The Do’s and Don’ts of H-2A Onboarding: Contract Disclosure

H-2A employers often breathe a sigh of relief when they receive approval on their visa petition from U.S. Citizenship and Immigration Services (USCIS). Understandably so, given that this milestone marks the end of the government approval gauntlet, with all the scrutiny that it entails. From here, it’s simply a matter of scheduling the consular appointments, booking bus arrangements, and waiting for the workers to arrive. Right? 

Well, not so fast. There is still much work to be done, both to prepare for workers’ arrival and to get them situated once they’re here. This series spotlights best practices and guidance on various onboarding topics. Today’s focus is contract disclosure. 

Material Terms & Conditions 

The H-2A regulations require a comprehensive disclosure of all material terms and conditions of employment. This includes disclosure of basic job information (duties/tasks, requirements, working conditions, worksite locations, etc.) and details concerning wages, compensation, and benefits. The employer must provide the disclosure in writing, in a language understood by the worker as reasonable or necessary. 

Employers can satisfy the disclosure requirements by providing workers with a copy of the H-2A Job Order. Employers are also free, however, to provide workers with a separate written contract, provided that it matches the information disclosed on the Job Order.  

While either will satisfy the regulatory requirements, we generally advise the latter option – a separate contract gives the employer latitude to put the terms and conditions in a reader-friendly format (as opposed to a complicated and confusing government form). It also allows the employer to incorporate disclosures that may be required under state law. New York employers, for example, must provide workers with a sexual harassment policy.  

Work Rules, Policies, & Employee Handbooks 

The U.S. Department of Labor (DOL) does not require disclosure of basic work rules, policies, or Employee Handbook content as part of the H-2A filing process. Generally, the agency permits such documentation to be provided to workers when they arrive. 

We believe it is best practice, however, to include in the Job Order (and the contract disclosure) any work rules or policies that may materially affect working conditions. This includes policies related to termination for cause or other disciplinary actions. Providing this information up front (rather than after the worker arrives) may provide employers with additional cover should an unlawful termination dispute arise down the road. 

Timing of Disclosure 

Per the regulations, foreign workers should be provided with a copy of the work contract no later than the time the worker applies for the H-2A visa. All másLabor-preferred worker facilitators do so as a matter of course and obtain signatures from workers as proof of compliance. If using your own facilitator, you should always verify that the person or organization is providing the disclosures and keeping appropriate documentation. Their failure to do so might become your compliance issue down the road. 

The disclosure requirement also extends to U.S. workers in corresponding employment (i.e., performing any H-2A job duties). The regulations require disclosure to U.S. workers (including any seasonal hires made during the recruitment period) no later than the day work begins. 

A common mistake, however, is overlooking the fact that the H-2A regulations are not the only disclosure requirements for U.S. workers. Indeed, agricultural employers are also subject to such requirements under the Migrant and Seasonal Agricultural Worker Protection Act (MSPA), which may necessitate earlier disclosure depending on the workers’ circumstances.  

For migrant U.S. workers (i.e., domestic workers who travel from their permanent residence for the job), MSPA requires at the time of recruitment. And for seasonal U.S. workers (i.e., local workers employed on a seasonal basis), the disclosure must happen at the time they receive the employment offer. When interviewing and hiring your U.S. workers, it’s essential that you ascertain whether the workers may fall into one of these categories so you can ensure to give disclosures at the proper time.