The U.S. Department of Labor (DOL) says that it has found a number of inefficiencies in the H-2A temporary agricultural labor visa program, and the department has a solution: change the program’s rules. The DOL has proposed a number of administrative rule changes that it believes will make the approval process move along quicker, relieve burdens on U.S. farms, and create a more level playing field with regards to pay. Before we talk about the rule changes, let’s recap what the H-2A program is.
H-2A is a visa program for seasonal agricultural laborers from other countries.
Labor shortages have plagued farms across the United States for decades. Congress first created a visa program for non-immigrant labor in the early 1950s, but it wasn’t until 1986 that Congress established the H-2A visa program for temporary agricultural workers. Under this program, farmers may apply to employ H-2A workers on their farm on a temporary or seasonal basis for up to a year, but may apply to renew the worker’s visa for up to three total years.
In order to hire H-2A workers, an employer must certify in an application to the DOL that there are not enough qualified domestic workers willing and able to perform temporary and seasonal agricultural labor. In order to prove that there is not enough domestic labor, the farmer must demonstrate an effort to advertise the available work in the local area.
Further, the farmer must demonstrate to the DOL that employing foreign workers will not negatively affect the wages and working conditions of similarly employed U.S. workers. In other words, a farmer can’t hire foreign labor because it’s cheaper. A farmer is expected to pay the foreign workers the same as the farmer would pay domestic workers, based upon the higher of the DOL’s Adverse Effect Wage Rate, minimum wage, or prevailing wage.
What does the Department of Labor seek to change?
The DOL proposes to make several changes to the H-2A program’s administrative rules. Some of these changes update the rules to reflect what is already happening, while some make slight changes to the program’s overall scope.
- Mandate e-filing. The DOL currently allows farmers to submit their applications online or in hard copy, but reports that 4/5 of applications are completed online. A review by the DOL has found that online applications get completed more quickly, have fewer errors, and reduce costs relative to hard copy submissions. Under the new rule, the DOL would require all applications to be completed online, unless the farmer has a disability or does not have internet access.
- Allow e-signatures. The DOL currently requires farmers to sign a hard copy of their applications and either scan the document into the application or mail it. Under the new rule, the DOL would accept e-signatures as equal to handwritten signatures.
- Subdivide the adverse effect wage rate based upon specific agricultural occupations. In the previous section, we noted that the farmer must pay the foreign workers the same as he or she would pay domestic workers. One way to determine that wage is to use the DOL’s Adverse Effect Wage Rate. Currently, the DOL has one rate for a state or region based upon the combined numbers for field and livestock workers. Under the new rule, the DOL would use Farm Labor Survey data to subdivide agricultural occupations in order to ensure that higher paying occupations, such as supervisors of farmworkers and construction laborers on farms, use an Adverse Effect Wage Rate that properly reflects the wages of those higher paying occupations, rather than one general rate for all agricultural workers.
- Update the methodology for calculating prevailing wage standards. Another way to calculate the minimum wages of H-2A laborers is to base their pay off of the prevailing wage. The current method of calculating the prevailing wage, which has not been updated since 1981, requires in-person interviews of employers. Under the new rule, the DOL would eliminate the in-person requirement and allow states to collect data using more modern methods.
- Incorporate guidance letters regarding animal shearing, commercial beekeeping, custom combining, and reforestation occupations into formal rules. When asked for an interpretation of its rules and policies, a federal agency may issue a guidance letter to the person seeking an interpretation. These guidance letters are not necessarily binding, and have no general application beyond the person seeking the interpretation. By incorporating the guidance into a formal rule, the interpretation holds the force of law. The DOL identified these occupations as unique relative to other agricultural occupations, and created a special set of procedures to obtain H-2A laborers to work these types of jobs.
- Expand the definition of “agriculture” to include reforestation and pine straw activities. Currently, reforestation and pine straw occupations are only available for H-2B applications, which are for non-agricultural occupations. Under the new rule, these activities would be eligible for the agricultural based visa.
- Reduce the time an employer must allow a domestic worker to apply for a job to 30 days. Currently, the DOL requires a farmer to hire all eligible, willing, and qualified U.S. workers who make themselves available to work until the half way point in the H2-A contract period. This means that if a farmer has H-2A laborers working under a six-month contract, then the farmer must hire any eligible, willing, and qualified domestic worker during the first three months of the contract. Under the new rule, the farmer would only have to leave such opportunity open to domestic workers for 30 days.
