(a) Investigation of violations. If, during the period of two years
after a temporary alien agricultural labor certification has been
granted (in whole or in part), the RA has reason to believe that an
employer violated a material term or condition of the temporary alien
agricultural labor certification, the RA shall, except as provided in
paragraph (b) of this section, investigate the matter. If, after the
investigation, the RA determines that a substantial violation has
occurred, the RA, after consultation with the Director, shall notify the
employer that a temporary alien agricultural certification request will
not be granted for the next period of time in a calendar year during
which the employer would normally be expected to request a temporary
alien agricultural labor certification, and any application subsequently
submitted by the employer for that time period will not be accepted by
the RA. If multiple or repeated substantial violations are involved, the
RA's notice to the employer shall specify that the prospective denial of
the temporary alien agricultural labor certification will apply not only
to the next anticipated period for which a temporary alien agricultural
labor certification would normally be requested, but also to any periods
within the coming two or three years; two years for two violations, or
repetitions of the same violations, and three years for three or more
violations, or repetitions thereof. The RA's notice shall be in writing,
shall state the reasons for the determinations, and shall offer the
employer an opportunity to request an expedited administrative review or
a de novo hearing before an administrative law judge of the
determination within seven calendar days of the date of the notice. If
the employer requests an expedited administrative review or a de novo
hearing before an administrative law judge, the procedures in
Sec. 655.112 of this part shall be followed.
(b) Employment Standards Administration investigations. The RA may
make the determination described in paragraph (a) of this section based
on information and recommendations provided by the Employment Standards
Administration, after an Employment Standards Administration
investigation has been conducted in accordance with the Employment
Standards Administration procedures, that an employer has not complied
with the terms and conditions of employment prescribed as a condition
for a temporary alien agricultural labor certification. In such
instances, the RA need not conduct any investigation of his/her own, and
the subsequent notification to the employer and other procedures
contained in paragraph (a) of this section will
apply. Penalties invoked by the Employment Standards Administration for
violations of temporary alien agricultural labor certification terms and
conditions shall be treated and handled separately from sanctions
available to the RA, and an employer's obligations for compliance with
the Employment Standards Administration's enforcement penalties shall
not absolve an employer from sanctions applied by ETA under this section
(except as noted in paragraph (a) of this section).
(c) Less than substantial violations--(1) Requirement of special
procedures. If, after investigation as provided for under paragraph (a)
of this section, or an Employment Standards Administration notification
as provided under paragraph (b) of this section, the RA determines that
a less than substantial violation has occurred, but the RA has reason to
believe that past actions on the part of the employer may have had and
may continue to have a chilling or otherwise negative effect on the
recruitment, employment, and retention of U.S. workers, the RA may
require the employer to conform to special procedures before and after
the temporary alien labor certification determination (including special
on-site positive recruitment and streamlined interviewing and referral
techniques) designed to enhance U.S. worker recruitment and retention in
the next year as a condition for receiving a temporary alien
agricultural labor certification. Such requirements shall be reasonable,
and shall not require the employer to offer better wages, working
conditions and benefits than those specified in Sec. 655.102 of this
part, and shall be no more than deemed necessary to assure employer
compliance with the test of U.S. worker availability and adverse effect
criteria of this subpart. The RA shall notify the employer in writing of
the special procedures which will be required in the coming year. The
notification shall state the reasons for the imposition of the
requirements, state that the employer's agreement to accept the
conditions will constitute inclusion of them as bona fide conditions and
terms of a temporary alien agricultural labor certification, and shall
offer the employer an opportunity to request an administrative review or
a de novo hearing before an administrative law judge. If an
administrative review or de novo hearing is requested, the procedures
prescribed in Sec. 655.112 of this part shall apply.
(2) Failure to comply with special procedures. If the RA determines
that the employer has failed to comply with special procedures required
pursuant to paragraph (c)(1) of this section, the RA shall send a
written notice to the employer, stating that the employer's otherwise
affirmative temporary alien agricultural labor certification
determination will be reduced by twenty-five percent of the total number
of H-2A aliens requested (which cannot be more than those requested in
the previous year) for a period of one year. Notice of such a reduction
in the number of workers requested shall be conveyed to the employer by
the RA in the RA's written temporary alien agricultural labor
certification determination required by Sec. 655.101 of this part (with
the concurrence of the Director). The notice shall offer the employer an
opportunity to request an administrative review or a de novo hearing
before an administrative law judge. If an administrative review or de
novo hearing is requested, the procedures prescribed in Sec. 655.112 of
this part shall apply, provided that if the administrative law judge
affirms the RA's determination that the employer has failed to comply
with special procedures required by paragraph (c)(1) of this section,
the reduction in the number of workers requested shall be twenty-five
percent of the total number of H-2A aliens requested (which cannot be
more than those requested in the previous year) for a period of one
year.
