is determined that this proposed rule does not
have sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
---------------------------------------------------------------------------
\125\ E.O. 13132, Federalism, 64 FR 43255 (Aug. 10, 1999).
---------------------------------------------------------------------------
F. Executive Order 13175 (Consultation and Coordination With Indian
Tribal Governments)
The Department has reviewed this proposed rule in accordance with
E.O. 13175 \126\ and has determined that it does not have tribal
implications. This proposed rule does not have substantial direct
effects on one or more Indian tribes, on the relationship between the
Federal Government and Indian tribes, or on the distribution of power
and responsibilities between the Federal Government and tribal
governments.
---------------------------------------------------------------------------
\126\ E.O. 13175, Consultation and Coordination with Indian
Tribal Governments, 65 FR 67249 (Nov. 9, 2000).
---------------------------------------------------------------------------
List of Subjects
20 CFR Part 651
Employment, Grant programs--labor.
20 CFR Part 653
Agriculture, Employment, Equal employment opportunity, Grant
programs--labor, Migrant labor, Reporting and recordkeeping
requirements.
20 CFR Part 655
Administrative practice and procedure, Foreign workers, Employment,
Employment and training, Enforcement, Forest and forest products,
Fraud, Health professions, Immigration, Labor, Passports and visas,
Penalties, Reporting and recordkeeping requirements, Unemployment,
Wages, Working conditions.
20 CFR Part 658
Administrative practice and procedure, Employment, Grant programs--
labor, Reporting and recordkeeping requirements.
29 CFR Part 501
Administrative practice and procedure, Agricultural, Aliens,
Employment, Housing, Housing standards, Immigration, Labor, Migrant
labor, Penalties, Transportation, Wages.
For the reasons stated in the preamble, the Department of Labor
proposes to amend 20 CFR parts 651, 653, 655, and 658 and 29 CFR part
501 as follows:
TITLE 20: EMPLOYEES' BENEFITS
Employment and Training Administration
PART 651--GENERAL PROVISIONS GOVERNING THE WAGNER-PEYSER ACT
EMPLOYMENT SERVICE
0
1. The authority citation for part 651 continues to read as follows:
Authority: 29 U.S.C. 49a; 38 U.S.C. part III, 4101, 4211; Secs.
503, 3, 189, Pub. L. 113-128, 128 Stat. 1425 (Jul. 22, 2014).
0
2. Amend Sec. 651.10 by:
0
a. Adding the definition for Agent, Criteria clearance order, and
Discontinuation of services in alphabetical order;
0
b. Revising the definition for Employment-related laws; and
0
c. Adding definitions for Farm labor contractor, Joint employer, Non-
criteria clearance order, Successor in interest, and Week in
alphabetical order.
The additions and revision read as follows:
Sec. 651.10 Definitions of terms used in this part and parts 652, 653,
654, and 658 of this chapter.
* * * * *
Agent means a legal entity or person, such as an association of
employers, or an attorney for an association, that is authorized to act
on behalf of the employer for purposes of recruitment of workers
through the clearance system and is not itself an employer or joint
employer, as defined in this section, with respect to a specific job
order.
* * * * *
Criteria clearance order means a clearance order that is attached
to an application for foreign temporary agricultural workers pursuant
to part 655, subpart B, of this chapter.
* * * * *
Discontinuation of services means that an employer, agent, farm
labor contractor, joint employer, or successor in interest, as defined
in this section, cannot participate in or receive any Wagner-Peyser Act
employment service provided by the ES to employers pursuant to parts
652 and 653 of this chapter.
* * * * *
Employment-related laws means those laws and implementing
regulations that relate to the employment relationship, such as those
enforced by the Department's WHD, OSHA, or by other Federal, State, or
local agencies.
* * * * *
Farm labor contractor means any person or entity, other than an
agricultural employer, an agricultural association, or an employee of
an agricultural employer or agricultural association, who, for any
money or other valuable consideration paid or promised to be paid,
recruits, solicits, hires, employs, furnishes, or transports any
migrant or seasonal farmworker (MSFW).
* * * * *
Joint employer means where two or more employers each have
sufficient definitional indicia of being an employer of a worker as
defined in this section, they are, at all times, joint employers of
that worker. An employer that submits a job order to the ES clearance
system as a joint employer, is a joint employer of any worker placed
and employed on the job order during the period of employment
anticipated, amended, or otherwise extended in accordance with the
order.
* * * * *
Non-criteria clearance order means a clearance order that is not
attached to an application for foreign temporary agricultural workers
pursuant to part 655, subpart B, of this chapter.
* * * * *
Successor in interest--A successor in interest includes any entity
that is controlling and carrying on the business of a previous
employer, agent, or farm labor contractor, regardless of whether such
successor in interest has succeeded to all the rights and liabilities
of the predecessor entity. A successor in interest to an employer,
agent, or farm labor contractor may be held liable for the duties and
obligations of that employer, agent, or farm labor contractor for
purposes of recruitment of workers through the ES clearance system or
enforcement of ES regulations. The following factors, including those
as used under Title VII of the Civil Rights Act and the Vietnam Era
Veterans' Readjustment Assistance Act, may be considered in determining
whether an employer, agent, or farm labor contractor is a successor in
interest; however, these factors are not exhaustive, and no one factor
is dispositive, but all of the circumstances will be considered as a
whole:
[[Page 63821]]
(1) Substantial continuity of the same business operations;
(2) Use of the same facilities;
(3) Continuity of the work force;
(4) Similarity of jobs and working conditions;
(5) Similarity of supervisory personnel;
(6) Whether the former management or owner retains a direct or
indirect interest in the new enterprise;
(7) Similarity in machinery, equipment, and production methods;
(8) Similarity of products and services;
(9) The ability of the predecessor to provide relief; and
(10) For purposes of discontinuation of services, the involvement
of the firm's ownership, management, supervisors, and others associated
with the firm in the violation(s) at issue.
* * * * *
Week means 7 consecutive calendar days.
* * * * *
PART 653--SERVICES OF THE WAGNER-PEYSER ACT EMPLOYMENT SERVICE
SYSTEM
0
3. The authority citation for part 653 continues to read as follows:
Authority: Secs. 167, 189, 503, Public Law 113-128, 128 Stat.
1425 (Jul. 22, 2014); 29 U.S.C. chapter 4B; 38 U.S.C. part III,
chapters 41 and 42.
0
4. Amend Sec. 653.501 by:
0
a. Adding paragraph (b)(4);
0
b. Revising paragraphs (c)(3) introductory text, (c)(3)(i) and (iv),
and (c)(5); and
0
c. Removing and reserving paragraphs (d)(4), (7), and (8).
The addition and revisions read as follows:
Sec. 653.501 Requirements for processing clearance orders.
* * * * *
(b) * * *
(4) Prior to placing a job order into intrastate or interstate
clearance, ES staff must consult the Department's Office of Foreign
Labor Certification and Wage and Hour Division debarment lists, and the
Department's Office of Workforce Investment discontinuation of services
list.
(i) If the employer requesting access to the clearance system is
currently debarred from participating in the H-2A or H-2B foreign labor
certification programs, the SWA must initiate discontinuation of
services pursuant to part 658, subpart F, of this chapter.
(ii) If the employer requesting access to the clearance system is
currently discontinued from receiving ES services under Sec. 658.503
of this chapter by any State, the SWA must not approve the clearance
order for placement into intrastate or interstate clearance.
(iii) For purposes of this paragraph (b)(4), ``employer'' has the
meaning given in Sec. 658.500(b) of this chapter.
(c) * * *
(3) SWAs must ensure that the employer makes the following
assurances in the clearance order:
(i) The employer will provide to workers referred through the
clearance system the number of hours of work cited in paragraph
(c)(1)(iv)(D) of this section for the week beginning with the
anticipated date of need, unless the employer has amended the date of
need at least 10 business days prior to the original date of need
(pursuant to paragraph (c)(3)(iv) of this section).
* * * * *
(iv) The employer will notify the order-holding office or SWA
immediately upon learning that a crop is maturing earlier or later, or
that weather conditions, over-recruitment, or other factors have
changed the terms and conditions of employment. If there is a change to
the date of need, the employer will notify the order-holding office or
SWA, and each worker who has been placed on the clearance order using
the contact information the worker provided to the employer, in writing
(email and other forms of electronic written notification are
acceptable) at least 10 business days prior to the original date of
need. The employer must maintain records of the notification and the
date notification was provided to the order-holding office or SWA and
workers for 3 years. If the employer does not properly notify the
order-holding office or SWA and workers at least 10 business days prior
to the original date of need, the employer will provide housing and
subsistence to all workers placed on the clearance order who are
already traveling to the place of employment, without cost to the
workers, until work commences, and, consistent with paragraph (c)(5) of
this section, will pay the placed workers for the hours listed on the
clearance order, at a rate consistent with paragraph (c)(5) of this
section, for each day work is delayed up to 2 weeks or provide
alternative work.
