Rule2024-08333
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
April 29, 2024
Effective
June 28, 2024
Issuing agencies
Labor DepartmentEmployment and Training AdministrationWage and Hour Division
Abstract
The Department of Labor (Department or DOL) is amending 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 in this final 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 89, Number 83 (Monday, April 29, 2024)]
[Rules and Regulations]
[Pages 33898-34069]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-08333]
[[Page 33897]]
Vol. 89
Monday,
No. 83
April 29, 2024
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; Final Rule
Federal Register / Vol. 89, No. 83 / Monday, April 29, 2024 / Rules
and Regulations
[[Page 33898]]
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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: Final rule.
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SUMMARY: The Department of Labor (Department or DOL) is amending 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 in
this final 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: This final rule is effective June 28, 2024.
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 Daniel Navarrete, Acting
Director of the Division of Regulations, Legislation, and
Interpretation, Wage and Hour Division, Department of Labor, Room S-
3018, 200 Constitution Avenue NW, Washington, DC 20210, telephone:
(202) 693-0406 (this is not a toll-free number). For persons with a
hearing or speech disability who need assistance to use the telephone
system, please dial 711 to access telecommunications relay services.
SUPPLEMENTARY INFORMATION:
Preamble Table of Contents
I. Acronyms and Abbreviations
II. Background
A. Legal Authority
B. Current Regulatory Framework
C. Need for Rulemaking
III. General Comments on the Proposed Rule
IV. Overview of This Final Rule
A. Summary of Major Provisions of this Final Rule
B. Section-by-Section Analyses
C. Transition Procedures
V. Discussion of Revisions to Employment Service Regulations
A. Introduction
B. 20 CFR part 651--General Provisions Governing the Wagner-
Peyser Act Employment Service
C. 20 CFR part 653--Services of the Wagner-Peyser Act Employment
Service System
D. 20 CFR part 658, subpart F--Discontinuation of Services to
Employers by the Wagner-Peyser Act Employment Service
VI. Discussion of 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
VII. Discussion of 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
VIII. 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, Small Business Regulatory
Enforcement Fairness Act, Executive Order 13272: Proper
Consideration of Small Entities in Agency Rulemaking
C. Paperwork Reduction Act
D. Small Business Regulatory Enforcement Fairness Act of 1996
(Congressional Review Act)
E. Unfunded Mandates Reform Act of 1995
F. Executive Order 13132 (Federalism)
G. Executive Order 13175 (Consultation and Coordination with
Indian Tribal Governments)
I. Acronyms and Abbreviations
ADA Americans with Disabilities Act
AEWR Adverse effect wage rate
AIE Area(s) of intended employment
ALJ Administrative Law Judge
ALRA California Agricultural Labor Relations Act
ALRB California Agricultural Labor Relations Board
ARB Administrative Review Board
ARIMA Autoregressive integrated moving average
ARS Agricultural Recruitment System
ATV All-terrain vehicle
BALCA Board of Alien Labor Certification Appeals
BLS Bureau of Labor Statistics
CAGR Compound annual growth rate
CBA Collective bargaining agreement
CFR Code of Federal Regulations
CO Certifying Officer
CRA Congressional Review Act
CY Calendar year
DBA Doing business as
DHS Department of Homeland Security
DOJ Department of Justice
DOL Department of Labor
EEOC Equal Employment Opportunity Commission
E.O. Executive Order
ES Employment Service
ES system Employment Service system
ETA Employment and Training Administration
FDA Food and Drug Administration
FEIN Federal Employer Identification Number
FLAG Foreign Labor Application Gateway
FLS Farm Labor Survey
FLSA Fair Labor Standards Act
FMVSS Federal Motor Vehicle Safety Standards
FOIA Freedom of Information Act
FR Federal Register
FRN Federal Register notice
FY Fiscal year
GAO Government Accountability Office
GVWR Gross Vehicle Weight Rating
H-2ALC H-2A labor contractor
HR Human resources
ICR Information Collection Request
IFR Interim final rule
INA Immigration and Nationality Act
MSFW Migrant or seasonal farmworker
MSPA Migrant and Seasonal Agricultural Worker Protection Act
NAICS North American Industry Classification System
NARA National Archives and Records Administration
NHTSA National Highway Traffic Safety Administration
NIOSH National Institute for Occupational Safety and Health
NLRA National Labor Relations Act
NLRB National Labor Relations Board
NOD Notice of Deficiency
NPC National Processing Center
NPRM Notice of proposed rulemaking
NPWC National Prevailing Wage Center
OALJ Office of Administrative Law Judges
OEWS Occupational Employment and Wage Statistics
OFLC Office of Foreign Labor Certification
OHV Off-highway vehicle
OIG Office of Inspector General
OIRA Office of Information and Regulatory Affairs
OMB Office of Management and Budget
OSHA Occupational Safety and Health Administration
[[Page 33899]]
OWI Office of Workforce Investment
PII Personally identifiable information
PRA Paperwork Reduction Act
Pub.L. Public Law
RFA Regulatory Flexibility Act
RIN Regulation Identifier Number
ROPS Roll-Over Protective Structure
SBA Small Business Administration
SBREFA Small Business Regulatory Enforcement Fairness Act of 1996
Sec. Section of a Public Law
Secretary Secretary of Labor
SOC Standard Occupational Classification
SORN System of Records Notice
Stat. U.S. Statutes at Large
SUSB Statistics of U.S. Businesses
SWA State workforce agency
TVPA Victims of Trafficking and Violence Protection Act of 2000
UMRA Unfunded Mandates Reform Act of 1995
U.S.C. United States Code
USCIS U.S. Citizenship and Immigration Services
USDA U.S. Department of Agriculture
U.S.DOT U.S. Department of Transportation
VSL Value of a statistical life
WHD Wage and Hour Division
II. Background
A. Legal Authority
1. Immigration and Nationality Act
The Immigration and Nationality Act (INA), as amended by the
Immigration Reform and Control Act of 1986, 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. 87 FR 61660, 61684 (Oct. 12, 2022); \2\ 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.
\2\ Final Rule, Temporary Agricultural Employment of H-2A
Nonimmigrants in the United States, 87 FR 61660 (Oct. 12, 2022)
(2022 H-2A Final Rule).
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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).\3\ 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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\3\ 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 agricultural 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. The limited exceptions from this requirement may be found at
8 CFR 274a.12(b)(20) and (21).
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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) 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).
2. Wagner-Peyser Act
The Wagner-Peyser Act of 1933 established the United States
Employment Service (ES), a nationwide system to improve the functioning
of the nation's labor markets by bringing together individuals seeking
employment with employers seeking workers. 29 U.S.C. 49 et seq. Section
3(a) of the Act sets forth the basic responsibilities of the Department
in the ES, 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. 29 U.S.C. 49b. The Act further authorizes the
Department ``to make such rules and regulations as may be necessary to
carry out [its] provisions.'' 29 U.S.C. 49k.
Consistent with the aims of sec. 3(a), 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 (Pub. L. 113-128), 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 (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 migrant or seasonal farmworkers
(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 Agricultural Recruitment System (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 process the Department must follow if
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State agencies are not complying with the ES regulations.
B. Current Regulatory Framework
Since 1987, the Department has operated the H-2A temporary
agricultural 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.\4\ 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.\5\ 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.\6\ Relatedly, the
regulations implementing the Wagner-Peyser Act at 20 CFR parts 651,
653, and 658 establish the 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 agricultural labor certification.
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\4\ 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).
\5\ 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).
\6\ 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).
See 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) (2021 H-2A Herder
Final Rule).
.
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C. Need for Rulemaking
This final rule aims to address some concerns expressed by various
stakeholders during rulemaking. It also responds to recent court
decisions and program experience indicating a need to enhance the
Department's ability to enforce regulations related to foreign labor
recruitment, 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, as
explained further in the sections that follow.
In particular and 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.
See 87 FR 61660. In response to the notice of proposed rulemaking
(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 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.
After careful consideration of comments from the public, the
Department is adopting important provisions in this final rule 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. These
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 undermine the Department's ability to determine
whether there are, in fact, insufficient U.S. workers for proposed H-2A
jobs. It is the Department's policy 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 this rulemaking as
well as on prior rulemakings, and reports from various stakeholders
that it is necessary to adopt stronger protections for agricultural
workers to better ensure that employers, agents, attorneys, and labor
recruiters comply with the law, and to 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 amplifies these needs.\7\
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\7\ See, e.g., OFLC, Performance Data, <a href="https://www.dol.gov/agencies/eta/foreign-labor/performance">https://www.dol.gov/agencies/eta/foreign-labor/performance</a> (last accessed Feb. 8, 2024)
(providing disclosure data for the H-2A labor certification program
since Fiscal Year (FY) 2008).
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III. General Comments on the Proposed Rule
On September 15, 2023, the Department published an NPRM requesting
public comments on proposals intended to improve protections for
workers in temporary agricultural employment in the United States. See
88 FR 63750 (Sept. 15, 2023).\8\ The proposed revisions focused 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. The
NPRM invited written comments from the public on all aspects of the
proposed amendments to the regulations. A 60-day comment period allowed
for the public to inspect the proposed rule and provide comments
through November 14, 2023.
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\8\ NPRM, Improving Protections for Workers in Temporary
Agricultural Employment in the United States, 88 FR 63750 (Sept. 15,
2023) (2023 NPRM).
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The Department received a total of 12,928 public comments in
response to the NPRM before the end of the comment period. Included in
these comments were multiple form letter campaigns, which were received
as bundled submissions to the
[[Page 33901]]
<a href="http://Regulations.gov">Regulations.gov</a> website. After accounting for duplicate submissions,
the Department received comments from 8,725 unique commenters. Comments
can be viewed online at <a href="https://www.regulations.gov/docket/ETA-2023-0003">https://www.regulations.gov/docket/ETA-2023-0003</a>. The commenters represented a wide range of stakeholders from the
public, private, and not-for-profit sectors. The Department received
comments from a geographically diverse cross-section of stakeholders
within the agricultural sector, including farmworkers, workers' rights
advocacy organizations, farm owners, farm labor contractors, trade
associations for agricultural products and services, not-for-profit
organizations representing agricultural issues, and other organizations
with an interest in agricultural activities. Public sector commenters
included Federal elected officials, State officials, and agencies
representing State governments. Private sector commenters included
business owners, recruiting companies, and law firms. Not-for-profit
sector commenters included both industry organizations (e.g.,
professional associations) and worker advocacy organizations.
The Department recognizes and appreciates the value of comments,
ideas, and suggestions from all those who commented on the proposal,
and this final rule was developed after review and consideration of all
public comments timely received in response to the NPRM. Some comments
provided general opinions on the proposed rule, or on agricultural
labor generally, and the Department thanks the commenters for their
time to submit their feedback. Where public comments provided
substantive feedback on specific proposals in the NPRM, they have been
responded to in the sections that follow. When the Department has made
changes from the NPRM as a result of public comment, those changes are
identified in the sections below.
IV. Overview of This Final Rule
A. Summary of Major Provisions of This Final Rule
1. Protections for Worker Voice and Empowerment
In this final rule, the Department is adopting several revisions to
Sec. 655.135 that will provide stronger protections for workers
protected by the H-2A program to advocate on behalf of themselves and
their coworkers regarding their working conditions and prevent
employers from suppressing this activity. As detailed in Section VI,
the Department believes that these protections are important to prevent
adverse effect on the working conditions of workers in the United
States similarly employed. 8 U.S.C. 1188(a)(1). Specifically, the
Department is broadening Sec. 655.135(h), which prohibits unfair
treatment by employers, by expanding and explicitly protecting certain
activities all workers must be able to engage in 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) of the Fair Labor Standards Act (FLSA) (``FLSA agriculture''),
who are exempt from the protections of the National Labor Relations Act
(NLRA), 29 U.S.C. 151 et seq., the Department also revises Sec.
655.135(h) to include some new protections to safeguard collective
action and concerted activity for mutual aid and protection, and, in a
change responsive to comments, to allow those workers to decline to
attend or listen to employer speech regarding protected activities
without fear of retaliation.\9\
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\9\ As discussed further in Section VI.C.2.b below, the NLRA
excludes from its protections workers who are engaged in FLSA
agriculture. See definition of ``employee'' at 29 U.S.C. 152(3)
(excluding ``any individual employed as an agricultural laborer'').
Congress has provided that the definition of ``agricultural'' in
sec. 3(f) of the FLSA also applies to the NLRA. See, e.g., Holly
Farms Corp. et al. v. NLRB, 517 U.S. 392, 397-98 (1996). The H-2A
statute and the Department, however, define ``agricultural labor or
services'' under the H-2A program more broadly to include FLSA
agriculture as well as other activities. See 8 U.S.C.
1101(a)(15)(H)(ii)(a); 20 CFR 655.103(c). Certain provisions of this
final rule apply only to workers or persons engaged in FLSA
agriculture (who are excluded from the NLRA's protections).
Therefore, workers who are not engaged in FLSA agriculture (e.g.,
those in logging occupations) will not be covered by the provisions
of this final rule that are limited to workers or persons engaged in
FLSA agriculture. However, the vast majority of such workers are
already covered by the NLRA as ``employees'' under 29 U.S.C. 152(3).
Nothing in this final rule alters or circumscribes the rights of
workers who are already protected by the NLRA to engage in conduct
and exercise rights afforded under that law.
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The Department also finalizes one of the provisions initially
proposed at Sec. 655.135(m) to require employers to permit workers
engaged in FLSA agriculture to designate a representative of their
choosing in certain interviews, with minor changes in response to
comments, and adopts a new provision at Sec. 655.135(n) to permit
workers to invite or accept guests to worker housing (which has been
substantially revised in response to comments received). New Sec.
655.135(m) and (n) are intended, like the revisions and additions to
Sec. 655.135(h), to strengthen the ability of workers to advocate on
behalf of themselves and their coworkers regarding their required terms
and conditions of employment, to better protect against adverse effect
on similarly employed workers in the United States.
The final rule does not require H-2A employers to recognize labor
organizations or to engage in any collective bargaining activities such
as those that may be required by the NLRA itself or by a State law such
as the California Agricultural Labor Relations Act (ALRA), Cal. Lab.
Code Sec. 1140 et seq., nor does it create any independent rights or
obligations for labor organizations. Instead, this final rule requires
employers to provide assurances that they will not intimidate,
threaten, or otherwise discriminate against certain workers or others
for engaging in ``activities related to self-organization,'' including
``concerted activities for the purpose of mutual aid or protection
relating to wages or working conditions,'' or refusing to engage in
such activities. 20 CFR 655.135(h)(2). Such activities may include
seeking to form, join, or assist a labor organization, but also
encompasses numerous other ways that workers can engage, individually
or collectively, to enforce their rights, as further discussed below.
2. Clarification of Termination for Cause
In this final rule, the Department adopts with modifications the
NPRM definition of ``termination for cause'' at Sec. 655.122(n) by
adopting five criteria that must be satisfied to ensure that
disciplinary and termination processes are justified and reasonable,
which are intended to promote the integrity and regularity of any such
processes. These 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 under the H-
2A program. Moreover, these changes will assist the Department in
determining whether an individual worker was terminated without cause
where the employer gives pretextual reasons for a termination, and will
provide regulatory certainty to employers by providing clear
guidelines. In response to comments, the Department adopts minor
modifications from the NPRM in this final rule to clarify the
definition of termination for cause, the criteria that an employer must
meet to terminate a worker for cause, and the types of terminations
that are not ``for cause.''
3. Immediate Effective Date for Updated AEWR
The Department adopts the proposed revisions to Sec. 655.120(b)(2)
to designate the effective date of each updated adverse effect wage
rate (AEWR) as its date of publication in the Federal
[[Page 33902]]
Register, and revises paragraph (b)(3) to state that the employer will
be obligated to pay the updated AEWR immediately upon publication of
the new AEWR in the Federal Register. If the update falls in the middle
of a pay period, the employer may pay the updated AEWR at the end of
the following pay period, but the employer must provide retroactive pay
for all hours worked during the period in which the AEWR was updated,
beginning immediately on the date the Department publishes the notice
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 that the employment of H-
2A workers does 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 is adopting the proposed changes for 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. This final rule includes a new Sec. 655.137, Disclosure
of foreign worker recruitment, and a new Sec. 655.135(p), Foreign
worker recruitment, which are similar to the regulations governing
disclosure of foreign worker recruitment in the H-2B program. The
provisions 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
provisions also require the employer to disclose the identity (i.e.,
name and, if applicable, identification/registration 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 will gather the
additional recruitment chain information when the employer files its H-
2A Application and will require the employer to submit a Form ETA-
9142A, Appendix D, which mirrors the Form ETA-9142B, Appendix C.
