[Title 29 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2023 Edition]
[From the U.S. Government Publishing Office]
[[Page i]]
Title 29
Labor
________________________
Parts 500 to 899
Revised as of July 1, 2023
Containing a codification of documents of general
applicability and future effect
As of July 1, 2023
Published by the Office of the Federal Register
National Archives and Records Administration as a
Special Edition of the Federal Register
[[Page ii]]
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[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 29:
SUBTITLE B--Regulations Relating to Labor (Continued)
Chapter V--Wage and Hour Division, Department of
Labor 5
Finding Aids:
Table of CFR Titles and Chapters........................ 905
Alphabetical List of Agencies Appearing in the CFR...... 925
List of CFR Sections Affected........................... 935
[[Page iv]]
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Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 29 CFR 500.0 refers
to title 29, part 500,
section 0.
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[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
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HOW TO USE THE CODE OF FEDERAL REGULATIONS
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To determine whether a Code volume has been amended since its
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EFFECTIVE AND EXPIRATION DATES
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OMB CONTROL NUMBERS
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Federal agencies to display an OMB control number with their information
collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
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PAST PROVISIONS OF THE CODE
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INCORPORATION BY REFERENCE
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This material, like any other properly issued regulation, has the force
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(a) The incorporation will substantially reduce the volume of
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(b) The matter incorporated is in fact available to the extent
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(c) The incorporating document is drafted and submitted for
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What if the material incorporated by reference cannot be found? If
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CFR INDEXES AND TABULAR GUIDES
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that volume.
[[Page vii]]
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Oliver A. Potts,
Director,
Office of the Federal Register
July 1, 2023
[[Page ix]]
THIS TITLE
Title 29--Labor is composed of nine volumes. The parts in these
volumes are arranged in the following order: Parts 0-99, parts 100-499,
parts 500-899, parts 900-1899, part 1900-Sec. 1910.999, part 1910.1000-
end of part 1910, parts 1911-1925, part 1926, and part 1927 to end. The
contents of these volumes represent all current regulations codified
under this title as of July 1, 2023.
The OMB control numbers for title 29 CFR part 1910 appear in Sec.
1910.8. For the convenience of the user, Sec. 1910.8 appears in the
Finding Aids section of the volume containing Sec. 1910.1000 to the
end.
For this volume, Cheryl E. Sirofchuck was Chief Editor. The Code of
Federal Regulations publication program is under the direction of John
Hyrum Martinez, assisted by Stephen J. Frattini.
[[Page 1]]
TITLE 29--LABOR
(This book contains parts 500 to 899)
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SUBTITLE B--Regulations Relating to Labor (Continued)
Part
chapter v--Wage and Hour Division, Department of Labor...... 500
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Subtitle B--Regulations Relating to Labor (Continued)
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CHAPTER V--WAGE AND HOUR DIVISION, DEPARTMENT OF LABOR
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SUBCHAPTER A--REGULATIONS
Part Page
500 Migrant and seasonal agricultural worker
protection.............................. 9
501 Enforcement of contractual obligations for
temporary agricultural workers admitted
under section 218 of the Immigration and
Nationality Act......................... 53
502 Enforcement of contractual obligations for
temporary alien agricultural workers
admitted under section 218 of the
Immigration and Nationality Act
(suspended 6-29-2009)................... 69
503 Enforcement of obligations for temporary
nonimmigrant non-agricultural workers
described in the Immigration and
Nationality Act......................... 85
504 Attestations by facilities using
nonimmigrant aliens as registered nurses 108
505 Labor standards on projects or productions
assisted by grants from the National
Endowments for the Arts and Humanities.. 108
506 Attestations by employers using alien
crewmembers for longshore activities in
U.S. ports.............................. 113
507 Labor condition applications and
requirements for employers using
nonimmigrants on H-1B specialty visas in
specialty occupations and as fashion
models.................................. 113
508 Attestations filed by employers utilizing F-
1 students for off-campus work.......... 113
510 Implementation of the minimum wage
provisions of the 1989 amendments to the
Fair Labor Standards Act in Puerto Rico. 114
511 Wage order procedure for American Samoa..... 136
515 Utilization of State agencies for
investigations and inspections.......... 142
516 Records to be kept by employers............. 144
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519 Employment of full-time students at
subminimum wages........................ 157
520 Employment under special certificate of
messengers, learners (including student-
learners), and apprentices.............. 168
521-524
[Reserved]
525 Employment of workers with disabilities
under special certificates.............. 181
527
[Reserved]
528 Annulment or withdrawal of certificates for
the employment of student-learners,
apprentices, learners, messengers,
handicapped persons, student-workers,
and full-time students in agriculture or
in retail or service establishments at
special minimum wage rates.............. 191
530 Employment of homeworkers in certain
industries.............................. 193
531 Wage payments under the Fair Labor Standards
Act of 1938............................. 206
536 Area of production.......................... 221
541 Defining and delimiting the exemptions for
executive, administrative, professional,
computer and outside sales employees.... 222
547 Requirements of a ``Bona fide thrift or
savings plan''.......................... 248
548 Authorization of established basic rates for
computing overtime pay.................. 249
549 Requirements of a ``bona fide profit-sharing
plan or trust''......................... 264
550 Defining and delimiting the term ``talent
fees''.................................. 266
551 Local delivery drivers and helpers; wage
payment plans........................... 267
552 Application of the Fair Labor Standards Act
to domestic service..................... 271
553 Application of the Fair Labor Standards Act
to employees of State and local
governments............................. 277
570 Child labor regulations, orders and
statements of interpretation............ 300
575 Waiver of child labor provisions for
agricultural employment of 10 and 11
year old minors in hand harvesting of
short season crops...................... 353
578 Minimum wage and overtime violations--civil
money penalties......................... 358
579 Child labor violations--civil money
penalties............................... 360
580 Civil money penalties--procedures for
assessing and contesting penalties...... 365
[[Page 7]]
697 Industries in American Samoa................ 370
SUBCHAPTER B--STATEMENTS OF GENERAL POLICY OR INTERPRETATION NOT
DIRECTLY RELATED TO REGULATIONS
775 General..................................... 373
776 Interpretative bulletin on the general
coverage of the wage and hours
provisions of the Fair Labor Standards
Act of 1938............................. 373
778 Overtime compensation....................... 412
779 The Fair Labor Standards Act as applied to
retailers of goods or services.......... 470
780 Exemptions applicable to agriculture,
processing of agricultural commodities,
and related subjects under the Fair
Labor Standards Act..................... 569
782 Exemption from maximum hours provisions for
certain employees of motor carriers..... 644
783 Application of the Fair Labor Standards Act
to employees employed as seamen......... 660
784 Provisions of the Fair Labor Standards Act
applicable to fishing and operations on
aquatic products........................ 676
785 Hours worked................................ 702
786 Miscellaneous exemptions and exclusions from
coverage................................ 714
788 Forestry or logging operations in which not
more than eight employees are employed.. 716
789 General statement on the provisions of
section 12(a) and section 15(a)(1) of
the Fair Labor Standards Act of 1938,
relating to written assurances.......... 720
790 General statement as to the effect of the
Portal-to-Portal Act of 1947 on the Fair
Labor Standards Act of 1938............. 724
791
[Reserved]
793 Exemption of certain radio and television
station employees from overtime pay
requirements under section 13(b)(9) of
the Fair Labor Standards Act............ 750
794 Partial overtime exemption for employees of
wholesale or bulk petroleum distributors
under section 7(b)(3) of the Fair Labor
Standards Act........................... 755
SUBCHAPTER C--OTHER LAWS
801 Application of the Employee Polygraph
Protection Act of 1988.................. 775
810 High-wage components of the labor value
content requirements under the United
States-Mexico-Canada agreement
implementation act...................... 804
[[Page 8]]
825 The Family and Medical Leave Act of 1993.... 818
SUBCHAPTER D--GARNISHMENT OF EARNINGS
870 Restriction on garnishment.................. 897
871-899
[Reserved]
[[Page 9]]
SUBCHAPTER A_REGULATIONS
PART 500_MIGRANT AND SEASONAL AGRICULTURAL WORKER PROTECTION--Table of
Contents
Subpart A_General Provisions
Sec.
500.0 Introduction.
500.1 Purpose and scope.
500.2 Compliance with State laws and regulations.
500.3 Effective date of the Act; transition period; repeal of the Farm
Labor Contractor Registration Act.
500.4 Effect of prior judgments and final orders obtained under the Farm
Labor Contractor Registration Act.
500.5 Filing of applications, notices and documents.
500.6 Accuracy of information, statements and data.
500.7 Investigation authority of the Secretary.
500.8 Prohibition on interference with Department of Labor officials.
500.9 Discrimination prohibited.
500.10 Waiver of rights prohibited.
500.20 Definitions.
Applicability of the Act: Exemptions
500.30 Persons not subject to the Act.
Subpart B_Registration of Farm Labor Contractors and Employees of Farm
Labor Contractors Engaged in Farm Labor Contracting Activities
Registration Requirements: General
500.40 Registration in general.
500.41 Farm labor contractor is responsible for actions of his farm
labor contractor employee.
500.42 Certificate of Registration to be carried and exhibited.
500.43 Effect of failure to produce certificate.
Applications and Renewal of Farm Labor Contractor and Farm Labor
Contractor Employee Certificates
500.44 Form of application.
500.45 Contents of application.
500.46 Filing an application.
500.47 Place for filing application.
Action on Application
500.48 Issuance of certificate.
500.50 Duration of certificate.
500.51 Refusal to issue or to renew, or suspension or revocation of
certificate.
500.52 Right to hearing.
500.53 Nontransfer of certificate.
500.54 Change of address.
500.55 Changes to or amendments of certificate authority.
500.56 Replacement of Certificate of Registration or Farm Labor
Contractor Employee Certificate.
Additional Obligations of Farm Labor Contractors and Farm Labor
Contractor Employees
500.60 Farm labor contractors' recruitment, contractual and general
obligations.
500.61 Farm Labor contractors must comply with all worker protections
and all other statutory provisions.
500.62 Obligations of a person holding a valid Farm Labor Contractor
Employee Certificate of Registration.
Subpart C_Worker Protections
General
500.70 Scope of worker protections.
500.71 Utilization of only registered farm labor contractors.
500.72 Agreements with workers.
500.73 Required purchase of goods or services solely from any person
prohibited.
Recruiting, Hiring and Providing Information to Migrant Agricultural
Workers
500.75 Disclosure of information.
Hiring and Providing Information to Seasonal Agricultural Workers
500.76 Disclosure of information.
Employment Information Furnished
500.77 Accuracy of information furnished.
500.78 Information in foreign language.
Wages and Payroll Standards
500.80 Payroll records required.
500.81 Payment of wages when due.
Subpart D_Motor Vehicle Safety and Insurance for Transportation of
Migrant and Seasonal Agricultural Workers, Housing Safety and Health for
Migrant Workers
Motor Vehicle Safety
500.100 Vehicle safety obligations.
500.101 Promulgation and adoption of vehicle standards.
500.102 Applicability of vehicle safety standards.
500.103 Activities not subject to vehicle safety standards.
[[Page 10]]
500.104 Department of Labor standards for passenger automobiles and
station wagons and transportation of seventy-five miles or
less.
500.105 DOT standards adopted by the Secretary.
Insurance
500.120 Insurance policy or liability bond is required for each vehicle
used to transport any migrant or seasonal agricultural worker.
500.121 Coverage and level of insurance required.
500.122 Adjustments in insurance requirements when workers' compensation
coverage is provided under State law.
500.123 Property damage insurance required.
500.124 Liability bond in lieu of insurance policy.
500.125 Qualifications and eligibility of insurance carrier or surety.
500.126 Duration of insurance or liability bond.
500.127 Limitations on cancellation of insurance or liability bond of
registered farm labor contractors.
500.128 Cancellation of insurance policy or liability bond not relief
from insurance requirements.
Housing Safety and Health
500.130 Application and scope of safety and health requirement.
500.131 Exclusion from housing safety and health requirement.
500.132 Applicable Federal standards: ETA and OSHA housing standards.
500.133 Substantive Federal and State safety and health standards
defined.
500.134 Compliance with State standards.
500.135 Certificate of housing inspection.
Subpart E_Enforcement
500.140 General.
500.141 Concurrent actions.
500.142 Representation of the Secretary.
500.143 Civil money penalty assessment.
500.144 Civil money penalties--payment and collection.
500.145 Registration determinations.
500.146 Continuation of matters involving violations of FLCRA.
500.147 Continuation of matters involving violations of section 106 of
MSPA.
Agreements With Federal and State Agencies
500.155 Authority.
500.156 Scope of agreements with Federal agencies.
500.157 Scope of agreements with State agencies.
500.158 Functions delegatable.
500.159 Submission of plan.
500.160 Approved State plans.
500.161 Audits.
500.162 Reports.
Central Public Registry
500.170 Establishment of registry.
Subpart F_Administrative Proceedings
General
500.200 Establishment of procedures and rules of practice.
500.201 Applicability of procedures and rules.
Procedures Relating to Hearing
500.210 Written notice of determination required.
500.211 Contents of notice.
500.212 Request for hearing.
Procedures Relating to Substituted Service
500.215 Change of address.
500.216 Substituted service.
500.217 Responsibility of Secretary for service.
Rules of Practice
500.219 General.
500.220 Service of determinations and computation of time.
500.221 Commencement of proceeding.
500.222 Designation of record.
500.223 Caption of proceeding.
Referral for Hearing
500.224 Referral to Administrative Law Judge.
500.225 Notice of docketing.
500.226 Service upon attorneys for the Department of Labor--number of
copies.
Procedures Before Administrative Law Judge
500.231 Appearances; representation of the Department of Labor.
500.232 Consent findings and order.
Post-Hearing Procedures
500.262 Decision and order of Administrative Law Judge.
Modification or Vacation of Order of Administrative Law Judge
500.263 Authority of the Secretary.
500.264 Procedures for initiating review.
500.265 Implementation by the Administrative Review Board.
500.266 Responsibility of the Office of Administrative Law Judges.
500.267 Filing and Service.
500.268 Final decision of the Secretary.
500.269 Stay pending decision of the Secretary.
[[Page 11]]
Record
500.270 Retention of official record.
500.271 Certification of official record.
Authority: Pub. L. 97-470, 96 Stat. 2583 (29 U.S.C. 1801-1872);
Secretary's Order No. 01-2014 (Dec. 19, 2014), 79 FR 77527 (Dec. 24,
2014); 28 U.S.C. 2461 Note (Federal Civil Penalties Inflation Adjustment
Act of 1990); and Pub. L. 114-74, 129 Stat 584.
Source: 48 FR 36741, Aug. 12, 1983, unless otherwise noted.
Subpart A_General Provisions
Sec. 500.0 Introduction.
(a) The Migrant and Seasonal Agricultural Worker Protection Act
(MSPA), hereinafter referred to as MSPA or the Act, repeals and replaces
the Farm Labor Contractor Registration Act of 1963, as amended,
hereinafter referred to as FLCRA or the Farm Labor Contractor
Registration Act. Prior judgments and final orders obtained under FLCRA
continue in effect as stated in Sec. 500.4.
(b) These regulations include provisions necessitated by the
Immigration Reform and Control Act's (IRCA) amendment to the Immigration
and Nationality Act (INA). IRCA amended MSPA to remove section 106
thereof prohibiting the employment of illegal aliens. Matters concerning
certificate actions or the assessment of civil money penalties, for a
violation of section 106 of MSPA which occurred prior to June 1, 1987,
continue through final administrative determination as stated in Sec.
500.147.
[48 FR 36741, Aug. 12, 1983, as amended at 54 FR 13328, Mar. 31, 1989]
Sec. 500.1 Purpose and scope.
(a) Congress stated, in enacting the Migrant and Seasonal
Agricultural Worker Protection Act that ``[I]t is the purpose of this
Act to remove the restraints on commerce caused by activities
detrimental to migrant and seasonal agricultural workers; to require
farm labor contractors to register under this Act; and to assure
necessary protections for migrant and seasonal agricultural workers,
agricultural associations, and agricultural employers.'' It authorized
the Secretary to issue such rules and regulations as are necessary to
carry out the Act consistent with the requirements of chapter 5 of title
5, United States Code.
(b) These regulations implement this purpose and policy. The
regulations contained in this part are issued in accordance with section
511 of the Act and establish the rules and regulations necessary to
carry out the Act.
(c) Any farm labor contractor, as defined in the Act, is required to
obtain a Certificate of Registration issued pursuant to the Act from the
Department of Labor or from a State agency authorized to issue such
certificates on behalf of the Department of Labor. Such a farm labor
contractor must ensure that any individual whom he employs to perform
any farm labor contracting activities also obtains a Certificate of
Registration. The farm labor contractor is responsible, as well, for any
violation of the Act or these regulations by any such employee whether
or not the employee obtains a certificate. In addition to registering,
farm labor contractors must comply with all other applicable provisions
of the Act when they recruit, solicit, hire, employ, furnish or
transport or, in the case of migrant agricultural workers, provide
housing.
(d) Agricultural employers and agricultural associations which are
subject to the Act must comply with all of the worker protections which
are applicable under the Act to migrant or seasonal agricultural workers
whom they recruit, solicit, hire, employ, furnish, or transport or, in
the case of migrant agricultural workers, provide housing. The
obligations will vary, depending on the types of activities affecting
migrant or seasonal agricultural workers. Agricultural employers and
agricultural associations and their employees need not obtain
Certificates of Registration in order to engage in these activities,
even if the workers they obtain are utilized by other persons or on the
premises of another.
(e) The Act empowers the Secretary of Labor to enforce the Act,
conduct investigations, issue subpenas and, in the case of designated
violations of the Act, impose sanctions. As provided in the Act, the
Secretary is empowered, among other things, to impose an assessment and
to collect a civil money
[[Page 12]]
penalty of not more than $2,951 for each violation, to seek a temporary
or permanent restraining order in a U.S. District Court, and to seek the
imposition of criminal penalties on persons who willfully and knowingly
violate the Act or any regulation under the Act. In accordance with the
Act and with these regulations, the Secretary may refuse to issue or to
renew, or may suspend or revoke a certificate of registration issued to
a farm labor contractor or to a person who engages in farm labor
contracting as an employee of a farm labor contractor.
(f) The facilities and services of the U.S. Employment Service,
including State agencies, authorized by the Wagner-Peyser Act may be
denied to any person found by a final determination by an appropriate
enforcement agency to have violated any employment-related laws
including MSPA when notification of this final determination has been
provided to the Job Service by that enforcement agency. See 20 CFR
658.501(a)(4). The facilities and services of the U.S. Employment
Service shall be restored immediately upon compliance with 20 CFR
658.502(a)(4).
(g) Subparts A through E set forth the substantive regulations
relating to farm labor contractors, agricultural employers and
agricultural associations. These subparts cover the applicability of the
Act, registration requirements applicable to farm labor contractors, the
obligations of persons who hold Certificates of Registration, the worker
protections which must be complied with by all who are subject to the
Act, and the enforcement authority of the Secretary.
(h) Subpart F sets forth the rules of practice for administrative
hearings relating to actions involving Certificates of Registration. It
also outlines the procedure to be followed for filing a challenge to a
proposed administrative action relating to violations and summarizes the
methods provided for collection and recovery of a civil money penalty.
(i)(1) The Act requires that farm labor contractors obtain a
certificate of registration from the Department of Labor prior to
engaging in farm labor contracting activities. The Act also requires
registration by individuals who will perform farm labor contracting
activities for a farm labor contractor. Form WH-510 and WH-512 are the
applications used to obtain Farm Labor Contractor and Farm Labor
Contractor Employee Certificates of Registration. These forms have been
approved by the Office of Management and Budget (OMB) under control
numbers 1215-0038 (WH-510) and 1215-0037 (WH-512). Forms WH-514 and WH-
514a are used when applying for transportation authorization to furnish
proof of compliance with vehicle safety requirements. These forms have
been jointly cleared by OMB under control number 1215-0036.
(2) The Act further requires disclosure to migrant and seasonal
agricultural workers regarding wages, hours and other working conditions
and housing when provided to migrant workers. The Department of Labor
has developed optional forms for use in making the required disclosure.
OMB has approved the following: Worker Information (WH-516) 1215-0145
and Housing Terms and Conditions (WH-521) 1215-0146.
(3) The Act also requires that farm labor contractors, agricultural
employers and agricultural associations make, keep, preserve and
disclose certain payroll records. Forms WH-501 and WH-501a (Spanish
version) are provided to assist in carrying out this requirement. In
addition, farm labor contractors who are applying for housing
authorization must submit information which identifies the housing to be
used along with proof of compliance with housing safety and health
requirements. There has been no form developed for this purpose. The Act
further requires disclosure by the insurance industry of certain
information pertaining to cancellation of vehicle liability insurance
policies. The requirements concerning recordkeeping, housing and
insurance have been cleared by OMB under control number 1215-0148.
(4) The Act provides that no farm labor contractor shall knowingly
employ or utilize the services of aliens not lawfully admitted for
permanent residence or who have not been authorized by the Attorney
General to accept employment. Form WH-509 is an optional form which may
be used to self-certify that the applicant is a citizen of the
[[Page 13]]
U.S. This form has been cleared by OMB under control number 1215-0091.
(See Sec. 500.59(a)(11)).
[48 FR 36741, Aug. 12, 1983; 48 FR 38380, Aug. 23, 1983, as amended at
81 FR 43450, July 1, 2016; 82 FR 5381, Jan. 18, 2017; 83 FR 12, Jan. 2,
2018; 84 FR 218, Jan. 23, 2019; 85 FR 2297, Jan. 15, 2020; 86 FR 2968,
Jan. 14, 2021; 87 FR 2334, Jan. 14, 2022; 88 FR 2216, Jan. 13, 2023]
Sec. 500.2 Compliance with State laws and regulations.
The Act and these regulations are intended to supplement State law;
compliance with the Act or these regulations shall not excuse any
individual from compliance with appropriate State law or regulation.
Sec. 500.3 Effective date of the Act; transition period; repeal of the
Farm Labor Contractor Registration Act.
(a) The provisions of the Migrant and Seasonal Agricultural Worker
Protection Act are effective on April 14, 1983, and are codified in 29
U.S.C. 1801 et seq.
(b) The Migrant and Seasonal Agricultural Worker Protection Act
repeals the Farm Labor Contractor Registration Act of 1963, as amended,
(7 U.S.C. 2041, et seq.), effective April 14, 1983.
(c) Violations of the Farm Labor Contractor Registration Act
occurring prior to April 14, 1983, may be pursued by the Department of
Labor after that date.
Sec. 500.4 Effect of prior judgments and final orders obtained under
the Farm Labor Contractor Registration Act.
The Secretary may refuse to issue or to renew, or may suspend or
revoke, a Certificate of Registration under the Act, if the applicant or
holder has failed to pay any court judgment obtained by the Secretary or
any other person under the Farm Labor Contractor Registration Act, or
has failed to comply with any final order issued by the Secretary under
the Farm Labor Contractor Registration Act. The Secretary may deny a
Certificate of Registration under the Act to any farm labor contractor
who has a judgment outstanding against him, or is subject to a final
order assessing a civil money penalty which has not been paid.
Sec. 500.5 Filing of applications, notices and documents.
Unless otherwise prescribed herein, all applications, notices and
other documents required or permitted to be filed by these regulations
shall be filed in accordance with the provisions of subpart F of the
regulations.
Sec. 500.6 Accuracy of information, statements and data.
Information, statements and data submitted in compliance with
provisions of the Act or these regulations are subject to title 18,
section 1001, of the United States Code, which provides:
Section 1001. Statements or entries generally.
Whoever, in any matter within the jurisdiction of any department or
agency of the United States knowingly and willfully falsifies, conceals
or covers up by any trick, scheme, or device a material fact, or makes
any false, fictitious or fraudulent statements or representations, or
makes or uses any false writing or document knowing the same to contain
any false, fictitious or fraudulent statement or entry, shall be fined
not more than $10,000 or imprisoned not more than five years, or both.
Sec. 500.7 Investigation authority of the Secretary.
(a) The Secretary, either pursuant to a complaint or otherwise,
shall, as may be appropriate, investigate and, in connection therewith,
enter and inspect such places (including housing and vehicles) and such
records (and make transcriptions thereof), question such persons and
gather such information as he deems necessary to determine compliance
with the Act, or these regulations.
(b) The Secretary may issue subpenas requiring the attendance and
testimony of witnesses or the production of any evidence in connection
with such investigations. The Secretary may administer oaths, examine
witnesses, and receive evidence. For the purpose of any hearing or
investigation provided for in the Act, the Authority contained in
sections 9 and 10 of the Federal Trade Commission Act (15 U.S.C. 49,
50), relating to the attendance of witnesses and the production of
books, papers, and documents, shall be available to the Secretary. The
Secretary shall
[[Page 14]]
conduct investigations in a manner which protects the confidentiality of
any complainant or other party who provides information to the Secretary
in good faith.
(c) Any person may report a violation of the Act or these
regulations to the Secretary by advising any local office of the
Employment Service of the various States, or any office of the Wage and
Hour Division, U.S. Department of Labor, or any other authorized
representative of the Administrator. The office or person receiving such
a report shall refer it to the appropriate office of the Wage and Hour
Division, for the region or area in which the reported violation is
alleged to have occurred.
(d) In case of disobedience to a subpena, the Secretary may invoke
the aid of a United States District Court which is authorized to issue
an order requiring the person to obey such subpena.
[48 FR 36741, Aug. 12, 1983, as amended at 82 FR 2226, Jan. 9, 2017]
Sec. 500.8 Prohibition on interference with Department of Labor
officials.
It is a violation of section 512(c) of the Act for any person to
unlawfully resist, oppose, impede, intimidate, or interfere with any
official of the Department of Labor assigned to perform an
investigation, inspection, or law enforcement function pursuant to the
Act during the performance of such
duties. (Other Federal statutes which prohibit persons from interfering
with a Federal officer in the course of official duties are found at 18
U.S.C. 111 and 18 U.S.C. 1114.)
Sec. 500.9 Discrimination prohibited.
(a) It is a violation of the Act for any person to intimidate,
threaten, restrain, coerce, blacklist, discharge, or in any manner
discriminate against any migrant or seasonal agricultural worker because
such worker has, with just cause:
(1) Filed a complaint with reference to the Act with the Secretary
of Labor; or
(2) Instituted or caused to be instituted any proceeding under or
related to the Act; or
(3) Testified or is about to testify in any proceeding under or
related to the Act; or
(4) Exercised or asserted on behalf of himself or others any right
or protection afforded by the Act.
(b) A migrant or seasonal agricultural worker who believes, with
just cause, that he has been discriminated against by any person in
violation of this section may, no later than 180 days after such
violation occurs, file a complaint with the Secretary alleging such
discrimination.
Sec. 500.10 Waiver of rights prohibited.
Any agreement by an employee purporting to waive or modify any
rights inuring to said person under the Act or these regulations shall
be void as contrary to public policy, except that a waiver or
modification of rights or obligations hereunder in favor of the
Secretary shall be valid for purposes of enforcement of the provisions
of the Act or these regulations. This does not prevent agreements to
settle private litigation.
Sec. 500.20 Definitions.
For purposes of this part:
(a) Administrator means the Administrator of the Wage and Hour
Division, United States Department of Labor, and such authorized
representatives as may be designated by the Administrator to perform any
of the functions of the Administrator under this part.
(b) Administrative Law Judge means a person appointed as provided in
title 5 U.S.C. and qualified to preside at hearings under 5 U.S.C. 557.
Chief Administrative Law Judge means the Chief Administrative Law Judge,
United States Department of Labor.
(c) Agricultural association means any nonprofit or cooperative
association of farmers, growers, or ranchers, incorporated or qualified
under applicable State law, which recruits, solicits, hires, employs,
furnishes, or transports any migrant or seasonal agricultural worker.
(d) Agricultural employer means any person who owns or operates a
farm, ranch, processing establishment, cannery, gin, packing shed or
nursery, or who produces or conditions seed, and who either recruits,
solicits, hires, employs, furnishes, or transports any migrant or
seasonal agricultural worker.
[[Page 15]]
Produces seed means the planting, cultivation, growing and harvesting of
seeds of agricultural or horticultural commodities. Conditions seed
means the in-plant work done after seed production including the drying
and aerating of seed.
(e) Agricultural employment means employment in any service or
activity included within the provisions of section 3(f) of the Fair
Labor Standards Act of 1938 (29 U.S.C. 203(f)), or section 3121(g) of
the Internal Revenue Code of 1954 (26 U.S.C. 3121(g)) and the handling,
planting, drying, packing, packaging, processing, freezing, or grading
prior to delivery for storage of any agricultural or horticultural
commodity in its unmanufactured state.
(f) Convicted means that a final judgment of guilty has been
rendered by a court of competent jurisdiction from which no opportunity
for appeal remains.
(g) Day-haul operation means the assembly of workers at a pick-up
point waiting to be hired and employed, transportation of such workers
to agricultural employment, and the return of such workers to a drop-off
point on the same day. This term does not include transportation
provided by an employer for individuals who are already employees at the
time they are picked up nor does it include carpooling arrangements by
such employees which are not specifically directed or requested by the
employer, farm labor contractor or agent thereof.
(h)(1) The term employ has the meaning given such term under section
3(g) of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(g)) for the
purposes of implementing the requirements of that Act. As so defined,
employ includes to suffer or permit to work.
(2) The term employer is given its meaning as found in the Fair
Labor Standards Act. Employer under section 3(d) of that Act includes
any person acting directly or indirectly in the interest of an employer
in relation to an employee.
(3) The term employee is also given its meaning as found in the Fair
Labor Standards Act. Employee under section 3(e) of that Act means any
individual employed by an employer.
(4) The definition of the term employ may include consideration of
whether or not an independent contractor or employment relationship
exists under the Fair Labor Standards Act. Under MSPA, questions will
arise whether or not a farm labor contractor engaged by an agricultural
employer/association is a bona fide independent contractor or an
employee. Questions also arise whether or not the worker is a bona fide
independent contractor or an employee of the farm labor contractor and/
or the agricultural employer/association. These questions should be
resolved in accordance with the factors set out below and the principles
articulated by the federal courts in Rutherford Food Corp. v. McComb,
331 U.S. 722 (1947), Real v. Driscoll Strawberry Associates, Inc., 603
F.2d 748 (9th Cir. 1979), Sec'y of Labor, U.S. Dept. of Labor v.
