H-2A Worker Protections Rule Dropped

Last Friday, the Department of Labor dropped the “Improving Protections for Workers in Temporary Agricultural Employment in the United States” Rule. This 600 page document outlines a number of significant changes to, primarily, the H-2A program that will impact these employers in a big way.

I have not had the pleasure of reading the whole 600 page document but the DoL has consolidated it to a website with links to various parts of the rule and tools to help employers. I will outline just a couple that will make your blood boil just a bit.

Immediate effectiveness of AEWR adjustments
The Adverse Effect Wage Rule (AEWR) is adjusted every year. The new AEWR is normally published in mid to late December with an effective date about the first of the new year… normally 14 days before it takes effect. The new rule makes the new AEWR effective immediately upon publishing. This means no time for the employer to prepare for the new wage or try to get finished up before the new wage takes effect. i.e. no warning.

Mandatory Disclosure of all recruiters
The new rule mandates that all recruiters for an H-2A employer must be disclosed in the documents when applying for the workers. We can only assume this is the beginning to crack down on illegal extortion some recruiters were making in foreign countries in order to recruit workers.

Anti-Retaliation Measures (Pro Union Measures)
It’s always been illegal to retaliate against workers for sticking up for their rights but this goes many steps beyond that. It requires employers to open their housing and gathering places to anyone the workers ‘invite’ in. This means you may not have total control over your own property since your housing may be on your premises.
The rule also adds anti-retaliation rules for employers doing almost ANYTHING to stop or try to convince workers not to unionize or “collectively protect themselves”.

There are many many more but this article is already too long. Please follow the Link below to the DoL’s page. You will find links there to the many aspects of the new rule and employer tools for compliance.

It is our expectation that this rule will be sued before it goes into effect but we wanted you to be aware of these changes as many gins that us the H-2A program will be making arrangements soon. Your agents or attorneys are scrambling to make sense of this HUGE and unnecessary rule. I am also attaching the National Council of Ag Employers response to the rule. MORE TO COME.