(a) Preferential treatment of aliens prohibited. The employer's job
offer to U.S. workers shall offer the U.S. workers no less than the same
benefits, wages, and working conditions which the employer is offering,
intends to offer, or will provide to H-2A workers. Conversely, no job
offer may impose on U.S. workers any restrictions or obligations which
will not be imposed on the employer's H-2A workers. This does not
relieve the employer from providing to H-2A workers at least the same
level of minimum benefits, wages, and working conditions which must be
offered to U.S. workers consistent with this section.
(b) Minimum benefits, wages, and working conditions. Except when
higher benefits, wages or working conditions are required by the
provisions of paragraph (a) of this section, DOL has determined that in
order to protect similarly employed U.S. workers from adverse effect
with respect to benefits, wages, and working conditions, every job offer
which must accompany an H-2A application always shall include each of
the following minimum benefit, wage, and working condition provisions:
(1) Housing. The employer shall provide to those workers who are not
reasonably able to return to their residence within the same day
housing, without charge to the worker, which may be, at the employer's
option, rental or public accommodation type housing.
(i) Standards for employer-provided housing. Housing provided by the
employer shall meet the full set of DOL Occupational Safety and Health
Administration standards set forth at 29 CFR 1910.142, or the full set
of standards at Secs. 654.404-654.417 of this chapter, whichever are
applicable, except as provided for under paragraph (b)(1)(iii) of this
section. Requests by employers, whose housing does not meet the
applicable standards, for conditional access to the intrastate or
interstate clearance system, shall be processed under the procedures set
forth at Sec. 654.403 of this chapter.
(ii) Standards for range housing. Housing for workers principally
engaged in the range production of livestock shall meet standards of the
DOL Occupational Safety and Health Administration for such housing. In
the absence of such standards, range housing for sheepherders and other
workers engaged in the range production of livestock shall meet
guidelines issued by ETA.
(iii) Standards for other habitation. Rental, public accomodation,
or other substantially similar class of habitation must meet local
standards for such housing. In the absence of applicable local
standards, State standards shall apply. In the absence of applicable
local or State standards, Occupational Safety and Health Administration
standards at 29 CFR 1910.142 shall apply. Any charges for rental housing
shall be paid directly by the employer to the owner or operator of the
housing. When such housing is to be supplied by an employer, the
employer shall document to the satisfaction of the RA that the housing
complies with the local, State, or federal housing standards applicable
under this paragraph (b)(1)(iii).
(iv) Charges for public housing. If public housing provided for
migrant agricultural workers under the auspices of a local, county, or
State government is secured by an employer, and use of the public
housing unit normally requires charges from migrant workers, such
charges shall be paid by the employer directly to the appropriate
individual or entity affiliated with the housing's management.
(v) Deposit charges. Charges in the form of deposits for bedding or
other similar incidentals related to housing shall not be levied upon
workers by employers who provide housing for their workers. However,
employers may require workers to reimburse them for damage caused to
housing by the individual workers found to have been responsible for
damage which is not the result of normal wear and tear related to
habitation.
(vi) Family housing. When it is the prevailing practice in the area
of intended employment and the occupation
to provide family housing, family housing shall be provided to workers
with families who request it.
(2) Workers' compensation. The employer shall provide, at no cost to
the worker, insurance, under a State workers' compensation law or
otherwise, covering injury and disease arising out of and in the course
of the worker's employment which will provide benefits at least equal to
those provided under the State workers' compensation law, if any, for
comparable employment. The employer shall furnish the name of the
insurance carrier and the insurance policy number, or, if appropriate,
proof of State law coverage, to the RA prior to the issuance of a labor
certification.
(3) Employer-provided items. Except as provided below, the employer
shall provide, without charge including deposit charge, to the worker
all tools, supplies, and equipment required to perform the duties
assigned; the employer may charge the worker for reasonable costs
related to the worker's refusal or negligent failure to return any
property furnished by the employer or due to such worker's willful
damage or destruction of such property. Where it is a common practice in
the particular area, crop activity and occupation for workers to provide
tools and equipment, with or without the employer reimbursing the
workers for the cost of providing them, such an arrangement is
permissible if approved in advance by the RA.
