Proposed H-2A Regulatory Changes

U.S. Department of Labor announces additional regulatory changes to the H-2A program

This new Notice of Proposed Rulemaking (NPRM) comes on the heels of two prior efforts by the Biden Administration to reform the program – the first was the broader reform effort in Fall 2022, and the second was the rule changing the Adverse Effect Wage Rate (AEWR) methodology.

This third rulemaking effort specifically addresses worker protections and certain disclosure requirements pertaining to the foreign recruitment process.

Proposed program changes

Although less comprehensive in scope (and less impactful for employers), we nonetheless wish to make you aware of the proposed program changes, including: 

• Strengthening anti-blacklisting and other retaliation protections for workers who advocate or collectively organize for better working conditions;

• Expanding farmworker housing rights to permit guests and give labor organizations (e.g., unions) access to worker housing;

• Defining and setting forth specific criteria for terminating workers for cause; 

• Requiring immediate payment of new AEWR rates upon publication, rather than a phase-in period; 

• Requiring disclosure to DOL of all persons or entities involved in the recruitment of foreign workers (as is currently done in the H-2B program); 

• Requiring additional disclosure of personal information for any individuals who manage or supervise H-2A workers or U.S. workers in corresponding employment; 

• Requiring express disclosure of minimum productivity standards employers will impose as a condition of job retention, even if employers do not pay a piece rate; 

• Requiring disclosure of specific overtime pay rates, if applicable; 

• Mandating seat belts in vehicles used to transport workers; 

• Expanding DOL’s authority to debar employers from the H-2A program for compliance violations; and 

• Clarifying the scope and applicability of some existing program requirements.

You can read the full proposed rule on the DOL site.

Next steps

The proposed rule is expected to be published in the Federal Register this week and will be open for a 60-day public comment period. As always, másLabor will be drafting and submitting comments on the proposed rule. We encourage all H-2A clients to submit their own comments, as well. We will provide additional information on the proposed rule and its impact after a further review of the document.