Proposed Rule2023-19852
Improving Protections for Workers in Temporary Agricultural Employment in the United States
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
September 15, 2023
Issuing agencies
Labor DepartmentEmployment and Training AdministrationWage and Hour Division
Abstract
The Department of Labor (Department or DOL) proposes to amend its regulations governing the certification of temporary employment of nonimmigrant workers employed in temporary or seasonal agricultural employment and the enforcement of the contractual obligations applicable to employers of these nonimmigrant workers. The revisions proposed in this notice of proposed rulemaking (NPRM or proposed rule) focus on strengthening protections for temporary agricultural workers and enhancing the Department's capabilities to monitor program compliance and take necessary enforcement actions against program violators.
Full Text
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[Federal Register Volume 88, Number 178 (Friday, September 15, 2023)]
[Proposed Rules]
[Pages 63750-63832]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-19852]
[[Page 63749]]
Vol. 88
Friday,
No. 178
September 15, 2023
Part III
Department of Labor
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Employment and Training Administration
Wage and Hour Division
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20 CFR Parts 651, 653, 655, et al.
29 CFR Part 501
Improving Protections for Workers in Temporary Agricultural Employment
in the United States; Proposed Rule
Federal Register / Vol. 88 , No. 178 / Friday, September 15, 2023 /
Proposed Rules
[[Page 63750]]
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DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Parts 651, 653, 655, and 658
Wage and Hour Division
29 CFR Part 501
[DOL Docket No. ETA-2023-0003]
RIN 1205-AC12
Improving Protections for Workers in Temporary Agricultural
Employment in the United States
AGENCY: Employment and Training Administration and Wage and Hour
Division, Department of Labor.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Department of Labor (Department or DOL) proposes to amend
its regulations governing the certification of temporary employment of
nonimmigrant workers employed in temporary or seasonal agricultural
employment and the enforcement of the contractual obligations
applicable to employers of these nonimmigrant workers. The revisions
proposed in this notice of proposed rulemaking (NPRM or proposed rule)
focus on strengthening protections for temporary agricultural workers
and enhancing the Department's capabilities to monitor program
compliance and take necessary enforcement actions against program
violators.
DATES: Interested persons are invited to submit written comments on the
proposed rule on or before November 14, 2023.
ADDRESSES: You may submit comments electronically by the following
method:
Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow the
instructions on the website for submitting comments.
Instructions: Include the agency's name and docket number ETA-2023-
0003 in your comments. All comments received will become a matter of
public record and will be posted without change to <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Please do not include any personally identifiable
or confidential business information you do not want publicly
disclosed.
FOR FURTHER INFORMATION CONTACT: For further information regarding 20
CFR parts 651, 653, and 658, contact Kimberly Vitelli, Administrator,
Office of Workforce Investment, Employment and Training Administration,
Department of Labor, Room C-4526, 200 Constitution Avenue NW,
Washington, DC 20210, telephone: (202) 693-3980 (this is not a toll-
free number). For further information regarding 20 CFR part 655,
contact Brian Pasternak, Administrator, Office of Foreign Labor
Certification, Employment and Training Administration, Department of
Labor, 200 Constitution Avenue NW, Room N-5311, Washington, DC 20210,
telephone: (202) 693-8200 (this is not a toll-free number). For further
information regarding 29 CFR part 501, contact Amy DeBisschop, Director
of the Division of Regulations, Legislation, and Interpretation, Wage
and Hour Division, Department of Labor, Room S-3502, 200 Constitution
Avenue NW, Washington, DC 20210, telephone: (202) 693-0406 (this is not
a toll-free number). Individuals with hearing or speech impairments may
access the telephone number above via TTY by calling the toll-free
Federal Information Relay Service at 1-800-877-5627.
SUPPLEMENTARY INFORMATION:
Preamble Table of Contents
I. Acronyms and Abbreviations
II. Background and Overview
A. Legal Authority
B. Current Regulatory Framework
C. Need for Rulemaking
D. Summary of Major Provisions of This Proposed Rule
III. Discussion of Proposed Revisions to Employment Service
Regulations
A. Introduction
B. Discussion of Proposed Revisions to 20 CFR Part 651
C. Discussion of Proposed Revisions to 20 CFR Part 653
D. Discussion of Proposed Revisions to 20 CFR Part 658, Subpart
F
IV. Discussion of Proposed Revisions to 20 CFR Part 655, Subpart B
A. Introductory Sections
B. Prefiling Procedures
C. Application for Temporary Employment Certification Filing
Procedures
D. Labor Certification Determinations
E. Post-Certification
F. Integrity Measures
V. Discussion of Proposed Revisions to 29 CFR Part 501
A. Section 501.3 Definitions
B. Section 501.4 Discrimination Prohibited
C. Section 501.10 Severability
D. Sections 501.20, 501.33, 501.42 Debarment and Revocation
E. Section 501.33 Request for Hearing
VI. Administrative Information
A. Executive Order 12866: Regulatory Planning and Review;
Executive Order 14094: Modernizing Regulatory Review; and Executive
Order 13563: Improving Regulation and Regulatory Review
B. Regulatory Flexibility Analysis and Small Business Regulatory
Enforcement Fairness Act and Executive Order 13272: Proper
Consideration of Small Entities in Agency Rulemaking
C. Paperwork Reduction Act
D. Unfunded Mandates Reform Act of 1995
E. Executive Order 13132 (Federalism)
F. Executive Order 13175 (Consultation and Coordination With
Indian Tribal Governments)
I. Acronyms and Abbreviations
AEWR Adverse effect wage rate
AIE Area(s) of intended employment
ALJ Administrative Law Judge
AOWL Agricultural Online Wage Library
ARB Administrative Review Board
ARIMA Autoregressive integrated moving average
BALCA Board of Alien Labor Certification Appeals
BLS Bureau of Labor Statistics
CBA Collective bargaining agreement
CDC Centers for Disease Control and Prevention
CFR Code of Federal Regulations
CO Certifying Officer
CY Calendar year
DBA Doing Business As
DHS Department of Homeland Security
DOJ Department of Justice
DOL Department of Labor
DOT Department of Transportation
EEOC Equal Employment Opportunity Commission
E.O. Executive Order
ES Employment Service
ES system Employment Service system
ETA Employment and Training Administration
FEIN Federal Employer Identification Number
FLS Farm Labor Survey
FLSA Fair Labor Standards Act
FR Federal Register
FY Fiscal year
GAO Government Accountability Office
GHSA Governors Highway Safety Association
GVWR Gross vehicle weight rating
H-2ALC H-2A labor contractor
HR Human resources
ICR Information Collection Request
INA Immigration and Nationality Act
IRCA Immigration Reform and Control Act of 1986
MSFW Migrant or seasonal farmworker
MSPA Migrant and Seasonal Agricultural Worker Protection Act
NAICS North American Industry Classification System
NGO Nongovernmental organization
NHTSA National Highway Traffic Safety Administration
NLRA National Labor Relations Act
NLRB National Labor Relations Board
NMA National Monitor Advocate
NOD Notice of Deficiency
NPC National Processing Center
NPRM Notice of proposed rulemaking
OALJ Office of Administrative Law Judges
OEWS Occupational Employment and Wage Statistics
OFLC Office of Foreign Labor Certification
OIG Office of Inspector General
OIRA Office of Information and Regulatory Affairs
OMB Office of Management and Budget
OSHA Occupational Safety and Health Administration
PRA Paperwork Reduction Act
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Pub.L. Public Law
PY Program year
RFA Regulatory Flexibility Act
RIN Regulation Identifier Number
SBA Small Business Administration
Sec. Section of a Public Law
Secretary Secretary of Labor
SOC Standard Occupational Classification
Stat. U.S. Statutes at Large
SWA State workforce agency
TVPA Victims of Trafficking and Violence Protection Act of 2000
UMRA Unfunded Mandates Reform Act of 1995
U.S. United States
U.S.C. United States Code
USDA U.S. Department of Agriculture
VSL Value of a statistical life
WHD Wage and Hour Division
II. Background and Overview
A. Legal Authority
The Immigration and Nationality Act (INA), as amended by the
Immigration Reform and Control Act of 1986 (IRCA), establishes an ``H-
2A'' nonimmigrant visa classification for a worker ``having a residence
in a foreign country which he has no intention of abandoning who is
coming temporarily to the United States to perform agricultural labor
or services . . . of a temporary or seasonal nature.'' 8 U.S.C.
1101(a)(15)(H)(ii)(a); see also 8 U.S.C. 1184(c)(1) and 1188.\1\
Permanent, year-round job opportunities cannot be classified as
temporary or seasonal. 2022 H-2A Final Rule, 87 FR 61660, 61684 (Oct.
12, 2022); see also 8 U.S.C. 1101(a)(15)(H)(ii)(a) (the INA permits
only ``agricultural labor or services . . . of a temporary or seasonal
nature'' to be performed under the H-2A visa category).
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\1\ For ease of reference, sections of the INA are referred to
by their corresponding section in the United States Code.
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The H-2A nonimmigrant worker visa program enables U.S. agricultural
employers to employ foreign workers on a temporary basis to perform
temporary or seasonal agricultural labor or services only where the
Secretary of Labor (Secretary) certifies that (1) there are not
sufficient workers who are able, willing, and qualified, and who will
be available at the time and place needed, to perform the labor or
services involved in the petition, and (2) the employment of the
foreign worker in such labor or services will not adversely affect the
wages and working conditions of workers in the United States similarly
employed. 8 U.S.C. 1188(a)(1).\2\ The INA prohibits the Secretary from
issuing this certification--known as a ``temporary agricultural labor
certification''--unless both of the above-referenced conditions are
met. The INA further prohibits the Secretary from issuing a temporary
agricultural labor certification if any of the conditions in 8 U.S.C.
1188(b) apply concerning strikes or lock-outs, labor certification
program debarments, workers' compensation assurances, and positive
recruitment.
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\2\ Following certification by DOL, the employer must file an H-
2A petition (defined at 20 CFR 655.103(b) as the U.S. Citizenship
and Immigration Services (USCIS) Form I-129, Petition for a
Nonimmigrant Worker, with H Supplement or successor form and/or
supplement, and accompanying documentation required by DHS for
employers seeking to employ foreign persons as H-2A nonimmigrant
workers) with USCIS, requesting one or more workers not to exceed
the total listed on the temporary labor certification. Generally,
USCIS must approve this petition before the worker(s) can be
considered eligible for an H-2A visa or for H-2A nonimmigrant
status.
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The Secretary has delegated the authority to issue temporary
agricultural labor certifications to the Assistant Secretary for
Employment and Training, who in turn has delegated that authority to
the Employment and Training Administration's (ETA) Office of Foreign
Labor Certification (OFLC). See Secretary's Order 06-2010 (Oct. 20,
2010), 75 FR 66268 (Oct. 27, 2010). In addition, the Secretary has
delegated to WHD the responsibility under 8 U.S.C. 1188(g)(2) to assure
employer compliance with the terms and conditions of employment under
the H-2A program. See Secretary's Order 01-2014 (Dec. 19, 2014), 79 FR
77527 (Dec. 24, 2014). Pursuant to the INA and implementing regulations
promulgated by DOL and the Department of Homeland Security (DHS), DOL
evaluates an employer's need for agricultural labor or services to
determine whether it is seasonal or temporary during the review of an
H-2A Application. 20 CFR 655.161(a); 8 CFR 214.2(h)(5)(i)(A) and
(h)(5)(iv).
B. Current Regulatory Framework
Since 1987, the Department has operated the H-2A temporary labor
certification program under regulations promulgated pursuant to the
INA. The standards and procedures applicable to the certification and
employment of workers under the H-2A program are found in 20 CFR part
655, subpart B, and 29 CFR part 501. The majority of the Department's
current regulations governing the H-2A program were published in 2010
and many were strengthened in a final rule the Department published in
October 2022.\3\ The Department incorporated the provisions for
employment of workers in the herding and production of livestock on the
range into the H-2A regulations, with modifications, in 2015.\4\ The
provisions governing the employment of workers in the herding and
production of livestock on the range are codified at 20 CFR 655.200
through 655.235.\5\
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\3\ Final Rule, Temporary Agricultural Employment of H-2A Aliens
in the United States, 75 FR 6884 (Feb. 12, 2010) (2010 H-2A Final
Rule); Final Rule, Temporary Agricultural Employment of H-2A
Nonimmigrants in the United States, 87 FR 61660 (Oct. 12, 2022)
(2022 H-2A Final Rule).
\4\ Final Rule, Temporary Agricultural Employment of H-2A
Foreign Workers in the Herding or Production of Livestock on the
Range in the United States, 80 FR 62958 (Oct. 16, 2015) (2015 H-2A
Herder Final Rule).
\5\ Consistent with a court-approved settlement agreement in
Hispanic Affairs Project, et al. v. Scalia et al., No. 15-cv-1562
(D.D.C.), the Department recently rescinded 20 CFR 655.215(b)(2).
Final Rule, Adjudication of Temporary and Seasonal Need for Herding
and Production of Livestock on the Range Applications Under the H-2A
Program, 86 FR 71373 (Dec. 16, 2021).
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The Department protects against adverse effect on the wages of
workers in the United States similarly employed, in part, by requiring
at Sec. 655.120(a) that an employer offer, advertise in its
recruitment, and pay a wage that is the highest of the adverse effect
wage rate (AEWR), the prevailing wage, the agreed-upon collective
bargaining wage, the Federal minimum wage, or the State minimum wage.
If an updated AEWR for the occupational classification and geographic
area is published during the work contract and becomes the highest
applicable wage rate, the employer must pay at least the updated AEWR
upon the effective date of the updated AEWR, as published in the
Federal Register. Section 655.120(b)(3). In accordance with Sec.
655.120(b)(2) and (3), the Department publishes the updated AEWR at
least once annually in the Federal Register. One Federal Register
notice provides annual adjustments to the AEWRs for the field and
livestock workers (combined) occupational grouping based on the U.S.
Department of Agriculture's (USDA) publication of the Farm Labor
Reports (better known as the Farm Labor Survey, or FLS), effective on
or about January 1, and a second Federal Register notice will provide
annual adjustments to the AEWRs for all other non-range occupations
based on the Department's Bureau of Labor Statistics' (BLS) publication
of the Occupational Employment and Wage Statistics (OEWS) survey,
effective on or about July 1.\6\ Each notice specifies the effective
date of the new AEWRs, which, in recent notices, has been not
[[Page 63752]]
more than 14 calendar days after publication.
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\6\ 2022 H-2A Final Rule; Final Rule, Adverse Effect Wage Rate
Methodology for the Temporary Employment of H-2A Nonimmigrants in
Non-Range Occupations in the United States, 88 FR 12760 (Feb. 28,
2023) (2023 AEWR Final Rule).
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OFLC currently requires disclosure of information about the
identity of employers, agents, and attorneys, the places where work
will be performed, and the employer's use of a foreign labor recruiter
through the provision of agreements with recruiters when requested by
the certifying officer (CO), which is necessary for the Department to
assess the nature of the employer's job opportunity, monitor program
compliance, and protect program integrity. See Sec. 655.135(k); Form
ETA-9142A; Form ETA-790A; Form ETA-790A, Addendum B. For example,
employers must identify in the H-2A Application and job order all
places of employment, provide the Department a copy of agreements with
foreign labor recruiters that expressly prohibit unlawful fees (upon
request by the CO), and provide identifying information like the
Federal Employer Identification Number (FEIN) and Doing Business As
(DBA) name on the Form ETA-9142A, Form ETA-790A, and Form ETA-790A,
Addendum B. OFLC may provide any information received while processing
H-2A applications, or in the course of conducting program integrity
measures to WHD and to any other Federal agency with authority to
enforce compliance with program requirements and combat fraud and
abuse. Section 655.130(f); 29 CFR 501.2 (providing that WHD and OFLC
may share information with each other and with other agencies as
appropriate for investigative or enforcement purposes). For example,
the Department may refer certain discrimination complaints to the
Department of Justice (DOJ) Civil Rights Division, Immigrant and
Employee Rights Section, under Sec. 655.185, or refer information
related to debarred employers or to employers' fraudulent or willful
misrepresentations to DHS under Sec. Sec. 655.182 and 655.184.
Under Sec. 655.145, an employer may request to amend its
application to increase the number of workers or to make minor changes
to the period of employment. In addition, an employer may request
modifications to its job order under Sec. 655.121(e)(2) before
submitting its H-2A Application. Current Sec. 655.145(b) permits the
employer to submit a request to the CO to delay the start date of need
when the delay is due to unforeseen circumstances and the employer's
crops or commodities will be in jeopardy prior to expiration of an
additional recruitment period. The employer's request to the CO must
explain the circumstances necessitating the request and the employer
must include with the request a written assurance that all workers who
are already traveling to the place of employment will be provided
housing and subsistence, without cost to the workers, until work
commences. The regulations do not permit amendments to an application
after the CO issues a Final Determination. An employer that experiences
changed circumstances after certification is required to submit a new
and substantially similar application and job order.
The regulations implementing the Wagner-Peyser Act establish the
Agricultural Recruitment System (ARS), through which employers can
recruit U.S. workers for agricultural employment opportunities, and
which prospective H-2A employers must use to recruit U.S. workers as a
condition of receiving a temporary labor certification. Among other
things, these regulations require employers to provide notice of
delayed start dates and provide protections for workers in cases where
the employer's start date is delayed. The ARS uses the term
``anticipated'' in relation to start dates and provides a process close
to the start date the employer identified in the job order through
which the employer, the State workforce agency (SWA), and referred
farmworkers communicate regarding the actual start date of work. See
Sec. 653.501(c)(1)(iv)(D), (c)(3)(i) and (iv), (c)(5), and (d)(4).
These regulations currently require an employer to notify the SWA of
start date changes at least 10 business days before the originally
anticipated start date and require the SWA to notify farmworkers that
they should contact the SWA between 9 and 5 business days before the
anticipated start date to verify the actual start date of work. Section
653.501(c)(5) and (d)(4). If an employer fails to timely notify the SWA
of a start date change (i.e., at least 10 business days before the
anticipated first date identified in the job order), beginning on the
first date of need, it must pay eligible workers the specified hourly
rate of pay as stated on the clearance order, or if the pay is piece-
rate, the higher of the Federal or State minimum wage for the first
week or offer alternative work to each farmworker who followed the
procedure to contact the SWA for updated start date information. See
Sec. 653.501(c)(3)(i) and (c)(5). Under the Department's H-2A
regulations at Sec. 655.145(b), if an employer requests a start date
delay after workers have departed for the place of employment, the
employer must assure the CO that it will provide housing and
subsistence to all workers who are already traveling to the place of
employment, without cost to the workers, until work commences. If an
employer fails to comply with its obligations, the SWA may notify WHD
for possible enforcement as provided in Sec. 653.501(c)(5), the SWA
may pursue discontinuation of services under part 658, subpart F, or
the Department may, either upon referral of the SWA or upon its own
initiative, pursue revocation of the labor certification under the
procedures at Sec. 655.181, or debarment of the employer under the
procedures at Sec. 655.182 or 29 CFR 501.20.
The regulations also currently permit the Department to debar an
employer, successor-in-interest to that employer, attorney, or agent
from participating in any action under 8 U.S.C. 1188, 20 CFR part 655,
subpart B, or 29 CFR part 501 if the employer, agent, or attorney
substantially violated a material term or condition of the temporary
agricultural labor certification with respect to H-2A workers, workers
in corresponding employment, or U.S. workers improperly rejected for
employment, improperly laid off or displaced. 20 CFR 655.182(a); 29 CFR
501.20(a). The Department provides the employer with a notice of
debarment in these cases and also provides an opportunity to appeal
these determinations using the procedures at 20 CFR 655.182(f) and 29
CFR 501.20(e) and 501.33. Similarly, the Wagner-Peyser Act regulations
at 20 CFR parts 653 and 658 currently require the SWA to discontinue
services if it determines an employer has committed one of several
violations enumerated at 20 CFR 658.501(a)(1) through (7), such as
misrepresentation of the terms and conditions of employment specified
on job orders or failure to comply fully with assurances made on job
orders.
