Treating Your Workers Properly

This week we're bringing you one of our popular webinar episodes. Check out the full video on YouTube here! Make sure you're treating your workers fairly by following Kyle's advice.
 
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Produced & Edited By: Drew Tattam

Transcript

So, what we're gonna talk about today is H-2A and H-2B worker treatment. This is, to me, this is a particularly interesting one because the times where I see people. Get in trouble with the Department of Labor about their worker treatment is rarely because of negative treatment for their H-2A or H-2B workers.

It is almost always because they're the employer's doing something. For their employees that they think is nice. But it wasn't something that was offered at the U.S. workforce, so they end up getting themselves in trouble. So, let's go through some of these and we'll kind of, we'll kind of talk it through and I'll probably talk about things that are not on any of these slides.

This a really short slide show, so I'm just gonna talk about some examples that I've seen. One of the things that you want to do whenever your workers arrive though you do want to be hospitable towards. A lot of times employers will provide workers in advance or groceries whenever they get here so that they're not coming to empty housing, or they're concerned about their ability to eat or where they're going.

Or you. So, you want to either, you know, help 'em get started with some groceries or provide 'em some sort of advance and transportation to a grocery store. A lot of times the workers on H-2B Visas enter the U.S. Without any sort of money and. It goes a long way just to welcome here with the just small gestures like taking 'em to the grocery store or stocking them with groceries until they get their first paycheck.

It's always good also to maintain constant communication during the actual visa process. I think that a lot of times employees get concerned. You know, like, so for us, what one of our core values in our law firm and an aw labor is revolves around our communication and our responsiveness.

And that's because of the implications that it has on the workers. It from their perspective. These guys are normally traveling a good distance to go to their embassy appointments go to their biometric appointments, and so maintaining constant communication with them through that process or making sure that the person that you have helping you with your worker processing is actually having constant, proactive communication with your workers can really.

A long way. So, I that's a, that's just a point to pay attention to. Hey. Cause I do see it all the time where you know that we'll get a new client that's frustrated with their worker processing company, for example, because they're telling the workers too late that they need to be at embassy appointments.

And so, people start missing their appointments or they provide 'em the wrong job order and so the workers are. A little bit confused about what they're gonna actually be doing and where they're gonna be going. These are these, it brings the workers a lot of comfort to just know these things. So, make sure to be the type of employer that is very communicative with their work, with your workforce, even before they get in the United States.

And then obviously whenever they're here, just like you would with your U.S. workforce, you wanna. Stay in contact with them and just make sure that your employee relations are really good. It's also a really good way to avoid issues with the Department of Labor because if your employees feel like they can reach out to you as an employer and that they'll, you'll take their position seriously.

It's helpful because then they don't feel like the only place, they can turn is the state workforce. Is the Department of Labor or some worker advocacy group, they'll turn to you first and say, hey, this is the problem. And a lot of times, employers and employees can come to some mutually agreeable solution to whatever the problem may be.

So, you know, they're the workers. Oftentimes they're pretty low maintenance considering t their occupation and how hard it is. And so sometimes it's easy to fall back on, on maintaining that constant communication just because they are such low maintenance. But it is good just to check in with your people and make sure everything's going well for them.

And it helps preemptively avoid issues with the Department of Labor too. So, make sure that your hourly rate is actually consistent with what your job order says. Now this is one spot where I do see employers get in a little bit of trouble. A lot of times they will put on their, your job order is one of the most important things that you can do on an H-2A or H-2B filing.

Because your job order advertises your wages and working conditions to the U.S. workforce, meaning the U.S. workforce is applying for your job or prospectively applying oftentimes not applying, but they, they are reviewing your job based on the infor information you provide in the job order. And so, this is where people get in trouble.

Let's say that you are an H-2A employer. And you provide housing to your workers, and they have a free and convenient kitchen facility. And so, your job order says that they will buy their own groceries. Well, you're also a really nice employer, and so what you want to do is you want to go and buy groceries.

