[Code of Federal Regulations]
[Title 20, Volume 3]
[Revised as of April 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 20CFR655.102]

[Page 488-493]
 
                      TITLE 20--EMPLOYEES' BENEFITS
 
 CHAPTER V--EMPLOYMENT AND TRAINING ADMINISTRATION, DEPARTMENT OF LABOR
 
PART 655_TEMPORARY EMPLOYMENT OF ALIENS IN THE UNITED STATES--Table 
of Contents
 
    Subpart B_Labor Certification Process for Temporary Agricultural 
             Employment in the United States (H-2A Workers)
 
Sec. 655.102  Contents of job offers.

    (a) Preferential treatment of aliens prohibited. The employer's job 
offer to U.S. workers shall offer the U.S. workers no less than the same 
benefits, wages, and working conditions which the employer is offering, 
intends to offer, or will provide to H-2A workers. Conversely, no job 
offer may impose on U.S. workers any restrictions or obligations which 
will not be imposed on the employer's H-2A workers. This does not 
relieve the employer from providing to H-2A workers at least the same 
level of minimum benefits, wages, and working conditions which must be 
offered to U.S. workers consistent with this section.
    (b) Minimum benefits, wages, and working conditions. Except when 
higher benefits, wages or working conditions are required by the 
provisions of paragraph (a) of this section, DOL has determined that in 
order to protect similarly employed U.S. workers from adverse effect 
with respect to benefits, wages, and working conditions, every job offer 
which must accompany an H-2A application always shall include each of 
the following minimum benefit, wage, and working condition provisions:
    (1) Housing. The employer shall provide to those workers who are not 
reasonably able to return to their residence within the same day 
housing, without charge to the worker, which may be, at the employer's 
option, rental or public accommodation type housing.
    (i) Standards for employer-provided housing. Housing provided by the 
employer shall meet the full set of DOL Occupational Safety and Health 
Administration standards set forth at 29 CFR 1910.142, or the full set 
of standards at Sec. Sec. 654.404-654.417 of this chapter, whichever 
are applicable, except as provided for under paragraph (b)(1)(iii) of 
this section. Requests by employers, whose housing does not meet the 
applicable standards, for conditional access to the intrastate or 
interstate clearance system, shall be processed under the procedures set 
forth at Sec. 654.403 of this chapter.
    (ii) Standards for range housing. Housing for workers principally 
engaged in the range production of livestock shall meet standards of the 
DOL Occupational Safety and Health Administration for such housing. In 
the absence of such standards, range housing for sheepherders and other 
workers engaged in the range production of livestock shall meet 
guidelines issued by ETA.
    (iii) Standards for other habitation. Rental, public accomodation, 
or other substantially similar class of habitation must meet local 
standards for

[[Page 489]]

such housing. In the absence of applicable local standards, State 
standards shall apply. In the absence of applicable local or State 
standards, Occupational Safety and Health Administration standards at 29 
CFR 1910.142 shall apply. Any charges for rental housing shall be paid 
directly by the employer to the owner or operator of the housing. When 
such housing is to be supplied by an employer, the employer shall 
document to the satisfaction of the RA that the housing complies with 
the local, State, or federal housing standards applicable under this 
paragraph (b)(1)(iii).
    (iv) Charges for public housing. If public housing provided for 
migrant agricultural workers under the auspices of a local, county, or 
State government is secured by an employer, and use of the public 
housing unit normally requires charges from migrant workers, such 
charges shall be paid by the employer directly to the appropriate 
individual or entity affiliated with the housing's management.
    (v) Deposit charges. Charges in the form of deposits for bedding or 
other similar incidentals related to housing shall not be levied upon 
workers by employers who provide housing for their workers. However, 
employers may require workers to reimburse them for damage caused to 
housing by the individual workers found to have been responsible for 
damage which is not the result of normal wear and tear related to 
habitation.
    (vi) Family housing. When it is the prevailing practice in the area 
of intended employment and the occupation to provide family housing, 
family housing shall be provided to workers with families who request 
it.
    (2) Workers' compensation. The employer shall provide, at no cost to 
the worker, insurance, under a State workers' compensation law or 
otherwise, covering injury and disease arising out of and in the course 
of the worker's employment which will provide benefits at least equal to 
those provided under the State workers' compensation law, if any, for 
comparable employment. The employer shall furnish the name of the 
insurance carrier and the insurance policy number, or, if appropriate, 
proof of State law coverage, to the RA prior to the issuance of a labor 
certification.
    (3) Employer-provided items. Except as provided below, the employer 
shall provide, without charge including deposit charge, to the worker 
all tools, supplies, and equipment required to perform the duties 
assigned; the employer may charge the worker for reasonable costs 
related to the worker's refusal or negligent failure to return any 
property furnished by the employer or due to such worker's willful 
damage or destruction of such property. Where it is a common practice in 
the particular area, crop activity and occupation for workers to provide 
tools and equipment, with or without the employer reimbursing the 
workers for the cost of providing them, such an arrangement is 
permissible if approved in advance by the RA.
    (4) Meals. Where the employer has centralized cooking and eating 
facilities designed to feed workers, the employer shall provide each 
worker with three meals a day. When such facilities are not available, 
the employer either shall provide each worker with three meals a day or 
shall furnish free and convenient cooking and kitchen facilities to the 
workers which will enable the workers to prepare their own meals. Where 
the employer provides the meals, the job offer shall state the charge, 
if any, to the worker for such meals. Until a new amount is set pursuant 
to this paragraph (b)(4), the charge shall not be more than $5.26 per 
day unless the RA has approved a higher charge pursuant to Sec. 655.111 
of this part. Each year the charge allowed by this paragraph (b)(4) will 
be changed by the same percentage as the 12-month percent change in the 
Consumer Price Index for All Urban Consumers for Food between December 
of the year just concluded and December of the year prior to that. The 
annual adjustments shall be effective on the date of their publication 
by the Director as a notice in the Federal Register.
    (5) Transportation; daily subsistence--(i) Transportation to place 
of employment. The employer shall advance transportation and subsistence 
costs (or otherwise provide them) to workers when it is the prevailing 
practice of non-H-2A agricultural employers in the