Consistent with current practice in the H-2B program, 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 is adopting, with minor changes, the proposal
to require the employer to provide the full name, date of birth,
address, telephone number, and email address of all owner(s) of the
employer(s), 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 has revised the Form ETA-9142A to require,
where applicable, additional information about prior trade or doing
business as (DBA) names the employer has used in the most recent 3-year
period preceding its filing of the H-2A Application. Sections 655.130
and 655.167 clarify that the employer must 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 for a period of 3 years from the date of certification and
produce it upon request by the Department. These disclosure
requirements will help prevent adverse effects on the working
conditions of workers in the United States similarly employed by
increasing transparency in the international recruitment chain, aiding
the Department in assessing the nature of the job opportunity and the
employer's need, enhancing the Department's ability to enforce the
prohibition against recruitment-related fees and to pursue remedies
from program violators, assisting the Department in identifying
potential successors in interest to debarred employers, and better
protecting 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
In this final rule, the Department adopts the proposal 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 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. 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 occupations and crops. This revision is intended to
ensure that workers are aware of productivity standards that are a
condition of job retention before accepting the job, and that an
employer cannot raise productivity standards mid-contract with the goal
of terminating workers.
The Department also adopts revisions at Sec. Sec. 655.120(a) and
655.122(l), with minor changes responsive to comments, to 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. The
Department also adopts proposed new provisions, at Sec. 655.122(l)(4)
and Sec. 655.210(g)(3) of this final rule, that 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
revisions are intended to help ensure that agricultural workers are
fully apprised of the material terms and conditions of employment, and
to aid the Department in its administration and enforcement of the H-2A
program.
b. Enhanced Protections for Workers Through the ES System
The Department adopts 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 previous 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
[[Page 33903]]
fail to provide the requisite notice, but do not require employers to
notify workers directly of any such delay.
The Department adopts revisions to part 658, subpart F, and related
definitions at Sec. 651.10, regarding the discontinuation of Wagner-
Peyser Act ES services to employers. The Department clarifies and
expands 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 adopts 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, as discussed in the NPRM, SWAs have
infrequently used relative to the number of complaints and apparent
violations that SWAs processed in recent years. See 88 FR 63761. These
changes are described in more detail below.
c. Enhanced Transportation Safety Requirements
The Department adopts the proposal, with minor modifications, 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. Specifically, as explained in detail below, the
Department revises Sec. 655.122(h)(4) to prohibit an employer from
operating any employer-provided transportation unless all passengers
and the driver are properly restrained by seat belts meeting standards
established by the U.S. Department of Transportation (U.S. DOT), as
long as the transportation was manufactured with seat belts pursuant to
U.S. DOT's Federal Motor Vehicle Safety Standards (FMVSS). Essentially,
if the vehicle is manufactured with seat belts, this final 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. In response to public comment, the Department
clarifies in this final rule that an employer must not allow any other
person, in addition to the employer, to operate employer-provided
transportation unless seat belts are provided, maintained, and worn.
d. Protection Against Passport and Other Immigration Document
Withholding
The Department adopts the proposal to create a new Sec. 655.135(o)
that will directly prohibit an employer from holding or confiscating a
worker's passport, visa, or other immigration or government
identification documents. This prohibition is independent of whether
the employer is otherwise in compliance with the Victims of Trafficking
and Violence Protection Act of 2000 (TVPA), Public Law 106-386 (2000),
18 U.S.C. 1592(a), as required under the current H-2A regulations. This
change is intended to better protect workers from potential labor
trafficking.
e. Protections in the Event of a Minor Delay in the Start of Work
The Department adopts the proposal to create a new Sec. 655.175
that addresses post-certification changes currently addressed at Sec.
655.145(b) and creates 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. Section 655.175 limits
minor delays to 14 calendar days or less and requires the employer to
notify each worker and the SWA of any minor delay in the start of work.
Consistent with Sec. 653.501(c), Sec. 655.175 includes new
compensation obligations that 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 10 business days' notice of the delay.
6. Enhanced Integrity and Enforcement Capabilities
a. Enhancements to the Department's Ability To Apply Orders of
Debarment Against Successors in Interest
The Department adopts a new Sec. 655.104 regarding successors in
interest, revised from the NPRM based on comments received, which
clarifies the liability of successors in interest for debarment
purposes and streamlines the Department's procedures to deny temporary
agricultural labor certifications filed by or on behalf of successors
in interest to debarred employers, agents, and attorneys. The
Department adopts conforming revisions to Sec. Sec. 655.103(b),
655.181, and 655.182 and 29 CFR 501.20. These 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.
b. Defining the Single Employer Test for Assessing Temporary Need, or
for Enforcement of Contractual Obligations
The Department adopts the proposal to define the term single
employer at a new Sec. 655.103(e) and adopts 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 agricultural 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 (AIE) 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 purport
to 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 so intertwined that all of the workers are employed by a
single H-2A employer. Some employers have attempted to use these
arrangements to avoid the obligation to provide certain H-2A program
requirements to workers in corresponding employment, 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.
B. Section-by-Section Analyses
Sections V through VII of the preamble provide the Department's
responses to public comments received on the NPRM and rationale for the
amendments adopted to 20 CFR parts 651, 653, 658, and 655, and 29 CFR
part 501, section by section, and generally follow the outline of the
regulations. Within each section of the preamble, the Department has
noted and responded to those public comments that are addressed to that
particular section of this final rule. If a proposed change is
[[Page 33904]]
not addressed in the discussion below, it is because the public
comments did not substantively address that specific provision and no
changes have been made to the proposed regulatory text. The Department
received some comments on the NPRM that were outside the scope of the
proposed regulations, and the Department offers no substantive response
to such comments. The Department has also made some non-substantive
changes to improve readability and conform the document stylistically.
C. Transition Procedures
The Department is providing a short transition period for receiving
and processing criteria clearance orders and Applications for Temporary
Employment Certification in order to promote an orderly and seamless
implementation of the changes required by this final rule. This
transition period will provide the Department with the necessary time
to implement changes to Office of Management and Budget (OMB)-approved
application forms within the Foreign Labor Application Gateway (FLAG)
System and to its standard operating procedures and policies, and to
provide training and technical assistance to the Office of Foreign
Labor Certification (OFLC), Wage and Hour Division (WHD), State
workforce agencies (SWAs), employers, and other stakeholders in order
to familiarize them with changes required by this final rule.
The Department's regulations require that an employer submit a
completed job order on Form ETA-790/790A (including all required
addenda), an Application for Temporary Employment Certification on Form
ETA-9142A (including all required addenda), and all required supporting
documentation with the National Processing Center (NPC), using the
electronic method(s) designated by the OFLC Administrator. Except where
the employer has received prior approval from the OFLC Administrator to
submit by mail as set forth in Sec. 655.130(c)(2) or has been granted
a reasonable accommodation as set forth in Sec. 655.130(c)(3), the NPC
will return without review any job order or Application for Temporary
Employment Certification submitted using a method other than the
designated electronic method(s).
In order to promote an orderly and seamless transition to this
final rule, the NPC will process all H-2A applications submitted on or
after 12:00 a.m. Eastern Daylight Time, August 29, 2024, in accordance
with 20 CFR part 655, subpart B. in effect as of June 28, 2024.
The NPC will continue to process all H-2A applications submitted
before 7:00 p.m. Eastern Daylight Time on or before August 28, 2024, in
accordance with 20 CFR part 655, subpart B in effect as of the calendar
day before the effective date as stated in this rule. The Department
will use the 5 hours between 7:00 p.m. Eastern Daylight Time on August
28, 2024, and 12:00 a.m. Eastern Daylight Time on August 29, 2024, to
initiate procedures to deploy and test changes to the FLAG System in
order to effectively implement the new changes. No job orders or
applications can be filed during this timeframe. All initiated, but
unsubmitted, H-2A applications in FLAG as of 7:00 p.m. Eastern Daylight
Time on August 28, 2024, will be deleted as of that time.
The Department believes this short transition period will provide
employers, or their authorized agents or attorneys, with adequate time
to plan and prepare their job orders and Applications for Temporary
Employment Certification for submission under this final rule and to
collect all necessary information that must be filed or retained in
support of an H-2A application.
After the transition period, FLAG will not permit an employer to
file prior versions of forms.
V. Discussion of Revisions to Employment Service Regulations
A. Introduction
In this final rule, the Department revises the ES regulations (20
CFR parts 651 through 654 and 658) that implement the Wagner-Peyser Act
of 1933. These regulations include the provision of ES services with a
particular emphasis on MSFWs, as well as provisions governing the
discontinuation of ES services to employers. This final rule updates
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, this final rule establishes entirely new
responsibilities and procedures; in other areas, this final rule
clarifies and updates pre-existing requirements. The 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.
Within the revisions to the ES regulations, the Department is
adopting the following modifications to the proposed regulatory
amendments in the NPRM as a result of public comments received: (1)
revising the new successor in interest definition in Sec. 651.10 to
omit unnecessary and potentially contradictory language; (2) revising
provisions on the discontinuation of services list in new Sec.
653.501(b)(4) to allow employers to submit requests for determinations
to the Administrator of ETA's Office of Workforce Investment (OWI); (3)
clarifying the requirements in Sec. 653.501(c)(1)(iv)(E) for
disclosure of wages on the clearance order; (4) revising the provisions
in Sec. 653.501(c) on delays in the start of work to clarify the
applicability of the housing requirement to migrant workers, replace
the proposed subsistence requirement with a requirement that the
employer provide or pay all benefits and expenses listed on the
clearance order, and incorporate requirements on method of delivery and
language access for notifications to workers; and (5) providing that
the SWA must consider whether there is a basis to discontinue services
in cases of alleged misrepresentation or noncompliance in connection
with a current or prior temporary labor certification, if the
circumstances occurred within the previous 3 years. Additionally, the
Department is adopting the following modifications to proposed
amendments in the NPRM for clarity and consistency: (1) revising the
employment-related laws definition in Sec. 651.10 to clarify that it
includes ``rules'' and ``standards''; (2) relocating language on
liability of successors from the new successor in interest definition
in Sec. 651.10 to Sec. 658.500; (3) making minor conforming changes
to the assurances and delayed start requirements in Sec.
653.501(c)(3)(i) and (iv) and Sec. 653.501(c)(5); and (4)
incorporating into Sec. 658.501(b) existing obligations on SWAs under
part 655, subpart B, and 29 CFR parts 501 and 503 to notify OFLC and
WHD in cases of alleged misrepresentation or noncompliance with
temporary labor certification requirements.
Note that on November 24, 2023, the Department issued a final rule
regarding Wagner-Peyser Act staffing (Staffing Final Rule). 88 FR 82658
(Nov. 24, 2023). In the NPRM to the Staffing Final Rule (Staffing
NPRM), 87 FR 23700 (Apr. 20, 2022), the Department 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),
[[Page 33905]]
and (c) (bases for discontinuation of ES services); 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 at 23717, 23722, 23736, 23740-23741.
In the NPRM to this final rule, which the Department published on
September 15, 2023, the Department proposed further changes to the
above-named provisions. In some instances, these changes conflicted
with changes proposed in the Staffing NPRM. Because the Department had
not yet issued the Staffing Final Rule when the NPRM to this rule was
published, the Department recognized that the proposed changes in this
rulemaking might generate questions within the regulated community
about how the Department ultimately proposed to revise these
provisions, including how the proposed changes in this rulemaking would
affect the proposed changes in the Staffing NPRM, and what the
Department might do in finalizing the changes proposed in the Staffing
NPRM. As discussed in the NPRM to this final rule, where the proposed
changes in this rulemaking conflicted or intersected with changes
proposed in the Staffing NPRM, the Department is using this rulemaking
as the operative proceeding to provide notice and an opportunity to
comment on the proposed changes to the provisions referenced above.
Accordingly, the Department did not finalize changes to the above
referenced provisions in the Staffing Final Rule. The Staffing Final
Rule notified the public that changes to the above referenced
provisions would be made through this rulemaking. 88 FR at 82708-82709,
82710. 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. 20 CFR Part 651--General Provisions Governing the Wagner-Peyser Act
Employment Service
Part 651 (Sec. 651.10) sets forth definitions for parts 652, 653,
654, and 658. In the NPRM, the Department proposed to add or revise the
following definitions primarily to clarify aspects of its
discontinuation of Wagner-Peyser Act ES services regulation at 20 CFR
part 658, subpart F, including new provisions added in this rulemaking
that expand the scope of entities whose services can be discontinued.
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 received comments on each of the proposed
additions and revisions, and it notes that many commenters did not
raise objections to the proposed changes. After carefully considering
these comments, the Department adopts most of the additions and
revisions as proposed, with exceptions, as discussed in detail below.
1. Agent
The Department proposed to add a definition to Sec. 651.10 for
agent to establish that an agent is a legal entity or person, such as
an association of employers, or an attorney for an association, that is
authorized to act on behalf of the employer for purposes of recruitment
of workers through the clearance system and is not itself an employer
or joint employer, as defined in this section, with respect to a
specific job order. 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 proposed a definition of agent at
Sec. 651.10 that aligns with the definition of agent in Sec. 655.103.
Farmworker Justice, in comments joined by 40 signatories, including
advocacy organizations and legal services providers, supported
inclusion of the proposed definition, stating that to the greatest
extent feasible, the Sec. 651.10 definition should be consistent with
that used in the H-2A regulations at Sec. 655.103(b). Farmworker
Justice suggested that the Department clarify that agents who assist in
the preparation and submission of criteria clearance orders (clearance
orders placed in connection with H-2A applications) on behalf of their
principals must obtain certificates of registration as farm labor
contractors under the Migrant and Seasonal Agricultural Worker
Protection Act (MSPA). They stated that criteria clearance orders,
currently submitted using Form ETA-790/790A, are used to recruit U.S.
workers for the positions for which H-2A workers are requested. In such
situations, Farmworker Justice said, the agent is being paid by the
employer for recruiting MSFWs, thereby falling squarely within the
definition of farm labor contractor under MSPA.
Relatedly, Mid-Atlantic Solutions, LLC d/b/a m[aacute]sLabor and
AgWorks H2, LLC (m[aacute]sLabor) and McCorkle Nurseries, Inc.
suggested that the Department remove the reference to recruitment from
the definition to avoid potential implications under the MSPA.
M[aacute]sLabor stated that the qualifier, for purposes of recruitment
of workers through the clearance system, was likely intended to refer
to the employer's purposes in placing the job order, rather than the
agent's--i.e., the employer is placing a job order for purposes of
recruitment and the agent is acting on the employer's behalf in the
placement of the job order)--and that such language may inadvertently
imply that an agent acting on behalf of an employer for the submission
of a job order is itself, as the agent, engaged in the recruitment or
solicitation or both of U.S. farmworkers. M[aacute]sLabor stated that
because the Department considers recruitment and solicitation
activities to be farm labor contracting activities under MSPA, an
interpretation to this effect would mean that agents using the ES, in
all cases, would be obligated to obtain a Farm Labor Contractor
Certificate of Registration under MSPA.
M[aacute]sLabor further stated that not all agents are engaged in
activities that would traditionally be construed as recruitment or
solicitation of workers. Some agents play no representative role
throughout the recruitment process, and they instead engage purely in
document preparation services by recording the employer's intent on the
relevant government forms. Others offer services in both document
preparation and written or verbal communication with the applicable
government agencies for processing purposes but stop short of any
direct assistance with recruitment. Others, like m[aacute]sLabor, offer
comprehensive services wherein the agent is also authorized to conduct
interviews with potential applicants and document hiring dispositions.
