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WAGE AND HOUR DIVISION

UNITED STATES DEPARTMENT OF LABOR

You have applied for an H-2A Temporary Labor Certification (TLC)

On April 29, 2024, The U.S. Department of Labor published a final rule, “Improving Protections for Workers in Temporary Agricultural Employment in the United States.” The final rule is effective on June 28, 2024. At this time, the information on this page may not yet reflect the changes implemented by the final rule. The Department is currently reviewing its guidance and will soon update the information on this page, if necessary.

Here are some things you should know:

Recruitment of U.S. Workers

  • You must hire all U.S. job applicants who are able, willing, and qualified to perform the job and who are either referred to you or apply directly with you during the first 50% of the contract period.
  • You must review and fairly evaluate all applications of U.S. workers that are referred to you.
  • You must contact all former U.S. workers employed in the position in the past year to offer them the job and maintain a record of that contact unless they abandoned the worksite or were dismissed for cause.
  • You must keep a record of the name of each newspaper or other recruitment source and dates of advertisement, the name and contact information of each applicant, the decision to hire or not hire, and the reason for that decision for all applicants, including those who may show up “at the gate.”
  • No work restrictions (experience requirements, drug testing, background checks, etc.) may be used to disqualify any U.S. job applicants unless they are included in the job order and applied at least as stringently to H-2A workers.
  • All of your other workers performing any duties included in the job order or doing any agricultural work done by H-2A workers (i.e. non-H2A workers in corresponding employment) are entitled to all the rights and protections of the contract. For instance, you must pay these workers at least the H-2A required rate for work they perform identified in the contract or performed by H-2A workers (corresponding employment). You must also provide either transportation or reimburse the cost from point of recruitment to the worksite; provide free transportation between the housing site and worksite; and provide free housing to workers in corresponding employment who are unable to return to their permanent home within the same day.
  • If you terminate a worker in corresponding employment or if such a worker abandons employment, you must immediately contact ETA so there is an opportunity to investigate the circumstances and/or to refer other qualified U.S. workers to fill job openings.

Accuracy of the Job Offer

You must accurately state the terms and conditions of the job, including, among other things:

  • wage rates, including any bonuses, incentives, or additional compensation you intend to pay;
  • any and all deductions from pay;
  • hours of work that reflect a reasonable estimate of what you will provide on average over the life of the contract;
  • all work sites where workers will be employed; and
  • all facilities where workers will be housed.
  • You must provide the work contract or job order (Form ETA-790) to each H-2A worker no later than when the worker applies for the visa and to each non-h3A worker in corresponding employment by the first workday.

Employment Within the Scope of the TLC

You may employ H-2A workers ONLY under these conditions:

  • on behalf of the business listed on the job order;
  • at the location(s) named;
  • performing the named activities and in the named crops;
  • at the stated rate(s) of pay, and no less than any required local, state, or federal wages, including overtime (where required); and
  • during the certified time period.

Prohibited Fees

  • Workers may not pay any recruitment fees to obtain the job, may not pay any fees to obtain a visa, and may not kick back any part of their wages to you or anyone acting on your behalf.
  • You must contractually forbid any foreign labor contractor or recruiter from seeking or receiving payments from prospective workers for access to the job, or you may be held liable for any monies paid.

Wages, Records, and Required Items

  • You must pay wages due on the disclosed payday, which must be at least twice monthly.
  • You must pay the correct wage rate each payday. That rate is the highest of the adverse effect wage rate (AEWR), state or federal minimum wage, prevailing wage (including piece rates), or collective bargaining wage. If you offered a higher wage in the job order, then you must pay that higher wage. Also, be aware that some states require the payment of overtime to agricultural workers, and failure to pay required overtime would be a violation of the H-2A program requirements.
  • You must make all legally required payroll deductions and not make deductions prohibited by law or not disclosed in the work contract.
  • You must provide necessary tools, supplies, and equipment at no cost to the workers.
  • You must provide workers’ compensation insurance (or its equivalent if workers are excluded from state workers’ compensation) at no cost to the workers.
  • You must guarantee payment for three-fourths of all work hours included in the total period of the contract.
  • You must provide the required wage statement to each worker on or before each payday.
  • You must keep all required time and payroll records, including a record of pieces produced when paying piece rate.

Housing and Meals

  • You must provide housing to all workers under the contract (H-2A workers and workers in corresponding employment who cannot reasonably return to their permanent home within the same day).
  • Housing must be free of charge. You may not charge workers any rent or deposits.
  • You must ensure the employer-provided housing and/or rental/public accommodation housing remains in compliance with applicable safety and health standards.
  • You may use only housing facilities that have been inspected and certified prior to occupancy and disclosed in the job order.
  • You must disclose and provide either (1) three meals per day at no more than a DOL-specified cost or (2) free centralized cooking facilities for the workers. Any meals provided must be calorically sufficient and nutritionally balanced.

Transportation

  • You must provide or pay the cost of transportation and daily subsistence from the place where each H-2A worker and corresponding worker was recruited to the worksite. If the worker pays these costs out of pocket, you must reimburse these costs no later than when the worker completes 50% of the contract period.
  • You must provide daily transportation from the housing to the work site at no cost.
  • At the end of the contract period, you must pay for the workers’ return transportation and daily subsistence.
  • You must ensure that vehicles used to transport workers meet federal, state, and local safety requirements and are properly insured. All drivers must possess a valid license recognized by the state where they are driving.

Termination and Notice

  • You may terminate U.S. workers only for lawful job-related reasons.
  • If you terminate a worker without cause and the worker has no immediate subsequent H-2A employment, you must provide any outbound transportation and subsistence. Be careful to ensure you have complied with the requirement to offer three-fourths of the hours included in the contract period.
  • You must notify ETA of all terminations and resignations, including job abandonments. Also, you must notify DHS of all terminations and resignations of H-2A workers.

Notice of Rights, Cooperation, and Non-Retaliation

  • You must post the required workers’ rights poster in a location at the place of employment where it is visible to the workers.
  • You may not ask workers to waive any of their rights.
  • You must permit DOL to conduct any lawful audit or investigation of your compliance with the requirements of the H-2A program.
  • You may not interfere with a DOL investigation.
  • You may not, and must ensure that no one else, threatens, coerces, or otherwise discriminates against workers who participate in a DOL investigation, or otherwise exercise their rights.
  • You must not provide false information to DOL officials.
  • You must make records available for inspection upon request from DOL, from a worker, or from a worker’s representative.
  • You may not confiscate workers’ travel or identity documents.

Compliance with Other Laws

  • You must comply with all applicable federal, state, and local laws and regulations, including health and safety laws.
  • For example, you must comply with the Fair Labor Standards Act, if applicable.
  • Additionally, if you employ any non-H-2A workers, you must comply with the Migrant and Seasonal Agricultural Worker Protection Act, if applicable.
  • If you have employed 11 or more hand laborers in the field in any one day in the past 12 months, you must also comply with the field sanitation standards under the Occupational Safety and Health Act (requiring drinking water, toilets, and handwashing facilities in the fields).

 

This publication is for general information and is not to be considered in the same light as official statements of position contained in the regulations.