* * * * *
(5) If there is a change to the anticipated date of need and the
employer fails to notify the order-holding office or SWA and all
workers placed on the clearance order at least 10 business days prior
to the original date of need the employer must provide housing and
subsistence to all workers placed on the clearance order who are
already traveling to the place of employment, without cost to the
workers, until work commences, and must pay the placed workers the
specified hourly rate of pay, or if the pay is piece-rate, the higher
of the Federal or State minimum wage, or an applicable prevailing wage,
or for criteria orders the rate of pay required under part 655, subpart
B, of this chapter for each day work is delayed up to 2 weeks starting
with the originally anticipated date of need or provide alternative
work if such alternative work is stated on the approved clearance
order. If an employer fails to comply under this paragraph (c)(5) the
order-holding office must process the information as an apparent
violation pursuant to Sec. 658.419 of this chapter and may refer an
apparent violation of the employer's payment obligation under this
paragraph (c)(5) to the Department's Wage and Hour Division.
* * * * *
PART 655--TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED
STATES
0
5. The authority citation for part 655 continues to read as follows:
Authority: Section 655.0 issued under 8 U.S.C.
1101(a)(15)(E)(iii), 1101(a)(15)(H)(i) and (ii), 8 U.S.C.
1103(a)(6), 1182(m), (n), and (t), 1184(c), (g), and (j), 1188, and
1288(c) and (d); sec. 3(c)(1), Pub. L. 101-238, 103 Stat. 2099, 2102
(8 U.S.C. 1182 note); sec. 221(a), Pub. L. 101-649, 104 Stat. 4978,
5027 (8 U.S.C. 1184 note); sec. 303(a)(8), Pub. L. 102-232, 105
Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 323(c), Pub. L. 103-206,
107 Stat. 2428; sec. 412(e), Pub. L. 105-277, 112 Stat. 2681 (8
U.S.C. 1182 note); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316
(8 U.S.C. 1182 note); 29 U.S.C. 49k; Pub. L. 107-296, 116 Stat.
2135, as amended; Pub. L. 109-423, 120 Stat. 2900; 8 CFR
214.2(h)(4)(i); 8 CFR 214.2(h)(6)(iii); and sec. 6, Pub. L. 115-218,
132 Stat. 1547 (48 U.S.C. 1806).
Subpart A issued under 8 CFR 214.2(h).
Subpart B issued under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c),
and 1188; and 8 CFR 214.2(h).
Subpart E issued under 48 U.S.C. 1806.
Subparts F and G issued under 8 U.S.C. 1288(c) and (d); sec.
323(c), Pub. L. 103-206, 107 Stat. 2428; and 28 U.S.C. 2461 note,
Pub. L. 114-74 at section 701.
Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b) and
(b)(1), 1182(n), and (t), and 1184(g) and (j); sec. 303(a)(8), Pub.
L. 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 412(e),
Pub. L. 105-277, 112 Stat. 2681; 8 CFR 214.2(h); and 28 U.S.C. 2461
note, Pub. L. 114-74 at section 701.
Subparts L and M issued under 8 U.S.C. 1101(a)(15)(H)(i)(c) and
1182(m); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316 (8 U.S.C.
1182 note); Pub. L. 109-423, 120 Stat. 2900; and 8 CFR 214.2(h).
[[Page 63822]]
0
6. Amend Sec. 655.103 by:
0
a. In paragraph (b), adding definitions for Key service provider and
Labor organization in alphabetical order and removing the definition
for Successor in interest; and
0
b. Adding paragraph (e).
The additions read as follows:
Sec. 655.103 Overview of this subpart and definition of terms.
* * * * *
(b) * * *
Key service provider. A health-care provider; a community health
worker; an education provider; an attorney, legal advocate, or other
legal service provider; a government official, including a consular
representative; a member of the clergy; and any other service provider
to which a worker may need access.
Labor organization. Any organization of any kind, or any agency or
employee representation committee or plan, in which workers participate
and which exists for the purpose, in whole or in part, of dealing with
employers concerning grievances, labor disputes, wages, rates of pay,
hours of employment, or conditions of work.
* * * * *
(e) Definition of single employer for purposes of temporary or
seasonal need and contractual obligations. Separate entities will be
deemed a single employer (sometimes referred to as an ``integrated
employer'') for purposes of assessing temporary or seasonal need and
for enforcement of contractual obligations if they meet the definition
of single employer in this paragraph (e). Under the definition of
single employer, a determination of whether separate entities are a
single employer is not determined by a single factor, but rather the
entire relationship is viewed in its totality. Factors considered in
determining whether two or more entities consist of a single employer
include:
(1) Common management;
(2) Interrelation between operations;
(3) Centralized control of labor relations; and
(4) Degree of common ownership/financial control.
0
7. Add Sec. 655.104 to read as follows:
Sec. 655.104 Successors in interest.
(a) Liability of successors in interest. Where an employer, agent,
or attorney has violated 8 U.S.C. 1188, 29 CFR part 501, or this
subpart, a successor in interest to that employer, agent, or attorney
may be held liable for the duties and obligations of the violating
employer, agent, or attorney in certain circumstances.
(b) Definition of successors in interest. A successor in interest
includes an entity that is controlling and carrying on the business of
a previous employer, agent, or farm labor contractor, regardless of
whether such successor in interest has succeeded to all the rights and
liabilities of the predecessor entity. The following factors, including
those as used under Title VII of the Civil Rights Act and the Vietnam
Era Veterans' Readjustment Assistance Act, may be considered in
determining whether an employer, agent, or attorney is a successor in
interest; however, these factors are not exhaustive, and no one factor
is dispositive, but all of the circumstances will be considered as a
whole:
(1) Substantial continuity of the same business operations;
(2) Use of the same facilities;
(3) Continuity of the work force;
(4) Similarity of jobs and working conditions;
(5) Similarity of supervisory personnel;
(6) Whether the former management or owner retains a direct or
indirect interest in the new enterprise;
(7) Similarity in machinery, equipment, and production methods;
(8) Similarity of products and services;
(9) The ability of the predecessor to provide relief; and
(10) For purposes of debarment, the personal involvement of the
firm's ownership, management, supervisors, and others associated with
the firm in the violation(s) at issue.
(c) Effect of debarment on successors in interest. When an
employer, agent, or attorney is debarred under Sec. 655.182 or 29 CFR
501.20, any successor in interest to the debarred employer, agent, or
attorney is also debarred. No application for H-2A workers may be filed
by or on behalf of a successor in interest to a debarred employer,
agent, or attorney, subject to the term limits set forth in Sec.
655.182(c)(2). If the CO determines that an application for H-2A
workers was filed by or on behalf of a successor in interest to a
debarred employer, agent, or attorney during the period of debarment as
set forth in Sec. 655.182(c)(2), the CO will issue a Notice of
Deficiency (NOD) pursuant to Sec. 655.141 or deny the application
pursuant to Sec. 655.164, as appropriate depending upon the status of
the H-2A application, solely on the basis that the entity is a
successor in interest to a debarred employer, agent, or attorney. If
the OFLC Administrator determines that a certification for H-2A workers
was issued to a successor in interest to a debarred employer, the OFLC
Administrator may revoke the certification pursuant to Sec.
655.181(a). The employer, agent, or attorney may appeal its status as a
successor in interest to the debarred entity, pursuant to the
procedures for appeals of CO determinations at Sec. 655.171.
0
8. Amend Sec. 655.120 by revising paragraphs (a) and (b)(2) and (3) to
read as follows:
Sec. 655.120 Offered wage rate.
(a) Employer obligation. (1) Except for occupations covered by
Sec. Sec. 655.200 through 655.235, to comply with its obligation under
Sec. 655.122(l), an employer must offer, advertise in its recruitment,
and pay a wage that is at least the highest of:
(i) The AEWR;
(ii) A prevailing wage rate, if the OFLC Administrator has approved
a prevailing wage survey for the applicable crop activity or
agricultural activity and, if applicable, a distinct work task or tasks
performed in that activity, meeting the requirements of paragraph (c)
of this section;
(iii) The agreed-upon collective bargaining wage;
(iv) The Federal minimum wage;
(v) The State minimum wage; or
(vi) Any other wage rate the employer intends to pay.
(2) Where the wage rates set forth in paragraph (a)(1) of this
section are expressed in different units of pay, the employer must list
the highest applicable wage rate for each unit of pay in its job order
and must offer and advertise all of these wage rates in its
recruitment. The employer's obligation to pay the highest of these wage
rates is set forth at Sec. 655.122(l)(2).
(b) * * *
(2) The OFLC Administrator will publish a notice in the Federal
Register, at least once in each calendar year, on a date to be
determined by the OFLC Administrator, establishing each AEWR. The
updated AEWRs will be effective as of the date of publication of the
notice in the Federal Register.
