New regulations undo
wage cuts, restore labor protections for agricultural guestworkers
WASHINGTON, DC− The Labor
Department announced today new regulations for the H-2A agricultural
guestworker program that would largely undo changes to the program
made by the outgoing Bush Administration over a year ago. The
last-minute regulations changes by the previous administration slashed
wage rates and worker protections that had been the standard for over
20 years. The new rules take effect on March 15.
“This is a victory for
our nation’s farmworkers,” said Bruce Goldstein, Executive Director of
Farmworker Justice, a national farmworker advocacy group based in
Washington DC. “It’s a reversal of radical anti-worker policies
imposed by the previous administration that irresponsibly stripped
away basic procedures and worker protections set in place by a
Republican administration in 1987.”
Farmworker advocates have
long criticized the H-2A guestworker program for its lax labor
protections for both U.S. and guestworkers. The Bush Administration
changes lowered minimum required wage rates and reduced government
oversight despite the program’s obligation to ensure that employers
hire U.S. workers before receiving permission to hire foreign
guestworkers.
“The Bush
Administration's changes gave agricultural employers access to cheap
foreign labor with little government oversight,” Goldstein explained.
“These new regulations restore the balance that the law requires. We
commend Secretary Solis for spending her time and resources on helping
the most vulnerable workers in the country,” added Goldstein. “We
look forward to working with the Department of Labor for additional
reforms and improved enforcement of the protections to end
longstanding abuses under the H-2A program.”
Some of the key changes
are the following:
-
Wage rate change: The
Bush Administration adopted a wage rate formula that lowered wage
rates by an average of over $1.00 per hour, and $2.00 in some
places, using statistics that did not accurately reflect market
rates. The new regulations restore the former wage formula, which
is based on USDA wage surveys of farmworkers and farms
-
Wage deductions: The
regulations will make clearer that employers cannot evade the H-2A
program wage rate by taking deductions out of wages.
-
Transportation
reimbursement. The new rules restore the longstanding requirement
of reimbursement of workers' long distance transportation costs.
The Bush Administration changed the rule so that employers would
only pay travel costs from the U.S. consulate in the foreign
country, even though many workers travel long distances to get to
the consulate from their homes before entering the U.S.
-
The new regulations
restore the requirement that there be a pre-occupancy housing
inspection of the premises where H-2A workers will be living, to
ensure safe and healthy quarters.
-
Disclosure of job terms
will now be required by the time the foreign worker applies for a
visa, in a language the worker understands, so that the workers know
what their job terms will be.
-
A surety bond
requirement will be required for farm labor contractors, who are
notorious for violating wage requirements but not having the money
to pay a court judgment (this was in the Bush regulations but is
being strengthened)
-
H-2A labor contractors
will need to specify each specific location where work will be
performed, as well as identify the grower and the period of work.
This will especially help US workers understand what a job entails,
and because only guestworkers will accept a job when they don't know
where and when they will be working, this will reduce the degree to
which US workers are discouraged from accepting these jobs.
-
Transparency and public
information: H-2A applications will be posted on an electronic job
registry so that US workers can learn about jobs and their job
terms, without the need for FOIA requests.
-
Labor certification v.
labor attestation: The H-2A law requires an employer to obtain a
“labor certification” from the DOL stating that there is in fact a
shortage of U.S. labor and that the job terms comply with the law
and regulations. The Bush Administration changed this to a “labor
attestation” process in which, the employer merely promises to
comply with its obligations, without meaningful oversight during the
application and recruitment processs. This is in violation of the
law and DOL is restoring important government oversight.
Secretary of Labor Hilda Solis Announces Proposal to Restore
Labor Protections in H-2A Guestworker Program
The Labor Department today announced new proposed rules for the
nation’s agricultural guestworker program which would largely reverse
the Bush Administration’s harmful changes
which slashed wages and vital worker protections in the program.
The
H-2A agricultural guestworker program is supposed to ensure that U.S.
workers are offered decent wages and working conditions before
employers are permitted to hire foreign guestworkers based on claimed
labor shortages, but the Bush Administration’s changes gave
agricultural employers access to cheap foreign labor with little
government oversight. The
new
proposal would restore the guarantee that US workers will be hired
before foreign workers; a protection that was weakened under the Bush
regulations.
The
new proposal would
also restore the
wage system
used under the previous regulations which
will overcome wage cuts that US and foreign workers experienced during
2009 due to the Bush Administration’s changes; many workers lost about
$2.00 per hour under the
Bush rules.
H-2A workers in North Carolina, for example, earned $8.85/hr
last year under the old
regulations.
This year under the Bush
rules, they are getting only $7.25/hr. Under the wage rate calculation
of the previous rules, these workers would
be earning $9.34/hr this year.
Some changes that were made under the Bush Administration that were
helpful will be retained. For example, the farm labor contractors who
bring in H-2A workers will have to post a bond so that when wage
violations occur, the workers will have money to
recover.
In addition, some
improvements
over the old rules
have occurred
that were long needed.
For example, the job offers that employers must submit to prove they
are recruiting US workers will now be posted online so that US workers
and their advocates can learn about them in a timely way.
