The H2A Temporary Agricultural Guest Worker program is designed to allow foreign workers into the country when a shortage of domestic workers exists to meet work requirements. One foundation of the program is the protection of U.S. domestic workers, in other words, growers can’t bring in foreign workers by discriminating or discouraging domestic U.S. workers who are willing to do the job. Growers, by and large, try to do the right thing and are not eager to discriminate against anyone, foreign or domestic, they just want willing workers who can do a good job. When a U.S. grower participates in the H2A program and brings in foreign workers, any U.S. worker who performs the same type of job is known as a “corresponding” worker in the language of the program. Recently, I heard Kalen Fraser of the Labor Brain share some tips about how growers should treat corresponding workers. Here are some tips she shared to avoid problems with the U.S. Department of Labor:
- Remember to provide the same treatment in all ways for corresponding U.S. workers. Employers often strive to “take care” of foreign workers because they are so far from home, this can be a problem if foreign workers receive special treatment that corresponding workers do not.
- Offer the same transportation and housing benefits to domestic workers. This may seem odd if the corresponding workers live nearby and have their own car, but if these benefits are offered to foreign workers then they must also be offered to corresponding workers. Consider getting it in writing if U.S. workers decline such benefits.
- Don’t charge corresponding workers differently for benefits such as meals.
- Write a good job description in your H2A contract that clearly spells out all of the work that employees will do. Use the same job description with corresponding workers. Make sure it is up to date.
- If U.S. workers are in separate groups from foreign workers, make sure they are not given harder assignments or offered fewer hours than foreign workers.
- Avoid discouraging U.S. applicants with discriminatory comments like, “you’ll have to brush up on your Spanish,” or, “local people just don’t last in this kind of work.”
- Be prompt and pleasant when returning phone calls from U.S. applicants, be sure that your office employees don’t treat U.S. applicants or workers differently.
Kalen worked at one time as a U.S. Department of Labor investigator. She said a common investigation practice is to get the list of U.S. applicants who applied for jobs and call them to ask about their experience, she was looking for a pattern of them being treated rudely or discouraged. Keep this in mind as you build your human resource processes and train your management and HR staff to use the H2A program.
You can find helpful information in U.S. DOL’s Employer Guide to H2A.
