WH-516 Confusion

This is just a short (Okay not so short) article to clarify some confusion regarding the notification of working terms and conditions that is required to be given to Migrant or Seasonal workers under the Migrant and Seasonal Worker Protection Act known simply as MSPA. MSPA requires a number of things of the employer to make sure there is no gray area about the employment.

First let’s look at some definitions and why we typically don’t have Seasonal Workers as you may think. Migrant workers are employees that leave their permanent home and come to work for an agricultural employer and stay over night for some period of time. If gins have MSPA workers we typically have Migrant Workers. Seasonal Workers are ‘local’ workers that are recruited by means of a day-haul operation. Day-haul means the employer drives to a gathering point and picks up however many employees he needs that day. They are normally paid daily for their work. Very few, if any, gins get employees by means of day-haul operations so it is not typical for a gin to have Seasonal Workers.

MSPA requires employers to provide a WH-516, or equivalent (more on this later), to all Migrant or Seasonal Agricultural Workers at the time of recruitment. Since we are more focused on the Migrant worker rather than seasonal, let’s explore what that means. The idea behind this disclosure is to ensure that the potential employee doesn’t leave his/her home for one promise and find a totally different situation when they arrive. This isn’t just foreign workers, it applies to anyone who leaves their permanent home to come to work for you for a season.

When is recruitment? Recruitment is whenever someone with authority to recruit or hire workers offers employment to the migrant worker. It could be by telephone, it could be in person, it could be by mail. However the contact to bring that worker to your gin, you need to give them (by mail, fax, photo, email etc) a WH-516 or equivalent. If that employee leaves home on his own and just shows up, then the recruitment is when they walk in for an application. So what about “equivalent” that has been mentioned a couple times? You can provide the information that is covered by the WH-516 in any manner you want. It can be a letter, it can be a format of your own choosing. It can even include things that are beyond the minimum including drug testing, and work rules etc. but it must have the minimum that is on the form. We recommend downloading the WH-516 and deciding for yourself if you want to use it or your own form but you need to make sure you’re providing them to your Migrant workers at the time of recruitment.

or equivalent. If that employee leaves home on his own and just shows up, then the recruitment is when they walk in for an application. So what about “equivalent” that has been mentioned a couple times? You can provide the information that is covered by the WH-516 in any manner you want. It can be a letter, it can be a format of your own choosing. It can even include things that are beyond the minimum including drug testing, and work rules etc. but it must have the minimum that is on the form. We recommend downloading the WH-516 and deciding for yourself if you want to use it or your own form but you need to make sure you’re providing them to your Migrant workers at the time of recruitment.

So what about Seasonal workers. This is where the confusion comes in. It seems that seasonal would mean what we do but in in the definition, it only applies to workers that are obtained using a day-haul operation. Those workers should be given a WH-516 as well. If your ‘local’ employees drive themselves (for the most part) to work and live locally, they are NOT Seasonal Agricultural Workers under the MSPA definition and therefore do not have to be provided a WH-516.

I hope this has clarified the issue some. Please take a few minutes and download the form and, as always, don’t hesitate to call us if you have questions.

DSF

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