M[aacute]sLabor stated that only the latter (i.e., comprehensive)
service can be construed as recruitment or solicitation or both and
therefore only agents offering this range of services ought to
[[Page 33906]]
be carefully considered within MSPA's jurisdiction. M[aacute]sLabor
suggested that the Department revise the proposed definition to state
that an agent is a legal person or entity that is authorized to act on
behalf of the employer for any purpose related to the employer's use of
the clearance system, and is not itself an employer or joint employer,
as defined in this section, with respect to a specific job order.
Additionally, m[aacute]sLabor suggested modifying the definition to
more clearly delineate between recruitment conducted by an employer and
recruitment conducted by the agent or attorney directly, by defining
agent to mean a legal person or entity authorized to act on behalf of
the employer for purposes of the employer's recruitment of workers.
M[aacute]sLabor emphasized recruitment by ``the employer'' as distinct
from recruitment by the agent, arguing the ES definition of agent
should not imply that agents acting as recruiters on behalf of
employers in the submission of job orders are acting as recruiters for
MSPA purposes, and therefore subject to MSPA requirements, in all
cases.
An agent and a law firm, USA Farm Labor, Inc. (USAFL) and the Hall
Law Office, PLLC (Hall Global) (together, USAFL and Hall Global),
agreed with m[aacute]sLabor and further stated the proposed definition
conflates the role of attorney and agent. They stated that an agent in
the context of the H-2A Program refers to a company that provides
specialized services focused on preparing, managing, and filing H-2A-
related paperwork. While attorneys can be said to be agents because
they are hired by a principal to act on the principal's behalf,
attorney conduct is normally regulated by the highest court in various
jurisdictions, and regulatory concerns with respect to agents and
attorneys are different. The primary issue for attorneys is protecting
the sanctity of the attorney-client relationship as well as the
distinction between lawyer and client. Clients are entitled to zealous
representation within the bounds of the law, which includes making
arguments seeking the modification or reversal of existing law. By
conflating attorney with agent, the commenters argued, the Department
creates ambiguity as to whether it intends to respect, as required by
law, 5 U.S.C. 500, that nothing in this definition nor elsewhere in the
regulations supplants an attorney's duties under State law or their
ability to zealously represent their client within the bounds of the
law.
The Department acknowledges commenters' suggestions and concerns
regarding potential MSPA implications raised by the proposed agent
definition. The Department notes that the definitions set forth in
Sec. 651.10 govern the Wagner-Peyser ES and do not govern any
obligations under the MSPA. Whether an agent meets the definition of a
farm labor contractor under the MSPA is a fact-specific inquiry
governed by the MSPA and its implementing regulations.
Relatedly, regarding opposition from m[aacute]sLabor, McCorkle
Nurseries, Inc., and USAFL and Hall Global regarding use of the word
recruitment in the proposed agent definition, the Department declines
to remove it. The Department acknowledges commenters' concerns but
reiterates that these definitions are specific to 20 CFR part 651 and
do not confer any obligations under MSPA. As discussed in the NPRM, the
proposed definition of agent is meant to encompass those entities that
act on behalf of employers that utilize the ES clearance system,
including, for example, by controlling aspects of employers'
recruitment activities relating to clearance orders. The inquiry of
whether an entity is engaged in activities that bring them within the
definition of farm labor contractor under the MSPA is fact-specific and
must be addressed on a case-by-case basis under that law and its
implementing regulations.
Finally, the Department disagrees with USAFL and Hall Global's
concern that the proposed definition conflates the roles of attorneys
and agents and may impede on an attorney's duty to provide zealous
representation to their clients. An attorney who engages the ES system
on behalf of an employer must do so in conformance with the
requirements of the ES regulations and must advise their employer-
client to use the ES system in conformance with the regulations.
Zealous representation within the bounds of law is a fundamental
component of the attorney-client relationship, which the Department
presumes includes advising clients on compliance with all applicable
laws and regulations. By including agents here, the Department does not
intend to hold agents, including attorneys, accountable for the acts of
the employers they represent. Rather, the inclusion of the definition
of agent, and the inclusion of attorneys in that definition, recognizes
that attorneys can and do serve as agents in interactions with the ES
system, and is meant to hold them accountable for compliance and their
own misconduct that meets the bases described at Sec. 658.501,
independent of any violation by the employers they represent (87 FR
61660, 61662 (Nov. 14, 2022)). The Department reiterates that agents
who engage the ES clearance system should be subject to
discontinuation, if appropriate, and that inclusion of attorneys is
necessary to align the definition of agent here with the definition of
agent in Sec. 655.103. For these reasons and the reasons set forth in
the NPRM, the Department adopts the definition for agent, as proposed.
2. Criteria and Non-Criteria Clearance Orders
The Department proposed to add definitions to Sec. 651.10 for
criteria clearance order and non-criteria clearance order because they
are terms that are used in the ES regulations but were previously
undefined. The Department proposed that the term criteria clearance
order means a clearance order that is attached to an application for
foreign temporary agricultural workers pursuant to part 655, subpart B,
of this chapter; and the term non-criteria clearance order means a
clearance order that is not attached to an application for foreign
temporary agricultural workers pursuant to part 655, subpart B, of this
chapter. By defining these terms, it will be clearer which orders must
comply with both 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 received a comment from Farmworker Justice in
support of the proposed definitions. Farmworker Justice agreed that
clarification is needed regarding which provisions in part 653, subpart
F, and part 655, subpart B, apply to the various agricultural clearance
orders filed with the Department and with the SWAs. They suggested that
the Department use this rulemaking to further clarify and unequivocally
state that the normal and accepted standard articulated in Sec.
655.122(b) applies only to job qualifications in criteria clearance
orders, and that all other working conditions be assessed under
prevailing practices as articulated in Sec. 653.501(c)(2)(i).
Farmworker Justice stated that U.S. workers have seen their working
conditions consistently eroded in recent years because SWAs have
evaluated the working conditions set out in criteria clearance orders
under the normal and accepted standard in Sec. 655.122(b) rather than
the more rigorous prevailing practice standard required under Sec.
653.501(c)(2)(i). Additionally, m[aacute]sLabor stated that it had no
substantive objections to the proposed definitions.
The Department appreciates these comments. The Department believes
the
[[Page 33907]]
definition for criteria clearance order makes clear that such orders
must comply with the requirements at part 655, subpart B (which in
Sec. 655.121 include the requirements at part 653, subpart F and at
Sec. 655.122). Moreover, the definition for non-criteria clearance
order makes clear that such orders do not have to comply with the
requirements at part 655, subpart B. The Department believes these
definitions sufficiently distinguish between criteria and non-criteria
clearance orders. For these reasons and the reasons set forth in the
NPRM, the Department adopts the definitions, as proposed.
As to the request for clarification regarding application of the
normal and accepted standard in Sec. 655.122(b) and the prevailing
practices standard in Sec. 653.501(c)(2)(i) to criteria clearance
orders, this request is beyond the scope of these changes, which are
merely to adopt definitions for terms currently in use in the ES
regulations, found at parts 651, 652, 653, 654, and 658. For
information on the normal and accepted standard and the prevailing
practices standard as they apply to criteria clearance orders, see, for
example, Sec. Sec. 655.103 and 655.122, the discussion of Sec.
655.122(l)(3) below, and Segura Portugal v. Louisiana Workforce
Commission, OALJ No. 2022-WPA-00001 (OALJ Dec. 5, 2023) (holding that
work rules in employer's criteria clearance order were not included
within the meaning of prevailing working conditions under Sec.
653.501(c)(2)(i)); see also ETA Handbook 398 (53 FR 22076, 22095-22097
(June 13, 1988)).
3. Discontinuation of Services
The Department proposed 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. Under the proposed discontinuation of services
definition, 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, and 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 received supportive and opposing comments to the
proposed definition. Farmworker Justice supported the proposed
definition, stating that it would provide clarity to both SWAs and
employers regarding which services are discontinued, and which entities
may be subject to the discontinuation of services described in 658,
subpart F. Specifically, Farmworker Justice stated that the definition
is broad in scope, which is crucial for SWAs to take meaningful
enforcement action against entities that act or have acted on behalf of
problem employers, or are simply a reconstitution of a prior bad actor
under a new name. Farmworker Justice also stated that the proposed
definition would clarify that discontinuation of services impacts all
ES services in parts 652 and 653, including ES services in another
State, thereby preventing bad actors from continuing to receive
services, absent reinstatement, elsewhere or for non-criteria orders.
Farmworker Justice recommended that the Department consider adding
language to the definition to clarify that SWAs cannot process H-2A
applications for employers whose services are discontinued.
M[aacute]sLabor stated they had no substantive objection to the
proposed definition of discontinuation of services. However, USAFL and
Hall Global stated that discontinuation of services should only apply
to services not necessary for participation in the H-2A program. Wafla,
an agricultural employer membership organization, expressed concerns
that the proposed definition would include entities other than the
employer. The organization contended that attorneys, agents,
associations, joint employers, farm labor contractors, and any other
entity that is not the principal employer to H-2A workers and that was
not involved with a potential rule violation should not be subject to
discontinuation of services. Wafla was also concerned that
discontinuation of services to an agent would negatively affect the
agent's other employer-clients, stating that if a SWA or DOL finds a
problem with an agent, all of that agent's H-2 clients may be debarred
from the program. Separately, the National Cotton Ginners Association
and Texas Cotton Ginners' Association commented that though an employer
may use an agent for recruitment services with the contracted
stipulations that the agent/recruiter must follow all applicable labor
rules, the employer has no ability to verify actions taken by these
agents. They stated that the proposed rule allows SWAs to discontinue
services to an employer due to potential violations that may be outside
of the employer's control.
The Department agrees that broadening the scope of entities subject
to discontinuation is crucial to ensuring meaningful application of the
discontinuation of services provisions at part 658, subpart F. However,
the Department clarifies that the proposed changes are meant to hold
agents, farm labor contractors, joint employers, and successors in
interest accountable for their own compliance with ES regulations. They
are not meant to hold entities such as agents, attorneys, or farm labor
contractors accountable for the independent actions of the employers
they represent. SWAs should not initiate a discontinuation action
against an entity that has not met one or more of the bases for
discontinuation under Sec. 658.501(a). For example, if an employer is
subject to discontinuation of services because it refused to cooperate
in field checks conducted pursuant to Sec. 653.503, as described at
Sec. 658.501(a)(7), but the employer's agent was not involved in the
refusal, the SWA may not initiate or apply discontinuation of services
to the agent. Conversely, if an agent is subject to discontinuation of
services because it was found by a final determination by an
appropriate enforcement agency to have violated an employment-related
law and notification of this final determination has been provided to
the Department or the SWA by that enforcement agency, as described at
Sec. 658.501(a)(4), but the enforcement agency did not also find that
the employer engaged in violations, then the SWA would not have a basis
to discontinue services to the employer under Sec. 658.501(a)(4).
However, it is possible that there may be cases where it is appropriate
and necessary to discontinue services to an employer and its agent. For
example, if an agent and employer both knowingly misrepresent the
number of workers needed for a clearance order or both knowingly cause
workers to work at locations or to complete duties that are not
described on the approved clearance order, it would be appropriate to
initiate discontinuation against the employer as well as the agent. The
proposed definition allows SWAs to take appropriate action against
noncompliant entities while allowing those entities who are not
responsible for the action or behavior giving rise to the
discontinuation action to continue receiving ES services; and the
ability of the SWAs to pursue discontinuation against multiple types of
entities aligns with the scope of entities subject to the debarment
procedures in part 655, subpart B. The Department also notes that there
may be cases where it is appropriate and necessary to discontinue
services to more than one entity regarding the same or similar
violation (for example, to the employer,
[[Page 33908]]
agent, farm labor contractor, joint employer, or successor in
interest). Finally, the Department notes that a SWA's initiation of the
discontinuation procedures against entities such as agents/attorneys
would not necessarily impact the processing and clearance of an
employer's pending job order, as in most cases the SWA will continue to
provide services until the discontinuation action becomes final,
including the disposition of any appeals filed by such agents/
attorneys.
As to the commenter recommendation that discontinuation of services
should only apply to services not necessary for participation in the H-
2A program, the Department disagrees. Discontinuation has historically
applied to ES services available under part 653, which includes access
to the ARS. Prospective H-2A employers must use the ARS to recruit U.S.
workers as a condition of receiving a temporary agricultural labor
certification, and the H-2A regulations provide that employers and
entities who file applications for temporary agricultural labor
certification under 20 CFR part 655, subpart B must comply with the ARS
requirements at part 653, subpart F. See, e.g., Sec. 655.121 and
Sec. Sec. 655.131-132. The Department, therefore, declines to adopt
the recommendation.
Relatedly, the Department has considered the recommendation to add
clarifying language that SWAs cannot process H-2A applications for
employers with discontinued services. The Department declines to do so
because it believes that the definition already includes effective
language explaining that entities with discontinued services cannot
participate in or receive any Wagner-Peyser Act ES services provided by
the ES to employers pursuant to parts 652 and 653. Therefore, SWAs must
reject both criteria and non-criteria job orders submitted by employers
with discontinued services for either local recruitment or intrastate
clearance, which would therefore preclude such employers from
participating in the H-2A program.
The Department believes that the proposed changes will allow SWAs
to better protect workers and that the regulations are sufficiently
clear that discontinuation of services must only be applied to entities
that meet the bases described at part 658, subpart F. Therefore, the
Department adopts the definition for discontinuation of services, as
proposed.
4. Employment-Related Laws
The Department proposed to revise the definition of employment-
related laws to clarify that the term means those laws and implementing
regulations that relate to the employment relationship, such as those
enforced by the Department's WHD, Occupational Safety and Health
Administration (OSHA), or by other Federal, State, or local agencies.
The pre-existing definition of this term did not include implementing
regulations. 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 received supportive comments from the Washington
State Employment Security Department and Washington State Department of
Labor and Industries (Washington State) and Farmworker Justice.
Washington State agreed that the new definition clarifies the meaning
and scope of employment-related laws for SWA staff. Farmworker Justice
stated that the proposed revision would help ES staff and characterized
it as a common-sense clarification, not an actual change, to the scope
of violations that require ES staff to proceed with discontinuation.
Farmworker Justice further stated that a broad reading of the laws
covered and agencies involved is necessary to accomplish meaningful
enforcement, and that farmworker protections would be gutted if the
associated implementing regulations were not also enforced.
M[aacute]sLabor stated it had no substantive objection to the
proposed definition of employment-related laws. USAFL and Hall Global
stated that the Department should clarify that employment-related laws
apply only when their jurisdictional requirements and any other
substantive limitations prescribed by statute or common law have been
met. They also stated that the Department should clarify that the
agency with primary jurisdiction over the relevant laws and
implementing regulations retains primary jurisdiction. They expressed
concern that SWAs might misinterpret laws or implementing regulations
and sought clarification that the agency with jurisdiction over the
implementing regulations would be the authority on how to apply those
regulations, not the SWA.
The Department appreciates the comments and agrees that the
proposed definition provides needed clarity for SWAs and meaningfully
improves worker protections. The Department notes that while SWAs may
assess an entity's compliance with employment-related laws in carrying
out its obligations under the ES regulations, for example by reviewing
clearance orders to ensure their terms and conditions comply with
employment-related laws, or by observing and referring apparent
violations of employment-related laws to an appropriate enforcement
agency, SWAs are not enforcement agents for employment-related laws
(unless otherwise authorized). See 81 FR 56072, 56282 (Aug. 19, 2016).
If the employment-related law at issue is not clear or otherwise does
not allow the SWA to determine if there is a violation of the law, the
SWA must consult with the relevant enforcement agency to ensure a
consistent interpretation. The Department, therefore, agrees that the
agency with jurisdiction over the applicable laws and implementing
regulations would retain jurisdiction and be the final authority on how
to apply those regulations, not the SWA. Regarding commenter concern
that SWAs might misinterpret laws or implementing regulations, the
Department notes that the Uniform Administrative Requirements, Cost
Principles, and Audit Requirements for Federal Awards, at 2 CFR
200.303(a) and (b), broadly require SWAs to comply with Federal
statutes, regulations, and the terms and conditions of their Federal
award, and require that each SWA establish and maintain effective
internal controls over its ES program, including controls that provide
reasonable assurance that the SWA is managing the ES program in
compliance with Federal statutes, regulations, and the terms and
conditions of the applicable Federal award. Therefore, SWAs must have
internal controls (for example policies and procedures) to ensure that
their assessments and determinations regarding an entity's compliance
with employment-related laws are correct, and if not the Department can
take corrective action. For these reasons, the Department finalizes the
definition of employment-related laws with the two changes discussed
below.
