TEGL17-06-Ch1.pdf

ETA Advisory File Text

June 14 2011 2 The 1987 regulations remained in effect largely unchanged until the Department promulgated new H-2A regulations on December 18 2008. 73 FR 77110 Dec. 18 2008 the 2008 Final Rule . The 2008 Final Rule implemented an attestation-based application process and made several substantive changes to the program but retained the special procedures concept. After the Department determined that the 2008 Final Rule did not meet H-2A Program policy objectives the Department commenced another rulemaking process culminating in the publication of new H-2A regulations on February 12 2010. 75 FR 6884 Feb. 12 2010 the 2010 Final Rule . The 2010 Final Rule implements changes that affect special procedures for the occupations involved in the itinerant animal shearing industry. Section 20 CFR 655.102 provides the Office of Foreign Labor Certification OFLC Administrator with the authority to establish continue revise or revoke special procedures for processing of certain H-2A applications including those for itinerant animal shearing industry as long as those procedures do not deviate from the statutory requirements under the INA. This TEGL updates the special procedures previously established for occupations involved in itinerant animal shearing to reflect organizational changes in addition to new regulatory and policy objectives. It rescinds and replaces previous guidance disseminated under TEGL 17- 06 Special Procedures for Employers in the Itinerant Animal Shearing Industry Under the H- 2A Program. 4. Special Procedures . Attachment A outlines special procedures for applications submitted by employers in the itinerant animal shearing industry under the H-2A Program. Attachment B outlines standards for mobile housing applicable to employers in the itinerant animal shearing industry under the H-2A Program. Unless otherwise specified in Attachments A and B applications submitted for these occupations must comply with the requirements for processing H-2A applications contained at 20 CFR Part 655 Subpart B. Similarly unless otherwise specified job orders submitted for these occupations must comply with the requirements of 20 CFR Parts 655 Subpart B 653 Subparts B and F and 654. 5. Action Requested . The Chicago National Processing Center Chicago NPC Program Director and State Workforce Agency SWA Administrators are directed to immediately provide copies of these special procedures to all staff involved in processing H-2A labor certification applications from employers in the itinerant animal shearing industry. The revised special procedures will apply to all employer applications with a start date of need on or after October 1 2011. 6. Inquiries . Questions from SWA staff should be directed to the Chicago NPC. Questions from the Chicago NPC staff should be directed to the OFLC National Office. 7. Attachments . Attachment A Special Procedures Labor Certification Process for Applications in the Itinerant Animal Shearing Industry under the H-2A Program Attachment B Standards for Mobile Housing Applicable to Occupations in the Itinerant Animal Shearing Industry 1 ATTACHMENT A Special Procedures Labor Certification Process for Applications in the Itinerant Animal Shearing Industry under the H-2A Program This document outlines special procedures for applications submitted by employers in the itinerant animal shearing industry under the H-2A Program. Unless otherwise specified in this attachment applications submitted for shearing occupations must comply with the requirements for processing H-2A applications outlined in 20 CFR Part 655 Subpart B. Similarly unless otherwise specified job orders submitted for shearing occupations must comply with the requirements of 20 CFR Parts 655 Subpart B 653 Subparts B and F and 654. I. PREFILING PROCEDURES A. Offered Wage Rate 20 CFR 655.120 a . An employer must offer advertise in the course of its recruitment and pay a wage that is the highest of the Adverse Effect Wage Rate AEWR the prevailing hourly or piece rate the agreed-upon collective bargaining wage or the Federal or state minimum wage in effect at the time the itinerant animal shearing services are performed and for each state listed in an approved itinerary. In establishing agricultural prevailing piece rates for itinerant animal shearing activities the Department continues to use findings from prevailing wage surveys conducted by SWAs in accordance with the procedures in the ETA Handbook No. 385 . SWAs are required to transmit piece rate findings covering itinerant animal shearing activities to the OFLC between May 1 st and June 1 st of each calendar year. Following a review of the SWA- reported piece rate findings the OFLC will publish the new agricultural prevailing piece rates in a Federal Register notice with an immediate effective date. In circumstances where a SWA is unable to produce a piece rate finding for an occupation due to an inadequate sample size or another valid reason the wage setting procedures allow the OFLC to continue to issue a prevailing piece rate for that state based on the piece rate findings submitted by an adjoining or proximate SWA for the same or similar agricultural activities. If the OFLC cannot establish a prevailing wage rate by using comparable survey data from an adjoining or proximate SWA the OFLC will give consideration to aggregating survey data from the itinerant sheep shearing activities across states to create regional prevailing piece rates. When regional prevailing wages are considered the OFLC may use the U.S. Department of Agriculture s USDA production or farm