(3) If an updated AEWR for the occupational classification and
geographic area is published in the Federal Register during the work
contract, and the updated AEWR is higher than the highest of the
previous AEWR; a prevailing wage for the crop activity or agricultural
activity and, if applicable, a distinct work task or tasks performed in
that activity and geographic area; the agreed-upon collective
bargaining wage; the Federal minimum wage; or the State minimum wage,
the employer must pay at least the updated AEWR beginning on the date
the updated AEWR is published in the Federal Register.
* * * * *
[[Page 63823]]
0
9. Amend Sec. 655.122 by revising paragraphs (h)(4), (i)(1)(i) and
(ii), (l), and (n) to read as follows:
Sec. 655.122 Contents of job offers.
* * * * *
(h) * * *
(4) Employer provided transportation. (i) All employer-provided
transportation must comply with all applicable local, State, or Federal
laws and regulations, and must provide, at a minimum, the same
transportation safety standards, driver's licensure, and vehicle
insurance required under 29 U.S.C. 1841, 29 CFR 500.104 or 500.105, and
29 CFR 500.120 through 500.128.
(ii) The employer shall not operate any employer-provided
transportation that is required by the U.S. Department of
Transportation regulations, including 49 CFR 571.208, to be
manufactured with seat belts, unless all passengers and the driver are
properly restrained by seat belts meeting standards established by the
U.S. Department of Transportation, including 49 CFR 571.209 and
571.210.
(iii) The job offer must include a description of the modes of
transportation (e.g., type of vehicle) that will be used for inbound,
outbound, daily, and any other transportation.
(iv) If workers' compensation is used to cover transportation in
lieu of vehicle insurance, the employer must either ensure that the
workers' compensation covers all travel or that vehicle insurance
exists to provide coverage for travel not covered by workers'
compensation and it must have property damage insurance.
(i) * * *
(1) * * *
(i) For purposes of this paragraph (i)(1), a workday means the
number of hours in a workday as stated in the job order and excludes
the worker's Sabbath and Federal holidays. The employer must offer a
total number of hours to ensure the provision of sufficient work to
reach the three-fourths guarantee. The work hours must be offered
during the work period specified in the work contract.
(ii) In the event the worker begins working later than the
specified beginning date of the contract, the guarantee period begins
with the first workday after the arrival of the worker at the place of
employment, and continues until the last day during which the work
contract and all extensions thereof are in effect.
* * * * *
(l) Rates of pay. Except for occupations covered by Sec. Sec.
655.200 through 655.235, the employer must pay the worker at least the
highest wage rate set forth in Sec. 655.120(a)(1).
(1) The employer must calculate workers' wages using the wage rate
that will result in the highest wages for each worker in each pay
period. When calculating wages based on an hourly wage rate, the
calculation must reflect every hour or portion thereof worked during a
pay period. The wages actually paid cannot be lower than the wages that
would result from the wage rate(s) guaranteed in the job order.
(2) Where the wage rates set forth in Sec. 655.120(a)(1) include
both hourly and non-hourly wage rates, the employer must calculate each
worker's wages, in each pay period, using the highest wage rate for
each unit of pay, and pay the worker the highest of these wages for
that pay period. The wage actually paid cannot be lower than the wages
that would result from the wage rate(s) guaranteed in the job offer.
(3) If the employer requires one or more minimum productivity
standards of workers as a condition of job retention, such standards
must be specified in the job offer and be no more than those required
by the employer in 1977, unless the OFLC Administrator approves a
higher minimum, or, if the employer first applied for temporary
agricultural labor certification after 1977, such standards must be no
more than those normally required (at the time of the first Application
for Temporary Employment Certification) by other employers for the
activity in the area of intended employment.
(4) If applicable, the employer must state in the job order:
(i) That overtime hours may be available;
(ii) The wage rate(s) to be paid for any such overtime hours;
(iii) The circumstances under which the wage rate(s) for overtime
hours will be paid, including, but not limited to, after how many hours
in a day or workweek the overtime wage rate will be paid, and whether
overtime wage rates will vary between places of employment; and
(iv) Where the overtime pay is required by law, the applicable
Federal, State, or local law requiring the overtime pay.
* * * * *
(n) Termination for cause or abandonment of employment. (1) If a
worker is terminated for cause or voluntarily abandons employment
before the end of the contract period, and the employer notifies the
NPC, and DHS in the case of an H-2A worker, in writing or by any other
method specified by the Department in a notice published in the Federal
Register or specified by DHS not later than 2 working days after such
termination for cause or abandonment occurs, the employer will not be
responsible for providing or paying for the subsequent transportation
and subsistence expenses of that worker under this section, and that
worker is not entitled to the three-fourths guarantee described in
paragraph (i) of this section, and, in the case of a U.S. worker, the
employer will not be obligated to contact that worker under Sec.
655.153.
(2) A worker is terminated for cause when the employer terminates
the worker for failure to meet productivity standards or failure to
comply with employer policies or rules.
(i) An employer may terminate a worker for cause only if all of the
following conditions are satisfied:
(A) The employee has been informed (in a language understood by the
worker) of the policy, rule, or productivity standard, or reasonably
should have known of the policy, rule, or productivity standard;
(B) If the termination is for failure to meet a productivity
standard, such standard is disclosed in the job offer;
(C) Compliance with the policy, rule, or productivity standard is
within the worker's control;
(D) The policy, rule, or productivity standard is reasonable and
applied consistently;
(E) The employer undertakes a fair and objective investigation into
the job performance or misconduct; and
(F) The employer engages in progressive discipline to correct the
worker's performance or behavior.
(ii) Progressive discipline is a system of graduated and reasonable
responses to an employee's failure to meet productivity standards or
failure to comply with employer policies or rules. Disciplinary
measures should be proportional to the failure but may increase in
severity if the failure is repeated, and may include immediate
termination for egregious misconduct. Prior to each disciplinary
measure, the employer must notify the worker of the infraction and
allow the worker to present evidence in their defense. Following each
disciplinary measure, except where the appropriate disciplinary measure
is termination, the employer must provide relevant and adequate
instruction to the worker, and the employer must afford the worker
reasonable time to correct the behavior or to meet the productivity
standard following such instruction. The employer must document each
disciplinary measure, evidence the worker presented in their defense,
and
[[Page 63824]]
resulting instruction, and must clearly communicate to the worker that
a disciplinary measure has been imposed.
(iii) A worker is not terminated for cause where the termination
is: contrary to a Federal, State, or local law; for an employee's
refusal to work under conditions that the employee reasonably believes
will expose them or other employees to an unreasonable health or safety
risk; because of discrimination on the basis of race, color, national
origin, age, sex (including sexual orientation or gender identity),
religion, disability, or citizenship; or, where applicable, where the
employer failed to comply with its obligations under Sec.
655.135(m)(4) in a meeting that contributed to the termination.
(iv) The employer bears the burden of demonstrating that any
termination for cause meets the requirements of this paragraph (n)(2).
(3) Abandonment will be deemed to begin after a worker fails to
report to work at the regularly scheduled time for 5 consecutive
working days without the consent of the employer.
(4) The employer is required to maintain records described in this
section for not less than 3 years from the date of the certification.
(i) Records of notification to the NPC, and to DHS in the case of
an H-2A worker, of termination for cause or abandonment.
(ii) Disciplinary records, including each step of progressive
discipline, any evidence the worker presented in their defense, any
investigation related to the termination, and any subsequent
instruction afforded the worker.
(iii) Records indicating the reason(s) for termination of any
worker, including disciplinary records as described in paragraph
(n)(4)(ii) of this section and Sec. 655.167.
* * * * *
0
10. Amend Sec. 655.130 by revising paragraph (a) to read as follows:
Sec. 655.130 Application filing requirements.
* * * * *
(a) What to file. (1) An employer that desires to apply for
temporary agricultural labor certification of one or more nonimmigrant
workers must file a completed Application for Temporary Employment
Certification, all supporting documentation and information required at
the time of filing under Sec. Sec. 655.131 through 655.137, and,
unless a specific exemption applies, a copy of Form ETA-790/790A,
submitted as set forth in Sec. 655.121(a).
(2) The Application for Temporary Employment Certification must
include the employer's legal name, trade name(s), and a valid FEIN as
well as a valid place of business (physical location) in the United
States and a means by which it may be contacted by prospective U.S.
applicants for employment. For each employer of any worker employed
under this application, the Application for Temporary Employment
Certification must include the identity, location, and contact
information of all persons who are the owners of that entity.
(3) For each place of employment identified in the job order, the
Application for Temporary Employment Certification must include the
identity, location, and contact information of all persons and
entities, if different than the employer(s), who are the operators of
the place of employment, and of all persons who manage or supervise any
worker employed under this application, regardless whether those
managers or supervisors are employed by the employer or another entity.
(4) If the information specified in paragraphs (a)(2) and (3) of
this section changes during the work contract period, the employer must
update its records to reflect the change. The employer must continue to
keep this information up to date until the end of the work contract
period, including any extensions. The employer must retain the updated
information in accordance with Sec. 655.167(c)(9) and must make this
updated information available in the event of a post-certification
audit or upon request by the Department. The Department may share the
information it receives from employers with any other Federal agency,
as appropriate for investigative or enforcement purpose, as set forth
in paragraph (f) of this section.