Lauritzen, 835 F.2d 1529 (7th Cir. 1987), cert. denied, 488 U.S. 898
(1988); Beliz v. McLeod, 765 F.2d 1317 (5th Cir. 1985), and Castillo v.
Givens, 704 F.2d 181 (5th Cir.), cert. denied, 464 U.S. 850 (1983). If
it is determined that the farm labor contractor is an employee of the
agricultural employer/association, the agricultural workers in the farm
labor contractor's crew who perform work for the agricultural employer/
association are deemed to be employees of the agricultural employer/
association and an inquiry into joint employment is not necessary or
appropriate. In determining if the farm labor contractor or worker is an
employee or an independent contractor, the ultimate question is the
economic reality of the relationship--whether there is economic
dependence upon the agricultural employer/association or farm labor
contractor, as appropriate. Lauritzen at 1538; Beliz at 1329; Castillo
at 192; Real at 756. This determination is based upon an evaluation of
all of the circumstances, including the following:
(i) The nature and degree of the putative employer's control as to
the manner in which the work is performed;
(ii) The putative employee's opportunity for profit or loss
depending upon his/her managerial skill;
(iii) The putative employee's investment in equipment or materials
required for the task, or the putative employee's employment of other
workers;
[[Page 16]]
(iv) Whether the services rendered by the putative employee require
special skill;
(v) The degree of permanency and duration of the working
relationship;
(vi) The extent to which the services rendered by the putative
employee are an integral part of the putative employer's business.
(5) The definition of the term employ includes the joint employment
principles applicable under the Fair Labor Standards Act. The term joint
employment means a condition in which a single individual stands in the
relation of an employee to two or more persons at the same time. A
determination of whether the employment is to be considered joint
employment depends upon all the facts in the particular case. If the
facts establish that two or more persons are completely disassociated
with respect to the employment of a particular employee, a joint
employment situation does not exist. When the putative employers share
responsibility for activities set out in the following factors or in
other relevant facts, this is an indication that the putative employers
are not completely disassociated with respect to the employment and that
the agricultural worker may be economically dependent on both persons:
(i) If it is determined that a farm labor contractor is an
independent contractor, it still must be determined whether or not the
employees of the farm labor contractor are also jointly employed by the
agricultural employer/association. Joint employment under the Fair Labor
Standards Act is joint employment under the MSPA. Such joint employment
relationships, which are common in agriculture, have been addressed both
in the legislative history and by the courts.
(ii) The legislative history of the Act (H. Rep. No. 97-885, 97th
Cong., 2d Sess., 1982) states that the legislative purpose in enacting
MSPA was ``to reverse the historical pattern of abuse and exploitation
of migrant and seasonal farm workers * * *,'' which would only be
accomplished by ``advanc[ing] * * * a completely new approach'' (Rept.
at 3). Congress's incorporation of the FLSA term employ was undertaken
with the deliberate intent of adopting the FLSA joint employer doctrine
as the ``central foundation'' of MSPA and ``the best means by which to
insure that the purposes of this MSPA would be fulfilled'' (Rept. at 6).
Further, Congress intended that the joint employer test under MSPA be
the formulation as set forth in Hodgson v. Griffin & Brand of McAllen,
Inc. 471 F.2d 235 (5th Cir.), cert. denied, 414 U.S. 819 (1973) (Rept.
at 7). In endorsing Griffin & Brand, Congress stated that this
formulation should be controlling in situations ``where an agricultural
employer * * * asserts that the agricultural workers in question are the
sole employees of an independent contractor/crewleader,'' and that the
``decision makes clear that even if a farm labor contractor is found to
be a bona fide independent contractor, * * * this status does not as a
matter of law negate the possibility that an agricultural employer may
be a joint employer * * * of the harvest workers'' together with the
farm labor contractor. Further, regarding the joint employer doctrine
and the Griffin & Brand formulation, Congress stated that ``the absence
of evidence on any of the criteria listed does not preclude a finding
that an agricultural association or agricultural employer was a joint
employer along with the crewleader'', and that ``it is expected that the
special aspects of agricultural employment be kept in mind'' when
applying the tests and criteria set forth in the case law and
legislative history (Rept. at 8).
(iii) In determining whether or not an employment relationship
exists between the agricultural employer/association and the
agricultural worker, the ultimate question to be determined is the
economic reality--whether the worker is so economically dependent upon
the agricultural employer/association as to be considered its employee.
(iv) The factors set forth in paragraphs (h)(5)(iv)(A) through (G)
of this section are analytical tools to be used in determining the
ultimate question of economic dependency. The consideration of each
factor, as well as the determination of the ultimate question of
economic dependency, is a qualitative rather than quantitative analysis.
The factors are not to be applied as a
[[Page 17]]
checklist. No one factor will be dispositive of the ultimate question;
nor must a majority or particular combination of factors be found for an
employment relationship to exist. The analysis as to the existence of an
employment relationship is not a strict liability or per se
determination under which any agricultural employer/association would be
found to be an employer merely by retaining or benefiting from the
services of a farm labor contractor. The factors set forth in paragraphs
(h)(5)(iv)(A) through (G) of this section are illustrative only and are
not intended to be exhaustive; other factors may be significant and, if
so, should be considered, depending upon the specific circumstances of
the relationship among the parties. How the factors are weighed depends
upon all of the facts and circumstances. Among the factors to be
considered in determining whether or not an employment relationship
exists are:
(A) Whether the agricultural employer/association has the power,
either alone or through control of the farm labor contractor to direct,
control, or supervise the worker(s) or the work performed (such control
may be either direct or indirect, taking into account the nature of the
work performed and a reasonable degree of contract performance oversight
and coordination with third parties);
(B) Whether the agricultural employer/association has the power,
either alone or in addition to another employer, directly or indirectly,
to hire or fire, modify the employment conditions, or determine the pay
rates or the methods of wage payment for the worker(s);
(C) The degree of permanency and duration of the relationship of the
parties, in the context of the agricultural activity at issue;
(D) The extent to which the services rendered by the worker(s) are
repetitive, rote tasks requiring skills which are acquired with
relatively little training;
(E) Whether the activities performed by the worker(s) are an
integral part of the overall business operation of the agricultural
employer/association;
(F) Whether the work is performed on the agricultural employer/
association's premises, rather than on premises owned or controlled by
another business entity; and
(G) Whether the agricultural employer/association undertakes
responsibilities in relation to the worker(s) which are commonly
performed by employers, such as preparing and/or making payroll records,
preparing and/or issuing pay checks, paying FICA taxes, providing
workers' compensation insurance, providing field sanitation facilities,
housing or transportation, or providing tools and equipment or materials
required for the job (taking into account the amount of the investment).
(i) Farm labor contracting activity means recruiting, soliciting,
hiring, employing, furnishing, or transporting any migrant or seasonal
agricultural worker.
(j) Farm labor contractor means any person--other than an
agricultural employer, an agricultural association, or an employee of an
agricultural employer or agricultural association--who, for any money or
other valuable consideration paid or promised to be paid, performs any
farm labor contracting activity.
(k) Farm Labor Contractor Certificate of Registration or Certificate
of Registration means the certificate issued by the Administrator which
permits a farm labor contractor to engage in farm labor contracting
activities.
(l) Farm labor contractor employee who is required to obtain a
Certificate of Registration as an employee of a farm labor contractor
means a person who performs farm labor contracting activity solely on
behalf of a farm labor contractor holding a valid Certificate of
Registration and is not an independent farm labor contractor who would
be required to register under the Act in his own right.
(m) Farm Labor Contractor Employee Certificate or Farm Labor
Contractor Employee Certificate of Registration or Employee Certificate
means the certificate issued by the Administrator to an employee of a
farm labor contractor authorizing the performance of farm labor
contracting activities solely on behalf of such farm labor contractor
and not as an independent farm labor
[[Page 18]]
contractor who would be required to register in his own right.
(n) Illegal alien means any person who is not lawfully admitted for
permanent residence in the United States or who has not been authorized
by the Attorney General to accept employment in the United States.
(o) Immediate family includes only:
(1) A spouse;
(2) Children, stepchildren, and foster children;
(3) Parents, stepparents, and foster parents; and
(4) Brothers and sisters.
(p) Migrant agricultural worker means an individual who is employed
in agricultural employment of a seasonal or other temporary nature, and
who is required to be absent overnight from his permanent place of
residence.
(1) Migrant agricultural worker does not include:
(i) Any immediate family member of an agricultural employer or a
farm labor contractor; or
(ii) Any temporary nonimmigrant alien who is authorized to work in
agricultural employment in the United States under sections
101(a)(15)(H)(ii)(a) and 214(c) of the Immigration and Nationality Act.
(2) Permanent place of residence, with respect to an individual,
means a domicile or permanent home. Permanent place of residence does
not include seasonal or temporary housing such as a labor camp. The term
permanent place of residence for any nonimmigrant alien is that
individual's country of origin.
(q) Person means any individual, partnership, association, joint
stock company, trust, cooperative, or corporation.
(r) Seasonal agricultural worker means an individual who is employed
in agricultural employment of a seasonal or other temporary nature and
is not required to be absent overnight from his permanent place of
residence:
(1) When employed on a farm or ranch performing field work related
to planting, cultivating, or harvesting operations; or
(2) When employed in canning, packing, ginning, seed conditioning or
related research, or processing operations, and transported, or caused
to be transported, to or from the place of employment by means of a day-
haul operation.
(i) Seasonal agricultural worker does not include:
(A) Any migrant agricultural worker;
(B) Any immediate family member of an agricultural employer or a
farm labor contractor; or
(C) Any temporary nonimmigrant alien who is authorized to work in
agricultural employment in the United States under sections
101(a)(15)(H)(ii)(a) and 214(c) of the Immigration and Nationality Act.
(ii) Field work related to planting, cultivating or harvesting
operations includes all farming operations on a farm or ranch which are
normally required to plant, harvest or produce agricultural or
horticultural commodities, including the production of a commodity which
normally occurs in the fields of a farm or ranch as opposed to those
activities which generally occur in a processing plant or packing shed.
A worker engaged in the placing of commodities in a container in the
field and on-field loading of trucks and similar transports is included.
Nursery, mushroom and similar workers engaged in activities in
connection with planting, cultivating or harvesting operations are
intended to be covered. An individual operating a machine, such as a
picker, or tractor is not included when performing such activity.
(s) On a seasonal or other temporary basis means:
(1) Labor is performed on a seasonal basis where, ordinarily, the
employment pertains to or is of the kind exclusively performed at
certain seasons or periods of the year and which, from its nature, may
not be continuous or carried on throughout the year. A worker who moves
from one seasonal activity to another, while employed in agriculture or
performing agricultural labor, is employed on a seasonal basis even
though he may continue to be employed during a major portion of the
year.
(2) A worker is employed on other temporary basis where he is
employed for a limited time only or his performance is contemplated for
a particular piece of work, usually of short duration. Generally,
employment, which is
[[Page 19]]
contemplated to continue indefinitely, is not temporary.
(3) On a seasonal or other temporary basis does not include the
employment of any foreman or other supervisory employee who is employed
by a specific agricultural employer or agricultural association
essentially on a year round basis.
(4) On a seasonal or other temporary basis does not include the
employment of any worker who is living at his permanent place of
residence, when that worker is employed by a specific agricultural
employer or agricultural association on essentially a year round basis
to perform a variety of tasks for his employer and is not primarily
employed to do field work.
(t) Secretary means the Secretary of Labor or the Secretary's
authorized representative.
(u)(1) Solicitor of Labor means the Solicitor, United States
Department of Labor, and includes attorneys designated by the Solicitor
to perform functions of the Solicitor under these regulations.
(2) Associate Solicitor for Fair Labor Standards means the Associate
Solicitor, who, among other duties, is in charge of litigation for the
Migrant and Seasonal Agricultural Worker Protection Act (MSPA), Office
of the Solicitor, U.S. Department of Labor, Washington, DC 20210.
(3) Regional Solicitors means the attorneys in charge of the various
regional offices of the Office of the Solicitor.
(v) State means any of the States of the United States, the District
of Columbia, the Virgin Islands, the Commonwealth of Puerto Rico, and
Guam. State agency means a State agency vested with all powers necessary
to cooperate with the U.S.
Department of Labor for purposes of entering into agreements to carry
out the Act as provided in section 513 thereof.
(w) Temporary nonimmigrant alien means a person who has a residence
in a foreign country which he does not intend to abandon and who comes
temporarily to the United States, with approval of the Attorney General,
to perform temporary service or labor.
(x) The Wagner-Peyser Act is the Act of June 6, 1933 (48 Stat. 113;
codified in 29 U.S.C. 49 et seq.), providing, inter alia, for the
establishment of the U.S. Employment Service. Employment Service of the
various States means a State agency vested with all powers necessary to
cooperate with the U.S. Employment Service under the Wagner-Peyser Act.
(y) The Immigration and Nationality Act (INA) as amended by the
Immigration Reform and Control Act of 1986 (IRCA) to effectively control
unauthorized immigration to the United States and for other purposes, is
set out in 8 U.S.C. 1101 et seq.
[48 FR 36741, Aug. 12, 1983; 48 FR 38374, Aug. 23, 1983, as amended at
54 FR 13329, Mar. 31, 1989; 56 FR 54708, Oct. 22, 1991; 62 FR 11747,
Mar. 12, 1997; 82 FR 2227, Jan. 9, 2017; 86 FR 1786, Jan. 11, 2021]
Applicability of the Act: Exemptions
Sec. 500.30 Persons not subject to the Act.
(a) Family business exemption. Any individual who engages in a farm
labor contracting activity on behalf of a farm, processing
establishment, seed conditioning establishment, cannery, gin, packing
shed, or nursery, which is owned or operated exclusively by such
individual or an immediate family member of such individual, if such
activities are performed only for such operation and exclusively by such
individual or an immediate family member, but without regard to whether
such individual has incorporated or otherwise organized for business
purposes.
(b) Small business exemption. Any person, other than a farm labor
contractor, for whom the man-days exemption for agricultural labor
provided under section 13(a)(6)(A) of the Fair Labor Standards Act of
1938 (29 U.S.C. 213(a)(6)(A)) is applicable. That exemption applies to
an agricultural employer who did not, during any calendar quarter of the
preceding calendar year, use more man-days of agricultural labor than
the limit specified under that statute.
(1) Currently the limit for exemption is 500 man-days.
[[Page 20]]
(2) A man-day means any day during which an employee performs
agricultural labor for not less than one (1) hour. Agricultural labor
performed by an employer's parent, spouse, child, or other member of his
immediate family, i.e., step-children, foster children, step-parents and
foster parents, brothers, and sisters is not counted as man-days.
(3) The man-days of agricultural labor rendered in a joint
employment relationship are counted toward the man-days of such labor of
each employer for purposes of the man-day test of this exemption.
(c) Common carriers. Any common carrier which would be a farm labor
contractor solely because the carrier is engaged in the farm labor
contracting activity of transporting any migrant or seasonal
agricultural worker. A ``common carrier'' by motor vehicle is one which
holds itself out to the general public to engage in transportation of
passengers for hire, whether over regular or irregular routes, and which
holds a valid certificate of authorization for such purposes from an
appropriate local, State or Federal agency.
(d) Labor organizations. Any labor organization, as defined in
section 2(5) of the Labor Management Relations Act (29 U.S.C. 152(5))
(without regard to the exclusion of agricultural employees in that Act)
or as defined under applicable State labor relations law.
(e) Nonprofit charitable organizations. Any nonprofit charitable
organization or public or private nonprofit educational institution.
(f) Local short-term contracting activity. Any person who engages in
any farm labor contracting activity solely within a twenty-five mile
intrastate radius of such person's permanent place of residence and for
not more than thirteen weeks per year.
(1) Twenty-five mile intrastate radius as used in section 4(a)(3)(D)
of the Act means that engagement in a farm labor contracting activity
may not go beyond a twenty-five mile intrastate geographical radius.
Once this limit is transcended, the exemption no longer applies and the
person becomes subject to the requirements of the Act. If, for example,
a person or his employee solicits workers from a distance greater than
twenty-five miles from his permanent residence or from across a State
line, then the person has engaged in a named activity outside of the
permitted scope of the exemption, and is subject to the requirements of
the Act. A person who uses lines of communication (such as U.S. Mail,
telephone, or advertising) to recruit, solicit, hire, or furnish workers
over a distance greater than twenty-five miles from his permanent
residence or from across a State line for agricultural employment is
also engaged in a named activity beyond the specified limit of the
exemption and is subject to the Act. In the case of a corporation its
permanent place of residence for these purposes shall be a single
designated location.
(2) For not more than thirteen weeks per year as used in section
4(a)(3)(D) of the Act means that farm labor contracting activities may
not be engaged in for more than thirteen weeks in a year. This does not
mean, however,
that persons who engage in intrastate and short-range farm labor
contracting activities are exempt for the first thirteen weeks of their
farm labor contracting activities each year. The number of weeks of
contracting activity during the prior year is also a factor. When the
limit of weeks for the exemption is exceeded in a calendar year, the
person is subject immediately to the Act and is also presumed subject to
the Act in the next calendar year, unless it can be shown that the tests
of section 4(a)(3)(D) are met.
(g) Custom combine. Any custom combine, hay harvesting, or sheep
shearing operation. Custom combine, hay harvesting, and sheep shearing
operation means the agricultural services and activities involved in
combining grain, harvesting hay and shearing sheep which are provided to
a farmer on a contract basis by a person who provides the necessary
equipment and labor and who specializes on providing such services and
activities.
(h) Custom poultry operations. Any custom poultry harvesting,
breeding, debeaking, desexing, or health service operation, provided the
employees of the operation are not regularly required to be away from
their permanent place of residence other than during their normal
working hours.
[[Page 21]]
(i) Seed production exemption. (1) Any person whose principal
occupation or business is not agricultural employment, when supplying
full-time students or other individuals whose principal occupation is
not agricultural employment to detassel, rogue, or otherwise engage in
the production of seed and to engage in related and incidental
agricultural employment, unless such full-time students or other
individuals are required to be away from their permanent place of
residence overnight or there are individuals under eighteen years of age
who are providing transportation on behalf of such person.
(2) Any person to the extent he is supplied with students or other
individuals for agricultural employment in accordance with paragraph
(i)(1) of this section by a person who is exempt thereunder.
(j) Shade grown tobacco. (1) Any person whose principal occupation
or business is not agricultural employment, when supplying full-time
students or other individuals whose principal occupation is not
agricultural employment to string or harvest shade grown tobacco and to
engage in related and incidental agricultural employment, unless there
are individuals under eighteen years of age who are providing
transportation on behalf of such person.
(2) Any person to the extent he is supplied with students or other
individuals for agricultural employment is accordance with paragraph
(j)(1) of this section by a person who is exempt thereunder.
(k) Employees of exempt employers. Any employee of any person
described in paragraphs (c) through (j) of this section when performing
farm labor contracting activities within the scope of such exemptions
and exclusively for such person.
Subpart B_Registration of Farm Labor Contractors and Employees of Farm
Labor Contractors Engaged in Farm Labor Contracting Activities
Registration Requirements; General
Sec. 500.40 Registration in general.
Any person who desires to engage in any activity as a farm labor
contractor, as defined in the Act and these regulations, and is not
exempt, is required first to obtain a Certificate of Registration
authorizing each such activity. Any employee of a registered farm labor
contractor who performs farm labor contracting activities solely on
behalf of such contractor, and who is not an independent contractor,
must obtain a Farm Labor Contractor Employee Certificate of Registration
authorizing each such activity. The employee's certificate must show the
name of the farm labor contractor for whom the activities are to be
performed. The contractor whose name appears on the employee's
certificate must hold a valid Certificate of Registration covering the
entire period shown on the employee's certificate.
Sec. 500.41 Farm labor contractor is responsible for actions of his
farm labor contractor employee.
(a) A farm labor contractor is responsible for assuring that every
employee who is performing farm labor contracting activities on behalf
of such contractor has obtained either a Farm Labor Contractor Employee
Certificate of Registration or a Certificate of Registration as an
independent farm labor contractor, as required by the Act and these
regulations, prior to such employee's engagement in any activity
enumerated in section 3(6) of the Act. A farm labor contractor who
utilizes the services of another farm labor contractor who is not his
employee must also comply with the provisions of Sec. 500.71. The farm
labor contractor is responsible for any violations of the Act or these
regulations committed by his employee, whether or not the employee has
registered as required by the Act.
(b) Farm Labor Contractor Employee Certificate of Registration is
valid only
[[Page 22]]
during the period in which the holder is an employee of the registered
farm labor contractor named on the Farm Labor Contractor Employee
Certificate. If prior to the expiration of the Employee Certificate, the
holder through a change in employment, should become an employee of a
different registered farm labor contractor, a replacements Employee
Certificate which names the new employer may be obtained by submitting
to the regional office that issued the original employee certificate or
to any regional office of the Wage and Hour Division, a written
statement that includes the date of the change in employment status and
the name, the permanent place of residence and certificate registration
number of the new employer. Any such change should be reported
immediately.
[48 FR 36741, Aug. 12, 1983, as amended at 82 FR 2227, Jan. 9, 2017]
Sec. 500.42 Certificate of Registration to be carried and exhibited.
Each registered farm labor contractor and registered farm labor
contractor employee shall carry at all times while engaging in farm
labor contracting activities, a Certificate of Registration or a Farm
Labor Contractor Employee Certificate as appropriate and, upon request,
shall exhibit that certificate to representatives of the U.S. Department
of Labor and State Employment Service Agencies and to all persons with
whom he intends to deal as a farm labor contractor or farm labor
contractor employee.
Sec. 500.43 Effect of failure to produce certificate.
The facilities and the services authorized by the Wagner-Peyser Act
shall be denied to any farm labor contractor upon refusal or failure to
produce, when asked, a Certificate of Registration. Services shall be
provided upon presentation of a valid Certificate of Registration.
Applications and Renewal of Farm Labor Contractor and Farm Labor
Contractor Employee Certificates
Sec. 500.44 Form of application.
An application for issuance or renewal of a Farm Labor Contractor
Certificate of Registration or Farm Labor Contractor Employee
Certificate shall be made on forms designated by the Secretary.
Sec. 500.45 Contents of application.
The application shall set forth the information required thereon
which shall include the following:
(a) A declaration, subscribed and sworn to by the applicant, stating
the applicant's permanent place of residence, the farm labor contracting
activities for which the certificate is requested, and the address to
which official documents should be mailed;
(b) A statement identifying each vehicle to be used to transport any
migrant or seasonal agricultural worker and, if the vehicle is or will
be owned or controlled by the applicant, documentation showing that the
applicant for a Farm Labor Contractor Certificate of Registration is in
compliance with the requirements of section 401 of the Act with respect
to each such vehicle;
(c) A statement identifying each facility or real property to be
used to house any migrant agricultural worker and, if the facility or
real property is or will be owned or controlled by the applicant,
documentation showing that the applicant for a Farm Labor Contractor
Certificate of Registration is in compliance with section 203 of the Act
with respect to each such facility or real property;
(d) A set of fingerprints of the applicant on Form FD 258 as
prescribed by the U.S. Department of Justice;
(e) A declaration, subscribed and sworn to by the applicant,
consenting to the designation by a court of the Secretary as an agent
available to accept service of summons in any action against the
applicant, if the applicant has left the jurisdiction in which the
action is commenced or otherwise has become unavailable to accept
service; and
[[Page 23]]
(f) Such other relevant information as the Secretary may require.
Sec. 500.46 Filing an application.
Registration under the Act is required whether or not licensing or
registration is required under State law.
Sec. 500.47 Place for filing application.
Application forms may be filed in any State Employment Service
Office or in any office of the Wage and Hour Division, U.S. Department
of Labor.
Action on Application
Sec. 500.48 Issuance of certificate.
The Administrator or authorized representative shall:
(a) Review each application received and determine whether such
application is complete and properly executed;
(b) When appropriate, notify the applicant in writing of any
incompleteness or error in the application and return the application
for correction and completion;
(c) Determine, after appropriate investigation, whether the
applicant has complied with the requirements of the Act and these
regulations, and if appropriate, issue a Certificate of
Registration or a Farm Labor Contractor Employee Certificate of
Registration authorizing the performance of one or more activities
permitted under the Act;
(d) Authorize the activity of transporting a migrant or seasonal
agricultural worker, subject to the maximum number of workers authorized
to be transported under the vehicle liability policy and as indicated on
the face of the Certificate of Registration, only upon receipt of:
(1) A statement in the manner prescribed by the Secretary
identifying each vehicle to be used, or caused to be used, by the
applicant for the transportation of any migrant or seasonal agricultural
worker during the period for which registration is sought;
(2) Written proof that every such vehicle which is under the
applicant's ownership or control, is in compliance with the vehicle
safety requirements of the Act and these regulations; and
(3) Written proof that every such vehicle is in compliance with the
insurance requirements of the Act and these regulations;
(e) Authorize the activity of driving a vehicle to transport a
migrant or seasonal agricultural worker only upon receipt of (1) A
doctor's certificate on the prescribed form, with an initial application
for a Certificate of Registration or a Farm Labor Contractor Employee
Certificate, and, when applying for a renewal, a new completed doctor's
certificate if the previous doctor's certificate is more than three
years old; and (2) evidence of a valid and appropriate license, as
provided by State law, to operate the vehicle; and
(f) Authorize the activity of housing a migrant agricultural worker
only upon receipt of (1) A statement identifying each facility or real
property to be used for housing a migrant agricultural worker during the
period for which registration is sought; and (2) if the facility or real
property is or will be owned or controlled by the applicant, written
proof that the facility or real property complies with the applicable
Federal and State standards of health and safety. Such written proof may
be either a certification issued by a State or local health authority or
other appropriate agency, or a copy of a written request for the
inspection of a facility or real property made to the appropriate State
or local agency at least forty-five days prior to the date on which the
facility or real property is to be occupied by migrant agricultural
workers, dated and signed by the applicant or other person who owns or
controls the facility or real property. If housing authorization is
issued based on a written request for inspection and the housing
facility or real property is subsequently inspected and does not meet
the appropriate standards, the housing authorization is null and void.
Should the required written proof for housing authorization be
unavailable at the time of filing an application, the applicant must
attest in writing that the applicant will not house any migrant
agricultural worker in any facility or real property owned or controlled
by the applicant, until such applicant shall have submitted all
necessary written proof and obtained a Farm Labor Contractor Certificate
of Registration showing that housing in
[[Page 24]]
the facility or real property is authorized by the Secretary of Labor.
In such event, if otherwise eligible, the applicant will be issued a
Certificate of Registration without a housing authorization. This
certificate may be amended to include an authorization to house at such
time as the required proof is forthcoming.
[48 FR 36741, Aug. 12, 1983, as amended at 61 FR 24865, May 16, 1996]
Sec. 500.50 Duration of certificate.
(a) Initial certificates of farm labor contractors and farm labor
contractor employees. (1) An initial certificate issued under the Act
and these regulations shall expire twelve months from the date of
issuance unless earlier suspended or revoked.
(2) Certificates applied for during the period beginning April 14,
1983, and ending November 30, 1983, may be issued for a period of up to
twenty-four months for the purpose of an orderly transition to
registration under the Act.
(3) Certificates issued to employees of farm labor contractors shall
expire at the suspension, revocation or expiration of the farm labor
contractor's Certificate of Registration under which such employee was
authorized.
(b) Certificate renewal of farm labor contractors and farm labor
contractor employees. (1) A certificate issued under the Act and these
regulations may be temporarily extended by the filing of a properly
completed and signed application with the Secretary at least thirty days
prior to the expiration date. ``Filing'' may be accomplished by hand
delivery, certified mail, or regular mail.
(i) If the application for renewal is filed by regular mail or if it
is delivered in person by the applicant, it must be received by the
Department of Labor or an authorized representative of the Department of
Labor at least 30 days prior to the expiration date shown on the current
certificate.
(ii) If the application for renewal is filed by certified mail, it
must be mailed at least 30 days prior to the expiration date shown on
the current certificate.
Where timely application for renewal has been filed, the authority to
operate pursuant to a valid certificate under the Act and these
regulations shall continue until the renewal application has been
finally determined by the Secretary.
(2) A certificate issued under the Act and these regulations may be
renewed by the Secretary for additional twelve-month periods or for
periods in excess of twelve months but not in excess of twenty-four
months.
(3) Eligibility for renewals of certificates for more than twelve
months under the Act and these regulations shall be limited to those
farm labor contractors and farm labor contractor employees who have not
been cited during the preceding five years for a violation of the Act or
any regulation under the Act, or the Farm Labor Contractor Registration
Act or any regulation under such Act.
(c) Continuation of certain FLCRA certificates. (1) Certificates
issued under FLCRA, and in effect on April 14, 1983, that are valid for
the services performed under FLCRA, will be continued in effect and be
accepted as authorization to perform like services under the Act and
these regulations for the remainder of calendar year 1983. Such
certificates will be subject to the Act and these regulations with
respect to determinations to suspend, revoke or refuse renewal.
(2) Actions pending related to the suspension, revocation, or
refusal to issue or renew FLCRA certificates shall continue through to a
final determination. Any such certificate which is considered to be in
effect under title 29 CFR 40.21 pending a final determination, will be
considered valid under MSPA, provided application for a certificate
under MSPA is made no later than November 30, 1983.
[48 FR 36741, Aug. 12, 1983, as amended at 54 FR 13329, Mar. 31, 1989]
Sec. 500.51 Refusal to issue or to renew, or suspension or revocation
of certificate.
The Secretary may suspend or revoke or refuse to issue or to renew a
Certificate of Registration (including a Farm Labor Contractor Employee
Certificate) if the applicant or holder:
(a) Has knowingly made any misrepresentation in the application for
such certificate;
[[Page 25]]
(b) Is not the real party in interest in the application or
Certificate of Registration and the real party in interest is a person
who has been refused issuance or renewal of a certificate, has had a
certificate suspended or revoked, or does not qualify under this section
for a certificate;
(c) Has failed to comply with the Act or these regulations;
(d) Has failed to pay any court judgment obtained by the Secretary
or any other person under the Act or these regulations or under the Farm
Labor Contractor Registration Act of 1963 or any regulation under such
Act;
(e) Has failed to comply with any final order issued by the
Secretary as a result of a violation of the Act or these regulations or
a violation of the Farm Labor Contractor Registration Act of 1963 or any
regulation under such Act;
(f) Has been convicted within the preceding five years:
(1) Of any crime under State or Federal law relating to gambling, or
to the sale, distribution or possession of alcoholic beverages, in
connection with or incident to any farm labor contracting activities, or
(2) Of any felony under State or Federal law involving robbery,
bribery, extortion, embezzlement, grand larceny, burglary, arson,
violation of narcotics laws, murder, rape, assault with intent to kill,
assault which inflicts grievous bodily injury, prostitution, peonage, or
smuggling or harboring individuals who have entered the United States
illegally.
