May 29, 2009Labor Department Suspends New H-2A Rule
It’s back to the old rules for H-2A employers.
The U.S. Department of Labor is suspending the H-2A Final Rule that went into effect Jan. 17. That Final Rule amended the regulations governing the certification for temporary employment of non-immigrant workers in agricultural occupations on a temporary or seasonal basis, and the enforcement of contractual obligations applicable to employers of such non-immigrant workers, according to a May 29 announcement in the Federal Register.
The labor department is re-publishing and reinstating the regulations in place on Jan. 16 for a period of nine months, after which the department will either have engaged in further rulemaking or will have lifted the suspension, according to the Federal Register.
According to the National Council of Agricultural Employers (NCAE), new Adverse Effect Wage Rates (AEWR) also were published in the Federal Register.
This is NCAE’s view of the issue: Despite being costly and difficult to use, the H-2A agricultural guest-worker program remains an important component of labor supply for agricultural employers.
Due to long lead times to process workers into the system and the extensive preparation, recordkeeping and costs already incurred by employers, substantial numbers of applications and contracts for 2009 have already been completed based on the rule that was just suspended. Such a suspension at this late stage will be confusing and could damage or disrupt farms that depend on H-2A labor. Additionally, the 2009 AEWR rates are not realistic in the current economy and the change at this late date will be confusing, difficult and costly to administer, according to NCAE.
Growers and other food supply chain participants have already signed supply contracts for the season based on the suspended rule. Production costs will now go up due to mid-season federal action. Growers and ultimately consumers may suffer, according to NCAE.
NCAE expects to participate with the labor department in all further rulemaking.
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