Finally, to provide increased clarity, the Department is including
in the final definition the terms ``rules'' and ``standards'' to make
clear that employment-related laws include not only ``regulations,''
but also any other administrative requirement carrying the force of
law, that relates to the employment relationship. For example, the
Occupational Safety and Health Act of 1970 authorizes OSHA to
promulgate occupational safety and health standards pursuant to the
requirements of sec. 6 of the Act, 29 U.S.C. 655. These standards,
which relate to the
[[Page 33909]]
employment relationship and are enforced by OSHA, are properly within
the scope of employment-related laws. The Department is including this
additional language in the definition to minimize any risk of confusion
that could be caused by the use of ``regulations'' alone and to clarify
rather than expand the scope of this definition.
5. Farm Labor Contractor
The Department proposed to add to Sec. 651.10 a definition for
farm labor contractor as any person or entity, excluding agricultural
employers, agricultural associations, or employees of agricultural
employers or agricultural associations, who, for any money or other
valuable consideration paid or promised to be paid, recruits, solicits,
hires, employs, furnishes, or transports any MSFW. The Department
proposed to add this definition 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, subpart F. As with the term agent,
because many farm labor contractors that use the ES clearance system
also seek temporary agricultural labor certifications from OFLC as H-
2ALCs under part 655, subpart B, the Department proposed a definition
of farm labor contractor that both aligns with the definition of H-2A
labor contractor at 20 CFR 655.103 and with the definitions under MSPA
of farm labor contractor and farm labor contracting activity at 29
U.S.C. 1802 and 29 CFR 500.20 to maintain consistency between
Departmental program areas.
M[aacute]sLabor stated that it had no substantive objections to the
proposed definition. Farmworker Justice expressed concern that because
the proposed definition is drawn from the definitions of farm labor
contractor and farm labor contracting activity under MSPA, and MSPA
does not include H-2A workers in its definition for MSFWs at 29 U.S.C.
1802(7), ES staff may mistakenly assume that H-2A workers would be
excluded from the NPRM's definition of farm labor contractor due to its
reference to MSFWs. Farmworker Justice stated that this is problematic
because farm labor contractors who employ or furnish exclusively H-2A
workers should also be subject to discontinuation under part 658 in
appropriate circumstances. Farmworker Justice suggested that the
Department clarify that the MSFW definition at Sec. 651.10, which does
not specifically exclude H-2A workers, is the applicable reference in
the new farm labor contractor definition. Farmworker Justice stated
that this would be consistent with longstanding Departmental
interpretation that has included foreign workers legally authorized to
work in the United States in the Wagner-Peyser Act definition of
migrant farmworkers.
The Department clarifies that the reference to MSFWs in its
proposed definition means MSFW as defined in Sec. 651.10, and that
definition does not exclude H-2A workers. Under Sec. 651.10, the term
farmworker, as it appears in the term MSFW (migrant or seasonal
farmworker), means an individual employed in farmwork; and under Sec.
651.10, the term farmwork is defined to also include any service or
activity covered under the definition of agricultural labor or services
at Sec. 655.103(c).The Department notes that it added the terms
farmwork and farmworker to Sec. 651.10 in 2016 to align them with OFLC
and WHD definitions and to clarify and expand the types of work
covered. See 80 FR 20690, 20800 (Apr. 16, 2015). The term farmworker at
Sec. 651.10 replaced the prior term agricultural worker, which the
Department defined in 1980 to include certain farmworkers, whether
citizens or not, who were legally allowed to work in the United States.
See 45 FR 39454, 39457 (June 10, 1980). The Department did not include
this work authorization language in its 2016 farmworker definition--not
to make any substantive change--but to align the definition with other
programs, and because it determined it unnecessary to mention
immigration status for only a subset of programs. See 81 FR 56072,
56256 (Aug. 19, 2016). Accordingly, given the Department's longstanding
interpretation, the term MSFW under Sec. 651.10 does not exclude H-2A
workers, and the proposed farm labor contractor definition here
encompasses those contractors who interact with the ES clearance system
for purposes of the H-2A program. The Department further notes that
even where farm labor contractors only employ or furnish H-2A workers,
they must first engage the ARS for recruitment of U.S. workers as a
condition of receiving a temporary agricultural labor certification.
Because entities who engage the ES system for temporary agricultural
labor certification purposes are subject to ARS requirements (see Sec.
655.121), the Department believes they should be subject to
discontinuation of ES services (including the ARS), if applicable. For
these reasons, the Department adopts the definition for farm labor
contractor, as proposed.
6. Joint Employer
The Department recognizes that joint employment relationships are
common in agriculture, and that joint employers who submit clearance
orders to the ARS are required to comply with the requirements in part
653, subpart F, including when filing a joint application for temporary
agricultural labor certification under 20 CFR part 655, subpart B. See
Sec. 655.131. The Department, therefore, proposed 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, subpart F. The proposed definition is also intended to ensure
consistency with recent changes to the Department's H-2A regulation,
see 87 FR at 61793-61794, and as with the definitions of agent and farm
labor contractor, the proposed definition is modeled on the definition
of joint employment at Sec. 655.103 because of the connection between
the ES system and H-2A labor certification program.
Farmworker Justice supported inclusion of the joint employer
definition, stating that the proposed definition makes clear that, when
a fixed-site employer or H-2ALC unlawfully permits another, non-
petitioning employer not listed on the clearance order to employ an H-
2A worker, or otherwise permits an H-2A worker to provide services to
such a non-petitioning employer, both the petitioning employer and the
non-petitioning employer jointly employ the worker. M[aacute]sLabor
also stated that it had no substantive objections to the proposed
definition.
The Department appreciates commenter support and adopts the
definition for joint employer, as proposed.
7. Successor in Interest
The Department proposed 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, and described successors in interest as any 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. The proposed definition allows SWAs and
[[Page 33910]]
stakeholders to better understand which entities may be subject to
discontinuation as a result of the proposed changes to part 658,
subpart F. To maintain consistency between the regulations governing
the ES system and the regulations governing the H-2A labor
certification program, the Department proposed to adapt the definition
of successor in interest as proposed in Sec. 655.104.
Washington State supported the proposed definition, stating that it
will better position the SWA to identify such entities and determine if
an entity so identified is subject to prior debarment orders when
evaluating criteria clearance orders (Form ETA-790/790A). Farmworker
Justice also agreed with inclusion of the definition and suggested that
the Department devote resources to training SWAs on how to analyze the
successor in interest factors to ensure that employers who have had
services discontinued are not evading sanction with a simple rebrand.
The Farm Labor Organizing Committee of the AFL-CIO (FLOC) endorsed the
definition, stating that the proposed changes in Sec. 651.10 and Sec.
655.104 clarify the consequences to H-2A employers and labor
contractors who try to avoid their responsibilities for violations of
the law by transferring their operations to a new person or entity
(usually an associate or family member), while all the time retaining
control. In instances where farm labor contractors propose to furnish
H-2A labor to farms as a replacement for farm labor contractors that
have since been sanctioned or debarred or both, FLOC suggested that
there be a presumption that the new farm labor contractor is a
successor in interest of the discontinued predecessor; and the
prospective new farm labor contractor should be required to prove that
they are simply using the equipment and machinery of the previous labor
contractor.
M[aacute]sLabor, McCorkle Nurseries, Inc., and an individual asked
that the Department reconsider the scope of the definition,
particularly the language that allows for construing entities as
successors in interest regardless of whether they have succeeded to all
the rights and liabilities of the predecessor entity. M[aacute]sLabor
further explained that this language may prove problematic as it
relates to asset purchase arrangements. Specifically, because an
acquiring entity may be construed as a successor in interest regardless
of whether it has succeeded to the rights and liabilities of the
predecessor, and because the factors used to determine successorship
include factors relating to the physical assets or core operations of
the business itself (for example, use of the same facilities,
similarity in machinery, equipment, and production methods, and
similarity of products and services), m[aacute]sLabor stated that the
proposed definition opens the door for asset purchases alone to trigger
successor in interest obligations and liability. M[aacute]sLabor
provided an example, where Farm A is debarred from the H-2A program and
subsequently sells its farming property and all the fixtures,
buildings, and equipment on its premises to Farm B. M[aacute]sLabor
said it is conceivable that Farm B will be considered a successor in
interest to Farm A simply by virtue of taking over the farming
operation at the acquired property, and that this would be the case
even if Farm B is a model employer that had nothing to do with Farm A's
violations. M[aacute]sLabor stated this possibility would discourage
potential acquisitions by good, compliant employers.
The Department appreciates commenter support for the successor in
interest definition. The Department agrees that the new definition will
help SWAs identify entities that reincorporate themselves into another
entity with the same interests or operations so as to avoid
discontinuation of ES services. Additionally, the Department agrees
with providing SWAs training on how to analyze the successor in
interest factors so as to avoid a scenario where the sale of property,
fixtures, and equipment alone triggers joint employment concerns. The
Department will issue further guidance on application of the new
successor in interest definition. The Department declines to adopt any
presumption that a new farm labor contractor or entity is a successor
in interest of a discontinued predecessor. Successor in interest
inquiries are factor driven and case specific, and the Department
believes that the factors outlined in the new definition are sufficient
to guide the inquiry. The discussion of the parallel provisions on
successors in interest at Sec. 655.104 further address commenters'
concerns and provides additional explanation of the Department's
reasons for adopting these factors, as well as the language on
successor liability addressed below.
The Department has decided to relocate some of the proposed
language in the definition describing the scope of liability of
successors in interest for ES violations of predecessor entities, from
Sec. 651.10 to Sec. 658.500. Relocating this language places the
focus of the definition squarely on the factors that SWAs will consider
in order to determine whether an entity constitutes a successor in
interest. The Department believes that the language on the liability of
successors is more appropriate to include in part 658, subpart F, which
similarly describes the situations in which entities are subject to
discontinuation actions by SWAs. The discussion of Sec. 658.500 below
addresses the comments received on this language, as well as the
Department's decision not to finalize the proposed introductory
language of the successor in interest definition (``A successor in
interest includes any entity that is controlling and carrying on the
business of a previous employer, agent, or farm labor contractor . .
.''). The Department adopts the remaining language in the successor in
interest definition, as proposed.
8. Week
The Department proposed to add to Sec. 651.10 a definition for
week to clarify that a week, as used in parts 652, 653, 654, and 658,
means 7 consecutive calendar days. The proposed 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.
M[aacute]sLabor commented that they had no substantive objections
to the proposed definition. The Department did not receive any other
comments on this proposed change.
The Department appreciates the comment indicating that the H-2A
employer agent organization did not object to the proposed definition.
The Department adopts the definition of week, as proposed.
C. 20 CFR Part 653--Services of the Wagner-Peyser Act Employment
Service System
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 that
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
[[Page 33911]]
they place approved clearance orders into intra- and interstate
clearance.
1. Section 653.501(b), ES Office Responsibilities
The Department proposed 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 OWI
discontinuation of services list, before placing a job order into
intrastate or interstate clearance. The Department further proposed 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 proposed a new paragraph (b)(4)(iii) to make clear that the
provisions in paragraph (b)(4) 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 response to public comments
received on Sec. 653.501(b) is set forth below. For the reasons
discussed in the NPRM and below, the Department adopts Sec.
653.501(b), with edits.
Several organizations, including United Farm Workers (UFW) (joined
by 59 signatories, including advocacy organizations and legal services
providers), the UFW Foundation and UFW (hereinafter, the UFW
Foundation), the North Carolina Justice Center, United Migrant
Opportunity Service (UMOS), Pineros y Campesinos Unidos del Noroeste
(PCUN), Central Coast Alliance United for a Sustainable Economy
(CAUSE), and Green America expressed uniform support for requiring
initiation of discontinuation procedures where an employer is on an H-
2A or H-2B debarment list and for prohibiting clearance orders from
employers who have been discontinued in another State. In contrast,
several trade associations, including the Western Growers Trade
Association, wafla, AmericanHort, Michigan Farm Bureau, Florida
Strawberry Growers Association (FSGA), National Council of Farmer
Cooperatives (NCFC), and the U.S. Apple Association (USApple), along
with Willoway Plant Nursery, opposed or expressed concerns regarding
the proposed changes, stating that they do not provide sufficient
safeguards or an appeal process, particularly where a SWA mistakes one
employer for another when consulting the debarment and discontinuation
lists. These commenters cautioned that even minor delays in processing
a clearance order could result in irreparable harm to an employer, such
as diminished crop yield and monetary loss. In circumstances where a
SWA does not process a clearance order for an employer because that
employer has the same or similar business name as another employer on
the debarment or discontinuation lists, commenters stated that the
Department must have safeguards in place for employers to demonstrate
that they are not, in fact, the employer named on the lists.
Relatedly, Washington State requested that the Department ensure
that the debarment and discontinuation lists are accurate, updated, and
easily accessible. Washington State suggested that OFLC add an
eligibility checker tool to its Foreign Labor Application Gateway
system where employer names are searchable, the debarment and
discontinuation lists are updated automatically, and the system alerts
SWAs if employers are potentially ineligible due to debarment. They
further suggested that the Department create a standard letter
notifying applicants of the impact of debarment and making clear that
SWAs are bound to deny clearance orders on this basis.
Finally, wafla opposed proposed new paragraph (b)(4)(iii), which
clarifies that proposed Sec. 653.501(b) applies to all entities
subject to discontinuation, including agents, farm labor contractors,
joint employers, and successors in interest as adopted in Sec. 651.10
and Sec. 658.500(b), and not just employers. Wafla stated that only
principals should be subject to discontinuation, that moving beyond the
employer-employee relationship penalizes third parties that may have
had no fault in causing discontinuation, and that unrelated clients of
third parties may unjustifiably experience the effects of
discontinuation as a result.
The Department appreciates the views and recommendations of
commenters that supported, opposed, and raised concerns with the
proposed changes to Sec. 653.501(b). Regarding commenter requests for
adequate safeguards to ensure against SWAs mistaking one employer for
another when consulting the debarment and discontinuation lists, the
Department will issue guidance on SWA consultation of the lists,
including guidance on identifying employers/entities and successors in
interest to employers/entities who are on the lists. Regarding the due
process concerns raised by commenters, as discussed below, the
Department believes that the clearance order review processes at Sec.
653.501 and Sec. 655.121, the discontinuation of services procedures
at part 658, subpart F, and the procedures for filing a complaint at
part 658, subpart E, provide adequate process and safeguard against
unwarranted or harmful delays in processing clearance orders.
First, under proposed paragraph (b)(4)(i), a SWA must initiate
discontinuation of ES services pursuant to Sec. 658.501(a)(4) if an
employer seeking placement of a clearance order in the ARS is on the H-
2A or H-2B debarment list. The employer may contest the SWA's
notification of intent to discontinue services in accordance with
proposed Sec. 658.502(a)(4). In the specific circumstance raised by
some commenters (e.g., Michigan Farm Bureau, FSGA, AmericanHort), where
an employer with the same or similar name incorrectly appears on a
debarment list, the employer may contest the proposed discontinuation
by submitting evidence that they are not, in fact, the employer listed
on the applicable debarment list. During this time, the SWA must
continue to process the employer's clearance orders, without delay, as
no final determination on discontinuation has yet been issued and taken
effect. Where the SWA ultimately issues a final determination to
discontinue services under proposed Sec. 658.503(a), if an employer
appeals by timely requesting a hearing, the request stays the
discontinuation pending the outcome of the hearing. The SWA must
continue to process the employer's clearance orders, without delay,
while the matter is on appeal.