(g) Has been found to have violated paragraph (1) or (2) of section
274A(a) of the Immigration and Nationality Act (INA) by hiring,
recruiting, or referring for a fee, for employment in the United States,
(1) An alien knowing the alien is an unauthorized alien as defined in
section 274A(h)(3) of INA with respect to such employment, or (2) an
individual without complying with the requirements concerning
verification of the person's identity and employment authorization as
stated in section 274A(b) of INA.
[48 FR 36741, Aug. 12, 1983, as amended at 54 FR 13329, Mar. 31, 1989]
Sec. 500.52 Right to hearing.
Any applicant or holder who desires an administrative hearing on the
determination to refuse to issue or to renew, or to suspend or to
revoke, a Certificate of Registration or a Farm Labor Contractor
Employee Certificate of Registration, shall make a request in accordance
with Sec. 500.212, no later than thirty (30) days after service of the
notice referred to in Sec. 500.210.
Sec. 500.53 Nontransfer of certificate.
A Certificate of Registration may not be transferred or assigned.
Sec. 500.54 Change of address.
During the period for which the Certificate of Registration or
Employee Certificate is in effect, each farm labor contractor or farm
labor contractor employee shall provide to the Secretary, within thirty
(30) days, a notice of each change of permanent place of residence in
accordance with Sec. 500.215.
Sec. 500.55 Changes to or amendments of certificate authority.
(a) During the period for which the Certificate of Registration is
in effect, a farm labor contractor must apply to the Secretary to amend
the Certificate of Registration whenever he intends to:
(1) Engage in another farm labor contracting activity;
(2) Use, or cause to be used, another vehicle than that covered by
the certificate to transport any migrant or seasonal agricultural
worker; or
(3) Use, or cause to be used, another real property or facility to
house any migrant agricultural worker than that covered by the
certificate.
(b) Whenever another vehicle or housing facility or real property is
or will be owned, operated, or controlled by the farm labor contractor,
the farm labor contractor must submit the appropriate information to
obtain transportation, driving or housing authorization, as applicable,
as described in Sec. 500.48, within 10 days after the contractor
obtains or learns of the intended use of such vehicle or housing
facility or real property.
(c) Notwithstanding submission of the appropriate information, the
farm labor contractor must comply with all
[[Page 26]]
applicable motor safety, insurance, and housing safety and health
provisions of the Act and these regulations. With regard to housing, the
farm labor contractor must submit the appropriate housing documentation
as well as comply with the housing safety and health provisions of the
Act and these regulations, prior to occupancy by a migrant agricultural
worker.
Sec. 500.56 Replacement of Certificate of Registration or Farm Labor
Contractor Employee Certificate.
If a Certificate of Registration or a Farm Labor Contractor Employee
Certificate is lost or destroyed, a duplicate certificate may be
obtained by the submission to the regional office that issued it or to
any regional office of the Wage and Hour Division, of a written
statement explaining its loss or destruction, indicating where the
original application was filed and requesting that a duplicate be
issued.
[82 FR 2227, Jan. 9, 2017]
Additional Obligations of Farm Labor Contractors and Farm Labor
Contractor Employees
Sec. 500.60 Farm labor contractors' recruitment, contractual and
general obligations.
The Act imposes certain specific recruitment, contractual and
general obligations on farm labor contractors and farm labor contractor
employees. The contractor is responsible for any violations under the
Act committed by his employee. Each of the following obligations applies
to both farm labor contractors and farm labor contractor employees.
(a) Each farm labor contractor shall provide to any other farm labor
contractor and to any agricultural employer and agricultural association
to which such farm labor contractor has furnished any migrant or
seasonal agricultural worker, copies of all records for that place of
employment which such farm labor contractor is required to retain for
each worker furnished or supplied. The recipient of these records shall
keep them for a period of three years.
(b) Each farm labor contractor, without regard to any other
provisions of this Act, shall obtain at each place of employment and
make available for inspection to every worker he furnishes for
employment, a written statement of the conditions of such employment as
described in sections 201(b) and 301(b) of the Act and Sec. Sec. 500.75
and 500.76 of these regulations. As with the written disclosure
statements under Sec. Sec. 500.76 and 500.77, these statements must be
provided to the workers in English or, as necessary and reasonable, in
Spanish or another language common to migrant or seasonal agricultural
workers who are not fluent in English.
(c)(1) No farm labor contractor shall violate, without
justification, the terms of any written agreements made with an
agricultural employer or an agricultural association pertaining to any
contracting activity or worker protection under the Act. Normally,
``without justification'' would not include situations in which failure
to comply with the terms of any written agreements was directly
attributable to Acts of God, due to conditions beyond the control of the
person or to conditions which he could not reasonably foresee.
(2) Written agreements do not relieve a farm labor contractor of any
responsibility that such contractor would otherwise have under the Act
and these regulations.
(d) All payroll records made by the farm labor contractor must be
retained by him for a period of three years.
Sec. 500.61 Farm labor contractors must comply with all worker protections
and all other statutory provisions.
Every farm labor contractor must comply with all of the provisions
of titles I through V of the Act and all of the subparts of these
regulations, unless subject to a specific statutory exemption. In
addition to complying with all of the standards stated in subparts A and
B of these regulations, every farm labor contractor must comply with
each provision stated in subpart C and the motor vehicle safety and
insurance and housing standards stated in subpart D.
[[Page 27]]
Sec. 500.62 Obligations of a person holding a valid Farm Labor Contractor
Employee Certificate of Registration.
Any person holding a valid Farm Labor Contractor Employee
Certificate of Registration in accordance with the Act and these
regulations is required to comply with the Act and these regulations to
the same extent as if said person had been required to obtain a
Certificate of Registration in such person's own name as a farm labor
contractor.
Subpart C_Worker Protections
General
Sec. 500.70 Scope of worker protections.
(a) General. The Act provides protections for migrant and seasonal
agricultural workers irrespective of whether they are employed by a farm
labor contractor, an agricultural employer or an agricultural
association, or, in the case where there is joint responsibility, by
more than one of these persons. The Act's provisions include standards
relating to vehicle safety, housing safety and health, disclosure of
wages, hours and other conditions of employment, and recordkeeping. When
any person not otherwise exempt from the Act recruits, solicits, hires,
employs, furnishes or transports workers, that person is required to
comply with the applicable protective provisions of the Act. In
addition, any person not specifically exempt from coverage of the Act
(irrespective of whether that person is an agricultural employer, an
agricultural association or farm labor contractor) who owns or controls
a facility or real property which is used as housing for any migrant
agricultural workers must ensure that the facility or real property
complies with all substantive Federal and State safety and health
standards made applicable to that type of housing. (See Sec. 500.132)
(b) Wage related protections. Joint employment under the Fair Labor
Standards Act, which establishes responsibility for the maintenance of
payroll records, payment of wages and posting of notices under that law,
is joint employment under MSPA for establishing responsibility for the
maintenance of records, payment of wages and the posting of required
posters under MSPA. In such joint employment situations the
responsibility for assuring these MSPA protections may be carried out by
one of the joint employers. While under a joint employment relationship
all joint employers are equally responsible for assuring that the
appropriate protections are provided, the creation of such a joint
employment relationship does not also require unnecessary duplication of
effort as, for example, in relation to the posting of posters (see
Sec. Sec. 500.75(e) and 500.76(e)) or the provision of an itemized
written statement of the worker's pay (see Sec. 500.80(d)). Failure to
provide protections coming within the joint employment relationship,
however, will result in all joint employers being responsible for that
failure.
(c) Transportation related protections. Responsibility for
compliance with the motor vehicle safety and insurance provisions of
section 401 of the Act and Sec. Sec. 500.100 through 500.128 of these
regulations is imposed upon the person or persons using or causing to be
used, any vehicle for transportation of migrant or seasonal agricultural
workers. As stated in these regulations, the transportation safety
provisions do not include certain car pooling arrangements.
Additionally, these regulations do not impose responsibility on an
agricultural employer or agricultural association for a farm labor
contractor's failure to adhere to the safety provisions provided in
these regulations when the farm labor contractor is providing the
vehicles and directing their use. However, when an agricultural employer
or agricultural association specifically directs or requests a farm
labor contractor to use the contractor's vehicle to carry out a task for
the agricultural employer or agricultural association, such direction
constitutes causing the vehicle to be used and the agricultural employer
or agricultural association is jointly responsible with the farm labor
contractor for assuring that the vehicle meets the insurance, and safety
and health provisions of these regulations. In all cases a person using
a farm labor contractor is required to take reasonable steps to
determine that the vehicle used by the
[[Page 28]]
farm labor contractor is authorized to be used for transportation as
prescribed in section 402 of the Act and Sec. 500.71 of these
regulations.
(d) Housing related protections. Responsibility for compliance with
the housing safety and health provisions of section 203 of the Act and
Sec. Sec. 500.130 through 500.135 of these regulations is imposed upon
the person (or persons) who owns or controls a facility or real property
used as housing for migrant agricultural workers. Any agricultural
employer or agricultural association which has a farm labor contractor
operate housing which it owns or controls is responsible, as well as the
farm labor contractor, for insuring compliance with the housing safety
and health provisions of these regulations. When the owner or operator
of the housing is not an agricultural employer, agricultural association
or farm labor contractor, the owner is responsible for that housing
meeting the safety and health provisions under the Act and these
regulations. This is subject to the exclusion stated in Sec. 500.131 of
these regulations which provides that the housing safety and health
requirements do not apply to any person who, in the ordinary course of
that person's business, regularly provides housing on a commercial basis
to the general public and who provides housing to any migrant
agricultural worker of the same character and on the same or comparable
terms and conditions as provided to the general public.
Sec. 500.71 Utilization of only registered farm labor contractors.
The Act prohibits any person from utilizing the services of a farm
labor contractor to supply migrant or seasonal agricultural workers
without first taking reasonable steps to determine that the farm labor
contractor possesses a valid Certificate of Registration, issued
pursuant to the Act, which authorizes the activity for which the
contractor is to be utilized. This prohibition also applies to a farm
labor contractor who wishes to utilize the services of another farm
labor contractor (see Sec. 500.41). In making the determination about a
contractor's registration status, a person may rely upon the
contractor's possession of a Certificate of Registration which on its
face is valid and which authorizes the activity for which the contractor
is utilized. A person has the alternative to confirm the contractor's
registration through the central registry maintained by the United
States Department of Labor.
Sec. 500.72 Agreements with workers.
(a) The Act prohibits farm labor contractors, agricultural employers
and agricultural associations from violating, without justification, the
terms of any working arrangements they have made with migrant or
seasonal agricultural workers. Normally, ``without justification'' would
not include situations in which failure to comply with the terms of any
working arrangements was directly attributable to acts of God, due to
conditions beyond the control of the person or to conditions which he
could not reasonably foresee.
(b) Written agreements do not relieve any person of any
responsibility that the person would otherwise have under the Act or
these regulations.
Sec. 500.73 Required purchase of goods or services solely from any
person prohibited.
The Act prohibits a farm labor contractor, agricultural employer or
agricultural association from requiring a migrant or seasonal
agricultural worker to purchase goods or services solely from such farm
labor contractor, agricultural employer, or agricultural association, or
any other person acting as an agent for any person subject to this
prohibition.
Recruiting, Hiring and Providing Information to Migrant Agricultural
Workers
Sec. 500.75 Disclosure of information.
(a) Where disclosure is required, Department of Labor optional forms
may be used to satisfy the requirements of disclosure under the Act.
(b) Each farm labor contractor, agricultural employer, and
agricultural association which recruits any migrant agricultural worker
shall ascertain to the best of his ability and disclose, in
[[Page 29]]
writing to the extent that he has obtained such information, to such
worker at the time of recruitment, the following information:
(1) The place of employment (with as much specificity as practical,
such as the name and address of the employer or the association);
(2) The wage rates (including piece rates) to be paid;
(3) The crops and kinds of activities on which the worker may be
employed;
(4) The period of employment;
(5) The transportation, housing, and any other employee benefits to
be provided, if any, and any costs to be charged for each of them;
(6) Whether state workers' compensation or state unemployment
insurance is provided:
(i) If workers' compensation is provided, the required disclosure
must include the name of the workers' compensation insurance carrier,
the name(s) of the policyholder(s), the name and telephone number of
each person who must be notified of an injury or death, and the time
period within which such notice must be given.
(ii) The information requirement in paragraph (b)(6)(i) of this
section may be satisfied by giving the worker a photocopy of any
workers' compensation notice required by State law;.
(7) The existence of any strike or other concerted work stoppage,
slowdown, or interruption of operations by employees at the place of
employment; and
(8) The existence of any arrangements with any owner or agent of any
establishment in the area of employment under which the farm labor
contractor, the agricultural employer, or the agricultural association
is to receive a commission or any other benefit resulting from any sales
by such establishment to the workers.
(c) Each farm labor contractor, agricultural employer and
agricultural association which employs any migrant agricultural worker
shall post (and maintain) in a conspicuous place at the place of
employment a poster provided by the Secretary of Labor, which sets out
the rights and protections for workers required under the Act.
(d) The employer (other than a farm labor contractor) of any migrant
agricultural worker, shall provide at the place of employment on request
of the worker, a written statement of the conditions of employment. A
farm labor contractor shall provide such information in accordance with
Sec. 500.60(b) of these regulations.
(e) In a joint employment situation, each employer is equally
responsible for displaying and maintaining the poster and for responding
to worker requests for written statements of the conditions of
employment which are made during the course of employment. This joint
responsibility, however, does not require needless duplication, such as
would occur if each employer posted the same poster or provided the same
written statement with respect to the same employment conditions.
Failure to provide the information required by a joint employment
relationship, however, will result in all joint employers being
responsible for that failure.
(f) Each farm labor contractor, agricultural employer and
agricultural association which provides housing for any migrant
agricultural worker shall post in a conspicuous place (at the site of
the housing) or present in the form of a written statement to the worker
the following information on the terms and conditions of occupancy of
such housing, if any:
(1) The name and address of the farm labor contractor, agricultural
employer
or agricultural association providing the housing;
(2) The name and address of the individual in charge of the housing;
(3) The mailing address and phone number where persons living in the
housing facility may be reached;
(4) Who may live at the housing facility;
(5) The charges to be made for housing;
(6) The meals to be provided and the charges to be made for them;
(7) The charges for utilities; and
(8) Any other charges or conditions of occupancy.
(g) If the terms and conditions of occupancy are posted, the poster
shall be displayed and maintained during the entire period of occupancy.
If the terms
[[Page 30]]
and conditions of occupancy are disclosed to the worker through a
statement (rather than through a posting), such statement shall be
provided to the worker prior to occupancy. Department of Labor optional
forms may be used to satisfy this requirement.
[48 FR 36741, Aug. 12, 1983, as amended at 61 FR 24866, May 16, 1996]
Hiring and Providing Information to Seasonal Agricultural Workers
Sec. 500.76 Disclosure of information.
(a) Where disclosure is required, Department of Labor optional forms
may be used to satisfy the requirements of disclosure under the Act.
(b) Each farm labor contractor, agricultural employer and
agricultural association, which recruits any seasonal agricultural
worker for employment on a farm or ranch to perform field work related
to planting, cultivating or harvesting operations, shall ascertain and,
upon request, disclose in writing the following information to such
worker when an offer of employment is made:
(1) The place of employment (with as much specificity as practical,
such as the name and address of the employer or the association);
(2) The wage rates (including piece rates) to be paid;
(3) The crops and kinds of activities on which the worker may be
employed;
(4) The period of employment;
(5) The transportation and any other employee benefits to be
provided, if any, and any costs to be charged for each of them;
(6) Whether state workers' compensation or state unemployment
insurance is provided:
(i) If workers' compensation is provided, the required disclosure
must include the name of the workers' compensation insurance carrier,
the name(s) of the policyholder(s), the name and telephone number of
each person who must be notified of an injury or death, and the time
period within which such notice must be given.
(ii) The information requirement in paragraph (b)(6)(i) of this
section may satisfied giving the worker a photocopy of any workers'
compensation notice required by State law;
(7) The existence of any strike or other concerted work stoppage,
slowdown, or interruption of operations by employees at the place of
employment; and
(8) The existence of any arrangements with any owner or agent of any
establishment in the area of employment under which the farm labor
contractor, the agricultural employer, or the agricultural association
is to receive a commission or any other benefit resulting from any sales
by such establishment to the workers.
(c) Each farm labor contractor, agricultural employer and
agricultural association which recruits any seasonal agricultural worker
for employment through the use of day-haul operation in canning,
packing, ginning, seed conditioning or related research, or processing
operations, shall ascertain and disclose in writing to the worker at the
time of recruitment the information on employment conditions set out in
paragraph (b) of this section.
(d)(1) Each farm labor contractor, agricultural employer and
agricultural association which employs any seasonal agricultural worker
shall post (and maintain) at the place of employment in a conspicuous
place readily accessible to the worker a poster provided by the
Secretary of Labor which sets out the rights and protections for such
worker required under the Act.
(2) Such employer shall provide, on request of the worker, a written
statement of the information described in paragraph (b) of this section.
(e) In a joint employment situation, each employer is equally
responsible for displaying and maintaining the poster and for responding
to worker requests for written statements of the conditions of
employment which are made during the course of employment. This joint
responsibility, however, does not require needless duplication, such as
would occur if each employer posted the same poster or provided the same
written statement with respect to the same employment conditions.
[48 FR 36741, Aug. 12, 1983, as amended at 61 FR 24866, May 16, 1996]
[[Page 31]]
Employment Information Furnished
Sec. 500.77 Accuracy of information furnished.
No farm labor contractor, agricultural employer or agricultural
association shall knowingly provide false or misleading information on
the terms, conditions or existence of agricultural employment and
housing required to be disclosed by the Act and these regulations to any
migrant or seasonal agricultural worker.
Sec. 500.78 Information in foreign language.
Each farm labor contractor, agricultural employer and agricultural
association shall make all required written disclosures to the worker,
including the written disclosures of the terms and conditions of
occupancy of housing to be provided to any migrant worker, in English
or, as necessary and reasonable, in Spanish or another language common
to migrant or seasonal agricultural workers who are not fluent or
literate in English. The Department of Labor shall make forms available
in English, Spanish, Haitian-Creole and other languages, as necessary,
which may be used in providing workers with such information.
Wages and Payroll Standards
Sec. 500.80 Payroll records required.
(a) Each farm labor contractor, agricultural employer and
agricultural association which employs any migrant or seasonal
agricultural worker shall make and keep the following records with
respect to each worker including the name, permanent address, and Social
Security number:
(1) The basis on which wages, are paid;
(2) The number of piecework units earned, if paid on a piecework
basis;
(3) The number of hours worked;
(4) The total pay period earnings;
(5) The specific sums withheld and the purpose of each sum withheld;
and
(6) The net pay.
(b) Each farm labor contractor, agricultural employer and
agricultural association which employs any migrant or seasonal
agricultural worker shall preserve all payroll records with respect to
each such worker for a period of three years.
(c) When a farm labor contractor furnishes any migrant or seasonal
agricultural worker, and the farm labor contractor is the employer, the
farm labor contractor must furnish the agricultural employer,
agricultural association or other farm labor contractor to whom the
workers are furnished, a copy of all payroll records required under
paragraph (a) of this section which the farm labor contractor has made
regarding such worker for that place of employment. The person receiving
such records shall maintain them for a period of three years.
(d) In addition to making records of this payroll information, the
farm labor contractor, agricultural employer and agricultural
association shall provide each migrant or seasonal agricultural worker
employed with an itemized written statement of this information at the
time of payment for each pay period which must be no less often than
every two weeks (or semi-monthly). Such statement shall also include the
employer's name, address, and employer identification number assigned by
the Internal Revenue Service. This responsibility does not require
needless duplication such as would occur if each provided the worker
with a written itemized statement for the same work.
Sec. 500.81 Payment of wages when due.
Each farm labor contractor, agricultural employer and agricultural
association which employs any migrant or seasonal agricultural worker
must pay the wages owed such worker when due. In meeting this
responsibility, the farm labor contractor, agricultural employer and
agricultural association shall pay the worker no less often than every
two weeks (or semi-monthly).
[[Page 32]]
Subpart D_Motor Vehicle Safety and Insurance for Transportation of
Migrant and Seasonal Agricultural Workers, Housing Safety and Health for
Migrant Workers
Motor Vehicle Safety
Sec. 500.100 Vehicle safety obligations.
(a) General obligations. Each farm labor contractor, agricultural
employer and agricultural association which uses, or causes to be used,
any vehicle to transport a migrant or seasonal agricultural worker shall
ensure that such vehicle conforms to vehicle safety standards prescribed
by the Secretary of Labor under the Act and with other applicable
Federal and State safety standards. Each farm labor contractor,
agricultural employer and agricultural association shall also ensure
that each driver of any such vehicle has a currently valid motor vehicle
operator's permit or license, as provided by applicable State law, to
operate the vehicle.
(b) Proof of compliance with vehicle safety standards. Prima facie
evidence that safety standards have been met will be shown by the
presence of a current State vehicle inspection sticker. Such sticker
will not, however, relieve the farm labor contractor, agricultural
employer or agricultural association from responsibility for maintaining
the vehicle in accordance with Sec. 500.104 or Sec. 500.105, as
applicable.
(c) Uses or causes to be used. The term ``uses or causes to be
used'' as set forth in paragraph (a) of this section does not include
carpooling arrangements made by the workers themselves, using one of the
workers' own vehicles. However, carpooling does not include any
transportation arrangement in which a farm labor contractor participates
or which is specifically directed or requested by an agricultural
employer or an agricultural association.
Sec. 500.101 Promulgation and adoption of vehicle standards.
(a) General. All transportation of migrant and seasonal agricultural
workers, whether on the farm or on the road, shall be subject to the
vehicle safety standards of the Act, except for activities under the
circumstances set out in Sec. 500.103.
(b) Compliance required. Any violation of the standards promulgated
by the Secretary in Sec. 500.104 or adopted by the Secretary in Sec.
500.105 shall be a violation of the Act and these regulations.
(c) Development of Department of Labor Standards. In developing the
regulations in Sec. 500.104, the Secretary has considered among other
factors: (1) The type of vehicle used, (2) the passenger capacity of the
vehicle, (3) the distance which such workers will be carried in the
vehicle, (4) the type of roads and highways on which such workers will
be carried in the vehicle, and (5) the extent to which a proposed
standard would cause an undue burden on agricultural employers,
agricultural associations, or farm labor contractors.
(d) Adoption of Department of Transportation (DOT) Standards. In
accordance with section 401(b)(2)(C) of the Act, the Secretary has
adopted in Sec. 500.105 of these regulations, the DOT standards,
without regard to the mileage and boundary limitations established in 49
U.S.C. 3102(c).
Sec. 500.102 Applicability of vehicle safety standards.
(a) Any passenger automobile or station wagon used or caused to be
used by any farm labor contractor, agricultural employer or agricultural
association to transport any migrant or seasonal agricultural worker
shall meet the vehicle safety standards prescribed in Sec. 500.104.
(b) Any vehicle, other than a passenger automobile or station wagon,
used or caused to be used by any farm labor contractor, agricultural
employer or agricultural association to transport any migrant or
seasonal agricultural worker pursuant to a day-haul operation shall be
subject to the safety standards prescribed under Sec. 500.105.
(c) Any vehicle, other than a passenger automobile or station wagon,
which has been or is being used or caused to be used for any trip of a
distance greater than 75 miles by a farm labor contractor, agricultural
employer or agricultural association to transport any migrant or
seasonal agricultural worker, shall be subject to
[[Page 33]]
the safety standards prescribed under Sec. 500.105. One trip may have
numerous intermediate stops.
(d) Any vehicle, other than a passenger automobile or station wagon,
used or caused to be used by any farm labor contractor, agricultural
employer or agricultural association to transport any migrant or
seasonal agricultural worker in any manner not addressed by paragraphs
(a), (b), or (c) of this section shall meet the vehicle safety standards
prescribed in Sec. 500.104.
(e) The use or intended use of a vehicle, other than a passenger
automobile or station wagon, for transportation of the type identified
in Sec. 500.102(b) or Sec. 500.102(c) will make the vehicle subject to
the standards prescribed under Sec. 500.105, so long as the vehicle is
used for transportation subject to the Act and these regulations.
(f) Any pickup truck used only for transportation subject to Sec.
500.104 when transporting passengers only within the cab shall be
treated as a station wagon.
(g) Pursuant to section 401(b)(2)(C) of the Act, standards
prescribed by the Secretary shall be in addition to, and shall not
supersede nor modify, any standards prescribed under part II of the
Interstate Commerce Act and any successor provision of subtitle IV of
title 49, U.S. Code or the regulations issued thereunder which is
independently applicable to transportation to which this section
applies. A violation of any such standard shall also constitute a
violation of the Act and these regulations.
[48 FR 36741, Aug. 12, 1983; 48 FR 38380, Aug. 23, 1983]
Sec. 500.103 Activities not subject to vehicle safety standards.
(a) Agricultural machinery and equipment excluded. Vehicle safety
standards or insurance requirements issued under the Act and these
regulations do not apply to the transportation of any seasonal or
migrant agricultural worker on a tractor, combine, harvester, picker,
other similar machinery and equipment while such worker is actually
engaged in the planting, cultivating, or harvesting of any agricultural
commodity or the care of livestock or poultry. This exclusion applies
only to workers carrying out these activities on such machinery and
equipment or being engaged in transportation incidental thereto. The
exclusion does not include the use of such machinery for the
transportation of any worker under any other circumstances.
(b) Exclusion for immediate family transporting family members. The
standards of this subpart do not apply to an individual migrant or
seasonal agricultural worker when the only other occupants of that
individual's vehicle consist of his immediate family members as defined
in Sec. 500.20(o).
(c) Carpooling. Vehicle safety standards or insurance requirements
of the Act and these regulations do not apply to carpooling arrangements
made by the workers themselves, using one of the workers' own vehicles
and not specifically directed or requested by an agricultural employer
or agricultural association. Carpooling, however, does not include any
transportation arrangement in which a farm labor contractor
participates.
(See also Sec. 500.120)
Sec. 500.104 Department of Labor standards for passenger automobiles
and station wagons and transportation of seventy-five miles or less.
Any farm labor contractor, agricultural employer or agricultural
association providing transportation in passenger automobiles and
station wagons and other vehicles used only for transportation as
provided in Sec. 500.102(a) and (d) shall comply with the following
vehicle safety standards:
(a) External lights. Head lights, tail lights, stop lights, back-up
lights, turn signals and hazard warning lights shall be operable.
(b) Brakes. Every vehicle shall be equipped with operable brakes for
stopping and holding on an incline. Brake systems shall be free of
leaks.
(c) Tires. Tires shall have at least
2/32 inch tread depth, and have no cracks/defects in the sidewall.
(d) Steering. The steering wheel and associated mechanism shall be
maintained so as to safely and accurately turn the vehicles.
(e) Horn. Vehicles shall have an operable air or electric horn.
[[Page 34]]
(f) Mirrors. Mirrors shall provide the driver full vision of the
sides and to the rear of the vehicle.
(g) Windshields/windshield wipers. Windshields and windows may not
have cracks or opaque obstructions which obscure vision. Vehicles shall
be equipped with windshield wipers that are operational to allow the
operator full frontal vision in all weather conditions.
(h) Fuel system. Fuel lines and the fuel tank shall be free of
leaks. The tank shall be fitted with a cap to securely cover the filling
opening.
(i) Exhaust system. The exhaust system shall discharge carbon
monoxide away from the passenger compartment and be free of leaks
beneath the passenger compartment.
(j) Ventilation. Windows will be operational to allow fresh air to
the occupants of the vehicle.
(k) Safe loading. Vehicles will not be driven when loaded beyond the
manufacturer's gross vehicle weight rating.
(l) Seats. A seat securely fastened to the vehicle will be provided
for each occupant or rider in, or on, any vehicle, except that
transportation which is primarily on private farm roads will be excused
from this requirement provided the total distance traveled does not
exceed ten (10) miles, and so long as the trip begins and ends on a farm
owned or operated by the same employer.
(m) Handles and latches. Door handles and latches shall be provided
and maintained to allow exiting capability for vehicle occupants.
(n) Passenger compartment. Floor and sides of any part of the
vehicle to be occupied by passengers must be free of openings, rusted
areas or other defects which are likely to result in injury to
passengers.
Sec. 500.105 DOT standards adopted by the Secretary.
(a) Any farm labor contractor, agricultural employer or agricultural
association providing transportation in vehicles other than passenger
automobiles and station wagons used for transportation as provided in
Sec. 500.102 (b), (c), and (e) shall comply with the motor carrier
safety standards listed in paragraph (b) of this section.
(b) The Secretary for the purposes of this section has adopted from
49 CFR part 398 the following pertinent standards. (In adopting these
standards, editorial changes necessitated by the Act and these
regulations have been made to conform the language to these
regulations):
(1) Qualification of drivers or operators (Source: 49 CFR 398.3)--
(i) Compliance required. Every person subject to this Act who drives a
motor vehicle or is responsible for the hiring, supervision, training,
assignment or dispatching of drivers shall comply and be conversant with
the requirements of this section.
(ii) Minimum physical requirements. No such person shall drive, nor
shall any such person require or permit any person to drive, any motor
vehicle unless such person possesses the following minimum
qualifications:
(A) No loss of foot, leg, hand or arm,
(B) No mental, nervous, organic, or functional disease, likely to
interfere with safe driving.
(C) No loss of fingers, impairment of use of foot, leg, fingers,
hand or arm, or other structural defect or limitation, likely to
interfere with safe driving.
