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H-2 workers, like H-1Bs, are far too often subject to an employer’s exploitation. An H-2 employer may unlawfully make H-2 workers pay fees, fail to provide required wages or benefits, withhold essential documents, or in some cases commit fraud.

If you are an H-2 worker subject to exploitation, or know such a worker, we hope this post will help inform you of your legal rights. .

This post discusses the rights of an H-2A employee, i.e. an H-2 agricultural worker. We will address the rights of the H-2B non-agricultural employee in another article. (See 20 CFR 655 for labor certification regulations for temporary workers.)

What Are the Employer’s Obligations to the H-2A Agricultural Employee?

Job and Wage

If you are an H-2A agricultural employee, you have the following rights regarding your job and wages:

  • Your job must be full-time work, i.e. 30 hours per week.
  • You must be paid at least twice a month.
  • Your offered wage must be guaranteed. An H-2 worker cannot be paid based on commissions, bonuses, piece rate or by other methods, unless the H-2 employer guarantees those payments will exceed the required wage amount, as discussed below.
  • The employer must pay you the equivalent of ¾ of your contract period, even if the employer has no work for you to do.
  • You must be paid the required wage as set by the U.S. government. The required wage is the highest of the following wage rates:

a. The federal minimum wage rate, which was $7.25 per hour as of July 24, 2009. You can see if the minimum wage rate has increased by checking the Department of Labor’s (DOL’s) webpage here;

b. The minimum wage in your state, which you can find at this website;

c. The adverse effect wage rate (AEWR) in effect at the time your recruitment was initiated. To learn the AEWR in your location, contact your State Workforce agency, which can be found on DOL’s webpage here or the most recent publication of the AEWR rate in the Federal Register; or

d. The prevailing hourly or piece rate, (To determine the prevailing wage or piece rate in your location contact your State Workforce agency, which can be found on DOL’s webpage here.

Example: Unpaid Wages & Rights

For a hypothetical example, say an H-2A agricultural employee started work for an employer in California on Jan. 4, 2010, the date of this post.  The employer made the H-2A worker pay a $5,000 fee before starting work, telling the worker he was required to pay these fees for legal, housing and other fees.

The employer told the worker he would be paid $6.50 per hour.

The H-2A worker was given a contract which defined a 14-week period of work for 40 hours per week between Jan. 4, 2010 and April 13, 2010. The worker only worked part of that time, working between Jan. 4, 2010 and Feb. 26, 2010, an eight-week period.

During that 8-week period, the employee worked 36 hours per week, and was paid $6.50 per hour.  Thus, the total wages paid were 8 weeks x 36 hours/week x $6.50 per hour = $1872.00

The federal minimum wage in effect on Jan. 4, 2010, according to DOL’s webpage here, was $7.25 per hour.  The California minimum wage as of that date, according to this website is $8.00 per hour.  The adverse effect wage rate as published in the Federal Register is $10.16 per hour.  The prevailing hourly wage rate, according to the Foreign Labor Certification Data Center for Bakersfield, CA, as an example is $8.11 hour (the FLC Data Center can be used as a gauge for the State Workforce Agency determination of the prevailing wage).

The highest of these rates is $10.16; thus that rate is this H-2 worker’s required wage.

The H-2 worker, at a minimum, should have been paid the required wage for full-time hours for ¾ (10.5 weeks) of the 14-week contract period.  So, the H-2 worker in this example should have been paid at least 10.5 weeks x 40 hours/week x $10.16 = $4267.20.

The H-2A worker is thus owed underpaid wages of $2395 as this is the difference between his paid wages ($1872) and required wages ($4267.20) described above.  Also, the H-2A worker should also be refunded the $5,000 for the fee the employer unlawfully made him pay before he started work.  Thus, the total amount owed to the worker is $9267.20.

Benefits

Generally speaking, an H-2A agricultural employee has the following rights regarding benefits:

(1) Housing. Free housing must be provided to H-2A employees who cannot reasonably return to their residence within the same day. The employer must pay for the housing and cannot seek reimbursement from the employee. The employer must provide family housing upon request if a common practice in the area of intended employment. The employer can see reimbursement from an employee for damage to the housing facility beyond normal wear and tear, but cannot request a deposit for damage or for bedding or other incidentals related to housing.

(2) Workers’ compensation. The employer must provide at no charge insurance under a state workers’ compensation law or otherwise covering injury and disease during your employment.

(3) Tools and Equipment. The employer must provide for no charge and no deposit all tools, supplies, and equipment required to perform your job. The employer may require you to provide tools and equipment only if is a common practice in the area for workers to do so and if approved in advance by DOL.

(4) Meals. The employer shall either provide the worker with three meals a day or cooking and kitchen facilities to prepare meals. If the employer provides the meals, the job offer shall state the charge, if any, to the worker for such meals. The maximum charge to the employee is set by law. As of the time of this post (Jan. 4, 2010), the meal charge is no more than $10.45 per day as published in the Federal Register for three meals, unless the employer successfully obtains approval from DOL for a higher charge of no more than $12.96 per day.

(5) Transportation to and from the employee’s home country. The employer typically must provide transportation or an allowance for transportation to and from the place of recruitment (e.g. the worker’s home country) if the worker completes fifty percent or more of his contract. Upon completion of the contract, if the employee will remain in the United States to work for another H-2A employer, the current employer must pay for transport to that follow on job site unless the new employer agrees to pay.

(6) Transportation during work. The employer must provide free transportation between the worker’s living quarters and the employer’s worksite.

H-2A Employee’s Right to Documents

The employer must provide upon the employee’s request copies of time keeping and payment records. The employer must also give the worker by his first day of work a copy of his employment contract. If there is no employment contract, the job order and labor certification are the required terms of employment.

Your employer cannot take and keep your passport, or destroy it. You have the right to keep your passport and visa with you. The passport belongs to you and your government.

What can you do if your employer is violating your rights?

If your employer is not paying you, or underpaying you, or making you live in unhealthy conditions, you have the power to take action. You may have several options, among them, you can possibly file a complaint with the State Workforce Agency or federal DOL office near you or possibly file a lawsuit in court.

Which strategy is best for you depends on your situation. You should seek advice from a competent attorney to learn the benefits and disadvantages of each of the options for complaining against your employer.

Will I be deported if I complain?

If you complain about your employer’s violation of your rights, the law prohibits the employer from retaliating against you, such as firing you or threatening to deport you. To remain in the United States, though, you will still need a job and valid visa status. An attorney can help you determine the best strategy for enforcing your rights and accomplishing your goals to stay and work in the United States, or going back home with the option of remaining eligible for a visa to return again.

Here are some blog posts with other information relevant to H-2A Agricultural Workers:

For information about Employee Rights & Immigration Rights Attorneys Michael F. Brown and Vonda K. Vandaveer, please visit here.

This blog is authored by Employee Rights Attorney Michael Brown     of the law firm of Peterson, Berk & Cross, and Immigration Attorney Vonda K. Vandaveer of the law firm V.K. Vandaveer, P.L.L.C.

DISCLAIMER: The information in this article is NOT legal advice, nor does it establish an attorney-client relationship between you and the attorneys or law firms above. Legal advice often varies among situations. If you want legal advice for your specific circumstances, you must consult with an attorney.

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