Second, under paragraph (b)(4)(ii), SWAs must not approve clearance
orders from employers whose ES services have been discontinued by any
State. In the specific circumstance raised by commenters, where an
employer believes they have been incorrectly identified as having been
placed on the discontinuation of services list, the employer and the
SWA may resolve any such discrepancy in the clearance order review
processes described in Sec. 655.121 (for criteria clearance orders)
and Sec. 653.501 (for non-criteria clearance orders). For criteria
clearance orders, that process includes initial review, a deficiency
notice, where applicable, an opportunity for an employer to respond, a
final determination from the SWA, and allowance for employers to file
an emergency Application for Temporary Employment Certification where
they disagree with the SWA's final determination (see Sec. Sec.
655.160, 655.164, and 655.171). For non-criteria clearance orders,
under Sec. 653.501, SWAs must review and approve clearance orders
[[Page 33912]]
within 10 business days of receipt of the order. Within that timeframe,
SWAs should attempt to resolve any discrepancy regarding an employer's
placement on the discontinuation of services list. For example, where
Employer A Corp. files a non-criteria clearance order and a similarly
named employer (e.g., Employer A. Inc.) is on the discontinuation of
services list, the SWA should review and consider relevant information,
such as Federal Employer Identification Numbers (FEINs), Employer A,
Inc.'s final determination on discontinuation, or any information
provided by Employer A. Corp. indicating that they are not the named
employer on the list, prior to approving or denying the clearance
order. Where the SWA denies a non-criteria clearance order under Sec.
653.501 because the employer is named on the discontinuation of
services list, the employer may timely appeal the discontinuation or
seek reinstatement of services under Sec. 658.504. As discussed above,
the Department will issue guidance on use of the discontinuation of
services list when processing clearance orders.
The OWI discontinuation of services list will be publicly available
online and regularly updated with information from States so employers
can check the list before they submit their clearance order. In
addition, the Department will further revise Sec. 653.501(b)(4)(ii) to
specify that employers may submit requests to the OWI Administrator to
determine whether they are on the OWI discontinuation of services list.
If the OWI Administrator indicates that the employer is not on the
discontinuation of services list, then the SWA must approve the
clearance order if all other requirements have been met.
Finally, as to consultation of either the debarment lists under
proposed paragraph (b)(4)(i) or the discontinuation list under proposed
paragraph (b)(4)(ii), the Department notes that where an employer
believes a SWA has violated proposed paragraph (b)(4) when consulting
the lists, the employer may file a complaint against the SWA under part
658, subpart E. Complaints against SWAs regarding ES regulations are
processed pursuant to Sec. 658.411(d). In sum, in all instances of
consultation of the debarment and discontinuation lists, the Department
believes that its clearance order review processes at Sec. 653.501 and
Sec. 655.121, and its procedures at part 658, subparts E and F,
provide sufficient safeguards against unwarranted and harmful delays in
processing clearance orders, even where an employer believes they have
been incorrectly placed, or incorrectly identified as having been
placed, on the lists.
Regarding Washington State's request that the Department ensure
that debarment and discontinuation lists are accurate, updated, and
easily accessible, the Department appreciates the request and suggested
methods for doing so. The Department notes that it has proposed a 10-
working-day requirement in Sec. 658.503 and Sec. 658.504 for SWAs to
notify OWI of any final, effective determination to discontinue ES
services, and any determination to reinstate services. As discussed in
the NPRM, the Department believes that these requirements will help
facilitate prompt implementation and maintenance of the discontinuation
of services list, and prompt access to ES services for employers who
have been reinstated. The Department will issue guidance on maintenance
and use of the discontinuation list. The Department updates the
debarment list promptly upon finalizing debarment of an employer from
the H-2A program. An up-to-date debarment list is publicly available on
the OFLC website.
The Department appreciates Washington State's suggestion that the
Department create a standard letter notifying applicants of the impact
of debarment and making clear that SWAs are bound to deny clearance
orders on this basis. Depending on the violation at issue, debarment is
undertaken by either OFLC or WHD, and the relevant debarring agency is
responsible for communicating the consequences of such action to the
entity it seeks to debar and will review its communication as it
implements this final rule. The Department reiterates that under
proposed Sec. 501(b)(4)(ii), SWAs are not bound to deny clearance
orders to employers who are debarred. Rather, SWAs are required to
initiate discontinuation of services to employers who are on the
Department's debarment lists. Only where the discontinuation of
services has been finalized must the SWA deny an employer's clearance
order.
Finally, regarding wafla's opposition to proposed new paragraph
(b)(4)(iii), the Department disagrees that discontinuation should apply
only to principals. As explained more fully below in Section V.D, to
better protect workers, the Department believes that all entities who
engage in the ES clearance system, including agents, farm labor
contractors, joint employers, and successors in interest, should be
subject to possible discontinuation. Moreover, in clarifying and
expanding the entities subject to discontinuation, the Department is
aligning the ES regulations with existing H-2A regulations at part 655,
subpart B, which already permit debarment of agents, farm labor
contractors, joint employers, and successors in interest. Regarding
wafla's concern about the possible effects of discontinuation on third
parties and their clients, the Department believes any such effects are
the same or similar as the effects of debarment on the same third
parties in the existing H-2A context, and the Department did not
receive comments and is not otherwise aware that there have been any
unjustifiable effects to these entities under the debarment process.
2. Section 653.501(c), SWA Responsibilities
Section 653.501(c)(3) lists the assurances that each clearance
order must include before the SWA can place it into clearance. The
Department proposed 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 Department further
proposed 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 proposed revisions are
meant to improve notification requirements and wage protections for
workers, as well as align with current Sec. 655.145(b) and proposed
Sec. 655.175 protections in the H-2A program regulations. To
accomplish these changes, the Department proposed several specific
revisions, which are discussed in detail below.
First, the Department proposed 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 proposed to shift these responsibilities to the employer.
The Department also proposed to move language in paragraph (c)(3)(i)
regarding the employer's notice to the order-holding office to Sec.
653.501(c)(3)(iv),
[[Page 33913]]
which contains other instructions the employer must follow when giving
notice of changed terms and conditions of employment. The Department
did not receive comments on these specific changes and adopts them, as
proposed, with additional changes (the substitution of ``placed'' for
``referred'' and ``14 calendar days'' for ``week'') to conform to the
other provisions of Sec. 653.501(c) discussed below.
Second, the Department proposed to remove a redundancy in the first
sentence of paragraph (c)(3)(iv), which currently states that the
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. The Department did not receive
comments on this change and adopts it, as proposed.
Third, in paragraph (c)(3)(iv), the Department proposed 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. The Department further proposed that notification be in writing
(email and other forms of electronic written notification are
acceptable) at least 10 business days prior to the original date of
need, and that the employer must maintain records of the notification
and the date notification was provided to the order-holding office or
SWA and workers for 3 years. In paragraph (c)(5), the Department
similarly proposed to specify that the employer must notify the office
or SWA and each worker placed on the order, to align this paragraph
with paragraph (c)(3)(iv).
Wafla, Farmworker Justice, and Washington State supported shifting
the notification requirement from the SWA to the employer. Wafla stated
that given the variability of crops, crop maturation, weather, work
schedules, or over-recruitment in agriculture, the employer knows the
conditions on the ground and is capable and should be empowered to make
this decision and provide the proposed notification. Farmworker Justice
described it as a common-sense change where the employer, who has been
in prior contact with the workers, either directly or through agents,
is much more likely than the SWA to have the most current and effective
contact information; and the employer, rather than the SWA, can more
quickly reach workers, when time is critical, by going directly to the
workers rather than roundabout through the SWA. Both Farmworker Justice
and Washington State stated that the proposed change reduces the burden
on SWAs, whose resources, as Farmworker Justice stated, are reportedly
already stretched thin. On the other hand, an individual who operates a
family farm opposed the employer notification requirement, stating that
it would be very difficult and expensive to contact workers
individually within 10 days of the start date.
Several commenters raised concerns about employers providing
effective notification to workers. M[aacute]sLabor, whose comments
USAFL and Hall Global endorsed, stated that it would be unduly
burdensome to require employers to notify workers in writing of a delay
at least 10 business days before the original date of need because many
U.S. applicants do not provide an email address and employers would
need to notify workers by mail, which may not be feasible within 10
business days. M[aacute]sLabor said the notification requirement
creates perverse incentives in that workers who are aware of its
limitations may intentionally avoid giving an employer a means for
written notice in order to guarantee payment if there is a delay. USAFL
and Hall Global additionally cautioned the Department against imposing
unnecessary formal notice requirements. They raised concerns with
information overload and stated that workers often receive notice and
ignore it. They stated that formal notice is not needed where the
employer is working with the workers to get them to its workplace, and
that any information conveyed in that scenario is a natural part of
working together. They requested that the Department look at each
formal notice that it demands to make sure it is really justified and
necessary.
Farmworker Justice requested that the Department improve the notice
requirements, stating that relying on employers to give notices raises
concern as to whether meaningful and effective notice will actually be
received. Farmworker Justice suggested that the Department require that
notice be received, and that employers provide notices in languages
spoken by workers. Farmworker Justice also requested employers be
required to use the most reliable or speediest form of communication.
For example, they suggested, if the employer has a worker's mailing
address and phone number, then the employer should be required to send
a text message or use a different available phone-based application
that the worker may use. Farmworker Justice also noted that the
Department did not propose to require employers to contact farm labor
contractors or local recruiters if they are not able to contact workers
directly to ensure workers get the message.
In response to the m[aacute]sLabor comments, the Department notes
that employers may provide written notice to each worker who has been
placed on the clearance order using postal mail, email, or other forms
of electronic written notification, including by text message. Because
employers have a variety of options available to provide the notice,
and must use electronic means when the worker provides an email address
or their phone number, the Department thinks that it will be a
minimally burdensome requirement on employers in the event they are
required to provide notice. In response to Farmworker Justice's
comments, the Department considered requiring proof that workers have
actually received the employer's written notification; however, the
Department believes that it will not be possible or practicable for
employers to be able to document proof of receipt in all cases. The
Department notes that under the proposed changes, employers will be
required to maintain records showing that the notification was
provided. The Department believes that it is reasonable to expect that
most workers will receive written notice sent through either postal
mail or electronic written mail or other electronic means before they
need to depart for the original date of need. Therefore, the Department
is revising paragraphs (c)(3)(iv) and (c)(5) to indicate that employers
must send written notification at least 10 business days before the
original date of need.
The Department agrees with Farmworker Justice that it is important
for employers to provide notifications in languages spoken by workers
and is further revising paragraph (c)(3)(iv) to align employer notices
with 29 CFR 38.9 language access requirements. The Department made
similar changes more broadly to align part 653 with these obligations
as part of the Wagner-Peyser Act Staffing Final Rule, 88 FR 82658 (Nov.
24, 2023), which recognized that language access is crucial for
individuals with limited English proficiency. The Department reiterates
the importance of these non-discrimination obligations and believes
that providing notification to workers in accordance with 29 CFR 38.9
is necessary to ensure that workers receive effective notice that
apprises them of delays in the start of work. Employers and SWAs may
work together as necessary and appropriate to fulfill these
obligations. Additionally, the Department is further revising paragraph
(c)(3)(iv) to state that if a worker provides electronic contact
[[Page 33914]]
information, such as an email address or telephone number, the employer
will send notice using one of the electronic contact methods provided.
If the employer provides non-written telephonic notice, such as a phone
call, voice message, or an equivalent, the employer will also send
written notice using the email or postal address provided by the worker
at least 10 business days prior to the original date of need.
However, the Department declines to require employers to contact
farm labor contractors or local recruiters if they are not able to
contact workers directly because it would be difficult to measure when
an employer met its responsibilities in notifying workers. Moreover,
the purpose of these changes is to streamline communication with
workers by requiring direct communication between the employer and
worker, and the suggestion to permit third parties to engage in the
communication undermines the changes being made in this rule. The
Department believes that the adopted changes will increase the
likelihood that workers will receive required notices, while making the
requirements achievable for employers. The Department also identified
that it would help clarify that the notice requirements to which
paragraph (c)(5) refers are notices assured in paragraph (c)(3)(iv) of
this section.
The Department adopts the notice requirements in paragraphs
(c)(3)(iv) and (c)(5) proposed in the NPRM, with further revision to
clarify that the employer's written notice must be sent at least 10
business days prior to the original date of need, must be given in
languages workers understand, and that the employer must provide
electronic notification, if available. The Department has revised
paragraph (c)(5) to refer to the assurance in paragraph (c)(3)(iv).
Fourth, in paragraphs (c)(3)(iv) and (c)(5), the Department
proposed to require that notification be provided to workers placed on
the order rather than eligible workers referred from the order.
Relatedly, in paragraph (c)(5), the Department proposed to remove
language stating that employers must pay only workers who are eligible
pursuant to paragraph (d)(4).
Farmworker Justice supported the proposed change, stating that it
reduces the burden on employers by clarifying that only workers who are
placed on the order, rather than all workers referred, are covered by
the notice requirements. Washington State similarly stated that the
proposed change slightly reduces the burden on SWAs by clarifying that
neither SWAs nor employers need to notify SWA referrals of delays in
start dates.
The Department appreciates commenter support and adopts this
change, as proposed.
Fifth, in paragraphs (c)(3)(iv) and (c)(5), the Department proposed
that where an employer fails to provide adequate notice of a change to
the anticipated start date of need, the employer 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.
The Department received several supportive comments regarding the
proposal to require employers to provide housing and subsistence to
workers. Wafla, an employer agent organization, agreed that the
employer should provide housing and subsistence to all workers already
traveling to the place of employment under these conditions. Catholic
Charities USA (CCUSA) and the United States Conference of Catholic
Bishops (USCCB) (together, CCUSA and USCCB) also agreed, noting that
the proposal was designed to ensure workers are not deprived of basic
needs because of delays. CCUSA and USCCB further stated that the
provision would respect the reliance interests of workers and protect
against financial hardships beyond their control. The Alliance to End
Human Trafficking commented that the proposed regulation would help
people who are otherwise vulnerable to trafficking to obtain the
necessary support when disruptions to their employment occur through no
fault of their own. CCUSA and USCCB and the Alliance to End Human
Trafficking each indicated that the Department should finalize the
change, as proposed.
On the other hand, McCorkle Nurseries, Inc. and m[aacute]sLabor
expressed concern regarding the housing requirement, stating that it
would extend housing obligations to U.S. workers who were otherwise
ineligible for employer-provided housing. Additionally, m[aacute]sLabor
opposed the subsistence requirement. M[aacute]sLabor stated that there
was a contradiction in requiring subsistence to avoid financial
hardship because, under the proposed rule, employers would also be
required to pay workers up to 2 weeks of wages. Therefore, workers
would be paid as if there were no delay to the start date and financial
hardship would not exist. M[aacute]sLabor stated that because paying
wages in this circumstance moots the need for meal subsistence, as
workers will have the income to be able to purchase food, the
Department should either keep the wage guarantee or keep the
subsistence requirement, but not both.
Regarding housing, the Department notes that employers would only
be required to provide housing to workers who are eligible for housing
under Sec. 653.501(c)(3)(vi), which requires the availability of
housing for only those workers, and when applicable, family members,
who are not reasonably able to return to their residence in the same
day. Because such housing is already required to be available and to
meet applicable housing standards prior to the start date of work, the
Department does not think that providing housing in the event of a
delay in the start date will create a burden or hardship for the
employer. To clarify the scope of this requirement, the Department is
further revising paragraphs (c)(3)(iv) and (c)(5) to specify that
employers must provide the housing described in the clearance order to
all migrant workers placed on the clearance order who are already
traveling to the place of employment, without cost to the workers,
until work commences.
The Department has considered each comment regarding the proposed
subsistence carefully. The Department recognizes the concern raised by
m[aacute]sLabor about the burden to employers when the benefit would
not be otherwise available if there had been no delay in the start
date. In light of this concern, the Department has decided not to
finalize the subsistence provision. However, the Department remains
concerned about workers being left in a worse position than they would
have been had there been no delay. Accordingly, the Department is
adding to paragraphs (c)(3)(iv) and (c)(5) that employers that fail to
provide the required notice must pay all placed workers for the hours
listed on the clearance order and provide or pay all other benefits and
expenses described on the clearance order. This revision will ensure
that workers receive the full monetary and non-monetary benefits they
would have received if work had started on time. Therefore, if, for
example, the clearance order includes as a benefit some form of payment
for or access to food or meals, such as employer-provided lunches, an
employer-organized food truck at the property, or simply employer-
provided access to a grocer, then the worker would be entitled to those
benefits to ensure they are kept whole.
