Improving Protections for Workers in Temporary Agricultural Employment in the United States

Federal RegisterSep 15, 2023

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DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Parts 651, 653, 655, and 658

Wage and Hour Division

29 CFR Part 501

[DOL Docket No. ETA-2023-0003]

RIN 1205-AC12

Improving Protections for Workers in Temporary Agricultural Employment in the United States

AGENCY:

Employment and Training Administration and Wage and Hour Division, Department of Labor.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

The Department of Labor (Department or DOL) proposes to amend its regulations governing the certification of temporary employment of nonimmigrant workers employed in temporary or seasonal agricultural employment and the enforcement of the contractual obligations applicable to employers of these nonimmigrant workers. The revisions proposed in this notice of proposed rulemaking (NPRM or proposed rule) focus 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.

DATES:

Interested persons are invited to submit written comments on the proposed rule on or before November 14, 2023.

ADDRESSES:

You may submit comments electronically by the following method:

Federal eRulemaking Portal: https://www.regulations.gov.

Follow the instructions on the website for submitting comments.

Instructions:

Include the agency's name and docket number ETA-2023-0003 in your comments. All comments received will become a matter of public record and will be posted without change to

https://www.regulations.gov.

Please do not include any personally identifiable or confidential business information you do not want publicly disclosed.

FOR FURTHER INFORMATION CONTACT:

For further information regarding 20 CFR parts 651, 653, and 658, contact Kimberly Vitelli, Administrator, Office of Workforce Investment, Employment and Training Administration, Department of Labor, Room C-4526, 200 Constitution Avenue NW, Washington, DC 20210, telephone: (202) 693-3980 (this is not a toll-free number). For further information regarding 20 CFR part 655, contact Brian Pasternak, Administrator, Office of Foreign Labor Certification, Employment and Training Administration, Department of Labor, 200 Constitution Avenue NW, Room N-5311, Washington, DC 20210, telephone: (202) 693-8200 (this is not a toll-free number). For further information regarding 29 CFR part 501, contact Amy DeBisschop, Director of the Division of Regulations, Legislation, and Interpretation, Wage and Hour Division, Department of Labor, Room S-3502, 200 Constitution Avenue NW, Washington, DC 20210, telephone: (202) 693-0406 (this is not a toll-free number). Individuals with hearing or speech impairments may access the telephone number above via TTY by calling the toll-free Federal Information Relay Service at 1-800-877-5627.

SUPPLEMENTARY INFORMATION:

Preamble Table of Contents

I. Acronyms and Abbreviations

II. Background and Overview

A. Legal Authority

B. Current Regulatory Framework

C. Need for Rulemaking

D. Summary of Major Provisions of This Proposed Rule

III. Discussion of Proposed Revisions to Employment Service Regulations

A. Introduction

B. Discussion of Proposed Revisions to 20 CFR Part 651

C. Discussion of Proposed Revisions to 20 CFR Part 653

D. Discussion of Proposed Revisions to 20 CFR Part 658, Subpart F

IV. Discussion of Proposed Revisions to 20 CFR Part 655, Subpart B

A. Introductory Sections

B. Prefiling Procedures

C. Application for Temporary Employment Certification Filing Procedures

D. Labor Certification Determinations

E. Post-Certification

F. Integrity Measures

V. Discussion of Proposed Revisions to 29 CFR Part 501

A. Section 501.3 Definitions

B. Section 501.4 Discrimination Prohibited

C. Section 501.10 Severability

D. Sections 501.20, 501.33, 501.42 Debarment and Revocation

E. Section 501.33 Request for Hearing

VI. Administrative Information

A. Executive Order 12866: Regulatory Planning and Review; Executive Order 14094: Modernizing Regulatory Review; and Executive Order 13563: Improving Regulation and Regulatory Review

B. Regulatory Flexibility Analysis and Small Business Regulatory Enforcement Fairness Act and Executive Order 13272: Proper Consideration of Small Entities in Agency Rulemaking

C. Paperwork Reduction Act

D. Unfunded Mandates Reform Act of 1995

E. Executive Order 13132 (Federalism)

F. Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments)

I. Acronyms and Abbreviations

AEWR Adverse effect wage rate

AIE Area(s) of intended employment

ALJ Administrative Law Judge

AOWL Agricultural Online Wage Library

ARB Administrative Review Board

ARIMA Autoregressive integrated moving average

BALCA Board of Alien Labor Certification Appeals

BLS Bureau of Labor Statistics

CBA Collective bargaining agreement

CDC Centers for Disease Control and Prevention

CFR Code of Federal Regulations

CO Certifying Officer

CY Calendar year

DBA Doing Business As

DHS Department of Homeland Security

DOJ Department of Justice

DOL Department of Labor

DOT Department of Transportation

EEOC Equal Employment Opportunity Commission

E.O. Executive Order

ES Employment Service

ES system Employment Service system

ETA Employment and Training Administration

FEIN Federal Employer Identification Number

FLS Farm Labor Survey

FLSA Fair Labor Standards Act

FR Federal Register

FY Fiscal year

GAO Government Accountability Office

GHSA Governors Highway Safety Association

GVWR Gross vehicle weight rating

H-2ALC H-2A labor contractor

HR Human resources

ICR Information Collection Request

INA Immigration and Nationality Act

IRCA Immigration Reform and Control Act of 1986

MSFW Migrant or seasonal farmworker

MSPA Migrant and Seasonal Agricultural Worker Protection Act

NAICS North American Industry Classification System

NGO Nongovernmental organization

NHTSA National Highway Traffic Safety Administration

NLRA National Labor Relations Act

NLRB National Labor Relations Board

NMA National Monitor Advocate

NOD Notice of Deficiency

NPC National Processing Center

NPRM Notice of proposed rulemaking

OALJ Office of Administrative Law Judges

OEWS Occupational Employment and Wage Statistics

OFLC Office of Foreign Labor Certification

OIG Office of Inspector General

OIRA Office of Information and Regulatory Affairs

OMB Office of Management and Budget

OSHA Occupational Safety and Health Administration

PRA Paperwork Reduction Act

Pub.L. Public Law

PY Program year

RFA Regulatory Flexibility Act

RIN Regulation Identifier Number

SBA Small Business Administration

Sec. Section of a Public Law

Secretary Secretary of Labor

SOC Standard Occupational Classification

Stat. U.S. Statutes at Large

SWA State workforce agency

TVPA Victims of Trafficking and Violence Protection Act of 2000

UMRA Unfunded Mandates Reform Act of 1995

U.S. United States

U.S.C. United States Code

USDA U.S. Department of Agriculture

VSL Value of a statistical life

WHD Wage and Hour Division

II. Background and Overview

A. Legal Authority

The Immigration and Nationality Act (INA), as amended by the Immigration Reform and Control Act of 1986 (IRCA), establishes an “H-2A” nonimmigrant visa classification for a worker “having a residence in a foreign country which he has no intention of abandoning who is coming temporarily to the United States to perform agricultural labor or services . . . of a temporary or seasonal nature.” 8 U.S.C. 1101(a)(15)(H)(ii)(a);

see also

8 U.S.C. 1101(a)(15)(H)(ii)(a) (the INA permits only “agricultural labor or services . . . of a temporary or seasonal nature” to be performed under the H-2A visa category).

For ease of reference, sections of the INA are referred to by their corresponding section in the United States Code.

The H-2A nonimmigrant worker visa program enables U.S. agricultural employers to employ foreign workers on a temporary basis to perform temporary or seasonal agricultural labor or services only where the Secretary of Labor (Secretary) certifies that (1) there are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services involved in the petition, and (2) the employment of the foreign worker in such labor or services will not adversely affect the wages and working conditions of workers in the United States similarly employed. 8 U.S.C. 1188(a)(1).

The INA prohibits the Secretary from issuing this certification—known as a “temporary agricultural labor certification”—unless both of the above-referenced conditions are met. The INA further prohibits the Secretary from issuing a temporary agricultural labor certification if any of the conditions in 8 U.S.C. 1188(b) apply concerning strikes or lock-outs, labor certification program debarments, workers' compensation assurances, and positive recruitment.

Following certification by DOL, the employer must file an H-2A petition (defined at 20 CFR 655.103(b) as the U.S. Citizenship and Immigration Services (USCIS) Form I-129, Petition for a Nonimmigrant Worker, with H Supplement or successor form and/or supplement, and accompanying documentation required by DHS for employers seeking to employ foreign persons as H-2A nonimmigrant workers) with USCIS, requesting one or more workers not to exceed the total listed on the temporary labor certification. Generally, USCIS must approve this petition before the worker(s) can be considered eligible for an H-2A visa or for H-2A nonimmigrant status.

The Secretary has delegated the authority to issue temporary agricultural labor certifications to the Assistant Secretary for Employment and Training, who in turn has delegated that authority to the Employment and Training Administration's (ETA) Office of Foreign Labor Certification (OFLC).

See

Secretary's Order 06-2010 (Oct. 20, 2010), 75 FR 66268 (Oct. 27, 2010). In addition, the Secretary has delegated to WHD the responsibility under 8 U.S.C. 1188(g)(2) to assure employer compliance with the terms and conditions of employment under the H-2A program.

See

Secretary's Order 01-2014 (Dec. 19, 2014), 79 FR 77527 (Dec. 24, 2014). Pursuant to the INA and implementing regulations promulgated by DOL and the Department of Homeland Security (DHS), DOL evaluates an employer's need for agricultural labor or services to determine whether it is seasonal or temporary during the review of an H-2A Application. 20 CFR 655.161(a); 8 CFR 214.2(h)(5)(i)(A) and (h)(5)(iv).

B. Current Regulatory Framework

Since 1987, the Department has operated the H-2A temporary labor certification program under regulations promulgated pursuant to the INA. The standards and procedures applicable to the certification and employment of workers under the H-2A program are found in 20 CFR part 655, subpart B, and 29 CFR part 501. The majority of the Department's current regulations governing the H-2A program were published in 2010 and many were strengthened in a final rule the Department published in October 2022.

The Department incorporated the provisions for employment of workers in the herding and production of livestock on the range into the H-2A regulations, with modifications, in 2015.

The provisions governing the employment of workers in the herding and production of livestock on the range are codified at 20 CFR 655.200 through 655.235.

Final Rule,

Temporary Agricultural Employment of H-2A Aliens in the United States,

75 FR 6884 (Feb. 12, 2010) (2010 H-2A Final Rule); Final Rule,

Temporary Agricultural Employment of H-2A Nonimmigrants in the United States,

87 FR 61660 (Oct. 12, 2022) (2022 H-2A Final Rule).

Final Rule,

Temporary Agricultural Employment of H-2A Foreign Workers in the Herding or Production of Livestock on the Range in the United States,

80 FR 62958 (Oct. 16, 2015) (2015 H-2A Herder Final Rule).

Consistent with a court-approved settlement agreement in

Hispanic Affairs Project, et al.

Scalia et al.,

No. 15-cv-1562 (D.D.C.), the Department recently rescinded 20 CFR 655.215(b)(2). Final Rule,

Adjudication of Temporary and Seasonal Need for Herding and Production of Livestock on the Range Applications Under the H-2A Program,

86 FR 71373 (Dec. 16, 2021).

The Department protects against adverse effect on the wages of workers in the United States similarly employed, in part, by requiring at § 655.120(a) that an employer offer, advertise in its recruitment, and pay a wage that is the highest of the adverse effect wage rate (AEWR), the prevailing wage, the agreed-upon collective bargaining wage, the Federal minimum wage, or the State minimum wage. If an updated AEWR for the occupational classification and geographic area is published during the work contract and becomes the highest applicable wage rate, the employer must pay at least the updated AEWR upon the effective date of the updated AEWR, as published in the

Federal Register

. Section 655.120(b)(3). In accordance with § 655.120(b)(2) and (3), the Department publishes the updated AEWR at least once annually in the

Federal Register

. One

Federal Register

notice provides annual adjustments to the AEWRs for the field and livestock workers (combined) occupational grouping based on the U.S. Department of Agriculture's (USDA) publication of the Farm Labor Reports (better known as the Farm Labor Survey, or FLS), effective on or about January 1, and a second

Federal Register

notice will provide annual adjustments to the AEWRs for all other non-range occupations based on the Department's Bureau of Labor Statistics' (BLS) publication of the Occupational Employment and Wage Statistics (OEWS) survey, effective on or about July 1.

Each notice specifies the effective date of the new AEWRs, which, in recent notices, has been not

more than 14 calendar days after publication.

2022 H-2A Final Rule; Final Rule,

Adverse Effect Wage Rate Methodology for the Temporary Employment of H-2A Nonimmigrants in Non-Range Occupations in the United States,

88 FR 12760 (Feb. 28, 2023) (2023 AEWR Final Rule).

OFLC currently requires disclosure of information about the identity of employers, agents, and attorneys, the places where work will be performed, and the employer's use of a foreign labor recruiter through the provision of agreements with recruiters when requested by the certifying officer (CO), which is necessary for the Department to assess the nature of the employer's job opportunity, monitor program compliance, and protect program integrity.

See

§ 655.135(k); Form ETA-9142A; Form ETA-790A; Form ETA-790A,

Addendum B.

