TEN 27-23, Change 1 9.27.24 (Accessible PDF).pdf

ETA Advisory File Text

TRAINING AND EMPLOYMENT NOTICE NO. 27-23 Change 1 DATE October 2 2024 EMPLOYMENT AND TRAINING ADMINISTRATION U.S. DEPARTMENT OF LABOR WASHINGTON D.C. 20210 TO STATE W ORKFORCE AGENCIES STATE W ORKFORCE ADMINISTRATORS STATE M ONITOR AD VOCATES EMPLOYMENT S ERVICE OF FICE M ANAGERS STATE W ORKFORCE LIAISONS STATE AND LOCAL WORKFORCE B OARDS LABOR C OMMISSIONERS AMERICAN JOB CENTERS FROM JOS JAVIER RODR GUEZ s Assistant Secretary SUBJECT Change 1 Announcing Implementation of the Final Rule Improving Protections for Workers in Temporary Agricultural Employment in the United States in Compliance with District Court Order 1.Purpose. To update Training and Employment Notice TEN No. 27-23 regarding states implementation of the Final Rule Improving Protections for Workers in Temporary Agricultural Employment in the United States 89 FR 33898 Apr. 29 2024 Farmworker Protection Rule in light of an August 26 2024 court order prohibiting the U.S. Department of Labor Department or DOL from enforcing the Final Rule in 17 states and against Miles Berry Farm and members of the Georgia Fruit and Vegetable Growers Association as of August 26 2024. 2.Action Requested. Please share this information with interested stakeholders and review the regulations and information collections. Until further notice the 17 states listed in this Change 1 that are covered by the court order must comply with the Employment Service ES regulations at 20 CFR parts 651 653 and 658 that were in effect on June 27 2024 the calenda r day before the effective date of the Farmworker Protection Rule. All other states 1 must comply with the current ES regulations including the ES -related changes in the F inal Rule as of the June 28 2024. 1 As defined in sec. 2 of the Wagner-Peyser Act 29 U.S.C. 49a this includes the District of Columbia the Commonwealth of Puerto Rico Guam and the Virgin Islands. 37 states including these entities are not subject to the preliminary injunction. 3. Summary and Background. a.Summary This TEN explains t hat the State Workforce Agencies SWAs for the 17 states listed in section 3.b of this Change 1 must comply with the ES regulations that 2 were in effect on June 27 2024 and that the remainder of the states must comply with the ES regulations as updated by the Farmworker Protection Rule that was effective June 28 2024. b. Background On April 29 2024 the Department published in the Federal Register the Farmworker Protection Rule which revises Wagner-Peyser Act ES regulations at 20 CFR parts 651 653 and 658. The Final Rule strengthens protections for workers who are placed on clearance orders through the Agricultural Recruitment System ARS as well as clarifies and streamlines procedures for instances where SWAs discontinue ES services to employers both agricultural and non-agricultural. The F inal Rule also revises DOL s H-2A regulations at 20 CFR part 655 subpart B and 29 CFR part 501. Also on April 29 the Employment and Training Administration ETA published TEN No. 27-23 titled Announcing the Publication of the Final Rule Improving Protections for Workers in Temporary Agricultural Employment in the United States which describes the changes DOL made in the Final Rule to the ES regulations. On August 26 2024 the United States District Court for the Southern District of Georgia issued a preliminary injunction in the case of Kansas et al. vs. U.S. Department of Labor No. 2 24-cv-00076-LGW-BWC S.D. Ga. Aug. 26 2024 prohibiting DOL from enforcing the Farmworker Protection Rule in certain states and with respect to certain entities. The preliminary injunction specifically prohibits DOL from enforcing the Farmworker Protection Rule in the states of Georgia Kansas South Carolina Arkansas Florida Idaho Indiana Iowa Louisiana Missouri Montana Nebraska North Dakota Oklahoma Tennessee Texas and Virginia and against Miles Berry Farm and members of the Georgia Fruit and Vegetable Growers Association as of August 26 2024. DOL is complying with the preliminary injunction. Accordingly this Change 1 describes the effect of the preliminary injunction on states implementation of the Final Rule. 4.Key Final Rule Changes and Applicability . The Department published the Farmworker Protection Rule in the Federal Register on April 29 2024 available at https www.federalregister.gov documents 2024 04 29 2024-08333 improving-protections- for-workers-in-temporary-agricultural-employment-in-the-united-states. The F inal Rule amended several portions of the ES regulations as described in TEN No. 27-23. All SWAs except for the 17 SWAs in the states listed in section 3.b above must comply with all of the Final Rule changes. Please see the Final Rule and TEN No. 27-23 for a complete list of all changes. The SWAs serving the 17 states listed in section 3.b hereinafter referred to as the 17 SWAs or the 17 states must comply with the ES regulations that were in effect on June 27 2024. These 17 SWAs may access the ES regulations that were effective on that date by visiting https www.ecfr.gov selecting