The House Passes Two Immigration Bills… On to the Senate

The House of Representatives passed two immigration reform measures yesterday aimed at providing farm workers and others legal status and reforming the H-2A Program.

The more limited of the bills would allow for a path to citizenship for those that were brought here as minors. These are the so-called “DREAMERS”. This group has been able to work in this country for some time under an executive order in the Obama administration. President Trump tried several times to overturn the EO unsuccessfully. The Trump administration said that this was a job for the Congress, not the executive order.

The Dreamers have been working under what is referred to as “deferred action for childhood arrivals”. The bill would allow them to have a permanent status and a path to citizenship.

The second bill is the Farmworker Modernization Act (FWMA). This bill passed the House in December of 2019. The bill has significant reforms to the H-2A program and allows for those that have been working in the US illegally in agriculture to have a path to permanent status and possibly to citizenship. The bill isn’t without warts although many of the H-2A changes are things that agriculture has been working on for some time.

Several ag groups have supported the passage of the FWMA but many are on the sidelines until some changes can be discussed in the Senate including the American Farm Bureau.

Speaking of the Senate. We have been told that major immigration legislation will be passed out of the Senate but that’s not to say that these bills are dead. It will take some significant changes to get enough republicans to support the measures. We are monitoring these changes and since many of our members are now using the H-2A program, we are working with other commodity groups to protect our ability to have a reliable legal workforce going forward. Stay Tuned


AEWR To Be Posted Tomorrow

As previously reported, the 2021 Adverse Effect Wage Rate (Minimum wage for H-2A employers) was delayed due to legal activity over a proposed rule in the waning days of the Trump administration. The USDA wage survey results were released on Feb 11. Tomorrow the DoL will publish the AEWR for 2021 with the wages effective immediately upon publication.

What does this mean? If you don’t hire H-2A workers, then it doesn’t mean anything. If you are currently working H-2A employees then they and your corresponding domestic employees will need to be paid the new wage. If you don’t have any H-2A or won’t until the harvest season, the new wages will need to be paid for 2021.

Wages for 2021 are below.

State2021 AEWR

Your agent or contractor that you work with will be sending this information to you soon if they haven’t already but we wanted to make sure you had it for planning purposes.


H-2A AEWR Estimates for the Southeast

While not many in the cotton industry use H-2A its use seems to be increasing amongst gins in recent years. Late in 2020, the Trump administration froze the Adverse Effect Wage Rate (AEWR) for calendar year 2021 and changed the way wages for H-2A workers were to be calculated. Before the ink was dry, the rule was the subject of a law suit and stopped.

With that change in rule, the USDA had also announced that it was ceasing the wage survey that was used to calculate the AEWR. When the rule was stopped, the court ordered USDA to publish its annual report of wages by February 11. That report was released yesterday on time for the court order. Some very smart people have developed an estimate of the expected new AEWR which will be released later in February. Below you will find a table of the estimated AEWR for the southeastern states. I know it’s a shocker but all of the rates will be increasing in 2021. Please understand this is only an ESTIMATE based on past calculations using the newly released data. These are NOT the official numbers and will likely change a bit but not much.

State2020 AWRChange2021Est.AEWR
estimated AEWR based on USDA Wage Survey released 2.11.2021

The Southeastern states have smallest increases in the US. AL, GA and SC have increases of .85%. Florida has an increase of 3.16% expected and NC and VA H-2A employers should prepare for an increase of about 3.79%. Nationally, the average wage is expected to increase to $14.28 or a 4.3% change.

Correctly Calculating your DART Rate

In the previous article posted concerning OSHA 300A Form Posting, there was discussion on calculating average number of workers. This value is to be entered under the establishment information on the OSHA 300A Form. This calculation can give employers some confusion and incorrect numbers can cause problems for your DART rate.

The DART rate for your company comes into play when you transfer your 300A data over to the OSHA electronic database. DART stands for days away, restricted or transferred, and the number of workers and total hours worked affect this rate. If your DART rate is high, it could trigger OSHA to take a closer look at your facility. We have had several gins receive letters from OSHA concerning their higher-than-average DART rate but have not seen any additional actions from OSHA at this point. It is very important that OSHA receives correct data representing your facility.

Average number of employees is essentially the total number of workers paid during the year divided by the number of pay periods. Be sure to count every paycheck, including all salaried, full time, part time, seasonal, and temporary employee. This would even include the employee that only worked a few days and never returned but did receive a paycheck.

Let’s look at an example for calculating the average number of employees for the purpose of OSHA 300A and electronic reporting. It can be viewed as the number of employees or the number of paychecks written. If you paid 15 employees for 8 pay periods, 30 employees for 16 pay periods, and 8 employees for 28 pay periods, then your total number of employees would be (15×8) + (30×16) + (8×28) = 824 total employees. That number would then be divided by the total number of pay periods (52 for weekly, 26 for biweekly, etc.). If we assume weekly pay periods, the average number of employees for this example would be (824/52) = 15.8 rounded up to 16 average employees over the year. If this calculation is not correct it will have an effect on how OSHA calculates your dart rate.

The other part of this calculation to consider is the total number of hours worked and is just as important as the average number of employees. For hourly employees the total hours worked can just be pulled from your payroll system, but salaried employees there will have to be some estimations made if the data is not available. For salaried employees, take the time to make as accurate estimations as possible as this total number of hours worked plays a crucial role in OSHA correctly calculating DART rates for your facility. Additional examples and explanations can be found here OSHA Forms and Instructions

It may take a little more time and work to get accurate numbers for the average number of employees and the total hours worked, but it is important to get these numbers correct. If you do not, there is a risk of being labeled as a high risk workplace based on faulty numbers.

If there are any question concerning this topic or other OSHA related issues. Please give Southeastern Cotton Ginners Association a call.

OSHA Issues yet More Guidance on Combating Covid-19

In the days since Joe Biden took office on January 20 there have been a large number of executive orders. One of those executive orders directed the Occupational Safety and Health Administration to do more on Covid-19 including a new temporary standard. While OSHA hasn’t gone quite as far as a standard, they have issued guidance on combating Covid in the workplace, since the Executive Order was signed. This is actually the second guidance. The first, in 2020, referenced CDC guidance and deferred a lot to them.

The guidance from OSHA can be found on their webpage entitled : Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace. That page has all of the current guidance including encouraging employers to have a Covid Plan. The implication is that if you don’t have a plan and you have an outbreak, you very well could face a General Duty Clause Citation.

While most gins have made it through the season with few or very few issues with Covid, we encourage everyone to go to the site above and review the 16 Elements of a covid plan that OSHA is recommending. Additionally many states are allowing agricultural workers to be in the current group eligible for vaccination. You and your employees may be eligible but distribution is VERY localized and you need to contact your local health department if you don’t know.


What’s Your DART Rate?

A few gins have called us recently regarding a letter or email from OSHA regarding their DART Rate. So what is a DART Rate and do you know what yours is? A DART Rate is a measure of injuries and illnesses and is designed to be able to compare industry to industry and individual companies to an industry average. It is SUPPOSED to eliminate the size factor so that you can compare apples to apples. DART stands for Days Away Restricted or Transferred.

Ideally, the DART rate is the number of injuries that would be lost time or restricted an employer with 100 employees would have in a year’s time. It is based on the 200,000 hour base for 100 employees at 2000 hours each. Employers record injuries with days away, restricted or transferred on their OSHA 300 form. For the past few years, nearly all employers have been required to send their OSHA 300A summary information (this includes the DART information) to OSHA. This has evolved in to some gins getting letters.

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