[[Page 490]]

occupation in the area to do so, or when such benefits are extended to 
H-2A workers. The amount of the transportation payment shall be no less 
(and shall not be required to be more) than the most economical and 
reasonable similar common carrier transportation charges for the 
distances involved. If the employer has not previously advanced such 
transportation and subsistence costs to the worker or otherwise provided 
such transportation or subsistence directly to the worker by other means 
and if the worker completes 50 percent of the work contract period, the 
employer shall pay the worker for costs incurred by the worker for 
transportation and daily subsistence from the place from which the 
worker has come to work for the employer to the place of employment. The 
amount of the daily subsistence payment shall be at least as much as the 
employer will charge the worker for providing the worker with three 
meals a day during employment. If no charges will be made for meals and 
free and convenient cooking and kitchen facilities will be provided, the 
amount of the subsistence payment shall be no less than the amount 
permitted under paragraph (b)(4) of this section.
    (ii) Transportation from place of employment. If the worker 
completes the work contract period, the employer shall provide or pay 
for the worker's transportation and daily subsistence from the place of 
employment to the place from which the worker, disregarding intervening 
employment, came to work for the employer, or, if the worker has 
contracted with a subsequent employer who has not agreed in that 
contract to provide or pay for the worker's transportation and daily 
subsistence expenses from the employer's worksite to such subsequent 
employer's worksite, the employer shall provide or pay for such 
expenses; except that, if the worker has contracted for employment with 
a subsequent employer who, in that contract, has agreed to pay for the 
worker's transportation and daily subsistence expenses from the 
employer's worksite to such subsequent employer's worksite, the employer 
is not required to provide or pay for such expenses.
    (iii) Transportation between living quarters and worksite. The 
employer shall provide transportation between the worker's living 
quarters (i.e., housing provided by the employer pursuant to paragraph 
(b)(1) of this section) and the employer's worksite without cost to the 
worker, and such transportation will be in accordance with applicable 
laws and regulations. This paragraph (b)(5)(iii) is applicable to the 
transportation of workers eligible for housing, pursuant to paragraph 
(b)(1) of this section.
    (6) Three-fourths guarantee--(i) Offer to worker. The employer shall 
guarantee to offer the worker employment for at least three-fourths of 
the workdays of the total periods during which the work contract and all 
extensions thereof are in effect, beginning with the first workday after 
the arrival of the worker at the place of employment and ending on the 
expiration date specified in the work contract or in its extensions, if 
any. If the employer affords the U.S. or H-2A worker during the total 
work contract period less employment than that required under this 
paragraph (b)(6), the employer shall pay such worker the amount which 
the worker would have earned had the worker, in fact, worked for the 
guaranteed number of days. For purposes of this paragraph (b)(6), a 
workday shall mean the number of hours in a workday as stated in the job 
order and shall exclude the worker's Sabbath and federal holidays. An 
employer shall not be considered to have met the work guarantee if the 
employer has merely offered work on three-fourths of the workdays if 
each workday did not consist of a full number of hours of work time 
specified in the job order. The work shall be offered for at least 
three-fourths of the workdays (that is, 3/4 x (number of days) x 
(specified hours)). Therefore, if, for example, the contract contains 20 
eight-hour workdays, the worker shall be offered employment for 120 
hours during the 20 workdays. A worker may be offered more than the 
specified hours of work on a single workday. For purposes of meeting the 
guarantee, however, the worker shall not be required to work for more 
than the number hours specified in the job

