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U.S. Department of Labor finalizes farmworker protection rule

On April 26, the Department of Labor (DOL) announced a final rule imposing additional requirements of farm employers who hire workers through the H-2A program. The rule has requirements related to organization of labor, “for cause” termination, recruitment transparency, Adverse Effective Wage Rate (AEWR) and worker transportation.

The American Farm Bureau Federation (AFBF) criticized the new rule, saying that it imposes excessive compliance costs and disregards privacy concerns for farmers and their employees.

“Farmers appreciate the men and women who work on their farms, and we don’t take lightly the responsibility to ensure their safety and protection,” AFBF President Zippy Duvall said. “We wholeheartedly support clamping down on labor abuses, but this rule instead assumes all farmers are guilty until proven innocent and that’s not right.”

According to the DOL, the rule targets vulnerability and abuses the agency says are experienced by H-2A workers and that undermine fair labor standards for all farmworkers in the U.S.

The 600-page rule brings to approximately 3,000 pages of new regulations in the past 18 months.

“In truth, the workers most supported by DOL are the lawyers needed to interpret the tsunami of new rules that keep moving the goalposts for farmers,” Duvall said.

The final rule includes the following requirements detailed by the DOL:

• Worker self-advocacy: The final rule expands the range of activities protected by anti-retaliation provisions. For workers not protected by the National Labor Relations Act, this rule allows workers the choice to organize and to decline to attend employer meetings concerning organization of labor. The rule also allows workers to seek counsel for, among other things, legal services providers, and to do so in employer-furnished housing.

• Clarifying “for cause” termination: The final rule clarifies that an employer may only terminate a worker for cause when the worker either fails to comply with employer policies or fails to perform job duties satisfactorily after, in most cases, the transparent application of a system of progressive discipline. The rule establishes that for a worker to be terminated for cause, five conditions must be met, including a requirement that workers are either informed about or reasonably should have known the policy, rule or performance expectation unless the worker has engaged in egregious misconduct.

•  Transparency provision: The final rule imposes new disclosure requirements for farm employers to provide additional information about the nature of the job opportunity and bolsters the department’s ability to protect workers from exploitation and abuse. The new provisions require employers to provide a copy of all agreements with any agent or recruiter they engage or plan to engage, disclose the name and location of any person or entity working for the recruiter who will solicit prospective H-2A workers and disclose in the H-2A application the name, location and contact information of the workplace’s owners, operators and managers.

• Address wage changes for H-2A workers: Returning to longstanding practice, the final rule designates the effective date of updated adverse effect wage rates (AEWR) as of the date of publication in the Federal Register. The rule would also require employers who fail to provide adequate notice to workers of a delay in their start date to pay workers the applicable rate for each day that work is delayed for up to 14 days.

• Improving transportation safety: Many H-2A workers travel in vans or buses. The final rule includes a seat belt requirement. If a vehicle is required by Department of Transportation regulations to be manufactured with seat belts, the final rule prohibits the operation of these vehicles to transport workers under the H-2A program unless each occupant is wearing a seat belt.

• Preventing labor exploitation and human trafficking: The final rule clarifies that employers are prohibited from holding or confiscating a worker’s passport, visa or other identification documents, which is a tactic used to exploit workers.

• Ensuring employer accountability: The final rule updates procedures for discontinuing employment services for employers that have failed to meet the DOL requirements and requires states to discontinue services to debarred employers. It also streamlines the procedures for applying debarment to a successor who carries forward a debarred company. In addition, the rule codifies how the department determines whether separate entities are acting as one employer for purposes of assessing seasonal or temporary need and how these entities are treated for enforcement purposes.

The final rule becomes effective on June 28. However, H-2A applications filed before Aug. 28 will be processed according to applicable federal regulations that are in effect as of June 27. Applications submitted on or after Aug. 29, will be processed in accordance with the provisions of the Farmworker Protection Rule.

For more information about the rule, visit the Employment and Training Administration and Wage and Hour Division web pages.

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