Friday, May 3, 2024


NCAE slams new H-2A rule

A new H-2A rule from the Department of Labor is being slammed by the National Council of Agricultural Employers.

“This offensive rule was developed in complete bad faith and should be immediately withdrawn,” Michael Marsh, president and CEO of the National Council of Agricultural Employers, said in a news release. “This regulation should never have been allowed to see the light of day. To suggest this regulation somehow protects farmworkers is a bad joke and its punchline is its lasting damage to farmworkers and the American farm and ranch families who employ them.”

In a summary of the regulation, effective June 28, the Department of Labor said the 600-page rule focuses on strengthening protections for temporary agricultural workers and enhancing the department's capabilities to monitor program compliance and take necessary enforcement actions against program violators. The agency said the rule prohibits unfair treatment by employers, by expanding and “explicitly protecting certain activities all workers must be able to engage in without fear of intimidation, threats and other forms of retaliation.”

The agency said the final rule includes these changes:

  • Expands and clarifies the range of activities that are protected by the anti-retaliation provisions to include consulting with key service providers on matters related to the H-2A program; filing a complaint related to any applicable federal, state or local laws or regulation; and, for workers not already protected by the National Labor Relations Act, engaging in self-organization or concerted activities and leaving or declining to attend employer-sponsored “captive audience” meetings.
  • Clarifies that workers are permitted to invite and accept guests — including friends and family, key service providers, labor organizations and others — to employer-furnished housing.
  • Permits workers not covered by the NLRA to designate a representative for certain meetings where an employer seeks to gather information that may result in discipline.
  • Clarifies when a termination is “for cause” to ensure that workers are not arbitrarily and unjustly terminated in order to strip them of essential rights to which they would otherwise be entitled, including the three-fourths guarantee, housing and meals until the worker leaves, outbound transportation and, if the worker is a U.S. worker, to be contacted for employment in the next year.
  • Includes requirements to better inform workers of job conditions and assist the Department to protect vulnerable workers from exploitation and abuse.
  • Requires employers to pay the updated Adverse Effect Wage Rate immediately upon publication in the Federal Register.
  • Improves transportation safety by prohibiting, in most vehicles, the transport of workers unless each occupant is wearing a seat belt.
  • Helps prevent labor exploitation and human trafficking by expressly prohibiting employers from holding or confiscating a worker’s passport, visa or other immigration or government identification documents.
  • Streamlines and clarifies procedures for debarment.
  • Improves protections for workers if the start of work is delayed.


Marsh said the rule puts workers at further jeopardy from union activists.

“Shockingly, under this new rule, the department asserts that unionization of H-2A Temporary Agricultural workers is not preempted by the laws passed by Congress,” Marsh said. “This unequivocally contradicts the Congress’ specific exclusion of agricultural laborers under the National Labor Relations Act of 1935.”

Marsh said the rule will hurt U.S. growers.

“American farmers and ranchers grow and produce the safest, most sustainable food in the world,” he said. "If the portion of the American public who eats wishes to find food produced by American families, the incessant barrage of deleterious and crushing regulations targeting agricultural employers must stop. The acting secretary should withdraw this regulation, squalid in its bad faith, immediately.”

Marsh said the Department of Labor disregarded the pleas of U.S. farm and ranch families when it denied employers’ requests to extend the comment period so that they could adequately express their concerns about what he called a "convoluted regulation."

Source: The Packer