* * * * *
0
11. Amend Sec. 655.132 by revising paragraph (e)(1) to read as
follows:
Sec. 655.132 H-2A labor contractor filing requirements.
* * * * *
(e) * * *
(1) All housing used by workers and owned, operated, or secured by
the fixed-site agricultural business complies with the applicable
standards as set forth in Sec. 655.122(d) and certified by the SWA and
that the fixed-site agricultural business has agreed to comply with the
requirements at Sec. 655.135(n); and
* * * * *
0
12. Amend Sec. 655.135 by revising the introductory text and paragraph
(h) and adding paragraphs (m), (n), (o), and (p) to read as follows:
Sec. 655.135 Assurance and obligations of H-2A employers.
An employer seeking to employ H-2A workers must agree as part of
the Application for Temporary Employment Certification and job offer
that it will abide by the requirements of this subpart and of 29 CFR
part 501 and must make each of the following additional assurances:
* * * * *
(h) No unfair treatment. (1) The employer has not and will not
intimidate, threaten, restrain, coerce, blacklist, discharge or in any
manner discriminate against, and has not and will not cause any person
to intimidate, threaten, restrain, coerce, blacklist, or in any manner
discriminate against, any person who has:
(i) Filed a complaint under or related to 8 U.S.C. 1188 or this
subpart or any Department regulation in this chapter or 29 CFR part 501
promulgated under 8 U.S.C. 1188;
(ii) Instituted or caused to be instituted any proceeding under or
related to 8 U.S.C. 1188 or this subpart or any Department regulation
in this chapter or 29 CFR part 501 promulgated under 8 U.S.C. 1188;
(iii) Testified or is about to testify in any proceeding under or
related to 8 U.S.C. 1188 or this subpart or any Department regulation
in this chapter or 29 CFR part 501 promulgated under 8 U.S.C. 1188;
(iv) Consulted with an employee of a legal assistance program or an
attorney on matters related to 8 U.S.C. 1188 or this subpart or any
Department regulation in this chapter or 29 CFR part 501 promulgated
under 8 U.S.C. 1188;
(v) Consulted with a key service provider on matters related to 8
U.S.C. 1188 or this subpart or any Department regulation in this
chapter or 29 CFR part 501 promulgated under 8 U.S.C. 1188;
(vi) Exercised or asserted on behalf of themself or others any
right or protection afforded by 8 U.S.C. 1188 or this subpart or any
Department regulation in this chapter or 29 CFR part 501 promulgated
under 8 U.S.C. 1188; or
(vii) Filed a complaint, instituted or caused to be instituted any
proceeding, or testified or is about to testify in any proceeding under
or related to any applicable Federal, State, or local laws or
regulations, including safety and health laws.
(2) With respect to any person engaged in agriculture as defined
and applied in 29 U.S.C. 203(f), the employer has not and will not
intimidate, threaten, restrain, coerce, blacklist, discharge, or in any
manner discriminate against, and has not and will not cause any person
to intimidate, threaten, restrain, coerce, blacklist, or in any manner
discriminate against, any
[[Page 63825]]
person who has engaged in activities related to self-organization,
including: any effort to form, join, or assist a labor organization; a
secondary activity such as a secondary boycott or picket; or other
concerted activities for the purpose of mutual aid or protection
relating to wages or working conditions; or refused to engage in any or
all of such activities.
* * * * *
(m) Worker voice and empowerment. With respect to any H-2A worker
or worker in corresponding employment engaged in agriculture as defined
and applied in 29 U.S.C. 203(f), employed at the place(s) of employment
included in the Application for Temporary Employment Certification, the
employer agrees to:
(1) Provide to a requesting labor organization a complete list of
H-2A workers and workers in corresponding employment employed at the
place(s) of employment included in the Application for Temporary
Employment Certification within 1 week of the request. The list will be
in alphabetical order (last name first) and will show the worker's full
name, date of hire, job title, work location address and ZIP code, and
if available, personal email address, personal cellular telephone
number and/or profile name for a messaging application used by the
worker to communicate, home country address with postal code, and home
country telephone number. The list will be provided in an agreed-upon
format and transmitted electronically. The employer must update the
worker contact list upon the labor organization's request, but no more
than once within the period of employment listed in the job order.
(2) Permit workers to designate a representative to attend any
meeting between the employer and a worker where the worker reasonably
believes that the meeting may lead to discipline and permit workers to
receive advice and active assistance from the designated representative
during any such meeting. Where such meetings are held at a worker's
place of employment or other privately owned property, workers'
designated representatives must be given access to the place of
employment or property as needed to attend and participate.
(3)(i) Refrain from engaging in coercive employer speech intended
to oppose workers' protected activity unless the employer:
(A) Explains the purpose of the meeting or communication;
(B) Assures workers that attendance or participation is voluntary,
and that they are free to leave at any time;
(C) Assures workers that nonattendance or nonparticipation will not
result in reprisals (including any loss of pay if the meeting or
discussion occurs during their regularly scheduled working hours); and
(D) Assures workers that attendance or participation will not
result in rewards or benefits (including additional pay for attending
meetings or discussions concerning their rights to engage in protected
activity outside their regularly scheduled working hours).
(ii)(A) Obtain affirmative consent from a worker to talk to that
worker in work areas during working hours concerning their rights to
engage in protected activity; and
(B) Assure the worker that such discussions are entirely voluntary
and that they may end the meeting or discussion at any time without
loss of pay (either by leaving or by asking the employer to stop).
(4) Attest that the employer will either:
(i) Bargain in good faith with a requesting labor organization over
the terms of a proposed labor neutrality agreement, meaning an
agreement in which the employer agrees to not take a position for or
against a labor organizing effort; or
(ii) Not bargain in good faith with a requesting labor organization
over the terms of a proposed labor neutrality agreement and provide an
explanation for why it has declined to do so.
(n) Access to worker housing. (1) Workers residing in employer-
furnished housing must be permitted to invite, or accept at their
discretion, guests to their living quarters and/or the common areas or
outdoor spaces near such housing during time that is outside of the
workers' workday subject only to reasonable restrictions designed to
protect worker safety or prevent interference with other workers'
enjoyment of these areas.
(2) Where employer-furnished housing in which any H-2A worker or
worker in corresponding employment engaged in agriculture as defined
and applied in 29 U.S.C. 203(f) resides is located on property or in a
facility not readily accessible to the public, a labor organization
must not be denied access to the common areas or outdoor spaces near
such housing for the purpose of meeting with workers, provided that
such meetings occur outside of the workers' workday and do not exceed a
total of 10 hours per month.
(o) Passport withholding. During the period of employment that is
the subject of the Application for Temporary Labor Certification, the
employer may not hold or confiscate a worker's passport, visa, or other
immigration or government identification document except where the
worker states in writing that: the worker voluntarily requested that
the employer keep these documents safe, the employer did not direct the
worker to submit such a request, and the worker understands that the
passport, visa, or other immigration or government identification
document will be returned to the worker immediately upon the worker's
request.
(p) Foreign worker recruitment. The employer, and its attorney or
agent, as applicable, must comply with Sec. 655.137(a) by providing a
copy of all agreements with any agent or recruiter whom it engages or
plans to engage in the recruitment of H-2A workers, and the identity
and location of the persons and entities hired by or working for the
agent or recruiter and any of the agents and employees of those persons
and entities, to recruit foreign workers. Pursuant to Sec. 655.130(a),
the agreements and information must be filed with the Application for
Temporary Employment Certification. The employer must update this
documentation in accordance with Sec. 655.137(c).
0
13. Add Sec. 655.137 to read as follows:
Sec. 655.137 Disclosure of foreign worker recruitment.
(a) If the employer engaged an agent or foreign labor recruiter,
directly or indirectly, in international recruitment, the employer, and
its attorney or agent, as applicable, must provide copies of all
contracts and agreements with any agent and/or recruiter, executed in
connection with the job opportunity, as specified in Sec. 655.135(p).
These agreements must contain the contractual prohibition against
charging fees as set forth in Sec. 655.135(k).
(b) The employer, and its attorney or agent, as applicable, must
provide all recruitment-related information required in the Application
for Temporary Employment Certification, as defined in Sec. 655.103(b),
which includes the identity and location of all persons and entities
hired by or working for the recruiter or agent, and any of the agents
or employees of those persons and entities, to recruit prospective
foreign workers for the H-2A job opportunity.
(c) The employer must continue to keep the foreign labor recruiter
information referenced in paragraphs (a) and (b) of this section up to
date until the end of the work contract period. The employer must
retain the updated information in accordance with Sec. 655.167(c)(8)
and must make this
[[Page 63826]]
updated information available in the event of a post-certification
audit or upon request by the Department. The Department may share the
foreign worker recruitment information it receives from employers with
any other Federal agency, as appropriate for investigative or
enforcement purpose, as set forth in Sec. 655.130(f).
