Changes to H-2A are on the way! A Conversation with Nigel Bocanegra of CFLCA
California Farm Labor Contractor Association: 2022 Ag Labor Forum, November 10-11, 2022
As the Farm Workers Modernization Act (FWMA) continues to be debated in the Senate, the Department of Labor (DOL) has announced sweeping changes to the H-2A program poised to come into effect on November 12th, 2022. The 172-page final ruling (available on the Federal Register’s website) outlines several modernizations, modifications, and improvements to transition the 35-year-old program into the 21st century. We sat down with Nigel Bocanegra, Executive Director of the California Farm Labor Contractor Association (CFLCA) to help us digest these extensive updates and as well as discuss their upcoming Ag Labor Forum on November 10th and 11th in Visalia, California, which is set to host sessions in English and Spanish focused entirely on H-2A program topics and the alterations outlined within the new rule.
Unpacking the new H-2A program rule
On October 12th, 2022, the Biden administration published their much anticipated final rule, reforming the current H-2A program. “It’s quite a bit of information coming into effect” Nigel acknowledged. “That rule is touching on things like the debarment of attorneys and agents for their misconduct, rules on worker housing, health and safety standards, Employer-provided meal rules, clarifications on when employers are able to charge higher meal charges, things like joint employer findings for growers and H-2A LCs [labor contractors]...” Nigel continued. It is due to these vast changes that the CFLCA decided to dedicate one of its sessions to dissecting it. To help highlight some of the most important changes for employers, Jeanne Malitz, principal for Malitz Law, will also be joining the session.
“This is a session that could probably go on for hours [and] hours if we truly allow it to. So this will be a great opportunity for folks to really get a quick overview of what to expect to be able to better navigate what's coming next.”
- Nigel Bocanegra, Executive Director, CFLCA
For those looking to dive deeper into the rule, the Department of Labor’s press release announcing the new rule surfaced these important elements:
Improves safety and health protections for workers housed in rental or public accommodations.
Streamlines and updates bond requirements for labor contractors to better hold them accountable and clarifies joint-employer status for employers and associations.
Clarifies the housing certification process to allow state and local authorities to conduct housing inspections.
Establishes explicit authority to debar attorneys and agents for their misconduct, independent of an employer’s violations.
Makes electronic filing mandatory for most applications to improve employers’ processing efficiency.
Modernizes the methodology and procedures for determining the prevailing wage to allow state workforce agencies to produce more prevailing wage findings.
What about the Farm Worker Modernization Act (FWMA)?
In a previous article, we covered 5 things you need to know about the Farm Worker Modernization Act (FWMA) currently sitting in the Senate. With these new changes coming into effect now, it is easy to see why there needs to be clarity on how it is related to the FWMA. Nigel helped us break down the differences. “It's really interesting,” Nigel began, “The program rule that just came out actually got started under the Trump administration. The Trump administration, published its intent to put out this rule right as they were coming into office and the Biden administration, upon taking office, withdrew the rule to take it back for edits, changes and I think reforming that rule into something that was more along the lines of how they wanted to see it.”
With this rule, the FWMA isn’t being circumvented, but rather bolstered with supportive language and policy. “You have a really interesting dichotomy between the legislature/congress, and the administration,” Nigel explained.
“Because some of the regulations about the program are specifically outlined by Congress, they cannot be changed unless Congress takes action by passing a new bill. But, there are some other pieces of the program that are more implemented by the administration, by the Department of Labor, and how they are trying to implement the direction that they have been given from Congress.”
This separation of responsibilities is what makes this new rule necessary.
So what will be the final product once both the rule and bill are enacted? Nigel said it’s hard to tell. “There are certainly differences and [...] overlapping interests or direction when it comes to what was published in the Farm Workforce Modernization Act, [but] the added caveat is we won't know exactly what's in the Farm Workforce Modernization Act until it is totally voted on and approved [...] there's always little amendments or last second changes. It certainly adds a layer of complication and I would expect there to be additional changes that come if the Farm Workforce Modernization Act is passed and signed.”
