Although agriculture continues to march steadily toward increasing automation and mechanization, many crops are still quite labor intensive. Many of these labor-intensive operations face a harsh reality—there are certain jobs Americans are no longer willing to do. Faced with the prospect of allowing crops to rot in the field, many producers turn to foreign workers to meet their labor needs.
While a substantial portion of the foreign agricultural labor supply consists of undocumented workers and permanent residents (Green Card holders), another option for temporary labor needs are H-2A visa workers. H-2A visas are available for nonimmigrant, temporary workers that perform agricultural labor on a temporary or seasonal basis. Agricultural operations can apply with the U.S. Department of Labor (DOL) for approval to hire H-2A workers if they can demonstrate it is impossible to fill all open employment positions with American employees.
Taking on H-2A employees is a major responsibility for any employer. Historically, migrant workers have, in too many instances, been exploited by unscrupulous employers. To protect these vulnerable workers, DOL has instituted a number of requirements for employers of H-2A workers. Here are some highlights of the requirements:
- Disclosure. Prior to commencing work, the employer must provide the H-2A worker a written contract regarding wages, hours, working conditions and benefits written in a language the employee understands.
- Wages. H-2A workers must be paid at least twice per month at the rate stated in their contract. The employer must also provide a written statement of earnings for each pay period disclosing any deductions from the worker’s paycheck. In addition, the employees must receive at least 75% of the wages promised in the work contract.
- Transportation. Employers are required to cover transportation costs for their H-2A employees. If employees bear their own costs to travel from their home country or another worksite, the employer must reimburse these travel expenses upon completion of 50% of the work contract period (or earlier). Upon completion of the work contract, the employer is responsible for covering H-2A employees’ costs to return to their home country or next worksite. Furthermore, employers are responsible for furnishing free transportation to worksites.
- Housing. H-2A employers are required to provide safe and adequate housing at no cost to the employee, unless the employee is able to return to his/her home every night. If an H-2A worker lives in employer-provided housing, the employer must also provide three meals a day at no more than costs specified by DOL, or the employer must provide free kitchen facilities.
- U.S. Worker Protections. The H-2A program is designed to incentivize hiring U.S. workers when possible. As such, employers are not eligible to hire H-2A employees if they have laid off U.S. workers within 60 days. Employers must also hire any qualified U.S. workers that apply for positions during the first 50% of the work contract. H-2A workers must be paid at least the minimum wage established by DOL for the applicable labor market.
- Other Protections. Employers of H-2A workers are required to provide state worker’s compensation insurance or its equivalent for all employees. Workers must be provided with all tools, supplies and personal protective equipment at no extra charge. Furthermore, employers are prohibited from charging workers reimbursement costs for H-2A applications or recruitment fees.
Hiring H-2A workers makes sense for many operations. However, there are numerous legal considerations. To learn more about hiring H-2A workers and ensure you are in compliance with the law, visit www.wagehour.dol.gov.
This column is not a substitute for legal advice.