For example, employers must identify in the H-2A Application and job order all places of employment, provide the Department a copy of agreements with foreign labor recruiters that expressly prohibit unlawful fees (upon request by the CO), and provide identifying information like the Federal Employer Identification Number (FEIN) and Doing Business As (DBA) name on the Form ETA-9142A, Form ETA-790A, and Form ETA-790A,

Addendum B.

OFLC may provide any information received while processing H-2A applications, or in the course of conducting program integrity measures to WHD and to any other Federal agency with authority to enforce compliance with program requirements and combat fraud and abuse. Section 655.130(f); 29 CFR 501.2 (providing that WHD and OFLC may share information with each other and with other agencies as appropriate for investigative or enforcement purposes). For example, the Department may refer certain discrimination complaints to the Department of Justice (DOJ) Civil Rights Division, Immigrant and Employee Rights Section, under § 655.185, or refer information related to debarred employers or to employers' fraudulent or willful misrepresentations to DHS under §§ 655.182 and 655.184.

Under § 655.145, an employer may request to amend its application to increase the number of workers or to make minor changes to the period of employment. In addition, an employer may request modifications to its job order under § 655.121(e)(2) before submitting its H-2A Application. Current § 655.145(b) permits the employer to submit a request to the CO to delay the start date of need when the delay is due to unforeseen circumstances and the employer's crops or commodities will be in jeopardy prior to expiration of an additional recruitment period. The employer's request to the CO must explain the circumstances necessitating the request and the employer must include with the request a written assurance that all workers who are already traveling to the place of employment will be provided housing and subsistence, without cost to the workers, until work commences. The regulations do not permit amendments to an application after the CO issues a Final Determination. An employer that experiences changed circumstances after certification is required to submit a new and substantially similar application and job order.

The regulations implementing the Wagner-Peyser Act establish the Agricultural Recruitment System (ARS), through which employers can recruit U.S. workers for agricultural employment opportunities, and which prospective H-2A employers must use to recruit U.S. workers as a condition of receiving a temporary labor certification. Among other things, these regulations require employers to provide notice of delayed start dates and provide protections for workers in cases where the employer's start date is delayed. The ARS uses the term “anticipated” in relation to start dates and provides a process close to the start date the employer identified in the job order through which the employer, the State workforce agency (SWA), and referred farmworkers communicate regarding the actual start date of work.

See

§ 653.501(c)(1)(iv)(D), (c)(3)(i) and (iv), (c)(5), and (d)(4). These regulations currently require an employer to notify the SWA of start date changes at least 10 business days before the originally anticipated start date and require the SWA to notify farmworkers that they should contact the SWA between 9 and 5 business days before the anticipated start date to verify the actual start date of work. Section 653.501(c)(5) and (d)(4). If an employer fails to timely notify the SWA of a start date change (

i.e.,

at least 10 business days before the anticipated first date identified in the job order), beginning on the first date of need, it must pay eligible workers the specified hourly rate of pay as stated on the clearance order, or if the pay is piece-rate, the higher of the Federal or State minimum wage for the first week or offer alternative work to each farmworker who followed the procedure to contact the SWA for updated start date information. See § 653.501(c)(3)(i) and (c)(5). Under the Department's H-2A regulations at § 655.145(b), if an employer requests a start date delay after workers have departed for the place of employment, the employer must assure the CO that it will provide housing and subsistence to all workers who are already traveling to the place of employment, without cost to the workers, until work commences. If an employer fails to comply with its obligations, the SWA may notify WHD for possible enforcement as provided in § 653.501(c)(5), the SWA may pursue discontinuation of services under part 658, subpart F, or the Department may, either upon referral of the SWA or upon its own initiative, pursue revocation of the labor certification under the procedures at § 655.181, or debarment of the employer under the procedures at § 655.182 or 29 CFR 501.20.

The regulations also currently permit the Department to debar an employer, successor-in-interest to that employer, attorney, or agent from participating in any action under 8 U.S.C. 1188, 20 CFR part 655, subpart B, or 29 CFR part 501 if the employer, agent, or attorney substantially violated a material term or condition of the temporary agricultural labor certification with respect to H-2A workers, workers in corresponding employment, or U.S. workers improperly rejected for employment, improperly laid off or displaced. 20 CFR 655.182(a); 29 CFR 501.20(a). The Department provides the employer with a notice of debarment in these cases and also provides an opportunity to appeal these determinations using the procedures at 20 CFR 655.182(f) and 29 CFR 501.20(e) and 501.33. Similarly, the Wagner-Peyser Act regulations at 20 CFR parts 653 and 658 currently require the SWA to discontinue services if it determines an employer has committed one of several violations enumerated at 20 CFR 658.501(a)(1) through (7), such as misrepresentation of the terms and conditions of employment specified on job orders or failure to comply fully with assurances made on job orders.

As noted above, the Department recently published the 2022 H-2A Final Rule, which strengthened worker protections in the H-2A program, clarified the obligations of joint employers and the existing prohibitions on fees related to foreign labor recruitment, authorized debarment of agents and attorneys for their own misconduct, enhanced surety bond obligations and related enforcement authorization, modernized the prevailing wage determination process, enhanced regulation of H-2A labor contractors (H-2ALCs), and provided additional safeguards related to employer-provided housing and wage obligations. 87 FR 61660 (Oct. 12, 2022). In response to the NPRM published prior to the 2022 H-2A Final Rule, the Department received many comments suggesting changes that were beyond the scope of that rulemaking, such as suggestions relating to increased

enforcement and transparency regarding the foreign labor recruitment process, increased worker protections, revisions to the definition of employer, stronger integrity provisions to account for complex business organizations and for methods used to circumvent the regulations, strengthening provisions related to piece rate pay, and suggestions to revise the Wagner-Peyser Act regulations to ensure stronger protections for workers in the event of harmful last-minute start date delays.

C. Need for Rulemaking

The Department proposes important provisions in this NPRM that will further strengthen protections for agricultural workers and enhance the Department's enforcement capabilities, thereby permitting more effective enforcement against fraud and program violations. The Department has determined the proposed revisions will help prevent exploitation and abuse of agricultural workers and ensure that unscrupulous employers do not financially gain from their violations or contribute to economic and workforce instability by circumventing the law, both of which would adversely affect the wages and working conditions of workers in the United States similarly employed, and undermines the Department's ability to determine whether there are, in fact, insufficient U.S. workers for proposed H-2A jobs. It is the policy of the Department to maintain robust protections for workers and vigorously enforce all laws within its jurisdiction governing the administration and enforcement of nonimmigrant visa programs. This includes the coordination of the administration and enforcement activities of ETA, WHD, and the Department's Office of the Solicitor in the promotion of the hiring of U.S. workers and the safeguarding of wages and working conditions for workers in the United States. In addition, these agencies make criminal referrals to the Department's Office of Inspector General (OIG) in appropriate circumstances, such as when the agencies encounter visa-related fraud. The Department has determined through program experience, recent litigation, challenges in enforcement, comments on prior rulemaking, and reports from various stakeholders that the proposals in this NPRM are necessary to strengthen protections for agricultural workers, ensure that employers, agents, attorneys, and labor recruiters comply with the law, and enhance program integrity by improving the Department's ability to monitor compliance and investigate and pursue remedies from program violators. The recent surge in use of the H-2A program further underscores the need to strengthen protections for this vulnerable population.

See, e.g.,

Office of Foreign Labor Certification, Performance Data,

https://www.dol.gov/agencies/eta/foreign-labor/performance

(providing disclosure data for the H-2A labor certification program since FY 2008).

The proposed rule aims to address some of the comments that were beyond the scope of the 2022 H-2A Final Rule and concerns expressed by various stakeholders during that rulemaking. It also seeks to respond to recent court decisions and program experience indicating a need to enhance the Department's ability to enforce regulations related to foreign labor recruitment, and to improve accountability for successors-in-interest and employers who use various methods to attempt to evade the law and regulatory requirements, and to enhance worker protections for a vulnerable workforce, as explained further in the sections that follow.

The Department's enforcement experience demonstrates that workers in agriculture, particularly H-2A workers, remain highly vulnerable to workplace abuses. In FY 2022, WHD conducted 420 investigations of employers using the H-2A program, resulting in more than $3.6 million assessed in back wages and more than $6.3 assessed in civil money penalties. Recent investigations have demonstrated that H-2A workers continue to be vulnerable to human trafficking;

see, e.g.,

Press Release, U.S. Dep't of Just.,

Owner of Farm Labor Contracting Company Pleads Guilty in Racketeering conspiracy Involving the Forced Labor of Mexican Workers

(Sept. 27, 2022),

https://www.justice.gov/opa/pr/owner-farm-labor-contracting-company-pleads-guilty-racketeering-conspiracy-involving-forced;

Jessica Looman,

U.S. Dep't of Lab. Blog: Exposing the Brutality of Human Trafficking

(Jan. 13, 2022),

https://blog.dol.gov/2022/01/13/exposing-the-brutality-of-human-trafficking.

H-2A workers continue to be vulnerable to retaliation when asserting their rights or engaging in self advocacy;

see, e.g.,

Press Release, U.S. Dep't of Lab.,

Federal Court Orders Louisiana Farm, Owners to Stop Retaliation After Operator Denied Workers' Request for Water, Screamed Obscenities, Fired Shots

(Oct. 28, 2021),

https://www.dol.gov/newsroom/releases/whd/whd20211028-0;

Press Release, U.S. Dep't of Lab.,

U.S. Labor Department Obtains Order Stopping Arizona Agricultural Employer from Abusing Workers, Exposing them to Workplace Dangers

(Oct. 28, 2022),

https://www.dol.gov/newsroom/releases/whd/whd20221028-0.

Additionally, recent vehicle crashes involving agricultural workers demonstrate the need for transportation reform;

see, e.g.,

Press Release, U.S. Dep't of Lab.,

U.S. Department of Labor Urges Greater Focus on Safety by Employers, Workers as Deaths, Injuries in Agricultural Transportation Incidents Rises Sharply

(Sept. 20, 2022),

https://www.dol.gov/newsroom/releases/whd/whd20220920-0.

Section D below provides an overview of major proposed changes, followed by an in-depth section-by-section discussion of all proposed changes. The Department is soliciting public comment on all aspects of this proposed rule but has suggested in each section the types of comments that would be most useful to the Department when considering which provisions to include, exclude, or revise in the final rule. Generally, the Department is most interested in comments that cite evidence of the need to remedy through this rulemaking ongoing violations, worker abuse or exploitation, coercion, employer or agent subterfuge to avoid the law or other ways the Department's enforcement of the law may be hindered to the detriment of H-2A workers and workers in the United States impacted by the program and the Department's ability to fulfill its statutory responsibilities. The Department is particularly interested in comments that suggest ways the Department can use this rulemaking to better protect the rights and liberties, health and safety, and wages and working conditions of agricultural workers and best safeguard the integrity of the H-2A program, while continuing to ensure that responsible employers have access to willing and available agricultural workers and are not unfairly disadvantaged by employers that exploit workers and attempt to evade the law.

D. Summary of Major Provisions of This Proposed Rule

1. Protections for Workers Who Advocate for Better Working Conditions and Labor Organizing Activities

The Department proposes revisions to § 655.135 that will provide stronger protections for workers protected by the H-2A program to advocate for better working conditions on behalf of themselves and their coworkers and prevent employers from suppressing this activity. As detailed in Section IV, the Department believes that these proposed protections are necessary to prevent an adverse effect on the working conditions of workers in the United States similarly employed. 8 U.S.C. 1188(a)(1). These protections will significantly bolster the Department's efforts to prevent such adverse effect because when H-2A workers and other workers protected under the H-2A program cannot advocate and negotiate with employers on their own behalf, employers are able to impose exploitative working conditions that also leave H-2A workers vulnerable to other abuses, and this unfairly deprives similarly employed agricultural workers of jobs with better working conditions. Specifically, the Department proposes to broaden § 655.135(h), which prohibits unfair treatment, by expanding and explicitly protecting certain activities workers must be able to engage in

without fear of intimidation, threats, and other forms of retaliation. For those workers engaged in agriculture as defined and applied in 29 U.S.C. 203(f), who are exempt from the protections of the National Labor Relations Act (NLRA), 29 U.S.C. 151

et seq.,

the Department also proposes in § 655.135(h) to include some protections that the Department believes will safeguard collective action. The Department also proposes to add new provisions at § 655.135(m) to ensure employers do not interfere with efforts by vulnerable workers under the H-2A program to advocate for better working conditions by including a number of requirements that would advance worker voice and empowerment and further protect the rights proposed under § 655.135(h), and at § 655.135(n) to permit workers to invite or accept guests to worker housing and provide labor organizations a narrow right of access to worker housing, as explained in detail below.

2. Clarification of Justifiable Termination for Cause

The Department proposes to define “termination for cause” at § 655.122(n) by proposing six criteria that must be satisfied to ensure that disciplinary and/or termination processes are justified and reasonable, which are intended to promote the integrity and regularity of any such processes. These proposed changes will help to ensure employers do not arbitrarily and unjustly terminate workers, thereby stripping them of essential rights to which they would otherwise be entitled, and will assist the Department in determining whether an individual worker was terminated for pretextual reasons.

