Employing H-2A Workers Employing H-2A Workers in Kentuckyin Kentucky

Laura PowersLaura Powers

Extension Specialist, Tobacco Extension Specialist, Tobacco Labor Education and Financial Labor Education and Financial ManagementManagement

Laura.Powers@uky.eduLaura.Powers@uky.eduLast updated: March 4, 2008

OutlineOutline

Overview of H-2A ProgramOverview of H-2A Program Part I. Before employment can begin Part I. Before employment can begin Part II. During employmentPart II. During employment Part III. After employmentPart III. After employment Part IV. Government resourcesPart IV. Government resources

– Only if the farmer is applying for H-2A Only if the farmer is applying for H-2A workers themselves.workers themselves.

Overview of H-2A ProgramOverview of H-2A Program

Must hire all eligible and able U.S. workers Must hire all eligible and able U.S. workers through the 50% of the job contract period.through the 50% of the job contract period.

Must show that there are not enough eligible Must show that there are not enough eligible and able U.S. workersand able U.S. workers– Completed through newspaper and radio job Completed through newspaper and radio job

advertisementsadvertisements U.S. and H-2A workers must be given the U.S. and H-2A workers must be given the

same benefitssame benefits Advanced planning is very important for Advanced planning is very important for

getting workers on time. The process should getting workers on time. The process should begin 75 days before the workers are needed.begin 75 days before the workers are needed.

Part I. Before employment:Part I. Before employment:Who can request H-2A workers?Who can request H-2A workers?

A farmer can apply for H-2A workers A farmer can apply for H-2A workers themselves or have an agent apply for themselves or have an agent apply for themthem

If using an agent, they MUST be a If using an agent, they MUST be a certified Farm Labor Contractor (FLC).certified Farm Labor Contractor (FLC).– Some FLC’s provide this service at cost, Some FLC’s provide this service at cost,

and some will charge a feeand some will charge a fee– There are at least 11 FLC’s in Kentucky. There are at least 11 FLC’s in Kentucky.

Click here for a listClick here for a list..

Part I. Before employment:Part I. Before employment:Who can request H-2A workers?Who can request H-2A workers?

Employers must become certified through Employers must become certified through the National Processing Center the National Processing Center andand State State Workers’ Association (addresses are at end Workers’ Association (addresses are at end of presentation)of presentation)– Forms and instructions can be found at: Forms and instructions can be found at:

http://www.foreignlaborcert.doleta.gov/http://www.foreignlaborcert.doleta.gov/ Through the certification process, must show Through the certification process, must show

that not enough qualified and eligible U.S. that not enough qualified and eligible U.S. workers are available.workers are available.

If you have hired a FLC, they be your primary If you have hired a FLC, they be your primary contact for becoming certified. They will contact for becoming certified. They will handle the paperwork.handle the paperwork.

Part I. Before employment: Part I. Before employment: Job Requirements for H-2AJob Requirements for H-2A

Job must be seasonal or temporary in Job must be seasonal or temporary in length (no more than 10 months)length (no more than 10 months)

Employer must guarantee ¾ of the Employer must guarantee ¾ of the workdays in the contract. Known as workdays in the contract. Known as the “Three-Fourths Rule”. the “Three-Fourths Rule”.

The job will pay at least the greater of The job will pay at least the greater of the following: the following: – Minimum wage ($5.85/hour)Minimum wage ($5.85/hour)– Adverse Effect Wage Rate (AEWR, $9.13 in Adverse Effect Wage Rate (AEWR, $9.13 in

Kentucky for 2008)Kentucky for 2008)– Prevailing wage rate in the area.Prevailing wage rate in the area.

Part II. During Employment:Part II. During Employment:Record KeepingRecord Keeping

Provide the job contract to each Provide the job contract to each worker by the first workday. worker by the first workday.

Maintain records of hours worked and Maintain records of hours worked and total hours offered for work. total hours offered for work.

Maintain accurate and required Maintain accurate and required payroll recordspayroll records

Pay correct wages in a timely fashion Pay correct wages in a timely fashion (at least two times per month) (at least two times per month)

Part II. During Employment:Part II. During Employment:Record Keeping: TaxesRecord Keeping: Taxes Income, Medicare and Social Security taxes Income, Medicare and Social Security taxes

are not withheld on H-2A workersare not withheld on H-2A workers Some Kentucky Counties require that local tax Some Kentucky Counties require that local tax

is withheldis withheld Federal Unemployment Taxes (FUTA) are not Federal Unemployment Taxes (FUTA) are not

withheld on H-2A workerswithheld on H-2A workers– However, the wages paid to H-2A workers are However, the wages paid to H-2A workers are

including in the calculation to determine the including in the calculation to determine the farmer’s FUTA liability.farmer’s FUTA liability.

For Kentucky’s Employers Guide to UnemployFor Kentucky’s Employers Guide to Unemployment Insurance, click herement Insurance, click here..

