View all Articles

US DOL Finalizes Farmworker Protection Rule 

On June 28, 2024, a final rule to strengthen protections for farmworkers takes effect. The rule targets vulnerability and abuses experienced by workers under the H-2A program that undermine fair labor standards for all farmworkers in the United States (U.S.)  

For background, the H-2A program allows employers to hire temporary foreign workers when the department determines there is a lack of able, willing, and qualified U.S. workers to perform the agricultural labor or services, and when employing temporary labor will not adversely affect the wages and working conditions of similarly employed U.S. workers. 

The final rule includes the following: 

Adding New Protections for Worker Self-Advocacy 

The final rule enhances workers’ rights to advocate for their working conditions by broadening the scope of activities protected against retaliation. It safeguards workers’ ability to engage in self-organization, concerted activities, and refusal to attend employer-sponsored meetings aimed at discouraging unionization. Additionally, workers can now freely consult legal service providers and meet them in employer-provided housing. Furthermore, workers are permitted to invite guests, including labor organizations, service providers, and others, to their employer-furnished housing. 

Clarifying “For Cause” Termination 

Workers under the H-2A program are entitled to payment for at least three-fourths of the hours specified in their work contract, along with housing, meals until departure, and outbound transportation. U.S. workers have the right to be considered for employment in the following year unless terminated for justifiable reasons. The final rule defines “termination for cause” as failing to adhere to employer policies or perform job duties adequately after progressive discipline. Five conditions must be met for a termination for cause, including informing workers of policies or performance expectations, except in cases of severe misconduct.  

Making Foreign Labor Recruitment More Transparent 

The final rule introduces enhanced disclosure requirements aimed at increasing transparency in the recruitment process for foreign workers. Employers must now provide copies of agreements with agents or recruiters, disclose details about individuals or entities working for recruiters who solicit prospective H-2A workers, and provide information about workplace owners, operators, and managers in the H-2A application. These measures are designed to improve transparency, provide additional information about job opportunities, and strengthen protections against exploitation and abuse of workers. 

Ensuring Timely Wage Changes 

The final rule reinstates the traditional practice of setting the effective date of updated adverse effect wage rates. This ensures that workers under the H-2A program receive fair compensation and mitigates any negative impact on the wages and working conditions of similarly employed U.S. workers. Additionally, the rule mandates that employers who fail to notify workers adequately about delays in their start date must compensate workers at the applicable rate for each day of delay, up to a maximum of 14 days. 

Improving Transportation Safety 

Many H-2A workers travel in vans or buses, sometimes driven after long days by tired workers. The final rule includes a seat belt requirement to reduce the hazards associated with the transportation of farmworkers. If a vehicle is required by Department of Transportation regulations to be manufactured with seat belts, the final rule prohibits the operation of these vehicles to transport workers under the H-2A program unless each occupant is wearing a seat belt.  

Preventing Labor Exploitation and Human Trafficking 

The final rule clarifies that employers are prohibited from holding or confiscating a worker’s passport, visa, or other identification documents, which is a tactic used to exploit workers.  

Ensuring Employer Accountability 

The final rule introduces updated procedures for discontinuing employment services for employers who have failed to meet the Department of Labor’s requirements. It mandates that states cease services to debarred employers and simplifies the process for applying debarment to successor entities inheriting the status of a debarred company. Furthermore, the rule formalizes criteria for determining if separate entities should be considered as one employer regarding seasonal or temporary need assessments and how enforcement actions are applied to these entities. 

Additional Information 

While the final rule is not effective until June 28, 2024, H-2A applications filed before August 28, 2024, will be processed according to applicable federal regulations in effect as of June 27, 2024. Applications submitted on or after August 29, 2024, will be processed in accordance with the provisions of the new Farmworker Protection Rule. 

For more information about the rule, visit the Employment and Training Administration and Wage and Hour Division web pages

HR Works, headquartered in Upstate New York, is a human resource management outsourcing and consulting firm serving clients throughout the United States for over thirty years. HR Works provides scalable strategic human resource management and consulting services, including: affirmative action programs; benefits administration outsourcing; HRIS self-service technology; full-time, part-time and interim on-site HR managers; HR audits; legally reviewed employee handbooks and supervisor manuals; talent management and recruiting services; and training of managers and HR professionals.