Once a week for your workers just to say, Hey I appreciate you. I appreciate what you're doing. Let me buy your groceries. Well, the Department of Labor comes in and they start investigating you, and they ask the workers, do you buy your own groceries? The workers say no. Actually, our employer buys our own groceries.

Department of Labor then looks at your job order and they see that your job. Says that the employees are gonna buy their own groceries. Well, the Department of Labor's perspective on this is that you are then there's a prohibition against a preferential treatment of your alien workforce. And the Department of Labor will see this as a violation of that prohibition.

And so, it's important that whenever you're thinking about nice things to do for your workers, make sure that it's actually in the job order. Also, before you ever file your job order, actually review your job order, make sure that the language on your job order gives you the latitude to do the things for your workforce that you would want to do.

That means giving 'em bonus. That means giving 'em higher wage rates whenever they're deserved. That means offering. So, sorts of meal benefits fuel allowances, whatever it may be. Make sure that it's discloses on your job order, because that's what the Department of Labor is gonna check to make sure that you're not giving preferential treatment to your H-2A or H-2B workforce.

It's funny because that's the spot where I normally see people get in trouble. The, it's not normally from well, I said I was gonna only have 12 people in this housing, and now I've got 18 people in this housing. That's not normally how I see it. I normally see, Man, my H-2A workers have been kicking butt this year.

So, I gave them, I gave all my H-2A workers a bonus. I gave all my H-2A workers a higher wage rate than I did my U.S. workers. And that's it's funny because, you know, you, you think you're doing something nice, especially because you gotta keep in mind that these workers are sending most of their paychecks back home to their families.

They want to, they wanna work hard for you. They want all the hours that you won. And of course, you as an employer, totally respect and appreciate that. And so, a lot of times that's actually what ends up getting people in trouble, is doing something particularly nice for their employees. You know, and the good thing about that is it Department of Labor will likely cited as a violation depending on the circumstances, they would potentially make you pay back wages to your U.S. workers.

But it is certainly. Certainly, something to to keep an eye out on. But the Department of Labor also will look at it and say, oh, well, they, you know, they weren't acting maliciously towards their U.S. workforce. They were just trying. They, so intent does matter. But at the end of the day, you're still out a bunch of money because you did something nice for your workers.

All righty let's go to this next one. PERMs. I'm not sure if you're familiar with PERMs. PERMs are different than H-2A and H-2B visas, H-2A and H-2B visas. For those that aren't familiar, H-2A is temporary or seasonal agricultural visas. It's not numerically capped, and employers are required to provide housing and transportation.

H-2B is numerically capped. It's for nonagricultural employers. It is also still temporary or seasonal. Employers are not required to provide housing and transportation, but I normally see them, at least establish it for the workers. It just makes it a lot easier for the workers to get here. So then let's talk a little bit about PERMs, because this is a little bit different.

Actually, it's a lot of bit different. And PERMs are they're green cards. They're actual green card filings and they allow workers to actually immigrate here. And so, this is oftentimes a cost-effective measure in the long run, but it is meant for open permanent positions. Now it, it's also possible, cause a lot of times I have employers ask me, hey, I, I have H-2A and H-2B workers, but I also have these permanent positions that are available.

Can I do both? And you can file H-2A and H-2B visa applications and also be filing PERM applications to meet your your permanent needs as well. Now in terms of housing and transportation, it’s not required for PERM candidates because PERM candidates are immigrating here. The intent is that they move here permanently.

That's what it's for. So, you're not required to provide those things. But the, and with these guys just like the H-2A and H-2B people the best advice you can be given is to not distinguish. Them based off of their immigration status. So, your H-2A and H-2B people just treat 'em the same as your U.S. workforce, your green card holders, whenever they get over here. Treat 'em like your U.S. workforce. That, that's basically the best things that you can do. Don't give additional wages and benefits to your H-2A or H-2B. Don't give more favorable work environments here. H-2A, they should be these workers.

Lemme give you an example of that one. Let's say that I own a. So, I bring in H-2A workers and I've got one job that's really easy and I stick my H-2A worker on the really easy job, but I'm tired of these U.S. workers and I'm tired of dealing with 'em. And so, I stick my U.S. workers on my hardest jobs until until they quit.

