Transcript Employing H-2A Workers in Kentucky

Employing H-2A Workers in
Kentucky
Laura Powers
Extension Specialist, Tobacco Labor
Education and Financial Management
[email protected]
Last updated: May 2009
Outline
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Changes for 2009
Part I. Before employment can begin
Part II. During employment
Part III. After employment
Part IV. Government resources
– Only if the farmer is applying for H-2A workers
themselves.
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Text in RED is a change for 2009
Changes for 2009
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Employer will need a Federal Employer
Identification Number (FEIN)
Attestation-based employer verification
– Employer will sign a form and submit along with h-2a
application certifying various conditions of the h-2a
employment
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Advertisements
– Two print advertisements; one in Sunday (or equivalent
circulation) paper
– In other states defined as “expected labor supply”. Florida
is one of Kentucky’s “labor supply states”.
– Increased efforts to ensure no displacement of U.S.
workers
Changes for 2009, continued
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No more “50% Rule”. Recruitment ends 30
days after start of contract.
Increased efforts to contact former U.S.
workers… document everything!!
Transportation
– To be paid to/from port of entry and farm.
– No longer to/from worker’s home
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New methodology for calculating the AEWR
Increased penalties
Changes for 2009: Referrals
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State Workforce Agency will have list of U.S.
individuals that have been referred to your
job.
Must document attempts made by anyone
referred to your job order and the result of
that communication (refused job, was hired
but did not show up, no communication,
etc)
Changes for 2009: Referrals
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Suggested process for domestic workers
applying for the job:
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Ask them for the job order number
Have them complete an application
You can choose to drug and alcohol screen workers.
Schedule and conduct an interview
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Discuss with them the work requirements (as outlines in the
H-2a job order)
– Unless you have just cause for not hiring, you must
hire the domestic worker over the H-2a worker
Part I. Before employment:
Who can request H-2A workers?
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A farmer can apply for H-2A workers
themselves or have an agent apply for them
If using an agent, they MUST be a certified
Farm Labor Contractor (FLC).
– Some FLC’s provide this service at cost, and
some will charge a fee
– There are at least 11 FLC’s in Kentucky. Click
here for a list.
Part I. Before employment:
Who can request H-2A workers?
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Employers must become certified through the
National Processing Center and State Workers’
Association (addresses are at end of presentation)
– Forms and instructions can be found at:
http://www.foreignlaborcert.doleta.gov/
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Through the certification process, must show that
not enough qualified and eligible U.S. workers are
available.
If you have hired a FLC, they be your primary
contact for becoming certified. They will handle
the paperwork.
Part I. Before employment:
Job Requirements for H-2A
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Job must be seasonal or temporary in length (no
more than 10 months)
Employer must guarantee ¾ of the workdays in the
contract. Known as the “Three-Fourths Rule”.
The job will pay at least the greater of the
following:
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July 2009 Federal Minimum wage ($7.25/hour)
Adverse Effect Wage Rate (Varies by county)
Prevailing wage rate in the area ($8.00 per hour for
tobacco topping, cutting and housing)
Most Ky counties will pay $8/hr for tobacco topping,
cutting and housing and $7.25 for all other activities
Dept of Labor will inform you of your payrate
For the new AEWR, go to www.flcdatacenter.com/
Part II. During Employment:
Record Keeping
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Maintain records of contact made with
referrals.
Provide the job contract to each worker by
the first workday.
Maintain accurate and required payroll
records.
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Must include hours worked as well as hours
offered to work on pay stubs
Pay correct wages in a timely fashion (at
least two times per month)
Part II. During Employment:
Record Keeping: Taxes
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Income, Medicare and Social Security taxes are not
withheld on H-2A workers
Some Kentucky Counties require that local tax is
withheld
Federal Unemployment Taxes (FUTA) are not
withheld on H-2A workers
– However, the wages paid to H-2A workers are including in
the calculation to determine the farmer’s FUTA liability.
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Submission of 1099-MISC
Part II. During Employment:
Record Keeping: Pay
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Include a wage statement to each worker with the paycheck,
including:
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The basis on which the worker is paid (hourly or piece-rate)
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If piece-rate, the number of piece-rate units earned
If piece-rate, must average to be at least the minimum required
hourly pay
Number of hours worked and total number of hours offered to
work
Total pay period earnings
Specific amounts withheld and the purpose of each (other than
if taxes are required, withholdings are not recommended)
Net pay
Wage statement should be signed by worker (to verify they
received a paystub.
Part II. During Employment:
Housing
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Must be provided free of charge to all workers
under the contact that cannot reasonably return
home each workday.
Must remain in compliance with applicable safety
and health standards.
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Non-compliance fines are levied on a per worker basis
and multiplied by total number of workers
These fees have increased for 2009 and beyond.
