The U.S. Department of Labor recently introduced the Farmworker Protection Rule (FPR) to enhance safeguards for temporary agricultural workers. Despite concerns voiced by various agricultural groups, the Department upheld contentious aspects of the initially proposed rule.
Effective from June 28, 2024, with most provisions applicable to new H-2A applications from August 29, 2024, the FPR extends protections against retaliation and discrimination, broadening the definition of protected communications. Notably, workers now have the right to consult with key service providers without fear of reprisal.
Regarding passports, the rule reiterates existing laws while allowing workers to voluntarily entrust their documents to employers under specific conditions. Additionally, transportation safety measures mandate the use of seat belts in applicable vehicles.
A significant change involves on-farm discipline procedures. Employers must adhere to a five-step process for “for-cause” terminations, incorporating progressive discipline methods. Workers are granted the right to designate representatives during investigatory interviews, introducing an additional layer of protection.
The rule also addresses guest access in employer-provided housing, requiring reasonable limitations and worker-invited visits. Application requirements for H-2A employers are expanded, necessitating detailed disclosures and notifications of delayed work start dates.
Furthermore, the FPR enhances SWA discontinuation procedures, potentially barring employers from the H-2A program for minor infractions. Debarment processes are clarified, with consequences for successor-in-interest entities.
The Single-Employer Test is formalized to assess seasonal need and enforcement where multiple farms/companies have shared ownership, ensuring fair labor practices across related companies.
AEWR wages will now take effect immediately upon publication, reverting to previous practices.
While the FPR marks progress in safeguarding agricultural workers’ rights, uncertainties remain, prompting the possibility of litigation and the need for additional agency guidance.