Friday, September 25, 2015 Des Moines, IA. 9:15 10:30 a.m. WHO WILL PICK THE CROPS: GUEST AGRICULTURAL WORKERS AND THE H2-A PROGRAM

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1 Friday, September 25, 2015 Des Moines, IA 9:15 10:30 a.m. WHO WILL PICK THE CROPS: GUEST AGRICULTURAL WORKERS AND THE H2-A PROGRAM Presented by Christine Sensenig Partner Sensenig Law Firm, P.A. The H2-A program allows US employers or US agents who meet specific regulatory requirements to bring foreign nationals to the United States to fill temporary agricultural jobs. This session will review the laws that apply to the program and the processes that must be followed. It will explore the risks of the various phases of the process. It will also look at laws and policies to consider as agents insuring clients with H2-A workers as well as litigation and related coverage concerns. Copyright 2015 International Risk Management Institute, Inc. 1

2 Notes This file is set up for duplexed printing. Therefore, there are pages that are intentionally left blank. If you print this file, we suggest that you set your printer to duplex. 2

3 Christine Sensenig Partner Sensenig Law Firm, P.A. Christine Sensenig, a partner with the firm, graduated from the University of Florida Levin College of Law. She has been in practice for over 18 years and has conducted many seminars on compliance with the myriad of laws affecting employers. She conducts Form I-9 audits, advises about workers compensation matters, including return to work and the interaction between workers compensation and the Americans with Disabilities Act, the Family Medical Leave Act, and now the Genetic Information Non-Discrimination Act. She assists with the preparation of handbooks and then training both staff and management to reduce potential exposure when claims of harassment, discrimination, and retaliation arise. She investigates claims of harassment, discrimination, and retaliation from the making of the claim through the EEOC/FCHR process and then through litigation in the state and federal courts. Ms. Sensenig is active in the Sarasota community. She served as treasurer for 3 years and president for 2 years of the Sarasota County Gator Club, the local University of Florida Alumni Association. She s helped raise tens of thousands of dollars in funds to aid local students who are attending the University of Florida. Ms. Sensenig has served on the Board of the Sarasota Chapter of the Florida Association of Women Lawyers and received the President s Service Award for service above and beyond expectations. She currently serves on the Board of the Federally Qualified Health Center in Sarasota/North Port and the Women s Resource Center. She is a member of the Sarasota County Bar, Florida Bar, and American Bar Association and is also a member of the Labor and Employment Section of each of those organizations. Ms. Sensenig was recognized by her peers as a Florida Legal Elite lawyer in Florida Trend Magazine in 2009, 2010, 2011, 2012, 2013, and

4 Notes This file is set up for duplexed printing. Therefore, there are pages that are intentionally left blank. If you print this file, we suggest that you set your printer to duplex. 4

5 Who Will Pick the Crops Guest Agricultural Workers and the H2-A Program What You Need To Know To Stay Informed about the H2-A Guest Worker Program Presented by Christine R. Sensenig, Esquire Sensenig Law Firm P.A. Sensenig Law Firm, P.A Wood Street, Suite 103 Sarasota, FL (941)

6 Introduction Before we get started, this presentation is to provide general guidance. This is not legal advice, and there is no attorney-client relationship created by the giving of this presentation. 3 Arizona Law and the US Supreme Court On May 26, 2011 the US Supreme Court, in a 5 3 decision, upheld an Arizona law that requires that employers enroll in and check with the federal E-Verify program before hiring new workers. The Supreme Court s decision in Chamber of Commerce v. Whiting rejected the contention that the state legislation was interfering with the federal government s exclusive legal authority over immigration. Numerous states are passing mandatory E-Verify requirements. Congress is looking at mandatory E-Verify laws as well. 4 6