Sixth, in paragraphs (c)(3)(iv) and (c)(5), the Department proposed
that where an employer fails to provide adequate notice of a change to
the
[[Page 33915]]
anticipated date of need, the employer must also pay workers for each
day work is delayed up to 2 weeks starting with the originally
anticipated date of need or provide alternative work. In paragraph
(c)(5), the Department proposed that the employer 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. For criteria
clearance orders, the employer would be required to pay the rate of pay
specified at 20 CFR 655.175(b)(2)(ii). These proposed edits would align
the wage requirement in this paragraph with proposed wage requirements
in part 655, subpart B, as applicable. The Department also proposed
language clarifying that alternative work must be stated on the
approved clearance order.
Several organizations submitted supportive comments regarding the
proposal to require employers pay up to 2 weeks of wages, when
employers do not properly notify workers. The UFW Foundation, UFW,
North Carolina Justice Center, UMOS, PCUN, CAUSE, and Green America
noted that employers would have to pay such wages if the job started on
time and said that the rule proposed a safety net during a particularly
vulnerable time, when farmworkers have little or no savings and are
awaiting their first paycheck. The UFW Foundation shared stories of
multiple farmworkers who experienced delayed start dates, one up to 15
days, which caused the farmworkers to go into debt because their cost
of living continued, despite their income being delayed. One farmworker
described repeatedly traveling back and forth to the job site each day
during a delay, where they were told work was not available that day.
The farmworker spent time, energy, and money for gas during the delay.
The farmworker further stated that workers return each day only to find
they have been replaced, leaving them with no money to pay their
mortgages or to purchase groceries. The Agricultural Workers Advocacy
Coalition (AWAC) also supported the wage requirement, stating that
numerous workers on the Eastern Shore have experienced significant
delays in receiving wages at the start of their contracts and have had
to go for lengthy periods without enough money to even buy food.
Farmworker Justice said the increase to 2 weeks wages was warranted
given incoming travel costs and potential economic harm to workers
impacted by delay. The Alliance to End Human Trafficking stated that
the proposal would help people who are otherwise vulnerable to
trafficking to obtain the necessary support when disruptions to their
employment occur through no fault of their own. Marylanders for Food
and Farmworker Protection stated the proposal promotes accountability,
and CCUSA and USCCB stated that the proposed changes are designed to
ensure workers are not deprived of basic needs because of delays.
USA Farmers, a national trade association that exclusively
represents agricultural employers of H-2A foreign workers, opposed the
2-week wage requirement, calling it unreasonable. USA Farmers proposed
that instead of requiring wage payment for up to 2 weeks, the
Department instead should align the period of payment to correspond to
the number of days the employer was late in providing the notice after
the employer knew that start date would change. M[aacute]sLabor, whose
comments USAFL and Hall Global endorsed, and McCorkle Industries, Inc.
contended that there are already procedural protections to prevent
financial hardship, including the preexisting guarantee of the first
week wages as well as existing H-2A employer obligations under the
three-fourths guarantee. They described the proposal to extend wages up
to 2 weeks as unduly punitive and redundant. M[aacute]sLabor also
stated that the requirement for wage payments to all workers placed on
the clearance order extends the wage rate guarantee to H-2A workers,
which it described as a drastic expansion of existing requirements.
USAFL and Hall Global further stated that the Department did not
disclose the reason why any change to the existing regulation was
warranted and requested that the Department provide a factual basis for
why one week of pay is not sufficient. M[aacute]sLabor noted that an
employer requesting a delay to the start date is itself experiencing
hardship and said that the Department must strike an appropriate
balance of the equities. M[aacute]sLabor said that tipping the scales
too heavily in favor of the workers by dramatically increasing the
costs to employers is not equitable.
Wafla disagreed that an employer should be required to pay workers'
wages when they do not meet the 10-business-day notice provision. Wafla
said that some delays are due to surprise events, like an unexpected,
unforeseeable weather storm or an act of God, and that such events
should be considered as valid reasons to delay notification of workers
after the 10 business days. The Agricultural Justice Project stated
that the wage requirement was fair but noted that this level of detail
will make the application process even more daunting for smaller farms
while larger business have designated staff or contracted specialists
to handle these matters. They stated that honest employers will be
penalized here because of the work of other unscrupulous employers who
will find new loopholes or workarounds to evade these provisions,
particularly where the chance of enforcement is low.
Regarding alternative work, Farmworker Justice said the proposed
rule makes clear that alternative work must be in the approved job
order, and that this is an important clarification to deter unsafe and
uncompensated work. USA Farmers commented that it is not logical to
limit alternative work to work described on the clearance order. USA
Farmers contended that if the employer is offering work included in the
job order, then there would be no need for the employer to delay the
start date of work because the alternative work would already be a part
of the job order. M[aacute]sLabor also commented that limiting
alternative work to work described on the clearance order makes sense
for H-2A workers who cannot perform duties outside the scope of the job
order, but not for U.S. workers who are not subject to similar
limitations. M[aacute]sLabor stated that it is unclear why the employer
should be restricted to work activities within the scope of the job
order for U.S. workers, and why an employer may not count other
alternative work if the job duties anticipated are not available.
M[aacute]sLabor contended that if an employer finds such alternative
work, the work would also be compensable, and expressed concern that
workers might receive double payment.
Regarding the methods for calculating wages, wafla expressed
concern that the required wages would need to be hourly, piece rate, or
any prevailing wage listed in the job order. Wafla asked how an
employer can pay a piece rate to a worker when work has not yet
started, and no piece rate has been established. Wafla suggested that
the provision require only payment of the hourly rate listed in the job
order and nothing more.
The Department agrees that expanding the wage payment requirement
in the event of a delay, about which the employer failed to provide
required notice, to 2 weeks is necessary for worker protection. As
stated in the NPRM, the Department has made a policy decision that one
week of wages is insufficient to protect workers from the financial
hardships associated with a delayed starting date when such
[[Page 33916]]
delays were not communicated, particularly if a worker traveled for the
job. Instead of adjusting the number of days wages must be paid to be
equal to the number of days the employer's notice was late, as USA
Farmers suggested, the Department is finalizing its proposed
requirement that the number of days wages must be paid must be equal to
the number of days work is delayed, up to 2 weeks. This helps ensure
workers receive compensation commensurate with the amount of financial
impact they experience due to the delay.
While it may add an additional cost, these requirements are not
intended to be punitive to employers. Instead, the wage payment is
designed to be protective for workers by ensuring that they are not
disadvantaged due to circumstances beyond their control. The Department
notes that in lieu of paying the 2 weeks' worth of wages, if the
employer fails to comply with the notice requirements, employers can
provide workers alternative work if such alternative work is listed on
the approved clearance order. The Department has determined that this
alternative effectively addresses the hardship concern by providing the
worker a source of income, which would otherwise have been available
but for the delay, while continuing to allow the employer flexibility
to adjust their anticipated start date. Alternative work may be
provided to help employers recover from unexpected weather events or
acts of God. Finally, the requirement to pay up to 14 days of wages
does not mean that workers will receive more money than they otherwise
would have under the offered and agreed-upon terms of the clearance
order, had the work begun on time. For example, if a delay lasts 10
days and the workers begin work on the 11th day, the employer, if
having not provided adequate notice and not providing alternative work,
is required to pay the worker only what they originally promised to
pay.
As described in the discussion for parallel proposals in Sec.
655.175, the Department disagrees that preexisting protections are
sufficient to prevent financial hardship, including the preexisting
requirements to pay one week of wages as well as existing H-2A employer
obligations under the three-fourths guarantee. The requirements in
Sec. 653.501(c) ensure workers receive the first 2 weeks of wages at
the beginning of the contract term and with the first scheduled
paycheck. This helps avoid financial hardship workers might experience
at the beginning of work, which is distinct from the three-fourths
guarantee described for criteria clearance orders in part 655. The
Department also notes that the requirements in Sec. 653.501(c) apply
to both criteria and non-criteria clearance orders, so this provision
provides a necessary protection to workers not otherwise covered by the
requirements in the Department's H-2A regulations.
The Department notes that the option for an employer to provide
alternative work is preexisting and the Department did not propose to
change that part of the regulation, except to clarify that the
alternative work must be in the approved clearance order. The addition
of approved is intended to clarify the existing regulation but not to
change its meaning. Regardless, the Department believes it is important
to retain the option to provide alternative work and that any
alternative work must be described in the clearance order. Maintaining
this option provides employers with flexibility to employ workers
through other duties that are useful to the employer, though not their
primary or anticipated need. For example, if an employer files a
clearance order for apple pickers, the employer might include a
description of alternative work that explains workers may be required
to perform related work to prepare or maintain growing areas or to
prepare containers and other specific support activities. In the event
of a delay related to weather conditions, where the employer failed to
properly notify workers, the employer could offer alternative work that
would help the business be ready for work to start or to recover from
the weather condition that caused the delay. Such work would be
considered alternative because the primary job duties for the workers
would be apple picking but, if apple picking is not possible, workers
could be offered work that supports the primary work activity or
business. The Department maintains that it is necessary for the
alternative work to be described in the clearance order so that
potential applicants have adequate notice of the duties they may be
asked to perform, which are material terms and conditions. Applicants
may decide to apply or not to apply based on the alternative work
described in clearance orders. For these reasons, the Department
declines to revise the option to provide alternative work and the
specification that any alternative work must be described on the
clearance order.
Additionally, though the Department did not receive comments
requesting the Department to align the language of Sec.
653.501(c)(3)(iv) and (c)(3)(5) with the parallel requirements in part
655, the Department has determined that it would be clearer to revise
Sec. 653.501(c)(3)(iv) and (c)(3)(5) so that the wage requirement is
stated in days, instead of weeks, to be consistent with Sec. 655.175.
This revision does not change the proposed requirement.
The Department is finalizing the proposal to expand the period
during which employers must pay the applicable wage to 2 weeks, from
the current 1-week period, with one edit to describe the required 2-
week period as 14 calendar days.
Finally, in paragraph (c)(5), the Department proposed new language
instructing SWAs to process noncompliance with the employer's
obligations in paragraph (c)(5) as an apparent violation pursuant to
Sec. 658.419. The Department did not receive comments on this change
and adopts it, as proposed.
3. Section 653.501(d), Processing Clearance Orders
The Department proposed to remove paragraphs (d)(4), (7), and (8)
in their entirety because, with the proposed change in paragraph (c) 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.
Farmworker Justice supported the removal of paragraph (d)(4),
stating that it eliminates an additional obstacle for U.S. workers in
that previously they had to contact the ES Office to verify the
original date of need to be eligible for the first week's pay. The
Department did not receive any other comments.
The Department appreciates commenter support and adopts the removal
of paragraphs (d)(4), (7), and (8), as proposed.
D. 20 CFR Part 658, Subpart F--Discontinuation of Services to Employers
by the Wagner-Peyser Act Employment Service
This subpart sets forth the regulations governing the
discontinuation of Wagner-Peyser Act ES services to employers. The
Department adopts revisions throughout this subpart to clarify the
bases and process for discontinuing services. The Department also
reorganizes these 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 clarifies what
ES services would be unavailable after discontinuation and the entities
subject to discontinuation.
[[Page 33917]]
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 will 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 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
changes are discussed below.
1. General Comments
The Department received several supporting and opposing comments on
the general revisions to discontinuation of services provisions in part
658. The National Women's Law Center said that improving protections
for both H-2A and corresponding workers is key to ensuring that abusive
employers do not take advantage of the H-2A program to discriminate
against their non-H-2A workforce and exploit the vulnerability of H-2A
workers. It described the changes proposed to the discontinuation of
services provisions as key improvements. Farmworker Justice said that
discontinuation provides vital protections for workers who want to
receive what they are owed and work under improved conditions without
losing their jobs altogether. According to Farmworker Justice, unlike
debarment, which is a discretionary sanction, discontinuation of
services is mandatory whenever an H-2A employer is determined to have
violated an employment-related law. Farmworker Justice further said
that the detailed provisions for reinstatement of services can ensure
farmworkers impacted by the employer's violations receive restitution,
which may not routinely occur in debarment cases, and also highlighted
the importance of corrective action plans described in part 658.
Farmworker Justice also noted underapplication of the pre-existing
discontinuation of services regulations by SWAs and said that, if
properly applied, discontinuation of services would be a major
deterrent to employers who might otherwise violate the law.
The U.S. Chamber of Commerce stated that it was concerned that the
proposed revisions to the Wagner-Peyser ES regulations would have a
significantly negative impact upon employers' ability to obtain and
retain H-2A workers. The U.S. Chamber of Commerce said that the
proposed revisions would incur additional processing costs, increase
the likelihood of delays in obtaining workers, and create significant
risks for business disruptions should employers run afoul of the new
requirements in the middle of the seasons. The U.S. Chamber of Commerce
stated that additional operating costs would affect American consumers
in the form of higher food prices.
USA Farmers described the proposed regulations as an attempt to
weaponize the Wagner-Peyser system against farmers and U.S. workers
seeking agricultural employment and that the changes could block
employers from utilizing the ARS for minor or unproven alleged
violations of regulations and deny employers due process. USA Farmers
contended that there is no rational need for the changes. USA Farmers
stated that the Department already has a robust debarment program with
due process rights. They argued that, as a result of this proposal,
employers with violations that are not serious enough to warrant
debarment by the Department will nonetheless effectively be debarred.
USA Farmers also stated that the process to request a hearing and for
SWAs to make decisions is flawed.
USAFL and Hall Global stated that the Department should defer
adoption of the proposal and engage in detailed discussions with
stakeholders. USAFL and Hall Global noted that discontinuation of
services applies to the H-2A program and to non-H-2A related services
and that, because the H-2A regulations mandate that a prospective H-2A
employer access the interstate clearance system, discontinuation of
services can amount to a permanent debarment of an employer.
The Northwest Horticultural Council (NHC) said that it is aware
that many SWAs have limited resources and are often short staffed,
which may contribute to the low use of discontinuation of services. NHC
noted that many SWAs work closely with growers where clarification or
questions may arise rather than simply discontinuing access to the
services, which the commenter said it believes should be encouraged.
NHC stated a concern that the proposed expansion of those subject to
discontinuation of services, as well as the proposal to remove SWA
discretion prior to discontinuation, will lead to delays in processing
clearance orders for all employers, not just those subject to
additional scrutiny. Additionally, NHC had concerns about limited
employer recourse to the Department if there is ongoing conflict with
the respective SWA.
The Department agrees with the comments from National Women's Law
Center and Farmworker Justice, and believes that the changes are
necessary to ensure worker protections, while offering adequate due
process to employers. The Department notes that employers that comply
with applicable laws and regulations should not experience delays or
expenses related to these procedures because they will not have met the
bases described at Sec. 658.501 that mandate SWAs to initiate
procedures for discontinuation of services. As described in greater
detail in the following comment responses, the bases at Sec. 658.501
in many cases describe that, to meet the basis for discontinuation, the
employer must have refused to comply with the stated requirements. The
bases that describe employer refusal to comply assume that the SWA has
already attempted to resolve issues, which provided the employer with
an opportunity to avoid initiation of discontinuation of services. For
example, the SWA may be required to initiate discontinuation of
services after the SWA attempted to informally resolve apparent
violations under Sec. 658.419 or complaints under Sec. 658.411. The
Department believes that the provisions of part 658, subpart F clearly
explain that discontinuation of services is not the SWA's first
response when it identifies apparent violations, or in response to
complaints, except in cases where immediate discontinuation is
warranted. The Department further notes that where immediate
discontinuation is warranted, under Sec. 658.502(b), the employer must
also have met one of the stated bases at Sec. 658.501(a), therefore,
employers are not at risk of experiencing discontinuation of services
for unsubstantiated claims, as some commenters suggested. The
Department affirms that employers must comply with all applicable
employment-related laws, as well as the full terms and
[[Page 33918]]
conditions of clearance orders, to employ workers through the ES
system. The Department maintains that all ES regulations and
employment-related laws are important and notes that the preexisting
bases at Sec. 658.501 similarly required SWAs to initiate
discontinuation of services to employers who failed to comply with such
requirements.