3. Immediate Effective Date for Updated AEWRs

The Department proposes to revise § 655.120(b)(2) to designate the effective date of updated AEWRs as the date of publication in the

Federal Register

, and to revise paragraph (b)(3) to state that the employer is obligated to pay the updated AEWR immediately upon publication of the new AEWR in the

Federal Register

. This change is intended to help ensure workers are paid at least the updated AEWR, as soon as it is published, for all work they perform, and thereby help to ensure the employment of H-2A workers will not adversely affect the wages and working conditions of workers in the United States similarly employed.

4. Enhanced Transparency for Job Opportunity and Foreign Labor Recruitment

The Department proposes new disclosure requirements to enhance transparency in the foreign worker recruitment chain and bolster the Department's capacity to protect vulnerable agricultural workers from exploitation and abuse, as explained more fully below. The Department proposes a new § 655.137,

Disclosure of foreign worker recruitment,

and a new § 655.135(p),

Foreign worker recruitment,

that are similar to the regulations governing disclosure of foreign worker recruitment in the H-2B program. The proposed provisions would require an employer and its attorney or agent, as applicable, to provide a copy of all agreements with any agent or recruiter that the employer engages or plans to engage in the recruitment of prospective H-2A workers, regardless of whether the agent or recruiter is located in the United States or abroad. The proposed provisions also would require the employer to disclose the identity (

i.e.,

name and, if applicable, identification number) and geographic location of persons and entities hired by or working for the foreign labor recruiter and any of the agents or employees of those persons and entities who will recruit or solicit prospective H-2A workers. As explained more fully below, the Department proposes to gather the additional recruitment chain information when the employer files its H-2A Application and will require the employer to submit a proposed Form ETA-9142A,

Appendix D,

that mirrors the Form ETA-9142B,

Appendix C.

Consistent with current practice in the H-2B program, proposed § 655.137(d) provides for the Department's public disclosure of the names of the agents and foreign labor recruiters used by employers. These additional disclosures of information about the recruitment chain are necessary for the Department to carry out its enforcement obligations, protect vulnerable agricultural workers and program integrity, and ensure equitable administration of the H-2A program for law abiding employers.

The Department also proposes to require the employer to provide the full name, date of birth, address, telephone number, and email address for the owner(s) of each employer, any person or entity who is an operator of the place(s) of employment (including the fixed-site agricultural business that contracts with the H-2ALC), and any person who manages or supervises the H-2A workers and workers in corresponding employment under the H-2A Application. The Department proposes to revise the Form ETA-9142A to require, where applicable, additional information about prior trade or DBA names the employer has used in the most recent 3-year period preceding its filing of the H-2A Application. The Department proposes conforming changes to §§ 655.130 and 655.167 to clarify that the employer would be required to continue to update the information required by the above paragraphs until the end of the work contract period, including extensions thereto, and retain this information post-certification and produce it upon request by the Department. The Department believes the proposed disclosure requirements will increase transparency in the international recruitment chain, aid the Department in assessing the nature of the job opportunity and the employer's need, enhance the Department's ability to enforce the prohibition against recruitment-related fees and to pursue remedies from program violators, assist the Department in identifying potential successors in interest to debarred employers, and better protect agricultural workers from abuse and exploitation in the United States and abroad.

5. Enhanced Transparency and Protections for Agricultural Workers

a. Disclosure of Minimum Productivity Standards, Applicable Wage Rates, and Overtime Opportunities

The Department proposes to revise § 655.122(l) to require employers to disclose any minimum productivity standards they will impose as a condition of job retention, regardless of whether the employer pays on a piece rate or hourly basis. This proposal is intended to help ensure that agricultural workers are fully apprised of the material terms and conditions of employment, including any productivity standards that may serve as a basis for termination for cause. Proposed changes at § 655.122(n) would prohibit the employer from terminating a worker for failure to meet a minimum productivity standard if the employer did not disclose the standard in accordance with § 655.122(l). An existing regulatory provision, § 655.122(b), would require that any such minimum productivity standard be bona fide and normal and accepted among non-H-2A employers in the same or comparable similar occupations and crops.

The Department also proposes to revise §§ 655.120(a) and 655.122(l) to

require employers to offer and advertise on the job order any applicable prevailing piece rate, the highest applicable hourly wage rate, and any other rate the employer intends to pay, and to pay workers the highest of these wage rates, as calculated at the time work is performed. A new proposed § 655.122(l)(4) would explicitly require the employer to specify in the job order any applicable overtime premium wage rate(s) for overtime hours worked and the circumstances under which the wage rate(s) for such overtime hours will be paid. These proposals are intended to help ensure that agricultural workers are fully apprised of the material terms and conditions of employment, including any productivity standards that may serve as a basis for termination for cause, and to aid the Department in its administration and enforcement of the H-2A program.

b. Enhanced Protections for Workers Through the Employment Service System (ES System)

The Department proposes revisions to the Wagner-Peyser Act implementing regulations at 20 CFR 653.501 to clarify an employer's obligations in the event of a delayed start date and to make conforming revisions to the H-2A regulations at 20 CFR 655.145 and a new § 655.175 to clarify pre-certification H-2A Application amendments and employer obligations in the event of post-certification changes to the start date. As noted above, the current regulations require an employer to provide notice to the ES Office holding the job order of delayed start dates and impose obligations on employers that fail to provide the requisite notice, but do not require employers to notify workers directly of any such delay.

The Department proposes revisions to part 658, subpart F, and related definitions at § 651.10, regarding the discontinuation of Wagner-Peyser Act Employment Service (ES) services to employers. The Department proposes to clarify and expand the scope of entities whose ES services can be discontinued to also include agents, farm labor contractors, joint employers, and successors in interest. The Department also proposes revisions to clarify the bases for discontinuation at § 658.501, and to clarify and streamline the discontinuation procedures at §§ 658.502 through 658.504, including the notice requirements for SWAs, evidentiary requirements for employers, when and how employers may request a hearing, and procedures for requesting reinstatement. These changes are designed to increase the reach and utility of the discontinuation of services regulations, which SWAs have underutilized in recent years. These proposed changes are described in more detail below.

c. Enhanced Transportation Safety Requirements

The Department proposes to revise § 655.122(h)(4) to require the provision, maintenance, and wearing of seat belts in most employer-provided transportation, which would reduce the hazards associated with agricultural worker transportation, thus making these jobs more attractive to workers in the United States. Specifically, as explained in detail below, the Department proposes to revise § 655.122(h)(4) to prohibit an employer from operating any employer-provided transportation that is required by the U.S. Department of Transportation (DOT) highway safety regulations to be manufactured with seat belts unless all passengers and the driver are properly restrained by seat belts meeting standards established by DOT. Essentially, if the vehicle is manufactured with seat belts, the proposed rule would require the employer to retain and maintain those seat belts in good working order and ensure that each worker is wearing a seat belt before the vehicle is operated.

d. Protection Against Passport and Other Immigration Document Withholding

The Department proposes a new § 655.135(o) that would directly prohibit an employer from holding or confiscating a worker's passport, visa, or other immigration or government identification documents, independent of the employer's compliance with the Victims of Trafficking and Violence Protection Act of 2000 (TVPA), Public Law 106-386 (2000), 18 U.S.C. 1592(a), which is required under the current H-2A regulations. The proposal is intended to better protect workers from potential labor trafficking, as explained below.

e. Protections in the Event of a Minor Delay in the Start of Work

The Department proposes a new § 655.175 that addresses post-certification changes currently addressed at § 655.145(b) and proposes new obligations and procedures in the event an employer must briefly delay the start of work due to unforeseen circumstances that jeopardize crops or commodities prior to the expiration of an additional recruitment period. Proposed § 655.175 limits minor delays to 14 calendar days or less and would require an employer to notify each worker and the SWA of any delay in the start date of work. Consistent with § 653.501(c), proposed § 655.175 includes new compensation obligations that would require the employer to pay workers the applicable wage rate for each day work is delayed, for a period of up to 14 calendar days, starting with the certified start date, if the employer fails to provide adequate notice of the delay.

6. Enhanced Integrity and Enforcement Capabilities

a. Reduced Submission Periods for Appeal Requests for Debarment Matters and Submittal of Rebuttal Evidence to OFLC

To help protect and uphold program integrity, and to further protect workers in the United States, the Department proposes to increase the speed with which debarments become effective by decreasing the time for parties to submit rebuttal evidence to OFLC, the time for parties to appeal Notices of Debarment to the Office of Administrative Law Judges (OALJ), and the time for parties to appeal debarment decisions to the ARB from the OALJ. This would lead to faster final agency adjudications and thereby better protect and uphold program integrity and agricultural workers by more efficiently and effectively preventing H-2A program violators from accessing the program. As explained more fully below, the Department proposes to amend § 655.182(f)(1) and (2) by reducing the period to file rebuttal evidence from 30 calendar days to 14 calendar days, unless the employer requests an extension of the allowable rebuttal period, in writing, and demonstrates good and substantial cause necessitating an extension. For the same reasons, the Department also proposes to shorten the time to appeal the OFLC Administrator's Notice of Debarment, in lieu of submitting rebuttal evidence; to shorten the time to appeal the OFLC Administrator's final determination, after review of rebuttal evidence; to shorten the time for all parties to request review of OFLC debarments by the ARB from 30 days to 14 calendar days; to shorten the time to request a hearing with the OALJ on any WHD determination involving debarment from 30 calendar days to 14 calendar days; and also to shorten the time for all parties to request review by the ARB of an OALJ determination involving debarment from 30 days to 14 calendar days. Determinations by the WHD Administrator that do not include debarment, but only include, for example, an assessment of civil money

penalties or the payment of back wages, would retain a 30-calendar-day timeframe for appeal to the OALJ and to the ARB.

b. Enhancements to the Department's Ability To Apply Orders of Debarment Against Successors-in-Interest

The Department proposes a new § 655.104 regarding successors in interest, that would clarify the liability of successors in interest for debarment purposes and streamline the Department's procedures to deny labor certifications filed by or on behalf of successors in interest to debarred employers, agents, and attorneys. The Department proposes conforming revisions to §§ 655.103(b), 655.181, and 655.182 and 29 CFR 501.20. These proposed revisions are intended to better reflect the liability of successors in interest under the well-established successorship doctrine, and to better ensure that debarred entities do not circumvent the effects of debarment.

c. Defining the Single Employer Test for Assessing Temporary Need, or for Enforcement of Contractual Obligations

The Department proposes to define the term

single employer

at a new § 655.103(e) and proposes factors to determine if multiple nominally separate employers are acting as one. Defining the term would codify the Department's long-standing practice of using the single employer test (sometimes referred to as an “integrated employer” test), or similar analysis, to determine if separate employers are a single employer for purposes of assessing seasonal or temporary need, or for enforcement of contractual obligations. In relation to seasonal or temporary need, the Department has received applications for temporary labor certification that purport to be for job opportunities with different employers when, in reality, the workers hired under these certifications are employed by companies so intertwined that they are operating as a de facto single employer in one area of intended employment for a period of need that is not truly temporary or seasonal. In its enforcement experience, the Department has increasingly encountered H-2A employers that employ H-2A workers under one corporate entity and domestic workers under another, creating the appearance that the H-2A employer has no non-H-2A workers in corresponding employment when actually, the corporate entities are so intertwined that all the H-2A workers are employed by a single H-2A employer, and the non-H-2A workers are engaged in corresponding employment. Some employers have attempted to use these arrangements to avoid the obligation to offer workers in corresponding employment the terms and conditions offered to H-2A workers, including the required wage rate. Codifying the definition of single employer will prevent employers from using their corporate structures to circumvent statutory and regulatory requirements.

III. Discussion of Proposed Revisions to Employment Service Regulations

A. Introduction

In this proposed rule, the Department proposes to revise the ES regulations (20 CFR parts 651 through 654 and 658 and 29 CFR part 75) that implement the Wagner-Peyser Act of 1933. These regulations include the provision of ES services with a particular emphasis on migrant or seasonal farmworkers (MSFWs), as well as provisions governing the discontinuation of ES services to employers. The proposed rule will update the language and content of the regulations to, among other things, improve and strengthen the regulations governing discontinuation of ES services to employers, including the applicable bases and procedures. In some areas, these proposals establish entirely new responsibilities and procedures; in other areas, the proposals clarify and update requirements already established. The proposed revisions make important changes to the following components of the ES system: definitions, requirements for processing clearance orders, and the discontinuation of ES services provided to employers.

The Wagner-Peyser Act of 1933 provided the Department the authority to establish a national ES system to improve the functioning of the nation's labor markets by bringing together individuals seeking employment with employers seeking workers. Section 3(a) of the Act sets forth the basic responsibilities of the Department, which include assisting in coordinating the State public employment service offices throughout the country and in increasing their usefulness by prescribing standards for efficiency, promoting uniformity in procedures, and maintaining a system of clearing labor between the States.

To that end, the ES system provides labor exchange services to its participants and has undergone numerous changes to align its activities with broader national workforce development policies and statutory requirements. The Workforce Innovation and Opportunity Act, passed in 2014, expanded upon the previous workforce reforms in the Workforce Investment Act of 1998 and, among other things, identified the ES system as a core program in the One-Stop local delivery system, also called the American Job Center network.

In 1974, the case

National Ass'n for the Advancement of Colored People (NAACP), Western Region, et al.