(D) Eyesight. Visual acuity of at least 20/40 (Snellen) in each eye
either without glasses or by correction with glasses; form field of
vision in the horizontal meridian shall not be less than a total of 140
degrees; ability to distinguish colors red, green and yellow; drivers
requiring correction by glasses shall wear properly prescribed glasses
at all times when driving.
(E) Hearing. Hearing shall not be less than 10/20 in the better ear,
for conversational tones, without a hearing aid.
(F) Liquor, narcotics and drugs. Shall not be addicted to the use of
narcotics or habit forming drugs, or the excessive use of alcoholic
beverages or liquors.
(G) Initial and periodic physical examination of drivers. No such
person shall drive nor shall any such person require or permit any
person to drive any motor vehicle unless within the immediately
preceding 36-month period such person shall have been physically
examined and shall have been certified in accordance with the provisions
of paragraph (b)(1)(ii)(H) of this section by a
[[Page 35]]
licensed doctor of medicine or osteopathy as meeting the requirements of
this subsection.
(H) Certificate of physical examination. Every person shall have in
his files at his principal place of business for every driver employed
or used by him a legible certificate of a licensed doctor of medicine or
osteopathy based on a physical examination as required by paragraph
(b)(1)(ii)(G) of this section or a legible photographically reproduced
copy thereof, and every driver shall have in his possession while
driving, such a certificate or a photographically reproduced copy
thereof covering himself.
(I) Doctor's certificate. The doctor's certificate shall certify as
follows:
Doctor's Certificate
(Driver of Migrant Workers)
This is to certify that I have this day examined ______ in
accordance with Sec. 398.3(b) of the Federal Motor Carrier Safety
Regulations of the Federal Highway Administration and that I find him
Qualified under said rules [squ]
Qualified only when wearing glasses [squ]
I have kept on file in my office a completed examination.
(Date)__________________________________________________________________
(Place)_________________________________________________________________
________________________________________________________________________
(Signature of examining doctor)
________________________________________________________________________
(Address of doctor)
________________________________________________________________________
(Signature of driver)
________________________________________________________________________
(Address of driver)
(iii) Minimum age and experience requirements. No person shall
drive, nor shall any person require or permit any person to drive, any
motor vehicle unless such person possesses the following minimum
qualifications:
(A) Age. Minimum age shall be 21 years.
(B) Driving skill. Experience in driving some type of motor vehicle
(including private automobiles) for not less than one year, including
experience throughout the four seasons.
(C) Knowledge of regulations. Familiarity with the rules and
regulations prescribed in this part pertaining to the driving of motor
vehicles.
(D) Knowledge of English. Every driver shall be able to read and
speak the English language sufficiently to understand highway traffic
signs and signals and directions given in English and to respond to
official inquiries.
(E) Driver's permit. Possession of a valid permit qualifying the
driver to operate the type of vehicle driven by him in the jurisdiction
by which the permit is issued.
(2) Driving of motor vehicles (Source: 49 CFR 398.4)--(i) Compliance
required. Every person shall comply with the requirements of this
section, shall instruct its officers, agents, representatives and
drivers with respect thereto, and shall take such measures as are
necessary to insure compliance therewith by such persons. All officers,
agents, representatives, drivers, and employees of persons subject to
this Act directly concerned with the management, maintenance, operation,
or driving of motor vehicles, shall comply with and be conversant with
the requirements of this section.
(ii) Driving rules to be obeyed. Every motor vehicle shall be driven
in accordance with the laws, ordinances, and regulations of the
jurisdiction in which it is being operated, unless such laws, ordinances
and regulations are at variance with specific regulations of the Federal
Highway Administration, which impose a greater affirmative obligation or
restraint.
(iii) [Reserved]
(iv) Alcoholic beverages. No driver shall drive or be required or
permitted to drive a motor vehicle, be in active control of any such
vehicle, or go on duty or remain on duty, when under the influence of
any alcoholic beverage or liquor, regardless of its alcoholic content,
nor shall any driver drink any such beverage or liquor while on duty.
(v) Schedules to conform with speed limits. No person shall permit
nor require the operation of any motor vehicle between points in such
period of time as would necessitate the vehicle being operated at speeds
greater than those prescribed by the jurisdictions in or through which
the vehicle is being operated.
(vi) Equipment and emergency devices. No motor vehicle shall be
driven unless the driver thereof shall have satisfied
[[Page 36]]
himself that the following parts, accessories, and emergency devices are
in good working order; nor shall any driver fail to use or make use of
such parts, accessories, and devices when and as needed:
Service brakes, including trailer brake connections.
Parking (hand) brake.
Steering mechanism.
Lighting devices and reflectors.
Tires.
Horn.
Windshield wiper or wipers.
Rear-vision mirror or mirrors.
Coupling devices.
Fire extinguisher, at least one properly mounted.
Road warning devices, at least one red burning fusee and at least three
flares (oil burning pot torches), red electric lanterns, or red
emergency reflectors.
(vii) Safe loading--(A) Distribution and securing of load. No motor
vehicle shall be driven nor shall any motor carrier permit or require
any motor vehicle to be driven if it is so loaded, or if the load
thereon is so improperly distributed or so inadequately secured, as to
prevent its safe operation.
(B) Doors, tarpaulins, tailgates and other equipment. No motor
vehicle shall be driven unless the tailgate, tailboard, tarpaulins,
doors, all equipment and rigging used in the operation of said vehicle,
and all means of fastening the load, are securely in place.
(C) Interference with driver. No motor vehicle shall be driven when
any object obscures his view ahead, or to the right or left sides, or to
the rear, or interferes with the free movement of his arms or legs, or
prevents his free and ready access to the accessories required for
emergencies, or prevents the free and ready exit of any person from the
cab or driver's compartment.
(D) Property on motor vehicles. No vehicle transporting persons and
property shall be driven unless such property is stowed in a manner
which will assure: (1) Unrestricted freedom of motion to the driver for
proper operation of the vehicle; (2) unobstructed passage to all exits
by any person; and (3) adequate protection to passengers and others from
injury as a result of the displacement or falling of such articles.
(E) Maximum passengers on motor vehicles. No motor vehicle shall be
driven if the total number of passengers exceeds the seating capacity
which will be permitted on seats prescribed in Sec. 500.105(b)(3)(vi).
All passengers carried on such vehicle shall remain seated while the
motor vehicle is in motion.
(viii) Rest and meal stops. Every person shall provide for
reasonable rest stops at least once between meal stops. Meal stops shall
be made at intervals not to exceed six hours and shall be for a period
of not less than 30 minutes duration.
(ix) Kinds of motor vehicles in which workers may be transported.
Workers may be transported in or on only the following types of motor
vehicles: A bus, a truck with no trailer attached, or a semitrailer
attached to a truck-tractor provided that no other trailer is attached
to the semitrailer. Closed vans without windows or means to assure
ventilation shall not be used.
(x) Limitation on distance of travel in trucks. Any truck when used
for the transportation of migrant or seasonal agricultural workers, if
such workers are being transported in excess of 600 miles, shall be
stopped for a period of not less than eight consecutive hours either
before or upon completion of 600 miles travel, and either before or upon
completion of any subsequent 600 miles travel to provide rest for
drivers and passengers.
(xi) Lighting devices and reflectors. No motor vehicle shall be
driven when any of the required lamps or reflectors are obscured by the
tailboard, by any and all lighting devices required pursuant to 49
U.S.C. 3102(c) shall be lighted during darkness or at any other time
when there is not sufficient light to render vehicles and persons
visible upon the highway at a distance of 500 feet.
(xii) Ignition of fuel; prevention. No driver or other person shall:
(A) Fuel a motor vehicle with the engine running, except when it is
necessary to run the engine to fuel the vehicle; (B) smoke or expose any
open flame in the vicinity of a vehicle being fueled; (C) fuel a motor
vehicle unless the nozzle of the fuel hose is continuously in contact
with the intake pipe of the fuel tank; (D) permit any other person to
engage in such activities as would be likely to result in fire or
explosion.
[[Page 37]]
(xiii) Reserve fuel. No supply of fuel for the propulsion of any
motor vehicle or for the operation of any accessory thereof shall be
carried on the motor vehicle except in a properly mounted fuel tank or
tanks.
(xiv) Driving by unauthorized person. Except in case of emergency,
no driver shall permit a motor vehicle to which he is assigned to be
driven by any person not authorized to drive such vehicle.
(xv) Protection of passengers from weather. No motor vehicle shall
be driven while transporting passengers unless the passengers therein
are protected from inclement weather conditions such as rain, snow, or
sleet, by use of the top or protective devices required by Sec.
500.105(b)(3)(vi)(E).
(xvi) Unattended vehicles; precautions. No motor vehicle shall be
left unattended by the driver until the parking brake has been securely
set, the wheels chocked, and all reasonable precautions have been taken
to prevent the movement of such vehicle.
(xvii) Railroad grade crossings; stopping required; sign on rear of
vehicle. Every motor vehicle shall, upon approaching any railroad grade
crossing, make a full stop not more than 50 feet, nor less than 15 feet
from the nearest rail of such railroad grade crossing, and shall not
proceed until due caution has been taken to ascertain that the course is
clear; except that a full stop need not be made at:
(A) A street car crossing within a business or residence district of
a municipality;
(B) A railroad grade crossing where a police officer or a traffic-
control signal (not a railroad flashing signal) directs traffic to
proceed:
(C) An abandoned or exempted grade crossing which is clearly marked
as such by or with the consent of the proper state authority, when such
marking can be read from the driver's position.
All such motor vehicles shall display a sign on the rear reading, ``This
Vehicle Stops at Railroad Crossings.''
(3) Parts and accessories necessary (Source: 49 CFR 398.5)--(i)
Compliance. Every person and its officers, agents, drivers,
representatives and employees directly concerned with the installation
and maintenance of equipment and accessories shall comply and be
conversant with the requirements and specifications of this part, and no
person shall operate any motor vehicle, or cause or permit it to be
operated, unless it is equipped in accordance with said requirements and
specifications.
(ii) Lighting devices. Every motor vehicle shall be equipped with
the lighting devices and reflectors required pursuant to 49 U.S.C. 3102
(c).
(iii) Brakes. Every motor vehicle shall be equipped with brakes as
required pursuant to 49 U.S.C. 3102 (c).
(iv) Coupling devices; fifth wheel mounting and locking. The lower
half of every fifth wheel mounted on any truck-tractor or dolly shall be
securely affixed to the frame thereof by U-bolts of adequate size,
securely tightened, or by other means providing at least equivalent
security. Such U-bolts shall not be of welded construction. The
installation shall be such as not to cause cracking, warping, or
deformation of the frame. Adequate means shall be provided positively to
prevent the shifting of the lower half of a fifth wheel on the frame to
which it is attached. The upper half of every fifth wheel shall be
fastened to the motor vehicle with at least the security required for
the securing of the lower half to a truck-tractor or dolly. Locking
means shall be provided in every fifth wheel mechanism including
adapters when used, so that the upper and lower halves may not be
separated without the operation of a positive manual release. A release
mechanism operated by the driver from the cab shall be deemed to meet
this requirement. On fifth wheels designed and constructed so as to be
readily separable, the fifth wheel locking devices shall apply
automatically on coupling for any motor vehicle the date of manufacture
of which is subsequent to December 31, 1952.
(v) Tires. Every motor vehicle shall be equipped with tires of
adequate capacity to support its gross weight. No motor vehicle shall be
operated on tires which have been worn so smooth as to expose any tread
fabric or which have any other defect likely to cause failure. No
vehicle shall be operated while transporting passengers while
[[Page 38]]
using any tire which does not have tread configurations on that part of
the tire which is in contact with the road surface. No vehicle
transporting passengers shall be operated with regrooved, re-capped, or
re-treaded tires on front wheels.
(vi) Passenger compartment. Every motor vehicle transporting
passengers, other than a bus, shall have a passenger compartment meeting
the following requirements:
(A) Floors. A substantially smooth floor, without protruding
obstructions more than two inches high, except as are necessary for
securing seats or other devices to the floor, and without cracks or
holes.
(B) Sides. Side walls and ends above the floor at least 60 inches
high, by attachment of sideboards to the permanent body construction if
necessary. Stake body construction shall be construed to comply with
this requirement only if all six-inch or larger spaces between stakes
are suitably closed to prevent passengers from falling off the vehicle.
(C) Nails, screws, splinters. The floor and the interior of the
sides and ends of the passenger-carrying space shall be free of inwardly
protruding nails, screws, splinters, or other projecting objects likely
to be injurious to passengers or their apparel.
(D) Seats. A seat shall be provided for each worker transported. The
seats shall be: Securely attached to the vehicle during the course of
transportation; not less than 16 inches nor more than 19 inches above
the floor; at least 13 inches deep; equipped with backrests extending to
a height of at least 36 inches above the floor, with at least 24 inches
of space between the backrests or between the edges of the opposite
seats when face to face; designed to provide at least 18 inches of seat
for each passenger; without cracks more than two inches wide, and the
exposed surfaces, if made of wood, planed or sanded smooth and free of
splinters.
(E) Protection from weather. Whenever necessary to protect the
passengers from inclement weather conditions, be equipped with a top at
least 80 inches high above the floor and facilities for closing the
sides and ends of the passenger-carrying compartment. Tarpaulins or
other such removable devices for protection from the weather shall be
secured in place.
(F) Exit. Adequate means of ingress and egress to and from the
passenger space shall be provided on the rear or at the right side. Such
means of ingress and egress shall be at least 18 inches wide. The top
and the clear opening shall be at least 60 inches high, or as high as
the side wall of the passenger space if less than 60 inches. The bottom
shall be at the floor of the passenger space.
(G) Gates and doors. Gates or doors shall be provided to close the
means of ingress and egress and each such gate or door shall be equipped
with at least one latch or other fastening device of such construction
as to keep the gate or door securely closed during the course of
transportation; and readily operative without the use of tools.
(H) Ladders or steps. Ladders or steps for the purpose of ingress or
egress shall be used when necessary. The maximum vertical spacing of
footholds shall not exceed 12 inches, except that the lowest step may be
not more than 18 inches above the ground when the vehicle is empty.
(I) Hand holds. Hand holds or devices for similar purpose shall be
provided to permit ingress and egress without hazard to passengers.
(J) Emergency exit. Vehicles with permanently affixed roofs shall be
equipped with at least one emergency exit having a gate or door, latch
and hand hold as prescribed in paragraphs (b)(3)(vi) (G) and (I) of this
section and located on a side or rear not equipped with the exit
prescribed in paragraph (b)(3)(vi)(F) of this section.
(K) Communication with driver. Means shall be provided to enable the
passengers to communicate with the driver. Such means may include
telephone, speaker tubes, buzzers, pull cords, or other mechanical or
electrical means.
(vii) Protection from cold. Every motor vehicle shall be provided
with a safe means of protecting passengers from cold or undue exposure,
but in no event shall heaters of the following types be used:
(A) Exhaust heaters. Any type of exhaust heater in which the engine
exhaust gases are conducted into or
[[Page 39]]
through any space occupied by persons or any heater which conducts
engine compartment air into any such space.
(B) Unenclosed flame heaters. Any type of heater employing a flame
which is not fully enclosed.
(C) Heaters permitting fuel leakage. Any type of heater from the
burner of which there could be spillage or leakage of fuel upon the
tilting or overturning of the vehicle in which it is mounted.
(D) Heaters permitting air contamination. Any heater taking air,
heated or to be heated, from the engine compartment or from direct
contact with any portion of the exhaust system; or any heater taking air
in ducts from the outside atmosphere to be conveyed through the engine
compartment, unless said ducts are so constructed and installed as to
prevent contamination of the air so conveyed by exhaust or engine
compartment gases.
(E) Any heater not securely fastened to the vehicle.
(4) Hours of service of drivers; maximum driving time (Source: 49
CFR 398.6). No person shall drive nor shall any person permit or require
a driver employed or used by it to drive or operate for more than 10
hours in the aggregate (excluding rest stops and stops for meals) in any
period of 24 consecutive hours, unless such driver be afforded eight
consecutive hours rest immediately following the 10 hours aggregate
driving. The term ``24 consecutive hours'' as used in this part means
any such period starting at the time the driver reports for duty.
(5) Inspection and maintenance of motor vehicles (Source: 49 CFR
398.7). Every person shall systematically inspect and maintain or cause
to be systematically maintained, all motor vehicles and their
accessories subject to its control, to insure that such motor vehicles
and accessories are in safe and proper operating condition.
[48 FR 36741, Aug. 12, 1983; 48 FR 38380, Aug. 23, 1983]
Insurance
Sec. 500.120 Insurance policy or liability bond is required for each
vehicle used to transport any migrant or seasonal agricultural worker.
A farm labor contractor, agricultural employer or agricultural
association shall not transport any migrant or seasonal agricultural
worker or his property in any vehicle such contractor, employer or
association owns, operates, controls, or causes to be operated unless he
has an insurance policy or liability bond in effect which insures
against liability for damage to persons or property arising from the
ownership, operation, or causing to be operated of such vehicle.
Generally, the owner or lessor of the vehicle will be responsible for
providing the required insurance. The insurance requirements do not
apply to vehicles involved in carpooling arrangements made by the
workers themselves, using one of the workers' own vehicles and not
specifically directed or requested by an agricultural employer or
agricultural association. However, carpooling does not include any
transportation arrangement in which a farm labor contractor
participates. Activities exempt from transportation safety standards are
also exempt from insurance requirements. (See also Sec. 500.103.)
Sec. 500.121 Coverage and level of insurance required.
(a) Except where a liability bond pursuant to Sec. 500.124 of this
part has been approved by the Secretary, a farm labor contractor,
agricultural employer or agricultural association shall, in order to
meet the insurance requirements in Sec. 500.120, obtain a policy of
vehicle liability insurance.
(b) The amount of vehicle liability insurance shall not be less than
$100,000 for each seat in the vehicle, but in no event is the total
insurance required to be more than $5,000,000 for any one vehicle. The
number of seats in the vehicle shall be determined by reference to Sec.
500.105(b)(3)(vi). See Sec. 500.122 regarding insurance requirements
where State workers' compensation coverage is provided.
(c) The insurance to be obtained under paragraph (a) of this section
[[Page 40]]
shall be issued by an insurance carrier licensed or otherwise authorized
to do business in the State in which the insurance is obtained.
(d) The vehicle liability insurance to be obtained under paragraph
(a) of this section shall be endorsed to insure against liability for
personal injury to employees whose transportation is not covered by
workers' compensation insurance, and to persons who are not employees;
and for property damage as specified in (b) of this section.
(e) An agricultural employer or agricultural association may
evidence the purchase of liability insurance which covers the workers
while being transported, as required under paragraph (a) by obtaining
and making available upon request to the Department of Labor a completed
liability certificate of insurance showing that insurance conforming to
the limits required by paragraph (b) and the coverage required by
paragraph (d) of this section is in effect. A farm labor contractor must
obtain such a certificate and provide a copy to the Administrator when
applying for authorization to transport migrant or seasonal agricultural
workers.
(f) With respect to an agricultural employer or agricultural
association, in the absence of the insurance certificate referred to
under paragraph (e) of this section, the Department of Labor will look
to the actual policy of insurance in determining compliance with the
insurance requirements.
[48 FR 36741, Aug. 12, 1983, as amended at 57 FR 3905, Jan. 31, 1992; 61
FR 24866, May 16, 1996]
Sec. 500.122 Adjustments in insurance requirements when workers'
compensation coverage is provided under State law.
(a) If a farm labor contractor, agricultural employer or
agricultural association referred to in Sec. 500.120 is the employer of
a migrant or seasonal agricultural worker for purposes of a State
workers' compensation law and such employer provides workers'
compensation coverage for such worker in the case of bodily injury or
death as provided by such State law, the following adjustments in the
insurance requirements relating to having an insurance policy or
liability bond apply:
(1) Except as provided in Sec. 500.123, no vehicle liability
insurance policy or liability bond shall be required of the employer, if
such worker is transported only under circumstances for which there is
coverage under such State law.
(2) A liability insurance policy or liability bond shall be required
of the employer for circumstances under which coverage for the
transportation of such worker is not provided under such State law.
(b) [Reserved]
(c) A farm labor contractor, agricultural employer or agricultural
association who is the employer of a migrant or seasonal agricultural
worker may evidence the issuance of workers' compensation insurance and
passenger insurance under paragraph (a) of this section by obtaining and
making available upon request to the Department of Labor:
(1) A workers' compensation coverage policy of insurance; and
(2) A certificate of liability insurance covering transportation of
all passengers who are not employees and of workers whose transportation
by the employer is not covered by workers' compensation insurance. See
Sec. 500.121.
(d) In the absence of the insurance certificate referred to under
paragraph (c)(2) of this section, the Department of Labor will look to
the actual policy of insurance or liability bond in determining
compliance with the Act and these regulations.
[48 FR 36741, Aug. 12, 1983, as amended at 56 FR 30327, July 2, 1991; 61
FR 24866, May 16, 1996]
Sec. 500.123 Property damage insurance required.
(a) When a person who is an employer of a migrant or seasonal
agricultural worker provides workers' compensation insurance which
protects such worker in the event of bodily injury or death while the
worker is being transported, such person must also obtain insurance
providing a minimum of $50,000 for loss or damage in any one accident to
the property of others (excluding cargo), or evidence of a general
liability insurance policy that provides the same protection.
[[Page 41]]
(b) Such person may evidence the purchase of motor carrier insurance
or other appropriate insurance providing such property damage protection
by obtaining and making available upon request to the Department of
Labor a vehicle or other liability certificate of insurance showing that
such person has obtained the property damage insurance required under
paragraph (a) of this section.
(c) In the absence of the insurance certificate referred to in
paragraph (b) of this section, the Department of Labor will look to the
actual policy of insurance in determining compliance with paragraph (a)
of this section.
Sec. 500.124 Liability bond in lieu of insurance policy.
Financial responsibility in lieu of insurance may be evidenced by a
liability bond executed as the ``principal'' by the person who will be
transporting a migrant or seasonal agricultural worker, together with a
third party identified in the instrument as the ``surety'', to assure
payment of any liability up to $500,000 for damages to persons or
property arising out of such person's ownership of, operation of, or
causing to be operated any vehicle for the transportation of such worker
in connection with the person's business, activities, or operations. The
``surety'' shall be one which appears on the list contained in Treasury
Department Circular 570, or which has been approved by the Secretary
under the Employee Retirement Income Security Act of 1974 (Pub. L. 93-
406). Treasury Department Circular 570 may be obtained from the U.S.
Treasury Department, Audit Staff, Bureau of Government Financial
Operations, Washington, DC 20226.
Sec. 500.125 Qualifications and eligibility of insurance carrier or
surety.
A policy of insurance or liability bond does not satisfy the
financial responsibility of requirements of the Act and these
regulations unless the insurer or surety furnishing the policy or bond
to any farm labor contractor, agricultural employer or agricultural
association is:
(a) Legally authorized to issue such policies or bonds in the State
in which the transportation occurs; or
(b) Legally authorized to issue such policies or bonds in the State
in which the farm labor contractor, agricultural employer or
agricultural association has its principal place of business or
permanent residence and is willing to designate a person upon whom
process, issued by or under the authority of any court having
jurisdiction of the subject matter, may be served in any proceeding at
law or equity brought in any State in which the transportation occurs;
or
(c) Legally authorized to issue such policies or bonds in any State
of the United States and eligible as an excess or surplus lines insurer
in any State in which business is written and is willing to designate a
person upon whom process, issued by or under the authority of any court
having jurisdiction of the subject matter, may be served in any
proceeding at law or equity brought in any State in which the
transportation occurs.
Sec. 500.126 Duration of insurance or liability bond.
Any insurance policy or liability bond which is obtained pursuant to
the Act shall provide the required coverage for the full period during
which the person shall be engaged in transporting any migrant or
seasonal agricultural worker within the meaning of the Act.
Sec. 500.127 Limitations on cancellation of insurance or liability
bond of registered farm labor contractors.
Any insurance policy or liability bond obtained by a farm labor
contractor who is required to register with the Department of Labor
shall provide that it shall not be cancelled, rescinded, or suspended,
nor become void for any reason whatsoever during such period in which
the insurance or liability bond is required by the Act to be effective,
except upon the expiration of the term for which it is written; or
unless the parties desiring to cancel shall have first given thirty (30)
days notice to the Administrator. The notice will include a statement
setting forth the reason for cancellation, rescission, suspension, or
any other termination of
[[Page 42]]
such policy or bond. The notice shall be in writing and forwarded via
certified or registered mail, addressed to the Administrator of the Wage
and Hour Division, U.S. Department of Labor, Washington, DC 20210. Said
thirty (30) days notice shall commence to run from the date notice is
actually received by the Administrator.
Sec. 500.128 Cancellation of insurance policy or liability bond not
relief from insurance requirements.
Cancellation, rescission, suspension, or any other termination of
any insurance policy or liability bond required by the Act does not
relieve a person who transports or causes to be transported any migrant
or seasonal agricultural worker in any vehicle under
his ownership or control of the responsibility to comply with the
insurance requirements specified in Sec. Sec. 500.121, 500.122 and
500.123.
Housing Safety and Health
Sec. 500.130 Application and scope of safety and health requirement.
(a) Each person who owns or controls a facility or real property
which is used as housing for any migrant agricultural worker must ensure
that the facility or real property complies with all substantive Federal
and State safety and health standards applicable to such housing. If
more than one person is involved in providing the housing for any
migrant agricultural worker (for example, when an agricultural employer
owns it and a farm labor contractor or any other person operates it),
both persons are responsible for ensuring that the facility or real
property meets the applicable Federal and State housing standards.
(b) A farm labor contractor, agricultural employer, agricultural
association or any other person is deemed an ``owner'' of a housing
facility or real property if said person has a legal or equitable
interest in such facility or real property.
(c) A farm labor contractor, agricultural employer, agricultural
association or any other person is in ``control'' of a housing facility
or real property, regardless of the location of such facility, if said
person is in charge of or has the power or authority to oversee, manage,
superintend or administer the housing facility or real property either
personally or through an authorized agent or employee, irrespective of
whether compensation is paid for engaging in any of the aforesaid
capacities.
(d) The Occupational Safety and Health Administration (OSHA) is the
agency of the U.S. Department of Labor which administers the
Occupational Safety and Health Act (29 U.S.C. 651 et seq.) which
provides for the establishment of safety and health standards generally.
(e) The Employment and Training Administration (ETA) is the agency
of the U.S. Department of Labor which administers the U.S. Employment
Service pursuant to the Wagner-Peyser Act (29 U.S.C. 49 et seq.)
including the interstate clearance order system.
Sec. 500.131 Exclusion from housing safety and health requirement.
The housing safety and health requirements do not apply to any
person who, in the ordinary course of that person's business, regularly
provides housing on a commercial basis to the general public and who
provides housing to any migrant agricultural worker of the same
character and on the same or comparable terms and conditions as provided
to the general public. Migrant labor housing shall not be brought within
this exception simply by offering lodging to the general public.
Sec. 500.132 Applicable Federal standards: ETA and OSHA housing
standards.
(a) The Secretary has determined that the applicable Federal housing
standards are the standards promulgated by the Employment and Training
Administration, at 20 CFR 654.404 et seq. and the standards promulgated
by the Occupational Safety and Health Administration, at 29 CFR
1910.142. Except as provided in Sec. 500.131, all migrant housing is
subject to either the ETA standards or the OSHA standards, as follows:
(1) A person who owns or controls a facility or real property to be
used for housing any migrant agricultural worker, the construction of
which was
[[Page 43]]
begun on or after April 3, 1980, and which was not under a contract for
construction as of March 4, 1980, shall comply with the substantive
Federal safety and health standards promulgated by OSHA at 29 CFR
1910.142. These OSHA standards are enforceable under MSPA, irrespective
of whether housing is, at any particular point in time, subject to
inspection under the Occupational Safety and Health Act.
(2) A person who owns or controls a facility or real property to be
used for housing any migrant agricultural worker which was completed or
under construction prior to April 3, 1980, or which was under a contract
for construction prior to March 4, 1980, may elect to comply with either
the substantive Federal safety and health standards promulgated by OSHA
at 29 CFR 1910.142 or the standards promulgated by ETA at 20 CFR 654.404
et seq. The ETA standards were established to provide housing
requirements for migrant housing used by an employer obtaining migrant
workers through the U.S. Employment Service. The owner or operator of
such housing may continue to rely on those standards, rather than OSHA
standards, even if the housing is not currently being provided pursuant
to a USES job placement program.
Sec. 500.133 Substantive Federal and State safety and health standards
defined.
Substantive safety and health standards include, but are not limited
to, those that provide fire prevention, an adequate and sanitary supply
of water,
plumbing maintenance, structurally sound construction of buildings,
effective maintenance of those buildings, provision of adequate heat as
weather conditions require, and reasonable protections for inhabitants
from insects and rodents. Substantive housing standards do not include
technical or procedural violations of safety and health standards.
Sec. 500.134 Compliance with State standards.
Compliance with the substantive Federal housing safety and health
standards shall not excuse noncompliance with applicable substantive
State housing safety and health standards.
Sec. 500.135 Certificate of housing inspection.
(a) Except as provided in paragraph (c) of this section, a facility
or real property to be used for housing a migrant agricultural worker
shall not be occupied by any migrant agricultural worker unless either a
State or local health authority or other appropriate agency, including a
Federal agency, has certified that the facility or real property meets
applicable safety and health standards.
(b) Except as provided in paragraph (c) of this section, the person
who owns or controls a facility or real property shall not permit it to
be occupied by any migrant agricultural worker unless a copy of a
certificate of occupancy from the State, local or Federal agency which
conducted the housing safety and health inspection is posted at the site
of the facility or real property. The original of such certificate of
occupancy shall be retained by such person for three years and made
available for inspection in accordance with section 512 of the Act.
(c) If a request for an inspection of a facility or real property is
made to the appropriate State, local or Federal agency at least forty-
five (45) days prior to the date on which it is to be occupied by a
migrant agricultural worker but the agency has not conducted an
inspection by such date, the facility or property may be occupied by
migrant agricultural workers unless prohibited by State law.
(d) Receipt and posting of a certificate of occupancy as provided
under paragraph (b) of this section, or the failure of an agency to
inspect a facility or property within the forty-five (45) day time
period, shall not relieve the person who owns or controls a facility or
property from the responsibility of ensuring that such facility or
property meets the applicable State and Federal safety and health
standards. Once such facility or property is occupied, such person shall
supervise and continually maintain such facility or property so as to
ensure that it remains in compliance with the applicable safety and
health standards.