(d) The Department of Labor will maintain a publicly available list
of agents and recruiters (including government registration numbers, if
any) who are party to the agreements employers submit, as well as the
persons and entities the employer identified as hired by or working for
the recruiter and the locations in which they are operating.
0
14. Amend Sec. 655.145 by revising the section heading and paragraph
(b) to read as follows:
Sec. 655.145 Pre-determination amendments to applications for
temporary employment certification.
* * * * *
(b) Minor changes to the period of employment. The Application for
Temporary Employment Certification may be amended to make minor changes
in the total period of employment before the CO issues a final
determination. Changes will not be effective until submitted in writing
and approved by the CO. In considering whether to approve the request,
the CO will review the reason(s) for the request, determine whether the
reason(s) are on the whole justified, and take into account the effect
any change(s) would have on the adequacy of the underlying test of the
domestic labor market for the job opportunity. An employer must
demonstrate that the change to the period of employment could not have
been foreseen, and the crops or commodities will be in jeopardy prior
to the expiration of an additional recruitment period. Upon acceptance
of an amendment, the CO will submit to the SWA any necessary
modification to the job order.
0
15. Amend Sec. 655.167 by revising paragraphs (c)(6) and (7) and
adding paragraphs (c)(8) through (12) to read as follows:
Sec. 655.167 Document retention requirements of H-2A employers.
* * * * *
(c) * * *
(6) The work contract or a copy of the Application for Temporary
Employment Certification as defined in Sec. 655.103(b) and specified
in Sec. 655.122(q).
(7) If applicable, records of notice to the NPC and to DHS of the
abandonment of employment or termination for cause of a worker as set
forth in Sec. 655.122(n).
(8) Written contracts with agents or recruiters as specified in
Sec. 655.137(a) and the identities and locations of persons hired by
or working for the agent or recruiter and the agents and employees of
these agents and recruiters, as specified in Sec. 655.137(b).
(9) The identity, location, and contact information of all persons
who are the owners of each employer, as specified in Sec.
655.130(a)(2), and the identity, location, and contact information of
all persons and entities who are the operators of the place of
employment (if different than the employers) and of all persons who
manage or supervise any worker employed under the application, as
specified in Sec. 655.130(a)(3).
(10) If applicable, disciplinary records, including each step of
progressive discipline, any evidence the worker presented in their
defense, any investigation related to the termination, and any
subsequent instruction afforded the worker.
(11) If applicable, records indicating the reason(s) for
termination of any worker, including disciplinary records described in
Sec. 655.122(n)(4)(ii) and this section, relating to the termination
as set forth in Sec. 655.122(n).
(12) If applicable, evidence demonstrating the employer notified
the SWA and each worker of an unforeseen minor delay in the start date
of need, as specified in Sec. 655.175(b)(2)(i).
* * * * *
0
16. Add Sec. 655.175 to read as follows:
Sec. 655.175 Post-certification changes to applications for temporary
employment certification.
(a) No post-certification changes. The Application for Temporary
Employment Certification may not be changed after certification, except
where authorized in this subpart. The employer is obligated to comply
with the terms and conditions of employment contained in the
Application for Temporary Employment Certification and job order with
respect to all workers recruited in connection with its certification.
(b) Post-certification changes to the first date of work. Where the
work under the approved Application for Temporary Employment
Certification will not begin on the first date of need certified and
will be delayed for a period of no more than 14 calendar days, due to
circumstances that could not have been foreseen, and the crops or
commodities will be in jeopardy prior to the expiration of an
additional recruitment period, the employer need not withdraw an
approved Application for Temporary Employment Certification, provided
the employer complies with the obligations at paragraphs (b)(1) and (2)
of this section.
(1) In the event of a minor delay (no more than 14 calendar days),
the employer must provide to all workers who are already traveling to
the place of employment, upon their arrival and without cost to the
workers until work commences, daily subsistence in the same amount
required during travel under Sec. 655.122(h)(1), except for days for
which the worker receives compensation under paragraph (b)(2)(ii) of
this section. The employer must fulfill this subsistence obligation to
the worker no later than the first date the worker would have been paid
had they begun employment on time. Employers must comply with all other
requirements of the certified Application for Temporary Employment
Certification beginning on the first date of need certified, including
but not limited to housing under Sec. 655.122(d).
(2)(i) In the event of a minor delay (no more than 14 calendar
days), the employer must notify the SWA and each worker to be employed
under the approved Application for Temporary Employment Certification
of the delay at least 10 business days before the certified start date
of need. The employer must contact the worker in writing (email and
other forms of electronic and written notification are acceptable),
using the contact information the worker provided to the employer. The
employer must retain evidence of such notification under Sec. 655.167.
(ii) If the employer fails to provide timely notification required
under paragraph (b)(2)(i) of this section to any worker(s), the
employer must pay such worker(s) the same rate of pay required under
this subpart, for each hour of the offered work schedule in the job
order, for each day that work is delayed, for a period up to 14
calendar days. The employer must fulfill this obligation to the worker
no later than the first date the worker would have been paid had they
begun employment on time.
(iii) For purposes of an employer's compliance with the three-
fourths guarantee under Sec. 655.122(i), any compensation paid to a
worker under paragraph (b)(2)(ii) of this section for any workday
included within the time period described in Sec. 655.122(i) will be
considered hours offered to the worker.
0
17. Amend Sec. 655.181 by revising paragraph (a)(1) to read as
follows:
Sec. 655.181 Revocation.
(a) * * *
(1) The issuance of the temporary agricultural labor certification
was not
[[Page 63827]]
justified due to fraud or misrepresentation in the application process,
including because the certification was issued in error to a debarred
employer, including a successor in interest, during the period of
debarment as set forth in Sec. 655.182(c)(2);
* * * * *
0
18. Amend Sec. 655.182 by revising paragraphs (a), (b), (d)(1)(viii),
(f)(1) through (4), and (f)(5)(i) to read as follows:
Sec. 655.182 Debarment.
(a) Debarment of an employer, agent, or attorney. The OFLC
Administrator may debar an employer, agent, or attorney from
participating in any action under 8 U.S.C. 1188, this subpart, or 29
CFR part 501 subject to the time limits set forth in paragraph (c) of
this section, if the OFLC Administrator finds that the employer, agent,
or attorney substantially violated a material term or condition of the
temporary agricultural labor certification, with respect to H-2A
workers; workers in corresponding employment; or U.S. workers
improperly rejected for employment, or improperly laid off or
displaced.
(b) Effect on future applications. (1) No application for H-2A
workers may be filed by or on behalf of a debarred employer, or by an
employer represented by a debarred agent or attorney, subject to the
term limits set forth in paragraph (c)(2) of this section. If such an
application is filed, it will be denied without review.
(2) No application for H-2A workers may be filed by or on behalf of
a successor in interest to a debarred employer, agent, or attorney,
subject to the term limits set forth in paragraph (c)(2) of this
section. If the CO determines that such an application is filed, the CO
will issue a NOD pursuant to Sec. 655.141 or deny the application
pursuant to Sec. 655.164, as appropriate depending upon the status of
the Application for Temporary Employment Certification, solely on the
basis that the entity is a successor in interest to a debarred
employer, agent, or attorney. The employer, agent, or attorney may
appeal its status as a successor in interest to the debarred entity,
pursuant to the procedures for appeals of CO determinations at Sec.
655.171.
* * * * *
(d) * * *
(1) * * *
(viii) A violation of the requirements of Sec. 655.135(j), (k), or
(o);
* * * * *
(f) * * *
(1) Notice of debarment. If the OFLC Administrator makes a
determination to debar an employer, agent, or attorney, the OFLC
Administrator will send the party a Notice of Debarment. The Notice
will state the reason for the debarment finding, including a detailed
explanation of the grounds for and the duration of the debarment, and
it will inform the party subject to the Notice of its right to submit
rebuttal evidence or to request a debarment hearing. If the party does
not file rebuttal evidence or request a hearing within 14 calendar days
of the date of the Notice of Debarment, the Notice will be the final
agency action and the debarment will take effect at the end of the 14-
day period.
(2) Rebuttal. The party who received the Notice of Debarment may
choose to submit evidence to rebut the grounds stated in the Notice
within 14 calendar days of the date the Notice is issued. If rebuttal
evidence is timely filed, the OFLC Administrator will issue a final
determination on the debarment within 30 calendar days of receiving the
rebuttal evidence. If the OFLC Administrator determines that the party
should be debarred, the OFLC Administrator will inform the party of its
right to request a debarment hearing according to the procedures of
paragraph (f)(3) of this section. The party must request a hearing
within 14 calendar days after the date of the OFLC Administrator's
final determination, or the OFLC Administrator's determination will be
the final agency action and the debarment will take effect at the end
of the 14-calendar-day period.