- Allow an employer to stagger the entry of H-2A labor. Sometimes a farmer does not need all of the H-2A labor to arrive at once, but rather needs some to start on one date and then others to start on a different date. Currently, this would require the farmer to submit an application for each date on which the farmer needs H-2A labor. Under the new rule, the farmer would be able to submit one application but stagger the start dates of his or her workers over the course of 120 days. This 120-day clock begins on the day the first H-2A workers enter the U.S.
For more information about the proposed changes, visit the proposed rule’s entry on the Federal Register HERE.
The public may submit comments until September 24, 2019.
As part of the public rulemaking process, the DOL is seeking public input on the proposed rule changes. Members of the public may submit written comments to the DOL until Tuesday, September 24, 2019.
You may submit a comment online (visit https://www.regulations.gov/) or by mail (send to Adele Gagliardi, Administrator, Office of Policy Development and Research, Employment and Training Administration, U.S. Department of Labor, 200 Constitution Avenue NW, Room N-5641, Washington, DC 20210). When mailing comments, be sure to include the rule’s Regulatory Information Number (RIN): 1205-AB89.
Written by Evin Bachelor, Law Fellow, OSU Extension Agricultural & Resource Law Program
The United States Department of Agriculture (USDA) announced last week that farmers.gov will now feature two new tools. One will help farmers navigate the application process for obtaining temporary agricultural workers under H-2A, and the second will help farmers understand and manage their USDA-backed farm loans. The press release explained that the USDA values the experience of its customers, and that it developed these tools after hearing feedback on the need for simple, technology based resources to help farmers. Unveiled in 2018, farmers.gov allows users to apply for USDA programs, process transactions, and manage their accounts.
Customized H-2A checklists based on the needs of an individual farmer
Many farmers need seasonal or temporary workers for planting, cultivating, and harvesting crops. The seasonal nature of agriculture can make it difficult for farmers to find an adequate supply of domestic labor willing to fill the temporary positions. To relieve this difficulty, the federal government created the H-2A temporary agricultural worker program to allow these farmers to hire workers from foreign countries to supplement the domestic labor market on a temporary or seasonal basis. Farmers must demonstrate that there are not enough U.S. workers able, willing, qualified, and available for the temporary work, and that the H-2A workers will not result in reduced wages for other U.S. workers.
Understanding the H-2A process has long been complex and confusing, but a new tool focused on education for smaller producers includes a revamped website and an interactive checklist tool. The new website explains the basics of the program, includes an interactive checklist tool to create custom checklists, and gives an estimate of the costs of hiring H-2A workers.
The interactive checklist tool is a helpful way for producers to learn about the steps they need to take to obtain the labor that they need. In the past, websites would rely heavily on producers to sift through information and determine the requirements that they needed to follow. Now, the interactive tool asks questions one at a time to generate a custom checklist.
When using the tool, producers will first be asked whether this will be their first time hiring workers using the H-2A Visa Program. If the producer answers yes, they will be asked when they need the labor. If the producer answers no to the first question, they will be asked whether they are extending the contract of workers that they are currently employing. Ultimately, the producer will be asked when they need the labor. At the end of the questions, the tool will provide a checklist that the producer will use to determine what steps he or she needs to take to obtain H-2A labor. The checklists are designed to be easy to understand and to make the process less confusing.
View information about your USDA-backed farm loan online
The USDA offers farm ownership and operating loans through the Farm Services Agency to family-size farmers and ranchers who cannot obtain commercial credit. Farmers.gov now allows producers to view information about these USDA-backed farm loans through a secure online account. Producers can view loan information, history, and payments from a desktop computer, tablet, or smartphone. Producers will need to sign up for a USDA online account in order to create an account profile with a password.
At this time, the program only allows producers doing business on their own behalf as individuals to view this information through farmers.gov. Other entities such as LLCs and trusts or producers acting on behalf of another cannot utilize this tool yet, although the USDA indicates that this is planned for in the future.
The USDA’s press release made clear that the addition of these tools represents a step toward providing better customer service and increased transparency. As only a step, producers can expect more tools and features to be added to farmers.gov in the future. As this happens, we will be sure to keep you up to date about the website’s new bells and whistles.