[[Page 44]]
Subpart E_Enforcement
Sec. 500.140 General.
Whenever the Secretary believes that the Act or these regulations
have been violated he shall take such action and institute such
proceedings as he deems appropriate, including (but not limited to) the
following:
(a) Recommend to the Attorney General the institution of criminal
proceedings against any person who willfully and knowingly violates the
Act or these regulations;
(b) Recommend to the Attorney General the institution of criminal
proceedings against any farm labor contractor who recruits, hires,
employs, or uses, with knowledge, the services of any illegal alien, as
defined in Sec. 500.20(n) of these regulations, if such farm labor
contractor has:
(1) Been refused issuance or renewal of, or has failed to obtain, a
Certificate of Registration, or
(2) Is a farm labor contractor whose certificate has been suspended
or revoked;
(c) Petition any appropriate District Court of the United States for
temporary or permanent injunctive relief to prohibit violation of the
Act or these regulations by any person;
(d) Assess a civil money penalty against any person for any
violation of the Act or these regulations;
(e) Refer any unpaid civil money penalty which has become a final
and unappealable order of the Secretary or a final judgment of a court
in favor of the Secretary to the Attorney General for recovery;
(f) Revoke or suspend or refuse to issue or renew any Certificate of
Registration authorized by the Act or these regulations;
(g) Deny the facilities and services afforded by the Wagner-Peyser
Act to any farm labor contractor who refuses or fails to produce, when
asked, a valid Certificate of Registration;
(h) Institute action in any appropriate United States District Court
against any person who, contrary to the provisions of section 505(a) of
the Act, discriminates against any migrant or seasonal agricultural
worker.
Sec. 500.141 Concurrent actions.
The taking of any one of the actions referred to in Sec. 500.140
shall not be a bar to the concurrent taking of any other action
authorized by the Act and these regulations.
Sec. 500.142 Representation of the Secretary.
(a) Except as provided in section 518(a) of title 28, U.S. Code,
relating to litigation before the Supreme Court, the Solicitor of Labor
may appear for and represent the Secretary in any civil litigation
brought under the Act; but all such litigation shall be subject to the
direction and control of the Attorney General.
(b) The Solicitor of Labor, through the authorized representatives
identified in Sec. 500.231, shall represent the Secretary in all
administrative hearings under the Act and these regulations.
Sec. 500.143 Civil money penalty assessment.
(a) A civil money penalty may be assessed for each violation of the
Act or these regulations.
(b) In determining the amount of penalty to be assessed for any
violation of the Act or these regulations the Secretary shall consider
the type of violation committed and other relevant factors, including
but not limited to the following:
(1) Previous history of violation or violations of this Act and the
Farm Labor Contractor Registration Act;
(2) The number of workers affected by the violation or violations;
(3) The gravity of the violation or violations;
(4) Efforts made in good faith to comply with the Act (such as when
a joint employer agricultural employer/association provides employment-
related benefits which comply with applicable law to agricultural
workers, or takes reasonable measures to ensure farm labor contractor
compliance with legal obligations);
(5) Explanation of person charged with the violation or violations;
(6) Commitment to future compliance, taking into account the public
health, interest or safety, and whether the person has previously
violated the Act;
[[Page 45]]
(7) The extent to which the violator achieved a financial gain due
to the violation, or the potential financial loss or potential injury to
the workers.
[48 FR 36741, Aug. 12, 1983, as amended at 62 FR 11748, Mar. 12, 1997]
Sec. 500.144 Civil money penalties--payment and collection.
Where the assessment is directed in a final order by the Secretary
or in a final judgment issued by a United States District Court, the
amount of the penalty is immediately due and payable to the United
States Department of Labor. The person assessed such penalty shall remit
promptly the amount thereof, as finally determined, to the Secretary.
Payment shall be made by certified check or money order made payable and
delivered or mailed according to the instructions provided by the
Department; through the electronic pay portal located at www.pay.gov or
any successor system; or by any additional payment method deemed
acceptable by the Department.
[84 FR 59930, Nov. 7, 2019]
Sec. 500.145 Registration determinations.
Section 500.51 set forth the standards under which the Secretary may
refuse to issue or to renew, or may suspend or revoke, a Certificate of
Registration (including a Farm Labor Contractor Employee Certificate of
Registration).
Sec. 500.146 Continuation of matters involving violations of FLCRA.
(a) Any matter involving the revocation, suspension, or refusal to
renew a Certification of Registration issued under FLCRA and any matter
involving the refusal to issue a certificate authorized under FLCRA
shall continue through final administrative determination in accordance
with the provisions of FLCRA and the regulations issued thereunder.
(b) Any matter involving the assessment of a civil money penalty for
a violation of FLCRA will continue through final administrative
determination in accordance with the provisions of FLCRA and the
regulations issued thereunder.
(c) The rules of practice for implementation of administrative
enforcement for violations of FLCRA referred to the Office of the Chief
Administrative Law Judge on or after April 14, 1983, shall be the rules
of practice provided in Sec. Sec. 500.220 through 500.262 and the
official record shall be maintained in accordance with Sec. Sec.
500.270 and 500.271 of these regulations.
(d) The rules of practice for implementation of administrative
enforcement for violations of FLCRA referred to the Office of the Chief
Administrative Law Judge prior to April 14, 1983 shall be the rules of
practice provided in 29 CFR 40.201 through 40.262.
Sec. 500.147 Continuation of matters involving violations of section
106 of MSPA.
Any matter involving the revocation, suspension, refusal to issue or
to renew a certificate of registration or any matter involving the
assessment of a civil money penalty, for a violation of section 106 of
MSPA, which occurred prior to June 1, 1987, shall continue through final
administrative determination in accordance with the provisions of MSPA
and these regulations.
[54 FR 13329, Mar. 31, 1989]
Agreements With Federal and State Agencies
Sec. 500.155 Authority.
Section 513 of the Act authorizes the Secretary to enter into
agreements with Federal and State agencies (a) to use their facilities
and services, (b) to delegate (subject to subsection 513(b) of the Act)
to Federal and State agencies such authority (other than rulemaking) as
he determines may be useful in carrying out the purposes of the Act, and
(c) to allocate or transfer funds to, or otherwise pay or reimburse,
such agencies for expenses incurred pursuant to paragraphs (a) or (b) of
this section.
Sec. 500.156 Scope of agreements with Federal agencies.
Every agreement between the Secretary and any other Federal agency
under the authority referred to in Sec. 500.155 of this part shall
contain terms and conditions mutually agreeable to both parties, and
shall contain such
[[Page 46]]
delegation of authority as the Secretary deems useful.
Sec. 500.157 Scope of agreements with State agencies.
(a) Every agreement between the Secretary and any State agency under
the authority referred to in Sec. 500.155 of this part shall be in
writing.
(b) Any delegation to a State agency by the Secretary under such
authority shall be made pursuant to approval of a written State plan
submitted in accordance with Sec. 500.159 which shall: (1) Include a
description of each function to be performed, the method of performing
each such function, and the resources to be devoted to the performance
of each such function, (2) provide assurances satisfactory to the
Secretary that the State agency will comply with its description under
paragraph (b)(1) of this section and that the State agency's performance
of the delegated functions will be at least comparable to the
performance of such functions by the Department of Labor; and (3)
contain a certification of the Attorney General of such State, or, if
the Attorney General is not authorized to make such a statement, the
State official who is so authorized, that an agreement pursuant to such
State plan is valid under the laws of that State.
Sec. 500.158 Functions delegatable.
The Secretary may delegate to the State such functions as he deems
useful including the
(a) Receipt, handling and processing of applications for
certificates of registration;
(b) Issuance of certificates of registration;
(c) Conduct of various investigations; and
(d) Enforcement of the Act.
Sec. 500.159 Submission of plan.
(a) Any State agency desiring to enter into an agreement pursuant to
section 513 of the Act shall submit a State plan in such form and in
such detail as the Secretary shall direct.
(b) Each such plan shall include, at least, the following:
(1) The delegation sought;
(2) The State authority for performing such delegated functions;
(3) A description of the manner in which the State intends to carry
out such functions; and
(4) The estimated cost of carrying out such functions.
Sec. 500.160 Approved State plans.
(a) The Secretary, in accordance with the authority referred to in
Sec. 500.155 of this part, has delegated the following functions to the
States listed herein below:
------------------------------------------------------------------------
State Function
------------------------------------------------------------------------
Florida............................. Receive, handle, process
applications and issue
certificates of registration.
New Jersey.......................... Receive, handle, process
applications and issue
certificates of registration.
Virginia............................ Receive, handle, process
applications and issue
certificates of registration.
------------------------------------------------------------------------
(b) Every State agreement entered into pursuant to the authority
referred to in Sec. 500.155 of this part shall be available for public
inspection and copying in accordance with 29 CFR part 70.
(c) Every enumerated delegated function shall be valid in all
states.
[48 FR 36741, Aug. 12, 1983, as amended at 49 FR 5112, Feb. 10, 1984; 50
FR 42163, Oct. 18, 1985]
Sec. 500.161 Audits.
The Secretary shall conduct audits as he deems necessary of the
State plans, but on not less than an annual basis.
Sec. 500.162 Reports.
The Secretary shall require such reports as he deems necessary of
activities conducted pursuant to State plans, but on not less than an
annual basis.
Central Public Registry
Sec. 500.170 Establishment of registry.
The Administrator shall establish a central public registry of all
persons issued a Certificate of Registration or a Farm Labor Contractor
Employee Certificate. The central public registry shall be available at
the Regional Offices of the Wage and Hour Division and its National
Office in Washington, DC. Information filed therein shall be made
available upon request. Requests for information contained in the
registry may also be directed by mail to
[[Page 47]]
the Administrator, Wage and Hour Division. Attn: MSPA, U.S. Department
of Labor, Washington, DC 20210. Alternatively, requests for registry
information may be made by telephone by calling 1-866-4US-WAGE (1-866-
487-9243), a toll-free number, during the hours of 8 a.m. to 5 p.m., in
your time zone, Monday through Friday.
[67 FR 76986, Dec. 16, 2002]
Subpart F_Administrative Proceedings
General
Sec. 500.200 Establishment of procedures and rules of practice.
This subpart codifies and establishes the procedures and rules of
practice necessary for the administrative enforcement of the Act.
Sec. 500.201 Applicability of procedures and rules.
(a) The procedures and rules contained herein prescribe the
administrative process necessary for a determination:
(1) To suspend or revoke, or to refuse to issue or renew, a
Certificate of Registration authorized under the Act and these
regulations; and
(2) To impose an assessment of civil money penalties for violations
of the Act or of these regulations.
(b) The procedures and rules contained herein also specify the
administrative responsibility under section 102(5) of the Act with
regard to a designation by a court of the Secretary as an agent of an
applicant for a certificate of registration in any action against such
applicant, if said applicant has left the jurisdiction in which the
action is commenced or otherwise has become unavailable to accept
service.
Procedures Relating to Hearing
Sec. 500.210 Written notice of determination required.
(a) Whenever the Secretary determines to suspend or revoke, or to
refuse to issue or renew, a Certificate of Registration, the applicant
for or the holder of such certificate shall be notified in writing of
such determination.
(1) In cases involving a determination relating to a Certificate of
Registration applied for by, or issued to, a farm labor contractor,
written notice shall also be given to every applicant for or holder of a
Certificate of Registration as an employee of such contractor.
(2) In cases involving a determination relating to a Farm Labor
Contractor Employee Certificate of Registration, written notice shall
also be given to the farm labor contractor of such applicant or
certificate holder.
(b) Whenever the Secretary determines to assess a civil money
penalty for a violation of the Act or these regulations, the person
against whom such penalty is assessed shall be notified in writing of
such determination.
Sec. 500.211 Contents of notice.
The notice required by Sec. 500.210 shall:
(a) Set forth the determination of the Secretary and the reason or
reasons therefor.
(b) Set forth, in the case of a civil money penalty assessment:
(1) A description of each violation; and
(2) The amount assessed for each violation.
(c) Set forth the right to request a hearing on such determination.
(d) Inform any affected person or persons that in the absence of a
timely request for a hearing, the determination of the Secretary shall
become final and unappealable.
(e) Set forth the time and method for requesting a hearing, and the
procedures relating thereto, as set forth in Sec. 500.212.
Sec. 500.212 Request for hearing.
(a) Any person desiring to request an administrative hearing on a
determination referred to in Sec. 500.210 shall make such request in
writing to the official who issued the determination, at the Wage and
Hour Division address appearing on the determination notice. Such
request must be made no later than thirty (30) days after the date of
issuance of the notice referred to in Sec. 500.210.
(b) The request for such hearing shall be delivered in person or by
mail to the
[[Page 48]]
Wage and Hour Division office at the address appearing on the
determination notice upon which the request for a hearing is based,
within the time set forth in paragraph (a) of this section. For the
affected person's protection, if the request is by mail, it should be by
certified mail.
(c) No particular form is prescribed for any request for hearing
permitted by this part. However, any such request shall:
(1) Be typewritten or legibly written on size 8\1/2\ x
11 paper;
(2) Specify the issue or issues stated in the notice of
determination giving rise to such request;
(3) State the specific reason or reasons why the person requesting
the hearing believes such determination is in error;
(4) Be signed by the person making the request or by an authorized
representative of such person; and
(5) Include the address at which such person or authorized
representative desires to receive further communications relating
thereto.
(d) Civil money penalties under FLCRA shall be treated as follows:
(1) Determinations to assess civil money penalties for violations of
FLCRA made prior to April 14, 1983 shall continue until a final
administrative determination shall have been made in accordance with 29
CFR part 40.
(2) Determinations to assess civil money penalties for violations of
FLCRA arising prior to April 14, 1983, made on or after April 14, 1983,
shall continue until a final administrative determination shall have
been made in accordance with these regulations.
[48 FR 36741, Aug. 12, 1983, as amended at 54 FR 13329, Mar. 31, 1989;
57 FR 5942, Feb. 18, 1992; 71 FR 16665, Apr. 3, 2006]
Procedures Relating to Substituted Service
Sec. 500.215 Change of address.
(a) Pursuant to section 105(1) of the Act, every holder of a
Certificate of Registration shall notify the Secretary within thirty
(30) days of each change of permanent place of residence. Said persons
may also furnish additional mailing addresses.
(b) The notification required in paragraph (a) of this section shall
be in writing, by certified mail and addressed to the Administrator,
Wage and Hour Division, 200 Constitution Avenue NW, Washington, DC
20210.
(c) Such change of address shall be deemed effective upon receipt by
the Administrator, unless a later date is specified in the notice.
[48 FR 36741, Aug. 12, 1983, as amended at 82 FR 2227, Jan. 9, 2017]
Sec. 500.216 Substituted service.
(a) Pursuant to section 102(5) of the Act, the Secretary, when so
designated by a court, shall accept service of summons in any action
arising under the Act or these regulations against any applicant for or
any holder of a Certificate of Registration who has left the
jurisdiction in which such action is commenced or otherwise has become
unavailable to accept such service.
(b) Acceptance of service of summons referred to in paragraph (a) of
this section shall be under such terms and conditions as are set by the
court in its designation of the Secretary for the purpose of section
102(5) of the Act.
(c) To be effective, such service shall be made by delivery
personally or by certified mail, either to the Administrator of the Wage
and Hour Division in Washington, DC, or to the Administrator's
authorized representative located in the area in which the action has
been commenced.
Sec. 500.217 Responsibility of Secretary for service.
Upon receipt of any substituted service, as described in Sec.
500.216, the same shall be forwarded by certified mail to the permanent
address furnished by the person for whom service is accepted and to such
other address as may be determined appropriate by the Secretary. Such
mailing shall complete the Secretary's responsibility in connection with
the substituted service requirement of the Act.
Rules of Practice
Sec. 500.219 General.
Except as specifically provided in these regulations, the ``Rules of
Practice and Procedure for Administrative
[[Page 49]]
Hearings Before the Office of Administrative Law Judges'' established by
the Secretary at 29 CFR part 18 shall apply to administrative
proceedings under MSPA.
[48 FR 36741, Aug. 21, 1983. Redesignated at 54 FR 13329, Mar. 31, 1989]
Sec. 500.220 Service of determinations and computation of time.
(a) Service of determinations to suspend, revoke, refuse to issue,
or refuse to renew a certificate of registration or to assess a civil
money penalty shall be made by personal service to the individual,
officer of a corporation, or attorney of record or by mailing the
determination to the last known address of the individual, officer, or
attorney. If done by certified mail, service is complete upon mailing.
If done by regular mail or in person, service is complete upon receipt
by the addressee or the addressee's representative;
(b) Time will be computed beginning with the day following the
action and includes the last day of the period unless it is a Saturday,
Sunday, or Federally observed holiday, in which case the time period
includes the next business day; and
(c) When a request for hearing is filed by mail, five (5) days shall
be added to the prescribed period during which the party has the right
to request a hearing on the determination.
[54 FR 13329, Mar. 31, 1989]
Sec. 500.221 Commencement of proceeding.
Each administrative proceeding permitted under the Act and these
regulations shall be commenced upon receipt of a timely request for
hearing filed in accordance with Sec. 500.212.
Sec. 500.222 Designation of record.
Except as provided in paragraph (c) of this section:
(a) Each administrative proceeding instituted under the Act and
these regulations shall be identified of record by a number preceded by
the year and the letters ``MSPA'' and followed by one or more of the
following designations:
(1) Proceedings involving the ``refusal to issue or to renew, or to
suspend or to revoke Certificate of Registration'' shall be designated
as ``R''.
(2) Proceedings involving the ``assessment of civil money
penalties'' shall be designated as ``P''.
(3) Proceedings involving both Certificate of Registration and
assessment of civil money penalties shall be designated as ``R and P''.
(b) The number, letter(s), and designation assigned to each such
proceeding shall be clearly displayed on each pleading, motion, brief,
or other formal document filed and docketed of record.
(c) Each administrative proceeding involving violations of FLCRA
prior to April 14, 1983 and filed with the Office of the Chief
Administrative Law Judge on or after April 14, 1983, shall be identified
of record by a number preceded by the year and the letters ``FLCRA-
MSPA'' and followed by one or more of the letter designations provided
in paragraphs (a)(1) through (a)(3) of this section, i.e., (year) -
FLCRA-MSPA-()-(R and/or P).
Sec. 500.223 Caption of proceeding.
(a) Each administrative proceeding instituted under the Act and
these regulations shall be captioned in the name of the person
requesting such hearing, and shall be styled as follows:
In The Matter of __, Respondent.
(b) For the purposes of such administrative proceeding the
``Secretary of Labor'' shall be identified as plaintiff and the person
requesting such hearing shall be named as respondent.
Referral for Hearing
Sec. 500.224 Referral to Administrative Law Judge.
(a) Upon receipt of a timely request for a hearing filed pursuant to
and in accordance with Sec. 500.212, the Secretary, by the Associate
Solicitor for the Division of Fair Labor Standards or by the Regional
Solicitor for the Region in which the action arose, shall, by Order of
Reference, promptly refer an authenticated copy of the notice of
administrative determination complained of, and the original or a
duplicate copy of the request for hearing signed by the person
requesting such
[[Page 50]]
hearing or by the authorized representative of such person, to the Chief
Administrative Law Judge, for a determination in an administrative
proceeding as provided herein. The notice of administrative
determination and request for hearing shall be filed of record in the
Office of the Chief Administrative Law Judge and shall, respectively, be
given the effect of a complaint and answer thereto for purposes of the
administrative proceeding, subject to any amendment that may be
permitted under these regulations.
(b) In cases involving a denial, suspension, or revocation of a
Certificate of Registration (Farm Labor Contractor Certificate; Farm
Labor Contractor Employee Certificate) or ``certificate action,''
including those cases where the farm labor contractor has requested a
hearing on civil money penalty(ies) as well as on the certificate
action, the date of the hearing shall be not more than sixty (60) days
from the date on which the Order of Reference is filed. No request for
postponement shall be granted except for compelling reasons.
(c) A copy of the Order of Reference, together with a copy of these
regulations, shall be served by counsel for the Secretary upon the
person requesting the hearing, in the manner provided in 29 CFR 18.3.
[48 FR 36741, Aug. 12, 1983, as amended at 61 FR 24866, May 16, 1996]
Sec. 500.225 Notice of docketing.
The Chief Administrative Law Judge shall promptly notify the parties
of the docketing of each matter.
Sec. 500.226 Service upon attorneys for the Department of Labor--number
of copies.
Two copies of all pleadings and other documents required for any
administrative proceeding provided herein shall be served on the
attorneys for the Department of Labor. One copy shall be served on the
Associate Solicitor, Division of Fair Labor Standards, Office of the
Solicitor, U.S. Department of Labor, 200 Constitution Avenue, NW.,
Washington, DC 20210, and one copy on the Attorney representing the
Department in the proceeding.
Procedures Before Administrative Law Judge
Sec. 500.231 Appearances; representation of the Department of Labor.
The Associate Solicitor, Division of Fair Labor Standards, and such
other counsel, as designated, shall represent the Secretary in any
proceeding under these regulations.
Sec. 500.232 Consent findings and order.
(a) General. At any time after the commencement of a proceeding
under this part, but prior to the reception of evidence in any such
proceeding, a party may move to defer the receipt of any evidence for a
reasonable time to permit negotiation of an agreement containing consent
findings and an order disposing of the whole or any part of the
proceeding. The allowance of such deferment and the duration thereof
shall be at the discretion of the Administrative Law Judge, after
consideration of the nature of the proceeding, the requirements of the
public interest, the representations of the parties, and the probability
of an agreement being reached which will result in a just disposition of
the issues involved.
(b) Content. Any agreement containing consent findings and an order
disposing of a proceeding or any part thereof shall also provide:
(1) That the order shall have the same force and effect as an order
made after full hearing;
(2) That the entire record on which any order may be based shall
consist solely of the notice of administrative determination (or amended
notice, if one is filed), and the agreement;
(3) A waiver of any further procedural steps before the
Administrative Law Judge; and
(4) A waiver of any right to challenge or contest the validity of
the findings and order entered into in accordance with the agreement.
(c) Submission. On or before the expiration of the time granted for
negotiations, the parties or their authorized representatives or their
counsel may:
(1) Submit the proposed agreement for consideration by the
Administrative Law Judge; or
[[Page 51]]
(2) Inform the Administrative Law Judge that agreement cannot be
reached.
(d) Disposition. In the event an agreement containing consent
findings and an order is submitted within the time allowed therefor, the
Administrative Law Judge, within thirty (30) days thereafter, shall, if
satisfied with its form and substance, accept such agreement by issuing
a decision based upon the agreed findings.
Post-Hearing Procedures
Sec. 500.262 Decision and order of Administrative Law Judge.
(a) The Administrative Law Judge shall prepare, as promptly as
practicable after the expiration of the time set for filing proposed
findings and related papers a decision on the issues referred by the
Secretary.
(b) In cases involving certificate actions as described in Sec.
500.224(b), the Administrative Law Judge shall issue a decision within
ninety (90) calendar days after the close of the hearing.
(c) The decision of the Administrative Law Judge shall be limited to
a determination whether the respondent has violated the Act or these
regulations, and the appropriateness of the remedy or remedies imposed
by the Secretary. The Administrative Law Judge shall not render
determinations on the legality of a regulatory provision or the
constitutionality of a statutory provision.
(d) The decision of the Administrative Law Judge, for purposes of
the Equal Access to Justice Act (5 U.S.C. 504), shall be limited to
determinations of attorney fees and/or other litigation expenses in
adversary proceedings requested pursuant to Sec. 500.212 which involve
the modification, suspension or revocation of a Certificate of
Registration issued under the Act and these Regulations, and/or the
imposition of a civil money penalty assessed for a violation of the Act
or these Regulations. The Administrative Law Judge shall have no power
or authority to award attorney fees and/or other litigation expenses
pursuant to the provisions of the Equal Access to Justice Act or
Regulations issued thereunder in any proceeding under MSPA or these
Regulations involving the refusal to issue or renew a Certificate of
Registration.
(e) The decision of the Administrative Law Judge shall include a
statement of findings and conclusions, with reasons and basis therefor,
upon each material issue presented on the record. The decision shall
also include an appropriate order which may be to affirm, deny, reverse,
or modify, in whole or in part, the determination of the Secretary. The
reason or reasons for such order shall be stated in the decision.
(f) The Administrative Law Judge shall transmit to the Chief
Administrative Law Judge the entire record including the decision. The
Chief Administrative Law Judge shall serve copies of the decision on
each of the parties.
(g) The decision when served shall constitute the final order of the
Secretary unless the Secretary, pursuant to section 103(b)(2) or section
503(b)(2) of the Act, modifies or vacates the decision and order of the
Administrative Law Judge.
(h) Except as provided in Sec. Sec. 500.263 through 500.268, the
administrative remedies available to the parties under the Act will be
exhausted upon service of the decision of the Administrative Law Judge.
[48 FR 36741, Aug. 12, 1983, as amended at 61 FR 24866, May 16, 1996]
Modification or Vacation of Order of Administrative Law Judge
Sec. 500.263 Authority of the Administrative Review Board.
The Administrative Review Board may modify or vacate the Decision
and Order of the Administrative Law Judge whenever it concludes that the
Decision and Order:
(a) Is inconsistent with a policy or precedent established by the
Department of Labor,
(b) Encompasses determinations not within the scope of the authority
of the Administrative Law Judge,
(c) Awards attorney fees and/or other litigation expenses pursuant
to the Equal Access to Justice Act which are unjustified or excessive,
or
[[Page 52]]
(d) Otherwise warrants modifying or vacating.
[54 FR 13330, Mar. 31, 1989, as amended at 86 FR 1786, Jan. 11, 2021]
Sec. 500.264 Procedures for initiating review.
(a) Within twenty (20) days after the date of the decision of the
Administrative Law Judge, the respondent, the Administrator, or any
other party desiring review thereof, may file with the Administrative
Review Board (Board) a petition for issuance of a Notice of Intent as
described under Sec. 500.265. The petition shall be in writing and
shall contain a concise and plain statement specifying the grounds on
which review is sought. A copy of the Decision and Order of the
Administrative Law Judge shall be attached to the petition.
(b) Copies of the petition shall be served upon all parties to the
proceeding and on the Chief Administrative Law Judge.
[54 FR 13330, Mar. 31, 1989, as amended at 86 FR 1786, Jan. 11, 2021]
Sec. 500.265 Implementation by the Administrative Review Board.
(a) Whenever, on the Administrative Review Board's (Board) own
motion or upon acceptance of a party's petition, the Board believes that
a Decision and Order may warrant modifying or vacating, the Board shall
issue a Notice of Intent to modify or vacate.
(b) The Notice of Intent to Modify or Vacate a Decision and Order
shall specify the issue or issues to be considered, the form in which
submission shall be made (i.e., briefs, oral argument, etc.), and the
time within which such presentation shall be submitted. The Board shall
closely limit the time within which the briefs must be filed or oral
presentations made, so as to avoid unreasonable delay.
(c) The Notice of Intent shall be issued within thirty (30) days
after the date of the Decision and Order in question.
(d) Service of the Notice of Intent shall be made upon each party to
the proceeding, and upon the Chief Administrative Law Judge, in
accordance with 29 CFR part 26.
[86 FR 1786, Jan. 11, 2021]
Sec. 500.266 Responsibility of the Office of Administrative Law Judges.
Upon receipt of the Administrative Review Board's (Board) Notice of
Intent to Modify or Vacate a Decision and Order of an Administrative Law
Judge, the Chief Administrative Law Judge shall, within fifteen (15)
days, index, certify, and forward a copy of the complete hearing record
to the Board.
[48 FR 36741, Aug. 21, 1983. Redesignated at 54 FR 13330, Mar. 31, 1989,
as amended at 86 FR 1786, Jan. 11, 2021]
Sec. 500.267 Filing and service.
(a) Filing. All documents submitted to the Administrative Review
Board (Board) shall be filed in accordance with 29 CFR part 26.
(b) Computation of time for delivery. Documents are not deemed filed
with the Board until actually received by that office. All documents,
including documents filed by mail, must be received by the Board either
on or before the due date.
(c) Manner and proof of service. A copy of all documents filed with
the Board shall be served upon all other parties involved in the
proceeding. Service under this section shall be in accordance with 29
CFR part 26.
[86 FR 1786, Jan. 11, 2021]
Sec. 500.268 Decision of the Administrative Review Board.
(a) The Administrative Review Board's (Board) Decision and Order
shall be issued within 120 days from the notice of intent granting the
petition, except that in cases involving the review of an Administrative
Law Judge decision in a certificate action as described in Sec.
500.224(b), the Board's decision shall be issued within ninety (90) days
from the date such notice. The Board's Decision and Order shall be
served upon all parties and the Chief Administrative Law Judge, in
accordance with 29 CFR part 26.
(b) Upon receipt of an Order of the Board modifying or vacating the
Decision and Order of an Administrative Law Judge, the Chief
Administrative Law Judge shall substitute such Order for the Decision
and Order of the Administrative Law Judge.
[[Page 53]]
(c) The Board's decision is subject to discretionary review by the
Secretary as provided in Secretary's Order 01-2020 (or any successor to
that order).
[86 FR 1786, Jan. 11, 2021]
Sec. 500.269 Stay pending decision of the Secretary.
(a) The filing of a petition seeking review by the Secretary of a
Decision and Order of an Administrative Law Judge, pursuant to Sec.
500.264, does not stop the running of the thirty-day time limit in which
respondent may file an appeal to obtain a review in the United States
District Court of an administrative order, as provided in section
103(b)(2) or section 503(b)(2) of the Act, unless the Secretary issues a
Notice of Intent pursuant to Sec. 500.265.
(b) In the event a respondent has filed a notice of appeal of the
Administrative Law Judge's Decision and Order in a United States
District Court and the Secretary issues a Notice of Intent, the
Secretary will seek a stay of proceedings in the Court until such time
as the Secretary issues the final decision, as provided in Sec.
500.268.
(c) Where the Secretary has issued a Notice of Intent, the time for
filing an appeal under sections 103(b)(2) or 503(b)(2) of the Act shall
commence from the date of the issuance of the Secretary's final
decision, as provided in Sec. 500.268.