[[Page 491]]

order for a workday, or on the worker's Sabbath or Federal holidays.
    (ii) Guarantee for piece-rate-paid worker. If the worker will be 
paid on a piece rate basis, the employer shall use the worker's average 
hourly piece rate earnings or the AEWR, whichever is higher, to 
calculate the amount due under the guarantee.
    (iii) Failure to work. Any hours which the worker fails to work, up 
to a maximum of the number of hours specified in the job order for a 
workday, when the worker has been offered an opportunity to do so 
pursuant to paragraph (b)(6)(i) of this section and all hours of work 
actually performed (including voluntary work over 8 hours in a workday 
or on the worker's Sabbath or federal holidays) may be counted by the 
employer in calculating whether the period of guaranteed employment has 
been met.
    (iv) Displaced H-2A worker. The employer shall not be liable for 
payment under this paragraph (b)(6) with respect to an H-2A worker whom 
the RA certifies is displaced because of the employer's compliance with 
Sec. 655.103(e) of this part.
    (7) Records. (i) The employer shall keep accurate and adequate 
records with respect to the workers' earnings including field tally 
records, supporting summary payroll records and records showing the 
nature and amount of the work performed; the number of hours of work 
offered each day by the employer (broken out by hours offered both in 
accordance with and over and above the three-fourths guarantee at 
paragraph (b)(6) of this section); the hours actually worked each day by 
the worker; the time the worker began and ended each workday; the rate 
of pay (both piece rate and hourly, if applicable); the worker's 
earnings per pay period; the worker's home address; and the amount of 
and reasons for any and all deductions made from the worker's wages;
    (ii) If the number of hours worked by the worker is less than the 
number offered in accordance with the three-fourths guarantee at 
paragraph (b)(6) of this section, the records shall state the reason or 
reasons therefore.
    (iii) Upon reasonable notice, the employer shall make available the 
records, including field tally records and supporting summary payroll 
records for inspection and copying by representatives of the Secretary 
of Labor, and by the worker and representatives designated by the 
worker; and
    (iv) The employer shall retain the records for not less than three 
years after the completion of the work contract.
    (8) Hours and earnings statements. The employer shall furnish to the 
worker on or before each payday in one or more written statements the 
following information:
    (i) The worker's total earnings for the pay period;
    (ii) The worker's hourly rate and/or piece rate of pay;
    (iii) The hours of employment which have been offered to the worker 
(broken out by offers in accordance with and over and above the 
guarantee);
    (iv) The hours actually worked by the worker;
    (v) An itemization of all deductions made from the worker's wages; 
and
    (vi) If piece rates are used, the units produced daily.
    (9) Rates of pay. (i) If the worker will be paid by the hour, the 
employer shall pay the worker at least the adverse effect wage rate in 
effect at the time the work is performed, the prevailing hourly wage 
rate, or the legal federal or State minimum wage rate, whichever is 
highest, for every hour or portion thereof worked during a pay period; 
or
    (ii)(A) If the worker will be paid on a piece rate basis and the 
piece rate does not result at the end of the pay period in average 
hourly piece rate earnings during the pay period at least equal to the 
amount the worker would have earned had the worker been paid at the 
appropriate hourly rate, the worker's pay shall be supplemented at that 
time so that the worker's earnings are at least as much as the worker 
would have earned during the pay period if the worker had been paid at 
the appropriate hourly wage rate for each hour worked; and the piece 
rate shall be no less than the piece rate prevailing for the activity in 
the area of intended employment; and

[[Page 492]]