The Department will discuss comments specific to each of the
proposed changes below but wishes to provide a response to these
general comments to indicate that the interest of worker protection is
compelling and supports the Department's determination to implement
most of the changes, as proposed. The Department maintains that there
are adequate procedural protections to protect the due process rights
of employers, including several mechanisms to allow employers to
respond to and resolve identified noncompliance, prior to
discontinuation of services. The Department also maintains that the
purpose and application of discontinuation of services is distinct from
debarment actions, which more narrowly apply to certain programs. The
proposed changes foster a culture of compliance between employers,
workers, and SWAs, which is necessary to uphold the laws of the United
States and their implementing regulations.
2. Section 658.500, Scope and Purpose of Subpart F
The Department proposed 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.
Farmworker Justice supported the proposed change, stating that it
provides needed clarification that all job services in parts 652 and
653 are impacted by discontinuation. Additionally, the UFW Foundation,
UFW, North Carolina Justice Center, UMOS, PCUN, CAUSE, and Green
America expressed general support for inclusion of labor exchange
services at part 652. On the other hand, USAFL and Hall Global stated
that discontinuation of services should only apply to services not
necessary for participation in the H-2A program, meaning
discontinuation should only apply to the services available at part
652, and not part 653.
The Department appreciates commenter support for this
clarification. Regarding the recommendation that discontinuation of
services should only apply to services not necessary for participation
in the H-2A program, the Department disagrees. Discontinuation has
historically applied to ES services available under part 653, including
access to the ARS. As explained above, prospective H-2A employers must
use the ARS to recruit U.S. workers as a condition of receiving a
temporary agricultural labor certification, and employers and entities
who file applications for temporary agricultural labor certification
under 20 CFR part 655, subpart B must comply with the ARS requirements
at part 653, subpart F. See, e.g., Sec. Sec. 655.121 and
655.131655.133. The Department, therefore, declines to adopt the
recommendation. and adopts this paragraph, as proposed.
The Department also proposed 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) therefore
describes 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, and each joint employer is responsible for the violations of
the other joint employers. 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 revisions were proposed
to clarify and expand the entities who engage the ES clearance system
and are, thus, subject to discontinuation. Specifically, the proposed
change would make 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.
Finally, as the proposed agents, farm labor contractors, joint
employers, and successors in interest also seek temporary agricultural
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. For the
reasons set forth in the NPRM and below, the Department adopts the
proposed paragraph (b), with one addition.
The UFW Foundation, UFW, North Carolina Justice Center, UMOS, PCUN,
CAUSE, and Green America all expressed support for greater
accountability to third parties, stating one of the strongest
protections in the proposed rule would be a series of changes that
would strengthen enforcement actions against employers' agents,
contractors, joint employers, and successors in interest. Similarly,
the National Women's Law Center stated that the proposed rule would
improve administration of the H-2A program, including discontinuation
of services, to help prevent employers and their agents from abusing
the H-2A program.
Several commenters expressed concern that the proposed changes
would make third parties liable for the actions of employers, and
employers liable for the actions of third parties. The Arizona Farm
Bureau Federation, North Carolina Farm Bureau Federation, Inc., Golden
Plain Farms, Inc., Western Range Association, and Roossinck Orchards,
Inc. opposed the proposed changes, stating that they hold farmers
responsible for violations committed by farm labor contractors,
recruiters, attorneys, etc. Similarly, wafla stated that the inclusion
of entities who are not the principal employer, have no clear control
of day-to-day workplace conditions, and have nothing to do with
potential rule violations giving rise to discontinuation is overbroad.
The American Immigration Lawyers Association (AILA) opposed inclusion
of successors in interest, stating that successors in interest are not
responsible for issues created by former owners and should not have to
answer for those issues merely by purchasing a business. The National
Cotton Ginners Association and Texas Cotton Ginners' Association
opposed the inclusion of agents, stating that the rule makes small
agricultural business that rely on agents for recruitment services
subject to
[[Page 33919]]
discontinuation because of potential violations by the agent that may
be outside of the employer's control. The Mountain Plains Agricultural
Service stated that the proposal extends enforcement of employment-
related laws to agents that are not employers and not subject to said
laws and regulations. Relatedly, the International Fresh Produce
Association (IFPA), the Georgia Fruit and Vegetable Growers Association
(GFVGA), U.S. Custom Harvesters, Inc., Texas International Produce
Association (TIPA), NHC, the U.S. Chamber of Commerce, Titan Farms,
LLC, Demaray Harvesting and Trucking, LLC, an individual, and an
anonymous commenter all opposed the changes stating that they do not
make clear who--whether the filing entity, the underlying employer, or
both--will be subject to discontinuation of services when a SWA
determines that a basis for discontinuation exists.
Additionally, commenters opposed the inclusion of agents and
attorneys because of the legal and ethical duties they owe to their
clients. USApple stated that agents and attorneys are legally and
ethically bound to carry out their clients' intentions, and the
proposed rule would allow for discontinuation of services to agents and
attorneys where their client refuses to, for example, modify a job
order. Similarly, m[aacute]sLabor stated that agents and attorneys are
not free to unilaterally take action that is contrary to the intent of
the client, and if an employer disagrees in good faith with the SWA and
instructs the agent or attorney not to modify an application in
accordance with the SWA's instructions, the agent is therefore duty-
bound to follow that instruction and push back against the SWA.
Several commenters asked that the Department consider the economic
implications of the proposed changes and their potential effect on the
industry. IFPA, GFVGA, U.S. Custom Harvesters, Inc., TIPA, NHC, the
U.S. Chamber of Commerce, Titan Farms, LLC, Demaray Harvesting and
Trucking, LLC, an individual, and an anonymous commenter all stated
that agents and attorneys play an invaluable role in processing
criteria clearance orders, certifications, and petitions for
employers--particularly for small farm employers without staff or
expertise to undertake the process. Discontinuation of services to
third parties would impact farm employers across the country who, in
good faith, rely on that third party and could not anticipate the SWA
action. Because the timing for filing a clearance order and date of
need is incredibly tight, under the proposed rule, farmers will suffer
significant financial losses caused by circumstances over which they
have no control, leaving them with crops in the field and no harvesters
to collect them. Additionally, farmers will have increased costs
associated with hiring a new third party to file their clearance orders
or redirect staff resources to undertake the task while the company is
preparing for harvest.
Relatedly, wafla stated that discontinuation to an attorney or
filing agent would negatively impact the other clients that attorney or
agent serves, such that all of that attorney's or agent's clients would
be debarred from the program. M[aacute]sLabor stated that
discontinuation to an attorney or agent would preclude that agent or
attorney from filing job orders in that State for its other clients.
The Western Range Association stated that discontinuation to agents
would be disconcerting to the entire industry because there are only
two agents that the majority of ranchers in its service area use.
USApple stated that discontinuation to an attorney or agent would reach
much further than a single clearance order to affect many employers and
upwards of hundreds, if not thousands, of workers. The Wyoming
Department of Agriculture stated that discontinuation to any affiliate
of the employer would result in a domino effect of reduced services and
job opportunities for employees who work with agents, attorneys, or
others due to their names being placed on the discontinuation list.
The Department reiterates that all entities who engage the ES
clearance system, including agents (which include attorneys), farm
labor contractors, joint employers, and successors in interest, should
be subject to discontinuation, if appropriate. The proposed changes are
meant to hold these entities accountable for compliance with ES
regulations. They are not meant to hold, for example, agents,
attorneys, or farm labor contractors accountable for the actions of the
employers they represent, or vice versa. For example, if an employer is
discontinued because, under Sec. 658.501(a)(4), they are found by a
final determination by OSHA or WHD to have violated an employment-
related law, the discontinuation is not imputed to the employer's agent
who had nothing to do with the violation. If an employer is
discontinued because, under Sec. 658.501(a)(1), they refuse to correct
terms and conditions in the job order that are contrary to employment-
related laws, and the employer's agent made a good-faith attempt to
bring the employer's terms and conditions into compliance, the
discontinuation is not imputed to the employer's agent. Conversely, an
agent or farm labor contractor's noncompliance would not necessarily be
imputed to an employer. Thus, under the proposed rule, an agent,
attorney, or farm labor contractor who is blameless would not be
subject to discontinuation based on the acts of the employer, and an
employer who is blameless would not be subject to discontinuation based
on the acts of their agent, attorney, or farm labor contractor. As to
joint employers and successors in interest, the Department reiterates
that joint employers who utilize workers placed on clearance orders
should be subject to discontinuation; and successors in interest, who
maintain the same or similar operations as the former employer whose
services have been discontinued, should also be subject to
discontinuation.
Regarding the legal and ethical duties that agents and attorneys
owe to their clients, the proposed changes do not interfere with those
duties. For example, an agent or attorney who engages the ES system on
behalf of an employer must do so in conformance with the requirements
of the ES regulations and must advise their employer-client to use the
ES system in conformance with the regulations. In the example provided
by commenters, if an employer refuses to modify a job order to comply
with employment-related laws, the agent or attorney will have
presumably advised the employer to bring the terms or conditions in the
job order into compliance. In that instance, and as noted above, a
blameless agent or attorney would not be subject to discontinuation
based on the acts of the employer.
The Department recognizes and acknowledges the critical role that
agents and attorneys play in navigating the ES system for the employers
they serve. The Department also recognizes that the discontinuation of
services to an agent or attorney may have an economic impact on the
industry, particularly for small farms that rely heavily on agent/
attorney services. However, the Department considers requiring SWAs to
discontinue services to agents and attorneys, where appropriate,
necessary to protect the integrity of the ES system and protect users--
both workers and employers--of the ES system. Without the ability to
discontinue services to agents and attorneys, SWAs would have no
mechanism to prevent agents or attorneys that violated ES regulations
from accessing the ES system. The impact to the industry may be
mitigated in light of other changes made to the
[[Page 33920]]
discontinuation regulations. Specifically, the discontinuation action
will be stayed pending any appeal of a final SWA decision to
discontinue services to an agent or attorney; alternatively, an agent
or attorney can have services reinstated at any time if they have
resolved the issues leading to the discontinuation. In addition, the
Department reiterates that inclusion of agents, farm labor contractors,
joint employers, and successors in interest is necessary to align the
definition of agent here with the definition of agent in Sec. 655.103;
and that the economic effects of discontinuation to third parties are
the same or similar as the effects of debarment on the same third
parties in the existing H-2A context. Finally, as noted in the
discussion of the successor in interest definition in Sec. 651.10, the
Department is relocating part of that proposed definition, on liability
of successors in interest, to this section of part 658 (``A successor
in interest to an employer, agent, or farm labor contractor may be held
liable for the duties and obligations of that employer, agent, or farm
labor contractor for purposes of recruitment of workers through the ES
clearance system or enforcement of ES regulations, regardless of
whether such successor in interest has succeeded to all the rights and
liabilities of the predecessor entity.'') As with the separate
structure of Sec. 655.104(a) and (b), the Department is separating the
language relating to liability for discontinuation purposes from the
definitional language of Sec. 651.10 and has determined this liability
language is more appropriately located in part 658, subpart F, which
generally describes the situations in which entities are subject to
discontinuation of services, Regarding the concerns commenters raised
with the scope of successor liability and the language in proposed
Sec. Sec. 651.10 and 655.104, ``regardless of whether such successor
in interest has succeeded to all the rights and liabilities of the
predecessor entity,'' the Department is retaining this and other
proposed language on successors as part of Sec. 658.500--and is not
finalizing the remainder of the proposed sentence (``A successor in
interest includes an[y] entity that is controlling and carrying on the
business of a previous employer, agent, or farm labor contractor'')--
for the reasons stated in the discussion of Sec. 655.104 below.
3. Section 658.501, Basis for Discontinuation of Services
Section 658.501 describes eight bases for which SWA officials must
initiate discontinuation of services to employers. The Department
proposed 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 proposed 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 proposed to change
alter to correct to more clearly articulate that the employer must
specifically correct the noncompliant term or condition rather than
simply change the term or condition, which might not result in
correction of the noncompliance. The Department also proposed to change
specifications to terms and conditions to align the language in
paragraph (a)(1) with the language used in Sec. 653.501. For the
reasons discussed in the NPRM and below, the Department adopts
paragraph (a)(1) as proposed.
Several trade associations, including the Florida Fruit and
Vegetable Association (FFVA), GFVGA, Western Growers, USA Farmers,
USApple, NHC, Snake River Farmers' Association (SRFA), AmericanHort,
NCFC, IFPA, wafla, and FSGA, along with m[aacute]sLabor, USAFL and Hall
Global, the Michigan Farm Bureau, McCorkle Nurseries, Inc., Northern
Family Farms, LLP, Mountain Plains Agricultural Service, Willoway
Nurseries, an individual, and an anonymous commenter, opposed or
expressed concerns regarding the Department's proposal to change the
word ``alter'' to ``correct.'' These commenters stated that SWAs often
misstate, misinterpret, or incorrectly apply the meaning of various
employment-related laws when processing jobs orders. Some cautioned
that SWAs do not have sufficient familiarity with applicable laws to
make determinations as to whether the terms and conditions in an
employer's job order comply with employment-related laws. Others stated
that SWAs have limited resources to conduct fact investigations in
making such determinations. One commenter noted that the NPRM does not
indicate whether SWAs will receive training or guidance on applicable
State and Federal laws.
Additionally, commenters raised concerns as to how disagreements
between employers and SWAs under proposed paragraph (a)(1) will be
resolved. Some stated that use of the proposed ``correct'' presumes
that the SWA's interpretation of employment-related laws is accurate,
does not allow employers to challenge the SWA's interpretation, flips
the burden of demonstrating a basis for discontinuation onto employers,
and requires employers to prove a negative. Others stated that proposed
paragraph (a)(1) is vague, does not allow employers to resolve
disagreements with SWAs in good faith, and allows for discontinuation
where the employer's alleged noncompliance with employment-related laws
has not been adjudicated on the merits.
In the H-2A context, several commenters questioned the interplay
between proposed paragraph (a)(1) and the emergency application
procedures at Sec. Sec. 655.121 and 655.134, which allow employers to
appeal to a DOL Certifying Officer (CO) where they are unable to
resolve outstanding deficiencies in the contents of H-2A job orders
with the SWA. Because proposed Sec. 658.501 describes the
circumstances in which SWAs must initiate discontinuation, commenters
asked whether every emergency application will automatically require
initiation of discontinuation proceedings. Additionally, commenters
asked whether employers would undergo discontinuation proceedings
before the DOL CO resolves the emergency application; and whether the
SWA would still be under an obligation to discontinue services after a
CO has determined that a job order is, in fact, compliant with
employment-related laws. Commenters stated that SWAs frequently assert
that the contents of a job order are contrary to employment-related
laws--only to have the CO overturn that determination in a subsequent
emergency filing under Sec. 655.134.
Finally, commenters opposed application of proposed paragraph
(a)(1) to agents and attorneys. One commenter stated that proposed
paragraph (a)(1) extends enforcement of employment-related laws to
agents, who are not employers and, thus, not subject to said laws.
Another commenter stated that application to agents and attorneys may
unlawfully force agents and attorneys to violate legal and ethical
duties to their clients by requiring them to change terms and
conditions in job orders contrary to the express wishes of their
clients. That commenter also expressed concern with the effect of
proposed paragraph (a)(1) on agents and attorneys, stating that a SWA's
incorrect interpretation of an employment-related law, and subsequent
discontinuation of services, could lead to irreparable harm to that
agent or attorney's business, and
[[Page 33921]]
to the clients who use the agent or attorney to file job orders.