[54 FR 13330, Mar. 31, 1989]
Record
Sec. 500.270 Retention of official record.
The official record of every completed administrative hearing
provided by these regulations shall be maintained and filed under the
custody and control of the Chief Administrative Law Judge.
Sec. 500.271 Certification of official record.
Upon receipt of timely notice of appeal to a United States District
Court pursuant to section 103(c) or 503(c) of the Act, the Chief
Administrative Law Judge shall promptly certify and file with the
appropriate United States District Court, a full, true, and correct copy
of the entire record, including the transcript of proceedings.
PART 501_ENFORCEMENT OF CONTRACTUAL OBLIGATIONS FOR TEMPORARY AGRICULTURAL
WORKERS ADMITTED UNDER SECTION 218 OF THE IMMIGRATION AND NATIONALITY ACT--
Table of Contents
Subpart A_General Provisions
Sec.
501.0 Introduction.
501.1 Purpose and scope.
501.2 Coordination between Federal agencies.
501.3 Definitions.
501.4 Discrimination prohibited.
501.5 Waiver of rights prohibited.
501.6 Investigation authority of the Secretary.
501.7 Cooperation with Federal officials.
501.8 Accuracy of information, statements, and data.
501.9 Enforcement of surety bond.
Subpart B_Enforcement
501.15 Enforcement.
501.16 Sanctions and remedies--general.
501.17 Concurrent actions.
501.18 Representation of the Secretary.
501.19 Civil money penalty assessment.
501.20 Debarment and revocation.
501.21 Failure to cooperate with investigations.
501.22 Civil money penalties--payment and collection.
Subpart C_Administrative Proceedings
501.30 Applicability of procedures and rules in this subpart.
Procedures Relating to Hearing
501.31 Written notice of determination required.
501.32 Contents of notice.
501.33 Request for hearing.
Rules of Practice
501.34 General.
501.35 Commencement of proceeding.
501.36 Caption of proceeding.
Referral for Hearing
501.37 Referral to Administrative Law Judge.
501.38 Notice of docketing.
501.39 Service upon attorneys for the Department of Labor--number of
copies.
[[Page 54]]
Procedures Before Administrative Law Judge
501.40 Consent findings and order.
Post-Hearing Procedures
501.41 Decision and order of Administrative Law Judge.
Review of Administrative Law Judge's Decision
501.42 Procedures for initiating and undertaking review.
501.43 Responsibility of the Office of Administrative Law Judges.
501.44 Additional information, if required.
501.45 Decision of the Administrative Review Board.
Record
501.46 Retention of official record.
501.47 Certification.
Authority: 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c), and 1188; 28
U.S.C. 2461 note; and sec. 701, Pub. L. 114-74, 129 Stat. 584.
Source: 87 FR 61822, Oct. 12, 2022, unless otherwise noted.
Subpart A_General Provisions
Sec. 501.0 Introduction.
The regulations in this part cover the enforcement of all
contractual obligations, including requirements under 8 U.S.C. 1188 and
20 CFR part 655, subpart B, applicable to the employment of H-2A workers
and workers in corresponding employment, including obligations to offer
employment to eligible United States (U.S.) workers and to not lay off
or displace U.S. workers in a manner prohibited by the regulations in
this part or 20 CFR part 655, subpart B.
Sec. 501.1 Purpose and scope.
(a) Statutory standards. The standard in 8 U.S.C. 1188 provides
that:
(1) An H-2A Petition to import an H-2A worker, as defined at 8
U.S.C. 1188, may not be approved by the Secretary of the Department of
Homeland Security (DHS) unless the petitioner has applied for and
received a temporary agricultural labor certification from the Secretary
of Labor (Secretary). The temporary agricultural labor certification
establishes that:
(i) There are not sufficient workers who are able, willing, and
qualified, and who will be available at the time and place needed, to
perform the labor or services involved in the H-2A Petition; and
(ii) The employment of the H-2A worker in such labor or services
will not adversely affect the wages and working conditions of workers in
the United States similarly employed.
(2) The Secretary is authorized to take actions that assure
compliance with the terms and conditions of employment under 8 U.S.C.
1188, the regulations at 20 CFR part 655, subpart B, or the regulations
in this part, including imposing appropriate penalties, and seeking
injunctive relief and specific performance of contractual obligations.
See 8 U.S.C. 1188(g)(2).
(b) Authority and role of the Office of Foreign Labor Certification.
The Secretary has delegated authority to the Assistant Secretary for the
Employment and Training Administration (ETA), who in turn has delegated
that authority to the Office of Foreign Labor Certification (OFLC), to
issue certifications and carry out other statutory responsibilities as
required by 8 U.S.C. 1188. Determinations on an Application for
Temporary Employment Certification are made by the OFLC Administrator
who, in turn, may delegate this responsibility to designated staff,
e.g., a Certifying Officer (CO).
(c) Authority of the Wage and Hour Division. The Secretary has
delegated authority to the Wage and Hour Division (WHD) to conduct
certain investigatory and enforcement functions with respect to terms
and conditions of employment under 8 U.S.C. 1188, 20 CFR part 655,
subpart B, and this part (``the H-2A program''), and to carry out other
statutory responsibilities required by 8 U.S.C. 1188. Certain
investigatory, inspection, and law enforcement functions to carry out
the provisions under 8 U.S.C. 1188 have been delegated by the Secretary
to the WHD. In general, matters concerning the obligations under a work
contract between an employer of H-2A workers and the H-2A workers and
workers in corresponding employment are enforced by WHD, including
whether employment was offered to U.S. workers as required under 8
U.S.C. 1188 or 20 CFR part 655, subpart B, or whether U.S. workers were
laid off or displaced in violation of program
[[Page 55]]
requirements under 8 U.S.C. 1188, 20 CFR part 655, subpart B, or this
part. Included within the enforcement responsibility of WHD are such
matters as the payment of required wages, transportation, meals, and
housing provided during the employment. WHD has the responsibility to
carry out investigations, inspections, and law enforcement functions and
in appropriate instances to impose penalties, to debar from future
certifications, to recommend revocation of existing certification(s),
and to seek injunctive relief and specific performance of contractual
obligations, including recovery of unpaid wages and reinstatement of
laid off or displaced U.S. workers.
(d) Concurrent authority. OFLC and WHD have concurrent authority to
impose a debarment remedy pursuant to 20 CFR 655.182 and Sec. 501.20.
(e) Effect of regulations. The enforcement functions carried out by
WHD under 8 U.S.C. 1188, 20 CFR part 655, subpart B, and this part apply
to the employment of any H-2A worker and any other worker in
corresponding employment as the result of any Application for Temporary
Employment Certification processed under 20 CFR 655.102(c).
Sec. 501.2 Coordination between Federal agencies.
(a) Complaints received by ETA or any State Workforce Agency (SWA)
regarding contractual H-2A labor standards between the employer and the
worker will be immediately forwarded to the appropriate WHD office for
appropriate action under the regulations in this part.
(b) Information received in the course of processing applications,
program integrity measures, or enforcement actions may be shared between
OFLC and WHD or, where applicable to employer enforcement under the H-2A
program, other Departments or agencies as appropriate, including the
Department of State (DOS) and DHS.
(c) A specific violation for which debarment is imposed will be
cited in a single debarment proceeding. OFLC and WHD may coordinate
their activities to achieve this result. Copies of final debarment
decisions will be forwarded to DHS promptly.
Sec. 501.3 Definitions.
(a) Definitions of terms used in this part. The following defined
terms apply to this part:
Act. The Immigration and Nationality Act, as amended (INA), 8 U.S.C.
1101 et seq.
Administrative Law Judge (ALJ). A person within the Department of
Labor's (Department or DOL) Office of Administrative Law Judges (OALJ)
appointed pursuant to 5 U.S.C. 3105.
Administrator. See definitions of OFLC Administrator and WHD
Administrator in this paragraph (a).
Adverse effect wage rate (AEWR). The annual weighted average hourly
wage for field and livestock workers (combined) in the States or regions
as published annually by the U.S. Department of Agriculture (USDA) based
on its quarterly wage survey.
Agent. A legal entity or person, such as an association of
agricultural employers, or an attorney for an association, that:
(i) Is authorized to act on behalf of the employer for temporary
agricultural labor certification purposes;
(ii) Is not itself an employer, or a joint employer, as defined in
this part with respect to a specific application; and
(iii) Is not under suspension, debarment, expulsion, or disbarment
from practice before any court, the Department, the Executive Office for
Immigration Review, or DHS under 8 CFR 292.3 or 1003.101.
Agricultural association. Any nonprofit or cooperative association
of farmers, growers, or ranchers (including, but not limited to,
processing establishments, canneries, gins, packing sheds, nurseries, or
other similar fixed-site agricultural employers), incorporated or
qualified under applicable State law, that recruits, solicits, hires,
employs, furnishes, houses, or transports any worker that is subject to
8 U.S.C. 1188. An agricultural association may act as the agent of an
employer, or may act as the sole or joint employer of any worker subject
to 8 U.S.C. 1188.
Applicant. A U.S. worker who is applying for a job opportunity for
which an employer has filed an Application for
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Temporary Employment Certification and job order.
Application for Temporary Employment Certification. The Office of
Management and Budget (OMB)-approved Form ETA-9142A and appropriate
appendices submitted by an employer to secure a temporary agricultural
labor certification determination from DOL.
Area of intended employment (AIE). The geographic area within normal
commuting distance of the place of employment for which the temporary
agricultural labor certification is sought. There is no rigid measure of
distance that constitutes a normal commuting distance or normal
commuting area, because there may be widely varying factual
circumstances among different areas (e.g., average commuting times,
barriers to reaching the place of employment, or quality of the regional
transportation network). If a place of employment is within a
Metropolitan Statistical Area (MSA), including a multi-State MSA, any
place within the MSA is deemed to be within normal commuting distance of
the place of employment. The borders of MSAs are not controlling in the
identification of the normal commuting area; a place of employment
outside of an MSA may be within normal commuting distance of a place of
employment that is inside (e.g., near the border of) the MSA.
Attorney. Any person who is a member in good standing of the bar of
the highest court of any State, possession, territory, or commonwealth
of the United States, or the District of Columbia (DC). Such a person is
also permitted to act as an agent under this part. No attorney who is
under suspension, debarment, expulsion, or disbarment from practice
before any court, the Department, the Executive Office for Immigration
Review under 8 CFR 1003.101, or DHS under 8 CFR 292.3 may represent an
employer under this part.
Certifying Officer (CO). The person who makes a determination on an
Application for Temporary Employment Certification filed under the H-2A
program. The OFLC Administrator is the National CO. Other COs may be
designated by the OFLC Administrator to also make the determination
required under 20 CFR part 655, subpart B.
Chief Administrative Law Judge (Chief ALJ). The chief official of
the Department's OALJ or the Chief ALJ's designee.
Corresponding employment. The employment of workers who are not H-2A
workers by an employer who has an approved Application for Temporary
Employment Certification in any work included in the job order, or in
any agricultural work performed by the H-2A workers. To qualify as
corresponding employment, the work must be performed during the validity
period of the job order, including any approved extension thereof.
Department of Homeland Security (DHS). The Department of Homeland
Security, as established by 6 U.S.C. 111.
Employee. A person who is engaged to perform work for an employer,
as defined under the general common law of agency. Some of the factors
relevant to the determination of employee status include: the hiring
party's right to control the manner and means by which the work is
accomplished; the skill required to perform the work; the source of the
instrumentalities and tools for accomplishing the work; the location of
the work; the hiring party's discretion over when and how long to work;
and whether the work is part of the regular business of the hiring
party. Other applicable factors may be considered and no one factor is
dispositive.
Employer. A person (including any individual, partnership,
association, corporation, cooperative, firm, joint stock company, trust,
or other organization with legal rights and duties) that:
(i) Has an employment relationship (such as the ability to hire,
pay, fire, supervise, or otherwise control the work of employee) with
respect to an H-2A worker or a worker in corresponding employment; or
(ii) Files an Application for Temporary Employment Certification
other than as an agent; or
(iii) Is a person on whose behalf an Application of Temporary
Employment Certification is filed.
Employment and Training Administration (ETA). The agency within the
Department that includes OFLC and has
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been delegated authority by the Secretary to fulfill the Secretary's
mandate under the INA and DHS' implementing regulations in 8 CFR chapter
I, subchapter B, from the administration and adjudication of an
Application for Temporary Employment Certification and related
functions.
Federal holiday. Legal public holiday as defined at 5 U.S.C. 6103.
First date of need. The first date the employer requires the labor
or services of H-2A workers as indicated in the Application for
Temporary Employment Certification.
Fixed-site employer. Any person engaged in agriculture who meets the
definition of an employer, as those terms are defined in this part; who
owns or operates a farm, ranch, processing establishment, cannery, gin,
packing shed, nursery, or other similar fixed-site location where
agricultural activities are performed; and who recruits, solicits,
hires, employs, houses, or transports any worker subject to 8 U.S.C.
1188, 20 CFR part 655, subpart B, or this part as incident to or in
conjunction with the owner's or operator's own agricultural operation.
H-2A labor contractor (H-2ALC). Any person who meets the definition
of employer under this part and is not a fixed-site employer, an
agricultural association, or an employee of a fixed-site employer or
agricultural association, as those terms are used in this part, who
recruits, solicits, hires, employs, furnishes, houses, or transports any
worker subject to 8 U.S.C. 1188, 20 CFR part 655, subpart B, or this
part.
H-2A Petition. The USCIS Form I-129, Petition for a Nonimmigrant
Worker, with H Supplement or successor form or supplement, and
accompanying documentation required by DHS for employers seeking to
employ foreign persons as H-2A nonimmigrant workers.
H-2A worker. Any temporary foreign worker who is lawfully present in
the United States and authorized by DHS to perform agricultural labor or
services of a temporary or seasonal nature pursuant to 8 U.S.C.
1101(a)(15)(H)(ii)(a), as amended.
Job offer. The offer made by an employer or potential employer of H-
2A workers to both U.S. and H-2A workers describing all the material
terms and conditions of employment, including those relating to wages,
working conditions, and other benefits.
Job opportunity. Full-time employment at a place in the United
States to which U.S. workers can be referred.
Job order. The document containing the material terms and conditions
of employment that is posted by the SWA on its interstate and intrastate
job clearance systems based on the employer's Agricultural Clearance
Order (Form ETA-790/ETA-790A and all appropriate addenda), as submitted
to the National Processing Center.
Joint employment. (i) Where two or more employers each have
sufficient definitional indicia of being a joint employer of a worker
under the common law of agency, they are, at all times, joint employers
of that worker.
(ii) An agricultural association that files an Application for
Temporary Employment Certification as a joint employer is, at all times,
a joint employer of all the H-2A workers sponsored under the Application
for Temporary Employment Certification and all workers in corresponding
employment. An employer-member of an agricultural association that files
an Application for Temporary Employment Certification as a joint
employer is a joint employer of the H-2A workers sponsored under the
joint employer Application for Temporary Employment Certification along
with the agricultural association during the period that the employer-
member employs the H-2A workers sponsored under the Application for
Temporary Employment Certification.
(iii) Employers that jointly file a joint employer Application for
Temporary Employment Certification under 20 CFR 655.131(b) are, at all
times, joint employers of all H-2A workers sponsored under the
Application for Temporary Employment Certification and all workers in
corresponding employment.
Metropolitan Statistical Area (MSA). A geographic entity defined by
OMB for use by Federal statistical agencies in collecting, tabulating,
and publishing Federal statistics. A Metropolitan Statistical Area
contains a core urban area of 50,000 or more population, and a
Micropolitan Statistical Area contains an urban core of at least 10,000
(but fewer than 50,000) population. Each
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metropolitan or micropolitan area consists of one or more counties and
includes the counties containing the core urban area, as well as any
adjacent counties that have a high degree of social and economic
integration (as measured by commuting to work) with the urban core.
National Processing Center (NPC). The offices within OFLC in which
the Cos operate and which are charged with the adjudication of
Applications for Temporary Employment Certification.
Office of Foreign Labor Certification (OFLC). OFLC means the
organizational component of ETA that provides national leadership and
policy guidance, and develops regulations and procedures to carry out
the responsibilities of the Secretary under the INA concerning the
admission of foreign workers to the United States to perform work
described in 8 U.S.C. 1101(a)(15)(H)(ii)(a).
OFLC Administrator. The primary official of OFLC, or the OFLC
Administrator's designee.
Period of employment. The time during which the employer requires
the labor or services of H-2A workers as indicated by the first and last
dates of need provided in the Application for Temporary Employment
Certification.
Piece rate. A form of wage compensation based upon a worker's
quantitative output or one unit of work or production for the crop or
agricultural activity.
Place of employment. A worksite or physical location where work
under the job order actually is performed by the H-2A workers and
workers in corresponding employment.
Secretary of Labor (Secretary). The chief official of the
Department, or the Secretary's designee.
State Workforce Agency (SWA). State government agency that receives
funds pursuant to the Wagner-Peyser Act, 29 U.S.C. 49 et seq., to
administer the State's public labor exchange activities.
Successor in interest. (i) Where an employer, agent, or attorney has
violated 8 U.S.C. 1188, 20 CFR part 655, subpart B, or this part, and
has ceased doing business or cannot be located for purposes of
enforcement, a successor in interest to that employer, agent, or
attorney may be held liable for the duties and obligations of the
violating employer, agent, or attorney in certain circumstances. The
following factors, as used under Title VII of the Civil Rights Act and
the Vietnam Era Veterans' Readjustment Assistance Act, may be considered
in determining whether an employer, agent, or attorney is a successor in
interest; no one factor is dispositive, but all of the circumstances
will be considered as a whole:
(A) Substantial continuity of the same business operations;
(B) Use of the same facilities;
(C) Continuity of the work force;
(D) Similarity of jobs and working conditions;
(E) Similarity of supervisory personnel;
(F) Whether the former management or owner retains a direct or
indirect interest in the new enterprise;
(G) Similarity in machinery, equipment, and production methods;
(H) Similarity of products and services; and
(I) The ability of the predecessor to provide relief.
(ii) For purposes of debarment only, the primary consideration will
be the personal involvement of the firm's ownership, management,
supervisors, and others associated with the firm in the violation(s) at
issue.
Temporary agricultural labor certification. Certification made by
the OFLC Administrator, based on the Application for Temporary
Employment Certification, job order, and all supporting documentation,
with respect to an employer seeking to file an H-2A Petition with DHS to
employ one or more foreign nationals as an H-2A worker, pursuant to 8
U.S.C. 1101(a)(15)(H)(ii)(a), 1184(a) and (c), and 1188, and 20 CFR part
655, subpart B.
United States. The continental United States, Alaska, Hawaii, the
Commonwealth of Puerto Rico, and the territories of Guam, the U.S.
Virgin Islands, and the Commonwealth of the Northern Mariana Islands.
U.S. Citizenship and Immigration Services (USCIS). An operational
component of DHS.
U.S. worker. A worker who is:
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(i) A citizen or national of the United States;
(ii) An individual who is lawfully admitted for permanent residence
in the United States, is admitted as a refugee under 8 U.S.C. 1157, is
granted asylum under 8 U.S.C. 1158, or is an immigrant otherwise
authorized by the INA or DHS to be employed in the United States; or
(iii) An individual who is not an unauthorized alien, as defined in
8 U.S.C. 1324a(h)(3), with respect to the employment in which the worker
is engaging.
Wage and Hour Division (WHD). The agency within the Department with
authority to conduct certain investigatory and enforcement functions, as
delegated by the Secretary, under 8 U.S.C. 1188, 20 CFR part 655,
subpart B, and this part.
Wages. All forms of cash remuneration to a worker by an employer in
payment for labor or services.
WHD Administrator. The primary official of the WHD, or the WHD
Administrator's designee.
Work contract. All the material terms and conditions of employment
relating to wages, hours, working conditions, and other benefits,
including those required by 8 U.S.C. 1188, 20 CFR part 655, subpart B,
or this part. The contract between the employer and the worker may be in
the form of a separate written document. In the absence of a separate
written work contract incorporating the required terms and conditions of
employment, agreed to by both the employer and the worker, the work
contract at a minimum will be the terms and conditions of the job order
and any obligations required under 8 U.S.C. 1188, 20 CFR part 655,
subpart B, or this part.
(b) Definition of agricultural labor or services. For the purposes
of this part, agricultural labor or services, pursuant to 8 U.S.C.
1101(a)(15)(H)(ii)(a), is defined as agricultural labor as defined and
applied in sec. 3121(g) of the Internal Revenue Code of 1986 at 26
U.S.C. 3121(g); agriculture as defined and applied in sec. 3(f) of the
Fair Labor Standards Act of 1938, as amended (FLSA), at 29 U.S.C.
203(f); the pressing of apples for cider on a farm; or logging
employment. An occupation included in either statutory definition is
agricultural labor or services, notwithstanding the exclusion of that
occupation from the other statutory definition. For informational
purposes, the statutory provisions are listed in paragraphs (b)(1)
through (3) of this section.
(1) Agricultural labor. (i) For the purpose of paragraph (b) of this
section, agricultural labor means all service performed:
(A) On a farm, in the employ of any person, in connection with
cultivating the soil, or in connection with raising or harvesting any
agricultural or horticultural commodity, including the raising,
shearing, feeding, caring for, training, and management of livestock,
bees, poultry, and fur-bearing animals and wildlife;
(B) In the employ of the owner or tenant or other operator of a
farm, in connection with the operation, management, conservation,
improvement, or maintenance of such farm and its tools and equipment, or
in salvaging timber or clearing land of brush and other debris left by a
hurricane, if the major part of such service is performed on a farm;
(C) In connection with the production or harvesting of any commodity
defined as an agricultural commodity in sec. 15(g) of the Agricultural
Marketing Act, as amended, 12 U.S.C. 1141j, or in connection with the
ginning of cotton, or in connection with the operation or maintenance of
ditches, canals, reservoirs, or waterways, not owned or operated for
profit, used exclusively for supplying and storing water for farming
purposes;
(D) In the employ of the operator of a farm in handling, planting,
drying, packing, packaging, processing, freezing, grading, storing, or
delivering to storage or to market or to a carrier for transportation to
market, in its unmanufactured state, any agricultural or horticultural
commodity; but only if such operator produced more than one-half of the
commodity with respect to which such service is performed;
(E) In the employ of a group of operators of farms (other than a
cooperative organization) in the performance of service described in
paragraph (b)(1)(i)(D) of this section but only if such operators
produced all of the commodity with respect to which such
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service is performed. For purposes of this paragraph (b)(1)(i)(E), any
unincorporated group of operators shall be deemed a cooperative
organization if the number of operators comprising such group is more
than 20 at any time during the calendar year in which such service is
performed;
(F) The provisions of paragraphs (b)(1)(i)(D) and (E) of this
section shall not be deemed to be applicable with respect to service
performed in connection with commercial canning or commercial freezing
or in connection with any agricultural or horticultural commodity after
its delivery to a terminal market for distribution for consumption; or
(G) On a farm operated for profit if such service is not in the
course of the employer's trade or business or is domestic service in a
private home of the employer.
(ii) As used in this section, the term ``farm'' includes stock,
dairy, poultry, fruit, fur-bearing animal, and truck farms, plantations,
ranches, nurseries, ranges, greenhouses, or other similar structures
used primarily for the raising of agricultural or horticultural
commodities, and orchards.
(2) Agriculture. For purposes of paragraph (b) of this section,
agriculture means farming in all its branches and among other things
includes the cultivation and tillage of the soil, dairying, the
production, cultivation, growing, and harvesting of any agricultural or
horticultural commodities (including commodities defined as agricultural
commodities in 12 U.S.C. 1141j(g), the raising of livestock, bees, fur-
bearing animals, or poultry, and any practices (including any forestry
or lumbering operations) performed by a farmer or on a farm as an
incident to or in conjunction with such farming operations, including
preparation for market, delivery to storage or to market or to carriers
for transportation to market. See 29 U.S.C. 203(f), as amended. Under 12
U.S.C. 1141j(g), agricultural commodities include, in addition to other
agricultural commodities, crude gum (oleoresin) from a living tree, and
the following products as processed by the original producer of the
crude gum (oleoresin) from which derived: gum spirits of turpentine and
gum rosin. In addition, as defined in 7 U.S.C. 92, gum spirits of
turpentine means spirits of turpentine made from gum (oleoresin) from a
living tree and gum rosin means rosin remaining after the distillation
of gum spirits of turpentine.
(3) Apple pressing for cider. The pressing of apples for cider on a
farm, as the term farm is defined and applied in sec. 3121(g) of the
Internal Revenue Code at 26 U.S.C. 3121(g), or as applied in sec. 3(f)
of the FLSA at 29 U.S.C. 203(f), pursuant to 29 CFR part 780.
(4) Logging employment. Logging employment is operations associated
with felling and moving trees and logs from the stump to the point of
delivery, such as, but not limited to, marking danger trees, marking
trees or logs to be cut to length, felling, limbing, bucking, debarking,
chipping, yarding, loading, unloading, storing, and transporting
machines, equipment and personnel to, from, and between logging sites.
(5) Employment as defined and specified in 20 CFR 655.300 through
655.304. For the purpose of paragraph (b) of this section, agricultural
labor or services includes animal shearing, commercial beekeeping, and
custom combining activities as defined and specified in 20 CFR 655.300
through 655.304.
(c) Definition of a temporary or seasonal nature. For the purposes
of this subpart, employment is of a seasonal nature where it is tied to
a certain time of year by an event or pattern, such as a short annual
growing cycle or a specific aspect of a longer cycle, and requires labor
levels far above those necessary for ongoing operations. Employment is
of a temporary nature where the employer's need to fill the position
with a temporary worker will, except in extraordinary circumstances,
last no longer than 1 year.
Sec. 501.4 Discrimination prohibited.
(a) A person may not intimidate, threaten, restrain, coerce,
blacklist, discharge, or in any manner discriminate against any person
who has:
(1) Filed a complaint under or related to 8 U.S.C. 1188 or this
part;
(2) Instituted or caused to be instituted any proceedings related to
8
[[Page 61]]
U.S.C. 1188, 20 CFR part 655, subpart B, or this part;
(3) Testified or is about to testify in any proceeding under or
related to 8 U.S.C. 1188, 20 CFR part 655, subpart B, or this part;
(4) Consulted with an employee of a legal assistance program or an
attorney on matters related to 8 U.S.C. 1188, 20 CFR part 655, subpart
B, or this part; or
(5) Exercised or asserted on behalf of themself or others any right
or protection afforded by 8 U.S.C. 1188, 20 CFR part 655, subpart B, or
this part.
(b) Allegations of discrimination against any person under paragraph
(a) of this section will be investigated by WHD. Where WHD has
determined through investigation that such allegations have been
substantiated, appropriate remedies may be sought. WHD may assess civil
money penalties, seek injunctive relief, and/or seek additional remedies
necessary to make the worker whole as a result of the discrimination, as
appropriate, initiate debarment proceedings, and recommend to OFLC
revocation of any such violator's current temporary agricultural labor
certification. Complaints alleging discrimination against workers or
immigrants based on citizenship or immigration status may also be
forwarded by WHD to the Department of Justice, Civil Rights Division,
Immigrant and Employee Rights Section.
Sec. 501.5 Waiver of rights prohibited.
A person may not seek to have an H-2A worker, a worker in
corresponding employment, or a U.S. worker improperly rejected for
employment or improperly laid off or displaced waive any rights
conferred under 8 U.S.C. 1188, 20 CFR part 655, subpart B, or this part.
Any agreement by a worker purporting to waive or modify any rights given
to said person under 8 U.S.C. 1188, 20 CFR part 655, subpart B, or this
part shall be void as contrary to public policy except as follows:
(a) Waivers or modifications of rights or obligations under 8 U.S.C.
1188, 20 CFR part 655, subpart B, or this part in favor of the Secretary
shall be valid for purposes of enforcement; and
(b) Agreements in settlement of private litigation are permitted.
Sec. 501.6 Investigation authority of the Secretary.
(a) General. The Secretary, through WHD, may investigate to
determine compliance with obligations under 8 U.S.C. 1188, 20 CFR part
655, subpart B, or this part, either pursuant to a complaint or
otherwise, as may be appropriate. In connection with such an
investigation, WHD may enter and inspect any premises, land, property,
housing, vehicles, and records (and make transcriptions thereof),
question any person, and gather any information as may be appropriate.
(b) Confidential investigation. WHD shall conduct investigations in
a manner that protects the confidentiality of any complainant or other
person who provides information to the Secretary in good faith.
(c) Report of violations. Any person may report a violation of the
obligations imposed by 8 U.S.C. 1188, 20 CFR part 655, subpart B, or
this part to the Secretary by advising any local office of the SWA, ETA,
WHD, or any other authorized representative of the Secretary. The office
or person receiving such a report shall refer it to the appropriate
office of WHD for the geographic area in which the reported violation is
alleged to have occurred.
Sec. 501.7 Cooperation with Federal officials.
All persons must cooperate with any Federal officials assigned to
perform an investigation, inspection, or law enforcement function
pursuant to 8 U.S.C. 1188 and this part during the performance of such
duties. WHD will take such action as it deems appropriate, including
initiating debarment proceedings, seeking an injunction to bar any
failure to cooperate with an investigation, and/or assessing a civil
money penalty therefor. In addition, WHD will report the matter to OFLC,
and may recommend to OFLC that the person's existing temporary
agricultural labor certification be revoked. In addition, Federal
statutes prohibiting persons from interfering with a Federal officer in
the course of official duties are found at 18 U.S.C. 111 and 114.
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Sec. 501.8 Accuracy of information, statements, and data.
Information, statements, and data submitted in compliance with 8
U.S.C. 1188 or this part are subject to 18 U.S.C. 1001, which provides,
with regard to statements or entries generally, that whoever, in any
matter within the jurisdiction of any department or agency of the United
States, knowingly and willfully falsifies, conceals, or covers up a
material fact by any trick, scheme, or device, or makes any false,
fictitious, or fraudulent statements or representations, or makes or
uses any false writing or document knowing the same to contain any
false, fictitious, or fraudulent statement or entry, shall be fined not
more than $10,000 or imprisoned not more than 5 years, or both.
Sec. 501.9 Enforcement of surety bond.
Every H-2A labor contractor (H-2ALC) must obtain a surety bond
demonstrating its ability to discharge financial obligations as set
forth in 20 CFR 655.132(c).