(i) The OFLC Administrator may grant one extension of the time
period for filing rebuttal evidence for any party that has shown good
and substantial cause.
(ii) If the party seeks to request a one-time extension of time to
submit rebuttal evidence, the party must make the request in writing to
the OFLC Administrator and the written request for extension must be
received by the OFLC Administrator within 14 calendar days of the date
the Notice of Debarment is issued. Such a request must be made in
writing to the OFLC Administrator.
(iii) Only requests that include detailed information and
supporting documentation describing the good and substantial cause that
has necessitated the one-time extension request may be granted. Good
and substantial cause may include, but is not limited to, health-
related emergencies, catastrophic fire- or weather-related incidents,
or other similar conditions that are wholly outside the party's control
and hinder the party's ability to respond with rebuttal evidence within
the required timeframe. A denial of a one-time extension request is not
appealable.
(3) Hearing. The recipient of a Notice of Debarment may request a
debarment hearing within 14 calendar days of the date of a Notice of
Debarment or the date of a final determination of the OFLC
Administrator after review of rebuttal evidence submitted pursuant to
paragraph (f)(2) of this section. To obtain a debarment hearing, the
debarred party must, within 14 calendar days of the date of the Notice
or the final determination, file a written request to the Chief
Administrative Law Judge, United States Department of Labor, 800 K
Street NW, Suite 400-N, Washington, DC 20001-8002, and simultaneously
serve a copy to the OFLC Administrator. The debarment will take effect
14 calendar days from the date the Notice of Debarment or final
determination is issued, unless a request for review is properly filed
within 14 calendar days from the issuance of the Notice of Debarment or
final determination. The timely filing of a request for a hearing stays
the debarment pending the outcome of the hearing. Within 10 calendar
days of receipt of the request for a hearing, the OFLC Administrator
will send a certified copy of the ETA case file to the Chief ALJ by
means normally assuring next-day delivery. The Chief ALJ will
immediately assign an ALJ to conduct the hearing. The procedures in 29
CFR part 18 apply to such hearings, except that the request for a
hearing will not be considered to be a complaint to which an answer is
required.
(4) Decision. After the hearing, the ALJ must affirm, reverse, or
modify the OFLC Administrator's determination. The ALJ will prepare the
decision within 60 calendar days after completion of the hearing and
closing of the record. The ALJ's decision will be provided immediately
to the parties to the debarment hearing by means normally assuring
next-day delivery. The ALJ's decision is the final agency action,
unless either party, within 14 calendar days of the ALJ's decision,
seeks review of the decision with the Administrative Review Board
(ARB).
(5) * * *
(i) Any party wishing review of the decision of an ALJ must, within
14 calendar days of the decision of the ALJ, petition the ARB to review
the decision. Copies of the petition must be served on all parties and
on the ALJ. The ARB will decide whether to accept the petition within
30 calendar days of receipt. If the ARB declines to accept the
petition, or if the ARB does not issue a notice accepting a petition
within 30 calendar days after the receipt of a timely filing
[[Page 63828]]
of the petition, the decision of the ALJ will be deemed the final
agency action. If a petition for review is accepted, the decision of
the ALJ will be stayed unless and until the ARB issues an order
affirming the decision. The ARB must serve notice of its decision to
accept or not to accept the petition upon the ALJ and upon all parties
to the proceeding.
* * * * *
0
19. Add Sec. 655.190 to read as follows:
Sec. 655.190 Severability.
If any provision of this subpart is held to be invalid or
unenforceable by its terms, or as applied to any person or
circumstance, or stayed pending further agency action, the provision
shall be construed so as to continue to give the maximum effect to the
provision permitted by law, unless such holding is one of total
invalidity or unenforceability, in which event the provision or sub-
provision shall be severable from this subpart and shall not affect the
remainder thereof.
0
20. Amend Sec. 655.210 by adding paragraph (g)(3) to read as follows:
Sec. 655.210 Contents of herding and range livestock job orders.
* * * * *
(g) * * *
(3) If applicable, the employer must state in the job order:
(i) That overtime hours may be available;
(ii) The wage rate(s) to be paid for any such overtime hours;
(iii) The circumstances under which the wage rate(s) for overtime
hours will be paid, including, but not limited to, after how many hours
in a day or workweek the overtime wage rate will be paid, and whether
overtime wage rates will vary between-place(s) of employment; and
(iv) Where the overtime pay is required by law, the applicable
Federal, State, or local law requiring the overtime pay.
* * * * *
PART 658--ADMINISTRATIVE PROVISIONS GOVERNING THE WAGNER-PEYSER ACT
EMPLOYMENT SERVICE
0
21. The authority citation for part 658 continues to read as follows:
Authority: Secs. 189, 503, Pub. L. 113-128, 128 Stat. 1425
(Jul. 22, 2014); 29 U.S.C. chapter 4B.
0
22. Revise Sec. 658.500 to read as follows:
Sec. 658.500 Scope and purpose of subpart.
(a) This subpart contains the regulations governing the
discontinuation of services provided by the ES to employers pursuant to
parts 652 and 653 of this chapter.
(b) For purposes of this subpart only, where the term ``employer''
is used, it refers to employers, agents, farm labor contractors, joint
employers, and successors in interest to any employer, agent, farm
labor contractor, or joint employer, as defined at Sec. 651.10 of this
chapter.
0
23. Amend Sec. 658.501 by:
0
a. Revising paragraphs (a)(1), (2), and (4) through (8) and (b); and
0
b. Removing paragraph (c).
The revisions read as follows:
Sec. 658.501 Basis for discontinuation of services.
(a) * * *
(1) Submit and refuse to correct or withdraw job orders containing
terms and conditions which are contrary to employment-related laws;
(2) Submit job orders and refuse to provide assurances, or refuse
to withdraw job orders that do not contain assurances, required
pursuant to the Agricultural Recruitment System for U.S. Workers at
part 653, subpart F, of this chapter;
* * * * *
(4) Are found by a final determination by an appropriate
enforcement agency to have violated any employment-related laws and
notification of this final determination has been provided to the
Department or the SWA by that enforcement agency, including those who
are currently debarred from participating in the H-2A or H-2B foreign
labor certification programs pursuant to Sec. 655.73 or Sec. 655.182
of this chapter or 29 CFR 501.20 or 503.24;
(5) Are found to have violated ES regulations pursuant to Sec.
658.411 or Sec. 658.419;
(6) Refuse to accept qualified workers referred through the
clearance system for criteria clearance orders filed pursuant to part
655, subpart B, of this chapter;
(7) Refuse to cooperate in field checks conducted pursuant to Sec.
653.503 of this chapter; or
(8) Repeatedly cause the initiation of the procedures for
discontinuation of services pursuant to paragraphs (a)(1) through (7)
of this section.
(b) If an ES office or SWA has information that an employer
participating in the ES may not have complied with the terms of its
current or prior temporary labor certification, under, for example the
H-2A and H-2B visa programs, SWA officials must determine whether there
is a basis under paragraph (a) of this section for which the SWA must
initiate procedures for discontinuation of services. SWA officials must
simultaneously notify the OFLC National Processing Center of the
alleged non-compliance.
0
24. Revise Sec. 658.502 to read as follows:
Sec. 658.502 Notification to employers of intent to discontinue
services.
(a) Except as provided in paragraph (b) of this section, where the
SWA determines that there is an applicable basis for discontinuation of
services under Sec. 658.501(a)(1) through (8), the SWA must notify the
employer in writing that it intends to discontinue the provision of ES
services in accordance with this section and must provide the reasons
for proposing discontinuation of services.
(1) Where the decision is based on Sec. 658.501(a)(1), the SWA
must specify the date the order was submitted, the job order involved,
and the terms and conditions contrary to employment-related laws and
the laws involved. The SWA must notify the employer in writing that all
ES services will be terminated unless the employer within 20 working
days:
(i) Provides adequate evidence that the terms and conditions are
not contrary to employment-related laws; or
(ii) Withdraws the terms and conditions and resubmits the job order
in compliance with all employment-related laws; or
(iii) If the job is no longer available, makes assurances that all
future job orders submitted will be in compliance with all employment-
related laws.
(2) Where the decision is based on Sec. 658.501(a)(2), the SWA
must specify the date the order was submitted, the job order involved,
the assurances involved, and explain how the employer refused to
provide the assurances. The SWA must notify the employer that all ES
services will be terminated unless the employer within 20 working days:
(i) Resubmits the order with the required assurances; or
(ii) If the job is no longer available, makes assurances that all
future job orders submitted will contain all assurances required
pursuant to the Agricultural Recruitment System for U.S. Workers at
part 653, subpart F, of this chapter.