As noted above, the Department recently published the 2022 H-2A
Final Rule, which strengthened worker protections in the H-2A program,
clarified the obligations of joint employers and the existing
prohibitions on fees related to foreign labor recruitment, authorized
debarment of agents and attorneys for their own misconduct, enhanced
surety bond obligations and related enforcement authorization,
modernized the prevailing wage determination process, enhanced
regulation of H-2A labor contractors (H-2ALCs), and provided additional
safeguards related to employer-provided housing and wage obligations.
87 FR 61660 (Oct. 12, 2022). In response to the NPRM published prior to
the 2022 H-2A Final Rule, the Department received many comments
suggesting changes that were beyond the scope of that rulemaking, such
as suggestions relating to increased
[[Page 63753]]
enforcement and transparency regarding the foreign labor recruitment
process, increased worker protections, revisions to the definition of
employer, stronger integrity provisions to account for complex business
organizations and for methods used to circumvent the regulations,
strengthening provisions related to piece rate pay, and suggestions to
revise the Wagner-Peyser Act regulations to ensure stronger protections
for workers in the event of harmful last-minute start date delays.
C. Need for Rulemaking
The Department proposes important provisions in this NPRM that will
further strengthen protections for agricultural workers and enhance the
Department's enforcement capabilities, thereby permitting more
effective enforcement against fraud and program violations. The
Department has determined the proposed revisions will help prevent
exploitation and abuse of agricultural workers and ensure that
unscrupulous employers do not financially gain from their violations or
contribute to economic and workforce instability by circumventing the
law, both of which would adversely affect the wages and working
conditions of workers in the United States similarly employed, and
undermines the Department's ability to determine whether there are, in
fact, insufficient U.S. workers for proposed H-2A jobs. It is the
policy of the Department to maintain robust protections for workers and
vigorously enforce all laws within its jurisdiction governing the
administration and enforcement of nonimmigrant visa programs. This
includes the coordination of the administration and enforcement
activities of ETA, WHD, and the Department's Office of the Solicitor in
the promotion of the hiring of U.S. workers and the safeguarding of
wages and working conditions for workers in the United States. In
addition, these agencies make criminal referrals to the Department's
Office of Inspector General (OIG) in appropriate circumstances, such as
when the agencies encounter visa-related fraud. The Department has
determined through program experience, recent litigation, challenges in
enforcement, comments on prior rulemaking, and reports from various
stakeholders that the proposals in this NPRM are necessary to
strengthen protections for agricultural workers, ensure that employers,
agents, attorneys, and labor recruiters comply with the law, and
enhance program integrity by improving the Department's ability to
monitor compliance and investigate and pursue remedies from program
violators. The recent surge in use of the H-2A program further
underscores the need to strengthen protections for this vulnerable
population.\7\
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\7\ See, e.g., Office of Foreign Labor Certification,
Performance Data, <a href="https://www.dol.gov/agencies/eta/foreign-labor/performance">https://www.dol.gov/agencies/eta/foreign-labor/performance</a> (providing disclosure data for the H-2A labor
certification program since FY 2008).
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The proposed rule aims to address some of the comments that were
beyond the scope of the 2022 H-2A Final Rule and concerns expressed by
various stakeholders during that rulemaking. It also seeks to respond
to recent court decisions and program experience indicating a need to
enhance the Department's ability to enforce regulations related to
foreign labor recruitment, and to improve accountability for
successors-in-interest and employers who use various methods to attempt
to evade the law and regulatory requirements, and to enhance worker
protections for a vulnerable workforce, as explained further in the
sections that follow.\8\
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\8\ The Department's enforcement experience demonstrates that
workers in agriculture, particularly H-2A workers, remain highly
vulnerable to workplace abuses. In FY 2022, WHD conducted 420
investigations of employers using the H-2A program, resulting in
more than $3.6 million assessed in back wages and more than $6.3
assessed in civil money penalties. Recent investigations have
demonstrated that H-2A workers continue to be vulnerable to human
trafficking; see, e.g., Press Release, U.S. Dep't of Just., Owner of
Farm Labor Contracting Company Pleads Guilty in Racketeering
conspiracy Involving the Forced Labor of Mexican Workers (Sept. 27,
2022), <a href="https://www.justice.gov/opa/pr/owner-farm-labor-contracting-company-pleads-guilty-racketeering-conspiracy-involving-forced">https://www.justice.gov/opa/pr/owner-farm-labor-contracting-company-pleads-guilty-racketeering-conspiracy-involving-forced</a>;
Jessica Looman, U.S. Dep't of Lab. Blog: Exposing the Brutality of
Human Trafficking (Jan. 13, 2022), <a href="https://blog.dol.gov/2022/01/13/exposing-the-brutality-of-human-trafficking">https://blog.dol.gov/2022/01/13/exposing-the-brutality-of-human-trafficking</a>. H-2A workers continue
to be vulnerable to retaliation when asserting their rights or
engaging in self advocacy; see, e.g., Press Release, U.S. Dep't of
Lab., Federal Court Orders Louisiana Farm, Owners to Stop
Retaliation After Operator Denied Workers' Request for Water,
Screamed Obscenities, Fired Shots (Oct. 28, 2021), <a href="https://www.dol.gov/newsroom/releases/whd/whd20211028-0">https://www.dol.gov/newsroom/releases/whd/whd20211028-0</a>; Press Release, U.S.
Dep't of Lab., U.S. Labor Department Obtains Order Stopping Arizona
Agricultural Employer from Abusing Workers, Exposing them to
Workplace Dangers (Oct. 28, 2022), <a href="https://www.dol.gov/newsroom/releases/whd/whd20221028-0">https://www.dol.gov/newsroom/releases/whd/whd20221028-0</a>. Additionally, recent vehicle crashes
involving agricultural workers demonstrate the need for
transportation reform; see, e.g., Press Release, U.S. Dep't of Lab.,
U.S. Department of Labor Urges Greater Focus on Safety by Employers,
Workers as Deaths, Injuries in Agricultural Transportation Incidents
Rises Sharply (Sept. 20, 2022), <a href="https://www.dol.gov/newsroom/releases/whd/whd20220920-0">https://www.dol.gov/newsroom/releases/whd/whd20220920-0</a>.
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Section D below provides an overview of major proposed changes,
followed by an in-depth section-by-section discussion of all proposed
changes. The Department is soliciting public comment on all aspects of
this proposed rule but has suggested in each section the types of
comments that would be most useful to the Department when considering
which provisions to include, exclude, or revise in the final rule.
Generally, the Department is most interested in comments that cite
evidence of the need to remedy through this rulemaking ongoing
violations, worker abuse or exploitation, coercion, employer or agent
subterfuge to avoid the law or other ways the Department's enforcement
of the law may be hindered to the detriment of H-2A workers and workers
in the United States impacted by the program and the Department's
ability to fulfill its statutory responsibilities. The Department is
particularly interested in comments that suggest ways the Department
can use this rulemaking to better protect the rights and liberties,
health and safety, and wages and working conditions of agricultural
workers and best safeguard the integrity of the H-2A program, while
continuing to ensure that responsible employers have access to willing
and available agricultural workers and are not unfairly disadvantaged
by employers that exploit workers and attempt to evade the law.
D. Summary of Major Provisions of This Proposed Rule
1. Protections for Workers Who Advocate for Better Working Conditions
and Labor Organizing Activities
The Department proposes revisions to Sec. 655.135 that will
provide stronger protections for workers protected by the H-2A program
to advocate for better working conditions on behalf of themselves and
their coworkers and prevent employers from suppressing this activity.
As detailed in Section IV, the Department believes that these proposed
protections are necessary to prevent an adverse effect on the working
conditions of workers in the United States similarly employed. 8 U.S.C.
1188(a)(1). These protections will significantly bolster the
Department's efforts to prevent such adverse effect because when H-2A
workers and other workers protected under the H-2A program cannot
advocate and negotiate with employers on their own behalf, employers
are able to impose exploitative working conditions that also leave H-2A
workers vulnerable to other abuses, and this unfairly deprives
similarly employed agricultural workers of jobs with better working
conditions. Specifically, the Department proposes to broaden Sec.
655.135(h), which prohibits unfair treatment, by expanding and
explicitly protecting certain activities workers must be able to engage
in
[[Page 63754]]
without fear of intimidation, threats, and other forms of retaliation.
For those workers engaged in agriculture as defined and applied in 29
U.S.C. 203(f), who are exempt from the protections of the National
Labor Relations Act (NLRA), 29 U.S.C. 151 et seq., the Department also
proposes in Sec. 655.135(h) to include some protections that the
Department believes will safeguard collective action. The Department
also proposes to add new provisions at Sec. 655.135(m) to ensure
employers do not interfere with efforts by vulnerable workers under the
H-2A program to advocate for better working conditions by including a
number of requirements that would advance worker voice and empowerment
and further protect the rights proposed under Sec. 655.135(h), and at
Sec. 655.135(n) to permit workers to invite or accept guests to worker
housing and provide labor organizations a narrow right of access to
worker housing, as explained in detail below.
2. Clarification of Justifiable Termination for Cause
The Department proposes to define ``termination for cause'' at
Sec. 655.122(n) by proposing six criteria that must be satisfied to
ensure that disciplinary and/or termination processes are justified and
reasonable, which are intended to promote the integrity and regularity
of any such processes. These proposed changes will help to ensure
employers do not arbitrarily and unjustly terminate workers, thereby
stripping them of essential rights to which they would otherwise be
entitled, and will assist the Department in determining whether an
individual worker was terminated for pretextual reasons.
3. Immediate Effective Date for Updated AEWRs
The Department proposes to revise Sec. 655.120(b)(2) to designate
the effective date of updated AEWRs as the date of publication in the
Federal Register, and to revise paragraph (b)(3) to state that the
employer is obligated to pay the updated AEWR immediately upon
publication of the new AEWR in the Federal Register. This change is
intended to help ensure workers are paid at least the updated AEWR, as
soon as it is published, for all work they perform, and thereby help to
ensure the employment of H-2A workers will not adversely affect the
wages and working conditions of workers in the United States similarly
employed.
4. Enhanced Transparency for Job Opportunity and Foreign Labor
Recruitment
The Department proposes new disclosure requirements to enhance
transparency in the foreign worker recruitment chain and bolster the
Department's capacity to protect vulnerable agricultural workers from
exploitation and abuse, as explained more fully below. The Department
proposes a new Sec. 655.137, Disclosure of foreign worker recruitment,
and a new Sec. 655.135(p), Foreign worker recruitment, that are
similar to the regulations governing disclosure of foreign worker
recruitment in the H-2B program. The proposed provisions would require
an employer and its attorney or agent, as applicable, to provide a copy
of all agreements with any agent or recruiter that the employer engages
or plans to engage in the recruitment of prospective H-2A workers,
regardless of whether the agent or recruiter is located in the United
States or abroad. The proposed provisions also would require the
employer to disclose the identity (i.e., name and, if applicable,
identification number) and geographic location of persons and entities
hired by or working for the foreign labor recruiter and any of the
agents or employees of those persons and entities who will recruit or
solicit prospective H-2A workers. As explained more fully below, the
Department proposes to gather the additional recruitment chain
information when the employer files its H-2A Application and will
require the employer to submit a proposed Form ETA-9142A, Appendix D,
that mirrors the Form ETA-9142B, Appendix C. Consistent with current
practice in the H-2B program, proposed Sec. 655.137(d) provides for
the Department's public disclosure of the names of the agents and
foreign labor recruiters used by employers. These additional
disclosures of information about the recruitment chain are necessary
for the Department to carry out its enforcement obligations, protect
vulnerable agricultural workers and program integrity, and ensure
equitable administration of the H-2A program for law abiding employers.
The Department also proposes to require the employer to provide the
full name, date of birth, address, telephone number, and email address
for the owner(s) of each employer, any person or entity who is an
operator of the place(s) of employment (including the fixed-site
agricultural business that contracts with the H-2ALC), and any person
who manages or supervises the H-2A workers and workers in corresponding
employment under the H-2A Application. The Department proposes to
revise the Form ETA-9142A to require, where applicable, additional
information about prior trade or DBA names the employer has used in the
most recent 3-year period preceding its filing of the H-2A Application.
The Department proposes conforming changes to Sec. Sec. 655.130 and
655.167 to clarify that the employer would be required to continue to
update the information required by the above paragraphs until the end
of the work contract period, including extensions thereto, and retain
this information post-certification and produce it upon request by the
Department. The Department believes the proposed disclosure
requirements will increase transparency in the international
recruitment chain, aid the Department in assessing the nature of the
job opportunity and the employer's need, enhance the Department's
ability to enforce the prohibition against recruitment-related fees and
to pursue remedies from program violators, assist the Department in
identifying potential successors in interest to debarred employers, and
better protect agricultural workers from abuse and exploitation in the
United States and abroad.
5. Enhanced Transparency and Protections for Agricultural Workers
a. Disclosure of Minimum Productivity Standards, Applicable Wage Rates,
and Overtime Opportunities
The Department proposes to revise Sec. 655.122(l) to require
employers to disclose any minimum productivity standards they will
impose as a condition of job retention, regardless of whether the
employer pays on a piece rate or hourly basis. This proposal is
intended to help ensure that agricultural workers are fully apprised of
the material terms and conditions of employment, including any
productivity standards that may serve as a basis for termination for
cause. Proposed changes at Sec. 655.122(n) would prohibit the employer
from terminating a worker for failure to meet a minimum productivity
standard if the employer did not disclose the standard in accordance
with Sec. 655.122(l). An existing regulatory provision, Sec.
655.122(b), would require that any such minimum productivity standard
be bona fide and normal and accepted among non-H-2A employers in the
same or comparable similar occupations and crops.
The Department also proposes to revise Sec. Sec. 655.120(a) and
655.122(l) to
[[Page 63755]]
require employers to offer and advertise on the job order any
applicable prevailing piece rate, the highest applicable hourly wage
rate, and any other rate the employer intends to pay, and to pay
workers the highest of these wage rates, as calculated at the time work
is performed. A new proposed Sec. 655.122(l)(4) would explicitly
require the employer to specify in the job order any applicable
overtime premium wage rate(s) for overtime hours worked and the
circumstances under which the wage rate(s) for such overtime hours will
be paid. These proposals are intended to help ensure that agricultural
workers are fully apprised of the material terms and conditions of
employment, including any productivity standards that may serve as a
basis for termination for cause, and to aid the Department in its
administration and enforcement of the H-2A program.
b. Enhanced Protections for Workers Through the Employment Service
System (ES System)
The Department proposes revisions to the Wagner-Peyser Act
implementing regulations at 20 CFR 653.501 to clarify an employer's
obligations in the event of a delayed start date and to make conforming
revisions to the H-2A regulations at 20 CFR 655.145 and a new Sec.
655.175 to clarify pre-certification H-2A Application amendments and
employer obligations in the event of post-certification changes to the
start date. As noted above, the current regulations require an employer
to provide notice to the ES Office holding the job order of delayed
start dates and impose obligations on employers that fail to provide
the requisite notice, but do not require employers to notify workers
directly of any such delay.
The Department proposes revisions to part 658, subpart F, and
related definitions at Sec. 651.10, regarding the discontinuation of
Wagner-Peyser Act Employment Service (ES) services to employers. The
Department proposes to clarify and expand the scope of entities whose
ES services can be discontinued to also include agents, farm labor
contractors, joint employers, and successors in interest. The
Department also proposes revisions to clarify the bases for
discontinuation at Sec. 658.501, and to clarify and streamline the
discontinuation procedures at Sec. Sec. 658.502 through 658.504,
including the notice requirements for SWAs, evidentiary requirements
for employers, when and how employers may request a hearing, and
procedures for requesting reinstatement. These changes are designed to
increase the reach and utility of the discontinuation of services
regulations, which SWAs have underutilized in recent years. These
proposed changes are described in more detail below.
c. Enhanced Transportation Safety Requirements
The Department proposes to revise Sec. 655.122(h)(4) to require
the provision, maintenance, and wearing of seat belts in most employer-
provided transportation, which would reduce the hazards associated with
agricultural worker transportation, thus making these jobs more
attractive to workers in the United States. Specifically, as explained
in detail below, the Department proposes to revise Sec. 655.122(h)(4)
to prohibit an employer from operating any employer-provided
transportation that is required by the U.S. Department of
Transportation (DOT) highway safety regulations to be manufactured with
seat belts unless all passengers and the driver are properly restrained
by seat belts meeting standards established by DOT. Essentially, if the
vehicle is manufactured with seat belts, the proposed rule would
require the employer to retain and maintain those seat belts in good
working order and ensure that each worker is wearing a seat belt before
the vehicle is operated.
d. Protection Against Passport and Other Immigration Document
Withholding
The Department proposes a new Sec. 655.135(o) that would directly
prohibit an employer from holding or confiscating a worker's passport,
visa, or other immigration or government identification documents,
independent of the employer's compliance with the Victims of
Trafficking and Violence Protection Act of 2000 (TVPA), Public Law 106-
386 (2000), 18 U.S.C. 1592(a), which is required under the current H-2A
regulations. The proposal is intended to better protect workers from
potential labor trafficking, as explained below.
e. Protections in the Event of a Minor Delay in the Start of Work
The Department proposes a new Sec. 655.175 that addresses post-
certification changes currently addressed at Sec. 655.145(b) and
proposes new obligations and procedures in the event an employer must
briefly delay the start of work due to unforeseen circumstances that
jeopardize crops or commodities prior to the expiration of an
additional recruitment period. Proposed Sec. 655.175 limits minor
delays to 14 calendar days or less and would require an employer to
notify each worker and the SWA of any delay in the start date of work.
Consistent with Sec. 653.501(c), proposed Sec. 655.175 includes new
compensation obligations that would require the employer to pay workers
the applicable wage rate for each day work is delayed, for a period of
up to 14 calendar days, starting with the certified start date, if the
employer fails to provide adequate notice of the delay.
6. Enhanced Integrity and Enforcement Capabilities
a. Reduced Submission Periods for Appeal Requests for Debarment Matters
and Submittal of Rebuttal Evidence to OFLC
To help protect and uphold program integrity, and to further
protect workers in the United States, the Department proposes to
increase the speed with which debarments become effective by decreasing
the time for parties to submit rebuttal evidence to OFLC, the time for
parties to appeal Notices of Debarment to the Office of Administrative
Law Judges (OALJ), and the time for parties to appeal debarment
decisions to the ARB from the OALJ. This would lead to faster final
agency adjudications and thereby better protect and uphold program
integrity and agricultural workers by more efficiently and effectively
preventing H-2A program violators from accessing the program. As
explained more fully below, the Department proposes to amend Sec.
