Rule Would Bolster H-2A Farmworker Protections

Josh McGillLabor, Regulation

Photo by Florida Department of Citrus

The U.S. Department of Labor (DOL) on Sept. 12 proposed a new rule that would strengthen protections for temporary foreign farmworkers in the H-2A program. This is the third proposed regulation tied specifically to the H-2A program in the last year. It follows the final DOL rule published in October 2022 that modernized key aspects of the H-2A program and the March 2023 rule that modified the methodology used to determine the hourly adverse effect wage rates.

The vast majority of Florida citrus is harvested by H-2A workers.

The proposed new rule would:

  • Add new protections for worker self-advocacy, including expanding and clarifying activities protected by the anti-retaliation provisions and rights of workers to invite and accept guests — including labor organizations — to employer-furnished housing.
  • Clarify when a termination is “for cause.” The proposed rule would clarify that an employer only terminates a worker “for cause” when the worker either fails to meet pre-specified productivity standards or fails to comply with employer policies after the employer applies a system of progressive discipline.
  • Propose new disclosure requirements to make foreign labor recruitment more transparent. The proposed rule would require employers to provide a copy of all agreements with any agent or recruiter the employer engages in recruiting prospective H-2A workers to the department, regardless of whether the agent is in the United States or abroad.
  • Make wages more predictable for agriculture workers by making new wage rates applicable immediately upon their publication in the Federal Register.
  • Add a seat belt requirement to transportation of agricultural workers.
  • Enhance enforcement to improve program integrity by streamlining the debarment process for businesses that violate H-2A program rules.

Upon publication in the Federal Register, the notice of proposed rulemaking will be open for public comment for 60 days. The department will consider all comments received before publishing a final rule.

This notice of proposed rule comes ahead of a similar rule anticipated from the U.S. Department of Homeland Security.

The Florida Fruit & Vegetable Association will prepare formal comments and solicit H-2A program user comments for submission.

Learn more about the proposed rule and instructions for submitting comments.

Sources: DOL and FFVA

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