USDOL Finalizes Destructive H-2A Program Rule

Bryan Little, Farm Employers Labor Service

April 29, 2024



Acting U.S. Labor Secretary Julie Su (formerly head of California’s Department of Industrial Relations) traveled to Sebastopol on April 26 to announce that the Department has finalized it’s September 2023 H-2A program rule, which had been widely criticized by ag employer advocates as wrong-headed and destructive. It requires employers of H-2A employees to allow access to unions and farmworker advocates, requires employers to furnish contact information for their employees on demand (and in so doing, the Department apparently ignores that the National Labor Relations Act (NLRA) explicitly excludes agricultural employees from the Department’s jurisdiction and ignores the U.S. Supreme Court’s 2021 Cedar Point decision finding that the old Ag Labor Relations Board’s union access rule violated farmers’ private property rights), demands that H-2A program employers engineer same-day implementation of any changes in the program’s Adverse Effect Wage Rate or any updates to prevailing wage determinations that might apply to them – taking away what had traditionally been a two week “grace period” for these changes. 

National Council of Agricultural Employer’s President and CEO Mike Marsh noted that the regulation seems to have missed it’s mark: “The Department’s own data indicates that unfortunately some employers do not follow the lead of NCAE’s members. Their own data indicates that 5% of agricultural employers account for 95% of the violations uncovered in investigations. This rule ignores that reality. Rather than engage constructively with employers who are eager to make the H-2A program work well and safely to reduce violations further, the Department chose to treat all agricultural employers as malicious actors, demoralizing the farm and ranch families who work each day to ensure Americans have food on the table.”

You can review the final rule, Frequently-Asked-Questions, and other resources at the U.S. Department of Labor’s website.