(4) Meals. Where the employer has centralized cooking and eating
facilities designed to feed workers, the employer shall provide each
worker with three meals a day. When such facilities are not available,
the employer either shall provide each worker with three meals a day or
shall furnish free and convenient cooking and kitchen facilities to the
workers which will enable the workers to prepare their own meals. Where
the employer provides the meals, the job offer shall state the charge,
if any, to the worker for such meals. Until a new amount is set pursuant
to this paragraph (b)(4), the charge shall not be more than $5.26 per
day unless the RA has approved a higher charge pursuant to Sec. 655.111
of this part. Each year the charge allowed by this paragraph (b)(4) will
be changed by the same percentage as the 12-month percent change in the
Consumer Price Index for All Urban Consumers for Food between December
of the year just concluded and December of the year prior to that. The
annual adjustments shall be effective on the date of their publication
by the Director as a notice in the Federal Register.
(5) Transportation; daily subsistence--(i) Transportation to place
of employment. The employer shall advance transportation and subsistence
costs (or otherwise provide them) to workers when it is the prevailing
practice of non-H-2A agricultural employers in the occupation in the
area to do so, or when such benefits are extended to H-2A workers. The
amount of the transportation payment shall be no less (and shall not be
required to be more) than the most economical and reasonable similar
common carrier transportation charges for the distances involved. If the
employer has not previously advanced such transportation and subsistence
costs to the worker or otherwise provided such transportation or
subsistence directly to the worker by other means and if the worker
completes 50 percent of the work contract period, the employer shall pay
the worker for costs incurred by the worker for transportation and daily
subsistence from the place from which the worker has come to work for
the employer to the place of employment. The amount of the daily
subsistence payment shall be at least as much as the employer will
charge the worker for providing the worker with three meals a day during
employment. If no charges will be made for meals and free and convenient
cooking and kitchen facilities will be provided, the amount of the
subsistence payment shall be no less than the amount permitted under
paragraph (b)(4) of this section.
(ii) Transportation from place of employment. If the worker
completes the work contract period, the employer shall provide or pay
for the worker's transportation and daily subsistence from the place of
employment to the place from which the worker, disregarding intervening
employment, came to work for the employer, or, if
the worker has contracted with a subsequent employer who has not agreed
in that contract to provide or pay for the worker's transportation and
daily subsistence expenses from the employer's worksite to such
subsequent employer's worksite, the employer shall provide or pay for
such expenses; except that, if the worker has contracted for employment
with a subsequent employer who, in that contract, has agreed to pay for
the worker's transportation and daily subsistence expenses from the
employer's worksite to such subsequent employer's worksite, the employer
is not required to provide or pay for such expenses.
(iii) Transportation between living quarters and worksite. The
employer shall provide transportation between the worker's living
quarters (i.e., housing provided by the employer pursuant to paragraph
(b)(1) of this section) and the employer's worksite without cost to the
worker, and such transportation will be in accordance with applicable
laws and regulations. This paragraph (b)(5)(iii) is applicable to the
transportation of workers eligible for housing, pursuant to paragraph
(b)(1) of this section.
(6) Three-fourths guarantee--(i) Offer to worker. The employer shall
guarantee to offer the worker employment for at least three-fourths of
the workdays of the total periods during which the work contract and all
extensions thereof are in effect, beginning with the first workday after
the arrival of the worker at the place of employment and ending on the
expiration date specified in the work contract or in its extensions, if
any. If the employer affords the U.S. or H-2A worker during the total
work contract period less employment than that required under this
paragraph (b)(6), the employer shall pay such worker the amount which
the worker would have earned had the worker, in fact, worked for the
guaranteed number of days. For purposes of this paragraph (b)(6), a
workday shall mean the number of hours in a workday as stated in the job
order and shall exclude the worker's Sabbath and federal holidays. An
employer shall not be considered to have met the work guarantee if the
employer has merely offered work on three-fourths of the workdays if
each workday did not consist of a full number of hours of work time
specified in the job order. The work shall be offered for at least
three-fourths of the workdays (that is, 3/4 x (number of days) x
(specified hours)). Therefore, if, for example, the contract contains 20
eight-hour workdays, the worker shall be offered employment for 120
hours during the 20 workdays. A worker may be offered more than the
specified hours of work on a single workday. For purposes of meeting the
guarantee, however, the worker shall not be required to work for more
than the number hours specified in the job order for a workday, or on
the worker's Sabbath or Federal holidays.
