New DOL Rules for Seasonal Agricultural Workers: What Employers Need to Know
By Brandon Davis
Phelps Dunbar
On June 28, 2024, the U.S. Department of Labor (DOL) implemented a new final rule to enhance protections for agricultural workers, both American and foreign, particularly those employed under H-2A status. This rule strengthens enforcement measures to ensure compliance with federal labor laws, boosting worker protection obligations in several key areas:
Strengthened Worker Advocacy and Voice: Changes to 29 CFR § 655.135 expand protections for workers advocating for better conditions. This includes explicit safeguards for self-organization and mutual aid activities. Workers can now select representatives to negotiate with employers without fear of intimidation or retaliation.
Redefinition of Termination Protocols: The rule revises the definition of "termination for cause" under 29 CFR § 655.122(n), requiring employers to meet five criteria to justify terminations. This aims to reduce arbitrary firings and aligns with broader legal shifts regarding employer discrimination and disciplinary actions.
Immediate Implementation of Wage Updates: Any changes to the Adverse Effect Wage Rate (AEWR) are effective immediately upon publication in the Federal Register. If an AEWR adjustment occurs mid-pay period, employers must retroactively compensate workers from the date of the update.
Increased Transparency in Foreign Labor Recruitment: New regulations (29 CFR § 655.137 and § 655.135(p)) mandate that agricultural employers disclose detailed information about their foreign labor recruitment practices, including the identities and locations of recruiters and agents. This aims to prevent exploitation and maintain the integrity of the recruitment process.
Enhanced Disclosure of Job Terms: Employers must provide detailed disclosures of employment terms, including minimum productivity standards, applicable wage rates, and overtime opportunities (29 CFR § 655.122(l)). This ensures workers have clear expectations and safeguards their rights.
Additional Worker Protections and Employer Responsibilities:
Notices for Delayed Work Start: Employers must notify the state workforce agency of any changes to job start dates due to unforeseen circumstances, limiting delays to 14 days (29 CFR § 655.175).
Transportation Safety Enhancements: Employer-provided transportation must comply with U.S. Department of Transportation Federal Motor Vehicle Safety Standards, including seat belt use.
Prohibition on Document Withholding: Employers are forbidden from retaining workers' passports or other identification documents (29 CFR § 655.135(o)), protecting workers from coercion.
Regulations for Agribusiness Entities: A new "single employer" definition addresses situations where multiple agricultural businesses operate as a single entity for H-2A certification. This prevents manipulations of the certification process and ensures that seasonal labor needs are genuinely temporary.
These changes signal a significant shift in how agricultural employers must manage their workforce. Employers should prepare for an increased presence of labor unions and employee organizing activities. Compliance with the new rules is crucial to avoid the risk of program debarment for non-compliance.
Key Changes for Employers:
Termination Protocols: Employers must now follow a strict five-step process before terminating a worker for cause. This includes:
Informing the worker of the policy, rule, or performance expectation in a language they understand.
Ensuring the worker's compliance with the policy is within their control.
Applying the policy consistently to all H-2A workers and corresponding employees.
Conducting a fair and objective investigation into the worker’s performance or misconduct.
Using progressive discipline to correct the worker’s behavior.
Failure to follow these steps could result in violations of the new rules.
Protected Concerted Activities: Workers can engage in concerted activities during non-compensable time, including in employer-provided housing. Employers should anticipate an increase in employment retaliation claims based on these protections.
Wage Payment Compliance: Employers must closely adhere to wage payment regulations under the Fair Labor Standards Act and state law. This includes ensuring compliance with the ¾ wage guarantee for H-2A employees and paying for pre-work activities, such as preparing equipment and donning protective gear, if these activities are deemed compensable.
For more information on these new requirements, please refer to the H-2A Employer’s Guide to the Final Rule “Improving Protections for Workers in Temporary Agricultural Employment in the United States” on the DOL website.