Submission of 1099-MISCSubmission of 1099-MISC

Part II. During Employment:Part II. During Employment:Record Keeping: PayRecord Keeping: Pay

Include a wage statement to each worker with Include a wage statement to each worker with the paycheck, including:the paycheck, including:

– The basis on which the worker is paid (hourly or The basis on which the worker is paid (hourly or piece-rate)piece-rate)

If piece-rate, the number of piece-rate units earnedIf piece-rate, the number of piece-rate units earned If piece-rate, must average to be at least the minimum If piece-rate, must average to be at least the minimum

required hourly payrequired hourly pay

– Number of hours worked and total number of hours Number of hours worked and total number of hours offered to workoffered to work

– Total pay period earningsTotal pay period earnings– Specific amounts withheld and the purpose of eachSpecific amounts withheld and the purpose of each– Net payNet pay

Wage statement should be signed by worker.Wage statement should be signed by worker.

Part II. During Employment:Part II. During Employment:HousingHousing

Must be provided free of charge to all workers Must be provided free of charge to all workers (H-2A and U.S.) under the contact. (H-2A and U.S.) under the contact.

Must remain in compliance with applicable Must remain in compliance with applicable safety and health standards.safety and health standards.– For a printable copy of the OSHA standards, For a printable copy of the OSHA standards,

click hereclick here – Non-compliance fines are levied on a per Non-compliance fines are levied on a per

worker basis and multiplied by total number worker basis and multiplied by total number of workers of workers

A written statement of the terms and A written statement of the terms and conditions of occupancy must be posted at the conditions of occupancy must be posted at the housing site. housing site.

If water is from a well, cistern or spring, it must If water is from a well, cistern or spring, it must be tested annually.be tested annually.

Part II. During Employment:Part II. During Employment:TransportationTransportation

After 50% of the contracted work is completed, After 50% of the contracted work is completed, the employer must repay the cost of the employer must repay the cost of transportation and daily subsistence pay to the transportation and daily subsistence pay to the farm from where H-2a worker was recruited from. farm from where H-2a worker was recruited from.

Must provide transportation from the housing to Must provide transportation from the housing to the work site at no cost for those workers whose the work site at no cost for those workers whose housing is also provided for by the employer.housing is also provided for by the employer.

Must pay for transportation for the worker’s Must pay for transportation for the worker’s return “to the place from which he came” at the return “to the place from which he came” at the end of the contract period. This is usually his or end of the contract period. This is usually his or her home. her home.

Vehicles used for transportation must meet Vehicles used for transportation must meet applicable laws and regulations.applicable laws and regulations.

KY law does not require that H-2a workers have a KY law does not require that H-2a workers have a KY Driver’s license. However, your insurance KY Driver’s license. However, your insurance company may.company may.

Part II. During Employment:Part II. During Employment:MealsMeals

Must provide three meals per day or provide at Must provide three meals per day or provide at no cost to the worker, centralized, reasonably-no cost to the worker, centralized, reasonably-equipped kitchen facilities where workers can equipped kitchen facilities where workers can prepare their own meals.prepare their own meals.

Employer can charge a fee if three meals a day Employer can charge a fee if three meals a day are provided (and costs are documented). are provided (and costs are documented).

– The fee can be no more than $9.90 per day, The fee can be no more than $9.90 per day, without receipts and no more than $39 per day without receipts and no more than $39 per day with receiptswith receipts

– This charge must be listed in the job contract This charge must be listed in the job contract given to the workers at the recruitment point.given to the workers at the recruitment point.

Subsistence must also be provided, at no cost, Subsistence must also be provided, at no cost, on the arrival and return trips to and from the on the arrival and return trips to and from the place of work.place of work.

Part II. During Employment:Part II. During Employment:Workers Compensation Workers Compensation InsuranceInsurance Workers Compensation (WC) Insurance Workers Compensation (WC) Insurance

must be provided at no cost to the must be provided at no cost to the worker. worker.

If on a joint contract, farmers can work If on a joint contract, farmers can work together on WC insurance.together on WC insurance.

For WC insurance, talk to your local For WC insurance, talk to your local insurance agent, Kentucky Employers insurance agent, Kentucky Employers Mutual Insurance (Mutual Insurance (www.kemi.comwww.kemi.com) or ) or go to go to http://labor.ky.gov/workersclaims/http://labor.ky.gov/workersclaims/

WC must cover all workers, whether H-WC must cover all workers, whether H-2A or not and is based on total payroll2A or not and is based on total payroll

Part II. During Employment:Part II. During Employment:Misc.Misc.

Must provide all necessary tools and Must provide all necessary tools and supplies needed to complete the job supplies needed to complete the job at no cost to the worker.at no cost to the worker.