(a) Notwithstanding the required bond amounts set forth in 20 CFR
655.132(c), the WHD Administrator may require that an H-2ALC obtain a
bond with a higher face value amount after notice and opportunity for
hearing when it is shown based on objective criteria that the amount of
the bond is insufficient to meet potential liabilities.
(b) Upon a final decision reached pursuant to the administrative
proceedings of subpart C of this part, including any timely appeal, or
resulting from an enforcement action brought directly in a District
Court of the United States finding a violation or violations of 20 CFR
part 655, subpart B, or this part, the WHD Administrator may make a
written demand on the surety for payment of any wages and benefits,
including the assessment of interest, owed to an H-2A worker, a worker
engaged in corresponding employment, or a U.S. worker improperly
rejected or improperly laid off or displaced. The WHD Administrator
shall have 3 years from the expiration of the labor certification,
including any extension thereof, to make such written demand for payment
on the surety. This 3-year period for making a demand on the surety is
tolled by commencement of any enforcement action of the WHD
Administrator pursuant to Sec. 501.6, Sec. 501.15, or Sec. 501.16 or
the commencement of any enforcement action in a District Court of the
United States.
Subpart B_Enforcement
Sec. 501.15 Enforcement.
The investigation, inspection, and law enforcement functions to
carry out the provisions of 8 U.S.C. 1188, 20 CFR part 655, subpart B,
or this part, as provided in this part for enforcement by WHD, pertain
to the employment of any H-2A worker, any worker in corresponding
employment, or any U.S. worker improperly rejected for employment or
improperly laid off or displaced. Such enforcement includes the work
contract provisions as defined in Sec. 501.3(a).
Sec. 501.16 Sanctions and remedies--general.
Whenever the WHD Administrator believes that 8 U.S.C. 1188, 20 CFR
part 655, subpart B, or this part have been violated, such action shall
be taken and such proceedings instituted as deemed appropriate,
including, but not limited to, the following:
(a)(1) Institute appropriate administrative proceedings, including:
the recovery of unpaid wages (including recovery of recruitment fees
paid in the absence of required contract clauses (see 20 CFR
655.135(k)); the enforcement of provisions of the work contract, 8
U.S.C. 1188, 20 CFR part 655, subpart B, or this part; the assessment of
a civil money penalty; make whole relief for any person who has been
discriminated against; reinstatement and make whole relief for any U.S.
worker who has been improperly rejected for employment, or improperly
laid off or displaced; or debarment for up to 3 years.
(2) The remedies referenced in paragraph (a)(1) of this section will
be sought either directly from the employer, agent, or attorney, or from
its successor in interest, as appropriate. In the case of an H-2ALC, the
remedies will be sought from the H-2ALC directly and/or monetary relief
(other than civil money penalties) from the insurer who issued the
surety bond to
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the H-2ALC, as required by 20 CFR part 655, subpart B, and Sec. 501.9.
(b) Petition any appropriate District Court of the United States for
temporary or permanent injunctive relief, including to prohibit the
withholding of unpaid wages and/or for reinstatement, or to restrain
violation of 8 U.S.C. 1188, 20 CFR part 655, subpart B, or this part, by
any person.
(c) Petition any appropriate District Court of the United States for
an order directing specific performance of covered contractual
obligations.
Sec. 501.17 Concurrent actions.
OFLC has primary responsibility to make all determinations regarding
the issuance, denial, or revocation of a labor certification as
described in 20 CFR part 655, subpart B, and Sec. 501.1(b). WHD has
primary responsibility to make all determinations regarding the
enforcement functions as described in Sec. 501.1(c). The taking of any
one of the actions referred to above shall not be a bar to the
concurrent taking of any other action authorized by 8 U.S.C. 1188, 20
CFR part 655, subpart B, or this part. OFLC and WHD have concurrent
jurisdiction to impose a debarment remedy pursuant to 20 CFR 655.182 and
Sec. 501.20.
Sec. 501.18 Representation of the Secretary.
The Solicitor of Labor, through authorized representatives, shall
represent the WHD Administrator and the Secretary in all administrative
hearings under 8 U.S.C. 1188 and this part.
Sec. 501.19 Civil money penalty assessment.
(a) A civil money penalty may be assessed by the WHD Administrator
for each violation of the work contract, or the obligations imposed by 8
U.S.C. 1188, 20 CFR part 655, subpart B, or this part. Each failure to
pay an individual worker properly or to honor the terms or conditions of
a worker's employment required by 8 U.S.C. 1188, 20 CFR part 655,
subpart B, or this part constitutes a separate violation.
(b) In determining the amount of penalty to be assessed for each
violation, the WHD Administrator shall consider the type of violation
committed and other relevant factors. The factors that the WHD
Administrator may consider include, but are not limited to, the
following:
(1) Previous history of violation(s) of 8 U.S.C. 1188, 20 CFR part
655, subpart B, or this part;
(2) The number of H-2A workers, workers in corresponding employment,
or U.S. workers who were and/or are affected by the violation(s);
(3) The gravity of the violation(s);
(4) Efforts made in good faith to comply with 8 U.S.C. 1188, 20 CFR
part 655, subpart B, and this part;
(5) Explanation from the person charged with the violation(s);
(6) Commitment to future compliance, taking into account the public
health, interest, or safety, and whether the person has previously
violated 8 U.S.C. 1188; and
(7) The extent to which the violator achieved a financial gain due
to the violation(s), or the potential financial loss or potential injury
to the worker(s).
(c) A civil money penalty for each violation of the work contract or
a requirement of 8 U.S.C. 1188, 20 CFR part 655, subpart B, or this part
will not exceed $2,045 per violation, with the following exceptions:
(1) A civil money penalty for each willful violation of the work
contract or a requirement of 8 U.S.C. 1188, 20 CFR part 655, subpart B,
or this part, or for each act of discrimination prohibited by Sec.
501.4 shall not exceed $6,881;
(2) A civil money penalty for a violation of a housing or
transportation safety and health provision of the work contract, or any
obligation under 8 U.S.C. 1188, 20 CFR part 655, subpart B, or this
part, that proximately causes the death or serious injury of any worker
shall not exceed $68,129 per worker; and
(3) A civil money penalty for a repeat or willful violation of a
housing or transportation safety and health provision of the work
contract, or any obligation under 8 U.S.C. 1188, 20 CFR part 655,
subpart B, or this part, that proximately causes the death or serious
injury of any worker, shall not exceed $136,258 per worker.
[[Page 64]]
(4) For purposes of paragraphs (c)(2) and (3) this section, the term
serious injury includes, but is not limited to:
(i) Permanent loss or substantial impairment of one of the senses
(sight, hearing, taste, smell, tactile sensation);
(ii) Permanent loss or substantial impairment of the function of a
bodily member, organ or mental faculty, including the loss of all or
part of an arm, leg, foot, hand, or other body part; or
(iii) Permanent paralysis or substantial impairment that causes loss
of movement or mobility of an arm, leg, foot, hand, or other body part.
(d) A civil money penalty for failure to cooperate with a WHD
investigation shall not exceed $6,881 per investigation.
(e) A civil money penalty for laying off or displacing any U.S.
worker employed in work or activities that are encompassed by the
approved Application for Temporary Employment Certification for H-2A
workers in the area of intended employment either within 60 calendar
days preceding the first date of need or during the validity period of
the job order, including any approved extension thereof, other than for
a lawful, job-related reason, shall not exceed $20,439 per violation per
worker.
(f) A civil money penalty for improperly rejecting a U.S. worker who
is an applicant for employment, in violation of 8 U.S.C. 1188, 20 CFR
part 655, subpart B, or this part, shall not exceed $20,439 per
violation per worker.
[87 FR 61822, Oct. 12, 2022, as amended at 88 FR 2216, Jan. 13, 2023]
Sec. 501.20 Debarment and revocation.
(a) Debarment of an employer, agent, or attorney. The WHD
Administrator may debar an employer, agent, or attorney, or any
successor in interest to that employer, agent, or attorney from
participating in any action under 8 U.S.C. 1188, 20 CFR part 655,
subpart B, or this part, subject to the time limits set forth in
paragraph (c) of this section, if the WHD Administrator finds that the
employer, agent, or attorney substantially violated a material term or
condition of the temporary agricultural labor certification, with
respect to H-2A workers, workers in corresponding employment, or U.S.
workers improperly rejected for employment, or improperly laid off or
displaced, by issuing a Notice of Debarment.
(b) Effect on future applications. No application for H-2A workers
may be filed by a debarred employer, or any successor in interest to a
debarred employer, or by an employer represented by a debarred agent or
attorney, or by any successor in interest to any debarred agent or
attorney, subject to the time limits set forth in paragraph (c) of this
section. If such an application is filed, it will be denied without
review.
(c) Statute of limitations and period of debarment. (1) The WHD
Administrator must issue any Notice of Debarment not later than 2 years
after the occurrence of the violation.
(2) No employer, agent, or attorney, or their successors in
interest, may be debarred under this part for more than 3 years from the
date of the final agency decision.
(d) Definition of violation. For the purposes of this section, a
violation includes:
(1) One or more acts of commission or omission on the part of the
employer or the employer's agent which involve:
(i) Failure to pay or provide the required wages, benefits, or
working conditions to the employer's H-2A workers and/or workers in
corresponding employment;
(ii) Failure, except for lawful, job-related reasons, to offer
employment to qualified U.S. workers who applied for the job opportunity
for which certification was sought;
(iii) Failure to comply with the employer's obligations to recruit
U.S. workers;
(iv) Improper layoff or displacement of U.S. workers or workers in
corresponding employment;
(v) Failure to comply with one or more sanctions or remedies imposed
by the WHD Administrator for violation(s) of contractual or other H-2A
obligations, or with one or more decisions or orders of the Secretary or
a court under 8 U.S.C. 1188, 20 CFR part 655, subpart B, or this part;
(vi) Impeding an investigation of an employer under 8 U.S.C. 1188 or
this
[[Page 65]]
part, or an audit under 20 CFR part 655, subpart B;
(vii) Employing an H-2A worker outside the area of intended
employment, or in an activity/activities not listed in the job order or
outside the validity period of employment of the job order, including
any approved extension thereof;
(viii) A violation of the requirements of 20 CFR 655.135(j) or (k);
(ix) A violation of any of the provisions listed in Sec. 501.4(a);
or
(x) A single heinous act showing such flagrant disregard for the law
that future compliance with program requirements cannot reasonably be
expected.
(2) In determining whether a violation is so substantial as to merit
debarment, the factors set forth in Sec. 501.19(b) shall be considered.
(e) Procedural requirements. The Notice of Debarment must be in
writing, must state the reason for the debarment finding, including a
detailed explanation of the grounds for and the duration of the
debarment, must identify appeal opportunities under Sec. 501.33 and a
timeframe under which such rights must be exercised and must comply with
Sec. 501.32. The debarment will take effect 30 calendar days from the
date the Notice of Debarment is issued, unless a request for review is
properly filed within 30 calendar days from the issuance of the Notice
of Debarment. The timely filing of an administrative appeal stays the
debarment pending the outcome of the appeal as provided in Sec.
501.33(d).
(f) Debarment of associations, employer-members of associations, and
joint employers. If, after investigation, the WHD Administrator
determines that an individual employer-member of an agricultural
association, or a joint employer under 20 CFR 655.131(b), has committed
a substantial violation, the debarment determination will apply only to
that employer-member unless the WHD Administrator determines that the
agricultural association or another agricultural association member or
joint employer under 20 CFR 655.131(b), participated in the violation,
in which case the debarment will be invoked against the agricultural
association or other complicit agricultural association member(s) or
joint employer under 20 CFR 655.131(b) as well.
(g) Debarment involving agricultural associations acting as sole
employers. If, after investigation, the WHD Administrator determines
that an agricultural association acting as a sole employer has committed
a substantial violation, the debarment determination will apply only to
the agricultural association and any successor in interest to the
debarred agricultural association.
(h) Debarment involving agricultural associations acting as joint
employers. If, after investigation, the WHD Administrator determines
that an agricultural association acting as a joint employer with its
employer-members has committed a substantial violation, the debarment
determination will apply only to the agricultural association, and will
not be applied to any individual employer-member of the agricultural
association. However, if the WHD Administrator determines that the
employer-member participated in, had knowledge of, or had reason to know
of the violation, the debarment may be invoked against the complicit
agricultural association member as well. An agricultural association
debarred from the H-2A temporary labor certification program will not be
permitted to continue to file as a joint employer with its employer-
members during the period of the debarment.
(i) Revocation. WHD may recommend to the OFLC Administrator the
revocation of a temporary agricultural labor certification if WHD finds
that the employer:
(1) Substantially violated a material term or condition of the
approved temporary agricultural labor certification;
(2) Failed to cooperate with a DOL investigation or with a DOL
official performing an investigation, inspection, or law enforcement
function under 8 U.S.C. 1188, 20 CFR part 655, subpart B, or this part;
or
(3) Failed to comply with one or more sanctions or remedies imposed
by WHD, or with one or more decisions or orders of the Secretary or a
court order secured by the Secretary under 8 U.S.C. 1188, 20 CFR part
655, subpart B, or this part.
[[Page 66]]
Sec. 501.21 Failure to cooperate with investigations.
(a) No person shall refuse to cooperate with any employee of the
Secretary who is exercising or attempting to exercise this investigative
or enforcement authority.
(b) Where an employer (or employer's agent or attorney) does not
cooperate with an investigation concerning the employment of an H-2A
worker, a worker in corresponding employment, or a U.S. worker who has
been improperly rejected for employment or improperly laid off or
displaced, WHD may make such information available to OFLC and may
recommend that OFLC revoke the existing certification that is the basis
for the employment of the H-2A workers giving rise to the investigation.
In addition, WHD may take such action as appropriate, including
initiating proceedings for the debarment of the employer, agent, or
attorney from future certification for up to 3 years, seeking an
injunction, and/or assessing civil money penalties against any person
who has failed to cooperate with a WHD investigation. The taking of any
one action shall not bar the taking of any additional action.
Sec. 501.22 Civil money penalties--payment and collection.
Where a civil money penalty is assessed in a final order by the WHD
Administrator, by an ALJ, or by the Administrative Review Board (ARB),
the amount of the penalty must be received by the WHD Administrator
within 30 days of the date of the final order. The person assessed such
penalty shall remit the amount thereof, as finally determined, to the
Secretary. Payment shall be made by certified check or money order made
payable and delivered or mailed according to the instructions provided
by the Department; through the electronic pay portal located at
www.pay.gov or any successor system; or by any additional payment method
deemed acceptable by the Department.
Subpart C_Administrative Proceedings
Sec. 501.30 Applicability of procedures and rules in this subpart.
The procedures and rules contained in this subpart prescribe the
administrative process that will be applied with respect to a
determination to assess civil money penalties, debar, or increase the
amount of a surety bond and which may be applied to the enforcement of
provisions of the work contract, or obligations under 8 U.S.C. 1188, 20
CFR part 655, subpart B, or this part, or to the collection of monetary
relief due as a result of any violation. Except with respect to the
imposition of civil money penalties, debarment, or an increase in the
amount of a surety bond, the Secretary may, in the Secretary's
discretion, seek enforcement action in a District Court of the United
States without resort to any administrative proceedings.
Procedures Relating to Hearing
Sec. 501.31 Written notice of determination required.
Whenever the WHD Administrator decides to assess a civil money
penalty, debar, increase a surety bond, or proceed administratively to
enforce contractual obligations, or obligations under 8 U.S.C. 1188, 20
CFR part 655, subpart B, or this part, including for the recovery of the
monetary relief, the person against whom such action is taken shall be
notified in writing of such determination.
Sec. 501.32 Contents of notice.
The notice required by Sec. 501.31 shall:
(a) Set forth the determination of the WHD Administrator including
the amount of any monetary relief due or actions necessary to fulfill a
contractual obligation or obligations under 8 U.S.C. 1188, 20 CFR part
655, subpart B, or this part; the amount of any civil money penalty
assessment; whether debarment is sought and if so its term; and any
change in the amount of the surety bond, and the reason or reasons
therefor.
(b) Set forth the right to request a hearing on such determination.
[[Page 67]]
(c) Inform any affected person or persons that in the absence of a
timely request for a hearing, the determination of the WHD Administrator
shall become final and unappealable.
(d) Set forth the time and method for requesting a hearing, and the
procedures relating thereto, as set forth in Sec. 501.33.
Sec. 501.33 Request for hearing.
(a) Any person desiring review of a determination referred to in
Sec. 501.32, including judicial review, shall make a written request
for an administrative hearing to the official who issued the
determination at the WHD address appearing on the determination notice,
no later than 30 calendar days after the date of issuance of the notice
referred to in Sec. 501.32.
(b) No particular form is prescribed for any request for hearing
permitted by this part. However, any such request shall:
(1) Be typewritten or legibly written;
(2) Specify the issue or issues stated in the notice of
determination giving rise to such request;
(3) State the specific reason or reasons the person requesting the
hearing believes such determination is in error;
(4) Be signed by the person making the request or by an authorized
representative of such person; and
(5) Include the address at which such person or authorized
representative desires to receive further communications relating
thereto.
(c) The request for such hearing must be received by the official
who issued the determination, at the WHD address appearing on the
determination notice, within the time set forth in paragraph (a) of this
section. Requests may be made by certified mail or by means normally
assuring overnight delivery.
(d) The determination shall take effect on the start date identified
in the written notice of determination, unless an administrative appeal
is properly filed. The timely filing of an administrative appeal stays
the determination pending the outcome of the appeal proceedings,
provided that any surety bond remains in effect until the conclusion of
any such proceedings.
Rules of Practice
Sec. 501.34 General.
(a) Except as specifically provided in this part, the Rules of
Practice and Procedure for Administrative Hearings before the Office of
Administrative Law Judges established by the Secretary at 29 CFR part 18
shall apply to administrative proceedings described in this part.
(b) As provided in the Administrative Procedure Act, 5 U.S.C. 556,
any oral or documentary evidence may be received in proceedings under
this part. The Federal Rules of Evidence and 29 CFR part 18, subpart B,
will not apply, but principles designed to ensure production of relevant
and probative evidence shall guide the admission of evidence. The ALJ
may exclude evidence that is immaterial, irrelevant, or unduly
repetitive.
Sec. 501.35 Commencement of proceeding.
Each administrative proceeding permitted under 8 U.S.C. 1188 and the
regulations in this part shall be commenced upon receipt of a timely
request for hearing filed in accordance with Sec. 501.33.
Sec. 501.36 Caption of proceeding.
(a) Each administrative proceeding instituted under 8 U.S.C. 1188
and the regulations in this part shall be captioned in the name of the
person requesting such hearing, and shall be styled as follows: In the
Matter of ___, Respondent.
(b) For the purposes of such administrative proceedings, the WHD
Administrator shall be identified as plaintiff and the person requesting
such hearing shall be named as respondent.
Referral for Hearing
Sec. 501.37 Referral to Administrative Law Judge.
(a) Upon receipt of a timely request for a hearing filed pursuant to
and in accordance with Sec. 501.33, the WHD Administrator, by the
Associate Solicitor for the Division of Fair Labor Standards or the
Regional Solicitor for the Region in which the action arose, will, by
Order of Reference, promptly refer a copy of the notice of
administrative determination complained of, and the
[[Page 68]]
original or a duplicate copy of the request for hearing signed by the
person requesting such hearing or the authorized representative of such
person, to the Chief ALJ, for a determination in an administrative
proceeding as provided in this subpart. The notice of administrative
determination and request for hearing shall be filed of record in the
Office of the Chief Administrative Law Judge and shall, respectively, be
given the effect of a complaint and answer thereto for purposes of the
administrative proceeding, subject to any amendment that may be
permitted under 29 CFR part 18 or this part.
(b) A copy of the Order of Reference, together with a copy of this
part, shall be served by counsel for the WHD Administrator upon the
person requesting the hearing, in the manner provided in 29 CFR 18.3.
Sec. 501.38 Notice of docketing.
Upon receipt of an Order of Reference, the Chief ALJ shall appoint
an ALJ to hear the case. The ALJ shall promptly notify all interested
parties of the docketing of the matter and shall set the time and place
of the hearing. The date of the hearing shall be not more than 60
calendar days from the date on which the Order of Reference was filed.
Sec. 501.39 Service upon attorneys for the Department of Labor--number
of copies.
Two copies of all pleadings and other documents required for any
administrative proceeding provided in this subpart shall be served on
the attorneys for DOL. One copy shall be served on the Associate
Solicitor, Division of Fair Labor Standards, Office of the Solicitor,
U.S. Department of Labor, 200 Constitution Avenue NW, Washington, DC
20210, and one copy on the attorney representing the Department in the
proceeding.
Procedures Before Administrative Law Judge
Sec. 501.40 Consent findings and order.
(a) General. At any time after the commencement of a proceeding
under this part, but prior to the reception of evidence in any such
proceeding, a party may move to defer the receipt of any evidence for a
reasonable time to permit negotiation of an agreement containing consent
findings and an order disposing of the whole or any part of the
proceeding. The allowance of such deferment and the duration thereof
shall be at the discretion of the ALJ, after consideration of the nature
of the proceeding, the requirements of the public interest, the
representations of the parties, and the probability of an agreement
being reached which will result in a just disposition of the issues
involved.
(b) Content. Any agreement containing consent findings and an order
disposing of a proceeding or any part thereof shall also provide:
(1) That the order shall have the same force and effect as an order
made after full hearing;
(2) That the entire record on which any order may be based shall
consist solely of the notice of administrative determination (or amended
notice, if one is filed), and the agreement;
(3) A waiver of any further procedural steps before the ALJ; and
(4) A waiver of any right to challenge or contest the validity of
the findings and order entered into in accordance with the agreement.
(c) Submission. On or before the expiration of the time granted for
negotiations, the parties or their authorized representatives or their
counsel may:
(1) Submit the proposed agreement for consideration by the ALJ; or
(2) Inform the ALJ that agreement cannot be reached.
(d) Disposition. In the event an agreement containing consent
findings and an order is submitted within the time allowed therefor, the
ALJ, within 30 calendar days thereafter, shall, if satisfied with its
form and substance, accept such agreement by issuing a decision based
upon the agreed findings.
Post-Hearing Procedures
Sec. 501.41 Decision and order of Administrative Law Judge.
(a) The ALJ will prepare, within 60 calendar days after completion
of the
[[Page 69]]
hearing and closing of the record, a decision on the issues referred by
the WHD Administrator.
(b) The decision of the ALJ shall include a statement of the
findings and conclusions, with reasons and basis therefor, upon each
material issue presented on the record. The decision shall also include
an appropriate order which may affirm, deny, reverse, or modify, in
whole or in part, the determination of the WHD Administrator. The reason
or reasons for such order shall be stated in the decision.
(c) The decision shall be served on all parties and the ARB.
(d) The decision concerning civil money penalties, debarment,
monetary relief, and/or enforcement of other contractual obligations
under 8 U.S.C. 1188, 20 CFR part 655, subpart B, and/or this part, when
served by the ALJ shall constitute the final agency order unless the
ARB, as provided for in Sec. 501.42, determines to review the decision.
Review of Administrative Law Judge's Decision
Sec. 501.42 Procedures for initiating and undertaking review.
(a) A respondent, WHD, or any other party wishing review, including
judicial review, of the decision of an ALJ must, within 30 calendar days
of the decision of the ALJ, petition the ARB to review the decision.
Copies of the petition must be served on all parties and on the ALJ. If
the ARB does not issue a notice accepting a petition for review of the
decision within 30 calendar days after receipt of a timely filing of the
petition, or within 30 calendar days of the date of the decision if no
petition has been received, the decision of the ALJ will be deemed the
final agency action.
(b) Whenever the ARB, either on the ARB's own motion or by
acceptance of a party's petition, determines to review the decision of
an ALJ, a notice of the same shall be served upon the ALJ and upon all
parties to the proceeding.
Sec. 501.43 Responsibility of the Office of Administrative Law Judges.
Upon receipt of the ARB's notice to accept the petition, the OALJ
will promptly forward a copy of the complete hearing record to the ARB.
Sec. 501.44 Additional information, if required.
Where the ARB has determined to review such decision and order, the
ARB will notify each party of:
(a) The issue or issues raised;
(b) The form in which submissions must be made (e.g., briefs or oral
argument); and
(c) The time within which such presentation must be submitted.
Sec. 501.45 Decision of the Administrative Review Board.
The ARB's decision shall be issued within 90 days from the notice
granting the petition and served upon all parties and the ALJ.
Record
Sec. 501.46 Retention of official record.
The official record of every completed administrative hearing
provided by the regulations in this part shall be maintained and filed
under the custody and control of the Chief ALJ, or, where the case has
been the subject of administrative review, the ARB.
Sec. 501.47 Certification.
Upon receipt of a complaint seeking review of a decision issued
pursuant to this part filed in a District Court of the United States,
after the administrative remedies have been exhausted, the Chief ALJ or,
where the case has been the subject of administrative review, the ARB
shall promptly index, certify, and file with the appropriate District
Court of the United States, a full, true, and correct copy of the entire
record, including the transcript of proceedings.
PART 502_ENFORCEMENT OF CONTRACTUAL OBLIGATIONS FOR TEMPORARY ALIEN
AGRICULTURAL WORKERS ADMITTED UNDER SECTION 218 OF THE IMMIGRATION
AND NATIONALITY ACT (SUSPENDED 6-29-2009)--Table of Contents
Subpart A_General Provisions
Sec.
502.0 Introduction.
[[Page 70]]
502.1 Purpose and scope.
502.2 Coordination of intake between DOL agencies.
502.3 Discrimination prohibited.
502.4 Waiver of rights prohibited.
502.5 Investigation authority of Secretary.
502.6 Cooperation with DOL officials.
502.7 Accuracy of information, statements, data.
502.8 Surety bond.
502.10 Definitions.
Subpart B_Enforcement of Work Contracts
502.15 Enforcement.
502.16 Sanctions and Remedies--General.
502.17 Concurrent actions.
502.18 Representation of the Secretary.
502.19 Civil money penalty assessment.
502.20 Debarment and revocation.
502.21 Failure to cooperate with investigations.
502.22 Civil money penalties--payment and collection.
Subpart C_Administrative Proceedings
502.30 Applicability of procedures and rules.
Procedures Relating to Hearing
502.31 Written notice of determination required.
502.32 Contents of notice.
502.33 Request for hearing.
Rules of Practice
502.34 General.
502.35 Commencement of proceeding.
502.36 Caption of proceeding.
Referral for Hearing
502.37 Referral to Administrative Law Judge.
502.38 Notice of docketing.
502.39 Service upon attorneys for the Department of Labor--number of
copies.
Procedures Before Administrative Law Judge
502.40 Consent findings and order.
Post-Hearing Procedures
502.41 Decision and order of Administrative Law Judge.
Review of Administrative Law Judge's Decision
502.42 Procedures for initiating and undertaking review.
502.43 Responsibility of the Office of Administrative Law Judges.
502.44 Additional information, if required.
502.45 Final decision of the Administrative Review Board.
Record
502.46 Retention of official record.
502.47 Certification.
Authority: 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c), and 1188.
Source: 73 FR 77229, Dec. 18, 2008, unless otherwise noted.
Effective Date Note: At 74 FR 26008, May 29, 2009, part 501 was
redesignated as part 502, and newly designated part 502 was suspended,
effective June 29, 2009.
Subpart A_General Provisions
Sec. 502.0 Introduction.
These regulations cover the enforcement of all contractual
obligation provisions applicable to the employment of H-2A workers under
sec. 218 of the Immigration and Nationality Act (INA), as amended by the
Immigration Reform and Control Act of 1986 (IRCA). These regulations are
also applicable to the employment of United States (U.S.) workers newly
hired by employers of H-2A workers in the same occupations as the H-2A
workers during the period of time set forth in the labor certification
approved by ETA as a condition for granting H-2A certification,
including any extension thereof. Such U.S. workers hired by H-2A
employers are hereafter referred to as engaged in corresponding
employment.
Sec. 502.1 Purpose and scope.
(a) Statutory standard. Section 218(a) of the INA provides that:
(1) A petition to import an alien as an H-2A worker (as defined in
the INA) may not be approved by the Secretary of the Department of
Homeland Security (DHS) unless the petitioner has applied to the
Secretary of the United States Department of Labor (Secretary) for a
certification that:
(i) There are not sufficient workers who are able, willing, and
qualified, and who will be available at the time and place needed, to
perform the labor or services involved in the petition, and
(ii) The employment of the alien in such labor or services will not
adversely affect the wages and working conditions of workers in the U.S.
similarly employed.
(2) [Reserved]
[[Page 71]]
(b) Role of the Employment and Training Administration (ETA). The
issuance and denial of labor certification under sec. 218 of the INA has
been delegated by the Secretary to ETA, an agency within the U.S.
Department of Labor (the Department or DOL). In general, matters
concerning the obligations of an employer of H-2A workers related to the
labor certification process are administered and enforced by ETA.
Included within ETA's jurisdiction are issues such as whether U.S.
workers are available, whether adequate recruitment has been conducted,
whether there is a strike or lockout, the methodology for establishing
AEWR, whether workers' compensation insurance has been provided, whether
employment was offered to U.S. workers as required by sec. 218 of the
INA and regulations at 20 CFR part 655, subpart B, and other similar
matters. The regulations pertaining to the issuance and denial of labor
certification for temporary alien workers by the ETA are found in 20 CFR
part 655, subpart B.
(c) Role of the Employment Standards Administration (ESA), Wage and
Hour Division (WHD). (1) The Secretary is authorized to take actions
that assure compliance with the terms and conditions of employment under
sec. 218 of the INA, the regulations at 20 CFR part 655, subpart B, or
these regulations, including the assessment of civil money penalties and
seeking injunctive relief and specific performance of contractual
obligations. See 8 U.S.C. 1188(g)(2).