(ii) Guarantee for piece-rate-paid worker. If the worker will be
paid on a piece rate basis, the employer shall use the worker's average
hourly piece rate earnings or the AEWR, whichever is higher, to
calculate the amount due under the guarantee.
(iii) Failure to work. Any hours which the worker fails to work, up
to a maximum of the number of hours specified in the job order for a
workday, when the worker has been offered an opportunity to do so
pursuant to paragraph (b)(6)(i) of this section and all hours of work
actually performed (including voluntary work over 8 hours in a workday
or on the worker's Sabbath or federal holidays) may be counted by the
employer in calculating whether the period of guaranteed employment has
been met.
(iv) Displaced H-2A worker. The employer shall not be liable for
payment under this paragraph (b)(6) with respect to an H-2A worker whom
the RA certifies is displaced because of the employer's compliance with
Sec. 655.103(e) of this part.
(7) Records. (i) The employer shall keep accurate and adequate
records with respect to the workers' earnings including field tally
records, supporting summary payroll records and records showing the
nature and amount of the work performed; the number of hours of work
offered each day by the employer (broken out by hours offered both in
accordance with and over and above the three-fourths guarantee at
paragraph (b)(6) of this section); the hours actually worked
each day by the worker; the time the worker began and ended each
workday; the rate of pay (both piece rate and hourly, if applicable);
the worker's earnings per pay period; the worker's home address; and the
amount of and reasons for any and all deductions made from the worker's
wages;
(ii) If the number of hours worked by the worker is less than the
number offered in accordance with the three-fourths guarantee at
paragraph (b)(6) of this section, the records shall state the reason or
reasons therefore.
(iii) Upon reasonable notice, the employer shall make available the
records, including field tally records and supporting summary payroll
records for inspection and copying by representatives of the Secretary
of Labor, and by the worker and representatives designated by the
worker; and
(iv) The employer shall retain the records for not less than three
years after the completion of the work contract.
(8) Hours and earnings statements. The employer shall furnish to the
worker on or before each payday in one or more written statements the
following information:
(i) The worker's total earnings for the pay period;
(ii) The worker's hourly rate and/or piece rate of pay;
(iii) The hours of employment which have been offered to the worker
(broken out by offers in accordance with and over and above the
guarantee);
(iv) The hours actually worked by the worker;
(v) An itemization of all deductions made from the worker's wages;
and
(vi) If piece rates are used, the units produced daily.
(9) Rates of pay. (i) If the worker will be paid by the hour, the
employer shall pay the worker at least the adverse effect wage rate in
effect at the time the work is performed, the prevailing hourly wage
rate, or the legal federal or State minimum wage rate, whichever is
highest, for every hour or portion thereof worked during a pay period;
or
(ii)(A) If the worker will be paid on a piece rate basis and the
piece rate does not result at the end of the pay period in average
hourly piece rate earnings during the pay period at least equal to the
amount the worker would have earned had the worker been paid at the
appropriate hourly rate, the worker's pay shall be supplemented at that
time so that the worker's earnings are at least as much as the worker
would have earned during the pay period if the worker had been paid at
the appropriate hourly wage rate for each hour worked; and the piece
rate shall be no less than the piece rate prevailing for the activity in
the area of intended employment; and
(B) If the employer who pays by the piece rate requires one or more
minimum productivity standards of workers as a condition of job
retention,
(1) Such standards shall be specified in the job offer and be no
more than those required by the employer in 1977, unless the RA approves
a higher minimum; or
(2) If the employer first applied for H-2 agricultural or H-2A
temporary alien agricultural labor certification after 1977, such
standards shall be no more than those normally required (at the time of
the first application) by other employers for the activity in the area
of intended employment, unless the RA approves a higher minimum.
(10) Frequency of pay. The employer shall state the frequency with
which the worker will be paid (in accordance with the prevailing
practice in the area of intended employment, or at least twice monthly
whichever is more frequent).
