Photo: Provided by the Head Honchos - www.headhonchosllc.com
Agricultural business owners seeking seasonal or temporary employees often turn to H-2A workers to fill their needs. However, the program does require that the employer provide the visa holder with housing, transportation, food, and specific wages.
Section 218 of the Immigration and Nationality Act allows nonimmigrant, temporary, foreign workers (H-2A visa workers) to enter the United States to work in seasonal or temporary agricultural positions.
The employer of an H-2A visa holder must provide the following:
Pay an H-2A worker a special H-2A minimum wage rate of pay based on the geographic location.
Provide H-2A housing coupled with transportation from the house to the jobsite.
Offer a guarantee of hours that work out to be equal to or at least 75% of the work period outlined on the contract.
Furnish three meals per day to the H-2A worker or provide cooking/kitchen facilities where the workers can prepare their own meals.
Pay in advance, provide, or reimburse a worker for the reasonable costs of their daily travel-related expenses to meet the H-2A transportation requirements.
Requirements for Employing H-2A Workers :
An employer must fill out an application on file with the Department’s Employment and Training Administration (ETA) stating that they have been unable to recruit sufficient U.S. workers who are willing, qualified, able, or available to fill the positions.
Employers have to show that they have tried to recruit U.S. workers but have been unable to fill the vacancies forcing them to reach out to foreign workers. They also must take things further by stating that employing foreign workers to fill the position will not impact the wages or working environment of U.S workers serving in similar positions.
The U.S. Department of Labor’s Wage and Hour Division (WHD) oversees the nation’s federal labor laws and enforces compliance by conducting investigations when necessary.
The laws encompass all employment in the U.S. and also handle agricultural employment by ensuring that the agricultural employers remain compliant with federal labor law.
WHD enforces the law even for H-2A foreign workers. Some states enforce additional or similar labor laws that employers must also comply with.
H-2A Housing Requirements:
Employers need to follow a H-2A housing checklist to ensure compliance when hiring foreign workers to meet their seasonal and temporary agricultural needs.
All housing must be safe and sanitary. Each person must have their own bed.
The facility or home must have hot and cold running water. Heat must be provided when it is cold outside.
Windows must open in each room to provide proper air flow.
Doors must have screen doors that feature self-closing devices. Each room must have adequate lighting.
There can be absolutely no signs of rodents, pests, insects, or roaches. The kitchen area must be clean.
There must be a place to store food that prevents spoilage. A place to wash and dry clothes must be provided.
The residence must have a fire extinguisher.
A first aid kit needs to be fully stocked and within access of the house’s inhabitants.
Separate toilets for women and men with at least one toilet provided for every 15 people.
An adequate supply of toilet paper must be provided.
At least one shower must be functioning for every 10 people.
The area around the residence should have no weeds, trash, or sewage. Each occupant must have at least 100 sq. ft of total living space.
The house must provide shelter from the elements.
Each occupation must have an area to store their clothes and personal belongings.
Bunk beds are allowable but there must be a minimum of three feet between each bed that stands side by side or four feet for bunk beds that are positioned end to end.
All beds must be at least 12 inches off the floor and bunkbeds should have at least 27 inches of clearance between the top and bottom bunk or the top bunk and ceiling. Only double bunks are allowable.
Floors must be either wood or concrete.
Each residence must have a working stove per 10 inhabitants.
There should be adequate countertop space in the kitchen for meal preparation. Adequate cabinet space for food storage.
One (1) refrigerator per six workers must be available.
From October 1 to April 1 the housing facility must have a heating system.
Portable non-vented kerosene propane heaters are not allowed. Open grate fires are not acceptable. The use of wood stoves is discouraged. All heating systems must be installed and inspected to ensure they meet the requirements of code enforcement before inspection by DES.
If a non-vented gas heater is used for heat, then working carbon monoxide detectors must be present.
A hand washing sink must be provided.
Housing must be located at least 500 feet from livestock.
Workers must have transportation to a grocery store each week.
The house should have at least two closed lid garbage receptacles with garbage bags. Garbage must be hauled at least once per week.
Smoke detectors in each bedroom.