655.182(f)(1) and (2) by reducing the period to file rebuttal evidence
from 30 calendar days to 14 calendar days, unless the employer requests
an extension of the allowable rebuttal period, in writing, and
demonstrates good and substantial cause necessitating an extension. For
the same reasons, the Department also proposes to shorten the time to
appeal the OFLC Administrator's Notice of Debarment, in lieu of
submitting rebuttal evidence; to shorten the time to appeal the OFLC
Administrator's final determination, after review of rebuttal evidence;
to shorten the time for all parties to request review of OFLC
debarments by the ARB from 30 days to 14 calendar days; to shorten the
time to request a hearing with the OALJ on any WHD determination
involving debarment from 30 calendar days to 14 calendar days; and also
to shorten the time for all parties to request review by the ARB of an
OALJ determination involving debarment from 30 days to 14 calendar
days. Determinations by the WHD Administrator that do not include
debarment, but only include, for example, an assessment of civil money
[[Page 63756]]
penalties or the payment of back wages, would retain a 30-calendar-day
timeframe for appeal to the OALJ and to the ARB.
b. Enhancements to the Department's Ability To Apply Orders of
Debarment Against Successors-in-Interest
The Department proposes a new Sec. 655.104 regarding successors in
interest, that would clarify the liability of successors in interest
for debarment purposes and streamline the Department's procedures to
deny labor certifications filed by or on behalf of successors in
interest to debarred employers, agents, and attorneys. The Department
proposes conforming revisions to Sec. Sec. 655.103(b), 655.181, and
655.182 and 29 CFR 501.20. These proposed revisions are intended to
better reflect the liability of successors in interest under the well-
established successorship doctrine, and to better ensure that debarred
entities do not circumvent the effects of debarment.
c. Defining the Single Employer Test for Assessing Temporary Need, or
for Enforcement of Contractual Obligations
The Department proposes to define the term single employer at a new
Sec. 655.103(e) and proposes factors to determine if multiple
nominally separate employers are acting as one. Defining the term would
codify the Department's long-standing practice of using the single
employer test (sometimes referred to as an ``integrated employer''
test), or similar analysis, to determine if separate employers are a
single employer for purposes of assessing seasonal or temporary need,
or for enforcement of contractual obligations. In relation to seasonal
or temporary need, the Department has received applications for
temporary labor certification that purport to be for job opportunities
with different employers when, in reality, the workers hired under
these certifications are employed by companies so intertwined that they
are operating as a de facto single employer in one area of intended
employment for a period of need that is not truly temporary or
seasonal. In its enforcement experience, the Department has
increasingly encountered H-2A employers that employ H-2A workers under
one corporate entity and domestic workers under another, creating the
appearance that the H-2A employer has no non-H-2A workers in
corresponding employment when actually, the corporate entities are so
intertwined that all the H-2A workers are employed by a single H-2A
employer, and the non-H-2A workers are engaged in corresponding
employment. Some employers have attempted to use these arrangements to
avoid the obligation to offer workers in corresponding employment the
terms and conditions offered to H-2A workers, including the required
wage rate. Codifying the definition of single employer will prevent
employers from using their corporate structures to circumvent statutory
and regulatory requirements.
III. Discussion of Proposed Revisions to Employment Service Regulations
A. Introduction
In this proposed rule, the Department proposes to revise the ES
regulations (20 CFR parts 651 through 654 and 658 and 29 CFR part 75)
that implement the Wagner-Peyser Act of 1933. These regulations include
the provision of ES services with a particular emphasis on migrant or
seasonal farmworkers (MSFWs), as well as provisions governing the
discontinuation of ES services to employers. The proposed rule will
update the language and content of the regulations to, among other
things, improve and strengthen the regulations governing
discontinuation of ES services to employers, including the applicable
bases and procedures. In some areas, these proposals establish entirely
new responsibilities and procedures; in other areas, the proposals
clarify and update requirements already established. The proposed
revisions make important changes to the following components of the ES
system: definitions, requirements for processing clearance orders, and
the discontinuation of ES services provided to employers.
The Wagner-Peyser Act of 1933 provided the Department the authority
to establish a national ES system to improve the functioning of the
nation's labor markets by bringing together individuals seeking
employment with employers seeking workers. Section 3(a) of the Act sets
forth the basic responsibilities of the Department, which include
assisting in coordinating the State public employment service offices
throughout the country and in increasing their usefulness by
prescribing standards for efficiency, promoting uniformity in
procedures, and maintaining a system of clearing labor between the
States.
To that end, the ES system provides labor exchange services to its
participants and has undergone numerous changes to align its activities
with broader national workforce development policies and statutory
requirements. The Workforce Innovation and Opportunity Act, passed in
2014, expanded upon the previous workforce reforms in the Workforce
Investment Act of 1998 and, among other things, identified the ES
system as a core program in the One-Stop local delivery system, also
called the American Job Center network.
In 1974, the case National Ass'n for the Advancement of Colored
People (NAACP), Western Region, et al. v. Brennan et al., No. 2010-72,
1974 WL 229 (D.D.C. Aug. 13, 1974) resulted in a detailed court order
mandating various Federal and State actions consistent with applicable
law (referred to as the Judge Richey Court Order, or Richey Order). The
Richey Order required the Department to implement and maintain a
Federal and State monitoring and advocacy system and set forth
requirements to ensure the delivery of ES services, benefits, and
protections to MSFWs on a non-discriminatory basis, and to provide such
services in a manner that is qualitatively equivalent and
quantitatively proportionate to those provided to non-farmworkers. In
1977 and 1980, consistent with its authority under the Wagner-Peyser
Act, the Department published regulations at 20 CFR parts 651, 653, and
658 to implement the requirements of the Richey Order. Part 653 sets
forth standards and procedures for providing services to MSFWs and
provides regulations governing the ARS, a system for interstate and
intrastate agricultural job recruitment. Part 658 sets forth standards
and procedures for the administrative handling of complaints alleging
violations of ES regulations and of employment-related laws, the
discontinuation of services provided by the ES system to employers, the
review and assessment of State agency compliance with ES regulations,
and the Federal application of remedial action to State agencies.
Note that on April 20, 2022, the Department issued an NPRM
regarding Wagner-Peyser Act staffing (Staffing NPRM). 87 FR 23700 (Apr.
20, 2022). The Staffing NPRM included proposed changes to several
sections in 20 CFR parts 653 and 658 that govern the provision of ES
services to MSFWs. As relevant here, in the Staffing NPRM, the
Department proposed changes to 20 CFR 653.501(b)(4) and (c)(3) (ES
office and SWA requirements for processing clearance orders); Sec.
658.501(a)(4), (b), and (c); Sec. 658.502(a) and (b) (notification
requirements for discontinuation of ES services); and Sec. 658.504(a)
and (b) (procedures for reinstatement of ES services). 87 FR 23717,
23722, 23736, 23740-23741. In this proposed rule, the Department has
proposed further changes to these provisions, which in
[[Page 63757]]
some instances conflict with changes proposed in the Staffing NPRM.
Because the Department has not issued a final Staffing Rule, the
Department recognizes that the proposed changes in this rulemaking may
generate questions within the regulated community about how the
Department ultimately proposes to revise these provisions, including
how the proposed changes in this rulemaking affect the proposed changes
in the Staffing NPRM, and what the Department might do in finalizing
the changes proposed in the Staffing NPRM. Where this NPRM proposes
changes that conflict or intersect with changes proposed in the
Staffing NPRM, the Department will be using this proposed rule as the
operative rulemaking proceeding to provide notice and an opportunity to
comment on the proposed changes to the provisions referenced above.
Consistent with this approach, the Department does not intend to
finalize changes to the above referenced provisions in the Staffing
NPRM as part of that rulemaking proceeding. Any changes to the above
referenced provisions will be made through this rulemaking. The
Department has concluded that the proposed changes to these provisions
are better suited for this rulemaking because they are meant to
strengthen protections for agricultural workers and, therefore, better
align with the overall purpose of this rulemaking. Further, the
Department has concluded that this is the most transparent approach to
address the overlap, and is the approach that best minimizes confusion
within the regulated community while ensuring the public the full
opportunity to receive notice and provide comments on the proposed
changes.
B. Discussion of Proposed Revisions to 20 CFR Part 651
Part 651 (Sec. 651.10) sets forth definitions for parts 652, 653,
654, and 658. The Department proposes to add or revise the following
definitions primarily to clarify aspects of its discontinuation of
Wagner-Peyser Act ES regulation at 20 CFR part 658, including new
provisions that it proposes to add in this rulemaking. Where
appropriate, as discussed below, the Department has sought to align
these new definitions with the same or similar definitions at 20 CFR
655.103.
The Department proposes to add a definition to Sec. 651.10 for
agent as an entity authorized to act on behalf of employers with
respect to ES clearance system activities. The Department has observed
that individuals and entities meeting the proposed definition of agent
often engage the ES clearance system by submitting clearance orders on
behalf of employers, as defined in part 651, and control many aspects
of employers' recruitment activities relating to clearance orders.
Adding this proposed definition clarifies that agents (which include
attorneys) are among the entities subject to discontinuation of
services as a result of the proposed changes to part 658. Additionally,
because an employer's agent for purposes of the ES clearance system is
often the same agent that an employer uses for purposes of the H-2A
labor certification process, the Department proposes a definition of
agent at Sec. 651.10 that aligns with the definition of agent in Sec.
655.103.
The Department proposes to add definitions to Sec. 651.10 for
criteria clearance order and non-criteria clearance order because they
are terms that are currently used in the ES regulations but were
previously undefined. Adding the definitions clarifies that criteria
clearance orders are those placed in connection with an H-2A
Application filed pursuant to part 655, subpart B, while non-criteria
clearance orders are those not placed in connection with an H-2A
Application. By defining these terms, it will be clearer which orders
must comply with the requirements at part 653, subpart F, and part 655,
subpart B, and which orders do not have to comply with the requirements
at part 655, subpart B.
The Department proposes to add to Sec. 651.10 a definition for
discontinuation of services because it is referenced throughout the ES
regulations and is the subject of part 658, subpart F, but was
previously undefined. The proposed definition explains what services
would be unavailable pursuant to the process described in part 658,
subpart F, and the entities subject to discontinuation. Under the
proposed discontinuation of services, the scope of services to which
discontinuation applies includes any Wagner-Peyser Act ES service
provided by the ES to employers pursuant to parts 652 and 653. The
scope of individuals and entities to whom discontinuation applies
includes employers, as defined in part 651, and agents, farm labor
contractors, joint employers, and successors in interest, as proposed
to be defined in part 651.
The Department proposes to revise the definition of employment-
related laws to clarify that the term also includes the regulations
that implement employment-related laws in addition to the laws
themselves. Revising the definition clarifies its meaning and scope for
ES staff who observe or process complaints relating to violations of
employment-related laws, such as outreach workers, complaint system
representatives, and those who conduct field checks.
The Department proposes to add to Sec. 651.10 a definition for
farm labor contractor as an entity, excluding agricultural employers,
agricultural associations, or employees of agricultural employers or
agricultural associations, that agrees to recruit, solicit, hire,
employ, furnish, or transport an MSFW. The Department proposes to add
this definition to Sec. 651.10 because the term is used throughout the
ES regulations, most notably in part 653, subpart F, which recognizes
that farm labor contractors use the ES clearance system, but it has
never been defined. Adding this proposed definition also clarifies the
entities subject to discontinuation of services as a result of the
proposed changes to part 658. As with the term agent, because many farm
labor contractors that use the ES clearance system also seek temporary
labor certifications from OFLC as H-2ALCs under part 655, subpart B,
the Department proposes a definition of farm labor contractor that both
aligns with the definition of H-2A labor contractor found at 20 CFR
655.103 and with the definition of farm labor contractor and farm labor
contracting activity found at 29 U.S.C. 1802 and 29 CFR 500.20 to
maintain consistency between Departmental program areas.
The Department recognizes that joint employment relationships are
common in agriculture, and that joint employers are required to comply
with the requirements in part 653, subpart F, while filing a joint
application for temporary labor certification under 20 CFR part 655,
subpart B. See Sec. 655.131. The Department therefore proposes to add
a definition for joint employer to Sec. 651.10 to clarify how the
concept will be applied in the ES system and to clarify the entities
subject to discontinuation of services as a result of the proposed
changes to part 658. The proposed definition is also intended to ensure
consistency with recent changes to the Department's H-2A regulation, 87
FR 61660, 61793-61794 (Oct. 12, 2022), and as with the definitions of
agent and farm labor contractor, the proposed definition is modeled on
the definition of joint employment at 20 CFR 655.103 because of the
connection between the ES system and H-2A labor certification program.
The Department proposes to add to Sec. 651.10 a definition for
successor in interest that describes the inexhaustive factors that SWAs
should use to determine if an entity is a successor in interest to
another entity. The proposed
[[Page 63758]]
definition allows SWAs and stakeholders to better understand which
entities may be subject to discontinuation as a result of the proposed
changes to part 658. To maintain consistency between the regulations
governing the ES system and the regulations governing the H-2A labor
certification program, the Department proposes to adapt the definition
of successor in interest as proposed in Sec. 655.104.
The Department proposes to add a definition for week to clarify
that a week, as used in parts 652, 653, 654, and 658, means 7
consecutive calendar days. Adding the definition allows for SWAs and
employers to calculate time periods used in the ES regulations
uniformly, including for wage calculations and other time-related
procedures.
C. Discussion of Proposed Revisions to 20 CFR Part 653
Part 653 sets forth the principal regulations of the ES concerning
the provision of services for MSFWs consistent with the requirement
that all services of the workforce development system be available to
all job seekers in an equitable fashion and in a way ``that meets their
unique needs.'' 20 CFR 653.100(a). Part 653 also describes requirements
for participation in the ARS. Subpart F provides the requirements SWAs
and employers must follow when employers seek access to the ARS by
submitting clearance orders for temporary or seasonal farmwork. Section
653.501 provides the responsibilities of ES Offices and SWAs when they
review clearance orders submitted by employers, and the process by
which they place approved clearance orders into intra- and interstate
clearance. Once the order is approved and placed into clearance, ES
Offices and SWAs recruit and refer workers for the position described
on the clearance order.
The Department proposes to add a fourth paragraph to Sec.
653.501(b), at Sec. 653.501(b)(4), which would require ES staff to
consult the OFLC and WHD H-2A and H-2B debarment lists, and an ETA
Office of Workforce Investment discontinuation of services list, before
placing a job order into intrastate or interstate clearance. The
Department further proposes a new paragraph (b)(4)(i), which states
that SWAs must initiate discontinuation of ES services if the employer
seeking placement of a clearance order is on a debarment list, and new
paragraph (b)(4)(ii), which states that SWAs must not approve clearance
orders from employers whose ES services have been discontinued by any
State. Finally, the Department proposes a new paragraph (b)(4)(iii) to
make clear that the provisions in paragraph (b)(4) would apply to all
entities subject to discontinuation under part 658, subpart F, and not
just to employers as defined in Sec. 651.10.
The Department's mission is to promote the welfare of workers.
Regarding consultation with the H-2A and H-2B debarment lists, the
proposed additions are intended to further that mission by ensuring
that ES offices do not place U.S. workers with employers who are
presently barred from employing nonimmigrant workers via the H-2A and
H-2B visa programs. This requirement, and the proposed addition to
Sec. 658.501(a)(4), would protect workers by ensuring that the ES
system is not used to place a worker with an employer that has failed
to comply with its obligation(s) as an employer of foreign workers. As
with the H-2A program, employers participating in the H-2B program must
first file job orders through the SWA's labor exchange and therefore
must comply with ES requirements. As discussed more fully below in the
discussion of the proposed changes to Sec. 658.501(a)(4), the proposed
inclusion of H-2B programs also recognizes that employers seeking
nonimmigrant workers may improperly misclassify H-2A agricultural work
as H-2B non-agricultural work. The proposed addition seeks to protect
workers who use the ES system from employers who engage in improper
misclassification, and to maintain a fair labor system for employers
who seek temporary labor certification via the proper channels.
Additionally, the H-2A regulations at 20 CFR 655.182 and 29 CFR 501.20,
and the H-2B regulations at 20 CFR 655.73 and 29 CFR 503.24, describe
the violations that may result in an employer's debarment from
receiving future labor certifications under those programs. The
potential reasons for debarment include serious violations that could
affect worker safety, for example ``[a] single heinous act showing such
flagrant disregard for the law'' that future compliance with program
requirements cannot reasonably be expected (Sec. 655.182(d)(1)(x)).
Such reasons also include an employer's substantial failure to comply
with regulatory requirements, including an employer's failure to pay or
provide the required wages or working conditions, an employer's failure
to comply with its obligations to recruit U.S. workers, or an
employer's failure to cooperate with required audits or investigations.
In the Department's view, the employer subject to debarment should also
be excluded from participation in the ES system. The Department does
not want the ES system to facilitate placement of U.S. workers with
employers whom the Department has determined should not be permitted to
employ nonimmigrant workers through its H-2A and H-2B programs,
particularly where the U.S. workers may perform similar work and, thus,
be subject to the same or similar violations giving rise to the
employer's debarment.
Regarding consultation with the proposed Office of Workforce
Investment discontinuation of services list, as discussed below, the
effect of a final decision to discontinue services to an employer would
be to prohibit that employer from receiving any services from the ES
system, not just from offices in the State that discontinued services.
The Department recognizes that SWAs need a mechanism to ensure that
they are not providing services, including the processing and placement
of clearance orders, to entities whose services have been discontinued,
and that any such mechanism should be straightforward for the SWAs to
use for it to be effective. The Department believes that maintaining a
list of discontinued entities--like the debarment lists maintained by
OFLC and WHD--that SWAs could access when reviewing clearance orders is
the most straightforward approach to effectuate this goal. In order to
avoid unnecessary burden, SWAs and ES offices would consult the Office
of Workforce Investment discontinuation of services list and would not
provide ES services to any employers on the list, without having to go
through the steps described in part 658, subpart F, to discontinue
services to the same employer in their specific State. The Department
also notes that the proposed changes in part 658, subpart F, discussed
below, address the entities subject to discontinuation. Proposed Sec.
658.503(e) would mandate that if the SWA discontinues services to an
employer, the employer, which includes successors in interest, cannot
participate in or receive Wagner-Peyser Act ES services provided by the
ES to employers pursuant to parts 652 and 653; therefore, no SWA would
be able to process any future job orders from the employer or a
successor in interest, unless services are reinstated under Sec.
658.504.
Section 653.501(c)(3) lists the assurances that each clearance
order must include before it can be placed into clearance. Paragraph
(c)(3)(i) currently requires that the clearance
[[Page 63759]]
order include an assurance that the employer will provide workers
referred through the clearance system the number of hours of work, as
indicated on the clearance order, for the week beginning with the
anticipated date of need unless the employer notifies the order-holding
office of a change to the anticipated start date at least 10 business
days prior to the original start date, and states that the SWA must
make a record of the notification and must attempt to inform referred
workers of the change. Section 653.501(c)(3)(iv) currently requires
that the clearance order include an assurance that the employer filing
the order will promptly notify the order-holding office or SWA that
crops are maturing faster or slower than expected or of other events
that change the terms of employment. Section 653.501(c)(5) currently
provides that if the employer fails to provide the required notice, the
employer is obligated to provide eligible (pursuant to paragraph (d)(4)
of this section) workers referred through the clearance system the
first week's pay at the rate stated on the clearance order or find
alternative work, if such alternative work is included in the clearance
order. For criteria clearance orders, any alternative work provided to
U.S. workers referred through the ARS will be agricultural work, in
order to comply with the H-2A program requirements for work offered on
such orders. For non-criteria orders, because the order is placed
through the ARS, it is anticipated that alternative work provided in
these situations also will be agricultural work.
The Department has determined these requirements do not provide
adequate notice to workers placed on the clearance order when the terms
of their employment change and do not adequately protect workers from
the potential consequences of those changes. The current notification
requirement, which inadvertently incorporates a requirement on the SWA
into the employer assurances, is not sufficient to prevent unnecessary
delay because it requires that notification occur in two steps--first
from the employer to the SWA, and then from the SWA to the workers.
