February 12, 2010
Labor Dept. announces new rules for H-2A
U.S. Secretary of Labor, Hilda Solis announced tough new regulations on wages and job safety protections for temporary agricultural workers. The new rules, which will go into effect in time for the 2010 growing season, “reflect the Administration’s commitment to providing fair wages and strong labor protections for this vulnerable group of workers,” said Secretary Solis:
“This new rule will make it possible for all workers who are working hard on American soil to receive fair pay while at the same time expand opportunities for U.S. workers. The actions that we have taken through this rulemaking also will enable us to detect and remedy different forms of worker violations.”
The H-2A guest worker program allows farm owners to hire foreign workers to fill jobs owners say most Americans do not want. In reality, many farm owners have used the program as a steady source of cheap, easily exploitable labor while doing little to promote job openings to American workers.
Melinda Wiggins, Executive Director at the Durham-based non-profit, Student Action with Farmworkers, said the new regulations will lead to positive change in how these workers are treated:
“While there are still a number of improvements needed in the H2A program, the new wage rate formula, travel reimbursement requirements, and pre-occupancy inspection of housing are steps in the right direction.
“These changes bode well for the future of agricultural workers in our country. We look forward to more changes from the US Department of Labor that will improve the labor conditions of one of the worst paid and least protected group of workers in our country.”
What the new rules will mean for farm workers
Major features of the final rule issued by D.O.L. include a requirement that employers provide documentation to the Department proving that they are in compliance with the law. Prior to the new rule, employers only had to say so.
The new rule will increase wages for farm workers on average by over a dollar an hour. Additionally, the Wage and Hour Division has been given independent authority to levy civil money penalties against and even disbar farm employers from the H-2A program for violations, including housing violations.
The new rule also reinstates the requirement that State Workforce Agencies inspect and approve employer-provided housing before the Department issues an H-2A permit. Also, the SWA will once again be able to assist employers in ways that will expand job opportunities for U.S. workers.
The Department will create a national electronic registry of jobs for all H-2A job orders “to improve U.S. worker access to agricultural jobs and help growers find workers from across the U.S.”
Significantly, the new rule closes a major loophole that had allowed farm employers to discourage U.S. workers from taking jobs by paying them lower wages and benefits than foreign workers. The protections of the H-2A program are now extended to all workers in “corresponding employment” – including any work on the job order.
H-2A labor contractors will now be forbidden from hiring workers and moving them from site to site under the same certification. These contractors will face the same regulations as fixed-site farm employers.
Employers will now be required to provide workers with copies of the job orders no later than before departure – including from their home countries, and they’ll be required to display a poster describing employee rights and protections at the work site in English or whatever other language workers understand.
Employers will no longer be able to use the H-2A program to replace workers who are on strike or locked out. The rule change issued by the Obama Department of Labor prohibits approval for H-2A certification at any of these work sites.
Righting wrongs of previous administration
The action taken this week by Secretary Solis is in many ways a reversal of last-minute rule changes forced through by Bush Secretary of Labor Elaine Chao.
“The new regulations in large part reinstate the regulations which had worked fairly well since 1987, when they were adopted after the changes in the H-2 program in the Immigration Reform and Control Act of 1986,” says MaryLee Hall, Managing Attorney at Legal Aid of North Carolina’s Farmworker Unit:
“These 1987 regulations, in effect for more than 20 years, were gutted by the midnight H-2A regulations promulgated by Secretary of Labor Elaine Chao, which became effective on January 17, 2009, 3 days before President Obama took office.
“The new regulations promulgated by Secretary of Labor Hilda Solis this week reinstate the effective preference for U.S. workers […] as well as the protections for both U.S. and H-2A workers. In addition, the new regulations include some of the improved enforcement measures in the Chao regulations as well as some sensible, streamlined processing and enforcement provisions.
“Although not perfect, they are a vast improvement over the Chao regulations under which H-2A wages fell by more than $2 per hour to the federal minimum wage for most workers on farms employing H-2A workers in North Carolina.”
“This is a victory for our nation’s farmworkers,” said Bruce Goldstein, Executive Director of Farmworker Justice, a national farmworker advocacy group based in Washington DC:
“It’s a reversal of radical anti-worker policies imposed by the previous administration that irresponsibly stripped away basic procedures and worker protections set in place by a Republican administration in 1987.”