TEGL27-06a1.pdf

ETA Advisory File Text

- 3 - Attachment A Special Guidelines for Occupations Involving Tree Planting and Related Reforestation Activities under the H-2B Program This section outlines special guidelines for employer applications involving tree planting and related reforestation occupations under the H-2B program. Unless otherwise specified in this attachment applications submitted for these occupations must comply with the requirements for H-2B applications contained in TEGL 21-06 issued on April 4 2007. I. Application of Temporary Need Standards Involving Tree Planting and Related Reforestation Occupations A. The employer s need for temporary non-agricultural services or labor in tree planting and related reforestation occupations must be justified to the NPC Certifying Officer under one of the following standards 1 a one-time occurrence 2 a seasonal need 3 a peakload need or 4 an intermittent need. B. Tree planting and reforestation are predominantly seasonal activities determined by climatic conditions occurring once or in some locations twice a year. Although some applications for relatively short itineraries can be justified under the peakload standard the employer s need for the services or labor to be performed may be more appropriately justified under the seasonal standard. Employers will typically bid on a sequence of work contracts linking each seasonal activity into an itinerary covering in some instances a major portion of the year. Since tree planting and related reforestation activities are covered by the Migrant and Seasonal Agricultural Worker Protection Act MSPA the MSPA definition of on a seasonal or other temporary basis cited at 29 CFR 500.20 provides guidance for determining whether the job offer is for temporary employment. Under MSPA seasonal basis means the following 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. The term other temporary basis refers to employment where a worker is employed for a limited time only or where performance is contemplated for a particular piece of work usually of short duration. Generally employment which is contemplated to continue indefinitely is not temporary. C. Whether the work to be performed as described in a tree planting application is temporary or permanent in nature will be determined by examining the employer s need for such workers for the duration of the itinerary. As with every request for H-2B labor certification an employer s seasonal need of longer than 10 months which is of a recurring nature must be supported by compelling evidence to the NPC Certifying Officer that the employer s need for such work and the job opportunity itself are not ongoing or otherwise permanent. A peakload need longer than 10 months will not be certified. - 4 - II. Special Application Filing Procedures A. An employer requesting temporary labor certification who meets the MSPA definition of a Farm Labor Contractor FLC see item II C 1 below must register as a FLC with the Department of Labor s Employment Standards Administration ESA before filing a H-2B application for workers who will be performing predominantly manual work which includes but is not limited to tree planting brush clearing and precommercial tree thinning The employer must also provide proof of current registration including proof of the registration of any Farm Labor Contractor Employees FLCE - see item II C 1 below at the time of filing. The FLC and FLCE certificate s of registration must be valid for the entire period of need. If the expiration date of the FLC or FLCE certificate s falls at any point during the period of need the employer must submit a signed written assurance that an application for renewing FLC and FLCE certificate s will be submitted timely to ESA in order to attempt to ensure that the certificate s are valid during the entire period of need. B. In situations where the employer is not properly registered as a FLC the SWA must promptly return the application with a notification that the SWA cannot accept a job opportunity for a reforestation related occupation when the employer is not registered as a FLC. C. Important FLC Terms and Information 1. A Farm Labor Contractor means any person other than an agricultural employer an agricultural association or an employee of an agricultural employer or agricultural association who for any money or other valuable consideration paid or promised to be paid performs any farm labor contracting activity. Farm labor contracting activities include recruiting soliciting hiring employing furnishing and or transporting workers. Agricultural employer includes any person who owns or operates a farm ranch processing establishment cannery gin packing shed or nursery or who produces or conditions seed. Agricultural association means any nonprofit or cooperative association of farmers growers or ranchers incorporated or qualified under applicable State law. A farm labor contractor employee is a person who performs a farm labor contracting activity solely on behalf of a farm labor contractor holding a valid Certificate of Registration and who is not an independent farm labor contractor who would be required to register under the Act in his own right. 2. For information on how to apply as a FLC or FLCE or to obtain a listing of persons and companies currently registered please contact the nearest office of the Employment Standards Administration ESA Wage and Hour Division. A current listing of the ESA District Offices can be obtained at the following website http www.dol.gov esa contacts whd america2.htm . 3. For information on individuals or companies who are not eligible to register as a FLC and may not engage in any activity as a FLC or as a Farm Labor Contractor Employee FLCE as defined by the Migrant and Seasonal Agricultural Worker Protection Act MSPA please visit the ESA website at the following address http www.dol.gov esa regs statutes whd mspa debar.htm . 