The Department of Labor has introduced significant revisions to the H-2A program forms ETA-790/790A and 9142A, which will take effect on August 29, 2024. These changes aim to enhance the transparency and accountability of the H-2A application process and ensure compliance with the latest regulatory requirements. Below are the key updates H-2A employers need to know:
Form ETA-790/790A Changes:
Special Pay and Overtime:
- A new field (8.f) now requires the disclosure of any bonuses, incentives, or the upper end of wage ranges, along with their estimated hourly equivalents. Employers must be ready to provide the method for calculating these estimates.
- Field 8.g mandates that overtime pay conditions be specified in Addendum C, detailing the rates, circumstances, and legal citations applicable.
Productivity Standards:
- Employers must now disclose any performance expectations or minimum productivity standards in Addendum C, ensuring these criteria are clear, static, and quantifiable.
- The State Workforce Agency (SWA) or (OFLC) may request documentation from the employer to substantiate the appropriateness of any job qualification, including productivity standards.
Material Terms and Conditions:
- The Addendum C section now has an increased character limit from 3500 to 5000 characters, allowing more detailed descriptions of job duties, qualifications, and other material terms. Additionally, employers are limited to one Addendum C entry per form section.
- In "Item A.8a – Job Duties & B.6 – Job Qualifications/Requirements" the employer is required to provide the pertinent details, such that at least 80% of the allowable character limit must be utilized before an Addendum C can be created for the specific form item. The practice of writing "See Addendum C" will no longer be accepted.
Work Locations and Employment Relationships:
- Addendum B requires detailed entries for any additional work locations and any agricultural businesses employing workers. This includes the listing of employers in joint employment situations or associations.
Form ETA-9142A Changes:
Employer Details:
- New form items now allow the inclusion of past "Doing Business As" (DBA) names used in the prior two years, ensuring a complete historical overview of the employer's operations.
Appendix C – Ownership and Management:
- Employers must now disclose comprehensive information on all owners, operators, managers, and supervisors associated with the job order. This includes birthdates and detailed contact information, ensuring full transparency in the employment chain. If after a good faith effort to obtain this information, the employer is unable to ascertain a relevant birthdate at the time of filing, the filer should enter "88/88/8888" in Item 14.
Foreign Labor Recruiter Information:
- A new section facilitates the disclosure of agreements with foreign labor recruiters, including the identity and location of all persons involved in recruitment. Employers must update this information as needed throughout the contract period.
These are significant changes intended to create a more rigorous and transparent application process and requiring employers to provide more detailed information at each step. Employers must familiarize themselves with these updates to ensure compliance and avoid potential delays in the application process.
For those interested in a detailed walkthrough of these changes, the Department of Labor hosted a webinar on August 21, 2024, to explain the technical updates in the FLAG System related to these form revisions. A copy of the slide deck is also available.
For more information:
Western Growers
Email: [email protected]
https://www.wga.com/