Go to Date th en selecting June 27 2024 from the calendar. a.Clearance Orders for U.S. Workers . i.The Final Rule revised the responsibilities of ES offices and SWAs when they review clearance orders submitted by employers and the process by which they place approved clearance orders into intrastate and interstate clearance by requiring ES 3 staff to consult the Department s Office of Foreign Labor Certification OFLC and Wage and Hour Division WHD H-2A and H-2B debarment lists and a new prospective ETA Office of Workforce Investment OWI discontinuation of services list before placing a job order into intrastate or interstate clearance. If an employer is on one of the debarment lists the SWA must initiate discontinuation of ES services to such employer . If the employer is on the OWI discontinuation of ES services list or the SWA has already discontinued ES services the SWA must not approve the clearance order. The 17 SWAs are not required to check these lists prior to placing a job order into clearance. Each of these SWA s must continue to disapprove clearance orders submitted by employers whose ES services the SWA has discontinued. ii. The Final Rule requires that SWAs must ensure intrastate and interstate clearance orders include the hourly wage rate if applicable and any non-hourly wage rate offered including a piece rate or base rate and bonuses and for any non-hourly wage rate an estimate of its hourly wage rate equivalent for each activity and unit size. The 17 SWAs are not required to follow this rule. These states must only ensure that intrastate and interstate clearance orders include the hourly wage rate or the piece rate estimated in hourly wage rate equivalents for each activity and unit size as previously required at 20 CFR 653.501 c 1 iv E June 27 2024 . iii. The Final Rule revised clearance order assurances and employer requirements regarding protections for workers placed through the ES on criteria and non-criteria clearance orders when employers fail to provide timely notice of delayed start dates. Under the Final Rule Employers must notify workers the SWA placed in addition to notifying the SWA of a delayed start date at least 10 business days before the original start date. The Final Rule also describes how notice must be provided to workers including compliance with the language access requirements of 29 CFR 38.9 for workers with limited English proficiency standards for non-written telephonic notice as well as written notice through email or postal mail and record retention requirements. When employers fail to provide the required notice they must provide housing for migrant workers provide or pay wages and all other benefits and expenses described on the clearance order for each day work is delayed up to 14 calendar days starting with the originally anticipated date of need or provide alternative work. If an employer fails to comply with these requirements the order- holding office must process the information as an apparent violation and may refer the apparent violation to the Department s WHD. 4 The 17 SWAs must comply with the prior ES regulations which made certain requirements of employers. They do not need to separately comply with the revised clearance order assurances and employer requirements set forth in the Final Rule and summarized just above. SWAs must ensure the employers include the correct assurance which can be accomplished by using the alternative forms described below. The prior ES regulations required that The employer provide to workers referred through the clearance system the number of hours of work cited in 20 CFR 653.501 c 1 iv D for the week beginning with the anticipated date of need unless the employer has amended the date of need at least 10 business days prior to the original date of need pursuant to 20 CFR 653.501 c 3 iv by notifying the order-holding office in writing email notification may be acceptable . The SWA must make a record of this notification and must attempt to inform referred workers of the change expeditiously. See 20 CFR 653.501 c 3 i June 27 2024 . If there is a change to the anticipated date of need and the employer fails to notify the order-holding office at least 10 business days prior to the original date of need the employer must pay eligible pursuant to 20 CFR 653.501 d 4 workers referred through the clearance system the specified hourly rate of pay or if the pay is piece-rate the higher of the Federal or State minimum wage for the first week starting with the originally anticipated date of need or provide alternative work if such alternative work is stated on the clearance order. If an employer fails to comply under this section the order holding office may notify the Department s Wage and Hour Division for possible enforcement. b. Agricultural Recruitment System for U.S. Workers ARS and I nterstate C learance of Job Orders. All SWAs must continue to clear job orders through the Agricultural Recruitment System including intrastate and interstate clearance. In doing so states will use the appropriate 790 790A and 790B form s as described below