Well, that would be another situation where you have preferential treatment of your alien workforce. Be conscientious of all those things, the wages, the working conditions, all the benefits, everything that you provide to your U.S. workforce and your H-2A workforce, you need to not distinguish between the two.

So that's the best advice that you can get from that standpoint. You know? So, yeah. How can we help? We do, timeliness is one of our core values for a reason that it's so important and it's so funny to me. That this is such an easy thing to do that a lot of folks don't do.

Now there's some really good agencies out there that do things timely most, and there's a lot of 'em that also don't. Then there's also a lot of lawyers out there that do this, and those I very rarely see do things timely and with a sense of urgency. So having a sense of urgency really matters.

That's why it's one of our core values. And then it's also important that we do understand the complexity of these various programs. So, more than happy to help you out with them. There's not a lot of attorneys that have specific knowledge in this particular area of the law. And then we can also help you evaluate which Visa category is best for you.

And then we do have team members that walk you through the entire step of the. So, if you're looking for information, you can just email U.S. At intake farmer law pc.com. Always happy to do a consultation. It's totally free. You can get on our website. I actually love to point people to our website because if you go to our website and you have questions about any particular immigration category that we focus on, H-2A, H-2B, Green Cards, TNs, for example we've got a ton of content on our website.

And so just go to the videos and take a look at some video. I think that they are valuable for people, so I highly recommend that you go on there. All of our past webinars are on there, so if you're an H-2A or H-2B employer, please either you or your employees go on there and watch our webinars to learn about the regulations.

A lot of people callously get into H-2A and H-2B programs not understanding the complexity and the regulatory requirements by the employer. But please go watch those webinars. Read your Appendix A, read your Appendix A. If you file H-2A filings, read your appendix B. If you file H-2B filings, understand the things that you're signing and the things that you're attesting to because it does matter.

The Department of Labor is pretty aggressive with actually auditing these programs. And so, it's important that you as an employer get educated. I, as an attorney I, the thing that I love the most is teaching people I do love. I've got a passion for that. I think that started whenever I was in college and I was teaching some, I was teaching LSAT and SAT and ACT classes.

I, I do love it. But you do have to have an audience willing to learn. So please use those resources and familiarize yourself with these programs because they are valuable, and they do offer some good insight that that you can't find anywhere else. So just go on our website right there and we'll take care of ya.

Alright, let me stop sharing that and then let me, Take a gander at some of these questions. So, this is a great question. Is the company able to charge back an amount for the groceries provided upon arrival? There's two types of deductions that you can make from your workers, or I guess there's actually, there's two reasons why a deduction is not lawful.

It's one if the deduction's unreasonable, or two, if the deduction's unlawful. So, you need your deductions to be both reasonable and lawful. What's that? A deduction is reasonable when it's the actual cost. To the employer for whatever the expense is. And then a deduction is reasonable when it is properly disclosed on your job order.

So, you can deduct the cost of the advance or the groceries from the workers on their future paychecks if it was both disclosed on the job order. So, check your job order, make sure it's. Disclosed and then two, that you are actually deducting the cost of the groceries from the workers. So that's the, you need to make sure to do both of those two things lawful and reasonable.

Remember those two words?

This is a great question. Could a monthly gift card due to no accidents at the workplace given to U.S. and H-2A employee? Not included in the work contract. So, I guess the question is that okay? I would put that in your work contract because the way the Department of Labor is gonna see that is a bonus.

So, I would check your work con your work contract to make sure that's actually in your work contract. So, whenever you're thinking about impacting the U.S. workforce, it's important to think about it for. It's important to think about it from the perspective of my existing workforce and my perspective U.S. workforce.

And so, you want to put these things in your job order because you're advertising it to the U.S. workers, and by advertising it to the U.S. workers, you want to make sure that you're not inadvertently harming them by not disclosing all of those things. And so yeah, I would include that. I would say monthly in the job order, just put monthly gift.

