September 13, 2023

Department of Labor Proposes New Protections for H-2A Farmworkers

The U.S. Department of Labor is proposing new rules aimed at bolstering protections for H-2A farmworkers, preventing abuses that undermine labor standards, and promoting fair treatment for all agricultural workers.

Key provisions of the proposed rule include:

  1. Empowering Worker Self-Advocacy: The proposed rule seeks to empower workers by expanding and clarifying existing anti-retaliation protections. It enables workers to invite and accept guests, including labor organizations, in employer-provided housing. For workers not protected by the National Labor Relations Act, employers would be required to provide a list of workers to requesting labor organizations. Workers could designate a representative to attend meetings with employers that could result in disciplinary actions. Additionally, employers must be transparent about their stance on workers’ rights to organize freely.
  2. Clarifying Terminations “For Cause”: The proposed rule clarifies when an employer can terminate a worker “for cause.” It sets express conditions for such terminations, ensuring that employees are informed of productivity standards and employer policies.
  3. Enhancing Foreign Labor Recruitment Transparency: Recognizing the need for transparency in the recruitment process, the proposal mandates employers to provide copies of all agreements with recruiters, whether domestic or international. Employers must also disclose the names and locations of individuals soliciting H-2A workers on their behalf.
  4. Predictable Wages: To make wages more predictable, the proposed rule makes new wage rates applicable immediately upon publication in the Federal Register. This rolls back the current 14-day notice period and harkens back to an earlier time when employers had to immediate changes to payrates, mid pay period. Employers failing to provide adequate notice of a work start date delay would be required to compensate workers accordingly.
  5. Transportation Safety: The proposed rule mandates seat belt usage for all employer-provided vehicles, except in specific circumstances, where workers must wear seat belts as required by the Department of Transportation.
  6. Strengthened Enforcement and Program Integrity: The proposal aims to streamline and expedite the debarment process for businesses violating H-2A program rules. It also allows state workforce agencies to discontinue recruitment services for non-compliant employers. Additionally, the rule prohibits employers from holding or confiscating workers’ passports, visas, or other government identification documents.

The notice of proposed rulemaking was published on September 12, 2023, in the Federal Register and is open for public comment for 60 days. This period provides an opportunity for stakeholders to provide feedback and insights which the Department of Labor will consider before finalizing the rule. Western Growers and its industry allies will be submitting comments to DOL.