Yesterday, the U.S. Department of Labor (the “Department”) announced the Temporary Agricultural Employment of H-2A Nonimmigrants in the United States final rule. DOL says the rule will improve the H-2A program by strengthening key worker protections and modernizing the application process. The final rule will be published in the Federal Register October 12.
According to the Department’s press release, the Temporary Agricultural Employment of H-2A Nonimmigrants in the United States final rule:
- Expressly authorizes the Department to debar attorneys and agents for their own misconduct, independent of the employer’s violations.
- Establishes a new methodology for calculating surety bond obligations for H-2A labor contractors (H-2ALCs), using a national “average adverse effect wage rate (AEWR),” to ensure that required bond amounts reflect increases in wage growth. Bond amounts will also be adjusted to reflect the growing size of crews and the changes will result in greater obligations for the largest H-2ALCs.
- Clarifies that the term “rental and/or public accommodations” includes only hotels, motels, and other similar accommodations that are available to the public to rent for relatively short-term stays.
- Improves worker housing health and safety standards by requiring that rental and/or public accommodations meet standards addressing key health and safety issues identified in the federal standards. For instance, if local and state standards do not address minimum square footage per occupant in public accommodations, then the employer must comply with the applicable Occupational Safety and Health Administration’s (OSHA) housing standard for minimum square footage.
- Clarifies that employer-provided meals must be provided in a timely and sanitary manner.
- Clarifies that employer-provided meals must be nutritionally and calorically adequate. Employers are encouraged to consult the United States Department of Agriculture, National Institutes of Health, or any other credible sources of nutrition and caloric intake guidelines when developing meal plans.
- Clarifies that, in situations where the public accommodation (e.g., hotel) provides free breakfast, the employer may not use the free breakfast to satisfy one of the three daily required meals unless the free breakfast is nutritionally adequate and readily accessible to the workers.
- Clarifies the conditions necessary for an employer to justify a petition for a higher meal charge.
- Clarifies that a grower that uses H-2ALCs to supply workers is liable for program requirements when the grower is a joint employer under the common law of agency.
- Improves working conditions for H-2A workers in animal shearing, commercial beekeeping, and custom combining by codifying standards for mobile housing (distinct from that used in herding and production of livestock on the range
- Modernizes the methodology to determine prevailing wages and empowers states to produce a greater number of prevailing wage survey findings.
Western Growers is in the process of reviewing the 594-page pre-publication draft. We will provide a summary of the final rule to members in the near future.
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