Additionally, given the transient nature of temporary and seasonal
farmwork, coupled with increased housing, transportation, and food
costs in recent years, the requirement that employers provide 1 week's
pay if they fail to satisfy the notification requirement does not
sufficiently protect workers from resulting financial hardship. The
Department proposes several changes to address these concerns by
improving notice and wage protections for workers hired under ARS
clearance orders.
Specifically, the Department proposes to revise Sec. 653.501(c) to
require that, in the event the employer's date of need changes from the
date the employer indicated on the clearance order, the employer must
notify the SWA and all workers placed on the clearance order of the
change at least 10 business days before the original start date. The
proposed revisions clarify that notification is only to workers placed
on the clearance order, and not to workers who were referred but not
hired. The proposed revisions recognize that employers, rather than the
SWA or the order holding office, are in the best position to contact
and notify workers placed on the order of changes to the date of need
because the employer has already contracted to employ the workers and
should have up-to-date contact information for each worker. The
requirement to document this outreach is a minimally burdensome means
to allow the SWA to assess compliance with this assurance. This
proposed change will increase the likelihood that workers will receive
timely notification of any change to the start date and that employers
maintain accurate records of notices they provide. To ensure consistent
protections for workers in the United States who apply to the employer
directly, as well as to H-2A workers and workers in corresponding
employment who may be impacted by a delayed start date of work, the
Department proposes conforming protections at a new Sec. 655.175 of
the H-2A program regulations.
The Department further proposes that employers that fail to comply
with these notice requirements must provide housing and subsistence to
all workers placed on the clearance order who are already traveling to
the place of employment, without cost to the workers, until work
commences, and must pay all workers placed on the clearance order the
applicable wages for each day work is delayed for a period of up to 2
weeks, starting with the originally anticipated date of need. The
Department's proposal to require the provision of housing and
subsistence would align the protections U.S. workers placed on non-
criteria clearance orders receive with protections workers on criteria
clearance orders receive under current Sec. 655.145(b) and proposed
Sec. 655.175(b). The Department does not anticipate that requiring the
provision of housing will burden employers as they are required to have
their housing ready and inspected prior to the start date.
The Department's proposal to expand the period during which
employers must pay the applicable wage to 2 weeks, from the current 1-
week period, will better protect agricultural workers from financial
hardship they are likely to experience should they travel or otherwise
rely on the job opportunity articulated on the clearance order and find
that work is not available to them. Providing up to 2 weeks of wages
provides a safety net for workers to support themselves when work is
not available. The Department believes 1 week of wages is insufficient
to protect workers from the financial hardships associated with a
delayed starting date when such delays were not communicated,
particularly if a worker traveled for the job. In lieu of paying the 2
weeks' worth of wages, if the employer fails to comply with the notice
requirements, employers can provide such workers alternative work if
such alternative work is listed on the clearance order. The Department
has determined that this alternative effectively addresses the hardship
concern by providing the worker a source of income while continuing to
allow the employer flexibility to adjust their anticipated start date.
To accomplish these changes, the Department proposes several
specific revisions. The Department proposes to revise Sec.
653.501(c)(3)(i) to remove the requirement that the SWA must make a
record of the notification and attempt to inform referred workers of
the change in the date of need. The current language improperly
incorporates a SWA requirement into the employer assurances, and, as
discussed below, the Department proposes to shift these
responsibilities to the employer which, as discussed below, the
Department has determined is better situated to make timely contact
with workers. The Department also proposes to move language in this
paragraph regarding the employer's notice to the order-holding office
to Sec. 653.501(c)(3)(iv), which contains other instructions the
employer must follow when giving notice of changed terms and conditions
of the opportunity. The proposed regulation at Sec. 653.501(c)(3)(i)
would maintain that the employer's notice must comply with paragraph
(c)(3)(iv), which would more clearly explain the employer's assurance
to comply with the full notice requirements.
The Department proposes to make additional revisions to paragraph
(c)(3)(iv). First, the Department proposes to remove a redundancy in
the first sentence, which currently states that the
[[Page 63760]]
employer must expeditiously notify the order-holding office or SWA
immediately. Because immediate notice is expeditious, the use of the
word ``expeditiously'' is not necessary. Second, the Department
proposes that the assurance on the clearance order require that when
there is a change to the start date of need, the employer, rather than
the order-holding office or SWA, notify the office or SWA and each
worker placed on the order. When there is a change in the date of need
it is imperative that workers placed on the order be notified as
quickly as possible to allow the worker to change any travel
arrangements and otherwise remain informed about the opportunity. As
noted above, the Department has determined that the employer, which has
already contracted or communicated with the worker, is better
positioned to make timely contact with workers and therefore proposes
that the employer agree to do so as a condition of the participation in
the ARS. Third, the Department, in this assurance and in paragraph
(c)(5), proposes to require notification to workers placed on the order
rather than eligible workers referred from the order. The Department
proposes this change because the obligation to provide housing and
subsistence to workers who are already traveling to the place of
employment, and to pay wages for up to 2 weeks or provide alternative
work is relevant only to workers who were actually placed with the
employer rather than to workers referred to the employer through the
ARS. Additionally, under current paragraph (c)(5), the obligation to
pay or provide alternative work is for eligible workers, meaning those
referred workers who contact the ES Office to verify the date of need
pursuant to paragraph (d)(4). As discussed below, the Department
proposes to remove paragraph (d)(4), which includes this verification
requirement. With the proposed change to have employers notify workers
of any change in their start date, the requirement that referred
workers verify their start date with the ES Office is no longer
necessary. Finally, the Department proposes to include the requirement
to provide housing and subsistence to all workers who are already
traveling to the place of employment, without cost to the workers,
until work commences and to pay up to 2 weeks of wages or find
alternative work from paragraph (c)(5), as the Department proposes to
amend it, in the assurance. This change will make this obligation clear
to the employer at the time they complete and sign the clearance order.
The Department also proposes several changes to paragraph (c)(5).
First, the Department proposes to specify that the employer must
provide notice to the worker placed under the clearance order, which
will align this paragraph with paragraph (c)(3)(iv) and the proposed
changes to the assurance described therein. For the same reason, the
Department proposes to remove language stating employers must pay only
workers who are eligible pursuant to paragraph (d)(4).
The Department proposes to further revise paragraph (c)(5) to
clarify that the employer would be required to provide housing and
subsistence to all workers who are already traveling to the place of
employment, without cost to the workers, until work commences and to
pay the specified hourly rate of pay on the clearance order, or if the
pay listed on the clearance order is a piece-rate, the higher of the
Federal or State minimum wage, or if applicable, any prevailing
wage.\9\ If the order is a criteria clearance order the employer would
be required to pay the rate of pay under part 655, subpart B. These
proposed edits would align the wage requirement in this paragraph with
proposed wage requirements in part 655, subpart B, as applicable. The
Department further proposes to require that employers, if they fail to
provide the required notice at least 10 business days before the
original date of need, must pay the required wage for up to 2 weeks
instead of the 1 week currently required. The Department proposes this
change because, as discussed above, the Department believes 1 week of
wages is not sufficient to ensure workers do not experience the
financial hardship that would come with being unable to start work on
time, particularly if these workers have traveled for the job.
---------------------------------------------------------------------------
\9\ For requirements on costs for workers traveling from abroad,
including in the event of a minor delay, see Sec. 655.122 and the
discussion of proposed Sec. 655.175 in section IV.E.
---------------------------------------------------------------------------
The Department proposes to revise paragraph (c)(5) to clarify that
any alternative work must be in the approved clearance order to help
ensure employers do not require workers to perform work at sites not
approved by the SWA and, for criteria clearance orders, the Department.
The Department proposes to add language to clearly instruct the SWA to
process violations of these requirements as apparent violations, which
Sec. 658.419 describes as violations that SWAs, ES office staff, or
outreach staff observe or of which they have information, and which
staff must document and refer for further action. The Department
proposes these changes because SWAs have identified many apparent
violations where employers caused workers to work at worksites that
were not approved in their clearance orders. In some recent cases, the
workers were not properly trained and were caused to perform dangerous
tasks, which presented serious health and safety risks. It is
critically important that all worksites are known and approved by the
SWA and, as appropriate, the Department, to avoid workplace injuries,
improper wage payments related to performance of non-agricultural work,
and potential human trafficking.
Finally, the Department proposes to remove paragraphs (d)(4), (7),
and (8) in their entirety because, with the proposed change to have
employers notify workers of any change in the start date, the
requirement that the applicant holding office notify workers of any
changes is no longer relevant or necessary.
D. Discussion of Proposed Revisions to 20 CFR Part 658, Subpart F
This subpart sets forth the regulations governing the
discontinuation of Wagner-Peyser Act ES services to employers. In 1977,
the Department published regulations at 20 CFR part 658 governing the
monitoring of all ES activities and enforcement of ES regulations.
Subpart F provided procedures for discontinuation of services where a
State agency, through its director, determined that an employer
violated ES regulations. Under subpart F, where a complaint alleging an
employer violated ES regulations could not be resolved or, in the
absence of a complaint, where the State had reason to believe an
employer violated ES regulations and could not informally resolve the
matter, the State would refer it to the State director for formal
investigation. Where the director issued a formal, written
determination that an employer violated ES regulations, the
determination would include a notification that the State would
initiate discontinuation procedures in 30 days unless the employer
provided sufficient evidence that it did not violate the ES regulations
or had corrected the violation. If the matter was not resolved in 30
days, the State would then notify the employer in writing that it would
terminate ES services in 15 days unless the employer requested a
hearing or provided sufficient evidence that it did not violate ES
regulations. Where the employer did neither, the State would
discontinue ES services to the employer until the employer provided
sufficient evidence that it did not violate ES
[[Page 63761]]
regulations or that it corrected the violation.
In 1980, the Department published regulations to clarify and
streamline the discontinuation provisions. In addition to violations of
ES regulations, the Department set forth several, specific bases for
discontinuation (e.g., where the employer is found to have
misrepresented the terms and conditions of a job order, or found by an
enforcement agency to have violated an employment-related law). The
Department also revised the discontinuation procedures to include (1) a
notice of intent to discontinue services, (2) an opportunity for
employer to respond and/or request a hearing, (3) a final
determination, and (4) an opportunity to request reinstatement or a
hearing.
The Department proposes revisions throughout this subpart to
further clarify the bases and process for discontinuing services
because the Department has observed a need for greater clarity among
SWAs about the circumstances under which they must discontinue services
to employers and the specific requirements they must follow to do so.
As discussed below, in the Department's view, SWAs do not utilize the
discontinuation process to the fullest extent because of uncertainty
regarding the process and requirements to discontinue services.
In this subpart, the Department also proposes to reorganize
regulations to more accurately group subjects and to more logically
arrange procedural steps, including when and how employers may request
a hearing. Finally, the Department proposes to clarify what ES services
would be unavailable after discontinuation and the entities subject to
discontinuation.
The existing regulations in this subpart require SWAs to
discontinue services to employers who meet any of the bases for
discontinuation detailed at Sec. 658.501(a), by utilizing the
procedures outlined in Sec. Sec. 658.501 through 658.504. However, the
Department has observed hesitancy among SWAs to utilize the existing
discontinuation provisions, and SWAs have shared information with the
Department that they do not fully understand the requirements to
discontinue services to employers and have sought instructions and
Departmental review of notifications to employers. The Department's
data suggests that this lack of clarity is limiting the SWA's use of
discontinuation. For example, a SWA is required to discontinue services
if an employer fails to fully comply with assurances made on clearance
orders. These assurances include compliance with housing standards,
wage payment, contract disclosure, recordkeeping, and other common
areas of employer noncompliance. As reported in the National Monitor
Advocate's (NMA) Annual Report on Services to MSFWs for program year
(PY) 2020, the most recent year for which data is available, Form ETA-
5148 (Services to Migrant and Seasonal Farmworkers Reports) documents
that SWAs processed 598 ES-related complaints against employers
involving non-MSFWs and 94 ES-related complaints against employers
involving MSFWs. Of the 2,581 total complaints received, which include
ES and non-ES related complaints involving MSFWs and non-MSFWs, SWAs
processed, 950 complaints related to wages, 270 complaints involved
discrimination, 173 complaints involved health and safety, and 88
complaints involved housing, in addition to other categories. Also, in
PY 2020, SWAs reported that they processed 453 apparent violations, as
described at Sec. 658.419, including 218 wage-related issues, 175
health and safety related issues, and 51 housing-related issues, in
addition to other categories. Despite the number of complaints and
apparent violations in these areas, SWAs reported that they
discontinued services to only 17 employers in PY 2020. While not every
complaint or apparent violation will result in discontinuation of
services, the low number of discontinuations relative to the number of
complaints and violations may suggest that enhanced clarity in the
bases and procedures for discontinuation is needed, and could aid SWAs
in better utilizing the discontinuation provisions to hold employers
accountable and protect workers from additional violations.
Similarly, SWAs must initiate discontinuation of services when the
Department or a SWA receives notification from an appropriate
enforcement agency of a final determination that includes a violation
of an employment-related law. Applicable enforcement agencies may
include any State, Federal, or local agencies that enforce employment-
related laws, for example the Department's Occupational Safety and
Health Administration (OSHA), WHD, the National Labor Relations Board
(NLRB), the Equal Employment Opportunity Commission (EEOC), State or
local departments of health, and other related agencies. WHD public
enforcement data documents thousands of investigations between PY 2012
and PY 2019 that involve employers who used the ES to place criteria
clearance orders and violated employment-related laws. However, between
PY 2012 to 2019, SWAs reported that they only discontinued services
twice (once in PY 2016 and once in PY 2019). Again, the glaring
disparity between the number of violations found by WHD and the actual
discontinuation of services by the SWAs during the same time period may
suggest that the SWAs would benefit from clarifying revisions to the ES
regulations governing the discontinuation process.
The Department believes that the increase in discontinuation of
services in PY 2020 is likely attributable to the NMA's increased
training of SWA staff in this area of the regulation and not due to an
increase in the number of employers meeting the conditions for
discontinuation of services. While this training provided needed
clarity to the SWAs, and therefore produced results, the Department
sees the need for additional clarity and support for SWAs to
discontinue services and mitigate the possibility of misunderstanding
or incorrectly utilizing the discontinuation provisions. As noted
above, in recent years, SWAs have shared information with the
Department that they do not fully understand the requirements to
discontinue services to employers and have sought instructions and
Departmental review of notifications to employers. In the Department's
review, the Department identified that SWAs have made errors regarding
citing applicable bases to discontinue services under Sec. 658.501(a),
describing necessary facts to justify the discontinuation, and
notifying employers of their right to a hearing. These issues
contributed to several instances where SWA were not successful in
discontinuing services to employers even though the SWAs believed they
had a sufficient basis to discontinue services. The Department believes
that revising the regulations, as described below, provides SWAs the
needed additional clarity to better implement the discontinuation
provisions and would allow ETA, including its regional offices, to
better monitor and support SWAs to ensure they initiate discontinuation
of services as required by the regulations. This would improve worker
protection by preventing noncompliant employers from using the ES
service to obtain workers (including H-2A workers, as employers seeking
to use the H-2A visa program must first file a clearance order through
the ES) which, in turn, aids the Department in ensuring a fair labor
exchange system for compliant employers, and meeting its statutory
obligations to maintain and increase the
[[Page 63762]]
usefulness of the ES system. Additionally, the proposed clarifications
and improvements to the discontinuation procedures provide greater
certainty to employers seeking to provide information to SWAs in
response to a notice of intent to discontinue, or seeking to reinstate
services, and protect employers' interests by ensuring that they
receive informative and timely determinations from SWAs. Specific
proposed changes are discussed below.
The Department proposes to revise Sec. 658.500, which describes
the scope and purpose of subpart F, to add language consistent with
proposed revisions to Sec. 658.503 that discontinued services include
services otherwise available under parts 652 and 653. This revision
clarifies the scope of services discontinued to include the labor
exchange services--such as recruitment, career, and labor market
information services--available to employers under part 652.
The Department also proposes to add paragraph (b) to Sec. 658.500,
which would explain that for purposes of this subpart, employer refers
to employers, as defined at Sec. 651.10, and agents, farm labor
contractors, joint employers, and successors in interest, as proposed
to be defined at Sec. 651.10. Proposed paragraph (b) would therefore
describe which entities may experience discontinuation of services.
Each of these entities may engage in the ES clearance system by
creating or submitting clearance orders, or by managing or utilizing
workers placed on ES clearance orders. Agents and farm labor
contractors often engage the ES clearance system by submitting
clearance orders and controlling many aspects of recruitment activities
relating to clearance orders. Joint employers may utilize workers
placed on clearance orders in the same or similar manner as the
employer, defined at Sec. 651.10, with whom they jointly employ those
workers. A successor in interest may have reincorporated itself from an
employer whose ES services have been discontinued into another business
entity that maintains the same operations or interests, allowing that
entity to undermine the effect of the discontinuation of the original
entity in contravention of the purpose of the discontinuation
regulation. The proposed revisions are meant to clarify and expand the
entities who engage the ES clearance system and are, thus, subject to
discontinuation. Specifically, this change makes it clear that agents,
farm labor contractors, joint employers, and any successor in interest
to an agent, farm labor contractor, or joint employer, are subject to
discontinuation of services. This proposed change addresses a
limitation of the current regulation, allowing SWAs to take action that
will better protect workers.
Finally, as the proposed agents, farm labor contractors, joint
employers, and successors in interest also seek temporary labor
certifications from OFLC under part 655, subpart B, adding these
entities here brings the discontinuation regulation in line with the
existing H-2A regulations, which permit the debarment of agents, farm
labor contractors, joint employers, and successors in interest, as well
as fixed-site H-2A employers, and agricultural associations.
Section 658.501 describes eight bases for which SWA officials must
initiate discontinuation of services to employers. The Department
proposes several edits to paragraphs (a)(1) through (7), except
paragraph (a)(3), including a substantive revision to paragraph (a)(4).
In paragraph (a)(1), the Department proposes to state that SWA
officials must discontinue services to employers who submit and refuse
to correct or withdraw job orders containing terms and conditions
contrary to employment-related laws. The existing regulation contains
the terms alter and specifications. The Department proposes to change
``alter'' to ``correct'' to more clearly articulate that the employer
must specifically correct the noncompliant condition rather than simply
changing the condition, which might not result in correction of the
noncompliance. This change would also clarify which action will lead to
the initiation of the discontinuation process. The Department proposes
to change ``specifications'' to ``terms and conditions'' to align the
language in paragraph (a)(1) with the language used in Sec. 653.501,
and proposes to change this term in the corresponding provision at
Sec. 658.502(a)(1) to conform to this proposed change to Sec.
658.501(a)(1).
The Department proposes to reorganize paragraph (a)(2) for clarity
by moving the language regarding withdrawal of job orders that do not
contain required assurances to earlier in the sentence. The Department
also proposes to remove language in paragraph (a)(2) that currently
limits this basis for discontinuation to only those assurances
involving employment-related laws. The Department proposes to remove
this language because employers must provide all assurances described
at Sec. 653.501(c)(3), which include more than the assurance to comply
with employment-related laws. The Department has determined that a
failure to provide any required assurance should be grounds for
discontinuation because each assurance is necessary to ensure workers
referred on clearance orders are fully apprised of and protected by the
assurances if placed on the order.
The Department proposes to amend paragraph (a)(4) to add that SWA
officials must initiate procedures for discontinuation of services for
employers who are currently debarred from participating in the
Department's H-2A or H-2B foreign labor certification programs. The
Department recognizes that many employers who use the ARS also seek
temporary labor certifications from OFLC under part 655, subpart B.