and in Section 4d. For the 17 SWAs These SWAs must use the forms approved on September 12 2024 and September 19 2024 with OMB control number 1205-0562 for clearance orders. When one of the 17 states needs to process a non- criteria interstate clearance order for an employer located within its state as an order- holding state the SWA must send at least one copy of the approved clearance order to each of the SWAs that the ETA Regional Administrator selected for recruitment labor supply states regardless of whether those SWAs are in states subject to the injunction. When one of the 17 states is designated as a supply state 20 CFR 653.501 d 12 continues to require th at the SWA actively recruit workers for referral. This may involve receiving clearance orders from 5 any of the 37 states that are using forms approved with OMB control number 1205-0134. These forms include requirements and assurances associated with the Final Rule. SWAs in enjoined states do not need to take any steps to review or validate those requirements and assurances . SWAs in the 17 states subject to the injunction may not reject a clearance order from any of the 37 states on the basis that the state used a form approved under OMB control number 1205-0134 which includes requirements and assurances associated with the Final Rule. However as provided at 20 CFR 653.501 d 12 a potential labor supply SWA may reject a clearance order for other reasons which must be documented and submitted to the Regional Administrator having jurisdiction over the SWA. When criteria interstate clearance is necessary the Department s OFLC will transmit the approved clearance order to the supply state SWAs through the Foreign Labor Agricultural Gateway FLAG system. For SWAs in the 37 states not subject to the injunction These SWAs must use the forms approved with OMB control number 1205-0134 associated with the Final Rule for clearance orders. When one of the 37 states needs to process a non- criteria interstate clearance order for an employer located within its state as an order- holding state the SWA must send at least one copy of the approved clearance order to each of the SWAs the ETA Regional Administrator selected for recruitment labor supply states regardless of whether those SWAs are in states subject to the injunction. When one of the 37 states is designated as a supply state the SWA must actively recruit workers for referral. This may involve receiving clearance orders from any of the 17 enjoined states that are using forms approved with OMB control number 1205-0562. These forms do not include requirements or assurances associated with the Final Rule. SWAs in the 37 states not subject to the injunction may not reject a clearance order from any of the 17 enjoined states on the basis that the state used a form approved under OMB control number 1205-0562 which does not include requirements and assurances associated with the Final Rule. However as provided in 20 CFR 653.501 d 12 a potential labor supply SWA may reject a clearance order for other reasons which must be documented and submitted to the Regional Administrator having jurisdiction over the SWA. When criteria interstate clearance is necessary the Department s OFLC will transmit the approved clearance order to the supply state SWAs through the FLAG system . 6 c. Discontinuation of ES Services . The Final Rule made revisions throughout 20 CFR 658 subpart F to clarify and streamline the discontinuation of ES services procedures. For a description of these changes see TEN No. 27-23. The requirement for SWAs to discontinue providing ES services in certain circumstances existed in the previous regulations therefore all SWAs are expected to discontinue ES services to employers where there is a basis to do so under the applicable regulations. However the 17 SWAs apply the discontinuation bases and discontinuation procedures in effect on June 27 2024 available at 20 CFR Part 658 Subpart F June 27 2024 . The Final Rule includes provisions whereby one state s discontinuation of services would require other states to also deny access to services to that employer. The preliminary injunction has altered the effect of these provisions. Specifically i. The 17 SWAs must follow the discontinuation of services provisions that were in effect on June 27 2024. When a SWA in one of the 17 states discontinues services pursuant to the ES regulations in effect on June 27 2024 the other 37 states cannot disapprove clearance orders or terminate access to services for that employer on the basis of the discontinuation in one of the 17 states. SWAs in these 17 states cannot disapprove clearance orders submitted by an employer where such disapproval would be on the basis of a discontinuation action outside of their own state. While SWAs in these 17 states are not required to check the H-2A or H-2B debarment lists under the Final Rule prior to placing a clearance order as discussed in section 4 a i above any SWA that receives notification of a final determination by OFLC or WHD that an employer is debarred from participating in either the