resource regions or other groupings of states used to conduct the USDA Farm Labor Survey. B. Job Orders and SWA Review 20 CFR 655.121 . An employer engaged in animal shearing activities is allowed to submit a single Agricultural and Food Processing Clearance Order ETA Form 790 job order Office of Management and Budget OMB control number 1205-0134 and all appropriate attachments covering a planned itinerary of work in multiple states. If the job opportunity is located in more than one state either within the same area of intended employment or multiple areas of intended employment the employer must submit the job order and all attachments including a detailed itinerary to the SWA having jurisdiction over the anticipated worksite s where the work 2 is expected to begin. The employer must submit the job order no more than 75 calendar days and no less than 60 calendar days before the employer s first date of need. Unless otherwise specified in these special procedures the job order submitted to the SWA must satisfy the requirements for agricultural clearance orders outlined in 20 CFR 653 Subpart F and the requirements set forth in 20 CFR 655.122. The SWA will review the job order for regulatory compliance and will work with the employer to address any noted deficiencies. Upon its clearance of the job order the SWA must promptly place the job order in intrastate clearance and commence recruitment of U.S. workers. The job order shall remain active until 50 percent of the work contract period has elapsed for all SWAs in possession of the employer s job order including those receiving in interstate clearance under 20 CFR 655.150 unless otherwise advised by the Chicago NPC. C. Contents of Job Offers 20 CFR 655.122 . Unless otherwise specified in this section the content of job orders submitted to the SWAs and the Chicago NPC for animal shearing activities must comply with all of the requirements of 20 CFR Part 655 Subpart B 653 Subparts B and F and 20 CFR Part 654. 1. Job qualifications and requirements . Experience. Due to the unique nature of the work to be performed the job offer may specify that applicants possess up to 6 months of experience as a shearer covering multiple seasons and may require reference s to verify the experience performing these activities. Applicants must provide the name address and telephone number of any previous employer being used as a reference. Except as provided below the appropriateness of any other experience requirements must be substantiated by the employer and approved by the Chicago NPC. Shearing Method. An employer may require that the workers perform the Australian or free-style method of shearing as a lawful job-related requirement. A U.S. worker who otherwise qualifies for the job but whose experience has been limited to shearing using the tying method must be afforded a specified break-in period which may not be any fewer than 5 working days to improve his her performance and adapt to the free-style method. Completion of Itinerary. An animal shearing employer may require in its job offer that an applicant for the job must be available to work for the remainder of the entire animal shearing itinerary. An applicant referred to the employer after the labor certification has been granted but before 50 percent of the work contract period for the entire itinerary has elapsed must be available and willing to join the crew at whatever place the crew is located at the time and remain with the crew for the duration of the animal shearing itinerary. 2. Housing . The employer must state in its job offer that sufficient housing will be provided at no cost to H-2A workers and any workers in corresponding employment who are not reasonably able to return to their residence within the same day. Except 3 for long-established standards for mobile housing in Attachment B all employer- provided housing must comply with requirements set out in 20 CFR 655.122 d for the entire period of occupancy. An animal shearing employer whose itinerary requires mobile housing may provide mobile housing to its workers. 3. Workers compensation . The employer must provide workers compensation insurance coverage as described in 20 CFR 655.122 e in all states where shearing work will be performed. Prior to the issuance of the Temporary Labor Certification the employer must provide the Certifying Officer CO with proof of workers compensation coverage including the name of the insurance carrier the insurance policy number and proof of insurance for the dates of need or if appropriate proof of state law coverage for each state where the animal shearing work will be performed. In the event that the current coverage will expire before the end of the certified work contract period or the insurance statement does not include all of the information required under the regulations at 20 CFR 655.122 e the employer will be required to supplement its proof of workers compensation for that state before a final determination is due. Where the employer s coverage will expire before the end of the certified work contract period the employer may submit as proof of renewed coverage a signed and dated statement or letter showing proof of intent to renew and maintain coverage for the dates of need. The employer must maintain evidence that its workers compensation was renewed in the event the Department requests it. 4. Employer-provided items . An employer in the H-2A Program must provide to the worker without charge or deposit charge all tools supplies and equipment required to perform the duties assigned. The Department s regulations have previously