    (B) If the employer who pays by the piece rate requires one or more 
minimum productivity standards of workers as a condition of job 
retention,
    (1) Such standards shall be specified in the job offer and be no 
more than those required by the employer in 1977, unless the RA approves 
a higher minimum; or
    (2) If the employer first applied for H-2 agricultural or H-2A 
temporary alien agricultural labor certification after 1977, such 
standards shall be no more than those normally required (at the time of 
the first application) by other employers for the activity in the area 
of intended employment, unless the RA approves a higher minimum.
    (10) Frequency of pay. The employer shall state the frequency with 
which the worker will be paid (in accordance with the prevailing 
practice in the area of intended employment, or at least twice monthly 
whichever is more frequent).
    (11) Abandonment of employment; or termination for cause. If the 
worker voluntarily abandons employment before the end of the contract 
period, or is terminated for cause, and the employer notifies the local 
office of such abandonment or termination, the employer will not be 
responsible for providing or paying for the subsequent transportation 
and subsistence expenses of any worker for whom the employer would have 
otherwise been required to pay such expenses under paragraph (b)(5)(ii) 
of this section, and that worker is not entitled to the ``three-fourths 
guarantee'' (see paragraph (b)(6) of this section).
    (12) Contract impossibility. If, before the expiration date 
specified in the work contract, the services of the worker are no longer 
required for reasons beyond the control of the employer due to fire, 
hurricane, or other Act of God which makes the fulfillment of the 
contract impossible the employer may terminate the work contract. In the 
event of such termination of a contract, the employer shall fulfill the 
three-fourths guarantee at paragraph (b)(6) of this section for the time 
that has elapsed from the start of the work contract to its termination. 
In such cases the employer will make efforts to transfer the worker to 
other comparable employment acceptable to the worker. If such transfer 
is not effected, the employer shall:
    (i) Offer to return the worker, at the employer's expense, to the 
place from which the worker disregarding intervening employment came to 
work for the employer,
    (ii) Reimburse the worker the full amount of any deductions made 
from the worker's pay by the employer for transportation and subsistence 
expenses to the place of employment, and
    (iii) Notwithstanding whether the employment has been terminated 
prior to completion of 50 percent of the work contract period originally 
offered by the employer, pay the worker for costs incurred by the worker 
for transportation and daily subsistence from the place from which the 
worker, without intervening employment, has come to work for the 
employer to the place of employment. Daily subsistence shall be computed 
as set forth in paragraph (b)(5)(i) of this section. The amount of the 
transportation payment shall be no less (and shall not be required to be 
more) than the most economical and reasonable similar common carrier 
transportation charges for the distances involved.
    (13) Deductions. The employer shall make those deductions from the 
worker's paycheck which are required by law. The job offer shall specify 
all deductions not required by law which the employer will make from the 
worker's paycheck. All deductions shall be reasonable. The employer may 
deduct the cost of the worker's transportation and daily subsistence 
expenses to the place of employment which were borne directly by the 
employer. In such cases, the job offer shall state that the worker will 
be reimbursed the full amount of such deductions upon the worker's 
completion of 50 percent of the worker's contract period. However, an 
employer subject to the Fair Labor Standards Act (FLSA) may not make 
deductions which will result in payments to workers of less than the 
federal minimum wage permitted by the FLSA as determined by the 
Secretary at 29 CFR part 531.
    (14) Copy of work contract. The employer shall provide to the 
worker, no

[[Page 493]]

later than on the day the work commences, a copy of the work contract 
between the employer and the worker. The work contract shall contain all 
of the provisions required by paragraphs (a) and (b) of this section. In 
the absence of a separate, written work contract entered into between 
the employer and the worker, the required terms of the job order and 
application for temporary alien agricultural labor certification shall 
be the work contract.
    (c) Appropriateness of required qualifications. Bona fide 
occupational qualifications specified by an employer in a job offer 
shall be consistent with the normal and accepted qualifications required 
by non-H-2A employers in the same or comparable occupations and crops, 
and shall be reviewed by the RA for their appropriateness. The RA may 
require the employer to submit documentation to substantiate the 
appropriateness of the qualification specified in the job offer; and 
shall consider information offered by and may consult with 
representatives of the U.S. Department of Agriculture.
    (d) Positive recruitment plan. The employer shall submit in writing, 
as a part of the application, the employer's plan for conducting 
independent, positive recruitment of U.S. workers as required by 
Sec. Sec. 655.103 and 655.105(a) of this part. Such a plan shall 
include a description of recruitment efforts (if any) made prior to the 
actual submittal of the application. The plan shall describe how the 
employer will engage in positive recruitment of U.S. workers to an 
extent (with respect to both effort and location(s)) no less than that 
of non-H-2A agricultural employers of comparable or smaller size in the 
area of employment. When it is the prevailing practice in the area of 
employment and for the occupation for non-H-2A agricultural employers to 
secure U.S. workers through farm labor contractors and to compensate 
farm labor contractors with an override for their services, the employer 
shall describe how it will make the same level of effort as non-H-2A 
agricultural employers and provide an override which is no less than 
that being provided by non-H-2A agricultural employers.