H2A Program Compliance

H2A program complianceThe H2A guest worker program allows agricultural employers to request non-immigrant temporary or seasonal foreign workers to fill positions that they are unable to fill with U.S. workers.  If you are an employer who participates in the H2A program you know how complicated and onerous the filing requirements can be.  What you might not now is how strictly the regulations of the program are enforced by the Wage and Hour Division of the U.S. Department of Labor.  That agency is responsible for conducting investigations of H2A employers to determine if they are in compliance with all aspects of the program as outlined on their Temporary Employment Certification Form 9142.

Labor Brain employees conducted numerous investigations of H2A employers during their time as federal investigators. They did investigations on sheep ranches, cattle ranches, orchards, vegetable growers, and sheep shearing companies. Due to the complexity of the H2A regulation and how it interacts with other federal statutes like the Fair Labor Standards Act, not once did any of those investigations result in a finding of no violation. The Labor Brain can help your company understand the H2A regulations and help you come into compliance with all aspects of the program. For an H2A employer the cost of non-compliance is high because of fines associated with the program. Most H2A fines range between $1,658 and $16,579 for each violation. For many violations the totals can go up exponentially if they are multiplied by the number of workers affected.  The total amount of fines owed in an investigation can exceed $100,000.

It’s difficult to pick the most common violations that occur under H2A because there so many potential problem areas but here are several that we’ve seen time and time again:

  • Not paying employees on time.
  • Misrepresenting the number of workers needed or the time period for which they are needed.
  • Not giving employees pay stubs with required information.
  • Not doing proper recruitment of U.S. workers (purposefully not hiring U.S. workers in order to get more H2A workers)
  • Not providing adequate housing that meets the housing standards.
  • Not including all the perks of a job in the advertisement used to recruit U.S. workers.
  • Having H2A workers work in jobs that aren’t included in the job description.
  • Not paying U.S. corresponding workers the H2A wage.
  • Employees paying agent fees or visa fees.
  • If employees are covered by the minimum wage law of the Fair Labor Standards Act  – not reimbursing employees for travel costs (from home) to the extent that it takes them below minimum wage in the first week. The H2A regulations require payment of these costs at 50% of the contract but if the FLSA also applies then the employer has to make sure that these costs don’t reduce the employees’ pay below minimum wage per hour during their first week of work.

The general H2A guidelines and regulations apply to most H2A employers however there are special procedures for employers who are engaged in open range livestock production (sheep, goats, cattle)itinerant sheep shearing, commercial bee keeping, and multi-state custom combines.

The Labor Brain Inc. was created to get employers the information they need to stay in compliance. Almost all H2A program violations occur as a result of employer ignorance, not employer malice.  Please contact us if you would like some help navigating the H2A program.  And check out our special service for H employers: The H Audit.  The consequences of being found out of compliance can be devastating to employers and employees alike.

The Labor Brain Inc. is not a law firm and its employees do not practice law or provide legal services.  The information provided on our website,  in email correspondence with representatives of The Labor Brain, and at outreach events is for informational and educational purposes only.  The information provided is not a substitute for the advice of an attorney.