Commenters suggested several changes to proposed paragraph (a)(1),
including: (1) requiring an enforcement agency to make a predicate
finding of a violation of an employment-related law; (2) limiting
proposed paragraph (a)(1) to repeated failures to correct or withdraw
job orders that have already been adjudicated; (3) allowing employers
to contest discontinuation by demonstrating that the matter has not
been adjudicated on the merits; (4) clarifying that failure to include
State and local laws in a job order is not a basis to refuse to open a
job order or discontinue services; (5) automatically staying
discontinuation proceedings if an employer files an emergency
application under Sec. 655.121, Sec. 655.134, or Sec. 655.171 until
the CO or Administrative Law Judge (ALJ) reaches a final determination
on the merits; (6) automatically terminating discontinuation if a CO
issues a Notice of Acceptance under Sec. 655.143; (7) modifying Sec.
658.504 to require reinstatement where a CO determines that the job
order is compliant with employment-related laws; (8) allowing employers
to appeal directly to an ALJ in lieu of a State hearing official; and
(9) excluding application to agents and attorneys.
The Department appreciates commenters' views and recommendations.
The Department emphasizes that its proposal to change the word alter to
correct in paragraph (a)(1) is a clarifying edit that is not intended
to make any substantive change to the regulation. As discussed above,
the proposed change more clearly articulates that employers must
correct terms and conditions in job orders that are contrary to
employment-related laws, rather than simply change them. For example,
Sec. 653.501(d)(2) provides that SWAs may place an intrastate or
interstate order seeking workers to perform farmwork for a specific
farm labor contractor or for a worker preferred by an employer,
provided the order meets ES non-discrimination criteria. It further
states that an order would not meet such criteria, for example, if it
requested a white male crew leader or any white male crew leader. In
this example, were an employer to subsequently change this term from
``white male crew leader'' to ``white crew leader,'' the employer has
altered the term but has not corrected it to bring it in compliance
with non-discrimination laws (including, e.g., the requirement at Sec.
653.501(c)(1)(ii) that clearance orders not contain an unlawful
discriminatory specification). The word correct, therefore, better
aligns with the intent of paragraph (a)(1), which is to ensure that
clearance order terms and conditions comport with employment-related
laws and that SWAs take appropriate action where such terms and
conditions are not corrected.
The Department further emphasizes that proposed paragraph (a)(1)
does not impose any new requirements, and the discontinuation process
is separate and distinct from the review process for criteria clearance
orders (orders that are attached to H-2A applications) in Sec.
655.121. That process includes an initial review, a deficiency notice,
where applicable, an opportunity for an employer to respond, a final
determination from the SWA, and an allowance for employers to file an
emergency Application for Temporary Employment Certification when the
SWA and the employer are unable to resolve outstanding deficiencies
regarding the contents of criteria clearance orders. Where the SWA
ultimately approves a criteria clearance order there would be no basis
for the SWA to initiate discontinuation proceedings. Where the SWA
disapproves the order and the employer files an emergency application,
a CO will review and approve or deny certification (see Sec. 655.160).
Where the CO denies certification, and the employer does not appeal,
the CO's written determination is final (see Sec. 655.164). Where the
employer appeals, an ALJ will issue a written determination (see Sec.
655.171). Applicable here, only where there is a final determination
from either the CO or ALJ that the terms and conditions in an
employer's criteria clearance order are contrary to employment-related
laws, and the employer refused to bring the terms and conditions into
compliance, would the SWA have reason to initiate a discontinuation
action.
For non-criteria clearance orders (orders that are not attached to
H-2A applications), under Sec. 653.501, SWAs must review and approve
clearance orders within 10 business days of receipt of the order. Where
a SWA reviews and approves the clearance order, there would be no basis
for the SWA to initiate discontinuation proceedings. Where a SWA
reviews and the terms and conditions of the order are contrary to
employment-related laws, and the employer updates the order by
correcting the terms and conditions, there would be no basis for
discontinuation. However, where a SWA reviews and the terms and
conditions of the order are contrary to employment-related laws, and
the employer refuses to bring the terms and conditions into compliance
or to withdraw the clearance order, the SWA must initiate
discontinuation of services under Sec. 658.501(a)(1). Only where the
SWA denies the clearance order because the employer refused to bring
the terms and conditions into compliance, would the SWA have reason to
initiate a discontinuation action.
As noted in the NPRM, the Department intends to increase the reach
and utility of the discontinuation of services provisions, which SWAs
have underutilized in recent years. While proposed paragraph (a)(1)
does not include any substantive changes or new requirements, the
Department recognizes and appreciates the concerns and recommendations
raised by commenters--particularly those regarding effective and
efficient resolution of employer and SWA disagreements, and the
interplay of proposed paragraph (a)(1) and the H-2A emergency
application process. In addition to the discussion above, the
Department intends to issue further guidance on this basis for
discontinuation.
Regarding application of proposed paragraph (a)(1) to agents and
attorneys, the Department disagrees with commenter concerns. The
Department reiterates that agents, attorneys, and other entities who
engage the ES clearance system should be subject to discontinuation if
they meet a basis for discontinuation; and that the effects and reach
of discontinuation on agents/attorneys will be the same or similar as
the effect of debarment on agents/attorneys in the existing H-2A
context. As to the commenter concern that the proposal may unlawfully
force agents and attorneys to violate legal and ethical duties to their
clients by requiring them to change terms and conditions in job orders
contrary to the express wishes of their clients, the Department
emphasizes that paragraph (a)(1) is intended to ensure terms and
conditions in clearance orders comply with employment-related laws. It
does not require or compel agents/attorneys to violate any legal or
ethical duties to their clients. To the extent an employer includes
terms or conditions that violate employment-related laws, the
employer's agent or attorney--who has professional and ethical duties
relating to representation of the employer--would advise the employer
to bring the term or condition into compliance. Discontinuation of
services would not apply to an agent or attorney who attempted to bring
the employer's terms and conditions into compliance. On the
[[Page 33922]]
other hand, a SWA would initiate discontinuation procedures where, for
example, an agent/attorney instructs an employer to include in its
clearance order a rate of pay that is contrary to employment-related
laws and refuses to correct the rate of pay. An agent or attorney who
is blameless would not be subject to discontinuation based on the acts
of the employer, just as an employer who is blameless would not be
subject to discontinuation based on the acts of their agent/attorney.
Additionally, where there is, in fact, a good-faith disagreement with
the SWA as to whether a term or condition complies, the procedures at
Sec. 658.502(a)(1) allow for submission of evidence to show that the
terms and conditions are not contrary to employment-related laws; and
the procedures at Sec. Sec. 658.503 and 658.504 allow for appeal.
The Department proposed 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 proposed to remove language in paragraph (a)(2) that currently
limits this basis for discontinuation to only those assurances
involving employment-related laws. The Department proposed 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.
Wafla opposed the proposed removal of language that limits this
basis for discontinuation to assurances involving employment-related
laws. Wafla stated that the proposed change broadens the scope of
discontinuation beyond employment related laws, and that
discontinuation of services can be for any H-2A assurance violation.
The Department notes that the proposal did not broaden the scope of
discontinuation beyond those assurances listed in Sec. 653.501(c)(3).
The proposed change to paragraph (a)(2) was made because the Department
thought that discontinuation was appropriate where an employer refused
to include any assurance required by subpart F of Part 653. The
proposed change makes clear that employers must provide all assurances
described at Sec. 653.501(c)(3) when requesting the placement of a job
order into clearance, and that SWAs must provide the same treatment to
all required assurances (i.e., the SWA will initiate discontinuation
for employers' refusals), regardless of which assurance is involved.
For these reasons and the reasons set forth in the NPRM, the Department
adopts paragraph (a)(2) as proposed.
The Department proposed 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. It
proposed no changes to the regulatory text that states that SWA
officials must initiate procedures for discontinuation of services to
employers who are found by a final determination by an appropriate
enforcement agency to have violated any employment-related laws and
notification of this final determination has been provided to the
Department or the SWA by that enforcement agency. The Department
received numerous comments on proposed paragraph (a)(4), though the
vast majority of them related to this existing language in Sec.
658.501(a)(4) where no changes were proposed.
The Department also requested comments on whether the SWAs should
also initiate discontinuation of services to employers who are debarred
from participation in any of the Department's foreign labor
certification programs. The Department did not receive many comments in
relation to this question.
After careful consideration of the comments, the Department has
adopted the proposed language without change. The comments are
discussed in detail below.
In relation to the portion of (a)(4) that states that
discontinuation of services must be initiated for employers who are
found by a final determination by an appropriate enforcement agency to
have violated any employment-related laws, the Department received many
comments expressing opposition. IFPA, U.S. Custom Harvesters, Inc.,
GFVGA, NHC, USApple, TIPA, Titan Farms, LLC, wafla, Texas Cotton
Ginners' Association, Wyoming Department of Agriculture, Burley and
Dark Tobacco Producer Association, and a couple of individuals believed
that the ``new'' proposal would result in discontinuation of services
for minor infractions by employers who are acting in good faith to
comply with regulations. For example, wafla expressed concerns that
this proposal would allow discontinuation of services for minor
paperwork violations, or a lack of documented safety meeting records.
The commenters explained that there are a lot of regulations and stated
that even the best employers have unintentional violations as a result
of misunderstanding the requirements or conflicting guidance from
government agencies.
The commenters also alleged that the discontinuation of services
based on minor infractions would lead to delays in processing as well
as the cost of time for agents/attorneys to respond to the
discontinuation notice. Instead, they argued that discontinuation of
services should be a result of willful violations that affect the
health and safety of workers.
NCFC, Western Growers, AmericanHort, and Willoway Nurseries also
objected to this provision. They explained that sometimes WHD may cite
an employer for a violation but ultimately decide not to debar that
employer, and in such a case, it argued that the SWA should not then
effectively debar an employer by discontinuing services. They stated
that if the Federal government, via WHD, already conducted an
investigation and issued what it viewed to be an appropriate citation
without debarment, then the SWA should not then subsequently try to
issue another punitive sentence against the employer by discontinuing
services.
The Department thanks the commenters for their concerns but
believes they are unfounded. The provision of paragraph (a)(4) relating
to a final determination by an appropriate enforcement agency to have
violated any employment-related laws is not new--it has been a part of
the regulations for over 40 years and the Department did not propose
any changes regarding that aspect of paragraph (a)(4) in this
rulemaking.
Regardless, the Department disagrees with the argument that more
minor infractions, as opposed to willful violations, do not warrant a
sanction such as discontinuation of services--if an employer has been
found by an enforcement agency to have violated an employment-related
law, then discontinuation is appropriate to protect the integrity of
the ES system and protect workers. They may rebut the proposed
discontinuation or apply for reinstatement after a final
discontinuation order has been issued by, among other methods,
providing evidence that they have adequately responded to any findings,
including any restitution or payment of fines. The Department does not
believe it unreasonable to require an employer, who has been found in a
final determination to have violated an employment-related law to have
to remedy the violation or appeal the discontinuation before they are
permitted to recruit workers through the ES system. While the
Department does not think that this provision will lead to any greater
delays than may currently
[[Page 33923]]
occur under this pre-existing ground, as noted above the Department
thinks that the benefit of the provision outweighs any potential delay
that may occur.
Finally, the Department is also unconvinced by the notion that if
an enforcement agency, such as WHD, decides to issue a final
determination against an employer, but ultimately not debar the
employer, this prevents or should prevent the SWA from discontinuing
services. Debarment is not the same as a discontinuation of services--
while discontinuation would preclude an employer's ability to access
the H-2A program, they are different actions taken by different actors
with different consequences under different authority. As discussed in
the NPRM, the goal of discontinuation is to protect workers and the
integrity of the ES system by preventing employers from using the
system to recruit workers if they have misused the ES system or
otherwise engaged in actions that are harmful to workers until they
have corrected the issue(s) giving rise to their discontinuation.
Sections 658.502 and 658.504 explain that an employer can respond to a
proposed discontinuation or seek reinstatement if they have responded
to the findings of an enforcement agency, including payment of
restitution or fines, and establish that they have addressed or revised
any policies, procedures, or conditions that gave rise to the
violation(s). The ability to seek reinstatement is an important
distinction from debarment, which is for a set period of time
regardless of any remedial action taken by the debarred entity.
IFPA, GFVGA, NHC, and an anonymous commenter stated that this
proposal to allow for discontinuation of services for an employment-law
related violation was overly punitive because the underlying issue
would have already been cited by another agency, and a final
determination would have already been reached. They also argued that
this went beyond the legal purview of the SWA in its review of the job
orders.
The Department disagrees. Again, as noted above, the Department
thinks that it is reasonable for an employer to have to remedy their
violations before being allowed to receive services. Until those
violations are remedied, it is appropriate and well within the purview
of a SWA to discontinue ES services to better protect workers, and to
maintain the proper functioning of the ES system by serving employers
who demonstrate the ability to comply with State and Federal laws
governing the employment relationship.
Wafla, USA Farmers, AgriMACS, Inc., and one individual argued that
this proposal lacked due process, but it is unclear if this comment
related specifically to provision (a)(4), or how this section lacks due
process. USA Farmers elaborated that with regard to H-2A applications,
the Department will not refuse to process them simply because an
employer is under investigation by WHD, for example, but in this
context, an employer would have their services discontinued without an
appeals process.
The SWA must initiate discontinuation of services to employers who
are found by a final determination by an appropriate enforcement agency
to have violated employment-related laws, or those who have already
been debarred. First, in both instances, employees would have had the
opportunity to go through appropriate procedures, including, in the
case of H-2A and H-2B findings (including those resulting in
debarment), a robust appellate process. Second, this provision only
relates to the initiation of the discontinuation of services. Employers
will still have 20 working days to respond to the discontinuation
notice pursuant to Sec. 658.502 and may appeal a final determination
regarding discontinuation of services pursuant to Sec. 658.504. As
discussed throughout the preamble, if a final determination regarding
discontinuation is appealed then the effect of the discontinuation is
generally stayed. The Department therefore thinks that this provides
entities with ample due process protections.
U.S. Custom Harvesters, Inc., IFPA, GFVGA, NHC, TIPA, and one
individual requested the Department identify a look back period so that
they could know whether noncompliance adjudications or settlements from
previous years would affect them.
In the NPRM, in the section of the preamble discussing Sec.
658.501(b), the Department had asked commenters if SWAs should limit
their examination of previous labor certifications or potential
violations of a labor certification to a certain time period. 88 FR at
63763. The Department believes that this comment is more appropriately
addressed in the section relating to Sec. 658.501(b). To the extent
the comment is relevant to this provision, while the Department did not
propose a look-back period or suggest that it was contemplating adding
such a provision, we note that H-2A and H-2B program debarments are
time limited and that an employer whose services have been discontinued
as a result of an H-2A or H-2B debarment can seek reinstatement once
their period of debarment has ended.
An anonymous commenter opposed the new provision of the regulation
that requires discontinuation for employers who are currently debarred
from participating in the H-2A or H-2B foreign labor certification
programs pursuant to Sec. 655.73 or Sec. 655.182 of this chapter or
29 CFR 501.20 or 503.24. They argued that this would be overly punitive
and that debarment is a harsh enough punishment. They explained that if
they were a farm that was dependent on H-2A workers and was debarred,
and then subsequently not able to hire U.S. workers via the SWA, they
would need to go out of business or alter their business significantly.
Another anonymous commenter stated it did not support expanding or
empowering SWA authority under a Federal program.
The Department does not believe it punitive to initiate
discontinuation of services against a debarred H-2A or H-2B employer,
but rather believes it is necessary to protect workers and effectuate
the purpose of the ES system, which is to improve the functioning of
the nation's labor markets by bringing together individuals who are
seeking employment and employers who are seeking workers. As stated in
the NPRM, the Department recognizes that many employers who use the ARS
also seek temporary agricultural 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. 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.
This requirement will protect workers who use the ARS by ensuring
that ES offices do not place U.S. workers with H-2A/H-2B debarred
employers during any such period of debarment. Debarment is a serious
sanction that, in the case of H-2A employers for example, results from
a finding not only that an employer violated a material term or
condition of its temporary agricultural labor certification, but also
that the violation is so substantial as to merit debarment, and it is
imposed only after an employer has exhausted or forfeited an
opportunity to respond to
[[Page 33924]]
the debarment action, appeal it, or both. Violations may be 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,
among other substantial violations. Entities that have committed such
violations should be excluded from participation in the ES, and the
Department is better a
[…truncated; see source link]Indexed from Federal Register on April 29, 2024.
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.