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Code of Federal Regulations Pertaining to ESA |
| Labor |
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| Wage and Hour Division, Department of Labor |
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| Enforcement of Contractual Obligations for Temporary Alien Agricultural Workers Admitted Under Section 216 of the Immigration and Nationality Act |
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| General Provisions |
29 CFR 501.10 - Definitions.
- Section Number: 501.10
- Section Name: Definitions.
The definitions in paragraphs (a) through (d) are set forth for
purposes of this part. In addition, the definitions in paragraphs (e)
through (v) are promulgated at 20 CFR 655.100(b), are utilized herein,
and are incorporated and set forth for information purposes.
(a) Act and INA mean the Immigration and Nationality Act, as amended
(8 U.S.C. 1101 et seq.), with reference particularly to section 216.
(b) Administrative Law Judge (ALJ) means a person within the
Department of Labor Office of Administrative Law Judges appointed
pursuant to 5 U.S.C. 3105.
(c) Administrator means the Administrator of the Wage and Hour
Division, Employment Standards Administration, U.S. Department of Labor,
and such authorized representatives as may be designated to perform any
of the functions of the Administrator under this part.
(d) Work contract means all the material terms and conditions of
employment relating to wages, hours, working conditions, and other
benefits, including those terms and conditions required by the
applicable regulations in subpart B of 20 CFR part 655, Labor
Certification Process for Temporary Agricultural Employment in the
United States, and those contained in the Application for Alien
Employment Certification and job offer under that subpart, which
contract between the employer and the worker may be in the form of a
separate written document. In the absence of a separate written work
contract incorporating the required terms and conditions of employment,
entered into between the employer and the worker, the work contract at a
minimum shall be the terms of the job order included in the application
for temporary labor certification, and shall be enforced in accordance
with these regulations.
(e) Adverse effect wage rate (AEWR) means the wage rate which the
Director has determined must be offered and paid, as a minimum, to every
H-2A worker and every U.S. worker for a particular occupation and/or
area in which an employer employs or seeks to employ an H-2A worker so
that the wages of similarly employed U.S. workers will not be adversely
affected.
(f) Agricultural labor or services. Pursuant to section
101(a)(15)(ii)(a) of the INA (8 U.S.C. 1101(a)(15)(H)(ii)(a)),
``agricultural labor or services'' is defined for the purposes of this
subpart as either ``agricultural labor'' as defined and applied in
section 3121(g) of the Internal Revenue Code of 1954 (26 U.S.C. 3121(g))
or ``agriculture'' as defined and applied in section 3(f) of the Fair
Labor Standards Act of 1938 (29 U.S.C. 203(f)). An occupation included
in either statutory definition shall be ``agricultural labor or
services'', notwithstanding the exclusion of that occupation from the
other statutory definition. For informational purposes, the statutory
provisions are quoted below.
(1) Agricultural labor. Section 3121(g) of the Internal Revenue Code
of 1954 (26 U.S.C. 3121(g)) quoted as follows, defines the term
``agricultural labor'' to include all service performed:
(1) On a farm, in the employ of any person, in connection with
cultivating the soil, or in connection with raising or harvesting any
agricultural or horticultural commodity, including the raising,
shearing, feeding, caring for, training, and management of livestock,
bees, poultry, and furbearing animals and wildlife;
(2) Services performed in the employ of the owner or tenant or other
operator of a farm,
in connection with the operation, or maintenance of such farm and its
tools and equipment, or in salvaging timber or clearing land of brush
and other debris left by a hurricane, if the major part of such service
is performed on a farm;
(3) In connection with the production or harvesting of any commodity
defined as an agricultural commodity in section 15(g) of the
Agricultural Marketing Act, as amended (12 U.S.C. 1141j), or in
connection with the ginning of cotton, or in connection with the
operation or maintenance of ditches, canals, reservoirs, or waterways,
not owned or operated for profit, used exclusively for supplying and
storing water for farming purposes;
(4)(A) In the employ of the operator of a farm in handling,
planting, drying, packing, packaging, processing, freezing, grading,
storing, or delivering to storage or to market or to a carrier for
transportation to market, in its unmanufactured state, any agricultural
or horticultural commodity; but only if such operator produced more than
one-half of the commodity with respect to which such service is
performed;
(B) In the employ of a group of operators of farms (other than a
cooperative organization) in the performance of service described in
subparagraph (A), but only if such operators produced all of the
commodity with respect to which such service is performed. For purposes
of this subparagraph, any unincorporated group of operators shall be
deemed a cooperative organization if the number of operators comprising
such group is more than 20 at any time during the calendar quarter in
which such service is performed;
(C) The provisions of subparagraphs (A) and (B) shall not be deemed
to be applicable with respect to service performed in connection with
commercial canning or commercial freezing or in connection with any
agricultural or horticultural commodity after its delivery to a terminal
market for distribution for consumption; or
(5) On a farm operated for profit if such service his not in the
course of the employer's trade or business or is domestic service in a
private home of the employer.
