Jul 16, 2019H-2A labor program ‘modernization’ focus of Department of Labor proposal
The Department of Labor (DOL) on July 15 proposed a rule to “modernize and improve” the H-2A Temporary Agricultural Labor Certification Program.
According to a DOL news release, “Furthering the agenda to help America’s farmers, the Department of Labor (the Department), Employment and Training Administration and Wage and Hour Division, today is posting online a Notice of Proposed Rule-making (NPRM) to solicit public comment on proposed changes to improve the H-2A temporary agricultural labor certification program. These proposed changes would modernize the department’s H-2A regulations in a way that is responsive to stakeholder concerns and enhances employer access to a legal source of agricultural labor, while maintaining the program’s protections for the U.S. workforce and enhancing enforcement against fraud and abuse.”
U.S. Secretary of Agriculture Sonny Perdue issued the following statement on the Department of Labor’s proposed rule to modernize the H-2A program to reflect stakeholder concerns and improve access to a legal source of agricultural labor:
“President Trump once again shows his commitment to helping America’s farmers, ranchers, and producers continue to be the most productive in the world by increasing their access to a stable and legal workforce. The proposed rule will increase access to a reliable legal agricultural workforce, easing unnecessary burdens on farmers, increase enforcement against fraud and abuse, all while maintaining protections for America’s workers. When this rule goes into effect, our farmers will be released from unnecessary and burdensome regulations allowing them to do what they do best.”
The NPRM includes several major proposals that would streamline and simplify the H-2A application process, strengthen protections for U.S. and foreign workers, and ease unnecessary burdens on employers. For example, the NPRM would streamline the H-2A application process by mandating electronic filing of job orders and applications, promoting the use of digital signatures, and providing employers with the option of staggering the entry of H-2A workers on a single application.
The NPRM also proposes to strengthen protections for U.S. and foreign workers by enhancing standards applicable to rental housing and public accommodations, strengthening surety bond requirements, expanding the Department’s authority to use enforcement tools like program debarment for substantial violations of program rules, and updating the methodologies used to determine the Adverse Effect Wage Rates and prevailing wages to ensure U.S. workers similarly employed are not adversely impacted.
Finally, the NPRM would expand access to the H-2A program by revising the definition of agricultural labor or services to include employers engaged in reforestation and pine straw activities, as workers performing these services share many of the same characteristics as traditional agricultural crews. The proposal would also codify and update procedures governing the certification for job opportunities in animal shearing, custom combining, beekeeping, and reforestation.
The DOLt is posting a copy of the NPRM in advance of its publication in the Federal Register. A copy of the NPRM can be found by clicking here.
Note: This version of the proposed regulations may vary slightly from the published document if minor technical or formatting changes are made during the review by the Office of the Federal Register. Only the version published in the Federal Register is the official proposed regulation.
Reactions from ag employers
“The National Council of Agricultural Employers (NCAE) applauds the Trump Administration’s announcement today of its Notice of Proposed Rule-making (NPRM) to modernize and improve the H-2A temporary agricultural labor certification program.
According to the Department of Labor’s announcement, “These proposed changes would modernize the Department’s H-2A regulations in a way that is responsive to stakeholder concerns and enhances employer access to a legal source of agricultural labor, while maintaining the program’s protections for the U.S. workforce and enhancing enforcement against fraud and abuse.”
“We are very pleased the administration has agreed to roll out this much needed modernization effort for the H-2A program. It is obvious, based upon the 489 pages included, the deep dive that was done by the agencies in their effort to evolve the program to one more responsive to the needs of stakeholders,” said Michael Marsh, president and CEO of NCAE.
According to the department, the wide-ranging rule-making will streamline the application process and strengthen protections for U.S. and foreign workers. The rule also looks to update methodologies used to determine Adverse Effect Wage Rates while addressing many other issues.
Marsh noted, “The breadth of this proposed rule is substantial. NCAE will be working with its committees, members and legal counsel to develop targeted, cogent comments to provide to the department. This type of hefty rule-making doesn’t come around often. Our sleeves are rolled up and we’re raring to go!”
Established in 1964, NCAE is the national trade association focusing exclusively on agricultural labor issues from the employer’s perspective.
Statement of National Council of Farmer Cooperatives CEO Chuck Conner on H-2A Visa Program Proposed Rule Making
“In issuing a proposed rule today on changes to the H-2A visa program for agricultural guest workers, the Department of Labor (DOL) is taking a significant step to improve a system in need of a dramatic overhaul. While we are still reviewing the details of the rule, we understand that it contains provisions that will help streamline the program and simplify the process for the farmers and growers who use it. We would like to recognize the efforts of Secretary of Agriculture Sonny Perdue, who has worked closely with the DoL through the interagency process to secure these important changes.
“While this new rule is welcome, a permanent solution to the labor crisis faced by agriculture is congressional action to address both current and future needs of the sector. NCFC will continue to work with policy makers and other stakeholders to find a path forward for such a solution.”