Brennan et al.,

No. 2010-72, 1974 WL 229 (D.D.C. Aug. 13, 1974) resulted in a detailed court order mandating various Federal and State actions consistent with applicable law (referred to as the Judge Richey Court Order, or Richey Order). The Richey Order required the Department to implement and maintain a Federal and State monitoring and advocacy system and set forth requirements to ensure the delivery of ES services, benefits, and protections to MSFWs on a non-discriminatory basis, and to provide such services in a manner that is qualitatively equivalent and quantitatively proportionate to those provided to non-farmworkers. In 1977 and 1980, consistent with its authority under the Wagner-Peyser Act, the Department published regulations at 20 CFR parts 651, 653, and 658 to implement the requirements of the Richey Order. Part 653 sets forth standards and procedures for providing services to MSFWs and provides regulations governing the ARS, a system for interstate and intrastate agricultural job recruitment. Part 658 sets forth standards and procedures for the administrative handling of complaints alleging violations of ES regulations and of employment-related laws, the discontinuation of services provided by the ES system to employers, the review and assessment of State agency compliance with ES regulations, and the Federal application of remedial action to State agencies.

Note that on April 20, 2022, the Department issued an NPRM regarding Wagner-Peyser Act staffing (Staffing NPRM). 87 FR 23700 (Apr. 20, 2022). The Staffing NPRM included proposed changes to several sections in 20 CFR parts 653 and 658 that govern the provision of ES services to MSFWs. As relevant here, in the Staffing NPRM, the Department proposed changes to 20 CFR 653.501(b)(4) and (c)(3) (ES office and SWA requirements for processing clearance orders); § 658.501(a)(4), (b), and (c); § 658.502(a) and (b) (notification requirements for discontinuation of ES services); and § 658.504(a) and (b) (procedures for reinstatement of ES services). 87 FR 23717, 23722, 23736, 23740-23741. In this proposed rule, the Department has proposed further changes to these provisions, which in

some instances conflict with changes proposed in the Staffing NPRM. Because the Department has not issued a final Staffing Rule, the Department recognizes that the proposed changes in this rulemaking may generate questions within the regulated community about how the Department ultimately proposes to revise these provisions, including how the proposed changes in this rulemaking affect the proposed changes in the Staffing NPRM, and what the Department might do in finalizing the changes proposed in the Staffing NPRM. Where this NPRM proposes changes that conflict or intersect with changes proposed in the Staffing NPRM, the Department will be using this proposed rule as the operative rulemaking proceeding to provide notice and an opportunity to comment on the proposed changes to the provisions referenced above. Consistent with this approach, the Department does not intend to finalize changes to the above referenced provisions in the Staffing NPRM as part of that rulemaking proceeding. Any changes to the above referenced provisions will be made through this rulemaking. The Department has concluded that the proposed changes to these provisions are better suited for this rulemaking because they are meant to strengthen protections for agricultural workers and, therefore, better align with the overall purpose of this rulemaking. Further, the Department has concluded that this is the most transparent approach to address the overlap, and is the approach that best minimizes confusion within the regulated community while ensuring the public the full opportunity to receive notice and provide comments on the proposed changes.

B. Discussion of Proposed Revisions to 20 CFR Part 651

Part 651 (§ 651.10) sets forth definitions for parts 652, 653, 654, and 658. The Department proposes to add or revise the following definitions primarily to clarify aspects of its discontinuation of Wagner-Peyser Act ES regulation at 20 CFR part 658, including new provisions that it proposes to add in this rulemaking. Where appropriate, as discussed below, the Department has sought to align these new definitions with the same or similar definitions at 20 CFR 655.103.

The Department proposes to add a definition to § 651.10 for

agent

as an entity authorized to act on behalf of employers with respect to ES clearance system activities. The Department has observed that individuals and entities meeting the proposed definition of

agent

often engage the ES clearance system by submitting clearance orders on behalf of

employers,

as defined in part 651, and control many aspects of

employers'

recruitment activities relating to clearance orders. Adding this proposed definition clarifies that

agents

(which include attorneys) are among the entities subject to discontinuation of services as a result of the proposed changes to part 658. Additionally, because an employer's agent for purposes of the ES clearance system is often the same agent that an employer uses for purposes of the H-2A labor certification process, the Department proposes a definition of

agent

at § 651.10 that aligns with the definition of agent in § 655.103.

The Department proposes to add definitions to § 651.10 for

criteria clearance order

and

non-criteria clearance order

because they are terms that are currently used in the ES regulations but were previously undefined. Adding the definitions clarifies that

criteria clearance orders

are those placed in connection with an H-2A Application filed pursuant to part 655, subpart B, while

non-criteria clearance orders

are those not placed in connection with an H-2A Application. By defining these terms, it will be clearer which orders must comply with the requirements at part 653, subpart F, and part 655, subpart B, and which orders do not have to comply with the requirements at part 655, subpart B.

The Department proposes to add to § 651.10 a definition for

discontinuation of services

because it is referenced throughout the ES regulations and is the subject of part 658, subpart F, but was previously undefined. The proposed definition explains what services would be unavailable pursuant to the process described in part 658, subpart F, and the entities subject to discontinuation. Under the proposed

discontinuation of services,

the scope of services to which discontinuation applies includes any Wagner-Peyser Act ES service provided by the ES to employers pursuant to parts 652 and 653. The scope of individuals and entities to whom discontinuation applies includes

employers,

as defined in part 651, and

agents, farm labor contractors, joint employers,

and

successors in interest,

as proposed to be defined in part 651.

The Department proposes to revise the definition of

employment-related laws

to clarify that the term also includes the regulations that implement

employment-related laws

in addition to the laws themselves. Revising the definition clarifies its meaning and scope for ES staff who observe or process complaints relating to violations of employment-related laws, such as outreach workers, complaint system representatives, and those who conduct field checks.

The Department proposes to add to § 651.10 a definition for

farm labor contractor

as an entity, excluding agricultural employers, agricultural associations, or employees of agricultural employers or agricultural associations, that agrees to recruit, solicit, hire, employ, furnish, or transport an MSFW. The Department proposes to add this definition to § 651.10 because the term is used throughout the ES regulations, most notably in part 653, subpart F, which recognizes that

farm labor contractors

use the ES clearance system, but it has never been defined. Adding this proposed definition also clarifies the entities subject to discontinuation of services as a result of the proposed changes to part 658. As with the term

agent,

because many farm labor contractors that use the ES clearance system also seek temporary labor certifications from OFLC as H-2ALCs under part 655, subpart B, the Department proposes a definition of

farm labor contractor

that both aligns with the definition of

H-2A labor contractor

found at 20 CFR 655.103 and with the definition of

farm labor contractor

and

farm labor contracting activity

found at 29 U.S.C. 1802 and 29 CFR 500.20 to maintain consistency between Departmental program areas.

The Department recognizes that joint employment relationships are common in agriculture, and that joint employers are required to comply with the requirements in part 653, subpart F, while filing a joint application for temporary labor certification under 20 CFR part 655, subpart B.

See

§ 655.131. The Department therefore proposes to add a definition for

joint employer

to § 651.10 to clarify how the concept will be applied in the ES system and to clarify the entities subject to discontinuation of services as a result of the proposed changes to part 658. The proposed definition is also intended to ensure consistency with recent changes to the Department's H-2A regulation, 87 FR 61660, 61793-61794 (Oct. 12, 2022), and as with the definitions of

agent

and

farm labor contractor,

the proposed definition is modeled on the definition of joint employment at 20 CFR 655.103 because of the connection between the ES system and H-2A labor certification program.

The Department proposes to add to § 651.10 a definition for

successor in interest

that describes the inexhaustive factors that SWAs should use to determine if an entity is a successor in interest to another entity. The proposed

definition allows SWAs and stakeholders to better understand which entities may be subject to discontinuation as a result of the proposed changes to part 658. To maintain consistency between the regulations governing the ES system and the regulations governing the H-2A labor certification program, the Department proposes to adapt the definition of successor in interest as proposed in § 655.104.

The Department proposes to add a definition for

week

to clarify that a week, as used in parts 652, 653, 654, and 658, means 7 consecutive calendar days. Adding the definition allows for SWAs and employers to calculate time periods used in the ES regulations uniformly, including for wage calculations and other time-related procedures.

C. Discussion of Proposed Revisions to 20 CFR Part 653

Part 653 sets forth the principal regulations of the ES concerning the provision of services for MSFWs consistent with the requirement that all services of the workforce development system be available to all job seekers in an equitable fashion and in a way “that meets their unique needs.” 20 CFR 653.100(a). Part 653 also describes requirements for participation in the ARS. Subpart F provides the requirements SWAs and employers must follow when employers seek access to the ARS by submitting clearance orders for temporary or seasonal farmwork. Section 653.501 provides the responsibilities of ES Offices and SWAs when they review clearance orders submitted by employers, and the process by which they place approved clearance orders into intra- and interstate clearance. Once the order is approved and placed into clearance, ES Offices and SWAs recruit and refer workers for the position described on the clearance order.

The Department proposes to add a fourth paragraph to § 653.501(b), at § 653.501(b)(4), which would require ES staff to consult the OFLC and WHD H-2A and H-2B debarment lists, and an ETA Office of Workforce Investment discontinuation of services list, before placing a job order into intrastate or interstate clearance. The Department further proposes a new paragraph (b)(4)(i), which states that SWAs must initiate discontinuation of ES services if the employer seeking placement of a clearance order is on a debarment list, and new paragraph (b)(4)(ii), which states that SWAs must not approve clearance orders from employers whose ES services have been discontinued by any State. Finally, the Department proposes a new paragraph (b)(4)(iii) to make clear that the provisions in paragraph (b)(4) would apply to all entities subject to discontinuation under part 658, subpart F, and not just to employers as defined in § 651.10.

The Department's mission is to promote the welfare of workers. Regarding consultation with the H-2A and H-2B debarment lists, the proposed additions are intended to further that mission by ensuring that ES offices do not place U.S. workers with employers who are presently barred from employing nonimmigrant workers via the H-2A and H-2B visa programs. This requirement, and the proposed addition to § 658.501(a)(4), would protect workers by ensuring that the ES system is not used to place a worker with an employer that has failed to comply with its obligation(s) as an employer of foreign workers. As with the H-2A program, employers participating in the H-2B program must first file job orders through the SWA's labor exchange and therefore must comply with ES requirements. As discussed more fully below in the discussion of the proposed changes to § 658.501(a)(4), the proposed inclusion of H-2B programs also recognizes that employers seeking nonimmigrant workers may improperly misclassify H-2A agricultural work as H-2B non-agricultural work. The proposed addition seeks to protect workers who use the ES system from employers who engage in improper misclassification, and to maintain a fair labor system for employers who seek temporary labor certification via the proper channels. Additionally, the H-2A regulations at 20 CFR 655.182 and 29 CFR 501.20, and the H-2B regulations at 20 CFR 655.73 and 29 CFR 503.24, describe the violations that may result in an employer's debarment from receiving future labor certifications under those programs. The potential reasons for debarment include serious violations that could affect worker safety, for example “[a] single heinous act showing such flagrant disregard for the law” that future compliance with program requirements cannot reasonably be expected (§ 655.182(d)(1)(x)). Such reasons also include an employer's substantial failure to comply with regulatory requirements, including an employer's failure to pay or provide the required wages or working conditions, an employer's failure to comply with its obligations to recruit U.S. workers, or an employer's failure to cooperate with required audits or investigations. In the Department's view, the employer subject to debarment should also be excluded from participation in the ES system. The Department does not want the ES system to facilitate placement of U.S. workers with employers whom the Department has determined should not be permitted to employ nonimmigrant workers through its H-2A and H-2B programs, particularly where the U.S. workers may perform similar work and, thus, be subject to the same or similar violations giving rise to the employer's debarment.

Regarding consultation with the proposed Office of Workforce Investment discontinuation of services list, as discussed below, the effect of a final decision to discontinue services to an employer would be to prohibit that employer from receiving any services from the ES system, not just from offices in the State that discontinued services. The Department recognizes that SWAs need a mechanism to ensure that they are not providing services, including the processing and placement of clearance orders, to entities whose services have been discontinued, and that any such mechanism should be straightforward for the SWAs to use for it to be effective. The Department believes that maintaining a list of discontinued entities—like the debarment lists maintained by OFLC and WHD—that SWAs could access when reviewing clearance orders is the most straightforward approach to effectuate this goal. In order to avoid unnecessary burden, SWAs and ES offices would consult the Office of Workforce Investment discontinuation of services list and would not provide ES services to any employers on the list, without having to go through the steps described in part 658, subpart F, to discontinue services to the same employer in their specific State. The Department also notes that the proposed changes in part 658, subpart F, discussed below, address the entities subject to discontinuation. Proposed § 658.503(e) would mandate that if the SWA discontinues services to an employer, the employer, which includes successors in interest, cannot participate in or receive Wagner-Peyser Act ES services provided by the ES to employers pursuant to parts 652 and 653; therefore, no SWA would be able to process any future job orders from the employer or a successor in interest, unless services are reinstated under § 658.504.