““There is so much that I think is riding on an employer’s ability to continually access the program. [...] It’s really, really important that employers take the time to familiarize themselves.”
What advice would you give to Farm Labor Contractors (FLCs) or Growers?
Nigel’s first tip for employers interested in learning the new rule is to take a deep dive into the document itself. “I think that the easiest starting point certainly would be the Department of Labor's announcements of the final rule that was published,” Nigel stated. “I think that the Department of Labor is certainly going to highlight some of the probably most impactful changes or most substantive changes […] on what people need to be compliant with.” With that said, Nigel does understand that even though the document is the easiest starting point, it may not feel that way. “But there is so much, [...] liability and pressure on employers who use the H-2A program because if there's something in your application that could cause it to be denied, or you have failed to meet a specific standard to the degree that they require, [...] you may be debarred from the program at a pretty extreme disciplinary action.” Nigel advised that it is even more important to do the homework with these increasing pressures.
“There is so much that I think is riding on an employer's ability to continually access the program. [...] It's really, really important that employers take the time to familiarize themselves. [...] So I do recommend that employers read through the rule. It is a lot of information. But in order to, [...] maximize your likelihood of remaining compliant, I certainly recommend reading and I actually would also recommend taking time to look at what associations or law firms have been putting out as far as their analysis goes, I think that that's a really important piece too.”
Nigel also made a specific callout for FLCs in his review of the H-2A program rules, calling attention to the importance of paying attention to what the DOL determines as “a seasonal or temporary need” for workers. “[This is] something that people should really be paying attention to as they write their H-2A petitions. They made a note [...] that said H-2A LCs, or farm labor contractors using the program, need to be able to demonstrate a need for seasonal or temporary workers. That is totally separate from their [FLC’s] clients. So you would not be able to submit a petition and solely base your request for need based on your client's need for temporary workers. Department of Labor says it needs to be separate, which means employers are going to need to be very careful, I think, in how they are writing and filling out their applications to ensure that they are demonstrating that seasonal or temporary need to ensure that their applications would be approved.”
“ FLCs using the program, need to be able to demonstrate a need for seasonal or temporary workers. That is totally separate from their clients.”
Where to learn more
If you are located in California, the California Farm Labor Contractor Association will be hosting a session in its annual Ag Labor Forum, on November 10th & 11th. Register here.
The Ag Labor Forum will also include a separate session focusing on other important topics for those following the H-2A program with expert insight, Nigel pointed out. “We have three speakers on a panel. We have Daniel Ross, who is an H-2A attorney with Seso. Karen Schindler, who's the executive director with Aztec Foreign Labor, and Megan Wright, who is the director of industry relations with másLabor. The goal of this session is to focus on the important hot topics that H-2A users or prospective users of the program should be aware of as we're going into next year.” Nigel also noted that there will be a discussion on the impending Wage Rule that could have major implications for employers. “We’ve gathered these three industry experts to touch on some other topics as well, to just make sure employers are kept up to date on H-2A issues.”
If you are located in the pacific northwest, Wafla will be hosting sessions during its annual H-2A Summits in Oregon on November 10th, and Washington on January 12th. Register here.
If you are unable to attend events for either organization, check out the U.S Department of Labor’s webinar schedule on H-2A topics here.
The DOL has also been publishing FAQs outlining common questions employers have about the H-2A program and will be posting additional resources on their Announcements page. There is also an option to subscribe for Email Updates.
About California Farm Labor Contractor Association
The California Farm Labor Contractor Association (CFLCA) provides invaluable services and benefits for farm labor contractors, growers, and affiliated organizations that serve the agriculture industry. From mandated licensing education to advocacy and labor management best practices, CFLCA supports you and your unique needs to run a successful and compliant ag operation. Their sole focus is the betterment of the farm labor contracting industry.