(d) Penalties involving members of associations. If, after
investigation as provided for under paragraph (a) of this section, or
notification from the Employment Standards Administration under
paragraph (b) of this section, the RA determines that a substantial
violation has occurred, and if an individual producer member of a joint
employer association is determined to have committed the violation, the
denial of temporary alien agricultural labor certification penalty
prescribed in paragraph (a) shall apply only to
that member of the association unless the RA determines that the
association or other association member participated in, had knowledge
of, or had reason to know of the violation, in which case the penalty
shall be invoked against the association or other association member as
well.
(e) Penalties involving associations acting as joint employers. If,
after investigation as provided for under paragraph (a) of this section,
or notification from the Employment Standards Administration under
paragraph (b) of this section, the RA determines that a substantial
violation has occurred, and if an association acting as a joint employer
with its members is determined to have committed the violation, the
denial of temporary alien agricultural labor certification penalty
prescribed in paragraph (a) of this section shall apply only to the
association, and shall not be applied to any individual producer member
of the association unless the RA determines that the member participated
in, had knowledge of, or reason to know of the violation, in which case
the penalty shall be invoked against the association member as well.
(f) Penalties involving associations acting as sole employers. If,
after investigation as provided for under paragraph (a) of this section,
or notification from the Employment Standards Administration under
paragraph (b) of this section, the RA determines that a substantial
violation has occurred, and if an association acting as a sole employer
is determined to have committed the violation, no individual producer
member of the association shall be permitted to employ certified H-2A
workers in the crop and occupation for which the H-2A workers had been
previously certified for the sole employer association unless the
producer member applies for temporary alien agricultural labor
certification under the provisions of this subpart in the capacity of an
individual employer/applicant or as a member of a joint employer
association, and is granted temporary alien agricultural labor
certification by the RA.
(g) Types of violations--(1) Substantial violation. For the purposes
of this subpart, a substantial violation is one or more actions of
commission or omission on the part of the employer or the employer's
agent, with respect to which the RA determines:
(i)(A) That the action(s) is/are significantly injurious to the
wages, benefits, or working conditions of 10 percent or more of an
employer's U.S. and/or H-2A workforce; and that:
(1) With respect to the action(s), the employer has failed to comply
with one or more penalties imposed by the Employment Standards
Administration for violation(s) of contractual obligations found by that
agency (if applicable), or with one or more decisions or orders of the
Secretary or a court pursuant to Sec. 216 of the INA (8 U.S.C. 1186),
this subpart, or 29 CFR part 501 (Employment Standards Administration
enforcement of contractual obligations); or
(2) The employer has engaged in a pattern or practice of actions
which are significantly injurious to the wages, benefits, or working
conditions of 10 percent or more of an employer's U.S. and/or H-2A
workforce;
(B) That the action(s) involve(s) impeding an investigation of an
employer pursuant to Sec. 216 of the INA (8 U.S.C. 1186), this subpart,
or 29 CFR part 501 (Employment Standards Administration enforcement of
contractual obligations);
(C) That the employer has not paid the necessary fee in a timely
manner;
(D) That the employer is not currently eligible to apply for a
temporary alien agricultural labor certification pursuant to
Sec. 655.210 of this part (failure of an employer to comply with the
terms of a temporary alien agricultural labor certification in which the
application was filed under subpart C of this part prior to June 1,
1987); or
(E) That there was fraud involving the application for temporary
alien agricultural labor certification of that the employer made a
material misrepresentation of fact during the application process; and
(ii) That there are no extenuating circumstances involved with the
action(s) described in paragraph (g)(1)(i) of this section (as
determined by the RA).
(2) Less than substantial violation. For the purposes of this
subpart, a less
than substantial violation is an action of commission or omission on the
part of the employer or the employer's agent which violates a
requirement of this subpart, but is not a substantial violation.
