Picking the Crops Understanding Guest Agricultural Workers and the H-2A Program

Transcription

1 Picking the Crops Understanding Guest Agricultural Workers and the H-2A Program #IRMI2016 The H-2A program allows US employers or US agents who meet specific regulatory requirements to bring foreign nationals to the United States to fill temporary agricultural jobs. This session will review the laws that apply to the program and the processes that must be followed. It will explore the risks of the various phases of the process. It will also look at laws and policies to consider as agents insuring clients with H2-A workers as well as litigation and related coverage concerns. Copyright 2016 International Risk Management Institute, Inc. 1

2 Notes This file is set up for duplexed printing. Therefore, there are pages that are intentionally left blank. If you print this file, we suggest that you set your printer to duplex. 2

3 Picking the Crops Understanding Guest Agricultural Workers and the H-2A Program #IRMI2016 Introduction Before we get started, this presentation is to provide general guidance. This is not legal advice, and there is no attorney-client relationship created by the giving of this presentation. Nothing in this presentation is intended to be legal advice. This presentation is educational in nature. Obtain advice from legal counsel prior to taking any employmentrelated actions. 2 3

4 Immigration Reform & Control Act of 1986 IRCA IRCA applies to employers with 3 or more employees. IRCA prohibits discrimination against any person, other than an unauthorized alien, in hiring, discharging, recruiting, or referring for a fee because of the person s citizenship status. 3 IRCA The Form I-9 The Form I-9 is the mandatory form required of all workers in the U.S. Numerous fines apply to inaccurate completion of the Form I-9. The current I-9 has an expiration date of March 31, 2016 on the actual form BUT USCIS has formally announced to continue using the March 2016 Form until further notice. 4 4

5 The H-2A Temporary Agricultural Worker Program A guest worker program is a federal program that allows employers to bring in foreign workers when there is a shortage of U.S. workers. Guest workers are not immigrants because they are only allowed in the U.S. for a temporary period of time for a limited purpose. Due to the extensive vetting prior to a guest worker s entry in to the U.S., the Form I-9 process will be less problematic for H2A guest workers. 5 What is the H-2A Program? The H-2A Program is a guest worker program permitting employees to legally enter the United States to perform agricultural work. Employers can bring in H-2A workers only if they can prove that there are no U.S. workers available for the job. Employers must show that bringing in foreign workers will not harm the wages or change the working conditions of U.S. workers. 6 5

6 H-2A Workers in the U.S. H-2A workers make-up less than 5% of the farm worker labor force. There were an estimated 250,000 H-2A workers in the U.S. from 2009 through H-2A workers are heavily concentrated in the Southeastern United States, particularly Florida, Georgia, Louisiana, North Carolina, and Kentucky. 7 H-2A Workers in the U.S. The Labor Certification Process The application is specific to the employer making the application for workers. The application is specific to the area where the agricultural workers will be assigned to work, such as grove plat or specific geographical area. Proof of the employer s search for U.S. workers is required by the Department of Labor, including proof of publication of the advertisements. New interpretations of area of intended work are restricting flexibility on this issue. 8 6

7 The Consulate Workers must individually apply at the embassy or consulate in their home countries for a visa. The application process can take weeks and usually a liaison in the country of origin is needed. Expenses are being incurred during this time expenses that become the ultimate liability of the Employer. Once the visa has been approved, the worker will need to travel to the employer s location in the U.S. 9 Applicability of U.S. Laws to H-2A Workers The Fair Labor Standards Act and each State s minimum wage act/law apply to H-2A workers. Failure to pay minimum wage in matters where piece rate does not result in the worker earning the prevailing wage could result in a suit under the FLSA or your State s wage law/act. Is your client covered for this? And who exactly is your client? 10 7

8 What Will an H-2A Cost an Employer? Certain expenses must be reimbursed by an Employer to an H-2A worker, including but not limited to: travel & food expenses from the worker s home to the consulate, and then from the consulate or the worker s home to the employer s location; return travel & food subsistence from the employer s location back to the worker s home. Receipts are VERY important in proving what expenses were actually reimbursed. EPLI claims can come into play here as legal services groups regularly sue andwin onthisissue. 11 DOL/Wage and Hour Division Compliance Issues in Agriculture Child Labor Law Compliance $11, $50, Civil Money Penalties to be assessed for serious injuries under new Child Labor Enhanced Penalty Program (See Field Assistance Bulletin issued January 10, 2010) 12 8