These employers may attempt to recruit workers through non-criteria
orders in the ARS if they are prohibited from using the H-2A program as
a result of their debarment. In its experience OFLC has seen many
instances where employers who should file H-2B applications because
they are seeking to employ workers in non-agricultural occupations
instead inappropriately file H-2A applications. Similarly, in its
enforcement experience WHD has seen employers that have
mischaracterized the nature of their labor needs on their applications
for labor certification to obtain labor certification to hire workers
from one program to work in job opportunities that are appropriately
classified in the other program. Failure to utilize the appropriate H-2
program results in the posting of inaccurate job orders, thereby
undermining the labor market test. It also deprives workers of the
specific protections available to them under each of the respective
programs, such as the right to housing free of cost under the H-2A
program. Likewise, it harms law-abiding employers as their competitors
gain an unfair advantage by offering fewer benefits to their workforce
or by avoiding the H-2B visa cap to which other employers must adhere.
In light of these experiences, the Department has determined that it is
appropriate for SWAs to initiate discontinuation proceedings against
entities debarred from participation in the H-2A or H-2B temporary
labor certification programs to protect workers seeking employment
through the ES system and to maintain a fair system for law-abiding
employers. The Department notes that Sec. 655.73 currently prohibits
employers debarred from the H-2B program from participating in any of
the Department's other foreign labor programs, including the H-2A
program; this proposal reinforces that prohibition.
The Department proposes this requirement to protect workers who use
the ARS by ensuring that ES offices do
[[Page 63763]]
not place U.S. workers with employers during any such period of
debarment. Debarment is a serious sanction that results from
substantial violations of a material term or condition of the
employer's temporary labor certification, and that is imposed only
after an employer has exhausted or forfeited an opportunity to respond
to the proposed action as well as substantial appeals procedures. These
may include violations related to worker safety, failure to provide
required wages or working conditions, failure to comply with
recruitment requirements or participate in required investigations or
audits, or failure to pay required fees. Entities that have committed
such violations should be excluded from participation in the ES, and
the Department's proposal will better protect U.S. workers by ensuring
that they will not be placed with debarred employers that have
substantially violated a material term or condition of their temporary
labor certification. The proposed changes would also ensure that law-
abiding employers have greater access to ES services and are better
able to recruit available U.S. workers for jobs because SWAs would
spend less time and resources serving noncompliant employers, and law-
abiding employers would receive referrals of qualified U.S. workers
that might otherwise go to noncompliant employers.
The Department invites comments on this proposed basis for
discontinuation and the inclusion of employers debarred from
participation in the H-2B program. In addition, the Department is
considering whether to expand this provision to require SWAs to
initiate discontinuation proceedings against employers that have been
debarred from any of the Department's other foreign labor certification
programs--the H-1B, CW-1, and PERM programs. The Department invites
comments on whether to expand this provision to all of the foreign
labor certification programs, or to some but not all of the other
foreign labor certification programs, the scope of employers to whom
this may apply, and the effect(s) of expanding this provision.
The Department proposes to amend Sec. 658.501(a)(5) by adding that
this basis for discontinuing services includes employers who are found
to have violated ES regulations pursuant to Sec. 658.411 or Sec.
658.419. This edit is intended to clarify that ES violations may be
found as a result of apparent violations, which are described at Sec.
658.419.
The requirement to accept qualified workers referred through the
clearance system applies only to criteria clearance orders filed
pursuant to Sec. 655.121; therefore, the Department proposes to amend
paragraph (a)(6) by clarifying that discontinuation on the basis of
failure to accept qualified workers would be appropriate only for
employers placing criteria clearance orders. For non-criteria clearance
orders, the regulations at part 653, subpart F, do not require
employers to hire all qualified workers referred through the ES, so
this basis for discontinuation would not apply.
In paragraph (a)(7), the Department proposes to remove the words in
the conduct of, which are currently present but do not add meaning and
are therefore extraneous and unnecessary.
Current Sec. 658.501(b) explains the circumstances and procedures
for immediate discontinuation of services. The Department proposes to
move paragraph (b) to Sec. Sec. 658.502 and 658.503 to clarify that
existing paragraph (b) is not an independent basis for discontinuation
and to better align it with the discontinuation procedures in
Sec. Sec. 658.502 and 658.503. Additional proposed changes are
discussed below.
The Department is redesignating current Sec. 658.501(c), which
recognizes the unique interplay between the ES and H visa programs, to
Sec. 658.501(b), with revisions. The proposed new Sec. 658.501(b)
explains what a SWA must do when it has learned that an employer
participating in the ES system may not have complied with the terms of
its temporary labor certification under, for example, the H-2A and H-2B
programs. The current regulation states that SWA officials must engage
in the procedures for discontinuation of services to employers pursuant
to paragraphs (a)(1) through (8) of Sec. 658.501. The Department
proposes to clarify that SWA officials must determine whether the SWA
must initiate discontinuation of services pursuant to Sec. 658.501(a).
The proposed change clarifies that SWAs cannot proceed with
discontinuation procedures based solely on information that an employer
may have violated the terms of its temporary labor certification.
Rather, SWAs must take that information and look to paragraph (a) to
determine whether one of the bases for discontinuation applies. Once a
SWA determines that one of the bases for discontinuation under
paragraph (a) does apply, then the SWA must initiate discontinuation of
services. Finally, as the proposed paragraph (b) would apply to both
currently active and previous labor certifications, the Department
invites comments on whether it would be appropriate to limit the scope
of previous labor certifications or potential violations of a labor
certification to a particular time period.
Section 658.502 describes the notification and procedural
requirements a SWA must follow when it intends to discontinue services
to an employer. The Department proposes several changes throughout
Sec. 658.502 to clarify and streamline these requirements. First, the
Department proposes to revise the section heading to state that it
relates to notification to employers of the SWA's intent to discontinue
services. This change clarifies that this section relates only to
initial notices proposing discontinuation and not to the final notices
described in Sec. 658.503. The Department also proposes to add
introductory language to the beginning of paragraph (a) to clarify that
these procedures apply where the SWA determines that there is an
applicable basis for discontinuation of services under Sec.
658.501(a). The Department proposes additional revisions to paragraph
(a) to clarify that the initial notices must provide the reasons for
proposing discontinuation and must state that the SWA intends to
discontinue services in accordance with this section. The proposed
language removes the reference to part 654, to which discontinuation of
services does not apply. These proposed revisions are intended to
address issues SWAs encountered in PY 2020 and 2021 in initiating
discontinuation of services, including insufficient notification to
employers of the applicable bases for discontinuation and insufficient
factual detail in the notices to support the applicable bases. The
Department notes that if more than one basis under paragraph (a)
applies, the SWA must initiate discontinuation under all applicable
bases.
Paragraphs (a)(1) through (7) of Sec. 658.502 provide specific
notification requirements for each of the corresponding bases for
discontinuation outlined in Sec. 658.501(a)(1) through (7). The
Department proposes to remove language in Sec. 658.502(a)(1) through
(7) that describes the applicable bases for discontinuation and instead
cross-reference the applicable citations for clarity. For example, the
Department proposes to revise Sec. 658.502(a)(1) to state that the
paragraph applies where the proposed discontinuation is based on Sec.
658.501(a)(1). This would replace current language that describes Sec.
658.501(a)(1) and more clearly and succinctly direct the SWA to Sec.
658.501(a)(1) as the applicable basis.
The Department also proposes to remove language in Sec.
658.502(a)(1) through (7) that provides employers the
[[Page 63764]]
opportunity for a pre-discontinuation hearing. In response to a SWA's
notice of intent to discontinue services, the existing language
provides an employer the opportunity to submit evidence contesting the
proposed discontinuation and/or to request a hearing pursuant to Sec.
658.417. The proposed revisions will better align the hearing
procedures for discontinuation of services at part 658, subpart F, with
the hearing procedures for the ES Complaint System at Sec. Sec.
658.411(d) and 658.417, which allow for a hearing by a State hearing
official only after the SWA issues a final decision on a complaint. As
currently written, the discontinuation proceedings at Sec.
658.502(a)(1) through (3) and (5) through (7) allow for a hearing under
Sec. 658.417 without the SWA ever issuing a final determination under
Sec. 658.503. This prevents SWAs from uniformly issuing final
determinations in all discontinuation proceedings. Additionally, it
inadvertently allows employers to bypass a formal decision from the SWA
anytime they request a hearing and, because State administrative
hearings may take several months to complete, inadvertently prolongs
any formal determinations. The Department believes that removing the
opportunity for a pre-discontinuation hearing--while maintaining the
opportunity for employers to submit evidence contesting the proposed
discontinuation under Sec. 658.502 and the opportunity for a post-
discontinuation hearing in Sec. 658.504--allows SWAs to expeditiously
and fairly resolve discontinuation proceedings while providing
sufficient due process to employers. The proposed change allows for a
more complete record than would result from an immediate appeal of a
notice from the SWA proposing discontinuation. This proposed change
also better aligns with the ES Complaint System regulations which do
not contemplate pre-determination hearings. Moreover, as discussed
above, the 1977 discontinuation regulations only allowed for pre-
discontinuation hearings and, in an effort to clarify and streamline
the discontinuation provisions, the 1980 regulations allowed for both a
pre- and post-discontinuation hearing pursuant to Sec. 658.417. In
doing so, the pre-discontinuation hearing currently available under
Sec. 658.502 is no different than the post-discontinuation hearing
available under Sec. 658.504. Removing the identical pre-
discontinuation hearing allows for a more efficient process without
removing due process protections for employers and ensures that post-
discontinuation hearings are decided on a more complete record.
Finally, in Sec. 658.502(a)(1) through (7), the Department
proposes changing the language that SWAs must notify employers that all
employment services will be terminated to state that all ES services
will be terminated. The proposed language clarifies that the services
at issue are specific to the ES.
In addition to the changes described above, the Department proposes
revisions to paragraphs (a)(1) through (7) to provide greater detail
and specificity regarding the type of information that SWAs must
provide to employers when proposing to discontinue services. The
proposed changes ensure that SWAs adequately explain their reasons for
proposing discontinuation, and that employers have sufficient factual
detail to respond to the proposed discontinuation. In these paragraphs,
the Department also proposes small changes for clarity, including
rewording sentences so they use the active voice.
In paragraph (a)(2), the Department proposes to add language
explaining that SWAs must specify the assurances involved and must
explain how the employer refused to provide the assurances. The
proposed edits ensure that SWAs describe the basic facts that led them
to initiate discontinuation of services so employers understand the
scope of the alleged violation and have sufficient information to
respond. The Department also proposes a revision to paragraph
(a)(2)(ii) to align this paragraph with the proposed changes to Sec.
658.501(a)(2), discussed above, regarding the scope of the required
assurances.
In paragraph (a)(3), to provide clearer direction to SWAs and
better notice to entities receiving a notice, the Department proposes
to add language stating that SWAs must specify the terms and conditions
the employer misrepresented or the assurances with which the employer
did not fully comply, and explain how the employer misrepresented the
terms or conditions or failed to comply with assurances on the job
order. In paragraph (a)(3)(iii), the Department proposes removing the
requirement that employers provide resolution of a complaint which is
satisfactory to a complainant referred by the ES, replacing it with the
requirement that an employer provide adequate evidence that it has
resolved the misrepresentation of terms and conditions of employment or
noncompliance with assurance. Evidence is adequate if the SWA could
reasonably conclude that the employer has resolved the
misrepresentation or noncompliance. The proposed change removes
unnecessary and out-of-place language regarding ES complaints, which
are addressed in paragraph (a)(5), and better aligns Sec.
658.502(a)(3) with proposed Sec. 658.501(a)(3). The Department also
proposes combining paragraphs (a)(3)(iii) and (iv) to make clear that
employers need to provide the information in paragraphs (a)(3)(iii) and
(iv) together.
In paragraph (a)(4), the Department proposes to add language that
SWAs must provide evidence of the final determination by an enforcement
agency of a violation of an employment-related law or debarment with
the notice of intent to discontinue services. For purposes of
discontinuation, a final determination is a decision by an enforcement
agency, such as WHD, OSHA, or other Federal, State, or local agency
responsible for enforcing employment-related laws, that has become
operative under applicable law. For final determinations, the
Department proposes adding language clarifying that the SWA must
specify--as discussed in the final determination or debarment--the
enforcement agency's findings of facts and conclusions of law as to the
employment-related law violation(s). For final debarment orders, the
Department proposes adding language requiring the SWA to specify the
time period for which the employer is debarred from participating in
one of the Department's foreign labor certification programs. These
proposed revisions ensure the SWA has confirmed that a final
determination or debarment exists and that the employer has sufficient
information regarding the final determination at issue to respond.
The Department proposes revisions to Sec. 658.502(a)(4)(i) through
(iii) to clarify and explain the evidence and assurances that employer
may provide to avoid discontinuation of services. In paragraph
(a)(4)(i), the Department proposes to remove existing language stating
that the employer may provide evidence that the enforcement agency
reversed its ruling and that the employer did not violate employment-
related laws; and to replace it with language stating that the employer
may provide evidence that the determination at issue is not final
because, for example, it has been stayed pending appeal, overturned, or
reversed. The proposed change clarifies that employers may contest the
finality of the determination under paragraph (a)(4) and clarifies that
SWAs may not discontinue services where a determination is not, in
fact, final. The Department proposes a new paragraph
[[Page 63765]]
(a)(4)(ii) which requires employers to submit evidence that their
period of debarment is no longer in effect and that they have taken all
actions required by the enforcement agency as a consequence of the
violation. If the proposed discontinuation is based only on a final
determination of a violation of an employment related law, then
evidence that the debarment is no longer in effect is not needed;
similarly, if the proposed discontinuation is based on a debarment then
evidence that the employer has taken necessary remedial actions is not
necessary. The proposed addition in paragraph (a)(4)(ii)(A) is
necessary to address employer responses to debarment or
disqualification. The proposed paragraph (a)(4)(ii)(B) incorporates
existing language and is meant to more clearly encompass any and all
actions required by final determination but does not substantively
change what an employer has to show under current Sec.
658.502(a)(4)(ii).
In paragraph (a)(5), the Department proposes additional language to
clarify that the SWA must specify which ES regulation the employer has
violated and must provide basic facts to explain the violation. The
proposed language ensures that SWAs provide sufficient factual detail
regarding the ES violation at issue so the employer can respond.
The Department proposes to revise Sec. 658.502(a)(6) to explain
that SWAs must state that the job order at issue was filed pursuant to
Sec. 655.121 and specify the name of each worker who was referred and
not accepted. The proposed revision is consistent with the proposed
change to Sec. 658.501(a)(6) and ensures that SWAs provide sufficient
factual detail regarding the workers at issue so the employer can
respond. In paragraph (a)(6)(iii), the Department proposes changing and
to or to decouple paragraph (a)(6)(iii) from the assurances required in
existing paragraph (a)(6)(iv), as it is not necessary for employers
that did not violate the requirement to provide assurances of future
compliance. The Department proposes a new paragraph (a)(6)(iv), to add
an option for the employer to show that it was not required to accept
the referred workers, because the time period under 20 CFR 655.135(d)
had lapsed, and a new paragraph (a)(6)(v), to add an option for the
employer to show that, after initial refusal, it subsequently accepted
and offered the job to the referred workers or to show that it has
provided all appropriate relief imposed as a result of the refusal. It
is necessary to update this paragraph because the current regulation
does not provide for the scenario where an employer subsequently offers
employment to qualified workers after first refusing, as the current
paragraph (a)(6)(i) is intended to capture scenarios where an employer
accepted qualified workers and did not refuse them as found by the SWA.
It is also possible that SWAs may attempt to resolve apparent
violations involving failure to hire qualified U.S. workers referred
through the ES, resulting in employers hiring those individuals.
Finally, the Department proposes to move existing paragraph (a)(6)(iv)
to paragraph (a)(6)(vi) to maintain the requirement that the employer
provide assurances that qualified workers referred in the future will
be accepted; and adds new language to clarify the assurance that is
required depending on whether the period described in 20 CFR 655.135(d)
has lapsed, as after the end of the period the employer would no longer
be required to accept referred workers on the particular clearance
order involved. This change provides a means of ensuring future
compliance with the requirement that the employer submitting criteria
clearance orders hires all qualified workers referred to the order.
In paragraph (a)(7), the Department proposes clarifying edits that
provide clearer direction to the SWA but that do not change the
regulation's meaning, including rephrasing sentences and changing the
pronoun used for employers to it instead of he/she.
The Department proposes to add a new paragraph (a)(8) to explain
information the SWA must include in its notice to an employer proposing
to discontinue services where the decision is based on Sec.
658.501(a)(8) (repeatedly causes the initiation of discontinuation of
services). The Department proposes that the SWA must list and provide
basic facts explaining the prior instances where the employer has
repeatedly caused initiation of discontinuation proceedings to provide
notice of the basis for the SWA's action to facilitate their response.
The SWA must notify the employer that all ES services will be
terminated unless the employer within that time provides adequate
evidence that the SWA's initiation of discontinuation in prior
proceedings was unfounded. The proposed paragraph (a)(8) replaces
existing paragraph (c), which discusses discontinuation based on Sec.
658.501(a)(8) but does not include clear direction to the SWA and does
not provide sufficient notice to employers to allow them to respond.
The Department proposes to remove existing Sec. 658.502(b) and (d)
because these paragraphs pertain to the employer's pre-determination
opportunity to request a hearing. As described above, the Department
proposes to eliminate the opportunity for an employer to request a
hearing until after the SWA has provided its final notice on
discontinuation of services to the employer.
The Department proposes a new Sec. 658.502(b) to explain the
circumstances that warrant immediate discontinuation of services. The
proposed addition replaces existing Sec. 658.501(b), in part, and
states that SWA officials must discontinue services immediately, in
accordance with Sec. 658.503, without providing the notice of intent
and opportunity to respond described in this section, if an employer
has met any of the bases for discontinuation of services under Sec.
658.501(a) and, in the judgment of the State Administrator, exhaustion
of the administrative procedures set forth in this section would cause
substantial harm to workers. The existing Sec. 658.501(b) states that
SWA officials may discontinue services immediately in these
circumstances, whereas the proposed new Sec. 658.502(b) states that
SWAs must discontinue services immediately. Additionally, existing
Sec. 658.501(b) allows for discontinuation when there would be
substantial harm to a significant number of workers, whereas proposed
new Sec. 658.502(b) requires immediate discontinuation when there
would be substantial harm to workers. The proposed changes recognize
that immediate discontinuation is warranted where the harm at issue
would involve only one or a small number of workers, and that where
such harm would occur SWAs must be required to initiate discontinuation
to prevent the harm from actually occurring to workers. Finally, this
proposed paragraph clarifies that immediate discontinuation is
appropriate only when a basis under proposed Sec. 658.501 exists and
the SWA determines that substantial harm would occur; risk of
substantial harm alone is not enough for a SWA to immediately
discontinue services.
