By Hannah Dean
(photo courtesy of pixabay.com)
The U.S. Department of Labor (DOL) recently proposed a rule that bolsters protections for migrant farmworkers participating in the H-2A visa program.[1] The proposed rule focuses on protecting the workers’ labor organizing activities and enhancing the DOL’s ability to take enforcement actions against companies that violate the H-2A program rules.[2]
The H-2A visa program provides nonimmigrant visas to foreign-born workers who come to the U.S. to “perform agricultural labor or services” on a temporary or seasonal basis.[3] It was created in 1986 as a response to a shortage of agricultural workers in the U.S. and has been used since by many agricultural employers across the country.[4] Before issuing an H-2A visa to an employer that petitions for one, the Secretary of Labor must certify that there are not enough workers to perform the labor or services requested by the petition and that the employment of the foreign worker in that labor will not adversely affect the wages and working conditions of workers in the U.S. who are similarly employed.[5] The number of H-2A visas certified by the DOL increased from 75,000 in 2010 to 372,000 in 2022, and unlike other visa categories, there are no caps on the number of H-2A visas that the DOL is permitted to certify annually.[6]
The H-2A program appears to provide a solution to agricultural worker shortages that benefits both the employer, which receives workers, and the workers, who can earn significantly more than they would earn on a farm in their home country.[7] However, the program also ties the worker directly to their employer.[8] If the worker experiences abuse or wage theft by their employer, they cannot leave the job without risking their ability to legally remain in the U.S. and their ability to make money.[9] The same is true for poor working conditions, which is an issue that agricultural workers often face due to extreme heat and the physical demands of the job.[10] H-2A employers are required to provide housing and meals to workers, but inadequate or unsafe housing and limited food provision have also been cited as an ongoing problem.[11] This dynamic between the employer and the workers creates significant opportunities for abuse, which aligns with the increase in reports of labor abuse that the DOL has received in the past five years.[12] It collected more than $5.8 million in back wages for more than 7,000 H-2A workers in 2021 alone.[13]
In response to growing concerns aboutworker abuse within the H-2A program, the DOL made changes to the program in 2022 via a final rule that expanded federal authority to discipline abusive employers and required employers to improve working conditions for H-2A employees.[14] However, the DOL struggles to enforce compliance by every employer with the program rules, which led it to propose this new rule that expands the workers’ ability to advocate for compliance and better working conditions.[15] The proposed rule attributes ongoing worker shortages in the agricultural sector to the lack of organizing protections for agricultural workers, which has caused “worsening working conditions.”[16] It further asserts that improved organizing protections for H-2A workers are necessary to prevent adverse effects on the working conditions of domestic agricultural workers, as required by the H-2A program rules.[17] It is important to note here that all agricultural workers are excluded from the National Labor Relations Act, which would otherwise protect them from employer retaliation in response to a worker’s participation in or support of a labor union.[18]
To that end, the rule expands anti-retaliation regulation to protect H-2A workers who engage in collective action for better working conditions and requires employers to refrain from ‘captive audience meetings’ where they dissuade workers from organizing or joining a union.[19] It also requires employers to allow workers to designate a union representative to attend disciplinary meetings and permits union representatives to make visits to employer-provided housing.[20] The proposed rule requires employers to provide a list of H-2A workers it employs with included contact information to a requesting labor organization, which supporters of the rule say could help address labor trafficking concerns and permit union representatives to communicate with farmworkers.[21]
Opponents of the proposed rule argued that the existing H-2A regulations are very complicated and difficult for employers to comply with, and therefore allowing union visits to work sites and adding to the “tangled web” of H-2A regulations could lead to citations over minor violations of the rules.[22] They also expressed concern that the proposed rule would end up empowering unions more than farmworkers and could disincentivize agricultural employers from participating in the H-2A program at all.[23]
The proposed rule, titled “Improving Protections for Workers in Temporary Agricultural Employment in the United States,” has been submitted to the Federal Register and is currently open for public comment until November 14th, 2023.[24]
[1] https://www.dol.gov/newsroom/releases/eta/eta20230912.
[2] Id.
[3] Id.
[4] Id.
[5] https://futuroinvestigates.org/investigative-stories/head-down/human-trafficking-or-a-guest-worker-program-h-2as-systemic-issues-result-in-catastrophic-violations/.
[6] Id.
[7] https://futuroinvestigates.org/investigative-stories/head-down/human-trafficking-or-a-guest-worker-program-h-2as-systemic-issues-result-in-catastrophic-violations/.
[8] Id.
[9] Id.
[10] Id.
[11] https://www.dol.gov/newsroom/releases/whd/whd20221006.
[12] Id.
[13] https://www.law360.com/articles/1720656?from_lnh=true.
[14] Id.
[15] Id.
[16] Id.
[17] Id.
[18] https://www.nps.gov/articles/000/a-new-era-of-farm-worker-organizing.htm. Some states have enacted their own legislation affording agricultural workers the rights granted by the National Labor Relations Act.
[19] Id.
[20] https://www.law360.com/articles/1721203?from_lnh=true.
[21] https://www.law360.com/articles/1721203?from_lnh=true, https://www.dol.gov/newsroom/releases/eta/eta20230912.
[22] https://www.law360.com/articles/1721203?from_lnh=true.
[23] Id.
[24] https://www.dol.gov/agencies/eta/foreign-labor/h2a-nprm.
