Sep 28, 2023

NCAE calls proposed H-2A changes ‘disconnected from reality’

The National Council of Agricultural Employers (NCAE) says wording used in a Department of Labor proposal to change H-2A temporary ag labor visa rules is “blatant vitriol” targeted at farmers forced to use the program to secure workers.

The DOL’s Wage and Hour Division Notice of Proposed Rulemaking, titled “Improving Protections for Workers in Temporary Agriculture Employment in the United States,” would add a number of measures that the Biden administration says are needed worker protections.

“The language used by the agency in its announcement was stunning in both its arrogance and its disconnectedness from the reality of the DOL’s own evidence in what seems an apparent attempt to cast shade falsely and disrespectfully at farmers and ranchers,” according to the NCAE statement. “It was demoralizing to the women and men who struggle mightily to always comply with a complex regulatory scheme, simply to keep their legacy farm and ranch business sustainable for the next generation.”

Some of the federal government’s proposed changes to the H-2A program would:

• Add protections for worker self-advocacy — Workers would be allowed to invite labor organization representatives to employee-provided housing, anti-retaliation protections would be expanded and clarified, employers would be required to give labor organizations names of workers and inform workers of the company’s stance on their “right to organize freely and without interference.”
• Clarify when a termination is “for cause” — Six conditions will have to be met to terminate a worker for cause, and because such an action affects future employment, the term should be clarified in regulations, according to the proposal.
• Make foreign labor recruitment more transparent — Employers would be required to provide copies of all agreements with an agent/recruiter used by the employer for H-2A workers, whether the agent/recruiters  are in the U.S. or other countries.
• Make wages more predictable — Wage rate increases would apply immediately instead of weeks after being published, to ensure workers are paid the most up-to-date rates, and employers who delay start dates would be required to pay workers for each day work is delayed, up to two weeks.

The NCAE works with members and government agencies to advance compliance with more than just H-2A regulations, according to the organization, and members regularly study cases and law related to the Fair Labor Standards Act, the Migrant and Seasonal Agricultural Worker Protection Act, as well as Occupational Safety and Health Administration rules.

“In fact, NCAE members and their human resource teams spend hundreds of hours becoming educated on agricultural employment law and best practices to maintain compliance and do this at significant expense to their operations,” according to the statement. “NCAE members do this because it is the right thing to do.”

According to DOL data, 5% of agricultural employers account for 95% of the violations uncovered in the agency’s investigations.

“These 5% are not NCAE members,” according to the NCAE. “Perhaps it is in this noncompliant subset of employers that WHD feels they had license to attack near unanimously compliant employers.”

The NCAE cites a 2021 U.S. Supreme Court ruling, Cedar Point, et al, v. Haddid, et al, which found that a regulation providing union activist’s access to farms and ranches was “an unconstitutional per se physical taking under the Fifth and Fourteenth Amendments.”

The DOL proposal is an end run around the Supreme Court and the Constitution of the United States of America, according to the NCAE.

“Employees were thrilled by the court’s (2021) action, believing they would no longer be subject to the incessant threats, coercion, intimidation, abuse, harassment and misrepresentation of union representatives at their place of work,” according to the NCAE. “(This proposal) would cast aside this most critical worker protection and again make them vulnerable to these union organizing tactics to which we and our employees object.”

The public comment period on the Federal Register is open until the end of the day, Nov. 14.