New Department of Labor Rule Improves Protection for H-2A Workers


Image of migrant workers in a field working Image is by USDA
Image of migrant workers in a field working Image is by USDA

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For many years, farmworkers' advocacy groups have claimed that H-2A workers need more protection. The H-2A program helps American farmers unable to hire qualified domestic workers to fill employment gaps by hiring guest workers from other countries if this employment will not adversely affect wages or working conditions of domestic workers.


The U.S. Department of Labor (DOL) published a Final Rule to “Improve H-2A Visa Program” in the Federal Register on October 12, 2022, effective November 14, 2022. This rule was originally proposed as a draft rule in 2019 during the Trump administration. After thousands of comments from different advocacy groups, agencies, and other officials, the 2022 final rule kept some parts of the proposed 2019 rule and changed other parts. The new rule modernizes the H-2A regulations and improves the program’s protections and enforcement against fraud and abuse.


DOL Secretary Marty Walsh, said, “By improving H-2A program regulations, we are strengthening worker protections, meeting our core mission.”


The provisions adopted in this final rule tighten protections for H-2A workers. These provisions include:

  • Modernizing employer processing time by mandatory electronic filing for most applications, helping minimize delay and administrative costs for the employer and DOL;

  • -Improving safety and health protections for workers housed in rental or public accommodations;

  • Updating surety bond requirements for farm labor contractors for better accountability;

  • Permitting appropriate inspecting authorities to inspect and certify employer-provided housing for a period of up to 24 months under certain circumstances;

  • Clarifying the joint-employer definition in the filing of Applications for Temporary Employment Certification; and

  • Modernizing the methodology for determining the prevailing wage allows state workforce agencies to produce more prevailing wage findings.

The new rule will ensure that employers can fill the labor gap by employing foreign agricultural workers while maintaining the program's strong protections by enhancing robust enforcement against program fraud and abuse that undermine the rights and interests of workers.

Resources:

https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/H-2A-2020-final-rule-1_8_2021-Clean-with-disclaimer.pdf

https://www.dol.gov/newsroom/releases/whd/whd20221006#:~:text=Throughout%20the%20U.S.%2C%20Wage%20and,for%20more%20than%207%2C000%20workers.