As a result of the implementation of new regulations guiding the H2A guestworker program in March of this year (“Solis rules”), a lot of employers participating in the guestworker program will feel the shift in policy on the farm.
One of the staff members here at ILMC, Theresa, likes to peruse the decisions on H2A and H2B hearings by Administrative Law Judges (ALJ) from time to time. I know what you’re thinking, thats a pretty mundane hobby but it actually proves to be a valuable and useful one where our jobs are concerned.
In a recent visit to the site that houses the ALJ decisions, Theresa found a case concerning an “association” called Agricultural Workforce Management Association (AWMA) that attempted to file a master application for employers where none of the parties on the application were jointly employed. AWMA is an association similar to ILMC based in Kentucky. As a side note, it appears that agents of this kind grow on trees in Kentucky, there always seems to be a new one.
USDOL denied the case, AWMA appealed the denial with an ALJ.
Clearly this case was a LOSER and should not have been appealed. The reason why its so obvious is because the new regulations are quite clear about the parameters for filing a master application. The ALJ restates the regulation that addresses filing a master application in his decision,
20 C.F.R. 655.131
(a) Individual applications. Associations of agricultural employers nlay file an Application for Temporary Employment Certification for H-2A workers as a sole employer, a joint employer, or agent. The association must identify in the Application for Temporary Employment Certification in what capacity it is filing. The association must retain documentation substantiating the employer or agency status of the association and be prepared to submit such documentation in response to a Notice of Deficiency from the CO prior to issuing a Final Determination, or in the event of an audit.
(b)Master applications. An association may file a master application on behalf of its employer-members. The master application is available only when the association is filing as a joint employer. An association may submit a master application covering the same occupation or comparable work available with a number of its employer-members in multiple areas of intended employment, just as though all of the covered employers were in fact a single employer, as long as a single date of need is provided for all workers requested by the Application for Temporary Employment Certification and all employer-members are located in no more than two contiguous States. The association must identify on the…
I think you get the point. AWMA attempted to file a master application as an association acting as the agent for employers that were not jointly employed. AWMA lost the case and the denial was upheld. If AWMA had to refile, the workers arrival was most likely significantly delayed which in turn resulted in a delay in harvest.
Conclusion, the Solis regulations brought change to the fields and to the desks of the paper pushers. Looks like AWMA may be looking to change their business model?