(3) Where the decision is based on Sec. 658.501(a)(3), the SWA
must specify the terms and conditions the employer misrepresented or
the assurances with which the employer did not fully comply, and
explain how the employer misrepresented the terms or conditions or
failed to comply with assurances on the job order. The SWA must notify
the
[[Page 63829]]
employer that all ES services will be terminated unless the employer
within 20 working days:
(i) Provides adequate evidence that terms and conditions of
employment were not misrepresented; or
(ii) Provides adequate evidence that there was full compliance with
the assurances made on the job orders; or
(iii) Provides adequate evidence that it has resolved the
misrepresentation of terms and conditions of employment or
noncompliance with assurances and provides adequate assurance that
specifications on future orders will accurately represent the terms and
conditions of employment and that there will be full compliance with
all job order assurances.
(4) Where the decision is based on Sec. 658.501(a)(4), the SWA
must provide evidence of the final determination, including debarment.
For final determinations, the SWA must specify the enforcement agency's
findings of facts and conclusions of law as to the employment-related
law violation(s). For final debarment orders, the SWA must specify the
time period for which the employer is debarred from participating in
one of the Department's foreign labor certification programs. The SWA
must notify the employer that all ES services will be terminated unless
the employer within 20 working days:
(i) Provides adequate evidence that the enforcement agency's
determination is not final because, for example, it has been stayed
pending appeal, overturned, or reversed; or
(ii) Provides adequate evidence that, as applicable:
(A) The Department's debarment is no longer in effect; and
(B) The employer has completed all required actions imposed by the
enforcement agency as a consequence of the violation, including payment
of any fines or restitution to remediate the violation; and
(iii) Provides assurances that any policies, procedures, or
conditions responsible for the violation have been corrected and the
same or similar violations are not likely to occur in the future.
(5) Where the decision is based on Sec. 658.501(a)(5), the SWA
must specify which ES regulation, as defined in Sec. 651.10, the
employer has violated and must provide basic facts to explain the
violation. The SWA must notify the employer that all ES services will
be terminated unless the employer within 20 working days:
(i) Provides adequate evidence that the employer did not violate ES
regulations; or
(ii) Provides adequate evidence that appropriate restitution has
been made or remedial action taken; and
(iii) Provides assurances that any policies, procedures, or
conditions responsible for the violation have been corrected and the
same or similar violations are not likely to occur in the future.
(6) Where the decision is based on Sec. 658.501(a)(6), the SWA
must indicate that the employer filed the job order pursuant to part
655, subpart B, of this chapter, and specify the name of each worker
the SWA referred and the employer did not accept. The SWA must notify
the employer that all ES services will be terminated unless the
employer within 20 working days:
(i) Provides adequate evidence that the workers were accepted; or
(ii) Provides adequate evidence that the workers were not available
to accept the job; or
(iii) Provides adequate evidence that the workers were not
qualified; or
(iv) Provides adequate evidence that the workers were referred
after the time period described in Sec. 655.135(d) of this chapter
elapsed; or
(v) Provides adequate evidence that:
(A) After refusal, the employer accepted the qualified workers
referred; or
(B) Appropriate restitution has been made or other remedial action
taken; and
(vi) Provides assurances that qualified workers referred in the
future will be accepted or, if the time period described in Sec.
655.135(d) of this chapter has lapsed, provides assurances that
qualified workers referred on all future criteria clearance orders will
be accepted.
(7) Where the decision is based on Sec. 658.501(a)(7), the SWA
must explain how the employer did not cooperate in the field check. The
SWA must notify the employer that all ES services will be terminated
unless the employer within 20 working days:
(i) Provides adequate evidence that it did cooperate; or
(ii) Immediately cooperates in the conduct of field checks; and
(iii) Provides assurances that it will cooperate in future field
checks.
(8) Where the decision is based on Sec. 658.501(a)(8), the SWA
must list and provide basic facts explaining the prior instances where
the employer has repeatedly caused initiation of discontinuation
proceedings. The SWA must notify the employer that all ES services will
be terminated unless the employer within 20 working days provides
adequate evidence that the SWA's initiation of discontinuation in prior
proceedings was unfounded.
(b) SWA officials must discontinue services immediately in
accordance with Sec. 658.503, without providing the notice described
in this section, if an employer has met any of the bases for
discontinuation of services under Sec. 658.501(a) and, in the judgment
of the State Administrator, exhaustion of the administrative procedures
set forth in this section would cause substantial harm to workers.
0
25. Revise Sec. 658.503 to read as follows:
Sec. 658.503 Discontinuation of services.
(a) Within 20 working days of receipt of the employer's response to
the SWA's notification under Sec. 658.502(a), or at least 20 working
days after the SWA's notification has been received by the employer if
the SWA does not receive a response, the SWA must notify the employer
in writing of its final determination. If the SWA determines that the
employer did not provide a satisfactory response in accordance with
Sec. 658.502(a), the SWA's notification must specify the reasons for
its determination and state that the discontinuation of services is
effective 20 working days from the date of the notification. The
notification must also state that the employer may request
reinstatement or appeal the determination by requesting a hearing
pursuant to Sec. 658.504, and that a request for a hearing stays the
discontinuation pending the outcome of the hearing. If the employer
does not request a hearing, the SWA must also notify the ETA Office of
Workforce Investment of any final determination to discontinue ES
services within 10 working days of the date the determination becomes
effective.
(b) Where the SWA discontinues services immediately under Sec.
658.502(b), the SWA's written notification must specify the facts
supporting the applicable basis for discontinuation under Sec.
658.501(a), the reasons that exhaustion of the administrative
procedures would cause substantial harm to workers, and that services
are discontinued as of the date of the notification. The notification
must also state that the employer may request reinstatement or appeal
the determination by requesting a hearing pursuant to Sec. 658.504,
and that a request for a hearing relating to immediate discontinuation
does not stay the discontinuation pending the outcome of the hearing.
Within 10 working days of the date of issuance, the SWA must also
notify the ETA Office of Workforce
[[Page 63830]]
Investment of any determination to immediately discontinue ES services.
(c) If the SWA discontinues services to an employer that is subject
to Federal Contractor Job Listing Requirements, the SWA must notify the
ETA regional office immediately.
(d) If the SWA discontinues services to an employer based on a
complaint filed pursuant to Sec. 658.411, the SWA must notify the
complainant of the employer's discontinuation of services.
(e) If the SWA discontinues services to an employer, the employer
cannot participate in or receive Wagner-Peyser Act ES Services provided
by the ES, including by any SWA, to employers pursuant to parts 652 and
653 of this chapter. From the date of discontinuance, the SWA that
issued the determination must remove the employer's active job orders
from the clearance system. No SWA may process any future job orders
from the employer or provide any other services pursuant to parts 652
and 653 of this chapter to the employer unless services have been
reinstated under Sec. 658.504.
(f) SWAs must continue to provide the full range of ES and other
appropriate services to workers whose employers experience
discontinuation of services under this subpart.
0
26. Revise Sec. 658.504 to read as follows:
Sec. 658.504 Reinstatement of services.
(a) Where the SWA discontinues services to an employer under Sec.
658.502(b) or Sec. 658.503, the employer may submit a written request
for reinstatement of services to the SWA or may, within 20 working days
of receiving notice of the SWA's final determination, appeal the
discontinuation by submitting a written request for a hearing.
(b) If the employer submits a written request for reinstatement of
services to the SWA:
(1) Within 20 working days of receipt of the employer's request for
reinstatement, the SWA must notify the employer of its decision to
grant or deny the request. If the SWA denies the request for
reinstatement, it must specify the reasons for the denial and notify
the employer that it may request a hearing, in accordance with
paragraph (c) of this section, within 20 working days.
(2) The SWA must reinstate services if:
(i) The employer provides adequate evidence that the policies,
procedures, or conditions responsible for the previous discontinuation
of services have been corrected and that the same or similar
circumstances are not likely to occur in the future; and
(ii) The employer provides adequate evidence that it has responded
to all findings of an enforcement agency, SWA, or ETA, including
payment of any fines or restitution to remediate the violation, which
were the basis of the discontinuation of services, if applicable.
(c) If the employer submits a timely request for a hearing:
(1) The SWA must follow the procedures set forth in Sec. 658.417.
(2) The SWA must reinstate services to the employer if ordered to
do so by a State hearing official, Regional Administrator, or Federal
Administrative Law Judge as a result of a hearing offered pursuant to
paragraph (c)(1) of this section.
(d) Within 10 working days of the date of issuance, the SWA must
notify the ETA Office of Workforce Investment of any determination to
reinstate ES services, or any decision on appeal upholding a SWA's
determination to discontinue services.
TITLE 29: LABOR
Wage and Hour Division
PART 501--ENFORCEMENT OF CONTRACTUAL OBLIGATIONS FOR TEMPORARY
ALIEN AGRICULTURAL WORKERS ADMITTED UNDER SECTION 218 OF THE
IMMIGRATION AND NATIONALITY ACT
0
27. The authority citation for part 501 continues to read as follows:
Authority: 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c), and 1188; 28
U.S.C. 2461 note; and sec. 701, Pub. L. 114-74, 129 Stat. 584.
