The U.S. Department of Labor has announced the repeal of a rule requiring employers to advertise H-2A jobs in print newspapers. The beneficial new rule becomes effective October 21, 2019.
Under current regulations, after an employer submits an acceptable H-2A application and job order, the DOL will issue a Notice of Acceptance specifying the “positive recruitment” efforts that the employer must conduct to complete the “labor market test” intended to determine if there are sufficient able, willing, and qualified U.S. workers to fill the job opportunity. Among other steps, the employer is generally directed to place two print advertisements in newspapers in the area where the job is located, and advertise in up to three additional newspapers in so-called “labor supply” states.
Last November the DOL issued a Notice of Proposed Rulemaking (NPRM) announcing its intent to modernize the recruitment that an employer must conduct in conjunction with an H-2A application. Specifically, the Department proposed to eliminate the requirement that every employer advertise its job opportunity in a print newspaper and replace it with a requirement to post an electronic advertisement on a website.
Many H-2A employers, agents, and agricultural associations, including Western Growers, submitted comments in response to the NPRM commending the Department's efforts to modernize the recruitment process. Western Growers H-2A Services, and others, confirmed that, based on their experience, the existing newspaper advertising requirement was not effective in recruiting U.S. workers for agricultural positions. WG was among the commenters who asserted the costs of advertising are unwarranted because newspaper advertisements result in few, if any, referrals of U.S. applicants. For instance, according to the DOL, one agent for H-2A employers reported that its employer-clients had spent about $75,000 to advertise roughly 5,000 positions, and the employers did not receive a single applicant in response to the advertisements. An association representing agricultural employers similarly reported that its members spent millions of dollars on newspaper advertisements for H-2A positions each year and received no U.S. applicants in response.
In the final rule announced September 20, 2019, the Department announced its intent to eliminate the advertising requirement, be it print or electronic, altogether. Instead, DOL will advertise all H-2A job opportunities by posting them on SeasonalJobs.dol.gov, the expanded and improved version of the Department's existing electronic job registry.
The rule change is a welcome one for employers and agents, alike who were frustrated by mandated newspaper listings, says Jason Resnick, who manages Western Growers H-2A Services. “In addition to the unjustified cost to the employer, agents like us who file multiple applications on behalf of many employers currently must spend countless hours placing ads and chasing down tear sheets [or copies of ads] in order to prove to DOL that the ads were timely placed and contained all requisite information about the job. I’m glad that time and money will be saved by our members going forward,” Resnick said.
In a press release, Secretary of Agriculture Sonny Purdue said, “By streamlining these processes, DOL is bringing the H-2A process into the 21st Century allowing farmers to be able to better and cost-effectively advertise for workers they need and fill out the required forms faster and more efficiently, because no one should have to hire a lawyer to hire a farm worker.”
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