Online Job Ads Required to Hire Agricultural Guestworkers (1)

Sept. 19, 2019, 1:02 PM; Updated: Sept. 19, 2019, 8:06 PM

Agricultural employers seeking temporary foreign labor must first recruit U.S. workers online before applying for guestworker visas under a new Labor Department regulation.

The new requirement released Sept. 19 modernizes the previous H-2A agricultural guestworker program rules, which required that employers place two print job advertisements in a newspaper in the area of intended employment.

The idea is to ensure that the required mode of advertising jobs is the best and most efficient way of reaching U.S. workers.

But rather than requiring employers to post the jobs electronically themselves, the final rule says the DOL will advertise all H-2A jobs on the website SeasonalJobs.dol.gov, an “expanded and improved version” of the agency’s existing electronic job registry.

The new regulation also allows DOL officers to tell state workforce agencies to give notice of the job openings to organizations that provide employment and training services to workers who are likely to apply for the jobs, and/or to place written notices at physical locations where such workers are likely to gather.

“Electronic job postings can help better advertise farm worker jobs, but only if these job postings are on electronic sites that farm workers use or if there is a focused public relations campaign that reaches out to farm workers and potential farm workers about the existence of such an electronic job site,” United Farm Workers President Teresa Romero said in a statement.

The American Farm Bureau Federation, which represents growers affected by the regulations, didn’t respond to a request for comment.

Recruitment Required

The H-2A agricultural guestworker program requires employers to show that U.S. workers aren’t available to perform the work before temporary foreign workers are afforded visas. As part of that labor certification process, the DOL among other things has set certain required recruitment steps that employers must follow before the agency will sign off on their application for foreign workers.

The regulation is separate from a broader H-2A proposal released in July that would streamline the temporary labor certification process as a whole.

Employers have complained for years about red tape associated with the program, which in part has contributed to the number of undocumented workers in the agriculture industry. The United Farm Workers opposes the proposed changes, saying they’ll make it easier to deny jobs to U.S. workers and favor temporary foreign labor at lower wages.

The DOL issued the proposed version of the H-2A online recruitment regulation in November. At that time, it also released a proposal to require online job advertisements under the H-2B temporary visa program for seasonal work in nonagriculture industries such as landscaping and resorts. The final version of that regulation has yet to emerge, likely because it requires coordination with the Homeland Security Department.

Litigation several years ago raised questions as to whether DHS had properly delegated its authority over the H-2B program to the DOL. Since then, all H-2B regulations have been issued jointly by the two agencies.

(Updates with new sixth and seventh paragraphs, including comment from the United Farm Workers.)

To contact the reporter on this story: Laura D. Francis in Washington at lfrancis@bloomberglaw.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com

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