And or bonuses may be given to eligible employees for w for workplace safety standards to meet, meeting workplace safety standards, something to that effect that just allows you to do it. Department of Labor is not gonna have any issue with a provision like that in your work contract, so just put it in there in your future contracts and you'll be in a really good spot.

How long is a permanent, so the PERM filing this question is basically the duration of employment of a PERM candidate. And then if the question is if they can bring their families, so the. Whenever a person comes on through the PERM program, they come on a green card and they're here permanently.

So, it's not something that they're gonna have to go home afterwards. They're gonna be actual green card holders and eventually citizens, and yes, they can bring their families. That's a great question. Which is a really cool thing because, you know, let's say that you have. And he has you've got a worker and his wife and kids are back home.

Whenever his wife comes over, she can actually come over with a lawful working status as well. And so just as a dependent of his application which is a really cool thing, that's one place where like H-4 visas fall short, which for those that aren't aware, H-4 visas, TD visas, these are dependent visa.

So, but they don't convey any sort of work authorization. So, I can bring in an H-2A worker, and I can bring in my H-2A worker's family, but his family can't work without some other valid working status. And that's one spot where the green card process is different because whenever they do arrive, they can they can actually work because they're immigrating here permanently.

So, it's a great benefit. Okay, so this is this is a question. Why would you have TN workers versus permanent workers? So, a TN visa is technically still a temporary visa and that you would continue to renew it. But there the PERM process is long. And it's expensive. It may be cheaper in the long run because you're not continuing to renew people.

But the PERM process usually takes two to three years to get through from start to finish. And there's also a prevailing wage filing requirement with PERM applications that doesn't exist for TNs. And so, you would wanna just be aware of which PERM category you're putting these people in.

But yeah, I mean, you could always file for a PERM group also. Your job opportunities for PERMs might be different than your job. Opportunities for TNs are for people with a bachelor's degree ordinarily, that are engaged in professional level activity. Whereas PERM workers, there's a category for unskilled workers where they do 10,000 of them a year.

That are, that can do anything. So, the only, yeah, I mean, they can do anything if you need 'em as construction laborers or whatever it might be. That's a good thing for a PERM classification for permanent employees. Whereas TNs, they would be engaged in more professional level activity and so it, it limits the ability of the visa a little bit.

How long is the process for a PERM? Oh, nice. I already got that one, two to three years. Are there any so the two to three year thing, just so people are aware, whenever you're getting information from people about how long is the PERM process? I tell people to expect two to three years, but that's based off of the assumption of the current.

Cycle of the, what's called a priority date, which is just the availability of visas. It's possible that at some point it becomes so competitive that the priority date gets retrogressed really far and it becomes difficult to get these people. That hasn't happened yet, and it hasn't happened since I've been doing PERM applications.

But I'd just like to put that possibility out there. But two to three years is what people have been seeing. Are there any specific requirements like the TN visa? The specific requirements on your PERM filings would be dictated by your by your advertisement of the job. So just like with H-2A and H-2B people you have to require no more than the necessary experience to be employed by you in whatever that occupation is.

And then you have to hire any able, willing and qualified U.S. applicants that actually applied for the position. And so, with a, yeah, so there, there are oftentimes specific requirements for PERM candidates. You also have to be careful about where they gained that experience. Because there's certain circumstances with the PERM filing where they can't have gained that experience from the petitioning employer, where that's different with H-2A and H-2B.

But yeah, so normally there are specific requirements for per workers but it's specific to each individual application. So, the question is, H-2A worker applied to bring family with H-4 and was denied. Any advice on rules to follow? I don't know why the H-4 Visa would've got denied. I've never had an H-4 Visa denied, so I'm not sure.

What the logic there was. But if I had to guess I, they were probably denied because the government's, no, I guess it could be a few reasons. One, maybe they weren't qualified for H-4 because you have to prove that they are legally married, that these are legally. His or her children, and they're under the age of 21.

So, one let's, we would wanna verify that they were actually qualified to begin with and that they brought proper documentation to establish their qualifications. So that would be my first advice. And then the other one is if the embassy official was concerned. About the worker and his family not coming back to their home country.