7 Immigration Reform and Control Act of 1986 IRCA IRCA applies to employers with three or more employees. IRCA prohibits discrimination against any person, other than an unauthorized alien, in hiring, discharging, recruiting, or referring for a fee because of the person s citizenship status. 5 The H2-A Temporary Agricultural Worker Program A guest worker program is a federal program that allows employers to bring in foreign workers when there is a shortage of US workers. Guest workers are not immigrants because they are only allowed in the United States for a temporary period of time for a limited purpose. 6 7

8 What Is the H2-A Program? The H2-A Program is a guest worker program permitting employees to legally enter the United States to perform agricultural work. Employers can bring in H2-A workers only if they can prove that there are no US workers available for the job. Employers must show that bringing in foreign workers will not harm the wages or change the working conditions of US workers. 7 H2-A Workers in the United States H2-A workers make up less than 5 percent of the farm worker labor force. There were an estimated 86,000 H2-A workers in the United States last year. H2-A workers are heavily concentrated in the Southeastern United States, particularly Florida, Georgia, Louisiana, North Carolina, and Kentucky. 8 8

9 H2-A Workers in the United States The labor certification process The application is specific to the employer making the application for workers. The application is specific to the area where the agricultural workers will be assigned to work, such as grove plat or specific geographical area. Proof of the employer s search for US workers is required by the Department of Labor (DOL), including proof of publication of the advertisements. 9 How Are H2-A Workers Recruited? The application is specific to the employer making the application for workers. The application is specific to the area where the agricultural workers will be assigned to work, such as a grove plat or specific geographical area. New interpretations of area of intended work are restricting flexibility on this issue. 10 9

10 The Consulate Workers must individually apply at the embassy or consulate in their home countries for a visa. Once the visa has been approved, the worker will need to travel to the employer s location in the United States. Certain expenses must be reimbursed by an employer to an H2-A worker, including but not limited to travel and food expenses from the worker s home to the consulate; travel and food expenses from the consulate or the worker s home to the employer s location, and return travel and food subsistence from the employer s location back to the worker s home. 11 Applicability of US Laws to H2-A Workers The Fair Labor Standards Act (FLSA) and each state s minimum wage act/law apply to H2-A workers. Failure to pay minimum wage in matters where piece rate does not result in the worker earning the prevailing wage could result in a suit under the FLSA or your state s wage law/act. Is your client covered for this? 12 10

11 DOL/Wage and Hour Division Compliance Issues in Agriculture Child labor law compliance $11,000 $50,000 civil money penalties to be assessed for serious injuries under new Child Labor Enhanced Penalty Program (See Field Assistance Bulletin issued January 10, 2010) 13 What Will an H2-A Cost an Employer? Certain expenses must be reimbursed by an employer to an H2-A worker, including but not limited to travel and food expenses from the worker s home to the consulate and then from the consulate or the worker s home to the employer s location and return travel and food subsistence from the employer s location back to the worker s home. Receipts are VERY important in proving what expenses were actually reimbursed. Employment practices liability insurance claims can come into play here, as legal services groups regularly sue on this issue

12 Prohibited Fees in the H2-A Program The new DOL Field Assistance bulletin released May 6, 2011, re: H2-A Prohibited Fees and Employer s Obligation to Prohibit Fees Employers shall not shift fees to workers that must be paid by the employer. 15 Housing Specifics Among other requirements, workers must be provided with free housing with kitchen facilities. If no kitchen facilities are available, the employer must provide food at no cost to the workers. The DOL contracts with local governmental entities to periodically inspect the housing, with the DOL conducting random audits

13 H2-A Housing and the Bunkhouse Rule The Bunkhouse Rule requires compensability of loss for the reasonable use of the property. This rule results in 24-hour per day coverage for anyone living in employer-provided housing. This rule presents additional exposure for insurance providers because activities that occur in employer-furnished housing could be found to be job related. Are you covered for this 24-hour coverage, including unanticipated events such as burglary? 17 H2-A Transportation Issues Transportation must be provided by the employer: to and from the worker s home country, to and from employer-provided housing and the assigned field/grove/geographic area, and to and from grocery stores and banks. Requirements related to drivers of busses and vans, including time limits Requirements for safety, including seat belts Requirements for inspections Requirements for insurance 18 13

