March 21, 2024

California Ag Coalition Lodges Objections Regarding New H-2A Notice

The California agricultural community, represented by Western Growers and a coalition of labor law attorneys and agricultural associations, has formally expressed their concerns regarding the Department of Industrial Relations’ (DIR) new Supplemental Notice related to the H-2A visa program. The letter submitted by the coalition focuses on several pivotal issues that could significantly impact both employers and H-2A workers in the agricultural sector. Below is a summary of the principal concerns raised by the coalition.

Compensable Travel Time: The coalition is concerned about the interpretation and enforcement of compensable travel time under the new notice. The language in the Supplemental Notice about what constitutes compensable travel time is inconsistent with state law and could lead to confusion and potential legal disputes.

Meal Periods: The provision of meal periods as outlined in the Supplemental Notice misstates the law on the requirements for providing meals.

Paid Sick Leave: The requirements for paid sick leave as described under the new notice are potentially more onerous than required and exceed state mandates.

Provision of Meals: The specifications for the provision of meals to H-2A workers, as detailed in the Supplemental Notice, are another point of contention. The coalition is concerned that the requirements as stated in the notice potentially conflict with the U.S. Department of Labor’s interpretation of the H-2A regulations.

Housing Rights: The coalition also raised significant concerns regarding the housing rights of H-2A workers as outlined in the new notice. The Supplemental Notice states that H-2A employees are “tenants” utilizing H-2A housing, which is contradicted by state law.

Listing of NGOs: The Supplemental Notice inappropriately lists several non-governmental organizations (NGOs) as resources, including UFW, CRLA, and other organizations that are adversarial to agricultural employers, and is not an element required by AB 636, the law that was enacted to require the notice.

In addition to the letter, the Coalition submitted proposed revisions to the template notice that incorporates the changes requested in the letter.

We extend our gratitude to Rebecca Hause-Shultz from Fisher Philips, Carl Borden of the California Farm Bureau, Carmen Ponce with Tanimura & Antle, Jeanne Malitz from MalitzLaw, Jason Resnick of Western Growers, and Rob Roy, Ventura County Ag Association, for their invaluable contributions and collaborative efforts in addressing this critical issue, and many others who supported this effort.

To date, no response has been received from the DIR. Pursuant to AB 636 which amended Labor Code section 2810.5, commencing March 15, 2024, an employer of an H-2A employee admitted “shall comply … by giving workers a copy of the template developed by the Labor Commissioner…” (emphasis added). As of now, it is recommended that H-2A employers provide the current Supplemental Notice unless and until it is amended.