recognized that the wage rates prevailing in the animal shearing industry reflect a historical and common practice of employees providing their own tools. Employers were permitted upon prior approval by the Department to require that workers provide their own tools. Alternatively employers who did provide tools to the workers were permitted to apply a wage differential of 0.05 per animal shorn to the required wage. However after the enactment of the 2010 Final Rule an animal shearing employer may no longer require that employees provide their own tools. In addition an animal shearing employer may no longer deduct from an employee s pay the cost of any item that is an employer s business expense where doing so would reduce the employee s wages below the required wage rate consistent with 20 CFR 655.120 a and 655.122 f and p . Due to the remote and unique nature of the work to be performed the employer must also specify in the job order and provide at no cost to workers an effective means of communicating with persons capable of responding to the worker s needs in case of an emergency. These means are necessary to perform the work and can include but are not limited to satellite phones cell phones wireless devices radio transmitters or other types of electronic communication systems. 5. Rates of pay . If paying by the piece rate the animal shearing employer must specify in the job order the established piece rates i.e. rate of pay per head sheared for each state where shearing will be performed and that is no less than the piece rate prevailing for the activity in the area of intended employment. 4 If the worker is paid on a piece rate basis the worker s pay must be supplemented if at the end of the pay period the piece rate does not result in average hourly rate earnings at least equal to the amount the worker would have earned had the worker been paid at the highest of the AEWR the prevailing hourly wage rate the agreed- upon collective bargaining wage or the Federal or state minimum wage in effect at the time and in the state where shearing work was performed. Productivity Standards. Where an employer pays a piece rate and requires that workers meet a minimum productivity standard in order to retain employment that productivity standard must be specified in the job offer and must be consistent with 20 CFR 655.122 l 2 iii .. The SWA and or Chicago NPC will review the employer s minimum production requirements and may request additional documentation to substantiate the appropriateness of any requirement prior to approving the application. II. APPLICATION FOR TEMPORARY EMPLOYMENT CERTIFICATION FILING PROCEDURES A. Application Filing Requirements 20 CFR 655.130 . An individual employer that desires to apply for temporary employment certification for one or more nonimmigrant workers must file the following documentation with the Chicago NPC no less than 45 calendar days before the employer s date of need ETA Form 9142 OMB control number 1205-0466 Application for Temporary Employment Certification and Appendix A.2 Copy of the ETA Form 790 and all attachments previously submitted to the SWA An itinerary listing the names and contact information of all employers and identifying with as much geographic specificity as possible for each farmer rancher all of the physical locations and estimated start and end dates of need where work will be performed and All other required documentation supporting the application. B. H-2A Labor Contractor H-2ALC Filing Requirements 20 CFR 655.132 . The Department is granting a special variance to the application filing procedures for H- 2ALCs contained at 20 CFR 655.132 a . Specifically an employer engaged in animal shearing activities is authorized to file an Application for Temporary Employment Certification covering one or more areas of intended employment based on a definite itinerary. An itinerant animal shearing employer who desires to employ one or more nonimmigrant workers on an itinerary to provide itinerant animal shearing services to fixed-site farmers ranchers is by definition an H-2ALC. Therefore the itinerant animal shearing labor contractor must identify itself as the employer of record on the ETA Form 9142 by completing Section C and marking item C.17 as H-2A Labor Contractor and submitting in addition to the documentation required under 20 CFR 655.130 all other required documentation supporting an H-2ALC application. The only special variance to the requirements at 20 CFR 655.132 b is the recognized exemption of sheep shearing 5 activities from the requirements of the Migrant and Seasonal Agricultural Worker Protection Act MSPA 29 U.S.C. 1801 1803 a 3 E et seq. . III. POST-ACCEPTANCE REQUIREMENTS A. Additional Positive Recruitment 20 CFR 655.154 . An animal shearing employer will be required to conduct positive recruitment within a multistate region of traditional or expected labor supply where the Chicago NPC finds that there are a significant number of qualified U.S. workers who if recruited would be willing to make themselves available for work at the time and place needed. Based on long standing practice one primary source of domestic workers for animal shearing has traditionally been the labor organization that represents sheep shearers the Sheep Shearers Union of North America. Therefore when the Chicago NPC issues a Notice of Acceptance the employer will receive instructions to contact the Sheep Shearers Union of North America. In accordance with 20 CFR 655.154 d the Certifying Officer will specify the documentation or other supporting evidence that must be maintained by the employer