Section 658.503 describes the procedural requirements a SWA must
follow when issuing a final determination regarding discontinuation of
services to an employer. The Department proposes to revise paragraph
(a) to require that within 20 working days of receipt of the employer's
response to the SWA's notification under Sec. 658.502, or at least 20
working days after the SWA's notification is received by the employer
if the SWA does not receive a response, the SWA must notify the
employer of its
[[Page 63766]]
final determination. When the SWA sends its notification, it must do so
in a manner that allows the SWA to track receipt of the notification,
such as certified mail. If the SWA determines that the employer did not
provide a satisfactory response in accordance with Sec. 658.502 the
SWA's notification must specify the reasons for its determination,
state that the discontinuation of services is effective 20 working days
from the date of the notification, state that the employer may request
reinstatement or a hearing pursuant to Sec. 658.504, and state that a
request for a hearing stays the discontinuation pending the outcome of
the hearing. The Department is proposing this stay pending appeal and
the 20-working-day period to ensure that employers are provided an
opportunity to challenge the SWA's determination before losing access
to all ES services. Staying the effect of discontinuation during the
pendency of an appeal is appropriate to allow for full adjudication and
resolution of any issues related to the SWA's findings before they
become final and binding on the employer and the ES system, mitigating
the risk that an employer is erroneously deprived of access to
services, similar to the procedures in Sec. 658.502. Additionally,
placing the effective date at the end of the 20-day period, rather than
at the issuance of the notification, avoids depriving appealing
employers of ES services for a short period of time prior to their
request for hearing. This also makes for a more efficient process for
SWAs and ETA, as these agencies would otherwise expend time and
resources to effectuate a discontinuation that may be premature--if the
employer requests a hearing a short time later, agencies would need to
use additional resources to then stay the discontinuation they just
effectuated. To facilitate implementation and maintenance of the
proposed Office of Workforce Investment discontinuation of services
list, discussed above, the SWA must also notify the ETA Office of
Workforce Investment of any final determination to discontinue ES
services, including any decision on appeal upholding a SWA's
determination to discontinue services.
The proposed Sec. 658.503(a) removes language regarding pre-
discontinuation hearings to correspond with proposed changes to Sec.
658.502. The Department believes that this timeline for SWAs is
appropriate because an expeditious resolution of the matter both
minimizes the uncertainty an employer faces when a SWA has proposed to
discontinue services, and it allows the SWA to deny services to
employers that have engaged in impermissible conduct. The effect of an
adverse final determination would be, among other things, to protect
workers from being placed with those employers and would prevent the
employer from seeking a temporary labor certification under part 655,
subpart B, of the title. Because of the potential consequences to both
employers and workers, the Department has determined that an
expeditious process would be necessary.
The Department proposes to add a new Sec. 658.503(b) to explain
the procedures for immediate discontinuation of services and to
incorporate them into the general discontinuation procedures at Sec.
658.503. The proposed new paragraph (b) replaces existing Sec.
658.501(b), in part, and states that the SWA must notify the employer
in writing that its services are discontinued as of the date of the
notice. The notification must also state that the employer may request
reinstatement or a hearing pursuant to Sec. 658.504, and that a
request for a hearing relating to immediate discontinuation does not
stay the discontinuation pending the outcome of the hearing. The
proposed new Sec. 658.503(b) adds that SWA must specify the facts
supporting the applicable basis for discontinuation under Sec.
658.501(a) and the reasons that exhaustion of the administrative
procedures would cause substantial harm to workers. The proposed
addition ensures that employers have sufficient information regarding
the SWA's rationale for immediate discontinuation, and makes clear that
employers have recourse to the State administrative hearing process or
reinstatement process if a SWA immediately discontinues services. While
discontinuation under a determination issued under Sec. 658.503(a) is
delayed until the employer's time to appeal the determination has
ended, the Department thinks that the circumstances justifying a notice
of immediate discontinuation also justify that the discontinuation be
effective immediately, irrespective of the employer's opportunity to
appeal, and that it remain in effect unless the employer is reinstated
or the determination is overturned. Immediate discontinuation is
reserved for those situations where the State Administrator determines
that substantial harm to workers will occur if action is not
immediately taken. For example, State Administrators may determine that
immediate discontinuation is justified when they receive information
evidencing that employers have made threats or have perpetrated
violence against workers, or that involve other substantial harm like
human trafficking and other significant health and safety issues. SWA
quarterly ETA Form-5148 reports evidence that SWAs processed 36
complaints and four apparent violations involving sexual harassment,
coercion, or assault, as well as two complaints and six apparent
violations involving trafficking in PY 2020.\10\ Additionally, over the
last several years, the Department has received information evidencing
that employers have made threats of physical violence against workers.
In two cases, employers were recorded on video threatening workers with
firearms. Delaying the effective date of the discontinuation would
undermine the protection that the immediate discontinuation procedure
is designed to provide. While the Department recognizes the burden that
employers may face if they do not have access to any ES services
pending an appeal of an immediate discontinuation, the Department
thinks that this burden is outweighed by the interest in protecting
workers from harmful, potentially dangerous situations. The Department
notes that in lieu of an appeal, an employer subject to immediate
discontinuation of services can request reinstatement from the SWA, and
that the proposed 20-day timeframe for the SWA to respond to such a
request may provide for timely and efficient resolution of an immediate
discontinuation. Finally, as with proposed Sec. 658.503(a), to
facilitate implementation and maintenance of the proposed Office of
Workforce Investment discontinuation of services list, discussed above,
the SWA must also notify the ETA Office of Workforce Investment of any
final determination to discontinue ES services.
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\10\ See Appendix IV LEARS 5148 Report Part 1 National Data for
PY 2020, <a href="https://www.dol.gov/sites/dolgov/files/ETA/mas/pdfs/APPENDIX%20IV%20LEARS%205148%20REPORT%20PART%201%20NATIONAL%20DATA.xlsx">https://www.dol.gov/sites/dolgov/files/ETA/mas/pdfs/APPENDIX%20IV%20LEARS%205148%20REPORT%20PART%201%20NATIONAL%20DATA.xlsx</a>.
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The Department proposes to move current Sec. 658.503(b), which
requires the SWA to notify the relevant ETA regional office if services
are discontinued to an employer subject to Federal Contractor Job
Listing Requirements, to proposed new paragraph (c) and to make minor
edits to use active voice and to improve clarity, which do not change
the meaning of the requirement. The Department proposes to add
paragraph (d) to require SWAs to notify the complainant of the
employer's discontinuation of services, if the discontinuation of
services is based on a complaint filed pursuant to Sec. 658.411.
[[Page 63767]]
This requirement would align with section Sec. 658.411(b)(2) and (d).
The Department proposes to add a new paragraph (e) to explain the
effect discontinuation of services has on employers. The proposed new
paragraph explains that employers that experience discontinuation of
services may not use any ES activities described in parts 652 and 653,
and that SWAs must remove the employer's active job orders from the
clearance system and must not process any future job orders from the
employer for as long as services are discontinued. An employer's loss
of access to ES services applies in all locations throughout the
country where such services may be available. If the effect of the
discontinuation were limited to just the State that discontinued
services, it would frustrate the purpose of discontinuation.
This proposed new paragraph responds to common questions the
Department receives regarding the effect of discontinuation of services
on current and future job orders and, as with proposed revisions to
Sec. 658.500, clarifies that the scope of services discontinued to
include those ES services available to employers under part 652.
Proposed Sec. 658.501(b) would require SWA officials to notify the
OFLC National Processing Center (NPC) when an ES office or SWA has
information that an employer may not have complied with the terms of
its temporary labor certification, under, for example the H-2A and H-2B
programs. Therefore, in addition to closing the employer's active
clearance orders so that the employer will not receive additional U.S.
worker referrals, the NPC would be aware of the alleged noncompliance
so that it may investigate and apply appropriate actions to the foreign
labor certification. The Department is interested in comments on the
effect on both workers and employers of removing active job orders,
particularly criteria orders. The Department proposes new paragraph (f)
to explain that SWAs must continue to provide the full range of ES and
other appropriate services to workers whose employers' services have
been discontinued. The proposed new paragraph makes it clear that
discontinuation of services to employers does not, and should not,
negatively affect workers. SWAs must continue to provide necessary
support to workers, including outreach to MSFWs, access to the ES and
Employment-Related Law Complaint System, and all available ES services.
Section 658.504 describes the procedural requirements for seeking
reinstatement of ES services, which can be done either by requesting
that the SWA reconsider its decision or by requesting a hearing. The
Department proposes to restructure this section to more clearly explain
how services may be reinstated, the timeframes in which the employers
and SWA must act, and the circumstances under which services must be
reinstated.
The Department proposes to revise paragraph (a) to make clear that
employers have two avenues with which to seek reinstatement of
services--via a hearing within 20 working days of the discontinuation
or a written request to the SWA at any time following the
discontinuation. An employer cannot, however, simultaneously appeal a
discontinuation and submit a written request to the SWA for
reinstatement. The revised paragraph (a) adds the new requirement that
an employer who requests a hearing following discontinuation do so
within 20 working days of the date of discontinuation. These avenues
are available under the current regulation, but the Department has
added a requirement that the employer file an appeal within 20 working
days of the SWA's final determination because both the employer and the
State have an interest in timely and efficient adjudication of
disputes.
The Department proposes to revise Sec. 658.504(b) to explain the
circumstances and procedures under which SWAs must reinstate services
when an employer submits a written request for reinstatement. The
Department proposes new paragraph (b)(1), which retains the current 20-
day timeline in existing paragraph (b) within which the SWA must notify
the employer whether it grants or denies the employer's reinstatement
request. The proposed paragraph (b)(1) also requires that if the SWA
denies the request, the SWA must specify the reasons for the denial and
must notify the employer that it may request a hearing, in accordance
with proposed paragraph (c), within 20 working days.
The Department proposes to move current paragraph (a)(2), which
describes the evidence necessary for reinstatement, to proposed
paragraph (b)(2) to align with the overall restructuring of the
section. The Department also proposes to remove the word any to require
that the employer show evidence that all applicable specific policies,
procedures, or conditions responsible for the previous discontinuation
are corrected, instead of any policies, procedures, or conditions
responsible for the previous discontinuation. The Department is
concerned that the current language could permit reinstatement despite
an employer not correcting all relevant policies, procedures, or
conditions, which would be inconsistent with the purpose of
discontinuation. Finally, the Department also proposes to change the
pronoun used for employers to it instead of his/her.
The Department proposes to revise Sec. 658.504(c) to explain the
circumstances and procedures under which SWAs must reinstate services
when an employer submits a timely, written request for a hearing. The
proposed revisions maintain the procedures in existing paragraphs
(a)(1), (c), and (d), but have reorganized them into the same paragraph
for clarity. Finally, the Department proposes to replace the
abbreviated term ``Federal ALJ'' in the existing regulation with
``Federal Administrative Law Judge,'' commonly abbreviated as ALJ.
The Department proposes a new paragraph (d) to require that SWAs
notify the ETA Office of Workforce Investment of any determination to
reinstate ES services, or any decision on appeal upholding a SWA's
determination to discontinue services, within 10 working days of the
date of issuance of the determination. As discussed above, the
Department believes that prompt notification to the Office of Workforce
Investment will facilitate implementation and maintenance of the
proposed Office of Workforce Investment discontinuation of services
list and will ensure that employers whose services have been reinstated
may promptly access ES services.
IV. Discussion of Proposed Revisions to 20 CFR Part 655, Subpart B
A. Introductory Sections
1. Section 655.103(e), Defining Single Employer Test
The Department proposes to define a new term ``single employer'' to
codify and clarify its long-standing approach to determining if
multiple nominally separate employers are operating as one employer for
the purposes of the H-2A program. The Department has encountered
numerous instances over at least the last decade where it appears
separate entities are using their corporate structure--intentionally or
otherwise--to bypass statutory and regulatory requirements to receive a
temporary labor certification, or to circumvent regulations aimed at
protecting workers in the United States. See, e.g., Lancaster Truck
Line, 2014-TLC-00004, at *3, *5 (BALCA Nov. 26,
[[Page 63768]]
2013) (employer was ``frank about separating the legal entities of his
operation'' from his father's operation to ``comply with the H-2A
program's seasonal permitting restrictions'' and the ALJ held the
attempt to divide work did not demonstrate temporary need).
OFLC regularly receives and reviews applications for temporary
labor certification that appear to be for job opportunities with
different employers when in reality the workers hired under these
certifications are employed by companies so intertwined that they are
operating as a single employer in one area of intended employment for a
period of need that is not temporary or seasonal. The Department has
also increasingly encountered H-2A employers that employ H-2A workers
under one corporate entity and non-H-2A workers under another, creating
the appearance that the H-2A employer has no workers in corresponding
employment when actually, the corporate entities are intertwined and
all the H-2A workers are employed by a single H-2A employer, and the
non-H-2A workers are engaged in corresponding employment. Employers may
attempt to use these schemes to evade requirements of the H-2A program,
such as paying workers in corresponding employment the required wage
rate or abiding by the housing and transportation requirements of the
H-2A program.
OFLC currently uses, and has used for more than a decade, some form
of a ``single employer'' test to determine if nominally separate
employers should be considered as one entity for purposes of assessing
temporary or seasonal need (discussed further below under Temporary or
Seasonal Need). However, because this test is not incorporated into the
Department's regulations, it has been criticized and inconsistently
applied by the Board of Alien Labor Certification Appeals (BALCA).
Compare Mid-State Farms, LLC, 2021-TLC-00115, at *16, *25-27 (BALCA
Apr. 16, 2021) (noting that the ``single employer test'' has not been
subject to public comment, and thus using the ``joint employer test''
instead) (more discussion below) with K.S. Datthyn Farms, LLC, 2019-
TLC-00086, at *4-6 (BALCA Oct. 7, 2019) (applying the single employer
test to determine that two H-2A applicants for temporary labor
certification were one single employer with a single labor need).
Relying on Federal and BALCA case law, WHD currently also applies the
``single employer'' test to determine the H-2A employer's compliance
with program requirements.
The Department's proposal to add a definition of ``single
employer,'' which would explicitly permit the use of the single
employer test when reviewing applications for temporary labor
certification and for purposes of enforcement, is meant to codify the
Department's long-standing practice. Doing so would prevent employers
from using their corporate structures to circumvent regulatory
requirements and would provide notice and clarity to the stakeholder
community regarding the Department's single employer analysis. A
clearly articulated definition also could serve to deter employers from
utilizing practices that appear to circumvent the obligations of H-2A
employers by making explicit the obligations of the single employer.
This section discusses (1) the single employer definition the
Department proposes to add to a new subordinate paragraph (e) within
Sec. 655.103, including the factors the Department will consider when
determining whether two or more entities satisfy this definition; (2)
the use of the single employer test by OFLC when analyzing whether an
employer has a temporary or seasonal need; and (3) the use of the
single employer test in enforcement of contractual obligations.
a. Definition
As noted, the Department already applies a ``single employer'' test
(sometimes referred to as an ``integrated employer'' test) under the H-
2A program in certain contexts. OFLC currently uses this test to
determine if multiple nominally separate employers should be considered
as one entity for the purposes of determining whether an applicant for
labor certification has a temporary or seasonal need, and WHD uses this
test to determine whether H-2A employers complied with program
requirements. This test originated with the NLRB and has been adopted
by courts and Federal agencies under a wide variety of statutes. See S.
Prairie Const. Co. v. Local No. 627, Int'l Union of Operating Eng'rs,
AFL-CIO, 425 U.S. 800, 802-803 (1975). As the Second Circuit has
explained, the single employer test may be used to determine liability
for employment-related violations, as well as to determine employer
coverage, and the policy underlying the doctrine is ``fairness . . .
where two nominally independent entities do not act under an arm's
length relationship.'' Murray v. Miner, 74 F.3d 402, 404 n.1, 405 (2d
Cir. 1996).
Consistent with judicial and administrative precedent, the
Department has typically looked to four factors to determine whether
the entities at issue should be considered a single employer for
purposes of temporary need and compliance: (1) common management, (2)
interrelation between operations, (3) centralized control of labor
relations, and (4) degree of common ownership/financial control. See,
e.g., Sugar Loaf Cattle Co., 2016-TLC-00033, at *6 (BALCA Apr. 6, 2016)
(citing to Spurlino Materials, LLC v. NLRB, 805 F.3d 1131, 1141 (D.C.
Cir. 2015)). The proposed definition would incorporate the four factors
noted above and, as under current practice, the Department would
consider the totality of the circumstances surrounding the relationship
among the entities, and no one factor would be determinative in the
analysis.\11\
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\11\ See also Travis Hollifield, Integrated Employer/Enterprise
Doctrine in Labor & Employment Cases, The Federal Lawyer, December
2017, at 56, 58, <a href="http://www.fedbar.org/wp-content/uploads/2017/12/Labor-and-Empl-pdf-1.pdf">http://www.fedbar.org/wp-content/uploads/2017/12/Labor-and-Empl-pdf-1.pdf</a>.
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The Department's main concern in determining whether two or more
entities are operating as one is preventing employers from utilizing
their corporate structure(s) to circumvent the program's statutory and
regulatory requirements. As such, the Department's focus when examining
whether two or more entities are a single employer is both the
relationship between the entities themselves and each entity's use of
the H-2A program. See Knitter v. Corvias Military Living, LLC, 758 F.3d
1214, 1227 (10th Cir. 2014) (in a Title VII case, the court noted that
``the single employer test focuses on the relationship between the
potential employers themselves''). The Department emphasizes again that
no one factor is determinative as to whether entities are acting as
one.
Regarding the ``common management'' factor, the ``relevant inquiry
is whether there is `overall control of critical matters at the policy
level.' '' K.S. Datthyn Farms, LLC, 2019-TLC-00086, at *6 (citations
omitted) (quoting Spurlino Materials, 805 F.3d at 1142). Shared day-to-
day management may also indicate common management. Spurlino Materials,
805 F.3d at 1142. For example, where the same president, treasurer, and
chief operating officer oversee the actions of multiple entities and
resolve disputes, this suggests a common management between entities.
Pepperco-USA, Inc., 2015-TLC-00015, at *30-31 (BALCA Feb. 23, 2015).
Regarding the ``interrelation between operations'' factor, the
Department may look to whether the entities operate at arm's length.
Id. It may examine whether companies share products or services, costs,
worksites, worker
[[Page 63769]]
housing, insurance, software, or if they share a website, supplies, or
equipment. See, e.g., id.; Sugar Loaf Cattle Co., 2016-TLC-00033, at
*6-7 (finding an interrelation of operations in part because the work
locations were ``fundamentally at the same place''); David J.
Woestehoff, 2021-TLC-00112, at *11 (BALCA Apr. 2, 2021) (comparing
employers' housing locations and worksites to analyze their
relationship).
Regarding the ``centralized control of labor relations'' factor,
for example, the Department may look to whether the persons who have
the authority to set employment terms and ensure compliance with the H-
2A program are the same. K.S. Datthyn Farms, 2019-TLC-00086, at *5
(noting that the same manager signed different H-2A applications and
this was a ``fundamental labor practice [ ], at the core of employer-
employee relations for any business'').
Finally, regarding ``common ownership and financial control,'' the
Department may look to the corporate structure and who owns the
entities, whether it be, for example, a parent company or individuals.
See Pepperco-USA, Inc., 2015-TLC-00015, at *30-31 (two nominally
distinct entities were owned by one parent company). It may also
explore whether the owners of the entities at issue are related in some
way. See, e.g., JSF Enters., 2015-TLC-00009, at *13 (BALCA Jan. 22,
2015) (entities owned in varying degrees by members of the same
family); Larry Ulmer, 2015-TLC-00003, at *3 (BALCA Nov. 4, 2014) (two
companies with similar names were owned by father and son); Lancaster
Truck Line, 2014-TLC-00004, at *2-3 (father and son sought to separate
a business in an attempt to meet seasonal need requirements); see also
Overlook Harvesting Co., 2021-TLC-00205, at *13 (BALCA Sept. 9, 2021)
(the marital relationships between two companies' owners suggested
shared control).