(11) Abandonment of employment; or termination for cause. If the
worker voluntarily abandons employment before the end of the contract
period, or is terminated for cause, and the employer notifies the local
office of such abandonment or termination, the employer will not be
responsible for providing or paying for the subsequent transportation
and subsistence expenses of any worker for whom the employer would have
otherwise been required to pay such expenses under paragraph (b)(5)(ii)
of this section, and that worker is not entitled to the ``three-fourths
guarantee'' (see paragraph (b)(6) of this section).
(12) Contract impossibility. If, before the expiration date
specified in the work contract, the services of the
worker are no longer required for reasons beyond the control of the
employer due to fire, hurricane, or other Act of God which makes the
fulfillment of the contract impossible the employer may terminate the
work contract. In the event of such termination of a contract, the
employer shall fulfill the three-fourths guarantee at paragraph (b)(6)
of this section for the time that has elapsed from the start of the work
contract to its termination. In such cases the employer will make
efforts to transfer the worker to other comparable employment acceptable
to the worker. If such transfer is not effected, the employer shall:
(i) Offer to return the worker, at the employer's expense, to the
place from which the worker disregarding intervening employment came to
work for the employer,
(ii) Reimburse the worker the full amount of any deductions made
from the worker's pay by the employer for transportation and subsistence
expenses to the place of employment, and
(iii) Notwithstanding whether the employment has been terminated
prior to completion of 50 percent of the work contract period originally
offered by the employer, pay the worker for costs incurred by the worker
for transportation and daily subsistence from the place from which the
worker, without intervening employment, has come to work for the
employer to the place of employment. Daily subsistence shall be computed
as set forth in paragraph (b)(5)(i) of this section. The amount of the
transportation payment shall be no less (and shall not be required to be
more) than the most economical and reasonable similar common carrier
transportation charges for the distances involved.
(13) Deductions. The employer shall make those deductions from the
worker's paycheck which are required by law. The job offer shall specify
all deductions not required by law which the employer will make from the
worker's paycheck. All deductions shall be reasonable. The employer may
deduct the cost of the worker's transportation and daily subsistence
expenses to the place of employment which were borne directly by the
employer. In such cases, the job offer shall state that the worker will
be reimbursed the full amount of such deductions upon the worker's
completion of 50 percent of the worker's contract period. However, an
employer subject to the Fair Labor Standards Act (FLSA) may not make
deductions which will result in payments to workers of less than the
federal minimum wage permitted by the FLSA as determined by the
Secretary at 29 CFR part 531.
(14) Copy of work contract. The employer shall provide to the
worker, no later than on the day the work commences, a copy of the work
contract between the employer and the worker. The work contract shall
contain all of the provisions required by paragraphs (a) and (b) of this
section. In the absence of a separate, written work contract entered
into between the employer and the worker, the required terms of the job
order and application for temporary alien agricultural labor
certification shall be the work contract.
(c) Appropriateness of required qualifications. Bona fide
occupational qualifications specified by an employer in a job offer
shall be consistent with the normal and accepted qualifications required
by non-H-2A employers in the same or comparable occupations and crops,
and shall be reviewed by the RA for their appropriateness. The RA may
require the employer to submit documentation to substantiate the
appropriateness of the qualification specified in the job offer; and
shall consider information offered by and may consult with
representatives of the U.S. Department of Agriculture.
(d) Positive recruitment plan. The employer shall submit in writing,
as a part of the application, the employer's plan for conducting
independent, positive recruitment of U.S. workers as required by
Secs. 655.103 and 655.105(a) of this part. Such a plan shall include a
description of recruitment efforts (if any) made prior to the actual
submittal of the application. The plan shall describe how the employer
will engage in positive recruitment of U.S. workers to an extent (with
respect to both effort and location(s)) no less than that of non-H-2A
agricultural employers of comparable or smaller size in the area of
employment. When it is the prevailing
practice in the area of employment and for the occupation for non-H-2A
agricultural employers to secure U.S. workers through farm labor
contractors and to compensate farm labor contractors with an override
for their services, the employer shall describe how it will make the
same level of effort as non-H-2A agricultural employers and provide an
override which is no less than that being provided by non-H-2A
agricultural employers.