Section 653.501(c)(3) lists the assurances that each clearance order must include before it can be placed into clearance. Paragraph (c)(3)(i) currently requires that the clearance

order include an assurance that the employer will provide workers referred through the clearance system the number of hours of work, as indicated on the clearance order, for the week beginning with the anticipated date of need unless the employer notifies the order-holding office of a change to the anticipated start date at least 10 business days prior to the original start date, and states that the SWA must make a record of the notification and must attempt to inform referred workers of the change. Section 653.501(c)(3)(iv) currently requires that the clearance order include an assurance that the employer filing the order will promptly notify the order-holding office or SWA that crops are maturing faster or slower than expected or of other events that change the terms of employment. Section 653.501(c)(5) currently provides that if the employer fails to provide the required notice, the employer is obligated to provide eligible (pursuant to paragraph (d)(4) of this section) workers referred through the clearance system the first week's pay at the rate stated on the clearance order or find alternative work, if such alternative work is included in the clearance order. For criteria clearance orders, any alternative work provided to U.S. workers referred through the ARS will be agricultural work, in order to comply with the H-2A program requirements for work offered on such orders. For non-criteria orders, because the order is placed through the ARS, it is anticipated that alternative work provided in these situations also will be agricultural work.

The Department has determined these requirements do not provide adequate notice to workers placed on the clearance order when the terms of their employment change and do not adequately protect workers from the potential consequences of those changes. The current notification requirement, which inadvertently incorporates a requirement on the SWA into the employer assurances, is not sufficient to prevent unnecessary delay because it requires that notification occur in two steps—first from the employer to the SWA, and then from the SWA to the workers. Additionally, given the transient nature of temporary and seasonal farmwork, coupled with increased housing, transportation, and food costs in recent years, the requirement that employers provide 1 week's pay if they fail to satisfy the notification requirement does not sufficiently protect workers from resulting financial hardship. The Department proposes several changes to address these concerns by improving notice and wage protections for workers hired under ARS clearance orders.

Specifically, the Department proposes to revise § 653.501(c) to require that, in the event the employer's date of need changes from the date the employer indicated on the clearance order, the employer must notify the SWA and all workers placed on the clearance order of the change at least 10 business days before the original start date. The proposed revisions clarify that notification is only to workers placed on the clearance order, and not to workers who were referred but not hired. The proposed revisions recognize that employers, rather than the SWA or the order holding office, are in the best position to contact and notify workers placed on the order of changes to the date of need because the employer has already contracted to employ the workers and should have up-to-date contact information for each worker. The requirement to document this outreach is a minimally burdensome means to allow the SWA to assess compliance with this assurance. This proposed change will increase the likelihood that workers will receive timely notification of any change to the start date and that employers maintain accurate records of notices they provide. To ensure consistent protections for workers in the United States who apply to the employer directly, as well as to H-2A workers and workers in corresponding employment who may be impacted by a delayed start date of work, the Department proposes conforming protections at a new § 655.175 of the H-2A program regulations.

The Department further proposes that employers that fail to comply with these notice requirements must provide housing and subsistence to all workers placed on the clearance order who are already traveling to the place of employment, without cost to the workers, until work commences, and must pay all workers placed on the clearance order the applicable wages for each day work is delayed for a period of up to 2 weeks, starting with the originally anticipated date of need. The Department's proposal to require the provision of housing and subsistence would align the protections U.S. workers placed on non-criteria clearance orders receive with protections workers on criteria clearance orders receive under current § 655.145(b) and proposed § 655.175(b). The Department does not anticipate that requiring the provision of housing will burden employers as they are required to have their housing ready and inspected prior to the start date.

The Department's proposal to expand the period during which employers must pay the applicable wage to 2 weeks, from the current 1-week period, will better protect agricultural workers from financial hardship they are likely to experience should they travel or otherwise rely on the job opportunity articulated on the clearance order and find that work is not available to them. Providing up to 2 weeks of wages provides a safety net for workers to support themselves when work is not available. The Department believes 1 week of wages is insufficient to protect workers from the financial hardships associated with a delayed starting date when such delays were not communicated, particularly if a worker traveled for the job. In lieu of paying the 2 weeks' worth of wages, if the employer fails to comply with the notice requirements, employers can provide such workers alternative work if such alternative work is listed on the clearance order. The Department has determined that this alternative effectively addresses the hardship concern by providing the worker a source of income while continuing to allow the employer flexibility to adjust their anticipated start date.

To accomplish these changes, the Department proposes several specific revisions. The Department proposes to revise § 653.501(c)(3)(i) to remove the requirement that the SWA must make a record of the notification and attempt to inform referred workers of the change in the date of need. The current language improperly incorporates a SWA requirement into the employer assurances, and, as discussed below, the Department proposes to shift these responsibilities to the employer which, as discussed below, the Department has determined is better situated to make timely contact with workers. The Department also proposes to move language in this paragraph regarding the employer's notice to the order-holding office to § 653.501(c)(3)(iv), which contains other instructions the employer must follow when giving notice of changed terms and conditions of the opportunity. The proposed regulation at § 653.501(c)(3)(i) would maintain that the employer's notice must comply with paragraph (c)(3)(iv), which would more clearly explain the employer's assurance to comply with the full notice requirements.

The Department proposes to make additional revisions to paragraph (c)(3)(iv). First, the Department proposes to remove a redundancy in the first sentence, which currently states that the

employer must expeditiously notify the order-holding office or SWA immediately. Because immediate notice is expeditious, the use of the word “expeditiously” is not necessary. Second, the Department proposes that the assurance on the clearance order require that when there is a change to the start date of need, the employer, rather than the order-holding office or SWA, notify the office or SWA and each worker placed on the order. When there is a change in the date of need it is imperative that workers placed on the order be notified as quickly as possible to allow the worker to change any travel arrangements and otherwise remain informed about the opportunity. As noted above, the Department has determined that the employer, which has already contracted or communicated with the worker, is better positioned to make timely contact with workers and therefore proposes that the employer agree to do so as a condition of the participation in the ARS. Third, the Department, in this assurance and in paragraph (c)(5), proposes to require notification to workers placed on the order rather than eligible workers referred from the order. The Department proposes this change because the obligation to provide housing and subsistence to workers who are already traveling to the place of employment, and to pay wages for up to 2 weeks or provide alternative work is relevant only to workers who were actually placed with the employer rather than to workers referred to the employer through the ARS. Additionally, under current paragraph (c)(5), the obligation to pay or provide alternative work is for eligible workers, meaning those referred workers who contact the ES Office to verify the date of need pursuant to paragraph (d)(4). As discussed below, the Department proposes to remove paragraph (d)(4), which includes this verification requirement. With the proposed change to have employers notify workers of any change in their start date, the requirement that referred workers verify their start date with the ES Office is no longer necessary. Finally, the Department proposes to include the requirement to provide housing and subsistence to all workers who are already traveling to the place of employment, without cost to the workers, until work commences and to pay up to 2 weeks of wages or find alternative work from paragraph (c)(5), as the Department proposes to amend it, in the assurance. This change will make this obligation clear to the employer at the time they complete and sign the clearance order.

The Department also proposes several changes to paragraph (c)(5). First, the Department proposes to specify that the employer must provide notice to the worker placed under the clearance order, which will align this paragraph with paragraph (c)(3)(iv) and the proposed changes to the assurance described therein. For the same reason, the Department proposes to remove language stating employers must pay only workers who are eligible pursuant to paragraph (d)(4).

The Department proposes to further revise paragraph (c)(5) to clarify that the employer would be required to provide housing and subsistence to all workers who are already traveling to the place of employment, without cost to the workers, until work commences and to pay the specified hourly rate of pay on the clearance order, or if the pay listed on the clearance order is a piece-rate, the higher of the Federal or State minimum wage, or if applicable, any prevailing wage.

If the order is a criteria clearance order the employer would be required to pay the rate of pay under part 655, subpart B. These proposed edits would align the wage requirement in this paragraph with proposed wage requirements in part 655, subpart B, as applicable. The Department further proposes to require that employers, if they fail to provide the required notice at least 10 business days before the original date of need, must pay the required wage for up to 2 weeks instead of the 1 week currently required. The Department proposes this change because, as discussed above, the Department believes 1 week of wages is not sufficient to ensure workers do not experience the financial hardship that would come with being unable to start work on time, particularly if these workers have traveled for the job.

For requirements on costs for workers traveling from abroad, including in the event of a minor delay, see § 655.122 and the discussion of proposed § 655.175 in section IV.E.

The Department proposes to revise paragraph (c)(5) to clarify that any alternative work must be in the approved clearance order to help ensure employers do not require workers to perform work at sites not approved by the SWA and, for criteria clearance orders, the Department. The Department proposes to add language to clearly instruct the SWA to process violations of these requirements as apparent violations, which § 658.419 describes as violations that SWAs, ES office staff, or outreach staff observe or of which they have information, and which staff must document and refer for further action. The Department proposes these changes because SWAs have identified many apparent violations where employers caused workers to work at worksites that were not approved in their clearance orders. In some recent cases, the workers were not properly trained and were caused to perform dangerous tasks, which presented serious health and safety risks. It is critically important that all worksites are known and approved by the SWA and, as appropriate, the Department, to avoid workplace injuries, improper wage payments related to performance of non-agricultural work, and potential human trafficking.

Finally, the Department proposes to remove paragraphs (d)(4), (7), and (8) in their entirety because, with the proposed change to have employers notify workers of any change in the start date, the requirement that the applicant holding office notify workers of any changes is no longer relevant or necessary.

D. Discussion of Proposed Revisions to 20 CFR Part 658, Subpart F

This subpart sets forth the regulations governing the discontinuation of Wagner-Peyser Act ES services to employers. In 1977, the Department published regulations at 20 CFR part 658 governing the monitoring of all ES activities and enforcement of ES regulations. Subpart F provided procedures for discontinuation of services where a State agency, through its director, determined that an employer violated ES regulations. Under subpart F, where a complaint alleging an employer violated ES regulations could not be resolved or, in the absence of a complaint, where the State had reason to believe an employer violated ES regulations and could not informally resolve the matter, the State would refer it to the State director for formal investigation. Where the director issued a formal, written determination that an employer violated ES regulations, the determination would include a notification that the State would initiate discontinuation procedures in 30 days unless the employer provided sufficient evidence that it did not violate the ES regulations or had corrected the violation. If the matter was not resolved in 30 days, the State would then notify the employer in writing that it would terminate ES services in 15 days unless the employer requested a hearing or provided sufficient evidence that it did not violate ES regulations. Where the employer did neither, the State would discontinue ES services to the employer until the employer provided sufficient evidence that it did not violate ES

regulations or that it corrected the violation.

In 1980, the Department published regulations to clarify and streamline the discontinuation provisions. In addition to violations of ES regulations, the Department set forth several, specific bases for discontinuation (

e.g.,

where the employer is found to have misrepresented the terms and conditions of a job order, or found by an enforcement agency to have violated an employment-related law). The Department also revised the discontinuation procedures to include (1) a notice of intent to discontinue services, (2) an opportunity for employer to respond and/or request a hearing, (3) a final determination, and (4) an opportunity to request reinstatement or a hearing.

The Department proposes revisions throughout this subpart to further clarify the bases and process for discontinuing services because the Department has observed a need for greater clarity among SWAs about the circumstances under which they must discontinue services to employers and the specific requirements they must follow to do so. As discussed below, in the Department's view, SWAs do not utilize the discontinuation process to the fullest extent because of uncertainty regarding the process and requirements to discontinue services.

In this subpart, the Department also proposes to reorganize regulations to more accurately group subjects and to more logically arrange procedural steps, including when and how employers may request a hearing. Finally, the Department proposes to clarify what ES services would be unavailable after discontinuation and the entities subject to discontinuation.

The existing regulations in this subpart require SWAs to discontinue services to employers who meet any of the bases for discontinuation detailed at § 658.501(a), by utilizing the procedures outlined in §§ 658.501 through 658.504. However, the Department has observed hesitancy among SWAs to utilize the existing discontinuation provisions, and SWAs have shared information with the Department that they do not fully understand the requirements to discontinue services to employers and have sought instructions and Departmental review of notifications to employers. The Department's data suggests that this lack of clarity is limiting the SWA's use of discontinuation. For example, a SWA is required to discontinue services if an employer fails to fully comply with assurances made on clearance orders. These assurances include compliance with housing standards, wage payment, contract disclosure, recordkeeping, and other common areas of employer noncompliance. As reported in the National Monitor Advocate's (NMA) Annual Report on Services to MSFWs for program year (PY) 2020, the most recent year for which data is available, Form ETA-5148 (Services to Migrant and Seasonal Farmworkers Reports) documents that SWAs processed 598 ES-related complaints against employers involving non-MSFWs and 94 ES-related complaints against employers involving MSFWs. Of the 2,581 total complaints received, which include ES and non-ES related complaints involving MSFWs and non-MSFWs, SWAs processed, 950 complaints related to wages, 270 complaints involved discrimination, 173 complaints involved health and safety, and 88 complaints involved housing, in addition to other categories. Also, in PY 2020, SWAs reported that they processed 453 apparent violations, as described at § 658.419, including 218 wage-related issues, 175 health and safety related issues, and 51 housing-related issues, in addition to other categories. Despite the number of complaints and apparent violations in these areas, SWAs reported that they discontinued services to only 17 employers in PY 2020. While not every complaint or apparent violation will result in discontinuation of services, the low number of discontinuations relative to the number of complaints and violations may suggest that enhanced clarity in the bases and procedures for discontinuation is needed, and could aid SWAs in better utilizing the discontinuation provisions to hold employers accountable and protect workers from additional violations.