As used in this subsection, the term farm includes stock, dairy,
poultry, fruit, fur-bearing animal, and truck farms, plantations,
ranches, nurseries, ranges, greenhouses or other similar structures used
primarily for the raising of agricultural or horticultural commodities,
and orchards.
(2) Agriculture. Section 203(f) of title 29, United States Code,
(section 3(f) of the Fair Labor Standards Act of 1938), quoted as
follows, defines agriculture to include:
(f) * * * farming in all its branches and among other things
includes the cultivation and tillage of the soil, dairying, the
production, cultivation, growing, and harvesting of any agricultural or
horticultural commodities (including commodities defined as agricultural
commodities in section 15(g) of the Agricultural Marketing Act, as
amended), the raising of livestock, bees, fur bearing animals, or
poultry, and any practices (including any forestry or lumbering
operations) performed by a farmer or on a farm as an incident to or in
conjunction with such farming operations, including preparation for
market, delivery to storage or to market or to carriers for
transportation to market.
(3) Agricultural commodity. Section 1141j(g) of title 12, United
States Code, (section 15(g) of the Agricultural Marketing Act, as
amended) quoted as follows, defines agricultural commodity to include:
(g) * * * in addition to other agricultural commodities, crude gum
(oleoresin) from a living tree, and the following products as processed
by the original producer of the crude gum (oleoresin) from which
derived: Gum spirits of turpentine, and gum rosin, as defined in section
92 of title 7.
(iv) Gum rosin. Section 92 of title 7, United States Code, quoted as
follows, defines gum spirits of turpentine and gum rosin as--
(c) Gum spirits of turpentine means spirits of turpentine made from
gum (oleoresin) from a living tree.
* * * * *
(g) Gum rosin means rosin remaining after the distillation of gum
spirits of turpentine.
(g) Of a temporary or seasonal nature--(1) On a seasonal or other
temporary basis. For the purposes of this subpart of a temporary or
seasonal nature means on a seasonal or other temporary basis, as defined
in the Employment Standards Administration's Wage and Hour Division's
regulation at 29 CFR 500.20 under the Migrant and Seasonal Agricultural
Worker Protection Act (MSPA). For informational purposes Sec. 500.20 as
it pertains to seasonal or temporary basis is quoted below.
(2) MSPA definition. For information purposes, the definition of on
a seasonal or other temporary basis, as set forth at Sec. 500.20 of this
title, is provided below:
On a seasonal or other temporary basis means:
* * * * *
Labor is performed on a seasonal basis, where, ordinarily, the
employment pertains to or is of the kind exclusively performed at
certain seasons or periods of the year and which, from its nature, may
not be continuous or carried on throughout the year. A worker who moves
from one seasonal activity to another, while employed in agriculture or
performing agricultural labor, is employed on a seasonal basis even
though he may continue to be employed during a major portion of the
year.
* * * * *
A worker is employed on other temporary basis where he is employed
for a limited time only or the performance is contemplated for a
particular piece of work, usually of short duration. Generally,
employment, which is contemplated to continue indefinitely, is not
temporary.
* * * * *
On a seasonal or other temporary basis does not include the
employment of any foreman or other supervisory employee who is employed
by a specific agricultural employer or agricultural association
essentially on a year round basis.