H-2A Housing Regulations:
With H-2A housing regulation, employers are required to provide an H-2A worker with no-cost housing if the employer cannot return to their primary residence the same day. This is typically an understood mileage of no more than 50 miles (one way) or 100 miles ( round trip). The house must be equipped with a kitchen and, if not, then the employer is required to provide three free meals per day for the worker at farmer expense.
Housing Inspections:
All residential migrant housing and migrant labor camps are subject to inspection. The inspections must be carried out at a minimum of twice quarterly during occupancy.
If a violation is found, then the problem must be promptly reported to the employer and up to 48 hours provided to make proper corrections or take the steps needed to ensure correction. If the housing inspections continually reveal violations, then a fine or citation may occur.
H-2A Minimum Wage:
Each year the Department of Labor (DOL) publishes the Adverse Effect Wage Rates (AEWR) which sets the H-2A minimum wage.
Employers must pay H-2A workers the highest of the following:
AEWR.
Prevailing hourly wage.
Federal/State minimum wage.
Agreed upon bargaining rate.
Each year the DOL issues the AEWR using data gathered from the U.S. Department of Agriculture’s (USDA) and the Farm Labor Survey (FLS) that looks at the number of workers, total wages by type and hours worked. The data acts as the reasoning for annual average wage estimates issued for AEWR.
H-2A workers have very precise rights when it comes to wages. The H-2A worker can be paid via piece rate or they can be paid hourly. If they are being paid via piece rate, then they must be paid the prevailing piece rate set forth in the particular geographic area where the work is being performed. The piece rate must be similar to the hourly rates that the worker would receive every two hours.
Hourly pay for an H-2A employee must be the highest of the AEWR, the prevailing wage, the agreed upon collective bargaining rate, or federal/state minimum wage.
All AEWR is calculated by the DOL which is tasked with handling the minimum amount H-2A workers must be paid based on the geographic location and occupation. The prevailing wage is determined on surveys of wages that the local employers pay for specific jobs.
H-2A workers must be paid at least twice per month. Employers must compile the worker’s hours and earnings on a statement on or right before the payday.
The pay stub must have the following information :
Total earnings of the worker for the pay period.
Outline their piece rate pay or hourly wage.
Total hours worked.
Hours offered to the worker.
Total number of units produced being paid on a piece rate basis.
Employer’s information.
Start and end dates of the pay period.
Itemized deductions.
The H-2A minimum wage is as follows. Agricultural employers must pay their H-2A
foreign workers at least the following:
AEWR.
Prevailing hourly wage rate.
Prevailing piece rate.
Agreed upon collective bargain wage rate.
Federal or state minimum wage.
Taxing H-2A Workers:
An H-2A worker does not have to pay Medicare or Social Security taxes. The employee also does not need to pay such taxes for an H-2A worker which is a considerable savings for the employer.
When filing income tax returns for the year, workers might owe U.S. federal income tax. If the employer and the worker both agree to withhold federal income taxes from the H-2A employee’s paycheck, then the employer is allowed to withhold. A worker must fill out Form W-4 – Employee’s Withholding Allowance Certificate in order for the employer to hold back taxes from the worker’s compensation. Some states do allow employers to withhold a certain portion of the employee’s workers compensation, but the laws do vary by state.
Added Guarantees for H-2A Workers:
An H-2A worker is entitled to a three-fourths guarantee. With the three-fourths guarantee, employers must provide H-2A workers with at least 75% (or three fourths) of the workdays as stated in the employment contract.
An example:
A 12-week work period.
Work weeks is 5 days.
8 hours per day.
The employer is required to provide a minimum of 360 hours of work.
If an employer does not provide sufficient workdays, then the employer is required to pay the H-2 worker the amount needed to reach the required three- fourths guarantee.
H-2A employers must provide all of the required tools needed to carry out the job for the H-2A worker. The employer cannot charge the worker for the tools.
Employers are required to provide worker compensation to all workers free of charge. They must also post a visible poster at the worksite that clearly outlines the rights of the workers concerning workman compensation and all other rights that the H-2A worker has.
An H-2A employer cannot accept payment when it comes to an H-2A labor certification. Employers also cannot hold or confiscate a worker’s visa, passport, or immigration documentation.
