DOL Releases Final Rule on H-2A Worker Protections

In September 2023, the U.S. Department of Labor (DOL) announced regulatory changes to the H-2A program in a new Notice of Proposed Rulemaking (NPRM) designed to enhance H-2A worker protections. The NPRM was subject to a 60-day public comment period. CLICK HERE to review the comments submitted by másLabor and AgWorks regarding the NPRM.

On Friday, April 26th, 2024, DOL released its Final Rule. Below is an itemized summary of the major provisions. Please note that the following list is not comprehensive and that the Final Rule contains a number of other provisions and procedural changes.

Expand items in the following list to see the proposed versus final rulings.

• Anti-Blacklisting / Retaliation

  Proposed Rule: Strengthened protections against blacklisting and retaliation by employers against workers who exercise their rights or raise concerns about their wages or working conditions.

  Final Rule: This provision was adopted in the Final Rule with only minor technical changes.

• Housing Access

  Proposed Rule: Requirement for employers to give labor organizations (e.g., union groups, farmworker advocates, etc.) access to worker housing and expand farmworkers' right to invite social guests into the housing property.

  Final Rule: This provision was NOT adopted in the Final Rule. In response to stakeholder concerns, DOL eliminated the housing access provision and simply noted that workers may invite guests to housing, subject to reasonable employer restrictions.

• Terminations for Cause

  Proposed Rule: New restrictions on employers' ability to terminate workers, including the imposition of a mandatory progressive disciplinary scheme and procedural safeguards for workers.

  Final Rule: This provision was adopted in the Final Rule with minor changes. In response to our comments, DOL provided additional clarification and context on its regulatory definitions and scope of the provisions.

• Management Disclosure

  Proposed Rule: Mandatory public disclosure of the names and contact information for all farm owners/shareholders, operators, managers, and supervisors or crew leaders who supervise farmworkers' work activities.

  Final Rule: This provision was adopted in the Final Rule with minor changes. In response to our comments, DOL clarified that ownership disclosure is limited to persons or entities with a controlling operational role in the business.

• Recruiter Disclosure

  Proposed Rule: Mandatory public disclosure of the names and contact information for any person or entity involved in recruiting foreign workers.

  Final Rule: This provision was adopted in the Final Rule.

• Worker Disclosure

  Proposed Rule: Mandatory disclosure of the names and contacting information for all farmworkers to any labor organization that requests such information.

  Final Rule: The provision was NOT adopted in the Final Rule. DOL agreed with stakeholder comments regarding privacy concerns and potential disclosure to authorized third-parties.

• AEWR Effective Date

  Proposed Rule: Abolition of the notice period for changes to the Adverse Effect Wage Rate (AEWR). New AEWRs effective immediately upon publication.

  Final Rule: This provision was adopted in the Final Rule, with the caveat that employers may choose to adjust the rate in the next pay period and simply offer backpay to workers from the effective date.

• Productivity Standards

  Proposed Rule: Requires express disclosure of a specific, quantifiable productivity standard (e.g., "X units per hour") imposed on workers as a condition of job retention. Employers may not terminate workers for qualitative performance issues.

  Final Rule: The productivity standard requirement was adopted in the Final Rule. In response to our comments, DOL clarified that employers may still use qualitative criteria to evaluate worker performance, and terminate workers who fail to perform to employer's reasonable expectations.

• Worker Empowerment

  Proposed Rule: Adopts numerous protections related to concerted activity, worker self-organization, and unionization activities.

  Final Rule: This provision was adopted in the Final Rule with minor changes. DOL modified the provision restricting employers from engaging in coercive speech to avoid interfering with employers' First Amendment free speech rights.

You may read the full Final Rule HERE.

The Final Rule is expected to be published in the Federal Register this week and will be effective 60 days after publication. Form changes on the government filings related to the Final Rule will be rolled out for applications submitted to DOL on or after August 29, 2024.

As always, the másLabor team is working diligently to review the new changes and will provide you with additional guidance and best practices at the earliest possible time. Subscribe to our mailing list to be notified of these updates.