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U.S. Labor Department tightens some H-2A rules, updates bond requirements for more accountability

WASHINGTON, D.C. – The U.S. Department of Labor today announced a final rule to amend H-2A temporary labor certification regulations to protect agricultural workers better, and to update the H-2A application and temporary labor certification process. The final rule will be published in the Federal Register on Oct. 12, 2022.

The H-2A program allows employers to address temporary labor needs by employing foreign agricultural workers when there are not sufficient workers who are able, willing, qualified, and available, and when doing so will not adversely affect the wages and working conditions of workers similarly employed in the U.S.

Immigrant farmworkers make up an estimated 73% of agriculture workers in the United States. South Dakota’s immigrant community comes primarily from Guatemala, the Philippines, and Mexico. There are an estimated 25,000 foreign agriculture workers in South Dakota.

After the department proposed changes to the H-2A program’s regulations in a Notice of Proposed Rulemaking in July 2019, employers, employer associations, agents, business advocacy groups, state agencies, federal and state elected officials, worker advocates, labor unions, public policy and academic organizations, farmworkers and others submitted tens of thousands of comments. After considering them, the department will publish the final rule, which becomes effective on Nov. 14, 2022.

“By improving H-2A program regulations, we are strengthening worker protections, meeting our core mission,” said Secretary of Labor Marty Walsh. “Today’s new rule makes several improvements to enhance the integrity of the H-2A program and provide employers and other stakeholders greater clarity.”

The new rule includes the following important elements: Improve safety and health protections for workers housed in rental or public accommodations.

 Streamlines and updates bond requirements for labor contractors to better hold them accountable and clarifies joint-employer status for employers and associations.

Clarifies the housing certification process to allow state and local authorities to conduct housing inspections.

Establishes explicit authority to debar attorneys and agents for their misconduct, independent of an employer’s violations.

Makes electronic filing mandatory for most applications to improve employers’ processing efficiency.

Modernizes the methodology and procedures for determining the prevailing wage to allow state workforce agencies to produce more prevailing wage findings.

The changes in the final rule will also support the enforcement capabilities of the department’s Wage and Hour Division to address H-2A program fraud and abuse that undermines workers’ rights and hurts law-abiding employers.

Read the unpublished final rule to amend H-2A temporary labor certification regulations at the Federal Register.

Throughout the U.S., Wage and Hour Division violations of H-2A regulations and recovery of back wages have increased significantly over the past five years. In 2021, the Wage and Hour Division found H-2A violations in 358 cases and collected more than $5.8 million in back wages for more than 7,000 workers.

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Market manipulation was the focus of a panel discussion during the recent SDFU State Convention. U.S. Department of Justice Assistant Attorney General, Michael Kades was among the panelists that included (left to right) Scott Blubaugh, President of American Farmers & Ranchers; Scott Kolousek, Wessington Springs rancher and SDFU board member, Oren Lesmeister, S.D. State Legislator and SDFU board member and Kades.


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