H-2A or H-2B program is still required to initiate discontinuation of services to the employer. Debarment is a determination that the employer has violated an employment-related law within the meaning of 20 CFR 658.501 a 4 as in effect on June 27 2024. Notificatio n of the debarment from OFLC or WHD to the SWA may be provided through for example the SWA observing that the employer is on one of the debarment lists. ii. SWAs for the 37 states not impacted by the injunction must continue to follow new discontinuation of services provisions in effect as of June 28 2024. This includes notifying ETA s Office of Workforce Investment OWI of any final determination to discontinue determination to immediately discontinue or determination to reinstate ES services to an employer as detailed in 20 CFR 658.503 and .504. ETA will publish such discontinuations on the OWI discontinuation of services list. 7 These states must disapprove an employer s clearance order if the employer is on the OWI discontinuation of services list. These states must also discontinue services for any of the bases in 20 CFR 658 subpart F in effect as of June 28 2024. This may include discontinuing services to an employer that one of the 17 states discontinued though not necessarily on the basis of that initial state s discontinuation. It is possible that two SWAs in states impacted and not impacted by the injunction may discontinue services to an employer on different bases. For instance one of the 17 states discontinues services because an employer refused to correct specifications contrary to employment-related laws on a job order or were found by a final determination of an enforcement agency to have violated an employment- related law. None of the 37 states can discontinue on the basis of that initial state s discontinuation because that initial state is not required to notify ETA or other states about the discontinuation. However any of the 37 states can discontinue because that state also determines that the employer violated employment-related laws. The state then must notify ETA which posts the employer on the OWI Discontinuation of Services list. At this point two states have discontinued services on the same or a very similar basis one state covered by the injunction and one not covered by the injunction . Others of the 37 states would not provide ES services to the employer because the employer is listed on the OWI Discontinuation of Services list. At this point two or more states have discontinued services on different bases some for the underlying violation of an employment-related law and some because the employer is listed on the OWI Discontinuation of Services list. Similarly it is possible for one of the 37 states to discontinue services because of an underlying violation of an employment-related law the state notifies ETA which posts it on the OWI Discontinuation of Services list and others of the 37 states would not provide ES services to the employer. None of the 17 states would be required to discontinue services on the basis of the initial state s discon tinuation. However any of the 17 states could independently initiate discontinuation of ES services if they have sufficient evidence other than basic knowledge of the initial state s discontinuation to meet any of the bases described at 20 CFR 658.501 as effective prior to June 28 2024. d. Updated Clearance Order Forms . The Final Rule also impacts associated information collections notably for Forms ETA - 790 and 790A through Office of Management and Budget OMB approval number 1205-0466 which are used for criteria clearance orders placed in connection with H-2A applications and Form ETA-790B through OMB approval number 1205-0134 which is used for non-criteria clearance orders. All states and employers except for the 17 states listed in section 3 .b must use these forms as provided through OMB approval numbers 1205-0466 and 1205-0134. The 17 SWAs must use Forms ETA-790 790A and 790B as provided through OMB approval number 1205-0562 approved on September 12 2024 which do not implement the Farmworker Protection Rule. States can access 8 these forms on the Monitor Advocate System resources webpage https www.dol.gov agencies eta agriculture monitor-advocate- system resources. Section 4.b of this guidance described how these forms would be used in interstate clearance. 5. I . Please direct inquiries to the appropriate ETA r egional office. Additional information about changes to the regulations governing the H -2A program is available on the Department s OFLC and WHD websites at https www.dol.gov agencies eta foreign- labor farmworker-protection-final-rule and https www.dol.gov agencies whd agriculture h2a final-rule respectively. 6. R . Improving Protections for Workers in Temporary Agricultural Employment in the United States Final Rule 89 FR 33898 April 29 2024 The Wagner-Peyser Act of 1933 29 U.S.C. 49 et seq. Employment Service Regulations at 20 CFR parts 651 653 and 658 N A T Improving Protections for Workers in Temporary Agricultural Employment in the United States 7. Attachment s .