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May 6, 2022

WHD: H-2A Meal Waivers Are Out of Control

H-2A employers must offer and provide each H-2A worker three meals per day or provide the workers free and convenient cooking facilities. If an employer elects to provide the meals to the H-2A workers, it must provide three meals per day to each employee living in employer housing per day, every day, including Sundays.

Employers may deduct the cost of the meals up to a daily limit imposed by law – currently $14.00 per day – unless the U.S. Department of Labor (DOL) approves a higher rate.

However, H-2A employees don’t always want to eat the employer provided meal or meals, especially on Sunday, instead preferring to eat out, or at a family member’s or friend’s home. They also don’t want to be charged for a meal they didn’t eat.

To address this issue, officials with DOL’s Wage and Hour Division (WHD) informally suggested that H-2A employers have workers sign a meal waiver when they choose to not partake in the employer-provided meal.  Now, WHD says some employers have taken advantage of the guidance, to the point where all of the H-2A employees on the job order are waiving their rights to meals on Sundays, in contradiction of the regulations.

WHD is reminding employers that the suggestion of having a meal waiver was never intended to cover an entire workforce listed on an H-2A contract.  The regulations are clear that employers not providing kitchen facilities must provide three meals a day, seven days a week.  WHD’s suggestion to use the meal waiver was intended to apply when a small number of workers departed for the weekend and did not want to pay for meals they did not eat. The suggestion was for employers to document the fact that those employees voluntarily waived their meals. 

WHD now says it has become an industry practice for H-2A employers in the Western Region to not provide meals on Sundays, relying instead on blanket meal waivers.  WHD urges employers engaging in this practice to cease doing so, as enforcement on the issue is forthcoming. 

H-2A employers are reminded to provide three meals a day, seven days a week, as well as comply with all other H2A requirements and assurances – as WHD will be enforcing the standards strictly. 

For information about the H-2A program or Western Growers H-2A Services, please contact Western Growers.