These examples of analysis and lines of inquiry related to each of
the factors are not exhaustive.
b. Temporary or Seasonal Need
OFLC's COs will use the single employer test to determine if an
employer's need is truly temporary or seasonal. Section
101(a)(15)(H)(ii)(a) of the INA permits only ``agricultural labor or
services . . . of a temporary or seasonal nature'' to be performed
under the H-2A visa category. 8 U.S.C. 1101(a)(15)(H)(ii)(a). Thus, as
part of the Department's adjudication of applications for temporary
agricultural labor certification, the Department assesses on a case-by-
case basis whether the employer has established a temporary or seasonal
need for the agricultural work to be performed. See 20 CFR 655.103(d),
655.161(a).
As noted above, some nominally distinct employers have intertwined
agricultural operations such that when they apply for H-2A workers it
appears that two or more separate entities are each requesting a
different temporary labor certification. However, in reality, the
workers on these certifications are employed by a single enterprise in
the same area of intended employment and in the same job opportunity
for longer than the attested period of need on any one application. For
example, if Employer A has a need for two Agricultural Equipment
Operators from February to December, and Employer B has a need for two
Agricultural Equipment Operators from December to February at the same
worksite, this may reflect a single year-round need for Agricultural
Equipment Operators. See, e.g., Katie Heger, 2014-TLC-00001, at *6
(BALCA Nov. 12, 2013) (``Considering that the [two entities] appear to
function as a single business entity and have identified sequential
dates of need for the same work, their `temporary' needs merge into a
single year-round need for equipment operators.''). In these
situations, the two nominally separate employers may be applying for
certification for, and advertising for, one continuous, sometimes
permanent, job opportunity, which calls into question whether either
employer has a temporary or seasonal need.
This situation arises only when employers are filing multiple
applications for the same or similar job opportunities in the same area
of intended employment, such that the combined period of need is
continuous or permanent. Applications for job opportunities in
different occupations, involving different duties and requirements, or
opportunities in different areas of intended employment may not
demonstrate one singular continuous need for workers, regardless of
whether the two employers would satisfy the single employer test.
Furthermore, if the periods of need of two or more entities reflect the
same, or similar, need for labor, this is also not necessarily
problematic because the need is not continuous. For example, Employer A
has a need from January to April, and Employer B has a need from
February to April--the two employers may be a single employer, but the
need for workers, assuming the required labor levels are far above
necessary for ongoing operations, may still be seasonal.
Even if employers have genuine business needs for dividing their
business and then separately applying for H-2A workers, this approach
to filing labor certification applications is still problematic. It
undermines the statutorily required labor market test and the
Department's ability to protect workers in the United States as each
application, standing alone, does not fully convey the potential job
opportunity to any applicant--for example, the job opportunity could be
for 12 total months rather than 6 months with one employer, and 6
months with only a nominally separate entity. It is possible that a
U.S. worker would be interested in a job that could last a year, or
even permanently, rather than only 6 months. More importantly, it is a
statutory requirement that the H-2A work be of a temporary or seasonal
nature, and therefore employers submitting an application for temporary
labor certification are required to establish that they have a
temporary or seasonal need for agricultural labor. 8 U.S.C.
1101(a)(15)(H)(ii)(a), 20 CFR 655.103(d), 655.161. Permitting employers
with a permanent need to simply divide their business so that multiple
entities can establish a temporary or seasonal need, and thereby obtain
a labor certification, would violate the statute. See, e.g., Intergrow
East, Inc., 2019-TLC-00073, at *5 (BALCA Sept. 11, 2019) (``An employer
may not circumvent the temporary need requirement by using a closely
related business entity to file an overlapping application . . . .'')
(citations omitted). An employer need not be willful in its attempt to
circumvent program requirements to nevertheless engage in a business
practice that inhibits the Department's ability to protect workers and
carry out its statutory mandate.
To address these situations, for years OFLC has used an informal,
fact-focused method of inquiry, involving a comparison of case
information (e.g., owner and manager names, locations, recruitment
information, and other operational similarities across applications).
In approximately 2015, OFLC began to frame its single employer analysis
using the NLRB's single employer test (see above under Definition) to
improve consistency and transparency and to address more complex
business structures (e.g., corporate organizations) filing H-2A
applications through nominally different employers. See Pepperco-USA,
Inc., 2015-TLC-00015, at *4-5. Historically, BALCA has affirmed many
OFLC denials that either explicitly used the single employer test or
used a
[[Page 63770]]
similar analysis. See, e.g., K.S. Datthyn Farms, LLC, 2019-TLC-00086,
at *4-6 (affirming the CO and applying the four-part NLRA and Title VII
integrated employer test to determine that two H-2A applicants for
temporary labor certification were one integrated employer with a
single labor need); JSF Enters., 2015-TLC-00009, at *12 (affirming the
CO and finding that ``[t]he four entities . . . fill the same need on a
year round basis because of the interlocking nature of the businesses
and regardless of the distinction in crops each harvests [sic]'');
Altendorf Transp., Inc., 2013-TLC-00026, at *8 (BALCA Mar. 28, 2013)
(affirming the CO and noting that Employer's argument ``does not
overcome the interlocking nature of the business organizations . . . .
The Employer has the burden of persuasion to demonstrate it and [the
other entity] are truly independent entities.''); D & G Frey Crawfish,
LLC, 2012-TLC-00099, at *2, *4 (BALCA Oct. 19, 2012) (affirming the CO
and stating that ``[Employer's] ability to separate her operation into
two entities does not enable her to hire temporary H-2A workers to
fulfill her permanent need . . .'').
However, in more recent decisions, BALCA has sometimes rejected the
single employer test, noting that it had not been promulgated through
notice and comment rulemaking. See Mid-State Farms, LLC, 2021-TLC-
00115, at *16 (``This court can find no published instance where the
`Single Employer Test' has been debated openly, subjected to public
comment or accepted as official Department policy.''); Crop Transp.,
LLC, 2018-TLC-00027, at *6 n.6 (BALCA Oct. 19, 2018) (noting that the
single employer test ``is lamentable'' because of its ``awkward fit to
immigration practice and its ambiguity. . . . It would be helpful . . .
if meaningful regulatory criteria were promulgated through notice and
comment procedures as to when ETA will consider two nominally separate
entities as a single applicant for purposes of temporary labor
certifications under the Act.'').
In response to these concerns some ALJs have applied the ``joint
employer'' test to analyze temporary need because a definition of
``joint employment'' is included in the regulations. See, e.g., Mid-
State Farms, LLC, 2021-TLC-00115, at *26; Overlook Harvesting Co.,
2021-TLC-00205, at *10. Joint employment generally is ``where two or
more employers each have sufficient definitional indicia of being a
joint employer of a worker under the common law of agency.'' 20 CFR
655.103(b). Joint employment thus takes into consideration the
relationship between the employer and the employees, while the single
employer test focuses on the relationship between the nominally
distinct employers. See Knitter, 758 F.3d at 1227 (``Unlike the joint
employer test, which focuses on the relationship between an employee
and its two potential employers, the single employer test focuses on
the relationship between the potential employers themselves.'').
Finally, joint employment assumes that the entities are separate while
the single employer test asks whether ``two nominally separate entities
should in fact be treated as an integrated enterprise.'' Id. at 1226-27
(quoting Bristol v. Bd. of Cnty. Comm'rs, 312 F.3d 1213, 1218 (10th
Cir. 2002) (en banc)).
Determining whether two entities are joint employers, contrary to
BALCA's assertion in Mid-State Farms, LLC, is unhelpful when assessing
temporary or seasonal need where, for example, an employer splits their
business between two seemingly separate entities to circumvent the
requirement to establish a temporary or seasonal need. See Overlook
Harvesting Co., 2021-TLC-00205, at *10 (noting modified ``joint
employer'' test to analyze temporary or seasonal need was problematic
because two related companies could ``manipulate [their] seasonal
need'' under this test by splitting one, potentially year-long, season
into two seasons with one company working one season, and the other
working the other). In those situations, employees are generally not
employed by both nominally distinct employers at the same time, though
there may be overlap between the periods of need, making the analysis
of joint employment largely inapplicable. In assessing temporary or
seasonal need, the focus of the Department's analysis is not on the
relationship between the employer and the employees, but rather between
the employers themselves.
In light of the conflicting BALCA case law, and to codify its long-
standing practice, the Department proposes to incorporate the single
employer definition into the regulations and also notes that COs will
use the definition to analyze the temporary or seasonal need of
nominally separate entities.
The Department emphasizes that joint employment can still be useful
in analyzing temporary or seasonal need in the H-2A program, and this
proposal is not meant to eliminate or undermine appropriate use of the
joint employment test. For example, there may be a situation where an
employer applies for workers from January to April and then hires an H-
2ALC or subcontractor for the months of May to December. It is possible
that this subcontracting (or even a parent and subsidiary) relationship
could be joint employment as defined in the regulations. If such an
employer-applicant hires workers from January to April, and then
jointly employs workers in the same occupation in the same area of
intended employment from May to December, this employer-applicant would
have a year-round need and would therefore be unable to establish the
required temporary need for the H-2A program. The use of the single
employer test in temporary or seasonal need analysis will cover
situations where employees are not jointly employed.
Should a CO suspect that an employer-applicant has a true need that
stretches longer than their stated need because it is a single employer
together with another entity, the COs may issue a Notice of Deficiency
(NOD) to clarify the status of said entities. To analyze whether two
entities are a single employer, COs may request, via NOD, information
necessary for this determination, including, but not limited to: (1)
documents describing the corporate and/or management structure for the
entities at issue; (2) the names of directors, officers and/or managers
and their job descriptions; (3) incorporation documents; or (4)
documents identifying whether the same individual(s) have ownership
interest or control. The COs may additionally ask for explanation as
to: (1) why the businesses may authorize the same person or persons to
act on their behalf when signing contracts, or applications, etc.; (2)
whether the businesses intermingle money or share resources; (3)
whether workspaces are shared; and (4) whether the companies produce
similar products or provide similar services. These lists of
documentation or evidence are not exclusive, and the COs may request
other information or documentation as necessary.
c. Enforcement
The proposed definition of single employer also would explicitly
provide that the Department may apply this test for purposes of
enforcing an H-2A employer's contractual obligations. The Department
has increasingly encountered H-2A employers that employ H-2A workers
under one corporate entity and non-H-2A workers under another, such
that it appears that the H-2A employer has no non-H-2A workers in
corresponding employment when in reality, the companies are so
intertwined that all the workers are employed by a single employer, and
the
[[Page 63771]]
non-H-2A workers are employed in corresponding employment.
As noted above, and consistent with BALCA and Federal case law, WHD
already applies the single employer test in certain circumstances to
determine whether an H-2A employer has complied with its program
obligations. Over the past several years, WHD has increasingly
encountered employers employing temporary nonimmigrant workers that
utilize multiple, seemingly distinct corporate entities under common
ownership. In the H-2A context, these employers have divided their H-2A
and non-H-2A workforces onto separate payrolls, such that it appears
that the employer has no workers in corresponding employment, and
paying the non-H-2A workers less than the H-2A workers. However, the H-
2A and non-H-2A workers generally work alongside one another,
performing the same work, under the same common group of managers,
subject to the same personnel policies and operations. In these
circumstances, to determine whether the H-2A employer listed on the H-
2A Application employed the non-H-2A workers in corresponding
employment, the common law test for joint employment may not be a
useful inquiry because the interrelation of operations makes it
difficult to determine the relationship between each distinct corporate
entity and the workers. The single employer test is a more useful
inquiry because it focuses on the relationship between the corporate
entities to determine whether they are so intertwined as to constitute
a single, integrated employer, such that it is appropriate and ``fair''
to treat them as one for enforcement purposes. Absent application of
the single employer test, this burgeoning business practice might be
used--whether intentionally or not--to deprive domestic workers of the
protections of the H-2A program by superficially circumventing an
employment relationship with the H-2A employer as described herein,
contrary to the statute's requirements. 8 U.S.C. 1188(a)(1).
While WHD already utilizes the single employer test, the Department
believes that explicitly noting in the regulations the potential
applicability of this test for purposes of enforcement, and the factors
the Department will consider in applying this test, will provide
clarity for internal and external stakeholders and also could deter
employers from intentionally seeking to circumvent the H-2A program's
requirements in this manner. Just as the single employer test is not
meant to displace the joint employer test when analyzing temporary or
seasonal need, the Department does not propose to replace or supersede
the definition of ``joint employment'' under the existing regulations
for purposes of enforcement. Rather, depending upon the facts and
circumstances of a given case, the Department may apply the single
employer test, the joint employment test, or both in the alternative,
to determine an H-2A employer's compliance with program requirements.
d. Conclusion
In conclusion, the Department proposes a new paragraph (e) to Sec.
655.103 that grants the Department explicit authority to use the
definition of ``single employer'' to determine if nominally separate
employers should be considered one single employer for the purpose of
determining the applicant's temporary or seasonal need, or for purposes
of enforcement. The Department believes that incorporating this single
employer test into the regulations would allow for more consistent
application of the temporary or seasonal need requirement and improve
compliance with program obligations.
The Department recognizes that the adoption of the single employer
definition as it relates to temporary need assessments may impact some
businesses more than others. Regardless of the impact on certain
employers, the Department believes proposing this regulatory text is
necessary to ensure compliance with statutory and regulatory
requirements and clarify the appropriate standard to assess the nature
of the relationship between two or more entities. The Department
welcomes comments on these proposed revisions, especially comments
relating to the impact this may have on specific industries or types of
employers.
2. Section 655.104, Successors in Interest
The Department proposes several revisions to its current
regulations to clarify the liability of successors in interest and
revise the procedures for applying debarment to successors in interest
to a debarred employer, agent, or attorney. Since 2008, the
Department's H-2A regulations have made explicit that successors in
interest to employers, agents, and attorneys may be held liable for the
responsibilities and obligations of their predecessors, including
debarment. As the Department explained in the preamble to the H-2A
final rule issued in 2008, holding successors liable, particularly in
the context of debarment, is necessary ``to ensure that violators are
not able to reincorporate to circumvent the effect of the debarment
provisions,'' and ``to prevent persons or firms who were complicit in
the cause of debarment from reconstituting themselves as a new entity
to take over the debarred employer's business.'' 73 FR 77110, 77116,
77188 (Dec. 18, 2008) (2008 H-2A Final Rule). Despite these intentions,
the Department's current regulations governing debarment, as
interpreted by the ARB and the BALCA, are insufficient to effectively
prevent program violators from ``circumvent[ing] the effect of the
debarment'' as the Department originally intended. Id. at 77110.
Specifically, under the Department's current regulations and
controlling administrative precedent, before OFLC may deny an H-2A
Application filed by or on behalf of a successor in interest to a
debarred employer, agent, or attorney, the Department must first debar
the successor in interest pursuant to the full procedures for debarring
the original violating employer, agent, or attorney. See Admin. v.
Fernandez Farms, ARB No. 2016-0097, 2019 WL 5089592, at *2-4 (ARB Sept.
16, 2019) (holding that 29 CFR 501.31 requires WHD to issue a new
notice of debarment to a successor before subjecting the successor to
the original employer's WHD order of debarment); Gons Go, Inc., BALCA
Nos. 2013-TLC-00051, -00055, -00063 (BALCA Sept. 25, 2013) (holding 20
CFR 655.182 requires OFLC to first debar a successor of a debarred
employer, by completing the full debarment procedures in Sec. 655.182,
before it may deny the successor's application for labor
certification). These requirements are unnecessary under the principles
of the successorship doctrine, and unduly burden the Department's
ability to apply debarment to successors in interest, thus allowing
those known to have committed substantial H-2A violations to continue
to participate in the H-2A program.
Under the successorship doctrine, a putative successor in interest
to a debarred employer, agent, or attorney is entitled to notice and an
opportunity for hearing prior to denial of a future application only on
the question of its status as a successor in interest. See Golden State
Bottling Co., Inc. v. NLRB, 414 U.S. 168, 180 (1973) (discussing due
process rights of successors). The Department need not obtain a new
order of debarment against the successor directly; that is the ``whole
point'' of the successorship doctrine, that the liabilities of the
predecessor attach to the successor. Criswell v. Delta Air Lines, 868
F.2d 1093, 1095 (9th Cir. 1989).
[[Page 63772]]
Accordingly, the Department proposes several revisions to its
regulations to streamline the procedures by which it may apply a
debarment of an employer, agent, or attorney to a successor in interest
while affording putative successors due process. First, the Department
proposes a new Sec. 655.104, Successors in interest. Proposed
paragraphs (a) and (b) are similar to the longstanding definition of
``successors in interest,'' currently in Sec. 655.103(b), Definitions.
However, proposed paragraph (a) omits language in the current
regulation stating that liability of successors in interest arises
where an employer, agent, or attorney ``has ceased doing business or
cannot be located for purposes of enforcement.'' Instead, the
Department proposes adding to proposed paragraph (b) a similar--but
broader--definition of successors in interest. The new language in
proposed paragraph (b) would specify that ``[a] successor in interest
includes an entity that is controlling and carrying on the business of
a previous employer, agent, or farm labor contractor, regardless of
whether such successor in interest has succeeded to all the rights and
liabilities of the predecessor entity.'' This proposed revision
recognizes that successorship law does not typically limit successor
liability to scenarios where an entity has ceased doing business or
cannot be located. The Department believes these revisions will more
accurately capture successorship scenarios that may arise in the H-2A
context. In the same vein, in proposed Sec. 655.104(b) the Department
proposes minor revisions to the current definition in Sec. 655.103(b),
regarding the nonexhaustive factors that the Department would use in
determining successor status. The proposed revisions to the factors
would provide that the personal involvement of the successor firm's
supervisors and management in the violations underlying the debarment
is one of several factors, rather than the ``primary'' factor, to be
considered in cases of debarment. In its experience, the Department has
found the current regulation's reliance on this factor as the
``primary'' factor to be unduly limiting, and in tension with the
general principle in paragraph (i) of the definition of successor in
interest that no one factor should be dispositive in determining
successor status. 20 CFR 655.103(b) (paragraph (i) of the definition of
``successor in interest''). The Department also proposes a
corresponding revision to delete the definition of ``successor in
interest'' from the Definitions at Sec. 655.103(b).
Proposed Sec. 655.104(c) explains that when an employer, agent, or
attorney is debarred, any successor in interest to the debarred
employer, agent, or attorney is also debarred. Accordingly,
applications filed by or on behalf of a putative successor in interest
to a debarred employer, agent, or attorney would be treated like
applications filed by the debarred employer, attorney, or agent.
Specifically, under this proposal, if the CO determines that such an
application was filed during the debarment period, the CO would issue a
NOD under Sec. 655.142 or deny the application under Sec. 655.164,
depending upon the procedural status of the application. The NOD or
denial would be based solely on the basis of the applying entity's
successor status and would not address (nor would it waive) any other
potential deficiencies in the application. If the CO determines that
the entity is not a successor, the CO would resume with processing of
the application under Sec. 655.140. However, if the CO determines that
the entity is a successor, the CO would deny the application without
further review pursuant to Sec. 655.164. As with any other
certification denial, the putative successor could appeal the CO's
determination under the appeal procedures at Sec. 655.171;
specifically here, the question of whether the entity is, in fact, a
successor in interest to a debarred employer, agent, or attorney.
However, such appeal would be limited to the entity's status as a
successor given the narrow scope of the CO's determination under these
provisions. Accordingly, should a reviewing ALJ conclude that the
entity is not a successor, the application would require further
consideration and thus the ALJ would remand the application to OFLC for
further processing.
