H-2A agricultural guest workers (“H-2A workers”) are in the United States as part of a visa program for short-term agricultural labor contracts, and their numbers continue to grow. H-2A visa programs are temporary, lasting only up to 10 months. The program is used to fill seasonal positions, mainly for labor-intensive harvesting of products such as fruits and vegetables. Between 2010 and 2019, there was an increase from about 79,000 to 258,000 H-2A workers. Around 10% of workers in the United States are employed with H-2A visas. Through the Immigration and Nationality Act, and accompanying rulemaking by the Department of Labor, H-2A workers are guaranteed certain rights and protections.
H-2A workers can be hired to specific jobs sites directly by the employer, an agricultural association, or a labor contractor. Employers are those who own a farm, ranch, or another type of “fixed-site” location. Employers are essentially a business that hires their own H-2A workers directly. An agricultural association is a collective of agricultural producers acting as a joint employer hiring H-2A workers for various job opportunities. Labor contractors are firms that hire the H-2A workers for farm labor and then assign them to various fixed-site employers. Regardless of who hired the H-2A worker, they are guaranteed the same rights and protections. In instances where a labor contractor hires the H-2A worker, the labor contractors are the ones who are responsible for ensuring that all of the H-2A worker’s rights and obligations are met for the duration of their participation in the H-2A visa program.
Employers are required by the Department of Labor to give every H-2A worker a copy of the work contract. This copy must be in a language that the employee can understand. For example, H-2A workers who only read Spanish must receive a copy in Spanish. In addition, the contract must be provided to each H-2A worker when the they apply for their visa. There are also specific terms that must be included in the contracts. The contracts must include the start and end dates of the job, hours to be worked, type of work to be performed, rates of pay, frequency of pay, deductions employers take that are not required by law, as well as the required benefits provided by the employer (i.e., transportation, housing, and workers compensation).
If the H-2A worker and employer do not enter into a specific written contract, the terms and conditions of the job posted by the State Workforce Agency and the certified Application for Temporary Employment Certification filed by the employer will serve as the legally binding contract. A State Workforce Agency is the agency in each state that is in charge of labor and employment. For example, in Arkansas, it is the Arkansas Department of Workforce Services while in Texas it is the Texas Workforce Commission.
For labor contractors, in addition to the above disclosures, they must provide all of the potential fixed-site locations that the H-2A workers could be working at as well as a description of the type of work at each location. Additionally, the labor contractor must include a copy of the contracts with the different fixed-site employers who expect H-2A workers to be provided.
When it comes to wages, H-2A workers have very specific rights. If the H-2A worker is paid on a piece-rate basis, based on the units of production rather than hourly, the employer must pay at least the prevailing piece-rate of the area where they are located. In addition, the piece-rate must be comparable to the hourly rates that the H-2A worker would receive if payment was based on hours.
If the job pays hourly, the employer must pay the highest of the adverse effect wage rate (“AEWR”), the prevailing hourly wage rate, the agreed-upon collective bargaining rate, or the federal or state minimum wage. The AEWR is calculated by the Department of Labor that sets the minimum amount H-2A workers must be paid based on their occupation and the area they are employed in so that it does not affect the wages of workers from the United States in similar jobs. For a more in-depth review of the AEWR and how it is calculated, click here. The prevailing hourly wage rate is based on small-scale surveys of wages employers pay in local areas for specific jobs. For more information on minimum wages for agricultural workers, click here.
H-2A workers have to be paid at least twice a month, and employers must provide an hours and earnings statement on or before each payday. This “pay stub” must contain the H-2A worker’s total earnings for the pay period, their hourly or piece-rate pay, the hours offered by the employer to the worker, the total hours actually worked, the total units produced (if paid on a piece-rate), itemized deductions, employer’s information, and the start and end dates of the pay period.
Employers of H-2A workers are required to provide transportation from the beginning to the end of the employment period. Employers must either provide, advance, or reimburse travel and related costs for H-2A workers from their home country to the United States to start their contract. Once the employment period ends, transportation from the United States back to the H-2A worker’s home country must also be provided. While H-2A workers are employed, employers must provide free transportation to and from job sites and the required employer-provided housing discussed below.
If the H-2A worker was hired using a labor contractor, the labor contractor is required to handle the transportation or must have a written guarantee that the fixed-site employer will be providing the transportation.
Employers of H-2A workers are required to provide free housing. The housing must meet the safety and living standards of all applicable local, state, and federal requirements. If there are no local or state standards for rentals or public housing, the federal temporary labor camp standard applies. The federal Occupational Safety and Health Administration (“OSHA”) temporary labor camp standards require a water supply, toilet facilities, and first aid facilities at every labor camp. Additionally, living and sleeping quarters are required to be located at least 500 feet away from livestock, and must be large enough to prevent overcrowding. The housing must protect against the elements, have at least 50 square feet of floor space and 7-foot ceilings, and must have a window. For the complete OSHA temporary labor camp standards, click here.
If the H-2A worker was hired using a labor contractor, the labor contractor is required to provide the housing or must have a written guarantee that the fixed-site employer will be providing compliant housing.
H-2A workers also receive the “three-fourth guarantee.” The three-fourths guarantee requires employers to offer employment to H-2A workers that equals at least 75%, or three-fourths, of the workdays in the employment contract. This means that in a 12-week period, where a normal workweek is five days, at 8 hours per day, the employer must guarantee at least 360 hours of work. If an employer fails to provide enough workdays, employers still have to pay the H-2A workers enough to reach the amount the workers would have received under the three-fourths guarantee.
Additionally, H-2A employers are legally required to provide all the required tools and equipment that H-2A workers need to complete the job at no cost. Worker compensation must be provided by the employer to all workers, at no cost to them, and a poster must be visible at the worksite that outlines all the rights that H-2A workers have. It is illegal for H-2A employers to accept payment in relation to the H-2A labor certification, and for employers to confiscate or hold H-2A workers’ passports, visas, or any other type of immigration documentation.
There are many rights available to H-2A workers that they should be fully aware of. If there are violations of any of these rights, H-2A workers have several options. In the case of potential violations regarding wages, hours, or housing, complaints can be filed with the H-2A worker’s local Wage and Hour Division office. If the potential violation is in relation to discrimination based on the H-2A worker’s immigration status or citizenship, charges can be filed with the Immigrant and Employee Rights Section of the Department of Justice.
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