Author: Samantha Capaldo

Labor is in high demand for agriculture in the United States (“U.S.”) and the H-2A visa program is an important component of this critical issue. Over the last few years, there has been a growing interest in amending regulations related to the H-2A program. On September 15, 2023, DOL issued a notice of proposed rulemaking in the Federal Register to amend its regulations governing the H-2A visa program. The proposed rule went through a sixty-day comment period, and now DOL released its final rule.

The H-2A program is a visa program for temporary and seasonal agricultural workers authorized through the Immigration and Nationality Act. The purpose of this program is to meet the U.S. agricultural labor needs by allowing employers to employ temporary foreign workers. To qualify for the program, an employer must “offer a job that is of a temporary or seasonal nature, demonstrate that there are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work, show that employing H-2A workers will not adversely affect the wages and working conditions of similarly employed U.S. workers, and submit a single valid temporary labor certification from the U.S. Department of Labor with the H-2A petition”. U.S Citizenship and Immigration Services, H-2A Temporary Agricultural Workers.

On April 26, 2024, DOL announced it had finalized its “Improving Protections for Workers in Temporary Agricultural Employment in the United States” rule. The purpose of the rule, as laid out by DOL, is to promote employer accountability and to “ensure farmworkers employed through the H-2A program are treated fairly, have a voice in their workplace, and are able to perform their work safely.” DOL adopted most of the provisions in the proposed rule as they were proposed and modified or added other provisions. The final rule addresses multiple areas – increasing protections for workers who advocate for better working conditions, creating new or clarifying existing definitions critical to the H-2A program, and measures related to transparency in the H-2A program.

The final rule adopted the proposed provisions that will add protections for workers who self-organize to change working conditions. Under the final rule, employees will be protected from intimidation, threats, restraint, coercion, or any forms of discrimination for self-organization. Additionally, the final rule adopted the proposed provision preventing employers from restricting employees from granting access to their living quarters, common areas, and outdoor spaces to guests during nonproductive times. Under the final rule, employers would be able to impose reasonable restrictions on access to living quarters, common areas, and outdoor spaces, for worker safety or enjoyment of housing.

The proposed rule clarified that an H-2A worker may be terminated for cause, for failing to meet productivity standards or failing to comply with employer policies or rules. The final rule adopted this provision and added an additional reason employers may terminate a worker for cause. Under the final rule, an employer may also terminate an H-2A worker for “failing to satisfactorily perform job duties in accordance with reasonable expectations based on criteria listed in the job offer.” The proposed rule outlined six criteria that must be satisfied for an employer to terminate an employee for cause, and the final rule adopted the following five criteria:

1. “The employee has been informed (in a language understood by the worker) of the policy, rule, or productivity standard, or reasonably should have known of the policy, rule, or productivity standard;
2. Compliance with the policy, rule, or performance expectation is within the workers’ control;
3. The policy, rule, or performance expectation is reasonable and applied consistently to the employer’s H-2A workers and workers in corresponding employment; 
4. The employer undertakes a fair and objective investigation into the job performance or misconduct; and
5. The employer corrects the worker’s performance or behavior using progressive discipline, which is a system of graduated and reasonable responses to an employee’s failure to satisfactorily perform job duties or comply with employer policies or rules.”

Lastly, the proposed rule and now the final rule seeks to provide transparency on the wages paid to H-2A employees. First, the proposed rule would require that employers disclose applicable rates in the job order, including any piece rate or the highest applicable hourly rate. This provision was adopted in the final rule. Additionally, the final rule adds a minor change to the proposed provision that requires employers to pay workers daily during a delay. The change adds that employers must pay employees for minor delays, which are identified in the final rule as less than fourteen days. Under the final rule, if the employer does not notify the employee or state workforce agency of a delay within the required timeframe, the employer must pay the highest hourly wage under the offered wage rate regulations. Lastly, the final rule adds provisions amending the job orders and wage rates for herding and range livestock jobs. Under the final rule, all applicable rates of pay must be included in the job order and employers may prorate the wage rate in specified circumstances. 

The rule went into effect on June 28, 2024. However, only applications for H-2A employer certifications submitted to DOL on or after Aug. 29, 2024, will be processed according to the new rules.

Capaldo, Samantha. “Department of Labor Finalizes New H-2A Regulations.” Southern Ag Today 4(29.5). July 19, 2024. Permalink

On November 2, 2023, USDA published the final rule to amend organic livestock and poultry production standards. According to USDA, the purpose of the final rule is to “clarify aspects of the existing USDA organic regulations that are not interpreted or enforced in a consistent manner” and to “better assure consumers that organic livestock products meet a consistent standard, as intended by the Organic Foods Production Act.”

The final rule amends livestock care and production practices. In the updated livestock care and production standard section, USDA provided a list of prohibited physical alterations for both avian and mammalian species. The rule affirms that treatment of animal with a synthetic substance not on the approved list or with a non-synthetic substance on the prohibited list would cause the animal to lose its organic status. The rule further affirms that producers may not withhold treatment from an animal even if the animal would lose its organic status.

The final rule also separates the existing living conditions standard into two distinct sections – living conditions for mammalian species, which includes honeybees, and living conditions for avian species. For the mammalian living condition standard, producers must provide enough space for animals to lie down, stand up, and fully stretch their limbs and allow animals to express normal behavioral patterns over a twenty-four-hour period. Additionally, the final rule outlines when mammalian animals may be housed individually or must be housed in groups. Further, the final rule clarifies that animals may be temporarily confined for breeding, but they may not be confined to observe estrus or to confirm pregnancy. For avian species, the final rule describes the requirements for indoor and outdoor spaces, providing producers with two options for calculating the amount of space needed. Lastly the avian living conditions section prohibits total confinement of birds but also provides a list of circumstances that allow for temporary confinement. 

Additionally, the final rule creates a standard for transportation and slaughter. Producers are required to ensure organic animals are clearly identified as organic during transport and the identity must be able to be traced for the duration of transport. Producers must also have procedures in place to address emergency problems like livestock escaping. The new section requires modes of transportation to have season-appropriate ventilation and bedding appropriate for the species and mode of transportation. Lastly, the new section reiterates that organic producers must follow all Food Safety Inspection Service laws, regulations, and directives. 

Most operations must comply with the new requirements by January 2, 2025, which is one year after the effective date of the rule. However, there are limited exceptions for some avian, broiler, and layer operations. Current certified organic producers will be required to comply with these new regulations to remain certified. Producers seeking to become certified organic will also be required to comply with these new regulations. 

For more resources on the National Organic Program, click here.

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Capaldo, Samantha. “USDA Finalizes Rule on Organic Livestock and Poultry Standards.” Southern Ag Today 4(4.5). January 26, 2024. Permalink