Varnum LLP | July 6, 2017
As more employers plan to use the H-2A program, completing the following items this year will make an easier transition to H-2A employment.
Implement a three-step discipline process
Many agricultural employers have not developed or consistently applied work rules. Management should assess work activities and determine work rules and related discipline important to an effective workforce in its operations.
While the Department of Labor generally prefers a three-step process - verbal warning, written warning, termination ‑ there is some conduct that management may assess warrants immediate termination such as violence or illegal drug use.
Managers should provide workers and train workers with customized work rules and document any disciplinary or termination process consistent with those rules. The work rules developed will need to be a part of the H-2A contract so that implementation and assessment over the course of this season will assist employers in revising as needed for the H-2A contract.
In addition, seasonal employers sometimes choose not to discipline or terminate workers to allow the worker to complete the season without conflict, and the employer plans to not recruit or rehire that worker the following year.
In an H-2A situation, employers must recruit all workers completing the previous season. Accordingly, employers will need to rehire the workers not disciplined or terminated so that consistent application and action under the discipline process is essential to securing a quality workforce in the H-2A operations.
Investigate agents or contractors
Agricultural employers may participate in the H-2A program directly or through a contractor. Employers participating directly may apply on their own or with the assistance of an agent.
Often, employers daunted by H-2A complexities and requirements prefer to begin H-2A through a contractor. Even though Department of Labor announced the withdrawal of the joint employer policy memo, Department of Labor will certainly assert joint employment situations whenever a farm labor contractor is operating the labor force for the agricultural entity.
Employers and contractors may attempt to manage operations to avoid joint employer liability, but given the risk, employers should complete due diligence in selecting a contractor and enter into a contract assigning responsibilities and liabilities. Similarly, if an employer plans to use an agent to process the direct H-2A employment contract, the employer should assess the services, costs and past experiences and performances of the agents. In both contractor and agent situations, the entities should be willing to provide references to previous customers and be willing to discuss compliance processes and any previous Department of Labor or other audits and outcomes.
Assure housing sufficient for H-2A
H-2A employers must provide free certified housing for H-2A workers and non-local domestic workers and families (unless prevailing practice confirms no families), three meals/day or convenient cooking facilities if meals are not provided.
Non-local domestic workers are workers who provide an address farther than 60 miles from the work location. Michigan migrant labor housing inspectors are willing to assess migrant housing for H-2A purposes prior to use of the program so that employers may make any necessary changes and/or build or arrange for additional housing needed. Employers may not use FHA/Rural Development Section 514 Housing for H-2A workers unless the loans are repaid and restrictions are confirmed removed.
Employers must pay workers in-bound and out-bound transportation, but the transportation that requires the most planning is the daily transportation from housing to work locations and the weekly transportation to a grocery store.
Employers need to assess options for vans and/or buses, drivers who can be licensed and will pass medical exams and secure the safety evaluations, insurance and driver medical exams and licenses.
The size and location of housing units, whether the employer will operate various work schedules and availability of CDL passenger endorsed drivers will determine whether the employer chooses to operate vans with 15 person or less capacity or whether 15 plus person buses are used.
Develop job descriptions
H-2A contracts require employers to list activities with detailed job descriptions, and H-2A workers may complete only those tasks. Employers should therefore take notes throughout this season related to the jobs the employer plans to include within the contract and job description details such as lifting requirements, bending, walking, and ladder or other equipment use.
All workers completing any work activities listed in the H-2A contract will be entitled to H-2A wages and benefits so employers often start with limited activities and preserve some positions and activities such as supervising, driving and packing to be completed by workers outside the H-2A contract.
Over time, employers generally expand the work activities for the flexibility in placement of H-2A workers in all work activities and because employers often provide non-H-2A workers the same or better wage and benefits as the H-2A workers.
Completing review of these issues now will prepare employers to begin the H-2A process. First-time H-2A employers should plan to begin the process approximately 6 months prior to the worker need to allow time to work through the many issues and considerations required by the program.