EMPLOYER OBLIGATIONS AND REQUIREMENTS
YOUR OBLIGATION TO RECRUIT AND EMPLOY U.S. WORKERS
As a pre-condition to your employment of H-2a workers, the Association begins by:
- Filing an interstate clearance order with the local office of the State Job Service.
- Conducting domestic worker recruitment activities on your behalf.
SRFA member/employers must then employ ALL qualified U.S. workers who make themselves available or are referred by the employment service, including qualified non-local (i.e. migrant) U.S. workers who may be available in other areas of the state or in other states. The employer will be permitted to employ only sufficient H-2 alien workers to make up the difference between the number of workers needed and the number of qualified U.S. workers available. The employer must continue to accept qualified U.S. workers who apply for the job until 50 percent of the work contract for which the alien workers were sought has lapsed.
WAGE REQUIREMENTS
All U.S. and foreign workers hired to perform the duties listed on the job order must be paid at least the adverse effect wage rate which is in effect at the time the work is performed. Surveys are conducted annually by the Department of Agriculture to determine the Adverse Effect Wage Rate (AEWR), and are based on the average hourly earnings of field and livestock workers within the region.
Job duties that are typically paid by a piece-rate incentive must guarantee that the worker will earn at least the adverse effect wage rate established for that year. Minimum piece-rate incentives are established by the Department of Labor who, through surveys, determine the prevailing practice of employers as it relates to piece-rate earnings. Employers are notified annually, by the Association, of the new Adverse Effect Wage Rate and the current prevailing piece rates they will be required to pay.
LOCAL TRANSPORTATION
Necessary transportation from the employer-provided housing to and from the work site and between work sites must be provided at no cost to the worker. Such transportation must be in accordance with applicable laws and regulations.
INBOUND AND OUTBOUND TRANSPORTATION AND SUBSISTENCE
Employer will reimburse worker for reasonable (most economical common carrier or other transportation which conforms to Interstate Commerce Commission (ICC) regulations) in-bound transportation and reasonable subsistence, if any, from place of recruitment to place of employment after 50 percent of the work contract is completed. Upon completion of work contract, employer will provide or pay for transportation and reasonable subsistence to place of recruitment by the most economical common carrier or other transportation which conforms to ICC regulations.
WORKER'S COMPENSATION INSURANCE
In order for the Department of Labor to issue certification for an employer to receive H-2A workers, regulations require that H-2A and U.S. workers recruited will be covered by worker's compensation and occupation disease insurance at no cost to the workers. Ordinary farm employer liability insurance does not meet this requirement. This insurance must be in force 20 days before your workers arrive and it must remain in effect during the entire time you employ any H-2A or U.S. workers referred under the irrigator Job Order. If you have any questions about your insurance, please call the Association office. Employers are required to file a Notice of Injury Report with the Industrial Commission within 10 days after an injury to a worker occurs.
FOOD AND SHOPPING
Kitchen facilities, utilities and utensils will be provided by employers at no cost to workers. Workers will provide and prepare their own meals. Upon request, employers will provide transportation to stores at least every two weeks for shopping for food and other necessary items at no cost to the workers.
TOOLS AND EQUIPMENT
All tools, supplies and equipment required to perform the duties assigned will be provided at no cost to the worker, including boots, gloves and aprons. The worker will be required to return worn out supplies before new supplies will be provided.
FIRST WEEK GUARANTEE
Both U.S. and H-2A workers must be offered work for the full first week of the work period shown on your Job Order. The employer must offer 8 hours of work each day of that period except the worker's Sabbath. Alternative work is permitted if the work for which the worker was hired is not yet available. This guarantee applies for the seven calendar days beginning with the date of need shown on your Clearance Order.
THREE-QUARTER GUARANTEE
All workers employed under an Interstate Clearance Order and Alien Labor Certification Application are protected by the "Three-Quarters guarantee." This guarantees workers that they will be offered work for at least three-quarters of the eight-hour workdays of the contract period and any extensions. The following hours count toward fulfillment of the three-quarters guarantee:
- All hours worked.
- Hours of work offered to the worker which the worker did not work. (For this purpose, hours offered but not worked plus hours actually worked may not exceed 8 hours in a day, and hours offered but not worked on the worker's Sabbath and on Federal holidays may not be counted.)
If the employer affords less employment, he must pay the amount that the worker would have earned had he been employed the guaranteed number of days.
Employers should monitor and assure fulfillment of the three-quarters guarantee.
If it becomes necessary for any reason to terminate a worker or if a worker quits before the three-quarters guarantee has been fulfilled, it is very important that the employer report this information to the Association office immediately so that it can be submitted to the Department of Labor. Failure to report this information, along with the reasons for such a termination or quit, can make the employer liable to the worker for the three-quarter guarantee.
WORK CONTRACT
All U.S. and H-2A workers must receive signed work contracts before employment commences. An updated version of the contract with the appropriate piece-rate and hourly rates are prepared and mailed to you annually. They are distributed in English and in Spanish and comply with the conditions that have been set forth in the job order for the current season.
HOUSING
The employer must provide free housing to both his H-2A and U.S. workers who are not reasonably able to return to their residences the same day. Such housing, for the total number of workers who will reside there, must be inspected and approved according to appropriate standards. Generally, housing provided must meet the full set of standards established by DOL's Occupational Safety and Health Administration (OSHA). Rental housing which meets local or state health and safety standards also may be provided.
Workers may be housed only in the housing described on the Job Order and which was inspected and approved by the local Job Service. This housing must continue to be maintained in compliance with the applicable standards throughout the period of occupancy. This is the employer's responsibility. Employers should inspect housing frequently during occupancy to note and attend to any damage or needed repairs, and assure that the housing and its environs are kept clean and presentable.
Occupancy of the housing by more than the number of persons for which it was approved is not permitted.
Please see the housing inspection page for a checklist to use as a guide to prepare your housing. | 