Modernizing Recruitment Requirements for the Temporary Employment of H-2A Foreign Workers in the United States

Administrator Gagliardi: I write today to provide comment on behalf of the Northwest Horticultural Council (NHC) regarding the U.S. Department of Labors (DOL) proposed rule entitled Modernizing Recruitment Requirements for the Temporary Employment of H-2A Foreign Workers in the United States, which was published in the Federal Register Notice dated November 9, 2018, under Docket No. ETA-2018-0002. The NHC handles federal and international policy and regulatory issues for apple, pear, and cherry growers, packers, and shippers in Washington, Oregon, and Idaho. Together, our growers produce 67 percent of the apples (supplying 76 percent of the domestic fresh market), 88 percent of the fresh pears, and 81 percent of the sweet cherries grown in the United States. The growing, harvesting, and packing of tree fruit, especially when destined for sale in the fresh market, is highly labor intensive. With domestic agricultural labor sources continuing to dwindle in the region, Pacific Northwest growers are turning more and more to the H-2A program to get the workers they need to grow and pick their crops. This has led to double digit year-over-year increases in the number of H-2A workers being brought into our region. In FY 2018, Washington state ranked third nationally in terms of the number of H-2A workers certified by DOL. When looking at crops, apples ranked seventh and cherries tenth in terms of use of the H-2A program. While this program is fulfilling an essential need for our growers, there is no question that it includes some unnecessarily burdensome requirements and is in need of updating. We appreciate DOLs efforts to review the regulations implementing the H-2A program and to propose updates, including the draft rule in question. The NHC supports the proposed rule published in Docket No. ETA-2018-0002, to replace the existing requirement to publicize job postings in newspapers, with a requirement to instead advertise the job in question on websites that are widely viewed and appropriate for use by workers who are likely to apply for the job opportunity in the area of intended employment. We would like DOL to clarify that websites for WorkSource Washington (www.worksourcewa.com) and WorkSource Oregon (www.worksourceoregon.org) would meet the agencys criteria as widely used and appropriate. In the proposed rule, DOL specifically asked for comment regarding several questions. The NHCs responses to these questions are as follows: Should DOL establish qualifying criteria, such as minimum number of unique visitors per month, to determine what websites would fulfill this proposed regulatory requirement? The NHC does not support the establishment of more specific criteria in the regulation regarding what websites are applicable. We are concerned that more specific requirements would make this requirement more burdensome for employers. Information like number of unique visitors, which was the example provided in the proposed rule, may not be easily accessible to growers and make it difficult for employers to comply. In addition, we are concerned that dictating too many details in the regulatory language (versus DOL implementation policies) will restrict DOL from adapting to changes in practices and technology in the future. Should DOL exclude advertisements placed on websites of agricultural associations that serve as agents or employers of H-2A workers? The NHC has no comment regarding whether advertisements placed on the websites of agricultural associations that serve as agents or employers of H-2A workers should be excluded from meeting this requirement. However, we do believe that DOL should clarify that H-2A employers are not prohibited from linking to the job posting that meets this requirement from their own company website, as this is where prospective employees often go to learn about job openings. Should DOL continue to allow employers to advertise in newspaper as an alternative option to the website require…