May 2, 2024

New H-2A worker protections will start this year

The Department of Labor (DOL) issued a final rule on H-2A temporary worker protections that include allowing employees to invite labor and legal organizations to employer-provided housing.

The rule, “Improving Protections for Workers in Temporary Agricultural Employment in the United States,” becomes effective June 28, although any H-2A applications filed before Aug. 28 will be covered by current regulations.

The new rule protects workers’ choice to engage in self-organization and to decline attending employer-sponsored “captive audience” meetings where employers discourage workers from joining unions.

“This rule ensures farmworkers employed through the H-2A program are treated fairly, have a voice in their workplace and are able to perform their work safely,” Julie Su, acting labor secretary, said in a statement. “It also promotes employer accountability, benefitting all farmworkers by upholding labor standards.”

Farm group dissent

Michael Marsh, president and CEO of the National Council of Agricultural Employers, said in a news release that the rule “was developed in complete bad faith.”

The DOL rule goes against a June 2021 U.S. Supreme Court decision (Cedar Point, et al, v. Haddid), in which the Court found that a regulation providing union activists’ access to farms and ranches was unconstitutional — basically a “physical taking,” according to the NCAE.

“Shockingly, under this new rule, the (DOL) asserts that unionization of H-2A Temporary Agricultural workers is not preempted by the laws passed by Congress,” according to the NCAE release.

The rule contradicts specific exclusions of agricultural laborers under the National Labor Relations Act of 1935, according to the NCAE.

The U.S. Farm Bureau Federation said the rule’s 600 pages of regulations comes with excessive compliance costs, while disregarding privacy concerns for farmers and their employees.

The DOL has issued 3,000 pages of new regulations in 18 months, burying farmers and other H-2A employers in a mountain of regulations, according to a Farm Bureau news release.

“Farmers appreciate the men and women who work on their farms, and we don’t take lightly the responsibility to ensure their safety and protection,” Zippy Duvall, Farm Bureau Federation president, said in a statement. “We wholeheartedly support clamping down on labor abuses, but this rule instead assumes all farmers are guilty until proven innocent, and that’s not right.”

According to the NCAE, 5% of agricultural employers account for 95% of violations found during DOL investigations.

“Rather than engage constructively with employers who are eager to make the H-2A program work well and safely to reduce violations further, the department chose to treat all agricultural employers as malicious actors, demoralizing the farm and ranch families who work each day to ensure Americans have food on the table,” according to the NCAE.

In comments to the DOL in November 2023, AmericanHort reported “profound concerns” with most of the regulations in the proposed rule that will go into effect this year. Matt Mika, vice president of advocacy and governmental affairs, also said Congress explicitly meant to exempt agricultural employees from protections and penalties of the NLRA.

“It strikes us that what the department now proposes goes against Congress’
legislative intent,” according to Mika’s testimony. “Congress spoke as to what the executive (branch) could do when it comes to agricultural workers, and they are exempt from the provisions of the NLRA.”

Other provisions in the rule

According to the DOL, the new protections also include:

• Clarifying “for cause” termination — Sets conditions that must be met, in most cases, including the transparent application of a system of progressive discipline.
• Transparency in foreign labor recruitment — Adds disclosure requirements to improve foreign worker recruitment chain transparency, to help protect workers from exploitation and abuse.
• Timely wage changes for H-2A workers — The H-2A hourly pay rates, known as the Adverse Effect Wage Rate, will go into effect on the date of their publication in the Federal Register.
• Transportation safety — If a vehicle is required by federal regulations to be manufactured with seat belts, employees must use seatbelts in vehicles provided by employers to and from fields/work sites.
• Labor exploitation and human trafficking prevention — Employers are prohibited from holding or confiscating a worker’s passport, visa or other identification documents.
• Employer accountability — Updates procedures for discontinuing employment services for employers that fail to meet DOL requirements.

The DOL has posted a list of frequently asked questions on the rule.