October 6, 2022
Over the last 24 hours, two recent major actions that directly impact fresh produce agricultural employers and their foreign workforce were taken by the federal government and the courts. These significant legal and regulatory actions directly impact IFPA members and agricultural employers nationwide. Most importantly, the actions highlight the need for all agricultural employers to stay united and continue to be vocal in protecting their interests.
The 5th Circuit Court of Appeals made a decision on a case regarding the Deferred Action for Childhood Arrivals (DACA). Important take aways from the decision are 1) the higher court’s decision supports the lower court’s ruling that DACA is illegal, 2) the Circuit court kept in place the lower court’s partial stay on the ruling for existing DACA applicants – that means DACA recipients can continue their work renewals for now, and 3) the decision also means that the Department of Homeland Security continues to not be able process any first-time DACA applicant’s applications.
This decision was expected, and it does little to affect current status quo. However, advocates for the DACA program, including IFPA, understand and must prepare for the reality that, without Congressional action, the program will soon cease to exist. In the mix of things, seeking Congressional action to codify the DACA program is not a top legislative priority for IFPA, though there will be impacts if the program ends since a recent study estimates around 100,000 DACA recipients work in the food supply chain.
New H-2A Regulations Published
The Biden-Harris Administration also published its much anticipated revised H-2A rule, which is an update to the rule published by the Trump administration. The new regulation includes several changes mostly favorable to employees perhaps the most significant of which clarifies the definitions of “employer” and “joint employment,” including the use of these terms in the filing of Applications for Temporary Employment Certification, and the responsibilities of joint employers. Other changes include revisions standards and procedures by which employers qualifying as H-2A Labor Contractors (H-2ALCs) obtain temporary labor certification. One change of note provides that rental and/or public accommodations secured to house workers must meet applicable local, State, or Federal standards addressing certain health or safety concerns. This provision ensures that the highest standard, typically the local standard, becomes the de facto standard for health and safety of the worker. Finally, the regulation replaces prevailing wage survey guidelines with new standards.
While many of the standards are more employee-friendly, some of the provisions included are in response to employer concerns. These include the establishment of a single point of entry for employers, except in limited circumstances, to electronically file Applications for Temporary Employment Certification, job orders, and all supporting documentation through a centralized electronic system maintained by the Department. Additionally, a change to the regulation does permit individual employers possessing the same need for agricultural services or labor to file a single Application for Temporary Employment Certification and job order to jointly employ workers in full-time employment.
The changes to the program are not entirely unexpected, though their impact remains somewhat unclear at this time. The administration did respond positively to some of the comments that employers, and employer organizations made with regards to the rule when it was open for public comment. IFPA will provide a deeper analysis in the coming days of the new rule which will be published in the federal register on October 12, 2022.
We will continue to update you with additional information as it becomes available. For further information please contact IFPA’s Director of Workforce & Labor, John Hollay.