0
28. Amend Sec. 501.3 by:
0
a. In paragraph (a), adding the definitions of Key service provider and
Labor organization in alphabetical order and removing the definition of
Successor in interest; and
0
b. Adding paragraph (d).
The additions read as follows:
Sec. 501.3 Definitions.
(a) * * *
Key service provider. A health-care provider; a community health
worker; an education provider; an attorney, legal advocate, or other
legal service provider; a government official, including a consular
representative; a member of the clergy; and any other service provider
to which a worker may need access.
Labor organization. Any organization of any kind, or any agency or
employee representation committee or plan, in which workers participate
and which exists for the purpose, in whole or in part, of dealing with
employers concerning grievances, labor disputes, wages, rates of pay,
hours of employment, or conditions of work.
* * * * *
(d) Definition of single employer for purposes of temporary or
seasonal need and contractual obligations. Separate entities will be
deemed a single employer (sometimes referred to as an ``integrated
employer'') for purposes of assessing temporary or seasonal need and
for enforcement of contractual obligations if they meet the definition
of single employer in this paragraph (d). Under the definition of
single employer, a determination of whether separate entities are a
single employer is not determined by a single factor, but rather the
entire relationship is viewed in its totality. Factors considered in
determining whether two or more entities consist of a single employer
include:
(1) Common management;
(2) Interrelation between operations;
(3) Centralized control of labor relations; and
(4) Degree of common ownership/financial control.
0
29. Amend Sec. 501.4 by revising paragraph (a) to read as follows:
Sec. 501.4 Discrimination prohibited.
(a)(1) A person may not intimidate, threaten, restrain, coerce,
blacklist, discharge, or in any manner discriminate against any person
who has:
(i) Filed a complaint under or related to 8 U.S.C. 1188 or this
part;
(ii) Instituted or caused to be instituted any proceedings related
to 8 U.S.C. 1188, 20 CFR part 655, subpart B, or this part;
(iii) Testified or is about to testify in any proceeding under or
related to 8 U.S.C. 1188, 20 CFR part 655, subpart B, or this part;
(iv) Consulted with an employee of a legal assistance program or an
attorney on matters related to 8 U.S.C. 1188, 20 CFR part 655, subpart
B, or this part;
(v) Consulted with a key service provider on matters related to 8
U.S.C. 1188, 20 CFR part 655, subpart B, or this part;
(vi) Exercised or asserted on behalf of themself or others any
right or protection afforded by 8 U.S.C. 1188, 20 CFR part 655, subpart
B, or this part; or
(vii) Filed a complaint, instituted or caused to be instituted any
proceeding, or testified or is about to testify in any proceeding under
or related to any applicable Federal, State, or local laws or
regulations, including safety and health laws.
(2) With respect to any person engaged in agriculture as defined
and
[[Page 63831]]
applied in 29 U.S.C. 203(f), a person may not intimidate, threaten,
restrain, coerce, blacklist, discharge or in any manner discriminate
against, and may not cause any person to intimidate, threaten,
restrain, coerce, blacklist, or in any manner discriminate against, any
person who has engaged in activities related to self-organization,
including: any effort to form, join, or assist a labor organization; a
secondary activity such as a secondary boycott or picket; or other
concerted activities for the purpose of mutual aid or protection
relating to wages or working conditions; or refused to engage in any or
all of such activities except to the extent that such right may be
affected by an agreement requiring membership in a labor organization
as a condition of employment.
* * * * *
0
30. Add Sec. 501.10 to subpart A to read as follows:
Sec. 501.10 Severability.
If any provision of this part is held to be invalid or
unenforceable by its terms, or as applied to any person or
circumstance, or stayed pending further agency action, the provision
shall be construed so as to continue to give the maximum effect to the
provision permitted by law, unless such holding is one of total
invalidity or unenforceability, in which event the provision or sub-
provision shall be severable from this part and shall not affect the
remainder thereof.
0
31. Amend Sec. 501.20 by revising paragraphs (a), (b), (d)(1)(viii),
and (e) and adding paragraph (j) to read as follows:
Sec. 501.20 Debarment and revocation.
(a) Debarment of an employer, agent, or attorney. The WHD
Administrator may debar an employer, agent, or attorney from
participating in any action under 8 U.S.C. 1188, 20 CFR part 655,
subpart B, or this part, subject to the time limits set forth in
paragraph (c) of this section, if the WHD Administrator finds that the
employer, agent, or attorney substantially violated a material term or
condition of the temporary agricultural labor certification, with
respect to H-2A workers, workers in corresponding employment, or U.S.
workers improperly rejected for employment, or improperly laid off or
displaced, by issuing a Notice of Debarment.
(b) Effect on future applications. (1) No application for H-2A
workers may be filed by or on behalf of a debarred employer, or by an
employer represented by a debarred agent or attorney, subject to the
time limits set forth in paragraph (c)(2) of this section. If such an
application is filed, it will be denied without review.
(2) No application for H-2A workers may be filed by or on behalf of
a successor in interest, as defined in 20 CFR 655.104, to a debarred
employer, agent, or attorney, subject to the term limits set forth in
paragraph (c)(2) of this section. If the CO determines that such an
application is filed, the CO will issue a Notice of Deficiency (NOD)
pursuant to 20 CFR 655.141 or deny the application pursuant to 20 CFR
655.164, as appropriate depending upon the status of the Application
for Temporary Employment Certification, solely on the basis that the
entity is a successor in interest to a debarred employer, agent, or
attorney. The employer, agent, or attorney may appeal its status as a
successor in interest to the debarred entity, pursuant to the
procedures for appeals of CO determinations at 20 CFR 655.171.
* * * * *
(d) * * *
(1) * * *
(viii) A violation of the requirements of 20 CFR 655.135(j), (k),
or (o);
* * * * *
(e) Procedural requirements. The Notice of Debarment must be in
writing, must state the reason for the debarment finding, including a
detailed explanation of the grounds for and the duration of the
debarment, must identify appeal opportunities under Sec. 501.33 and a
timeframe under which such rights must be exercised and must comply
with Sec. 501.32. The debarment will take effect 14 calendar days from
the date the Notice of Debarment is issued, unless a request for review
is properly filed within 14 calendar days from the issuance of the
Notice of Debarment. The timely filing of an administrative appeal
stays the debarment pending the outcome of the appeal as provided in
Sec. 501.33(d).
* * * * *
(j) Successors in interest. When an employer, agent, or attorney is
debarred under this section, any successor in interest to the debarred
employer, agent, or attorney is also debarred, regardless of whether
the successor is named or not named in the notice of debarment issued
under paragraph (a) of this section.
0
32. Amend Sec. 501.33 by revising paragraphs (a), (b)(2), and (c) to
read as follows:
Sec. 501.33 Request for hearing.
(a)(1) Any person desiring review of a determination referred to in
Sec. 501.32, including judicial review, except any determination that
includes debarment, shall make a written request for an administrative
hearing to the official who issued the determination at the WHD address
appearing on the determination notice, no later than 30 calendar days
after the date of issuance of the notice referred to in Sec. 501.32.
(2) Any person desiring review of any determination that includes
debarment, including judicial review, shall make a written request for
an administrative hearing to the official who issued the determination
at the WHD address appearing on the determination notice, no later than
14 calendar days after the date of issuance of the notice referred to
in Sec. 501.32.
(b) * * *
(2) Specify the issue or issues stated in the notice of
determination giving rise to such request (any issues not raised in the
request ordinarily will be deemed waived);
* * * * *
(c) The request for such hearing must be received by the official
who issued the determination, at the WHD address appearing on the
determination notice, within the time set forth in paragraph (a)(1) or
(2) of this section. Requests may be made by certified mail or by means
normally assuring overnight delivery.
* * * * *
0
33. Amend Sec. 501.42 by revising paragraph (a) to read as follows:
Sec. 501.42 Procedures for initiating and undertaking review.
(a) A respondent, WHD, or any other party wishing review, including
judicial review, of a decision of an ALJ not including debarment must,
within 30 calendar days of the decision of the ALJ, petition the ARB to
review the decision. A respondent, WHD, or any other party wishing
review, including judicial review, of a decision of an ALJ involving
debarment must, within 14 calendar days of the decision of the ALJ,
petition the ARB to review the decision. Copies of the petition must be
served on all parties and on the ALJ. If the ARB does not issue a
notice accepting a petition for review of any decision (whether
involving debarment, or not) within 30 calendar days after receipt of a
timely filing of the petition, the decision of the ALJ will be deemed
the final agency action. If within 30 calendar days of the date of a
decision not involving debarment, or within 14 calendar days of the
date of a decision involving debarment no petition has
[[Page 63832]]
been received, the decision of the ALJ will be deemed the final agency
action.
* * * * *
Julie A. Su,
Acting Secretary of Labor.
[FR Doc. 2023-19852 Filed 9-13-23; 8:45 am]
BILLING CODE 4510-FP-P; 4510-FR-P; 4510-27-P