14 H2-A Transportation and Insurance H2-A employers must comply with various state and federal laws related to inspections, the number of seat belts in vehicles, maximum numbers of people to be transported, limits on the time the driver can drive, safety inspections, and maintenance issues in order to safely transport workers in compliance with the law. 19 Laws/Policies To Consider as Agents/Brokers Insuring Clients with H2-A Workers All applicable federal, state, and local laws apply. All health and safety laws apply, including training, pesticide, and sanitation rules. Are you covered for pollution issues? Are you covered under an umbrella policy? 20 14

15 Litigation and Related Coverage Concerns Related to Employers with H2-A Workers FLSA/state minimum wage laws/acts Occupational Safety and Health Act Department of Transportation Breach of contract Personal injury Workers compensation Attorneys fees and costs H2-A violations State constitutional claims Liquidated damages Health insurance 21 Patient Protection and Affordable Care Act (PPACA) and Health Insurance for Guest Workers/H2-A 22 15

16 PPACA and the Guest Worker The employer mandate to provide insurance for H2-A workers is currently slated to begin January 1, Several other provisions of the healthcare law have already had their deadlines moved back, so this date may or may not be the effective date for employers to provide health care to workers. 23 PPACA and the Guest Worker (continued) The indications are that for an employer to be considered an Eligible Employer, the employer must have over 50 workers who work more than 30 hours a week and more than 120 days in a calendar year. There is some discussion about part-time workers being added together to become full-time equivalents toward the employer s total worker number. If the employer is mandated (meets the criteria) to provide health care for its employees, an employer can only charge employees up to 9.5 percent of their gross salary for the insurance premium. If you assume a $350 weekly paycheck, you can then only charge back for the insurance $33 weekly

17 PPACA and Guest Workers (continued) A good source of information on the January 1, 2014, employer mandate for health insurance can be found at: The citation is to the Internal Revenue Service (IRS) website. Be advised that the healthcare mandate under PPACA sounds out of a tax issue. Your clients will be looking to YOU for advice on this complicated and confusing issue. 25 PPACA and Guest Workers (continued) Another good source of information on the applicability of PPACA on H2-A guest workers can be found at: If you cannot get the citation to direct you to the report, try searching Alison Siskin and Noncitizen Health Insurance Coverage

18 PPACA and Guest Workers (continued) On Page 4 of the report by Alison Siskin, it states that, In addition, the act specifies that a person is only considered lawfully present if the person is, and is reasonably expected to be for the entire period of enrollment, a U.S. citizen or national or an alien who is lawfully present in the United States. The meaning of the entire period of enrollment is unclear. Most insurance enrollments have a wait period prior to eligibility, and even then, a short-term policy is not usually available such that a 3- or 4-month harvesting season would result in eligibility for healthcare coverage by a carrier. 27 PPACA and Guest Workers (continued) Page 4 of the report by Alison Siskin also specifies that certain nonimmigrants who are in the United States for limited periods of time, in many cases under six months, would be covered by the mandate (e.g., tourists (B-visas), cultural exchange (J-visas), performers and athletes (Oand P-visas)). The H2-A visa is not included in this list, despite its shortterm nature. Was excluding the H2-A visa from this list purposeful? 28 18

19 PPACA and Guest Workers (continued) Another concern I have with applying PPACA to H2-A guest workers is that the IRS has stated that compensation paid to guest agricultural workers is not wages for purposes of federal income tax withholding. See Workers. If so, how will the compensation paid to H2-A workers be used to make the required analyses under PPACA as to 9.5 percent of the guest worker s household income? 29 QUESTIONS? 30 19

20 Sensenig Law Firm P.A. Chris Sensenig, Esquire 2055 Wood Street, Suite 103 Sarasota, FL (941) senseniglawfirm.wordpress.com 31 20

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