A written statement of the terms and conditions of
occupancy must be posted at the housing site.
If water is from a well, cistern or spring, it must
be tested annually.
Part II. During Employment:
Transportation
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Employer must repay the cost of transportation and daily
subsistence pay from the port of entry to the farm.
Must provide transportation from the housing to the
work site at no cost for those workers whose housing is
also provided for by the employer.
Must pay for transportation for the worker’s return to the
port of entry/consulate at the end of the contract period.
Vehicles used for transportation must meet applicable
laws and regulations.
KY law does not require that H-2a workers have a KY
Driver’s license if they have a valid driver’s license in
their home country and that country is a part of the
Geneva Compact. However, your insurance company
may.
Part II. During Employment:
Meals
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Must provide three meals per day or provide at no cost
to the worker, centralized, reasonably-equipped
kitchen facilities where workers can prepare their own
meals.
Employer can charge a fee if three meals a day are
provided (and costs are documented).
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The fee can be no more than $9.90 per day, without
receipts and no more than $39 per day with receipts
This charge must be listed in the job contract given to
the workers at the recruitment point.
Subsistence must also be provided, at no cost, on the
arrival and return trips to and from the place of work.
Part II. During Employment:
Workers Compensation Insurance
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Workers Compensation (WC) Insurance
must be provided at no cost to the worker.
If on a joint contract, farmers can work
together on WC insurance.
For WC insurance, talk to your local
insurance agent, Kentucky Employers
Mutual Insurance (www.kemi.com) or go to
http://labor.ky.gov/workersclaims/
WC must cover all workers, whether H-2A or
not and is based on total payroll
Part II. During Employment:
Misc.
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Must provide all necessary tools and
supplies needed to complete the job at no
cost to the worker.
Part II. During Employment:
Termination of Employment
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If caused by an “Act of God” and the
contract cannot reasonably be fulfilled,
employer can terminate the contract.
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Employer must provide ¾ of the contract
benefits up to termination of the contract,
including payment of the ¾ rule and
transportation and subsistence back to port of
entry.
Employer must reimburse worker full
amount of deductions for transportation
and subsistence expenses to the place of
employment
Part II. During Employment:
Termination of Employment (cont)
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If worker leaves or is fired for cause before
50% of job contract is completed, then
employer is not responsible for transportation
and subsistence during the arrival trip to the
farm
Employer must notify the KY Office of
Employment & Training and your agent (if
working with a FLC) of all rejections,
terminations, and resignations of U.S. and /or
foreign workers in the H-2A program.
Part II. During Employment:
Abandonment
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If an h-2a worker abandons the job, the
employer must contact the SWA and
Department of Homeland Security of the
abandonment. If using an agent, the agent
can do this for you.
Failure to do so could result in having to pay
wages to the abandoning worker up to
completion of the ¾ Guarantee.
Part II. During Employment:
Workers’ Rights
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Employers must:
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Allow workers to testify and exercise their rights
if they have the need to do so.
Permit Department of Labor (DOL) investigations
of your business
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Conducted by the Wage and Hour Division of DOL
Provide accurate information to DOL officials
Comply with all federal, state and local
employment-related laws and regulations
Comply with the Fair Labor Standards Act
Part III. After Employment
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Employers must maintain payroll and all
other records for at least three years.
Employers can request specific workers. If
a grower wants to employ a particular H-2A
worker he/she must have the worker’s
name, date of birth and phone number
Must pay for transportation for the worker’s
return to the port of entry (no longer the
worker’s home) at the end of the contract
period.
Part IV. Government Resources
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This is needed only if the farmer is applying
for H-2As themselves and not hiring a FLC.
In Kentucky, applications (Form ETA 750) to
become certified for H-2A workers should be sent
to the Chicago Processing Center:
Chicago Processing Center
U.S. Department of Labor, Employment and
Training Administration
844 N. Rush Street
12th Floor
Chicago, IL 60611
Phone: (312) 886-8000
Fax: (312) 353-3352
Part IV. Government Resources
(cont.)
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This is needed only if the farmer is applying
for H-2As themselves and not hiring a FLC.
An application must also be send to the Kentucky
Workforce Office, located at:
– Kentucky Department of Workforce Investment
Office of Employment and Training
Foreign Labor Certification
275 East Main Street 2WA
Frankfort, KY 40621
Phone: (502) 564-7456
Fax: (502) 564-7459
Conclusions
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There are several items that farmers need to be
aware of when employing H-2A workers.
However, the employment of H-2A workers is
not difficult if managed appropriately.
You have a right to be heard!! Stay up to date
with reforms and contact your elected
representatives and farm organizations with
your concerns (or your praises!).