4. Each facility or real property used to house and each vehicle used to transport workers must be described in the application. Housing and transport vehicles for MSPA-covered workers must be authorized for use on the FLC s certificate of - 5 - registration prior to use. Each driver of a vehicle transporting MSPA-covered workers must have an FLC or FLCE Farm Labor Contractor Employee certificate of registration that specifically authorizes driving see II A above concerning expiration dates of FLC or FLCE certificates . 5. Prior to granting approval on a temporary labor certification application the employer must submit a signed written assurance that all registrations permits and or other required licenses for vehicles housing or drivers will remain valid during the entire period of use. D. Employers have the option of filing a single master application covering multiple itineraries or separate applications for each itinerary where the tree planting or related reforestation work will begin. Alaska Hawaii and the U.S. territories may not be included in multi-state itineraries. 1. Employers are permitted to develop and file an itinerary under the following conditions a. If the itinerary includes worksite locations covering multiple SWAs the employer may submit a single application to the SWA where the itinerant employment will begin. In those instances where the start dates for each worksite location in the itinerary are exactly the same the employer may submit a single application to any one of the SWAs covered by the itinerary. If the employment crosses NPC jurisdictions as well the NPC that has jurisdiction over the SWA where the employment will begin shall process the application. b. In situations where the worksite locations cover multiple SWAs the states listed in the itinerary must be contiguous or located within close geographic proximity to one another . Itineraries where the worksite locations cover multiple states over widely separated geographic areas e.g. Texas Arkansas and Idaho or Georgia Alabama and Maine are not normal to reforestation occupations and will not be permitted. Such itineraries make it extremely difficult for the Department to satisfy its statutory mandate for determining the availability of domestic workers as a predicate to temporary labor certification. An employer who seeks H-2B workers for job opportunities in one or more remote downstream states must file separate applications and job orders for those locations. c. The employer must submit a signed and dated itinerary to the SWA with its application and include the following information The names physical addresses telephone numbers and wages offered in each worksite location. If no physical address and or telephone number is available the employer must provide as much geographic detail as possible e.g. county city township state corresponding to the itinerary time-frame regarding the location of the crews performing the work The total number of crews and total number of workers in each crew and The estimated start and end dates of work in each worksite location. Since the work of tree planting and related reforestation occupations are dependent on climatic conditions the precise ending dates and subsequent contracts may not be defined at the time of placing a job order. - 6 - 2. Employers are permitted to file a single master application for multiple itineraries under the following conditions a. When examining the starting locations of each itinerary the master application must be filed with the SWA where the largest number of job opportunities is being requested on the itineraries included in the master application. If the employment crosses NPC jurisdictions as well the NPC that has jurisdiction over the SWA where the employment will begin shall process the application. b. The application must consist only of crews working for a single employer. c. The total range of the crews start dates cannot be more than 14 calendar days apart. III. Special SWA Processing Instructions A. SWAs should accept agent designations on the ETA Form 750 which is similar to filing procedures under the H-2A program. The employer s application to the SWA must include a copy of the Agent Agreement or similar document to substantiate that specific authority has been granted to the agent. Note As under the H-2A program an agent who meets the definition of an FLC under MSPA see II A and II C 1 above must be registered as an FLC with ESA prior to engaging in any farm labor contracting activity. Recruiting and soliciting are farm labor contracting activities. If the employer is represented by an attorney the attorney must file a Notice of Appearance G-28 with the application package. B. SWAs must review all itineraries to ensure each is normal to tree planting and related reforestation occupations i.e. it is prevailing practice to start in a particular area what type of itineraries are normal for contracts and the H-2B program and contact the appropriate NPC Certifying Officer when they receive an itinerary that may not reflect prevailing practice. C. Employers can require tree planter workers to perform minor related reforestation job activities such as tree seedling pulling thinning seed cone gathering and pine straw gathering. These activities must be stipulated in the application and job order to apprise workers of the full scope of possible job duties. D. A job opportunity containing a wage offer below the prevailing wage will not be accepted. In accordance with TEGL 21-06 the SWA shall determine the prevailing wage guided by the regulations at 20 CFR 656.40 