Updated: Nov 5, 2020
By Nicole Cook
This article is not a substitute for legal advice. See here for the site’s reposting policy.
With all eyes on the Farm Bill and the government shut down, you may have missed that on December 26, 2018, the Employment and Training Administration (ETA) of the Department of Labor (DOL) issued a Federal Register Notice announcing the new 2019 Adverse Effect Wage Rates (AEWRs) in each state. The new AEWRs apply to the employment of temporary or seasonal nonimmigrant foreign workers (H–2A workers) to perform agricultural labor or services other than herding or production of livestock on the range, and they are effective starting tomorrow, January 9, 2019.
Double check to make sure you’re complying with the new 2019 AEWRs.
AEWRs are the minimum hourly wage rates that the DOL has determined must be offered and paid by employers to H–2A workers and workers in corresponding employment for a particular occupation and area, so that the wages of similarly-employed U.S. workers will not be negatively impacted.
DOL’s H-2A regulation 20 CFR 655.122 provides that employers must pay their H-2A workers and workers in corresponding employment at least the highest of: (i) the current AEWR; (ii) the prevailing hourly wage rate; (iii) the prevailing piece rate; (iv) the agreed-upon collective bargaining wage rate; or (v) the Federal or State minimum wage rate in effect at the time the work is performed.
The new 2019 AEWR for Maryland is $13.15 per hour. The current federal minimum wage is $7.25 per hour, and Maryland’s current state-wide minimum wage is $10.10 per hour—both well below the new 2019 AEWR. And, although Maryland’s Prince George’s County does provide workers a higher minimum wage of $11.50 per hour, and Montgomery County provides workers a minimum wage of $12.00–$12.25 per hour, those rates are also both still below the new 2019 AEWR.
Failing to meet any of the requirements of the H-2A visa program can expose your farm to significant penalties.
DOL’s Wage and Hour Division (WHD) has a primary role in investigating and enforcing the terms and conditions of employment. WHD is responsible for enforcing the contractual obligations employers have toward employees, and may assess civil money penalties and recover unpaid wages. Administrative proceedings and/or injunctive actions through Federal courts may be instituted to compel compliance with an employer’s contractual obligations to employees.
ETA has the authority to audit applications for which certifications have been granted and may refer its audit findings to the Department of Homeland Security or another appropriate enforcement agency. ETA may revoke a temporary agricultural labor certification if the employer substantially violated a material term or condition of the certification, if fraud or misrepresentation was found in the application, or if the employer failed to cooperate with a DOL investigation or audit.
Both WHD and ETA can debar an employer or any successor-in-interest to that employer from receiving future labor certifications for up to three years if the employer substantially violated a material term or condition of its temporary labor certification.
Keep in mind that although foreign workers employed under the H-2A program are not covered under the Migrant and Seasonal Agricultural Worker Protection Act, various other laws, such as workers’ compensation, tax (unemployment insurance, local, state, and Federal), the Fair Labor Standards Act, and the Family and Medical Leave Act may apply to the employment of these workers. See the Maryland Agriculture Legal Education Initiative’s Farm Labor publications and check this blog post on the legal responsibilities when hiring migrant, seasonal and H-2A visa workers for more information.
H-2A Compliance assistance is available.
Copies of the application forms, regulations, and relevant directives may be obtained from ETA’s national office. Copies of WHD publications may be obtained from the Wage and Hour Division Web site or by contacting the local Wage and Hour Division office.
DOL provides employers, workers, and others with information and assistance on how to comply with the Immigration and Nationality Act. Among the many resources available are Section H-2A of the Immigration Act, which provides general information concerning the application of the H-2A requirements to the agricultural industry.
You can also find a list of attorneys who practice in labor and employment law by looking through the Maryland State Bar Association Agriculture Law Section’s Legal Services Directory, which is available on ALEI’s webpage under Legal Needs and Resources.