as proof that this positive recruitment requirement was met. 1 ATTACHMENT B Standards for Mobile Housing Applicable to Occupations in the Itinerant Animal Shearing Industry I. PROCEDURES Occupations involving itinerant animal shearing generally require workers to live in remote housing of a mobile nature rather than a fixed-site farm ranch or similar establishment. This type of housing is typically referred to as mobile housing. For purposes of these procedures mobile housing is any housing that is capable of being moved from one area on the open range to another. The employer must provide housing at no cost to the H 2A workers and those workers in corresponding employment who are not reasonably able to return to their residence within the same day. Where housing for work performed on the range is provided the regulations at 20 CFR 655.122 d 2 require that such housing meet standards of the DOL Occupational Safety and Health Administration OSHA . In the absence of such standards range housing must meet guidelines issued by OFLC. Due to the fact that OSHA standards currently do not cover mobile housing Section II of this attachment establishes the standards for determining the adequacy of employer-provided mobile housing for use on the range. However any other type of housing used by an employer to house the workers engaged in itinerant animal shearing activities must meet the standards applicable to such housing under 20 CFR 655.122 d . Both mobile housing and fixed-site farm or ranch housing may be self-certified by an employer. Employers must submit a signed statement to the SWA and the Chicago NPC with the application for labor certification assuring that the housing is available sufficient to accommodate the number of workers being requested and meets all applicable standards. SWAs must develop and implement a schedule which ensures that each employer s self- certified housing is inspected no less frequently than at least once every 3 years. These inspections may be performed either before or after a request is submitted for nonimmigrant workers on the open range. Before referring a worker who is entitled to such housing the SWA office must ensure that the housing is available and has been inspected in accordance with the inspection schedule. If the SWA determines that an employer s housing cannot be inspected in accordance with the inspection schedule or when it is inspected does not meet all the applicable standards the Chicago NPC may deny the H-2A application in full or in part or require additional inspections in order to satisfy the regulatory requirement. An animal shearing contractor may lease a mobile unit owned by a crew member or other person or make some other type of allowance to the owner. Neither the SWA nor Chicago NPC should be involved in establishing or negotiating the amount an employer offers to provide to a worker or other person who owns a mobile unit and desires to lease it to the employer. The employer may not accept the use of a housing unit owned by a worker without remuneration and the compensation provided to the owner must be 2 reasonable and consistent with leasing rates normally applicable to such units. Further nothing in this paragraph alters the employer s obligation under 20 CFR 655.122 to provide housing at no cost to the H-2A workers and those workers in corresponding employment who are not reasonably able to return to their residence within the same day nor the employer s obligation to pay the workers wages free and clear. In addition if the employer represents such mobile unit as housing or lodging provided by the employer the employer controls the mobile unit and is subject to ensuring that the housing unit complies with the applicable mobile housing standards for such housing. In addition the employer is subject to the SWA inspection schedule for such a unit. II. MOBILE HOUSING STANDARDS An employer may use a mobile unit camper or other similar mobile vehicle for housing workers that meets the following standards A. Housing Site Mobile housing sites shall be well drained and free from depressions in which water may stagnate. B. Water Supply 1. An adequate and convenient supply of water that meets standards of the state health authority shall be provided. The amount of water provided must be enough for normal drinking cooking and bathing needs of each worker and 2. Individual drinking cups shall be provided. C. Excreta and Liquid Waste Disposal 1. Facilities shall be provided and maintained for effective disposal of excreta and liquid waste in accordance with requirements of the state health authority or involved Federal agency and 2. If pits are used for disposal by burying of excreta and liquid waste they shall be kept fly-tight when not filled in completely after each use. The maintenance of disposal pits must be in accordance with state and local health and sanitation requirements. D. Housing Structure 1. Housing shall be structurally sound in good repair in sanitary condition and shall provide protection to occupants against the elements 2. Housing other than tents shall have flooring constructed of rigid materials easy to clean and so located as to prevent ground and surface water from entering 3. Each housing unit shall have at least one window which can be opened or skylight opening directly to the outdoors and 3 4. Tents may be used where terrain and or land regulations do not permit use of other more substantial mobile housing which provides facilities and protection closer in conformance with the Department s intent. E. Heating 1. Where the climate in which the housing will