Similarly, SWAs must initiate discontinuation of services when the Department or a SWA receives notification from an appropriate enforcement agency of a final determination that includes a violation of an employment-related law. Applicable enforcement agencies may include any State, Federal, or local agencies that enforce employment-related laws, for example the Department's Occupational Safety and Health Administration (OSHA), WHD, the National Labor Relations Board (NLRB), the Equal Employment Opportunity Commission (EEOC), State or local departments of health, and other related agencies. WHD public enforcement data documents thousands of investigations between PY 2012 and PY 2019 that involve employers who used the ES to place criteria clearance orders and violated employment-related laws. However, between PY 2012 to 2019, SWAs reported that they only discontinued services twice (once in PY 2016 and once in PY 2019). Again, the glaring disparity between the number of violations found by WHD and the actual discontinuation of services by the SWAs during the same time period may suggest that the SWAs would benefit from clarifying revisions to the ES regulations governing the discontinuation process.

The Department believes that the increase in discontinuation of services in PY 2020 is likely attributable to the NMA's increased training of SWA staff in this area of the regulation and not due to an increase in the number of employers meeting the conditions for discontinuation of services. While this training provided needed clarity to the SWAs, and therefore produced results, the Department sees the need for additional clarity and support for SWAs to discontinue services and mitigate the possibility of misunderstanding or incorrectly utilizing the discontinuation provisions. As noted above, in recent years, SWAs have shared information with the Department that they do not fully understand the requirements to discontinue services to employers and have sought instructions and Departmental review of notifications to employers. In the Department's review, the Department identified that SWAs have made errors regarding citing applicable bases to discontinue services under § 658.501(a), describing necessary facts to justify the discontinuation, and notifying employers of their right to a hearing. These issues contributed to several instances where SWA were not successful in discontinuing services to employers even though the SWAs believed they had a sufficient basis to discontinue services. The Department believes that revising the regulations, as described below, provides SWAs the needed additional clarity to better implement the discontinuation provisions and would allow ETA, including its regional offices, to better monitor and support SWAs to ensure they initiate discontinuation of services as required by the regulations. This would improve worker protection by preventing noncompliant employers from using the ES service to obtain workers (including H-2A workers, as employers seeking to use the H-2A visa program must first file a clearance order through the ES) which, in turn, aids the Department in ensuring a fair labor exchange system for compliant employers, and meeting its statutory obligations to maintain and increase the

usefulness of the ES system. Additionally, the proposed clarifications and improvements to the discontinuation procedures provide greater certainty to employers seeking to provide information to SWAs in response to a notice of intent to discontinue, or seeking to reinstate services, and protect employers' interests by ensuring that they receive informative and timely determinations from SWAs. Specific proposed changes are discussed below.

The Department proposes to revise § 658.500, which describes the scope and purpose of subpart F, to add language consistent with proposed revisions to § 658.503 that discontinued services include services otherwise available under parts 652 and 653. This revision clarifies the scope of services discontinued to include the labor exchange services—such as recruitment, career, and labor market information services—available to employers under part 652.

The Department also proposes to add paragraph (b) to § 658.500, which would explain that for purposes of this subpart, employer refers to

employers,

as defined at § 651.10, and

agents, farm labor contractors, joint employers,

and

successors in interest,

as proposed to be defined at § 651.10. Proposed paragraph (b) would therefore describe which entities may experience discontinuation of services. Each of these entities may engage in the ES clearance system by creating or submitting clearance orders, or by managing or utilizing workers placed on ES clearance orders.

Agents

and

farm labor contractors

often engage the ES clearance system by submitting clearance orders and controlling many aspects of recruitment activities relating to clearance orders.

Joint employers

may utilize workers placed on clearance orders in the same or similar manner as the

employer,

defined at § 651.10, with whom they jointly employ those workers. A

successor in interest

may have reincorporated itself from an

employer

whose ES services have been discontinued into another business entity that maintains the same operations or interests, allowing that entity to undermine the effect of the discontinuation of the original entity in contravention of the purpose of the discontinuation regulation. The proposed revisions are meant to clarify and expand the entities who engage the ES clearance system and are, thus, subject to discontinuation. Specifically, this change makes it clear that agents, farm labor contractors, joint employers, and any successor in interest to an agent, farm labor contractor, or joint employer, are subject to discontinuation of services. This proposed change addresses a limitation of the current regulation, allowing SWAs to take action that will better protect workers.

Finally, as the proposed

agents, farm labor contractors, joint employers,

and

successors in interest

also seek temporary labor certifications from OFLC under part 655, subpart B, adding these entities here brings the discontinuation regulation in line with the existing H-2A regulations, which permit the debarment of agents, farm labor contractors, joint employers, and successors in interest, as well as fixed-site H-2A employers, and agricultural associations.

Section 658.501 describes eight bases for which SWA officials must initiate discontinuation of services to employers. The Department proposes several edits to paragraphs (a)(1) through (7), except paragraph (a)(3), including a substantive revision to paragraph (a)(4).

In paragraph (a)(1), the Department proposes to state that SWA officials must discontinue services to employers who submit and refuse to correct or withdraw job orders containing terms and conditions contrary to

employment-related laws.

The existing regulation contains the terms

alter

and

specifications.

The Department proposes to change “alter” to “correct” to more clearly articulate that the employer must specifically correct the noncompliant condition rather than simply changing the condition, which might not result in correction of the noncompliance. This change would also clarify which action will lead to the initiation of the discontinuation process. The Department proposes to change “specifications” to “terms and conditions” to align the language in paragraph (a)(1) with the language used in § 653.501, and proposes to change this term in the corresponding provision at § 658.502(a)(1) to conform to this proposed change to § 658.501(a)(1).

The Department proposes to reorganize paragraph (a)(2) for clarity by moving the language regarding withdrawal of job orders that do not contain required assurances to earlier in the sentence. The Department also proposes to remove language in paragraph (a)(2) that currently limits this basis for discontinuation to only those assurances involving

employment-related laws.

The Department proposes to remove this language because employers must provide all assurances described at § 653.501(c)(3), which include more than the assurance to comply with

employment-related laws.

The Department has determined that a failure to provide any required assurance should be grounds for discontinuation because each assurance is necessary to ensure workers referred on clearance orders are fully apprised of and protected by the assurances if placed on the order.

The Department proposes to amend paragraph (a)(4) to add that SWA officials must initiate procedures for discontinuation of services for employers who are currently debarred from participating in the Department's H-2A or H-2B foreign labor certification programs. The Department recognizes that many employers who use the ARS also seek temporary labor certifications from OFLC under part 655, subpart B. These employers may attempt to recruit workers through non-criteria orders in the ARS if they are prohibited from using the H-2A program as a result of their debarment. In its experience OFLC has seen many instances where employers who should file H-2B applications because they are seeking to employ workers in non-agricultural occupations instead inappropriately file H-2A applications. Similarly, in its enforcement experience WHD has seen employers that have mischaracterized the nature of their labor needs on their applications for labor certification to obtain labor certification to hire workers from one program to work in job opportunities that are appropriately classified in the other program. Failure to utilize the appropriate H-2 program results in the posting of inaccurate job orders, thereby undermining the labor market test. It also deprives workers of the specific protections available to them under each of the respective programs, such as the right to housing free of cost under the H-2A program. Likewise, it harms law-abiding employers as their competitors gain an unfair advantage by offering fewer benefits to their workforce or by avoiding the H-2B visa cap to which other employers must adhere. In light of these experiences, the Department has determined that it is appropriate for SWAs to initiate discontinuation proceedings against entities debarred from participation in the H-2A or H-2B temporary labor certification programs to protect workers seeking employment through the ES system and to maintain a fair system for law-abiding employers. The Department notes that § 655.73 currently prohibits employers debarred from the H-2B program from participating in any of the Department's other foreign labor programs, including the H-2A program; this proposal reinforces that prohibition.

The Department proposes this requirement to protect workers who use the ARS by ensuring that ES offices do

not place U.S. workers with employers during any such period of debarment. Debarment is a serious sanction that results from substantial violations of a material term or condition of the employer's temporary labor certification, and that is imposed only after an employer has exhausted or forfeited an opportunity to respond to the proposed action as well as substantial appeals procedures. These may include violations related to worker safety, failure to provide required wages or working conditions, failure to comply with recruitment requirements or participate in required investigations or audits, or failure to pay required fees. Entities that have committed such violations should be excluded from participation in the ES, and the Department's proposal will better protect U.S. workers by ensuring that they will not be placed with debarred employers that have substantially violated a material term or condition of their temporary labor certification. The proposed changes would also ensure that law-abiding employers have greater access to ES services and are better able to recruit available U.S. workers for jobs because SWAs would spend less time and resources serving noncompliant employers, and law-abiding employers would receive referrals of qualified U.S. workers that might otherwise go to noncompliant employers.

The Department invites comments on this proposed basis for discontinuation and the inclusion of employers debarred from participation in the H-2B program. In addition, the Department is considering whether to expand this provision to require SWAs to initiate discontinuation proceedings against employers that have been debarred from any of the Department's other foreign labor certification programs—the H-1B, CW-1, and PERM programs. The Department invites comments on whether to expand this provision to all of the foreign labor certification programs, or to some but not all of the other foreign labor certification programs, the scope of employers to whom this may apply, and the effect(s) of expanding this provision.

The Department proposes to amend § 658.501(a)(5) by adding that this basis for discontinuing services includes employers who are found to have violated ES regulations pursuant to § 658.411 or § 658.419. This edit is intended to clarify that ES violations may be found as a result of apparent violations, which are described at § 658.419.

The requirement to accept qualified workers referred through the clearance system applies only to criteria clearance orders filed pursuant to § 655.121; therefore, the Department proposes to amend paragraph (a)(6) by clarifying that discontinuation on the basis of failure to accept qualified workers would be appropriate only for employers placing criteria clearance orders. For non-criteria clearance orders, the regulations at part 653, subpart F, do not require employers to hire all qualified workers referred through the ES, so this basis for discontinuation would not apply.

In paragraph (a)(7), the Department proposes to remove the words

in the conduct of,

which are currently present but do not add meaning and are therefore extraneous and unnecessary.

Current § 658.501(b) explains the circumstances and procedures for immediate discontinuation of services. The Department proposes to move paragraph (b) to §§ 658.502 and 658.503 to clarify that existing paragraph (b) is not an independent basis for discontinuation and to better align it with the discontinuation procedures in §§ 658.502 and 658.503. Additional proposed changes are discussed below.

The Department is redesignating current § 658.501(c), which recognizes the unique interplay between the ES and H visa programs, to § 658.501(b), with revisions. The proposed new § 658.501(b) explains what a SWA must do when it has learned that an employer participating in the ES system may not have complied with the terms of its temporary labor certification under, for example, the H-2A and H-2B programs. The current regulation states that SWA officials must engage in the

procedures

for discontinuation of services to employers pursuant to paragraphs (a)(1) through (8) of § 658.501. The Department proposes to clarify that SWA officials must determine whether the SWA must

initiate

discontinuation of services pursuant to § 658.501(a). The proposed change clarifies that SWAs cannot proceed with discontinuation procedures based solely on information that an employer

may

have violated the terms of its temporary labor certification. Rather, SWAs must take that information and look to paragraph (a) to determine whether one of the bases for discontinuation applies. Once a SWA determines that one of the bases for discontinuation under paragraph (a) does apply, then the SWA

must

initiate discontinuation of services. Finally, as the proposed paragraph (b) would apply to both currently active and previous labor certifications, the Department invites comments on whether it would be appropriate to limit the scope of previous labor certifications or potential violations of a labor certification to a particular time period.

Section 658.502 describes the notification and procedural requirements a SWA must follow when it intends to discontinue services to an employer. The Department proposes several changes throughout § 658.502 to clarify and streamline these requirements. First, the Department proposes to revise the section heading to state that it relates to notification to employers of the SWA's intent to discontinue services. This change clarifies that this section relates only to initial notices proposing discontinuation and not to the final notices described in § 658.503. The Department also proposes to add introductory language to the beginning of paragraph (a) to clarify that these procedures apply where the SWA determines that there is an applicable basis for discontinuation of services under § 658.501(a). The Department proposes additional revisions to paragraph (a) to clarify that the initial notices must provide the reasons for proposing discontinuation and must state that the SWA intends to discontinue services in accordance with this section. The proposed language removes the reference to part 654, to which discontinuation of services does not apply. These proposed revisions are intended to address issues SWAs encountered in PY 2020 and 2021 in initiating discontinuation of services, including insufficient notification to employers of the applicable bases for discontinuation and insufficient factual detail in the notices to support the applicable bases. The Department notes that if more than one basis under paragraph (a) applies, the SWA must initiate discontinuation under all applicable bases.

Paragraphs (a)(1) through (7) of § 658.502 provide specific notification requirements for each of the corresponding bases for discontinuation outlined in § 658.501(a)(1) through (7). The Department proposes to remove language in § 658.502(a)(1) through (7) that describes the applicable bases for discontinuation and instead cross-reference the applicable citations for clarity. For example, the Department proposes to revise § 658.502(a)(1) to state that the paragraph applies where the proposed discontinuation is based on § 658.501(a)(1). This would replace current language that describes § 658.501(a)(1) and more clearly and succinctly direct the SWA to § 658.501(a)(1) as the applicable basis.

