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Preparing for Seasonal Agricultural Labor

The U.S. government's expected focus on immigration and employment law enforcement in 2013 will continue to significantly impact agricultural employers. In 2012, the U.S. Immigration and Customs Enforcement, Homeland Security Investigations completed random and directed work authorization compliance audits often leaving employers with limited options of E-Verify or repeated audits and searching for workable immigration solutions for seasonal workers. In addition to routine audits and citations, the U.S. Department of Labor (USDOL) imposed "hot goods" sanctions across the country last year stopping produce in its tracks. With no change in administration and no legislative relief, agricultural employers need to plan to meet their worker needs and assure compliance.

The unauthorized status of many agricultural workers creates risks of liability and worker unavailability. While Deferred Action for Childhood Arrivals (DACA) provides the opportunity for temporary work authorization for qualifying 15 to 30 year-olds, many agricultural workers in the U.S. do not qualify and have no other path to work authorization. The only immigration program currently available to agricultural employers is the H-2A program which is complex and makes employers targets for government and worker enforcement actions. Farmers need to carefully assess labor needs and implement recruitment or H-2A plans early to secure necessary seasonal workers.

In completing recruitment functions, agricultural employers must comply with the Migrant and Seasonal Worker Protection Act (MSAWPA). MSAWPA requires agricultural employers, farm labor contractors and those deemed to be acting on their behalf to disclose in writing the terms and conditions of anticipated employment. USDOL has increased investigation and enforcement related to the recruitment requirements. Often, USDOL imposes contractual-like obligations for any terms claimed by workers as a result of the recruitment process. Accordingly, employers should review their practices and documents, develop 2013 disclosure documents, review farm labor contractor registration requirements, and design a communication plan to assure those authorized to recruit for the employer or farm labor contractor are equipped with the written terms and conditions of employment to distribute at the time of recruitment.

Employers should also use their off season to prepare employment practices necessary to assure employment law compliance. We continue to experience USDOL audits and child labor, minimum wage, record keeping and housing safety citations. Despite some USDOL officers' indications of an opportunity to cure deficiencies, USDOL typically issues citations without an opportunity for the employer to remedy or explain the situation. Employers may present contrary evidence or facts placing the issues in context during appeals but any reversal or negotiation of the citation often comes too late to avoid the legal and customer costs created by USDOL citations. In addition, employers in 2012 were subject to "hot goods" enforcement actions preventing the sale and distribution of perishable goods allegedly produced in violation of the Act and then faced difficulties with attempts to define the scope of the enforcement or resolve the violations. This strict scrutiny enforcement is expected to continue in 2013 so that employers should be careful and thorough in implementing policies and vigilant in compliance practices when the season arrives.

© 2019 Varnum LLP

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About this Author

Kimberly A. Clarke, Varnum, Immigration Lawyer
Partner

Kim focuses her practice on immigration matters, including nonimmigrant petitions, both employment- and family-based permanent residence applications, expatriation and foreign visa issues. She has developed a strong background in the area of worker verification issues and managed clients through internal and agency Form I-9 audits, USICE compliance investigations and civil criminal charges.

In addition, Kim maintains a specialty practice of consultation with agricultural clients and handles various agricultural labor and employment issues such as compliance with...

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