* * * * *
On a seasonal or other temporary basis does not include the
employment of any worker who is living at his permanent place of
residence, when that worker is employed by a specific agricultural
employer or agricultural association on essentially a year round basis
to perform a variety of tasks for his employer and is not primarily
employed to do field work.
(3) Temporary. For the purpose of this subpart, the definition of
``temporary'' in paragraph (c)(2)(ii) of this section refers to any job
opportunity covered by this subpart where the employer needs a worker
for a position, either temporary or permanent, for a limited period of
time, which shall be for less than one year, unless the original
temporary alien agricultural labor certification is extended based on
unforeseen circumstances, pursuant to Sec. 655.106(c)(3) of this title.
(h) DOL means the U.S. Department of Labor.
(i) Employer means a person, firm, corporation or other association
or organization which suffers or permits a person to work and (1) which
has a location within the United States to which U.S. workers may be
referred for employment, and which proposes to employ workers at a place
within the United States and (2) which has an employer relationship with
respect to employees under this subpart as indicated by the fact that it
may hire, pay, fire, supervise or otherwise control the work of any such
employee. An association of employers shall be considered the sole
employer if it alone has the indicia of an employer set forth in this
definition. Such an association, however, shall be considered as a joint
employer with an employer member if it shares with the employer member
one or more of the definitional indicia.
(j) Employment Service (ES) and Employment Service (ES) System mean,
collectively, the USES, the State agencies, the local offices, and the
ETA regional offices.
(k) Employment Standards Administration means the agency within the
Department of Labor (DOL), which includes the Wage and Hour Division,
and which is charged with the carrying out certain functions of the
Secretary under the INA.
(l) Employment and Training Administration (ETA) means the agency
within the Department of Labor (DOL) which includes the U.S. Employment
Service (USES).
(m) H-2A worker means any nonimmigrant alien admitted to the United
States for agricultural labor or services of a temporary or seasonal
nature under section 101(a)(15)(H)(ii)(a) of the INA (8 U.S.C.
1101(a)(15)(H)(ii)(a)).
(n) Immigration and Naturalization Service (INS) means the component
of the U.S. Department of Justice which makes the determination under
the INA on whether or not to grant visa petitions to employers seeking
H-2A workers to perform temporary agricultural work in the United
States.
(o) Job offer means the offer made by an employer or potential
employer of H-2A workers to both U.S. and H-2A workers describing all
the material terms and conditions of employment, including those
relating to wages, working conditions, and other benefits.
(p) Secretary means the Secretary of Labor or the Secretary's
designee.
(q) State agency means the State employment service agency
designated under section 4 of the Wagner-Peyser
Act to cooperate with the USES in the operation of the ES System.
(r) Solicitor of Labor means the Solicitor, U.S. Department of
Labor, and includes employees of the Office of the Solicitor of Labor
designated by the Solicitor to perform functions of the Solicitor under
this subpart.
(s) Temporary alien agricultural labor certification means the
certification made by the Secretary of Labor with respect to an employer
seeking to file with INS a visa petition to import an alien as an H-2A
worker, pursuant to sections 101(a)(15)(H)(ii)(a), 214 (a) and (c), and
216 of the INA that (1) there are not sufficient workers who are able,
willing, and qualified, and who will be available at the time and place
needed, to perform the agricultural labor or services involved in the
petition, and (2) the employment of the alien in such agricultural labor
or services will not adversely affect the wages and working conditions
of workers in the United States similarly employed (8 U.S.C.
1101(a)(15)(H)(ii)(a), 1184 (a) and (c), and 1186).
(t) United States Employment Service (USES) means the agency of the
U.S. Department of Labor, established under the Wagner-Peyser Act, which
is charged with administering the national system of public employment
offices and carrying out certain functions of the Secretary under the
INA.
(u) United States (U.S.) worker means any worker who, whether a U.S.
national, a U.S. citizen, or an alien, is legally permitted to work in
the job opportunity within the United States (as defined at section
101(a)(38) of the INA (8 U.S.C. 1101(a)(38)).
(v) Wages means all forms of cash remuneration to a worker by an
employer in payment for personal services.
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