I would suggest bringing some evidence of a need to come back, like pictures of, hi let's say that the worker has other children that are older than 21 that can't come for come on an H-4 Visa or. A mother and father that depend on him or her. I would, or, you know, physical property that they own in their home country.

These sorts of things help get over that hurdle that concerns the embassy occasionally that the workers not gonna return to their home country.

Okay. Sorry, one more. Could there be an H-2A employee working and going through the PERM process at the same time? Yeah. You have to be careful about the timing of this type of situation, but you can, so, that's until you there, there's. Whatever you are conveyed some sort of immigration status.

You're conveyed that immigration status with the requisite intent for whatever that visa category is. And with an H-2A Visa, for example, every time they get the worker gets an H-2A visa, they're attesting to the embassy. I have non-immigrant intent with this entry, so with this entry, I intend on.

I intend on abiding by my H-2A visa, and I intend on returning home. Whereas with a green card application you're entering saying, I have an intent to immigrate, which are two different intents, and that matters a lot to immigration. And so, if you. That's not to, so you have to be careful about the timing because at one point in the process, whenever you file the I-140, which is at the very end, or the and the I-485, you are the worker is es establishing an immigrant intent.

And so, you have to make sure that if they are establishing that immigrant intent, it doesn't actually conflict with the intent that they used to enter. And if it does conflict, it was at least 90. After making the declaration of their non-immigrant intent in some way. So, you can, you just have to be careful about it.

So, make sure that you are working with someone that is familiar with both the H-2A and the PERM process, or H-2B and PERM process or TN and PERM process. Because they need to know both of 'em to know how they, I. This is this is a great question too. And all the questions have been great.

So, I like this one H-4 family. Can they live in the same house with a H-2A worker plus one additional H-2A worker? Theoretically they could. The housing needs to have the proper occupancy though and this is always one of the spots where H-2A gets a little bit tricky. And I've actually asked a d o L investigator about this before because it's not clear.

It's not clear if the H-4 family member let, so let's say hypothetically you have an H-2A worker and you have housing establish that you're paying for the H-2A worker. Can the H-2A worker reject your housing? And go and choose to stay in other housing with his or her family. The Department of Labor at least the particular investigator that I spoke to when asked that question has told me that it's unclear if that's a violation at this point, but they prob but most investigators are not gonna enforce that as a violation because you had the housing available or if you were paying for it, and they just simply rejected it.

And so, I've been told by an investigator that most investigators are not gonna enforce that, but it's, it is not clear. So, it is a little bit of a risk, just something to be aware of.

Okay. Let's see. This one you had mentioned that we should have groceries for them in their housing when they arrive, but we should not give them groceries throughout the contract as a bonus unless it's stayed in the contract. So, do you have to charge them for the first set of groceries? Are we required to have groceries in their housing when they arrive?

We provide them with a vehicle and directions to the store and they arrive. We also give them a reimbursement travel check the day they arrived. We do not give 'em the groceries. That's a great po that's a great way to do it as well. And so, I like that a lot where you're giving 'em a reimbursement check right when they get there.

So, the benefit of that is they have money to go and get groceries. So, I think that you and I are talking about the same thing. You're taken into account, the. The needs of the workers and then making sure to accommodate them and you are accommodating them because there's a portion of the regulations that says that you don't have to reimburse workers for their inbound travel expenses until they complete 50% of the work contract.

Of course. Then in parentheses it says that subject to the fair standards Ag. So, depending on where your workers are coming from you may not even have to reimburse them until 50% of the work contract. If your workers are coming from anywhere other than Mexico and you work on a two-week, Cycle, you're probably gonna be in violation of FLSA if you don't put it on their first paycheck.

But unlike most employers, the thing that you do, which is great, is you give them that check the day they get here as opposed to putting it on their first paycheck. And so, you are you're doing the same thing that I'm trying to get people to do here, which is just make sure that the workers are able to eat whenever they arrive.