and in accordance with Employment and Training Administration Prevailing Wage Determination Policy Guidance Non-Agricultural Immigration Programs Revised May 9 2005. E. A job opportunity specifying that workers are to be paid on a piece rate basis must also guarantee the required hourly wage rate per pay period. The required hourly wage rate will be the prevailing wage rate determined by the SWA. If the piece rate does not result in average hourly piece rate earnings during the pay period at least equal to the amount the worker would have earned had the worker been paid at the hourly rate the worker s pay must be supplemented to increase the earnings to the equivalent hourly level. In situations where workers will be paid on a piece rate basis the job offer must identify the piece rate the length of the pay period and the ending day of the week of the payroll period and date and the minimum productivity required for job retention. - 7 - F. When commencing recruitment the SWA shall prepare a job order using the information on the application and place it into the SWA job bank system for 10 calendar days . During this period the SWA should refer qualified applicants who contact the local offices and those in its active job files. If the application indicates that work will be performed in other states in the itinerary the SWA shall clear the job order for 10 calendar days with the appropriate state s where the work is to be performed and accept for referral to the employer qualified applicants from the state s . G. During the 10-day posting of the job order the employer shall advertise the job opportunity in a newspaper of general circulation for 3 consecutive calendar days or in a readily available professional trade or ethnic publication whichever the SWA determines is most appropriate for the occupation and most likely to bring responses from U.S. workers. If the job opportunity is located in a rural area that does not have a newspaper with a daily edition the employer shall use a daily edition with the widest circulation in the nearest urban area or such other publication as determined by the SWA. H. The SWA intrastate and interstate job postings and employer advertisements must include the following information 1. Identify the employer s name and direct applicants to report or send resumes to the SWA for referral to the employer. 2. Address of the SWA local office and job order number. 3. Description of the job opportunity with particularity including a summary of the itinerary duties to be performed work hours and days and if applicable benefits e.g. housing and free transportation and incentive wages e.g. piece rates . 4. Starting locations and wages at each crew s starting location. 5. Notice if employees must purchase or rent tools. 6. Offer wages terms and conditions of employment which are not less favorable than those offered to the alien and are prevailing for the occupation activity and industry. 7. State the total number of job openings the employer intends to fill. 8. Notice that the job opportunity is temporary. I. SWAs should examine all deductions including housing transportation meals tools safety equipment etc. to determine if they are allowable in accordance with the Fair Labor Standards Act. To obtain more information on the propriety of the deduction s SWAs should contact the appropriate office of the ESA Wage and Hour Division. Consultation with the Wage and Hour Division is extremely important for those deductions which are for tools of the trade and other materials and services incidental to carrying on the employer s business. SWAs should contact the appropriate NPC if deductions are not in accordance with the prevailing practice for the area. SWA and ETA decisions regarding allowable deductions are not binding on the ESA Wage and Hour Division. - 8 - IV. Special Instructions for Completing the ETA Form 750 Part A A. To ensure consistency in completing applications employers and SWAs should use the following annotations a. Item 7 Employers should write See Attached Itinerary and follow the instructions for itineraries under section II.D. b. Item 10b Employer should note the maximum number of hours required for overtime. c. Item 12b Employer should note rate of pay which shall be time and a half. d. Item 13 - Production standards must be disclosed and the employer must provide documentation to the SWA substantiating any standard higher than the prevailing practice in the industry. Most reforestation employers have been in the reforestation business for a sufficient number of years so as to have records documents on file. Such records documents can include but are not limited to past production records improved equipment statement of how terrain will impact production rate. SWAs should use their best judgment based on prevailing practice to accept or deny the employer s justification. e. Item 15 Specific requirements such as requiring employees to purchase tools or housing accommodations should be noted. In accordance with the MSPA transportation housing and any other employee benefits to be provided and any costs to be charged for each of them must be disclosed to the workers. Further if there is a relationship between the employer and the store to which employees are directed to purchase or rent tools it must be disclosed to the employee. This information should also be stated in the job order. B. In accordance with procedures established under TEGL 21-06 the SWA shall advise the employer to correct any deficiencies in the application before commencing recruitment. SWAs are authorized to close cases in circumstances where the employer fails to address all deficiencies in the application correction letter or respond in a timely manner to a recruitment letter.