9 Prohibited Fees in the H-2A Program The DOL Field Assistance bulletin released May 6, 2011 regarding H-2A Prohibited Fees and Employer s Obligation to Prohibit Fees Employers shall not shift fees to workers that must be paid by the Employer. 13 Housing Specifics Among other requirements, workers must be provided with free housing with kitchen facilities. If no kitchen facilities are available, the Employer must provide food at no cost to the workers. The Department of Labor contracts with local governmental entities to periodically inspect the housing, with the DOL conducting random audits. 14 9

10 H-2A Housing and The Bunkhouse Rule The Bunkhouse Rule requires compensability of loss for the reasonable use of the property. This rule results in 24-hour per day coverage for anyone living in employer provided housing. This rule presents additional exposure for insurance providers because activities that occur in employer furnished housing could be found to be jobrelated. Are you covered for this 24 hour coverage, including unanticipated events such as burglary? 15 H-2A Transportation Issues Transportation must be provided by the employer: to and from the worker s home country; to and from Employer provided housing and the assigned field/grove/geographic area; and, to and from grocery stores and banks. Requirements related to drivers of busses and vans, including time limits. Requirements for safety, including seat belts. Requirements for inspections. Requirements for insurance

11 H-2A Transportation & Insurance H-2A employers must comply with various State and Federal laws related to inspections, the number of seat belts in vehicles, maximum numbers of people to be transported, limits on the time the driver can drive, safety inspections, and maintenance issues in order to safely transport workers in compliance with the law. 17 Laws/Policies to Consider as Agents/Brokers Insuring Clients with H-2A Workers All applicable Federal, state, and local laws apply to H2A employees. All health and safety laws apply, including training, pesticide and sanitation rules. Are you covered for pollution issues? Are you covered under an umbrella policy? 18 11

12 Litigation & Related Coverage Concerns Related to Employers with H-2A Workers FLSA/State Minimum Wage Laws/Acts OSHA Department of Transportation Breach of Contract Personal Injury Workers Compensation Attorney Fees and Costs H-2A Violations State Constitutional Claims Liquidated Damages Health Insurance 19 12

13 PPACA and Health Insurance for Guest Workers/H-2A 20 PPACA and the Guest Worker The Employer Mandate to provide insurance for H2A workers slated to begin Several other provisions of the health care law have already had their deadlines moved back, so this date may or may not be the effective date for employers to provide health care to workers

14 PPACA and the Guest Worker (cont d) WHO IS RESPONSIBLE TO PROVIDE HEALTH INSURANCE TO AG WORKERS? Beginning in 2014, applicable large employers must provide affordable health coverage that provides minimum essential coverage. An applicable large employer is an employer that employed 50 or more full-time employees (FT) and full-time equivalent (FTE) employees in the preceding tax year. A business that employed fewer than 50 FT and FTE employees in the preceding tax year is not subject to a penalty for failing to provide affordable health coverage to its employees. Applicable large employer status is determined based upon data from the prior year. 22 PPACA and the Guest Worker (cont d) WHO ARE CONSIDERED EMPLOYEES? A full-time employee (FT) is one that works on average at least 30 hours per week or at least 130 hours per calendar month. Full-time equivalent (FTE) employees are determined by adding together all of the hours of part-time employees in a month (with a maximum of 120 hours per employee) and dividing the total by 120.In calculating FT and FTEs, seasonal workers are to be included pursuant to the number of hours they worked per week (parttime or full-time). upon data from the prior year

15 PPACA and the Guest Worker (cont d) EXCEPTIONS WHEN CALCULATING FTE S For the purpose of calculating FTEs, the following are not included: Seasonal workers who work no more than 120 days. Sole proprietors, partners, greater than 2% shareholders in an S- corporation or any greater than a 5% owner of any business. A family member or any member of the household who qualifies as a dependent. 24 PPACA and the Guest Worker (cont d) SEASONAL WORKERS Regarding seasonal workers, PPACA provides that if an employer's workforce exceeds 50 FTEs for 120 days or fewer during a calendar year, and the employees in excess of 50 who were employed during that period of no more than 120 days were seasonal workers, the employer is not an applicable large employer subject to the shared responsibility provisions

16 PPACA and Guest Workers (cont d) A good source of information on the Employer Mandate for health insurance can be found at: The citation is to the IRS web site. Be advised that the health care mandate under PPACA sounds out of a tax issue. Your clients will be looking to YOU for advice on this complicated and confusing issue. 26 QUESTIONS? 27 16