The Department also proposes to remove language in § 658.502(a)(1) through (7) that provides employers the

opportunity for a pre-discontinuation hearing. In response to a SWA's notice of intent to discontinue services, the existing language provides an employer the opportunity to submit evidence contesting the proposed discontinuation and/or to request a hearing pursuant to § 658.417. The proposed revisions will better align the hearing procedures for discontinuation of services at part 658, subpart F, with the hearing procedures for the ES Complaint System at §§ 658.411(d) and 658.417, which allow for a hearing by a

State hearing official

only after the SWA issues a final decision on a complaint. As currently written, the discontinuation proceedings at § 658.502(a)(1) through (3) and (5) through (7) allow for a hearing under § 658.417 without the SWA ever issuing a final determination under § 658.503. This prevents SWAs from uniformly issuing final determinations in all discontinuation proceedings. Additionally, it inadvertently allows employers to bypass a formal decision from the SWA anytime they request a hearing and, because State administrative hearings may take several months to complete, inadvertently prolongs any formal determinations. The Department believes that removing the opportunity for a pre-discontinuation hearing—while maintaining the opportunity for employers to submit evidence contesting the proposed discontinuation under § 658.502 and the opportunity for a post-discontinuation hearing in § 658.504—allows SWAs to expeditiously and fairly resolve discontinuation proceedings while providing sufficient due process to employers. The proposed change allows for a more complete record than would result from an immediate appeal of a notice from the SWA proposing discontinuation. This proposed change also better aligns with the ES Complaint System regulations which do not contemplate pre-determination hearings. Moreover, as discussed above, the 1977 discontinuation regulations only allowed for pre-discontinuation hearings and, in an effort to clarify and streamline the discontinuation provisions, the 1980 regulations allowed for both a pre- and post-discontinuation hearing pursuant to § 658.417. In doing so, the pre-discontinuation hearing currently available under § 658.502 is no different than the post-discontinuation hearing available under § 658.504. Removing the identical pre-discontinuation hearing allows for a more efficient process without removing due process protections for employers and ensures that post-discontinuation hearings are decided on a more complete record.

Finally, in § 658.502(a)(1) through (7), the Department proposes changing the language that SWAs must notify employers that all

employment services

will be terminated to state that all

ES services

will be terminated. The proposed language clarifies that the services at issue are specific to the ES.

In addition to the changes described above, the Department proposes revisions to paragraphs (a)(1) through (7) to provide greater detail and specificity regarding the type of information that SWAs must provide to employers when proposing to discontinue services. The proposed changes ensure that SWAs adequately explain their reasons for proposing discontinuation, and that employers have sufficient factual detail to respond to the proposed discontinuation. In these paragraphs, the Department also proposes small changes for clarity, including rewording sentences so they use the active voice.

In paragraph (a)(2), the Department proposes to add language explaining that SWAs must specify the assurances involved and must explain how the employer refused to provide the assurances. The proposed edits ensure that SWAs describe the basic facts that led them to initiate discontinuation of services so employers understand the scope of the alleged violation and have sufficient information to respond. The Department also proposes a revision to paragraph (a)(2)(ii) to align this paragraph with the proposed changes to § 658.501(a)(2), discussed above, regarding the scope of the required assurances.

In paragraph (a)(3), to provide clearer direction to SWAs and better notice to entities receiving a notice, the Department proposes to add language stating that SWAs must specify the terms and conditions the employer misrepresented or the assurances with which the employer did not fully comply, and explain how the employer misrepresented the terms or conditions or failed to comply with assurances on the job order. In paragraph (a)(3)(iii), the Department proposes removing the requirement that employers provide

resolution of a complaint which is satisfactory to a complainant referred by the ES,

replacing it with the requirement that an employer provide

adequate evidence that it has resolved the misrepresentation of terms and conditions of employment or noncompliance with assurance.

Evidence is adequate if the SWA could reasonably conclude that the employer has resolved the misrepresentation or noncompliance. The proposed change removes unnecessary and out-of-place language regarding ES complaints, which are addressed in paragraph (a)(5), and better aligns § 658.502(a)(3) with proposed § 658.501(a)(3). The Department also proposes combining paragraphs (a)(3)(iii) and (iv) to make clear that employers need to provide the information in paragraphs (a)(3)(iii) and (iv) together.

In paragraph (a)(4), the Department proposes to add language that SWAs must provide evidence of the final determination by an enforcement agency of a violation of an

employment-related law

or debarment with the notice of intent to discontinue services. For purposes of discontinuation, a final determination is a decision by an enforcement agency, such as WHD, OSHA, or other Federal, State, or local agency responsible for enforcing employment-related laws, that has become operative under applicable law. For final determinations, the Department proposes adding language clarifying that the SWA must specify—as discussed in the final determination or debarment—the enforcement agency's findings of facts and conclusions of law as to the employment-related law violation(s). For final debarment orders, the Department proposes adding language requiring the SWA to specify the time period for which the employer is debarred from participating in one of the Department's foreign labor certification programs. These proposed revisions ensure the SWA has confirmed that a final determination or debarment exists and that the employer has sufficient information regarding the final determination at issue to respond.

The Department proposes revisions to § 658.502(a)(4)(i) through (iii) to clarify and explain the evidence and assurances that employer may provide to avoid discontinuation of services. In paragraph (a)(4)(i), the Department proposes to remove existing language stating that the employer may provide evidence that the enforcement agency reversed its ruling and that the employer did not violate employment-related laws; and to replace it with language stating that the employer may provide evidence that the determination at issue is not final because, for example, it has been stayed pending appeal, overturned, or reversed. The proposed change clarifies that employers may contest the finality of the determination under paragraph (a)(4) and clarifies that SWAs may not discontinue services where a determination is not, in fact, final. The Department proposes a new paragraph

(a)(4)(ii) which requires employers to submit evidence that their period of debarment is no longer in effect and that they have taken all actions required by the enforcement agency as a consequence of the violation. If the proposed discontinuation is based only on a final determination of a violation of an employment related law, then evidence that the debarment is no longer in effect is not needed; similarly, if the proposed discontinuation is based on a debarment then evidence that the employer has taken necessary remedial actions is not necessary. The proposed addition in paragraph (a)(4)(ii)(A) is necessary to address employer responses to debarment or disqualification. The proposed paragraph (a)(4)(ii)(B) incorporates existing language and is meant to more clearly encompass any and all actions required by final determination but does not substantively change what an employer has to show under current § 658.502(a)(4)(ii).

In paragraph (a)(5), the Department proposes additional language to clarify that the SWA must specify which ES regulation the employer has violated and must provide basic facts to explain the violation. The proposed language ensures that SWAs provide sufficient factual detail regarding the ES violation at issue so the employer can respond.

The Department proposes to revise § 658.502(a)(6) to explain that SWAs must state that the job order at issue was filed pursuant to § 655.121 and specify the name of each worker who was referred and not accepted. The proposed revision is consistent with the proposed change to § 658.501(a)(6) and ensures that SWAs provide sufficient factual detail regarding the workers at issue so the employer can respond. In paragraph (a)(6)(iii), the Department proposes changing

and

to decouple paragraph (a)(6)(iii) from the assurances required in existing paragraph (a)(6)(iv), as it is not necessary for employers that did not violate the requirement to provide assurances of future compliance. The Department proposes a new paragraph (a)(6)(iv), to add an option for the employer to show that it was not required to accept the referred workers, because the time period under 20 CFR 655.135(d) had lapsed, and a new paragraph (a)(6)(v), to add an option for the employer to show that, after initial refusal, it subsequently accepted and offered the job to the referred workers or to show that it has provided all appropriate relief imposed as a result of the refusal. It is necessary to update this paragraph because the current regulation does not provide for the scenario where an employer subsequently offers employment to qualified workers after first refusing, as the current paragraph (a)(6)(i) is intended to capture scenarios where an employer accepted qualified workers and did not refuse them as found by the SWA. It is also possible that SWAs may attempt to resolve apparent violations involving failure to hire qualified U.S. workers referred through the ES, resulting in employers hiring those individuals. Finally, the Department proposes to move existing paragraph (a)(6)(iv) to paragraph (a)(6)(vi) to maintain the requirement that the employer provide assurances that qualified workers referred in the future will be accepted; and adds new language to clarify the assurance that is required depending on whether the period described in 20 CFR 655.135(d) has lapsed, as after the end of the period the employer would no longer be required to accept referred workers on the particular clearance order involved. This change provides a means of ensuring future compliance with the requirement that the employer submitting criteria clearance orders hires all qualified workers referred to the order.

In paragraph (a)(7), the Department proposes clarifying edits that provide clearer direction to the SWA but that do not change the regulation's meaning, including rephrasing sentences and changing the pronoun used for employers to

instead of

he/she.

The Department proposes to add a new paragraph (a)(8) to explain information the SWA must include in its notice to an employer proposing to discontinue services where the decision is based on § 658.501(a)(8) (repeatedly causes the initiation of discontinuation of services). The Department proposes that the SWA must list and provide basic facts explaining the prior instances where the employer has repeatedly caused initiation of discontinuation proceedings to provide notice of the basis for the SWA's action to facilitate their response. The SWA must notify the employer that all ES services will be terminated unless the employer within that time provides adequate evidence that the SWA's initiation of discontinuation in prior proceedings was unfounded. The proposed paragraph (a)(8) replaces existing paragraph (c), which discusses discontinuation based on § 658.501(a)(8) but does not include clear direction to the SWA and does not provide sufficient notice to employers to allow them to respond.

The Department proposes to remove existing § 658.502(b) and (d) because these paragraphs pertain to the employer's pre-determination opportunity to request a hearing. As described above, the Department proposes to eliminate the opportunity for an employer to request a hearing until after the SWA has provided its final notice on discontinuation of services to the employer.

The Department proposes a new § 658.502(b) to explain the circumstances that warrant immediate discontinuation of services. The proposed addition replaces existing § 658.501(b), in part, and states that SWA officials must discontinue services immediately, in accordance with § 658.503, without providing the notice of intent and opportunity to respond described in this section, if an employer has met any of the bases for discontinuation of services under § 658.501(a) and, in the judgment of the State Administrator, exhaustion of the administrative procedures set forth in this section would cause substantial harm to workers. The existing § 658.501(b) states that SWA officials

may

discontinue services immediately in these circumstances, whereas the proposed new § 658.502(b) states that SWAs

must

discontinue services immediately. Additionally, existing § 658.501(b) allows for discontinuation when there would be substantial harm to a

significant number

of workers, whereas proposed new § 658.502(b) requires immediate discontinuation when there would be substantial harm to workers. The proposed changes recognize that immediate discontinuation is warranted where the harm at issue would involve only one or a small number of workers, and that where such harm would occur SWAs must be required to initiate discontinuation to prevent the harm from actually occurring to workers. Finally, this proposed paragraph clarifies that immediate discontinuation is appropriate only when a basis under proposed § 658.501 exists

and

the SWA determines that substantial harm would occur; risk of substantial harm alone is not enough for a SWA to immediately discontinue services.

Section 658.503 describes the procedural requirements a SWA must follow when issuing a final determination regarding discontinuation of services to an employer. The Department proposes to revise paragraph (a) to require that within 20 working days of receipt of the employer's response to the SWA's notification under § 658.502, or at least 20 working days after the SWA's notification is received by the employer if the SWA does not receive a response, the SWA must notify the employer of its

final determination. When the SWA sends its notification, it must do so in a manner that allows the SWA to track receipt of the notification, such as certified mail. If the SWA determines that the employer did not provide a satisfactory response in accordance with § 658.502 the SWA's notification must specify the reasons for its determination, state that the discontinuation of services is effective 20 working days from the date of the notification, state that the employer may request reinstatement or a hearing pursuant to § 658.504, and state that a request for a hearing stays the discontinuation pending the outcome of the hearing. The Department is proposing this stay pending appeal and the 20-working-day period to ensure that employers are provided an opportunity to challenge the SWA's determination before losing access to all ES services. Staying the effect of discontinuation during the pendency of an appeal is appropriate to allow for full adjudication and resolution of any issues related to the SWA's findings before they become final and binding on the employer and the ES system, mitigating the risk that an employer is erroneously deprived of access to services, similar to the procedures in § 658.502. Additionally, placing the effective date at the end of the 20-day period, rather than at the issuance of the notification, avoids depriving appealing employers of ES services for a short period of time prior to their request for hearing. This also makes for a more efficient process for SWAs and ETA, as these agencies would otherwise expend time and resources to effectuate a discontinuation that may be premature—if the employer requests a hearing a short time later, agencies would need to use additional resources to then stay the discontinuation they just effectuated. To facilitate implementation and maintenance of the proposed Office of Workforce Investment discontinuation of services list, discussed above, the SWA must also notify the ETA Office of Workforce Investment of any final determination to discontinue ES services, including any decision on appeal upholding a SWA's determination to discontinue services.

The proposed § 658.503(a) removes language regarding pre-discontinuation hearings to correspond with proposed changes to § 658.502. The Department believes that this timeline for SWAs is appropriate because an expeditious resolution of the matter both minimizes the uncertainty an employer faces when a SWA has proposed to discontinue services, and it allows the SWA to deny services to employers that have engaged in impermissible conduct. The effect of an adverse final determination would be, among other things, to protect workers from being placed with those employers and would prevent the employer from seeking a temporary labor certification under part 655, subpart B, of the title. Because of the potential consequences to both employers and workers, the Department has determined that an expeditious process would be necessary.

