Legislative lowdown: DOL issues final rule expanding protections to temporary farmworkers

Employers that rely on temporary farmworkers with H-2A visas will have to comply with an enhanced set of protections for these employees starting June 28.

The protections are detailed in a final rule announced by the Department of Labor (DOL) on April 26. The H-2A program allows employers to bring foreign workers into the US to fill temporary agricultural jobs for up to 10 months, provided they can demonstrate efforts to recruit US workers weren’t successful. These workers are entitled to earn a state minimum wage, as well as receive housing and transportation through their employer.

More employers have grown to rely on H-2A workers in recent decades; the number of positions requested and approved increased by sevenfold between 2005 and 2022, according to federal government data.

Acting US Labor Secretary Julie Su said in a statement that “H-2A workers too frequently face abusive working conditions” and that the rule seeks to ensure those employed under this visa “are treated fairly, have a voice in their workplace, and are able to perform their work safely.”

Among the provisions laid out are the following:

• H-2A workers are entitled to advocate for themselves and coworkers. Under the final rule, employers will be prohibited from retaliating against workers for engaging in a wider range of activities, such as “seeking to form, join, or assist a labor organization.” Even workers who are not covered by the National Labor Relations Act are entitled to some protections under this rule, such as declining to attend so-called “captive audience meetings,” which the DOL considers a means by which employers may dissuade workers from joining unions.
• Employers must meet certain conditions to fire H-2A workers “for cause.” An employer can only fire an H-2A worker for cause if the worker fails to comply with the employer’s policies, or “fails to perform job duties satisfactorily.” In the latter case, employers are generally expected to share details about how they will respond to such failures before they fire the worker, according to the final rule. Employers must also meet five criteria in order to terminate an H-2A worker for cause, including proving that they were “either informed about or reasonably should have known the policy, rule, or performance expectation, unless the worker has engaged in egregious misconduct,” according to a DOL statement.
• Employers must share information on agents, recruiters with the federal government. When employers submit H-2A applications to the federal government, they must disclose information about any agents or recruiters they are working with or plan to work with when hiring H-2A employees, including a copy of the agreements they sign with these third parties. Under the final rule, employers will also need to provide “name and location of any person or entity working for the recruiter” soliciting potential H-2A workers, as well as location details and contact information for the “owners, operators, and managers” of their workplaces. These provisions are intended to make “foreign labor recruitment more transparent,” the DOL said.

The rule also includes protections regarding transportation, practices that can lead to exploitation, such as confiscating workers’ passports, and the timely institution of wage changes to ensure similarly employed workers are paid comparably to H-2A counterparts.

H-2A applications will be processed under this rule from August 29 onwards.