Throughout the reworking of the H-2A Farmworker Protection Rule, the AmericanHort team has been instrumental in guiding the language, including filing comments with the DOL last November. AmericanHort members and staff have also explained to those in Congress and the Senate how H-2A is used in the green industry.

Attorney Shawn Packer, principal, JPH Law, recently presented updates on the H-2A rule. The information he provided was for educational purposes only and does not create an attorney-client relationship. AmericanHort and Packer advise those who have questions to consult their attorneys.

The rule is intended to improve protection for ag workers in temporary agriculture employment in the U.S. “The rule was published April 29, 2024 and had a 60-day effective date,” said Packer. “As proposed, there were certain things that needed to be updated with the FLAG system” (where H-2A applications and forms are filed).

On June 10, 17 State Attorneys General and several other organizations sued DOL over the final rule, specifically challenging protections DOL was trying to provide for H-2A workers covered by the FLSA definition of agriculture.

“They were seeking to have the rule enjoined on what appears to be NLRA protections,” said Packer. “A preliminary hearing was set for June 21. DOL and the Department of Justice didn’t want to have to brief and get ready for that hearing so quickly, so they released a statement … stating they were going to postpone the implementation of the retaliation provisions and the NLRA protection provisions.”

The hearing date was reset but left AmericanHort and others scrambling to determine what would go into effect on various dates.

“From what we can tell,” said Packer, “based on our quick look at the rule and what was in the announcement and the order from the court, a couple things will go into effect on June 28. The first is changes to delayed start. Currently, under the way the regulations work, you are supposed to notify within 10 calendar days of the start that there’s going to be a delay. There’s no requirement if there is a delay to pay for anything. If workers are already transiting, you’re supposed to still house them. What this rule has done is say ‘It’s no longer 10 calendar days, it’s 10 business days from the original start date that you must notify in writing or electronic means to all workers who are on the contract, whether that’s H-2A or workers referred to the contract by the state workforce agency that there is going to be a delay in the start date.’”

Employers must maintain evidence of any action, including audit files. Packer said if an employer doesn’t provide notice within 10 business days, they must provide daily subsistence to workers who are traveling to the place of employment. Employers must also provide up to 14 calendar days of pay for those days between the failure to notice from the start day until the start date or at 14 days. Employers also must include housing free of cost.

Packer said the rule is unclear regarding “housing free of cost” and is trying to obtain additional guidance from DOL on what this means.

“Typically, you provide housing to H-2A workers who are traveling or workers who are coming from outside the area of intended employment who are U.S. workers,” he said. “You don’t provide housing for your local workforce on that contract. It’s unclear on the regulation and in the preamble whether or not this requirement of the delayed start date would create a requirement to provide housing for local workers as well.”

According to Packer, this aspect of the rule isn’t a true change – it’s more of an admonishment to the state workforce agencies to use existing tools. This section was to clarify when a state workforce agency was supposed to issue discontinuation of services, which Packer said means the state workforce agency is telling employers “we believe you have violated (some aspect of) the regulations, and we’re no longer going to process your job orders.”

For the employer who is no longer going to have job orders processed, that employer is effectively barred from the H-2A program. You can’t move through the H-2A program without a job order being processed first.

Employers who receive a discontinuation of services should reply quickly and with as much information as possible as to why the state workforce agency is wrong. “If they disagree with you and issue a final determination of discontinuation of services,” said Packer, “you are effectively debarred from the H-2A program. If you have been discontinued in one state, you are discontinued in all states.” The state workforce agency can also discontinue services to an agent or an attorney.

Two items specifically added to the regulations are the definitions for “key service provider” and “labor organization.” “These definitions are very broad, and create concern for us,” said Packer. “Those terms are in the regulations regarding access to guest worker housing and who can be a designated representative. There’s a lot of concern that worker advocate attorneys might sue under FSLA or back wages.”

Packer said “key service providers” include clergy, medical personnel and worker advocacy organizations. “‘Labor organization’ is very broad and doesn’t require the labor organization to be registered with the DOL’s Office of Labor Management standards,” he said. “It could be an upstart union – the broadness of these definitions has us concerned.”

Another change was to codify the “single employer” test. Packer said DOL has tried to use this test for many years in the H-2A program, but it wasn’t defined in the old regulations.

“The definition of ‘employer’ was simple and meant whoever had the ability to hire and fire,” he said. “They have tried to use the ‘single employer’ test often to say that two entities that are closely related but different are a single employer for the purposes of making the determination of their temporary need,” Packer said.

He used the example of a grower with two greenhouses in the same area of intended employment, such as one greenhouse for peppers and one for tomatoes. It’s a different season, and there’s a potential issue where under the single employer test the two will be lumped together and determined as year-round need.

The “successor in interest” definition was changed in the state workforce agency section of the rule. “This is in the actual H-2A definition section of the rule,” said Packer. “It makes it very clear that a successor in interest to a debarred entity is also debarred without needing to do a separate debarment action.”

There was also concern that a new requirement would force retrofitting vehicles for seat belts. The current requirement is that if a vehicle was originally manufactured with seat belts and required to have seat belts by the DOT, it must have seat belts. For example, older school buses are grandfathered in and not required to have seat belts.

The term “rate of pay” has caused confusion. “We’ve always had the issue of whichever wage is highest is the wage that has to be paid,” said Packer. “They made a change so that you must also disclose piece rate and make the calculation as to what the piece rate means as it converts to hourly wage. We’re trying to get more clarification from DOL on this issue.”

Those who employ H-2A workers should be fully aware of the changes, and if necessary, consult with their attorney to ensure compliance. The complete rule can be accessed at https://www.dol.gov/newsroom/releases/whd/whd20240426.

by Sally Colby