Understanding Wages:
An H-2A worker is paid for all the time worked each day. The work time does not include commute time from residence or camp to the worksite, or the return from the worksite to the camp or residence. The workday only begins upon arrival at the worksite.
If the H-2A worker has to stop on the way to work to pick up work-related supplies, equipment or material then the time must be reported and paid to the worker for loading or picking up the items.
When working in one field and moving to another field during the workday, the worker must be paid for the travel time it takes to move from field to field.
On occasion, equipment breaks down. If the equipment malfunctions during the workday, then an employer must still pay their H-2A employee during the workday.
During the workday, breaks are required. If a break lasts for only 20 minutes or less, then an employer must pay their employee for the time. Employers must provide a sufficient amount of time to drink water and meet sanitation needs in the field while paying for the time.
An H-2A’s workday ends when the worker finishes working and rides back to their place of residence or camp.
H-2A Transportation Requirements:
Employers must provide or pay for transportation for their H-2A visa workers.
Pay for or provide transportation and meals for the H-2A worker during their transit from their country of origin to the worksite geographic location or reimburse the worker after 50% of the work contract has been completed.
Pay for or provide meals and return transportation for the H-2A worker to their country of origin once the contract has been finalized.
Provide transportation for the H-2A worker back and forth from the worksite to the employer provided housing.
The employer must ensure that the vehicle used for transportation meets all applicable vehicle standards, be operated by a qualified driver who is fully licensed, and ensure that the vehicle has proper insurance. They must carry vehicle liability insurance to protect against damages to persons and property.
H-2A employers who use a vehicle for worker transport must ensure that the vehicle complies with one of the two standards, which are determined based on the type of vehicle, passenger capacity and distance traveled.
Employers must also ensure that the vehicle is in compliance with state and federal safety standards.
H-2A employers are required to follow the DOL standards 29 CFR § 500.105 in the following:
Passenger automobile.
Van that carries 10 or less passengers.
Pickup truck transporting workers in the cab.
Multiple passenger vehicles that do not feature any type of truck features.
Station wagon.
Van that carries 10 or more passengers.
Windowless cargo van.
Bus.
Truck tractor.
Semi-Trailer.
Low speed vehicle.
Pickup, with workers riding in the bed of the truck.
Multipurpose passenger vehicle that travels 75 miles or less round trip.
Agriculture businesses often need additional farm labor for harvest, planting, and sometimes even the entire season. Some farm owners use H-2A workers to staff up their operations for the busy seasons.
The H-2A temporary agricultural program establishes a means for agricultural employers who anticipate a shortage of domestic workers to bring non-immigrant
foreign workers to the U.S. to perform agricultural labor or services of a temporary or seasonal nature. However, there are many requirements for hiring and employing H- 2A workers.
Recap on H-2A Housing, Wage, Transportation, and Food Requirements:
Below are a few considerations concerning housing, wage, transportation, and food for H-2A workers:
Hours: All work performed by an H-2A worker must be full time (at least 35 hours per week). The work must be either seasonal or temporary (lasting only 10 months or less). All H-2A workers are guaranteed at least ¾ of the total working days as outlined in the employment contract.
Compensation: All H-2A workers must receive at least the pay determined by the Adverse Effect Wage Rate. The H-2A workers must be supplied a pay statement with hours and earnings each week. Employers must provide the worker’s compensation.
Housing: Employers are required to provide H-2A workers with fully paid housing. Inspections must be conducted of the housing to certify that it meets the state and local standards and safety standards.
Transportation: H-2A employers must provide transportation from the worker’s living quarters to the job site at no added cost to the employee. The provided transportation must meet all of the requirements and safety criteria issued by the city and county. In some situations, the employer must reimburse the workers for the costs that they incurred on inbound transportation. However, once the work starts then they must wait for 50% of the work to be completed for the employer to reimburse the workers for the costs incurred from inbound transportation. Once the contract is complete, then the employer must pay for the H-2A visa holder’s return transportation.
Food: Employers must pay for three meals per day or provide free kitchen facilities where the H-2A worker can prepare their own meals.
Conclusion:
Call us: (210)695-1648