The midterm elections are over, and Thanksgiving is upon us. A lot of activity is expected out of Washington and Columbus as the legislative sessions wind up. The OSU Extension Agricultural and Resource Law team will continue to keep you up to date on the legal issues affecting agriculture as we enter into the holiday season.
Here’s our gathering of ag law news you may want to know:
State of Ohio sued over wind turbine setbacks. Four farmers in Paulding County have joined with The Mid-Atlantic Renewable Energy Coalition to sue the State of Ohio over wind turbine setbacks added to the 2014 biennial budget that some allege curtailed wind energy development in Ohio. In that budget bill, lawmakers included provisions late in the lawmaking process to amend Ohio Revised Code § 4906.20, which establishes the setback requirements for wind turbines. Those provisions more than doubled the distance that wind turbines must be located away from the nearest residential structures. The plaintiffs in this lawsuit allege that including these restrictions in the budget bill violated the single-subject provisions of the Ohio Constitution because the setbacks lack a “common purpose or relationship” to the rest of the budget bill. On this issue, the Ohio Supreme Court said in the case In re Nowak (cited as 2004-Ohio-6777) that the single-subject rule is a requirement that legislators must abide by, but that only a “manifestly gross and fraudulent” violation will result in the law being struck down. The plaintiff’s complaint is available here. Stay tuned to the Harvest for updates.
Department of Labor proposes rule requiring H-2A advertisements be posted online. The U.S. Department of Labor (DOL) published a notice of proposed rulemaking in the Federal Register on November 9th that would change how employers must advertise available positions before they may obtain H-2A worker permits. H-2A permits are work visas for temporary agricultural workers who are non-U.S. citizens. Currently, employers must advertise work in a local newspaper of general circulation for at least two consecutive days, one of which must be a Sunday. This requirement is located in the Code of Federal Regulations at 20 C.F.R. § 655.151. The DOL now proposes to modernize the recruitment advertising rule by requiring employers to post the jobs online instead of in print. The DOL’s notice explained that it believes online postings would more effectively and efficiently give U.S. workers notice of job opportunities. Further, the notice explained that the DOL intends to only require online advertisements, which would render newspaper advertisements unnecessary. U.S. Secretary of Agriculture Sonny Perdue issued a press release in support of the DOL’s proposal. The public may submit comments to the DOL about the proposed rule. Those wishing to comment may do so until December 10th, 2018, by visiting the proposed rule’s webpage in the Federal Register.
LLC agreement to adjust member financial contributions must be in writing. The Ohio Fourth District Court of Appeals recently affirmed a decision finding a verbal agreement to adjust contributions between members of a Limited Liability Company (LLC) to be unenforceable, even if the other party admitted to making the statements. Ohio Revised Code § 1715.09(B) requires a signed writing in order to enforce a “promise by a member to contribute to the limited liability company,” and therefore the court could not enforce an oral agreement to adjust contributions. The Fourth District Court of Appeals heard the case of Gardner v. Paxton, which was originally originally filed in the Washington County Court of Common Pleas. The plaintiff, Mr. Gardener, argued that his business partner breached an agreement to share in LLC profits and losses equally. In order to share equally, both parties would have needed to adjust their contributions, but Mr. Paxton only made verbal offers that were never reduced to writing. Because there was no writing, Mr. Paxton’s statements were not enforceable by his business associate against him.
Ohio legislation on the move:
The Ohio General Assembly has returned from the midterm elections with a potentially busy lame duck session ahead of it. Already a number of bills that we have been monitoring have seen activity in their respective committees.
- Ohio Senate Agriculture Committee held first hearing on multi-parcel auction bill. State senators heard testimony on House Bill 480 last Tuesday, November 13th. The bill would authorize the Ohio Department of Agriculture to regulate multi-parcel auctions, which are currently not specifically addressed in the Ohio Revised Code. The bill also defines “multi-parcel auction,” saying such an auction is one involving real or personal property in which multiple parcels or lots are offered for sale in part or in whole. The bill would also establish certain advertising requirements. The bill’s primary sponsor, Representative Brian Hill of Zanesville, says that he introduced the bill in an effort to recognize by statute what auctioneers are already doing, and to do so without interrupting the industry. The bill passed the Ohio House of Representatives 93-0 in June. For more information on the legislation, visit the House Bill 480 page on Ohio General Assembly’s website or view this bill analysis prepared by the Ohio Legislative Service Commission.