The proposal is the latest attempt to reverse the Bush
Administration’s changes to the program which were finalized in
December of last year.
June 29, 2009
Devastating Decision for Farmworkers:
Federal court in North Carolina halts suspension of Bush H-2A rules
In December of 2008, the Bush Administration and then-Secretary of
Labor Elaine Chao issued
new regulations for the H-2A
guest worker program that made devastating changes in job terms, labor
protections and government oversight for farmworkers. Last May, the
Obama Administration and current Secretary of Labor Hilda Solis issued
a decision to temporarily suspend those changes.
On June 29, 2009, the day on which the regulations were to be
suspended, a North Carolina federal court issued a dire ruling
temporarily stopping the suspension. This ruling (a preliminary
injunction) will apply throughout the country and means that the
devastating impact of the Bush-Chao regulatory changes to the H-2A
guestworker program will continue to harm farmworkers nationwide.
The ruling resulted from a lawsuit brought by agricultural employers,
including the North Carolina Growers’ Association, the National
Council of Agricultural Employers and several others, against the
Department of Labor. The growers alleged that DOL had acted illegally
in its decision to suspend the Bush-Chao H-2A regulations and
reinstate the former regulations. The United Farm Workers (UFW) and
individual farmworkers intervened in the lawsuit as defendants to
oppose the growers’ demand for a preliminary injunction. Farmworker
Justice is co-counsel in the case.
The Court’s ruling agreed with the growers that Secretary of Labor
Hilda Solis probably acted illegally in suspending the Bush-Chao H-2A
regulations. The Court noted that the H-2A growers would suffer
irreparable harm if not permitted to pay the lower wage rates that the
Bush regime allowed, but was dismissive of farmworker arguments that
farmworkers would in turn get lower pay. So for now farmworkers in
North Carolina will continue to receive lower wages; for example,
$7.25 per hour, rather than the $9.34 per hour they should be paid.
Background
As noted above, in December of last year, the Bush Administration’s
Secretary of Labor Elaine Chao issued
new regulations for the H-2A
guest worker program that made devastating changes in job terms, labor
protections and government oversight for farmworkers. The changes
contravene our nation’s most basic labor and immigration policy
concepts.
On January 12, 2009, before the Bush-Chao regulations went into
effect, the UFW, PCUN, and eight individual farmworkers (U.S. and H-2A
workers) filed suit in the U.S. District Court for the District of
Columbia against the Department of Labor to stop the devastating new
regulations. This lawsuit challenged the legality of the Bush-Chao
regulations. The plaintiffs (the farmworker unions and individual
farmworkers) sought a preliminary injunction to prevent the new
regulations from going into effect, but the Court denied them on the
ground that at that time there was no evidence of the actual harm that
would result from implementation of the Bush-Chao regulations (the
Court said it was too early and that we were speculating about the
harm). The Bush-Chao regulations became effective on January 17,
2009, just three days before Bush left office. We filed another
motion challenging the legality of the lower wage rates under the
Bush-Chao regulations and that motion is currently pending in the
Court.
Information about DOL's decision to suspend the Bush-Chao changes
In May, the DOL decided to suspend the Bush-Chao regulations (Federal
Register Notice
).
That decision was challenged in court by growers and a federal judge
in North Carolina agreed and overturned the suspension (see above).
NYT article on suspension of Bush H-2A
rules.
Information about DOL's proposal to suspend the changes
The proposal to suspend the Bush-Chao regulations was published in the
Federal Register on March 17th (Federal
Register Notice) and
provided for a ten-day public comment period, which ended on Friday,
March 27, 2009. DOL reviewed the comments and issued a decision to
suspend the regulations in May.
Read sign-on comments submitted by
organizations supporting the suspension of the Bush Administration's
Regulations.
Read
a more detailed set of comments submitted
by Farmworker Justice and other organizations
DOL
Withdraws Interpretation of the Fair Labor Standards Act Concerning
Relocation Expenses
On March 26, 2009, DOL published a separate notice
in the Federal
Register that it was, effective immediately, officially withdrawing an
interpretation of the Fair Labor Standards Act (a rejection of the
Arriaga case) published on December 18 and 19 in the New H-2A and
H-2B regulations. The interpretation was included in the Preambles to
both new regulations.
Farmworker Justice supports DOL’s withdrawal of the flawed
interpretation and urges DOL to act promptly to issue an affirmative
statement about the impact of the Arriaga decision.
In December, when the Bush Administration published the final version
of their new rules for our nation’s agricultural guestworker program,
it included in the Preamble a discussion of a 2002 court case,
Arriaga v. Florida Pacific Farms. In this case, the court ruled
that employers have to reimburse transportation costs and visa costs
of the guestworkers they hire if those expenses made the workers'
wages drop below the federal minimum wage. The reasoning is that
because they are costs incurred primarily for the benefit of the
employer, they must be treated as deductions from wages. The decision
was based on similar rulings in other situations and was then followed
by other courts.
Without providing any opportunity for notice and comment from the
public on this important matter, the Bush Administration unlawfully
concluded in the Final Rule’s Preamble that Arriaga was
“wrongly decided.”
(09/03/09)
