Employing H-2A Workers in Kentucky

Employing H-2A Workers in Kentucky Laura Powers Extension Specialist, Tobacco Labor Education and Financial Management Laura.Powers@uky.edu Last updated: May 2009

Outline • 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. • Text in RED is a change for 2009

Changes for 2009 • 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 • 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 • 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 • New methodology for calculating the AEWR • Increased penalties

Changes for 2009: Referrals • 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 • Suggested process for domestic workers applying for the job: • 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 • 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? • 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? • 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/ • 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 • 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: • 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 • Maintain records of contact made with referrals. • Provide the job contract to each worker by the first workday. • Maintain accurate and required payroll records. • 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 • 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. • Submission of 1099-MISC

Part II. During Employment:Record Keeping: Pay • Include a wage statement to each worker with the paycheck, including: • The basis on which the worker is paid (hourly or piece-rate) • 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 andtotal 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 • 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. • 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 • 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 • 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). • 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 • 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. • 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 • If caused by an “Act of God” and the contract cannot reasonably be fulfilled, employer can terminate the contract. • 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) • 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 • 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 • Employers must: • 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 • 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 • 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 • 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 Administration844 N. Rush Street12th FloorChicago, IL 60611Phone: (312) 886-8000Fax: (312) 353-3352

Part IV. Government Resources (cont.) • 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 InvestmentOffice of Employment and Training Foreign Labor Certification275 East Main Street 2WAFrankfort, KY 40621Phone: (502) 564-7456Fax: (502) 564-7459

Conclusions • 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!).

Employing H-2A Workers in Kentucky