Part II. During Employment:Part II. During Employment:Termination of EmploymentTermination of Employment

If caused by an “Act of God” and the If caused by an “Act of God” and the contract cannot reasonably be fulfilled, contract cannot reasonably be fulfilled, employer can terminate the contract.employer can terminate the contract.– Employer must provide ¾ of the contract Employer must provide ¾ of the contract

benefits up to termination of the contract, benefits up to termination of the contract, including payment of the ¾ rule and including payment of the ¾ rule and transportation and subsistence “to the transportation and subsistence “to the place from which the worker came”. place from which the worker came”.

Employer must reimburse worker full Employer must reimburse worker full amount of deductions for amount of deductions for transportation and subsistence transportation and subsistence expenses to the place of employmentexpenses to the place of employment

Part II. During Employment:Part II. During Employment:Termination of Employment Termination of Employment (cont)(cont) If worker leaves or is fired for cause If worker leaves or is fired for cause

before 50% of job contract is completed, before 50% of job contract is completed, then employer is not responsible for then employer is not responsible for transportation and subsistence during the transportation and subsistence during the arrival trip to the farmarrival trip to the farm

Employer must notify the KY Dept of Employer must notify the KY Dept of Employment & Training and your agent (if Employment & Training and your agent (if working with a FLC) of all rejections, working with a FLC) of all rejections, terminations, and resignations of U.S. and terminations, and resignations of U.S. and /or foreign workers in the H-2A program./or foreign workers in the H-2A program.

Part II. During Employment:Part II. During Employment:Workers’ RightsWorkers’ Rights

Employers must:Employers must:– Allow workers to testify and exercise their Allow workers to testify and exercise their

rights if they have the need to do so. rights if they have the need to do so. – Permit Department of Labor (DOL) Permit Department of Labor (DOL)

investigations of your businessinvestigations of your business Conducted by the Wage and Hour Division of DOLConducted by the Wage and Hour Division of DOL

– Provide accurate information to DOL officialsProvide accurate information to DOL officials– Comply with all federal, state and local Comply with all federal, state and local

employment-related laws and regulations employment-related laws and regulations – Comply with the Fair Labor Standards ActComply with the Fair Labor Standards Act

Part III. After Employment Part III. After Employment

Employers must maintain payroll records Employers must maintain payroll records for at least three years.for at least three years.

Employers can request specific workers. Employers can request specific workers. If a grower wants to employ a particular If a grower wants to employ a particular H-2A worker he/she must have the H-2A worker he/she must have the worker’s name, date of birth and phone worker’s name, date of birth and phone numbernumber

Must pay for transportation for the Must pay for transportation for the worker’s return “to the place from which worker’s return “to the place from which he came” at the end of the contract he came” at the end of the contract period. This is usually his or her home.period. This is usually his or her home.

Part IV. Government Part IV. Government ResourcesResources This is needed only if the farmer is This is needed only if the farmer is

applying for H-2As themselves and not applying for H-2As themselves and not hiring a FLC.hiring a FLC.

In Kentucky, applications (Form ETA 750) to In Kentucky, applications (Form ETA 750) to become certified for H-2A workers should be become certified for H-2A workers should be sent to the Atlanta Processing Center:sent to the Atlanta Processing Center:Atlanta Processing CenterAtlanta Processing CenterU.S. Department of Labor, Employment and Training U.S. Department of Labor, Employment and Training

AdministrationAdministrationHarris TowerHarris Tower233 Peachtree Street, Suite 410233 Peachtree Street, Suite 410Atlanta, GA 30303. Atlanta, GA 30303. Phone: 404-893-0101; Fax 404-893-4642 Phone: 404-893-0101; Fax 404-893-4642

Part IV. Government Part IV. Government Resources (cont.)Resources (cont.) This is needed only if the farmer is This is needed only if the farmer is

applying for H-2As themselves and not applying for H-2As themselves and not hiring a FLC.hiring a FLC.

An application must also be send to the An application must also be send to the Kentucky Workforce Office, located at:Kentucky Workforce Office, located at:– Kentucky Department of Workforce InvestmentKentucky Department of Workforce Investment

Office of Employment and Training Office of Employment and Training Foreign Labor CertificationForeign Labor Certification275 East Main Street 2WA275 East Main Street 2WAFrankfort, KY 40621Frankfort, KY 40621Phone: (502) 564-7456Phone: (502) 564-7456Fax: (502) 564-7459Fax: (502) 564-7459

ConclusionsConclusions

There are several items that farmers There are several items that farmers need to be aware of when employing H-need to be aware of when employing H-2A workers. However, the employment of 2A workers. However, the employment of H-2A workers is not difficult if managed H-2A workers is not difficult if managed appropriately.appropriately.

You have a right to be heard!! Stay up to You have a right to be heard!! Stay up to date with reforms and contact your date with reforms and contact your elected representatives and farm elected representatives and farm organizations with your concerns (or your organizations with your concerns (or your praises!).praises!).