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Immigration Law

OFLC on Court-Ordered H-2A Backpay (July 6, 2021)

OFLC, July 6, 2021

"On December 23, 2020, the U.S. District Court for the Eastern District of California issued an order in United Farm Workers, et al. v. DOL, et al., No. 20-cv-01690, enjoining the Department of Labor (Department or DOL) from implementing its Final Rule, Adverse Effect Wage Rate Methodology (AEWR) for the Temporary Employment of H-2A Nonimmigrants in Non-Range Occupations in the United States, 85 FR 70445 (Nov. 5, 2020), and ordering the Department to operate under the 2010 rule, Temporary Agricultural Employment of H-2A Aliens in the United States, 75 FR 6884 (Feb. 12, 2010).

On January 15, 2021, in compliance with an order issued by the court on January 12, the Department notified state workforce agencies (SWAs), employers, and the general public that all H-2A job orders filed on or after December 21, 2020, in accordance with 20 CFR 655.121--including job orders filed concurrently with an Application for Temporary Employment Certification with the OFLC National Processing Center for emergency situations under 20 CFR 655.134--were required to use the 2020 AEWRs in effect on December 20, 2020, until the publication of the 2021 AEWRs in the Federal Register. Consistent with the court’s January 12, 2021 order, the Department further notified all SWAs, employers, and the general public that employers submitting job orders and applications between December 21, 2020, and publication of the final 2021 AEWRs may be required to pay the wage differential between the 2020 and 2021 AEWRs. Additionally, the Department reminded employers of their regulatory obligation to maintain accurate and adequate earnings records (see 20 CFR 655.122(j)), including the names and permanent home addresses of all H-2A workers, and make reasonable efforts to ensure that such information for each worker remains current. On February 23, 2021, the Department published the 2021 AEWRs as a notice in the Federal Register with an immediate effective date (86 FR 10996).

On May 14, 2021, the court issued an order requiring H-2A employers that submitted job orders and applications between December 21, 2020, and February 23, 2021, to pay the wage differential between the 2020 and 2021 AEWRs to all H-2A workers and U.S. workers in corresponding employment for work performed between January 15, 2021, and February 23, 2021. On June 11, 2021, the court issued an amended order clarifying that the obligation to pay the wage differential applies to all employers that filed either a job order or an application between December 21, 2020, and February 23, 2021. The court directed the Department to provide notice of its order to all SWAs, employers, and the general public. Accordingly, the Department provides the following notice:

  • H-2A employers that submitted job orders (Form ETA-790/790A) to the SWAs or applications for H-2A temporary labor certification (Form ETA-9142A) to DOL between December 21, 2020 and February 23, 2021 are required to make wage adjustment payments to qualifying H-2A workers and U.S. farmworkers in corresponding employment who worked during the period from January 15, 2021 to February 23, 2021 and received an hourly wage below the geographically applicable 2021 AEWR;
     
  • Each wage adjustment payment must equal the total number of hours a farmworker worked from January 15, 2021 and February 23, 2021 multiplied by the difference between the wage received and the geographically applicable 2021 AEWR;
     
  • H-2A employers covered by the court’s order are required to make wage adjustment payments to the qualifying H-2A workers and U.S. farmworkers in corresponding employment on or before Saturday, September 4, 2021; and
     
  • H-2A employers covered by the court’s order are responsible for maintaining accurate and adequate earnings records, in accordance with 20 CFR 655.122(j), to establish compliance with the equitable restitution obligation specified in the court’s order and noted above.

Finally, consistent with the amended order, all H-2A employers covered by the court’s order must certify compliance with the wage adjustment requirement to DOL by taking the following steps:

STEP 1

Prepare a statement of compliance, signed and dated by the employer, certifying that the required wage adjustment payments were made to all qualifying H-2A workers and workers in corresponding employment on or before Saturday, September 4, 2021.

The statement must include the DOL H-2A Case Number; number of H-2A workers issued the required wage adjustment; number of U.S. workers in corresponding employment issued the required wage adjustment; and the date(s) on which the required wage adjustments were made to the workers.

STEP 2

Send a copy of the signed and dated statement of compliance to OFLC using the following email address: H-2A.backpaycerts.2021@dol.gov

STEP 3

Retain the original signed and dated statement of compliance and a copy of the receipt confirmation email received from OFLC.

Important Note: H-2A employers must review the equitable restitution obligation specified in the court’s order and determine whether H-2A workers or workers in corresponding employment actually performed any work from January 15, 2021, to February 23, 2021, and received an hourly wage below the geographically applicable 2021 AEWR.

To assist H-2A employers in determining whether they may be covered by the court’s order, DOL has sought to identify all H-2A applications granted temporary labor certification in a non-range occupation where either the Form ETA-790/790A or Form ETA-9142A was submitted between December 21, 2020, and February 23, 2021, and the certified period of work included at least one (1) calendar day from January 15, 2021, to February 23, 2021. To see the list of potentially covered H-2A employers, click here.