The U.S. Department of Labor has published in the Federal Register a final rule to amend H-2A temporary labor certification regulations it says will “protect agricultural workers better.” It also updates the H-2A application and temporary labor certification process.
After the department proposed changes to the H-2A program’s regulations in a Notice of Proposed Rulemaking in July 2019, employers, employer associations, agents, business advocacy groups, state agencies, federal and state elected officials, worker advocates, labor unions, public policy and academic organizations, farmworkers and others submitted tens of thousands of comments. The final rule will become effective on Nov. 14, 2022.
“By improving H-2A program regulations, we are strengthening worker protections, meeting our core mission,” said Secretary of Labor Marty Walsh, adding that the new rule makes several improvements to enhance the integrity of the H-2A program and provide employers and other stakeholders greater clarity.
The new rule includes the following important elements:
- Improves safety and health protections for workers housed in rental or public accommodations.
- Streamlines and updates bond requirements for labor contractors to better hold them accountable and clarifies joint-employer status for employers and associations.
- Clarifies the housing certification process to allow state and local authorities to conduct housing inspections.
- Establishes explicit authority to debar attorneys and agents for their misconduct, independent of an employer’s violations.
- Makes electronic filing mandatory for most applications to improve employers’ processing efficiency.
- Modernizes the methodology and procedures for determining the prevailing wage to allow state workforce agencies to produce more prevailing wage findings.
The changes in the final rule will also support the enforcement capabilities of the department’s Wage and Hour Division to address H-2A program fraud and abuse that undermines workers’ rights and hurts law-abiding employers.
Throughout the U.S., Wage and Hour Division violations of H-2A regulations and recovery of back wages have increased significantly over the past five years. In 2021, the Wage and Hour Division found H-2A violations in 358 cases and collected more than $5.8 million in back wages for more than 7,000 workers.