12 Best Practices for Hiring H-2A Workers

May 10, 2016

By Ellen S. Jackson and Brendan V. Monahan | Related Practices: Agriculture and Employment

Stokes Lawrence Velikanje Moore & Shore Shareholder Brendan Monahan was recently profiled in a post by Good Fruit Grower. The post highlighted tips Brendan shared for agriculture employers considering hiring workers under the H-2A visa program, including:

  1. Use a labor contractor licensed by the state Department of Labor and Industries. Using an unlicensed recruiter can fetch a minimum $1,000 per worker in statutory damages in Washington in the event of a lawsuit.

  2. Have an attorney review the contract each year. The rules — and how the U.S. Department of Labor and states apply them — change year to year.

  3. Strictly forbid, both verbally and in writing, the collection of any form of payment from the guest workers, either in Mexico or elsewhere. Spot-audit the employees upon arrival and investigate any allegations of kickbacks, bribes or fees. Such violations of H-2A regulations could trigger triple-damage lawsuits.

  4. Consider purchasing insurance that covers workers en route from their country. Workers compensation law is unsettled about when and where it applies to H-2A workers.

  5. Double check that the insurance covers workers’ injuries sustained at housing facilities for all hours.

  6. Pay travel costs up front, even though the law requires payment only after 50 percent of the contracted work has been done. If you plan to recover those costs from workers who do not complete 50 percent, address it in the contract.

  7. Comply meticulously with domestic recruiting laws, including with prior workers. Practice “positive recruitment,” meaning don’t overlook eligible, qualified U.S. workers who apply for a job. More info can be found here: bit.ly/1omWAam.

  8. Consult counsel about the geographic region and categories of employees who must be offered terms of employment described in a clearance order. The law requires that domestic workers get a fair chance to consider and accept the same terms and conditions offered to an H-2A employee; it’s the most litigated portion of H-2A law. The stipulation becomes more complicated the greater the geographic area an employer covers, the greater the variety of crops and the more legal entities involved in the corporate structure.

  9. Train supervisory employees and staff about where and how domestic applicants should apply and the terms they will be offered. They must offer job opportunities to anyone who applies for work through 50 percent of the contract window. For example, if an employer receives federal approval for 200 H-2A workers for June 1 through Oct. 30, they must offer the same jobs to domestic applicants through Aug. 15.

  10. Document everything — all contact with domestic workers, all lunch and rest breaks, all hours worked and all labor contractor licenses displayed.

  11. Consult counsel about inviting and not inviting workers, either in the first place or for a return trip.

  12. Install safeguards to prevent bribery or unlawful favoritism. Document all reasons behind a decision to decline to invite workers to return. The law allows employers to pick and choose which workers to invite back, but plaintiffs’ lawyers may allege retaliation or “blackballing.” To avoid accusations, clearly document the reasons why a worker has or has not been invited to return.