be used is such that the safety and health of a worker requires heated living quarters all such quarters shall have properly installed operable heating equipment which supplies adequate heat. In considering whether the heating equipment is acceptable the Chicago NPC shall first determine if the housing will be located in a National Forest Wilderness Section as specified in the Wilderness Act 16 U.S.C. 1131-1136 . Such a location has a bearing on the type of equipment practicable and whether any heavy equipment can be used. For example the Wilderness Act 16 U.S.C. 1133 c restricts certain motorized or mechanical transport on certain roads in wilderness areas. The U.S. Forest Service has regulations for this at 36 CFR Part 293. Aside from the above other factors to consider in evaluating heating equipment are the severity of the weather and the types of protective clothing and bedding made available to the worker. If the climate in which the housing will be used is mild and not reasonably expected to drop below 50 degrees Fahrenheit continuously for 24 hours no separate heating equipment is required if proper protective clothing and bedding are made available 2. Any stoves or other sources of heat using combustible fuel shall be installed and vented in such a manner as to prevent fire hazards and a dangerous concentration of gases. Portable electrical heaters may be used and if approved by Underwriters Laboratory kerosene heaters may be used according to manufacturer s instructions. If a solid or liquid fuel stove is used in a room with wooden or other combustible flooring there shall be a concrete slab insulated metal sheet or other fireproof material on the floor under each stove extending at least 18 inches beyond the perimeter of the base of the stove 3. Any wall or ceiling within 18 inches of a solid or liquid fuel stove or stove pipe shall be made of fireproof material. A vented metal collar shall be installed around a stovepipe or vent passing through a wall ceiling floor or roof and 4. When a heating system has automatic controls the controls shall be of the type which cuts off the fuel supply when the flame fails or is interrupted or whenever a predetermined safe temperature or pressure is exceeded. F. Lighting 1. In areas where it is not feasible to provide electrical service to mobile housing including tents lanterns shall be provided kerosene wick lights meet the definition of lantern and 2. Lanterns where used shall be provided in a minimum ratio of one per occupant of each unit including tents. 4 G. Bathing Laundry and Hand Washing Movable bathing laundry and hand washing facilities shall be provided when it is not feasible to provide hot and cold water under pressure. H. Food Storage When mechanical refrigeration of food is not feasible the worker must be provided with another means of keeping food fresh and preventing spoilage such as a butane or propane gas refrigerator. Other proven methods of safeguarding fresh foods such as salting are acceptable. I. Cooking and Eating Facilities 1. When workers or their families are permitted or required to cook in their individual unit a space shall be provided with adequate lighting and ventilation and 2. Wall surfaces next to all food preparation and cooking areas shall be of nonabsorbent easy to clean material. Wall surfaces next to cooking areas shall be of fire-resistant material. J. Garbage and Other Refuse 1. Durable fly-tight clean containers shall be provided to each housing unit including tents for storing garbage and other refuse and 2. Provision shall be made for collecting or burying refuse which includes garbage at least twice a week or more often if necessary. Refuse disposal shall conform to Federal state or local law whichever applies. K. Insect and Rodent Control Appropriate materials including sprays must be provided to aid housing occupants in combating insects rodents and other vermin. L. Sleeping Facilities A separate sleeping unit shall be provided for each person except in a family arrangement. Such a unit shall include a comfortable bed cot or bunk with a clean mattress. When filing an application for certification and only where it is demonstrated to the Certifying Officer that is impractical to set up a second sleeping unit the employer may request a variance from the separate sleeping unit requirement to allow for a second worker to temporarily join the shearing operation. The second worker may be temporarily housed in the same sleeping unit for no more than three 5 consecutive days and the employer must supply a sleeping bag or bed roll free of charge. M. Fire Safety and First Aid 1. All units in which people sleep or eat shall be constructed and maintained according to applicable state or local fire and safety law 2. No flammable or volatile liquid or materials shall be stored in or next to rooms used for living purposes except for those needed for current household use 3. Mobile housing units for range use must have a second means of escape. One of the two required means of escape must be a window which can be easily opened a hutch or other provision. It must be demonstrated that the custom combine worker would be able to crawl through the second exit without difficulty 4. Tents are not required to have a second means of escape except when large tents with walls of rigid material are used. A heater may be used in a tent if the heater is approved by a testing service such as Underwriters Laboratory and if the tent is fireproof and 5. Adequate fire extinguishers in good working condition and first aid kits shall be provided in the mobile housing.