And so that's great. The, so the question is do you get to charge them for the first set of groceries? I would suggest that you don't charge them for the first set of groceries. I've never seen the Department of Labor cause an issue with that, where when the workers get here, they're being food. I've actually never even heard them ask that question.

And so yeah, I you wouldn't wanna charge 'em for the groceries unless it's disclosed in the work contract. But I would disclose in the work contract, if you intend on providing groceries so that you can deduct that from them, or at least. For the first week, food will be provided and there's no reason not to put that in the work contract if that's what your intent is.

Are you required to have groceries in their house when they arrive? No. You're not? No. That's simply a recommendation to. To accommodate the workers, just so whenever they get here that it's just one less thing for them to stress about and it goes a long way. There's a lot of gratitude there from people whenever you do that.

So those are great questions. Thank you for asking them. Do we have to keep track of workers from other countries who want to come over on our visa? No. So that's a good, that's is a man. Look at these questions today. People. That's what I'm talking about. So, whenever you're doing your recruitment report.

You're required to hire any able, willing, and qualified U.S. applicants that apply for the position. So, what does the U.S. applicant mean because that's what matters. So, for your question, since these are workers from other countries that don't have a valid work authorization in the United States at this time, you're not required to hire them.

You're not required to interview 'em, you're not required to track 'em. I generally like whenever people keep it on a spreadsheet anyways though, because what can happen if you don't is you might inadvertently skip over a U.S. worker that applied for the position thinking they were a foreign worker.

And so, it, a lot of times I like to have people just keep track of it on a spreadsheet. Nothing fancy just to say person's name, date, they submitted a resume. And then reason for rejection, I need to have that on on an Excel sheet or something like that, just so if the Department of Labor comes, at least we could show.

Even if you inadvertently disqualified a U.S. worker, we could show, oh shoot. Yeah, we're sorry about that. But if you look at our spreadsheet here, you'll see that we didn't do it with a bad intent. And that helps a lot with something like rejection of U.S. worker. So technically not required to, but I do generally recommend it in a, in an Excel format.

Nothing too fancy, but just to cover your. Okay. If you apply for H-4 Visa for H-2A employee, family member, do you have to provide housing for the family as well? How does that work? You are not required to provide housing for the H-4 family member, unless that is the, oh, how do the regulations say this?

Unless that's the common practice in the area of intended employment, then you don't have to. So, I've never seen them seen the Department of Labor require that. H-4 Visa workers are also provided housing. And normally the way that I've seen it is that the H-2A worker will actually reject the employer's housing, employers still to pay for the housing, don't stop paying for the housing cause you're and worker rejected it.

But then H-2A worker will go live in some other apartment with his or her family. So that's how I normally see it. But again, that's not advice because department of Labor's told. That is not a clear rule but that most people aren't gonna try to fight that as long as the housing was available for 'em.

So that's an important thing though. Just make sure that if you're doing that that you're continuing to pay for the housing, you're not receiving some sort of financial benefit from their rejecting your housing. That goes goes a long way for evidence in an audit. All right. Any other question?

No. Okay, awesome. Well, this webinar will also be posted on our website. Please do get on our website and watch our various videos because they are helpful. They do teach people a lot, so hop on there learn a thing or two about H-2A or H-2B or TN, or green card visas, or whatever you need.

And then otherwise, if you have any other questions, feel free to reach out to me. Always happy to be a resource. I love this. And I love both of these industries, actually, so always happy to help people out, whether you're a client or not. So, feel free to reach out to me and we will talk to everyone at the next one.

Oh, I did. Oh, yes. So, thank you for that one. So, someone mentioned, Our podcast. I do have a podcast. Yeah. And you can, I think that it is also, I think the links MK or the MK's on here. She's just silent, I think. Are the podcasts on the website too? Okay, cool. Yeah, so the podcasts are on the website too and so feel free to, to listen to those.

It's usually about half immigration advice, half me just goofing around. So, yeah, if you go to farmerlawpc.com/podcast, it's there. But I appreciate that. Thank you for the kind words, but Cool. Alright, well we will talk to everyone next time. If you have any other questions, feel free to let me know.