Widespread Storm Damage Causing Decreased Labor Needs

If your operation has suffered an “Act of God,” you have options

The U.S. Department of Labor allows employer(s) to invoke the Contract Impossibility clause if the duties on your contract can no longer be performed or in the event you have a decreased need due to unforeseen circumstances beyond your control.

If you have any questions or would like to move forward, we ask that you contact us immediately to assist with the next steps. If the government grants your request, this will alleviate the additional burden of having unneeded foreign labor and also minimize your potential liability by relieving you from the full three-fourths guarantee obligation, by reducing the guarantee.

Required documentation

The following documentation will be needed to proceed with filing a request to invoke the Contract Impossibility clause:

• A written request to terminate the contract

  • The request will need to be addressed to the DOL Certifying Officer (CO) clearly explaining what happened and the relief requested (we can help you with this)

  • You may specify a date that relief is requested (even if it has already passed)

• Proof of the event, such as newspaper articles, industry bulletins, confirmation by the County Extension Agent, Department of Agriculture, or another pertinent source

• Contractors that utilize the program should obtain written verification from their fixed site grower(s)

An article by GFVGA regarding the recent storm damage includes contact information for local county agents and for Ted McAvoy, Production Extension Specialist.

Government decision

After filing, the government generally makes a decision within seven days after receipt of the request, but may request additional information. As the employer, you will continue to be responsible for the obligations under the work contract until receiving a favorable determination from the Certifying Officer. Keep in mind, if you have one or more visa holding workers on payroll, you may not terminate or lay off (for other than lawful job related reasons) any U.S. workers. 

Contract termination

In the event of termination of the contract, the employer must:

• Fulfill a three-fourths guarantee for the time that has elapsed from the start of the work contract to the time of its termination

• Make efforts to transfer the workers to other comparable employment acceptable to the workers, consistent with existing immigration law, as applicable

  • If a transfer is not affected, the employer must pay the non-local worker for any costs incurred by the worker for inbound transportation and daily subsistence to that employer’s place of employment; including reimbursing any deductions made for transportation and subsistence expenses to the place of employment (in the event you did not fully reimburse in the first workweek) and return the non-local worker, at the employer’s expense, to the place from which the worker (disregarding intervening employment) came to work for the employer, or transport the worker to the worker’s next certified H– 2A employer, whichever the worker prefers

  • NOTE: The return transportation requirement does not apply if the worker has contracted with a subsequent employer who has agreed to provide or pay for the workers transportation and subsistence expenses from the present employer’s worksite to the subsequent employer’s worksite.