The Department proposes to add a new § 658.503(b) to explain the procedures for immediate discontinuation of services and to incorporate them into the general discontinuation procedures at § 658.503. The proposed new paragraph (b) replaces existing § 658.501(b), in part, and states that the SWA must notify the employer in writing that its services are discontinued as of the date of the notice. The notification must also state that the employer may request reinstatement or a hearing pursuant to § 658.504, and that a request for a hearing relating to immediate discontinuation does not stay the discontinuation pending the outcome of the hearing. The proposed new § 658.503(b) adds that SWA must specify the facts supporting the applicable basis for discontinuation under § 658.501(a) and the reasons that exhaustion of the administrative procedures would cause substantial harm to workers. The proposed addition ensures that employers have sufficient information regarding the SWA's rationale for immediate discontinuation, and makes clear that employers have recourse to the State administrative hearing process or reinstatement process if a SWA immediately discontinues services. While discontinuation under a determination issued under § 658.503(a) is delayed until the employer's time to appeal the determination has ended, the Department thinks that the circumstances justifying a notice of immediate discontinuation also justify that the discontinuation be effective immediately, irrespective of the employer's opportunity to appeal, and that it remain in effect unless the employer is reinstated or the determination is overturned. Immediate discontinuation is reserved for those situations where the State Administrator determines that substantial harm to workers will occur if action is not immediately taken. For example, State Administrators may determine that immediate discontinuation is justified when they receive information evidencing that employers have made threats or have perpetrated violence against workers, or that involve other substantial harm like human trafficking and other significant health and safety issues. SWA quarterly ETA Form-5148 reports evidence that SWAs processed 36 complaints and four apparent violations involving sexual harassment, coercion, or assault, as well as two complaints and six apparent violations involving trafficking in PY 2020.

Additionally, over the last several years, the Department has received information evidencing that employers have made threats of physical violence against workers. In two cases, employers were recorded on video threatening workers with firearms. Delaying the effective date of the discontinuation would undermine the protection that the immediate discontinuation procedure is designed to provide. While the Department recognizes the burden that employers may face if they do not have access to any ES services pending an appeal of an immediate discontinuation, the Department thinks that this burden is outweighed by the interest in protecting workers from harmful, potentially dangerous situations. The Department notes that in lieu of an appeal, an employer subject to immediate discontinuation of services can request reinstatement from the SWA, and that the proposed 20-day timeframe for the SWA to respond to such a request may provide for timely and efficient resolution of an immediate discontinuation. Finally, as with proposed § 658.503(a), to facilitate implementation and maintenance of the proposed Office of Workforce Investment discontinuation of services list, discussed above, the SWA must also notify the ETA Office of Workforce Investment of any final determination to discontinue ES services.

See Appendix IV LEARS 5148 Report Part 1 National Data for PY 2020,

https://www.dol.gov/sites/dolgov/files/ETA/mas/pdfs/APPENDIX%20IV%20LEARS%205148%20REPORT%20PART%201%20NATIONAL%20DATA.xlsx.

The Department proposes to move current § 658.503(b), which requires the SWA to notify the relevant ETA regional office if services are discontinued to an employer subject to Federal Contractor Job Listing Requirements, to proposed new paragraph (c) and to make minor edits to use active voice and to improve clarity, which do not change the meaning of the requirement. The Department proposes to add paragraph (d) to require SWAs to notify the complainant of the employer's discontinuation of services, if the discontinuation of services is based on a complaint filed pursuant to § 658.411.

This requirement would align with section § 658.411(b)(2) and (d).

The Department proposes to add a new paragraph (e) to explain the effect discontinuation of services has on employers. The proposed new paragraph explains that employers that experience discontinuation of services may not use any ES activities described in parts 652 and 653, and that SWAs must remove the employer's active job orders from the clearance system and must not process any future job orders from the employer for as long as services are discontinued. An employer's loss of access to ES services applies in all locations throughout the country where such services may be available. If the effect of the discontinuation were limited to just the State that discontinued services, it would frustrate the purpose of discontinuation.

This proposed new paragraph responds to common questions the Department receives regarding the effect of discontinuation of services on current and future job orders and, as with proposed revisions to § 658.500, clarifies that the scope of services discontinued to include those ES services available to employers under part 652. Proposed § 658.501(b) would require SWA officials to notify the OFLC National Processing Center (NPC) when an ES office or SWA has information that an employer may not have complied with the terms of its temporary labor certification, under, for example the H-2A and H-2B programs. Therefore, in addition to closing the employer's active clearance orders so that the employer will not receive additional U.S. worker referrals, the NPC would be aware of the alleged noncompliance so that it may investigate and apply appropriate actions to the foreign labor certification. The Department is interested in comments on the effect on both workers and employers of removing active job orders, particularly criteria orders. The Department proposes new paragraph (f) to explain that SWAs must continue to provide the full range of ES and other appropriate services to workers whose employers' services have been discontinued. The proposed new paragraph makes it clear that discontinuation of services to employers does not, and should not, negatively affect workers. SWAs must continue to provide necessary support to workers, including outreach to MSFWs, access to the ES and Employment-Related Law Complaint System, and all available ES services.

Section 658.504 describes the procedural requirements for seeking reinstatement of ES services, which can be done either by requesting that the SWA reconsider its decision or by requesting a hearing. The Department proposes to restructure this section to more clearly explain how services may be reinstated, the timeframes in which the employers and SWA must act, and the circumstances under which services must be reinstated.

The Department proposes to revise paragraph (a) to make clear that employers have two avenues with which to seek reinstatement of services—via a hearing within 20 working days of the discontinuation or a written request to the SWA at any time following the discontinuation. An employer cannot, however, simultaneously appeal a discontinuation and submit a written request to the SWA for reinstatement. The revised paragraph (a) adds the new requirement that an employer who requests a hearing following discontinuation do so within 20 working days of the date of discontinuation. These avenues are available under the current regulation, but the Department has added a requirement that the employer file an appeal within 20 working days of the SWA's final determination because both the employer and the State have an interest in timely and efficient adjudication of disputes.

The Department proposes to revise § 658.504(b) to explain the circumstances and procedures under which SWAs must reinstate services when an employer submits a written request for reinstatement. The Department proposes new paragraph (b)(1), which retains the current 20-day timeline in existing paragraph (b) within which the SWA must notify the employer whether it grants or denies the employer's reinstatement request. The proposed paragraph (b)(1) also requires that if the SWA denies the request, the SWA must specify the reasons for the denial and must notify the employer that it may request a hearing, in accordance with proposed paragraph (c), within 20 working days.

The Department proposes to move current paragraph (a)(2), which describes the evidence necessary for reinstatement, to proposed paragraph (b)(2) to align with the overall restructuring of the section. The Department also proposes to remove the word

any

to require that the employer show evidence that all applicable specific policies, procedures, or conditions responsible for the previous discontinuation are corrected, instead of

any

policies, procedures, or conditions responsible for the previous discontinuation. The Department is concerned that the current language could permit reinstatement despite an employer not correcting all relevant policies, procedures, or conditions, which would be inconsistent with the purpose of discontinuation. Finally, the Department also proposes to change the pronoun used for employers to

instead of

his/her.

The Department proposes to revise § 658.504(c) to explain the circumstances and procedures under which SWAs must reinstate services when an employer submits a timely, written request for a hearing. The proposed revisions maintain the procedures in existing paragraphs (a)(1), (c), and (d), but have reorganized them into the same paragraph for clarity. Finally, the Department proposes to replace the abbreviated term “Federal ALJ” in the existing regulation with “Federal Administrative Law Judge,” commonly abbreviated as ALJ.

The Department proposes a new paragraph (d) to require that SWAs notify the ETA Office of Workforce Investment of any determination to reinstate ES services, or any decision on appeal upholding a SWA's determination to discontinue services, within 10 working days of the date of issuance of the determination. As discussed above, the Department believes that prompt notification to the Office of Workforce Investment will facilitate implementation and maintenance of the proposed Office of Workforce Investment discontinuation of services list and will ensure that employers whose services have been reinstated may promptly access ES services.

IV. Discussion of Proposed Revisions to 20 CFR Part 655, Subpart B

A. Introductory Sections

1. Section 655.103(e), Defining Single Employer Test

The Department proposes to define a new term “single employer” to codify and clarify its long-standing approach to determining if multiple nominally separate employers are operating as one employer for the purposes of the H-2A program. The Department has encountered numerous instances over at least the last decade where it appears separate entities are using their corporate structure—intentionally or otherwise—to bypass statutory and regulatory requirements to receive a temporary labor certification, or to circumvent regulations aimed at protecting workers in the United States.

See, e.g., Lancaster Truck Line,

2014-TLC-00004, at *3, *5 (BALCA Nov. 26,

2013) (employer was “frank about separating the legal entities of his operation” from his father's operation to “comply with the H-2A program's seasonal permitting restrictions” and the ALJ held the attempt to divide work did not demonstrate temporary need).

OFLC regularly receives and reviews applications for temporary labor certification that appear to be for job opportunities with different employers when in reality the workers hired under these certifications are employed by companies so intertwined that they are operating as a single employer in one area of intended employment for a period of need that is not temporary or seasonal. The Department has also increasingly encountered H-2A employers that employ H-2A workers under one corporate entity and non-H-2A workers under another, creating the appearance that the H-2A employer has no workers in corresponding employment when actually, the corporate entities are intertwined and all the H-2A workers are employed by a single H-2A employer, and the non-H-2A workers are engaged in corresponding employment. Employers may attempt to use these schemes to evade requirements of the H-2A program, such as paying workers in corresponding employment the required wage rate or abiding by the housing and transportation requirements of the H-2A program.

OFLC currently uses, and has used for more than a decade, some form of a “single employer” test to determine if nominally separate employers should be considered as one entity for purposes of assessing temporary or seasonal need (discussed further below under

Temporary or Seasonal Need

). However, because this test is not incorporated into the Department's regulations, it has been criticized and inconsistently applied by the Board of Alien Labor Certification Appeals (BALCA).

Compare Mid-State Farms, LLC,

2021-TLC-00115, at *16, *25-27 (BALCA Apr. 16, 2021) (noting that the “single employer test” has not been subject to public comment, and thus using the “joint employer test” instead) (more discussion below)

with K.S. Datthyn Farms, LLC,

2019-TLC-00086, at *4-6 (BALCA Oct. 7, 2019) (applying the single employer test to determine that two H-2A applicants for temporary labor certification were one single employer with a single labor need). Relying on Federal and BALCA case law, WHD currently also applies the “single employer” test to determine the H-2A employer's compliance with program requirements.

The Department's proposal to add a definition of “single employer,” which would explicitly permit the use of the single employer test when reviewing applications for temporary labor certification and for purposes of enforcement, is meant to codify the Department's long-standing practice. Doing so would prevent employers from using their corporate structures to circumvent regulatory requirements and would provide notice and clarity to the stakeholder community regarding the Department's single employer analysis. A clearly articulated definition also could serve to deter employers from utilizing practices that appear to circumvent the obligations of H-2A employers by making explicit the obligations of the single employer. This section discusses (1) the single employer definition the Department proposes to add to a new subordinate paragraph (e) within § 655.103, including the factors the Department will consider when determining whether two or more entities satisfy this definition; (2) the use of the single employer test by OFLC when analyzing whether an employer has a temporary or seasonal need; and (3) the use of the single employer test in enforcement of contractual obligations.

a. Definition

As noted, the Department already applies a “single employer” test (sometimes referred to as an “integrated employer” test) under the H-2A program in certain contexts. OFLC currently uses this test to determine if multiple nominally separate employers should be considered as one entity for the purposes of determining whether an applicant for labor certification has a temporary or seasonal need, and WHD uses this test to determine whether H-2A employers complied with program requirements. This test originated with the NLRB and has been adopted by courts and Federal agencies under a wide variety of statutes.

See S. Prairie Const. Co.

Local No. 627, Int'l Union of Operating Eng'rs, AFL-CIO,

425 U.S. 800, 802-803 (1975). As the Second Circuit has explained, the single employer test may be used to determine liability for employment-related violations, as well as to determine employer coverage, and the policy underlying the doctrine is “fairness . . . where two nominally independent entities do not act under an arm's length relationship.”

Murray

Miner,

74 F.3d 402, 404 n.1, 405 (2d Cir. 1996).

Consistent with judicial and administrative precedent, the Department has typically looked to four factors to determine whether the entities at issue should be considered a single employer for purposes of temporary need and compliance: (1) common management, (2) interrelation between operations, (3) centralized control of labor relations, and (4) degree of common ownership/financial control.

See, e.g., Sugar Loaf Cattle Co.,

2016-TLC-00033, at *6 (BALCA Apr. 6, 2016) (citing to

Spurlino Materials, LLC

NLRB,

805 F.3d 1131, 1141 (D.C. Cir. 2015)). The proposed definition would incorporate the four factors noted above and, as under current practice, the Department would consider the totality of the circumstances surrounding the relationship among the entities, and no one factor would be determinative in the analysis.