In a significant case involving the H-2A visa program, a California appellate court ruled that an arbitration agreement in the H-2A job order was unlawful and unenforceable because it was not disclosed prior to the employee arriving to the employer’s facilities in the U.S. Under the H-2A visa program, employers must disclose all employment terms in the H-2A job order, including material conditions like arbitration agreements, said the court.

Alco Harvesting, LLC hired Jesus Guzman, a Mexican citizen, under the H-2A visa program. Guzman, while still in Mexico, signed an arbitration agreement with Alco, which required him to resolve disputes through arbitration rather than a jury trial. However, Alco did not disclose this agreement in its H-2A petition. Guzman was first presented with and signed the arbitration agreement during the onboarding process after Guzman entered the U.S. When Guzman later sued Alco for state labor violations, the company sought to enforce the arbitration agreement. Both the Superior Court and the Court of Appeal denied Alco’s request, citing the non-disclosure of the arbitration agreement as a violation of H-2A program requirements.

The case emphasizes the necessity for employers, and particularly California employers, hiring foreign nationals under various visa programs, to fully disclose all employment terms, including arbitration agreements, in their petitions to the DOL. Non-compliance can lead to such agreements being deemed unenforceable in California courts. A proposed H-2A rule would bar “side agreements” not disclosed in the job order, which would presumably include arbitration agreements.