The Department proposes corresponding revisions to Sec. 655.182,
governing debarment, to state clearly that debarment of an employer,
agent, or attorney applies to any successor in interest to that
debarred employer, agent, or attorney. These proposed revisions would
remove references to successors in interest from current paragraphs (a)
and (b), would redesignate current paragraph (b) to paragraph (b)(1),
and would include a new paragraph (b)(2) that reiterates the procedures
for determining successor status as outlined in proposed Sec.
655.104(c).
Similarly, proposed Sec. 655.104(c) also would explain that the
OFLC Administrator may revoke a certification that was issued, in
error, to a successor in interest to a debarred employer, pursuant to
Sec. 655.181(a). The entity may appeal its successor status pursuant
to Sec. 655.171. The Department notes that it may revoke a
certification issued, in error, to a debarred employer or to a
successor of a debarred employer under its current revocation
authorities, but the Department proposes revisions to the bases for
revocation at Sec. 655.181(a)(1), to clarify that fraud or
misrepresentation in the application includes an application filed by a
debarred employer (and, by extension, an application filed by a
successor to a debarred employer). These proposed changes would simply
clarify this existing authority. However, given the impact of
revocation on both employers and workers, proposed Sec. Sec.
655.104(c) and 655.181(a)(1) would not explicitly contemplate
revocation of a certification issued, in error, based on an application
filed by a debarred agent or attorney, or by successors to a debarred
agent or attorney, as distinct from a debarred employer or successor in
interest to a debarred employer. The Department invites comment on
whether revocation may be warranted in such circumstances.
Finally, the Department proposes corresponding revisions to the
procedures governing WHD debarments under 29 CFR 501.20, including a
new proposed paragraph (j) that explicitly addresses successors in
interest. Under the successorship doctrine, as discussed above, and
under this proposed rule, WHD would not be required to issue a notice
of debarment to a successor in interest to a debarred employer, agent,
or attorney; rather, debarment of the predecessor would apply equally
to any successor in interest. However, as provided in proposed
paragraph (j), as a matter of expediency WHD could, but would not be
required to, name any known successors to an employer, agent, or
attorney in a notice of debarment issued under Sec. 501.20(a).
The Department has determined that these proposed revisions would
better effectuate the intent of the Department's current successor in
interest regulations, which are critically important to ensuring that
program violators cannot circumvent a debarment. The proposed
procedures would allow OFLC to apply a final order of debarment of an
employer, agent, or attorney to any successor in interest to the
debarred entity. The proposed procedures also would provide for
sufficient due process to putative successors, as the proposed
procedures would require OFLC to provide notice to the successor of the
basis for the deficiency under Sec. 655.141 or denial under Sec.
655.164 (i.e., its status as a successor), and an opportunity for
hearing on its successor status under
[[Page 63773]]
Sec. 655.171. The Department welcomes comments on these proposed
revisions.
3. Section 655.190, Severability
The Department proposes to add a severability clause to 20 CFR part
655, subpart B. This clause would explain that if any provision is held
to be invalid or unenforceable by its terms, or as applied to any
person or circumstance, or stayed pending further agency action, the
provision shall be construed so as to continue to give the maximum
effect to the provision permitted by law, unless such holding is one of
total invalidity or unenforceability, in which event the provision or
sub-provision shall be severable from the corresponding subpart or part
and shall not affect the remainder thereof. The Department proposes to
add this severability clause because generally, each provision within
the H-2A regulations is capable of operating independently from one
another, including where the Department has proposed multiple methods
to strengthen worker protections and to enhance the Department's
capabilities to conduct enforcement and monitor compliance. Further,
the severability clause demonstrates the Department's intent that the
remaining provisions of the regulations should continue in effect if
any provision or provisions are held to be invalid or unenforceable. It
is the Department's intent that the remaining provisions of the
regulations should continue in effect if any provision or provisions
are held to be invalid or unenforceable. It is of great importance to
the Department and the regulated community that even if a portion of
the H-2A regulations were held to be invalid or unenforceable that the
larger program could operate consistent with the expectations of
employers and workers.
The Department seeks comments both on the substance and scope of
this proposed severability clause and requests the public's views on
any other issues related to severability, such as whether the rule in
general includes provisions amenable to severability; whether specific
parts of the rule could operate independently; whether the benefits of
the rule would continue to justify the costs should particular
provisions be severed; or whether individual provisions are essential
to the entire rule's workability.
B. Prefiling Procedures
1. Section 655.120(b), Offered Wage Rate
Currently, Sec. 655.120(b)(2) provides that the Department will
update each AEWR at least annually by publication in the Federal
Register.\12\ In addition, paragraph (b)(3) requires employers to
adjust workers' pay, if necessary, so that the employer pays workers at
least the updated AEWR upon the effective date of the updated AEWRs in
the Federal Register. However, the present regulatory text does not
address when the AEWR published in a Federal Register notice becomes
effective. The Department therefore proposes to revise paragraph (b)(2)
and (3) to designate the effective date of updated AEWRs as the date of
publication in the Federal Register.
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\12\ Under 44 U.S.C. 1507, publication in the Federal Register
provides legal notice of the new wage rates.
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The duty to pay an updated AEWR where it is higher than the other
wage sources is not a new requirement, nor is the requirement to pay an
increased AEWR immediately upon publication in the Federal Register.
Between 1987 and January 2018, the Department required employers
participating in the H-2A program to offer and pay the highest of the
AEWR, the prevailing wage, any agreed-upon collective bargaining wage,
or the Federal or State minimum wage at the time the work is performed
effective upon the date of publication in the Federal Register.\13\
Under more recent practice, however, when publishing the Federal
Register notice containing updated AEWRs, the Department has stated the
effective date of the new AEWRs in the notice and generally set the
effective date of the new AEWRs at no later than 14 calendar days from
the publication of that notice.
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\13\ See, e.g., 1987 H-2A interim final rule (IFR), 52 FR 20496,
20521; Labor Certification Process for the Temporary Employment of
Aliens in Agriculture in the United States; H-2A Program Handbook,
53 FR 22076, 22095 (June 13, 1988) (``Certified H-2A employers must
agree, as a condition for receiving certification, to pay a higher
AEWR than the one in effect at the time an application is submitted
in the event publication of the [higher] AEWR coincides with the
period of employment.'').
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In this rule, the Department proposes to revise paragraph (b)(2) to
designate the effective date of updated AEWRs as the date of
publication in the Federal Register. For further clarity, the
Department also proposes to revise paragraph (b)(3) to state that the
employer is obligated to pay the updated AEWR immediately upon the date
of publication of the new AEWR in the Federal Register. As noted above,
the proposal to remove an effective date which differs from the
publication date of the AEWRs represents a return to longstanding prior
practice. This change will also ensure that agricultural workers are
paid at least the most current AEWR when work is performed, which
better aligns with the Department's mandate to prevent adverse effect
on the wages of workers in the U.S. similarly employed. To eliminate
any potential confusion among either employers or workers as to when
the new AEWR will need to be paid, the NPRM also proposes to update the
regulatory text, which is currently silent on this issue, to clearly
state when the obligation to pay the new AEWRs begins.
While the Department recognizes that this proposal is a departure
from more recent practice that allowed a wage adjustment period, the
vast majority of employers will still have the opportunity to view and
assess the impact of the new AEWR rates prior to their publication by
the OFLC Administrator in the Federal Register on or around January
1.\14\ Prior to that publication, USDA publishes its FLS in late
November \15\ showing the wage data findings that become the new AEWRs
for the field and livestock workers (combined) occupational grouping.
Similarly, BLS publishes its OEWS data in March, which contains the
wage data that become the new AEWRs on or around July 1 for the small
percentage of job opportunities that cannot be encompassed within the
six Standard Occupational Classification (SOC) codes and titles in the
FLS field and livestock workers (combined) reporting category. The
Department will post a notice on the OFLC website when USDA publishes
the FLS and when BLS publishes the OEWS data that will direct employers
to the publicly available information. The Department recognizes that
the employers of the small number of field and livestock workers
(combined) job opportunities in
[[Page 63774]]
States or regions, or equivalent districts or territories, for which
the FLS does not report a wage (e.g., Alaska and Puerto Rico) will not
have similar direct access to information enabling them to predict the
applicable AEWR for planning purposes. However, as the Department noted
in the 2010 H-2A Final Rule, ``[as] . . . these wage adjustments may
alter employer budgets for the season,'' employers are encouraged ``to
include into their contingency planning certain flexibility to account
for any possible wage adjustments.'' 75 FR 6884, 6901 (Feb. 12, 2010).
The Department believes these proposed revisions will clarify employer
wage obligations and ensure that agricultural workers are paid at least
the AEWR in effect at the time the work is performed, without new or
additional impact to most employers' ability to budget and plan. The
Department seeks comments on all aspects of this proposal.
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\14\ See, e.g., 88 FR 12760, 12766 (the Department's program
estimates indicate that 98 percent of H-2A job opportunities are
classified within the six SOC titles and codes of the field and
livestock workers (combined) occupational grouping).
\15\ USDA's National Agricultural Statistics Service publishes
the Farm Labor report on its website at <a href="https://www.nass.usda.gov/Surveys/Guide_to_NASS_Surveys/Farm_Labor/">https://www.nass.usda.gov/Surveys/Guide_to_NASS_Surveys/Farm_Labor/</a>. OEWS wages for each SOC
code and geographic area are available using the Department's search
tool or searchable spreadsheet that may be accessed at <a href="https://flag.dol.gov">https://flag.dol.gov</a>. BLS publishes OEWS data on its website at <a href="https://www.bls.gov/oes/data-overview.htm">https://www.bls.gov/oes/data-overview.htm</a>. An overview of the OEWS survey
methodology may be accessed at <a href="https://www.bls.gov/oes/current/oes_tec.htm">https://www.bls.gov/oes/current/oes_tec.htm</a>. An explanation of the survey standards and estimation
procedures can be found at <a href="https://www.bls.gov/opub/hom/oews/pdf/oews.pdf">https://www.bls.gov/opub/hom/oews/pdf/oews.pdf</a>.
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2. Sections 655.120(a) and 655.122(l), Requirement To Offer, Advertise,
and Pay the Highest Applicable Wage Rate
The Department proposes revisions to Sec. Sec. 655.120(a) and
655.122(l) to clarify that where there is an applicable prevailing
piece rate, or where an employer intends to pay a piece rate or other
non-hourly wage rate, the employer must include the non-hourly wage
rate on the job order along with the highest hourly rate. All potential
wage rates must be listed on the job order notwithstanding the fact
that it may not be possible to determine in advance which of these
rates is the highest. Once work has been performed, the employer must
then calculate and pay workers' wages using the wage rate that will
result in the highest wages for each worker in each pay period.
The Department's current regulations at 20 CFR 655.120(a) and
655.122(l) require an employer to ``offer, advertise in its
recruitment, and pay'' the highest of the AEWR, prevailing wage rate,
collective bargaining agreement (CBA) rate, or Federal or State minimum
wage. While seemingly straightforward, this requirement has been
difficult to apply in practice. For instance, where there is an
applicable prevailing piece rate, it is usually not possible to
determine until the time work is performed whether the prevailing piece
rate will be higher than the highest of the applicable hourly wage
rates as this will depend on worker productivity.
In such instances, OFLC currently only requires H-2A employers to
list a wage offer that is at least equal to the highest applicable
hourly wage--usually the AEWR--on job orders, consistent with BALCA
decisions dating from 2009 to 2011, which concluded that, under the
regulations, OFLC cannot require employers to include an applicable
prevailing piece rate on the job order where OFLC does not know at the
certification stage whether the prevailing piece rate will be higher
than the highest hourly wage. See, e.g., Golden Harvest Farm, 2011-TLC-
00442, at *3 (BALCA Aug. 17, 2011); Dellamano & Assocs., 2010-TLC-
00028, at *5-7 (BALCA May 21, 2010); Twin Star Farm, 2009-TLC-00051, at
*4-5 (BALCA May 28, 2009). While this has been the Department's
longstanding practice, the Department is concerned with the uncertainty
this practice can generate as to which rate or rates an employer must
include as the required wage in a job order and pay to H-2A workers and
workers in corresponding employment. Moreover, because the prevailing
piece rate is not included on the job order, in most such instances,
WHD is not able to enforce the prevailing piece rate.
In other instances, such as when there is not a prevailing wage,
employers may voluntarily elect to pay a piece rate or other non-hourly
wage rate but fail to include such rates on the job order, potentially
mispresenting the offered wage rate and failing to meet their
recruitment obligations.
The Department proposes several changes to the existing regulations
to address these issues. First, the Department proposes to retain the
current list of wage rates in Sec. 655.120(a), redesignated as Sec.
655.120(a)(1)(i) through (v), and to add to this list, at paragraph
(a)(1)(vi), ``[a]ny other wage rate the employer intends to pay.'' This
proposed addition will clarify an employer's obligation to include on
the job order any wage rate it intends to pay that could end up being
the highest applicable wage rate for some workers, in some pay periods.
The Department also proposes to add at Sec. 655.120(a)(2) an explicit
requirement that, where the wage rates in paragraph (a)(1) are
expressed in different units of pay, the employer must list the highest
applicable wage rate for each unit of pay in its job order and must
advertise all of these wage rates in its recruitment. Under this
proposal, where one of the wage rates in paragraph (a)(1) is expressed
as a piece rate and the others are expressed as hourly wage rates, the
employer must list both the piece rate and the highest hourly wage rate
on the job order. Where more than one of the wage rates in paragraph
(a)(1) are expressed as non-hourly wage rates the employer would be
required to list the highest applicable wage rate for each potential
unit of pay on the job order.
Next, the Department proposes corresponding changes at Sec.
655.122(l), including replacing the list of wage rates with a cross-
reference to Sec. 655.120(a)(1), removing the current language in
Sec. 655.122(l)(1) which would be made redundant by the changes to
Sec. 655.120(a), and making other technical edits. In addition, the
Department proposes to remove the current language at Sec.
655.122(l)(2)(i) and (ii), which requires an employer to supplement
workers' pay where a worker is paid by the piece and does not earn
enough to meet the required hourly wage rate for each hour worked, but
does not include an analogous requirement that an employer supplement
workers' pay when a worker who is paid by the hour does not earn enough
to meet the applicable prevailing piece rate. The Department proposes
to replace this language with a new provision at paragraph (l)(1)
explaining that the employer must always calculate and pay workers'
wages using the wage rate that will result in the highest wages for
each worker, in each pay period. Because employers would be required to
pay whichever wage rate will result in the highest wages in a
particular pay period, supplementing workers' pay to ensure that the
required hourly wage is met will no longer be necessary. Proposed new
paragraph (l)(2) explains that, where the wage rates set forth in Sec.
655.120(a)(1) include both hourly and non-hourly wage rates, the
employer must calculate each worker's wages in each pay period using
the highest wage rate for each unit of pay and must pay the worker the
highest of these wages for that pay period. Under this proposal, the
employer is responsible for evaluating the different wage rates
applicable in each pay period of the growing season, including any mid-
season increases in wage rate(s) that might not be reflected in the job
order. Proposed paragraphs (l)(1) and (2) also make clear that the
wages actually paid cannot be lower than the wages that would result
from the wage rate(s) guaranteed in the job order, so that, if there is
a mid-season decrease in wage rate(s), the workers are still entitled
to the higher wage rate(s) listed on the job order.
Under this proposal, where an employer includes multiple activities
or tasks, each of which have different applicable wage rates, in a
single job order, the employer must engage in the analysis set forth
above with respect to each activity or task. For example, if a job
order includes harvesting several varieties of apples, each with a
different
[[Page 63775]]
prevailing wage rate, the employer must list on the job order, for each
variety, both the highest applicable hourly wage rate and the highest
applicable wage rate for any other unit of pay, including any piece
rates. The employer would then be responsible for evaluating, with
respect to each activity or task performed in the pay period, which of
the applicable wage rates would result in the highest wage for the
worker for the work performed and to pay the worker the highest wage
with respect to each activity or task performed.
The Department believes that these proposed changes would help
ensure that employers' recruitment efforts reflect the correct
applicable wage rates so as to more accurately determine whether there
are U.S. workers who would be available and willing to accept the
employment. They also would help ensure that H-2A workers and workers
in corresponding employment are paid the wages to which they are
entitled (i.e., the highest of the AEWR, prevailing hourly wage or
piece rate, CBA rate, Federal minimum wage, State minimum wage, or any
other wage rate the employer intends to pay). Because H-2A employers
are already required to accurately track and record both hours worked
and field tallies pursuant to Sec. 655.122(j), the Department believes
that employers should already have processes in place to accurately
record information needed for compliance with the proposed changes to
Sec. Sec. 655.120(a) and 655.122(l), minimizing any additional
administrative burden these proposed changes would place on employers.
The Department welcomes comments on this proposal. In particular,
the Department is interested in examples of how this proposal would
work in practice, whether there are circumstances, such as when an
employer includes multiple activities or tasks in a single job order,
where further clarification is needed on which wage rates must be
listed in the job order and how to calculate the worker's wages, and
whether corresponding changes to the recordkeeping requirements at
Sec. 655.122(j) and (k) or to the requirements for SWAs' review of job
orders at part 653, subpart F, are needed. In addition, the Department
seeks comments on whether the requirement to list the highest
applicable wage rate for each unit of pay on job orders placed in
connection with an H-2A application renders unnecessary the requirement
at 20 CFR 653.501(c)(2)(i) that an employer that pays by the piece or
other non-hourly unit calculate and submit an estimated hourly wage
rate with the job order. Under the proposed rule, the job order in such
cases should guarantee payment of the highest of the applicable hourly
or non-hourly wage rates. The Department welcomes comment on whether
the calculation of an estimated hourly wage would still be necessary to
prevent adverse effect on similarly employed workers in the United
States and/or on agricultural workers generally.
The Department is considering making similar revisions to the
regulations at Sec. Sec. 655.210(g) and 655.211, governing the rates
of pay and contents of job orders for herding and range livestock
production occupations, to require an employer to disclose all
potentially applicable rates of pay in the job order. Under such a
proposal, for example, an employer would be required to disclose on the
job order both the monthly AEWR and a State minimum hourly wage rate
applicable to the job opportunity that could potentially result in
higher earnings based on hours worked. As explained above, the
Department believes that such disclosure would likely benefit potential
applicants to better understand the potential earnings for a job
opportunity, and would assist the Department with more efficient
program administration and enforcement. The Department welcomes comment
on whether it should include these similar revisions in any final rule.
The Department is also considering making similar revisions to the
regulations at 20 CFR 653.501(c), governing the requirements for SWAs'
review of clearance orders, to require an employer to disclose all
potentially applicable rates of pay in a non-H-2A (or non-criteria)
clearance order. Under such a proposal, an employer would be required
to disclose on the clearance order the highest applicable hourly wage
rate, if any (i.e., the highest of any applicable prevailing hourly
wage rate, the Federal or State minimum wage, or an hourly wage rate
the employer intends to pay), as well as any piece rate or other non-
hourly wage rate applicable to the job opportunity that could
potentially result in higher earnings, and to pay workers the highest
of these rates. The Department believes that such disclosure would
likely benefit potential applicants to better understand the potential
earnings for a job opportunity, and that it would minimize confusion to
require similar information for both criteria and non-criteria
clearance orders. The Department welcomes comment on whether it should
include these similar revisions in any final rule.
3. Section 655.122, Contents of Job Offers
a. Paragraph (h)(4) Employer Provided Transportation
The Department proposes to revise Sec. 655.122(h)(4) to require
the provision, maintenance, and wearing of seat belts in most employer-
provided transportation. The Department believes that existing vehicle
safety standards provide important safeguards for workers, but that
they
[…truncated; see source link]Indexed from Federal Register on September 15, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.