Dec 27, 2018
Department of Labor realizing H-2A print requirements not effective

The American Farm Bureau Federation is urging the Department of Labor to continue allowing farmers to satisfy their legal obligations under the H-2A guest worker program by recruiting U.S. workers through print advertisements.

Currently, a farmer who wants to hire employees through the federal government’s H-2A program must demonstrate that he or she tried to find U.S. workers through advertisements in a newspaper of general circulation in the area of intended employment. DOL is now proposing eliminating the newspaper recruitment obligation and replacing it with a requirement that agricultural employers seek U.S. workers via the internet, which the department says will be more cost-effective and efficient for farmers.

In its comments, Farm Bureau addressed some of the assertions on which DOL based its proposal.

The organization did not dispute DOL’s statement that data shows that farmworkers in the U.S. rarely, if ever, get a job through print advertisements, but noted that does not mean online advertising would be an often-used source for farm work opportunities.

Farm Bureau pointed to the federal NAWS survey that shows most farm workers find employment through friends, relatives or word-of-mouth. Farm Bureau also noted that at least one report cited by DOL itself states that the use of online advertising is less common to rural areas and farm workers than it is in the general population.

“General studies citing job-seeking behaviors that do not reflect rural and farm worker realities should be used with caution and not be used as a rationale for changing H-2A regulations,” Farm Bureau said.

Farm Bureau also warned that the department, in declaring that electronic advertisements offer employers a less expensive and more convenient way to share information about job opportunities to potential U.S. workers, didn’t look at the costs from all angles.

“While the placement cost of the job posting might be less online than in print, the overall costs for employers might well be greater even while protections for U.S. workers remain unchanged,” Farm Bureau said.

The organization described an example of an agricultural employer who received hundreds of applicants — most of them vastly unqualified — in response to an online advertisement. The online platform made uploading resumes very easy for all applicants, even if they did not meet minimum qualifications. While online ads may cost an employer less money than a print ad, there can be hefty costs associated with the time the employer then must take to contact all the job applicants, keeping a record of such contacts in case of an audit, to meet H-2A requirements.

Farm Bureau is recommending the department allow the option of using either online or newsprint advertisements as a way of fulfilling the H-2A recruitment obligation. If DOL moves ahead with the transition provision it is proposing, which would allow the use of either online or newspaper advertisements only until a date specified, after which newspaper advertisements would no longer meet the recruitment requirement, Farm Bureau suggests the department drop the termination date for the transition and adopt a method to examine how well it is functioning.

“Only after such an evaluation should the department consider mandating online advertising or print advertisements. Additionally, should the department opt to eliminate print advertisements, it should only do so after publishing the results of its evaluation and engaging in a notice-and-comment process that affords employers the ability to comment on the department’s approach,” Farm Bureau said.

National agricultural employers group likes online posting proposal

The online advertisement proposal has received support from the National Council of Agricultural Employers (NCAE).

Michael Marsh, President and CEO, National Council of Agricultural Employers, issued a statement Nov. 13 supporting the announcement from the Department of Labor regarding advertising of positions in relation to H-2A visa use.

“This is great news and a good start to a needed reform process for the H-2A visa,” Marsh said. “NCAE’s advocacy early in the Trump Administration has begun to bear fruit. In fact, timing of the notice dovetails nicely with our planned deep dive into H-2A reform scheduled for our Labor Forum later this month.”

“We are pleased with the administration’s effort in this regard and look forward to the unveiling of additional reforms,” said Marsh.

To make it easier for Americans to find and fill open jobs, the U.S. Department of Labor issued a proposal Nov. 8 for employers seeking temporary labor certifications through the H-2B and H-2A visa programs to advertise jobs online.

Under current rules, an employer advertising a job for which it seeks a temporary labor certification must publish two print advertisements in a newspaper of general circulation in the area of intended employment.

To modernize this recruitment and make job opportunities more readily available to Americans, the Department of Labor and the U.S. Department of Homeland Security are proposing a rule that would require employers seeking temporary labor certifications through the H-2B visa program to post job advertisements online for at least 14 days.

The Department of Labor is simultaneously proposing a similar rule for temporary labor certifications through the H-2A visa program for agricultural workers.

The Department of Labor has (finally) acknowledged what agricultural employers have been telling them for years — potential U.S. workers are not coming forward in response to print newspaper advertising for available agricultural jobs, and that advertising is costly to employers,” Marsh said.

In a Notice of Proposed Rulemaking (NOPR), the department has opened a 30-day comment period on a proposal to replace expensive newspaper advertising (online or print) entirely with a website-based advertising system — with employers given discretion to choose “at least one website that is widely used and appropriate for use by U.S. workers who are likely to apply for the job opportunity in the area of intended employment.”

Employers seeking to hire H-2A workers will post their jobs to their state workforce agency and then to the Chicago National Processing Center, and then post the job order to the website of their choosing — retaining proof of posting. The job must remain posted on the website for at least 14 consecutive days. No further advertising by employers will be required.

Although the NOPR references the additional duty to contact, in writing, prior-year U.S. workers who completed the season, the NOPR does not replace that requirement with the online job posting. A 30-day comment period regarding the online rule proposal ended Dec. 10, 2018.

For jobs with start dates between now and Oct. 1, 2019, employers will have the choice of online posting or the traditional two newspaper advertisement option.

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