(2) Certain investigatory, inspection, and law enforcement functions
to carry out the provisions of sec. 218 of the INA have been delegated
by the Secretary to the ESA, WHD. In general, matters concerning the
obligations under a work contract between an employer of H-2A workers
and the H-2A workers and U.S. workers hired in corresponding employment
by H-2A employers are enforced by ESA, including whether employment was
offered to U.S. workers as required under sec. 218 of the INA or 20 CFR
part 655, subpart B, or whether U.S. workers were laid off or displaced
in violation of program requirements. Included within the enforcement
responsibility of WHD are such matters as the payment of required wages,
transportation, meals, and housing provided during the employment. The
WHD has the responsibility to carry out investigations, inspections, and
law enforcement functions and in appropriate instances impose penalties,
recommend revocation of existing certification(s) or debarment from
future certifications, and seek injunctive relief and specific
performance of contractual obligations, including recovery of unpaid
wages (either directly from the employer or in the case of an H-2A Labor
Contractors (H-2ALC), from the H-2ALC directly and/or from the insurer
who issued the surety bond to the H-2ALC as required by 20 CFR part 655,
subpart B and 29 CFR 501.8).
(d) Effect of regulations. The amendments to the INA made by Title
III of the IRCA apply to petitions and applications filed on and after
June 1, 1987. Accordingly, the enforcement functions carried out by the
WHD under the INA and these regulations apply to the employment of any
H-2A worker and any other U.S. workers hired by H-2A employers in
corresponding employment as the result of any application filed with the
Department on and after June 1, 1987.
Sec. 502.2 Coordination of intake between DOL agencies.
Complaints received by ETA or any State Workforce Agency (SWA)
regarding contractual H-2A labor standards between the employer and the
employee will be immediately forwarded to the appropriate WHD office for
appropriate action under these regulations.
Sec. 502.3 Discrimination prohibited.
(a) No person shall intimidate, threaten, restrain, coerce,
blacklist, discharge, or in any manner discriminate against any person
who has:
(1) Filed a complaint under or related to sec. 218 of the INA or
these regulations;
(2) Instituted or caused to be instituted any proceedings related to
sec. 218 of the INA or these regulations;
(3) Testified or is about to testify in any proceeding under or
related to sec. 218 of the INA or these regulations;
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(4) Exercised or asserted on behalf of himself or others any right
or protection afforded by sec. 218 of the INA or these regulations; or
(5) Consulted with an employee of a legal assistance program or an
attorney on matters related to sec. 218 of the INA, or to this subpart
or any other Department regulation promulgated pursuant to sec. 218 of
the INA.
(b) Allegations of discrimination against any person under paragraph
(a) of this section will be investigated by the WHD. Where the WHD has
determined through investigation that such allegations have been
substantiated, appropriate remedies may be sought. The WHD may assess
civil money penalties, seek injunctive relief, and/or seek additional
remedies necessary to make the employee whole as a result of the
discrimination, as appropriate, and may recommend to ETA debarment of
any such violator from future labor certification. Complaints alleging
discrimination against U.S. workers and immigrants based on citizenship
or immigration status may also be forwarded by the WHD to the Department
of Justice, Civil Rights Division, Office of Special Counsel for
Immigration-Related Unfair Employment Practices.
Sec. 502.4 Waiver of rights prohibited.
No person shall seek to have an H-2A worker, or other U.S. worker
hired in corresponding employment by an H-2A employer, waive any rights
conferred under sec. 218 of the INA, the regulations at 20 CFR part 655,
Subpart B, or under these regulations. Any agreement by an employee
purporting to waive or modify any rights inuring to said person under
the INA or these regulations shall be void as contrary to public policy,
except that a waiver or modification of rights or obligations hereunder
in favor of the Secretary shall be valid for purposes of enforcement of
the provisions of the INA or these regulations. This does not prevent
agreements to settle private litigation.
Sec. 502.5 Investigation authority of Secretary.
(a) General. The Secretary, either pursuant to a complaint or
otherwise, shall, as may be appropriate, investigate and, in connection
therewith, enter and inspect such places (including housing) and such
vehicles, and such records (and make transcriptions thereof), question
such persons and gather such information as deemed necessary by the
Secretary to determine compliance with contractual obligations under
sec. 218 of the INA or these regulations.
(b) Failure to cooperate with an investigation. Where any employer
(or employer's agent or attorney) using the services of an H-2A worker
does not cooperate with an investigation concerning the employment of H-
2A workers or U.S. workers hired in corresponding employment, the WHD
shall report such occurrence to ETA and may recommend that ETA revoke
the existing certification that is the basis for the employment of the
H-2A workers giving rise to the investigation, and the WHD may recommend
to ETA the debarment of the employer from future certification for up to
3 years. In addition, the WHD may take such action as may be
appropriate, including the seeking of an injunction and/or assessing
civil money penalties, against any person who has failed to permit the
WHD to make an investigation.
(c) Confidential investigation. The Secretary shall conduct
investigations in a manner that protects the confidentiality of any
complainant or other person who provides information to the Secretary in
good faith.
(d) Report of violations. Any person may report a violation of the
work contract obligations of sec. 218 of the INA or these regulations to
the Secretary by advising any local office of the SWA, ETA, WHD, or any
other authorized representative of the Secretary. The office or person
receiving such a report shall refer it to the appropriate office of DOL,
WHD for the geographic area in which the reported violation is alleged
to have occurred.
Sec. 502.6 Cooperation with DOL officials.
All persons must cooperate with any official of the DOL assigned to
perform an investigation, inspection, or law enforcement function
pursuant to the INA and these regulations during the performance of such
duties. The WHD
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will take such action as it deems appropriate, including seeking an
injunction to bar any failure to cooperate with an investigation and/or
assessing a civil money penalty therefore. In addition, the WHD will
report the matter to ETA, and the WHD may recommend to ETA the debarment
of the employer from future certification and/or recommend that the
person's existing labor certification be revoked. In addition, Federal
statutes prohibiting persons from interfering with a Federal officer in
the course of official duties are found at 18 U.S.C. 111 and 18 U.S.C.
1114.
Sec. 502.7 Accuracy of information, statements, data.
Information, statements and data submitted in compliance with
provisions of the Act or these regulations are subject to 18 U.S.C.
1001, which provides, with regard to statements or entries generally,
that whoever, in any matter within the jurisdiction of any department or
agency of the U.S. knowingly and willfully falsifies, conceals or covers
up by any trick, scheme, or device a material fact, or makes any false,
fictitious or fraudulent statements or representations, or makes or uses
any false writing or document knowing the same to contain any false,
fictitious or fraudulent statement or entry, shall be fined not more
than $10,000 or imprisoned not more than 5 years, or both.
Sec. 502.8 Surety bond.
(a) H-2ALCs shall obtain a surety bond to assure compliance with the
provisions of this part and 20 CFR part 655, subpart B for each labor
certification being sought. The H-2ALC shall attest on the application
for labor certification that such a bond meeting all the requirements of
this section has been obtained and shall provide on the labor
certification application form information that fully identifies the
surety, including the name, address and phone number of the surety, and
which identifies the bond by number or other identifying designation.
(b) The bond shall be payable to the Administrator, Wage and Hour
Division, United States Department of Labor. It shall obligate the
surety to pay any sums to the Administrator, WHD, for wages and benefits
owed to H-2A and U.S. workers, based on a final decision finding a
violation or violations of this part or 20 CFR part 655, subpart B
relating to the labor certification the bond is intended to cover. The
aggregate liability of the surety shall not exceed the face amount of
the bond. The bond shall be written to cover liability incurred during
the term of the period listed in the application for labor certification
made by the H-2ALC, and shall be amended to cover any extensions of the
labor certification requested by the H-2ALC. Surety bonds may not be
canceled or terminated unless 30 days' notice is provided by the surety
to the Administrator, WHD.
(c) The bond shall be in the amount of $5,000 for a labor
certification for which a H-2ALC will employ fewer than 25 employees,
$10,000 for a labor certification for which a H-2ALC will employ 25 to
49 employees, and $20,000 for a labor certification for which a H-2ALC
will employ 50 or more employees. The amount of the bond may be
increased by the Administrator, WHD after notice and an opportunity for
hearing when it is shown based on objective criteria that the amount of
the bond is insufficient to meet potential liabilities.
Sec. 502.10 Definitions.
(a) Definitions of terms used in this part. For the purpose of this
part:
Administrative Law Judge (ALJ) means a person within the
Department's Office of Administrative Law Judges appointed pursuant to 5
U.S.C. 3105, or a panel of such persons designated by the Chief
Administrative Law Judge from the Board of Alien Labor Certification
Appeals (BALCA) established by part 656 of this chapter, which will hear
and decide appeals as set forth at 20 CFR 655.115.
Administrator, WHD means the Administrator of the Wage and Hour
Division (WHD), ESA and such authorized representatives as may be
designated to perform any of the functions of the Administrator, WHD
under this part.
Adverse effect wage rate (AEWR) means the minimum wage rate that
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the Administrator of the Office of Foreign Labor Certification (OFLC)
has determined must be offered and paid to every H-2A worker employed
under the DOL-approved Application for Temporary Employment
Certification in a particular occupation and/or area, as well as to U.S.
workers hired by employers into corresponding employment during the H-2A
recruitment period, to ensure that the wages of similarly employed U.S.
workers will not be adversely affected.
Agent means a legal entity or person, such as an association of
agricultural employers, or an attorney for an association, that--
(1) Is authorized to act on behalf of the employer for temporary
agricultural labor certification purposes;
(2) Is not itself an employer, or a joint employer, as defined in
this section, with respect to a specific application; and
(3) Is not under suspension, debarment, expulsion, or disbarment
from practice before any court or the Department, the Board of
Immigration Appeals, the immigration judges, or DHS under 8 CFR 292.3,
1003.101.
Agricultural association means any nonprofit or cooperative
association of farmers, growers, or ranchers (including but not limited
to processing establishments, canneries, gins, packing sheds, nurseries,
or other fixed-site agricultural employers), incorporated or qualified
under applicable State law, that recruits, solicits, hires, employs,
furnishes, houses or transports any worker that is subject to sec. 218
of the INA. An agricultural association may act as the agent of an
employer for purposes of filing an H-2A Application for Temporary
Employment Certification, and may also act as the sole or joint employer
of H-2A workers.
Application for Temporary Employment Certification means the Office
of Management and Budget (OMB)-approved form submitted by an employer to
secure a temporary agricultural labor certification determination from
DOL. A complete submission of the Application for Temporary Employment
Certification includes the form and the initial recruitment report.
Area of intended employment means the geographic area within normal
commuting distance of the place (worksite address) of the job
opportunity for which the certification is sought. There is no rigid
measure of distance which constitutes a normal commuting area, because
there may be widely varying factual circumstances among different areas
(e.g., average commuting times, barriers to reaching the worksite,
quality of the regional transportation network, etc.). If the place of
intended employment is within a Metropolitan Statistical Area (MSA),
including a multistate MSA, any place within the MSA is deemed to be
within normal commuting distance of the place of intended employment.
The borders of MSAs are not controlling in the identification of the
normal commuting area; a location outside of an MSA may be within normal
commuting distance of a location that is inside (e.g., near the border
of) the MSA.
Department of Homeland Security (DHS) means the Federal agency
having control over certain immigration functions that, through its sub-
agency, United States Citizenship and Immigration Services (USCIS),
makes the determination under the INA on whether to grant visa petitions
filed by employers seeking H-2A workers to perform temporary
agricultural work in the U.S.
DOL or Department means the United States Department of Labor.
Eligible worker means an individual who is not an unauthorized alien
(as defined in sec. 274A(h)(3) of the INA, 8 U.S.C. 1324a(h)(3)) with
respect to the employment in which the worker is engaging.
Employee means employee as defined under the general common law of
agency. Some of the factors relevant to the determination of employee
status include: the hiring party's right to control the manner and means
by which the work is accomplished; the skill required to perform the
work; the source of the instrumentalities and tools for accomplishing
the work; the location of the work; the hiring party's discretion over
when and how long to work; and whether the work is part of the regular
business of the hiring party. Other applicable factors may be considered
and no one factor is dispositive.
[[Page 75]]
Employer means a person, firm, corporation or other association or
organization that:
(1) Has a place of business (physical location) in the U.S. and a
means by which it may be contacted for employment;
(2) Has an employer relationship with respect to H-2A employees or
related U.S. workers under this part; and
(3) Possesses, for purposes of filing an Application for Temporary
Employment Certification, a valid Federal Employer Identification Number
(FEIN).
Employment Service (ES) refers to the system of Federal and state
entities responsible for administration of the labor certification
process for temporary and seasonal agricultural employment of
nonimmigrant foreign workers. This includes the SWAs and OFLC, including
the National Processing Centers (NPCs).
Employment Standards Administration (ESA) means the agency within
DOL that includes the WHD, and which is charged with carrying out
certain investigative and enforcement functions of the Secretary under
the INA.
Employment and Training Administration (ETA) means the agency within
the DOL that includes OFLC.
Federal holiday means a legal public holiday as defined at 5 U.S.C.
6103.
Fixed-site employer means any person engaged in agriculture who
meets the definition of an employer as those terms are defined in this
part who owns or operates a farm, ranch, processing establishment,
cannery, gin, packing shed, nursery, or other similar fixed-site
location where agricultural activities are performed and who recruits,
solicits, hires, employs, houses, or transports any worker subject to
sec. 218 of the INA or these regulations as incident to or in
conjunction with the owner's or operator's own agricultural operation.
For purposes of this part, person includes any individual, partnership,
association, corporation, cooperative, joint stock company, trust, or
other organization with legal rights and duties.
H-2A Labor Contractor (H-2ALC) means any person who meets the
definition of employer in this section and is not a fixed-site employer,
an agricultural association, or an employee of a fixed-site employer or
agricultural association, as those terms are used in this part, who
recruits, solicits, hires, employs, furnishes, houses, or transports any
worker subject to sec. 218 of the INA or these regulations.
H-2A worker means any temporary foreign worker who is lawfully
present in the U.S. to perform agricultural labor or services of a
temporary or seasonal nature pursuant to sec. 101(a)(15)(H)(ii)(a) of
the INA, as amended.
INA/Act means the Immigration and Nationality Act, as amended, 8
U.S.C. 1101 et seq.
Job offer means the offer made by an employer or potential employer
of H-2A workers to eligible workers describing all the material terms
and conditions of employment, including those relating to wages, working
conditions, and other benefits.
Job opportunity means a job opening for temporary, full-time
employment at a place in the U.S. to which a U.S. worker can be
referred.
Joint employment means that where two or more employers each have
sufficient definitional indicia of employment to be considered the
employer of an employee, those employers will be considered to jointly
employ that employee. Each employer in a joint employment relationship
to an employee is considered a ``joint employer'' of that employee.
Office of Foreign Labor Certification (OFLC) means the
organizational component of the ETA that provides national leadership
and policy guidance and develops regulations and procedures to carry out
the responsibilities of the Secretary under the INA concerning the
admission of foreign workers to the U.S. to perform work described in
sec. 101(a)(15)(H)(ii)(a) of the INA, as amended.
Positive recruitment means the active participation of an employer
or its authorized hiring agent in recruiting and interviewing qualified
and eligible individuals in the area where the employer's job
opportunity is located and any other State designated by the Secretary
as an area of traditional or expected labor supply with respect to the
area where the employer's job opportunity is located, in an effort to
fill
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specific job openings with U.S. workers.
Prevailing means with respect to practices engaged in by employers
and benefits other than wages provided by employers, that:
(1) Fifty percent or more of employers in an area and for an
occupation engage in the practice or offer the benefit; but only if
(2) This 50 percent or more of employers also employs in aggregate
50 percent or more of U.S. workers in the occupation and area (including
H-2A and non-H-2A employers for purposes of determinations concerning
the provision of family housing, frequency of wage payments, and workers
supplying their own bedding, but non-H-2A employers only for
determinations concerning the provision of advance transportation and
the utilization of H-2ALCs).
Prevailing hourly wage means the hourly wage determined by the SWA
to be prevailing in the area in accordance with State-based wage
surveys.
Prevailing piece rate means that amount that is typically paid to an
agricultural worker per piece (which includes, but is not limited to, a
load, bin, pallet, bag, bushel, etc.) to be determined by the SWA
according to a methodology published by the Department. As is currently
the case, the unit of production will be required to be clearly
described; e.g., a field box of oranges (1\1/2\ bushels), a bushel of
potatoes, and Eastern apple box (1\1/2\ metric bushels), a flat of
strawberries (twelve quarts), etc.
Representative means a person or entity employed by, or duly
authorized to act on behalf of, the employer with respect to activities
entered into for, and/or attestations made with respect to, the
Application for Temporary Employment Certification.
Secretary means the Secretary of the United States Department of
Labor or the Secretary's designee.
State Workforce Agency (SWA) means the State government agency that
receives funds pursuant to the Wagner-Peyser Act to administer the
public labor exchange delivered through the State's One-Stop delivery
system in accordance with the Wagner-Peyser Act, 29 U.S.C. 49, et seq.
Separately, SWAs receive ETA grants, administered by OFLC, to assist
them in performing certain activities related to foreign labor
certification, including conducting housing inspections.
Successor in interest means that, in determining whether an employer
is a successor in interest, the factors used under Title VII of the
Civil Rights Act and the Vietnam Era Veterans' Readjustment Assistance
Act will be considered. When considering whether an employer is a
successor for purposes of this part, the primary consideration will be
the personal involvement of the firm's ownership, management,
supervisors, and others associated with the firm in the violations
resulting in a debarment recommendation. Normally, wholly new management
or ownership of the same business operation, one in which the former
management or owner does not retain a direct or indirect interest, will
not be deemed to be a successor in interest for purposes of debarment. A
determination of whether or not a successor in interest exists is based
on the entire circumstances viewed in their totality. The factors to be
considered include:
(1) Substantial continuity of the same business operations;
(2) Use of the same facilities;
(3) Continuity of the work force;
(4) Similarity of jobs and working conditions;
(5) Similarity of supervisory personnel;
(6) Similarity in machinery, equipment, and production methods;
(7) Similarity of products and services; and
(8) The ability of the predecessor to provide relief.
Temporary agricultural labor certification means the certification
made by the Secretary with respect to an employer seeking to file with
DHS a visa petition to employ one or more foreign nationals as an H-2A
worker, pursuant to secs. 101(a)(15)(H)(ii)(a), 214(a) and (c), and 218
of the INA that:
(1) There are not sufficient workers who are able, willing, and
qualified, and who will be available at the time and place needed, to
perform the agricultural labor or services involved in the petition, and
(2) The employment of the foreign worker in such agricultural labor
or
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services will not adversely affect the wages and working conditions of
workers in the U.S. similarly employed as stated at 8 U.S.C.
1101(a)(15)(H)(ii)(a), 1184(a) and (c), and 1188.
United States (U.S.), when used in a geographic sense, means the
continental United States, Alaska, Hawaii, the Commonwealth of Puerto
Rico, and the territories of Guam, the Virgin Islands, and, as of the
transition program effective date, as defined in the Consolidated
Natural Resources Act of 2008, Public Law 110-229, Title VII, the
Commonwealth of the Northern Mariana Islands.
U.S. worker means a worker who is:
(1) A citizen or national of the U.S., or;
(2) An alien who is lawfully admitted for permanent residence in the
U.S., is admitted as a refugee under sec. 207 of the INA, is granted
asylum under sec. 208 of the INA, or is an immigrant otherwise
authorized (by the INA or by DHS) to be employed in the U.S.
Wages means all forms of cash remuneration to a worker by an
employer in payment for personal services.
Work contract means all the material terms and conditions of
employment relating to wages, hours, working conditions, and other
benefits, required by the applicable regulations in subpart B of 20 CFR
part 655, Labor Certification for Temporary Agricultural Employment of
H-2A Aliens in the U.S. (H-2A Workers), or these regulations, including
those terms and conditions attested to by the H-2A employer, which
contract between the employer and the worker may be in the form of a
separate written document. In the absence of a separate written work
contract incorporating the required terms and conditions of employment,
agreed to by both the employer and the worker, the work contract at a
minimum shall be the terms of the job order, as provided in 20 CFR part
653, subpart F, and covered provisions of the work contract shall be
enforced in accordance with these regulations.
(b) Definition of agricultural labor or services of a temporary or
seasonal nature. For the purposes of this part, agricultural labor or
services of a temporary or seasonal nature means the following:
(1) Agricultural labor or services, pursuant to sec.
101(a)(15)(H)(ii)(a) of the INA (8 U.S.C. 1101(a)(15)(H)(ii)(a)), is
defined as:
(i) Agricultural labor as defined and applied in sec. 3121(g) of the
Internal Revenue Code of 1954 at 26 U.S.C. 3121(g);
(ii) Agriculture as defined and applied in sec. 3(f) of the Fair
Labor Standards Act of 1938 (FLSA) at 29 U.S.C. 203(f) (Work performed
by H-2A workers, or workers in corresponding employment, that is not
defined as agriculture in sec. 3(f) is subject to the provisions of the
FLSA as provided therein, including the overtime provisions in sec. 7(a)
at 29 U.S.C. 207(a));
(iii) The pressing of apples for cider on a farm;
(iv) Logging employment; or
(v) Handling, planting, drying, packing, packaging, processing,
freezing, grading, storing, or delivering to storage or to market or to
a carrier for transportation to market, in its unmanufactured state, any
agricultural or horticultural commodity while in the employ of the
operator of a farm where no H-2B workers are employed to perform the
same work at the same establishment; or
(vi) Other work typically performed on a farm that is not
specifically listed on the Application for Temporary Employment
Certification and is minor (i.e., less than 20 percent of the total time
worked on the job duties and activities that are listed on the
Application for Temporary Employment Certification) and incidental to
the agricultural labor or services for which the H-2A worker was sought.
(2) An occupation included in either of the statutory definitions
cited in paragraphs (b)(1)(i) and (ii) of this section is agricultural
labor or services, notwithstanding the exclusion of that occupation from
the other statutory definition.
(i) Agricultural labor for purposes of paragraph (b)(1)(i) of this
section means all services performed:
(A) On a farm, in the employ of any person, in connection with
cultivating the soil, or in connection with raising or harvesting any
agricultural or horticultural commodity, including the raising,
shearing, feeding, caring for,
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training, and management of livestock, bees, poultry, and furbearing
animals and wildlife;
(B) In the employ of the owner or tenant or other operator of a
farm, in connection with the operation or maintenance of such farm and
its tools and equipment, or in salvaging timber or clearing land of
brush and other debris left by a hurricane, if the major part of such
service is performed on a farm;
(C) In connection with the production or harvesting of any commodity
defined as an agricultural commodity in sec. 15(g) of the Agricultural
Marketing Act, as amended at 12 U.S.C. 1141j, or in connection with the
ginning of cotton, or in connection with the operation or maintenance of
ditches, canals, reservoirs, or waterways, not owned or operated for
profit, used exclusively for supplying and storing water for farming
purposes;
(D)(1) In the employ of the operator of a farm in handling,
planting, drying, packing, packaging, processing, freezing, grading,
storing, or delivering to storage or to market or to a carrier for
transportation to market, in its unmanufactured state, any agricultural
or horticultural commodity, but only if such operator produced more than
one-half of the commodity with respect to which such service is
performed;
(2) In the employ of a group of operators of farms (other than a
cooperative organization) in the performance of service described in
paragraph (b)(2)(i)(A) of this section, but only if such operators
produced all of the commodity with respect to which such service is
performed. For purposes of this paragraph, any unincorporated group of
operators will be deemed a cooperative organization if the number of
operators comprising such group is more than 20 at any time during the
calendar quarter in which such service is performed;
(3) The provisions of paragraphs (b)(2)(i)(D)(1) and (2) of this
section do not apply to services performed in connection with commercial
canning or commercial freezing or in connection with any agricultural or
horticultural commodity after its delivery to a terminal market for
distribution for consumption; or
(4) On a farm operated for profit if such service is not in the
course of the employer's trade or business and is not domestic service
in a private home of the employer.
(E) For the purposes of this section, the term farm includes stock,
dairy, poultry, fruit, fur-bearing animals, and truck farms,
plantations, ranches, nurseries, ranges, greenhouses or other similar
structures used primarily for the raising of agricultural or
horticultural commodities, and orchards. See sec. 3121(g) of the
Internal Revenue Code of 1986 (26 U.S.C. 3121(g)).
(ii) Agriculture. For purposes of paragraph (b)(1)(ii) of this
section agriculture means farming in all its branches and among other
things includes the cultivation and tillage of the soil, dairying, the
production, cultivation, growing, and harvesting of any agricultural or
horticultural commodities (including commodities as defined as
agricultural commodities in 12 U.S.C. 1141j(g)), the raising of
livestock, bees, fur-bearing animals, or poultry, and any practices
(including any forestry or lumbering operations) performed by a farmer
or on a farm as an incident to or in conjunction with such farming
operations, including preparation for market, delivery to storage or to
market or to carriers for transportation to market. See sec. 29 U.S.C.
203(f), as amended.
(iii) Agricultural commodity. For purposes of paragraph (b)(1)(ii)
of this section, agricultural commodity includes, in addition to other
agricultural commodities, crude gum (oleoresin) from a living tree, and
gum spirits of turpentine and gum rosin as processed by the original
producer of the crude gum (oleoresin) from which derived. Gum spirits of
turpentine means spirits of turpentine made from gum (oleoresin) from a
living tree and gum rosin means rosin remaining after the distillation
of gum spirits of turpentine. See 12 U.S.C. 1141j(g) (sec. 15(g) of the
Agricultural Marketing Act, as amended), and 7 U.S.C. 92.
(3) Of a temporary or seasonal nature-- (i) On a seasonal or other
temporary basis. For the purposes of this part, of a temporary or
seasonal nature means on a seasonal or other temporary basis, as defined
in the WHD's regulation at 29
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CFR 500.20 under the Migrant and Seasonal Agricultural Worker Protection
Act (MSPA).
(ii) MSPA definition. The definition of on a seasonal or other
temporary basis found in MSPA is summarized as follows:
(A) Labor is performed on a seasonal basis where, ordinarily, the
employment pertains to or is of the kind exclusively performed at
certain seasons or periods of the year and which, from its nature, may
not be continuous or carried on throughout the year. A worker who moves
from one seasonal activity to another, while employed in agriculture or
performing agricultural labor, is employed on a seasonal basis even
though the worker may continue to be employed during a major portion of
the year.
(B) A worker is employed on other temporary basis where the worker
is employed for a limited time only or the worker's performance is
contemplated for a particular piece of work, usually of short duration.
Generally, employment which is contemplated to continue indefinitely is
not temporary.
(C) On a seasonal or other temporary basis does not include
(1) The employment of any foreman or other supervisory employee who
is employed by a specific agricultural employer or agricultural
association essentially on a year round basis; or
(2) The employment of any worker who is living at his or her
permanent place of residence, when that worker is employed by a specific
agricultural employer or agricultural association on essentially a year
round basis to perform a variety of tasks for his or her employer and is
not primarily employed to do field work.
(iii) Temporary. For the purposes of this part, the definition of
temporary in paragraph (b)(3) of this section refers to any job
opportunity covered by this part where the employer needs a worker for a
position for a limited period of time, including, but not limited, to a
peakload need, which is generally less than 1 year, unless the original
temporary agricultural labor certification is extended pursuant to 20
CFR 655.110.
Subpart B_Enforcement of Work Contracts
Sec. 502.15 Enforcement.
The investigation, inspections and law enforcement functions to
carry out the provisions of sec. 218 of the INA, as provided in these
regulations for enforcement by the WHD, pertain to the employment of any
H-2A worker and any other U.S. worker hired in corresponding employment
by an H-2A employer. Such enforcement includes work contract provisions
as defined in Sec. 501.10(a). The work contract also includes those
employment benefits which are required to be stated in the job offer, as
prescribed in 20 CFR 655.104.
Sec. 502.16 Sanctions and remedies--General.
Whenever the Secretary believes that the H-2A provisions of the INA
or these regulations have been violated such action shall be taken and
such proceedings instituted as deemed appropriate, including (but not
limited to) the following:
(a) Institute appropriate administrative proceedings, including: The
recovery of unpaid wages, including wages owed to U.S. workers as a
result of a layoff or displacement prohibited by these rules (either
directly from the employer, a successor in interest, or in the case of
an H-2ALC also by claim against any surety who issued a bond to the H-
2ALC); the enforcement of covered provisions of the work contract as set
forth in 29 CFR 501.10(a); the assessment of a civil money penalty;
reinstatement; or the recommendation of debarment for up to 3 years.
(b) Petition any appropriate District Court of the U.S. for
temporary or permanent injunctive relief, including the withholding of
unpaid wages and/or reinstatement, to restrain violation of the H-2A
provisions of the INA, 20 CFR part 655, Subpart B, or these regulations
by any person.
(c) Petition any appropriate District Court of the U.S. for specific
performance of covered contractual obligations.
[[Page 80]]
Sec. 502.17 Concurrent actions.
The taking of any one of the actions referred to above shall not be
a bar to the concurrent taking of any other action authorized by the H-
2A provisions of the Act and these regulations, or the regulations of 20
CFR part 655.
Sec. 502.18 Representation of the Secretary.
(a) Except as provided in 28 U.S.C. 518(a) relating to litigation
before the Supreme Court, the Solicitor of Labor may appear for and
represent the Secretary in any civil litigation brought under the Act.
(b) The Solicitor of Labor, through authorized representatives,
shall represent the Administrator, WHD and the Secretary in all
administrative hearings under the H-2A provisions of the Act and these
regulations.
Sec. 502.19 Civil money penalty assessment.
(a) A civil money penalty may be assessed by the Administrator, WHD
for each violation of the work contract as set forth in Sec. 501.10(a)
of these regulations.
(b) In determining the amount of penalty to be assessed for any
violation of the work contract as provided in the H-2A provisions of the
Act or these regulations the Administrator, WHD shall consider the type
of violation committed and other relevant factors. The matters which may
be considered include, but are not limited to, the following:
(1) Previous history of violation or violations of the H-2A
provisions of the Act and these regulations;
(2) The number of H-2A employees, corresponding U.S. employees or
those U.S. workers individually rejected for employment affected by the
violation or violations;
(3) The gravity of the violation or violations;
(4) Efforts made in good faith to comply with the H-2A provisions of
the Act and these regulations;
(5) Explanation of person charged with the violation or violations;
(6) Commitment to future compliance, taking into account the public
health, interest or safety, and whether the person has previously
violated the H-2A provisions of the Act;
(7) The extent to which the violator achieved a financial gain due
to the violation, or the potential financial loss or potential injury to
the workers.
(c) A civil money penalty for violation of the work contract will
not exceed $1,000 for each violation committed (with each failure to pay
a worker properly or to honor the terms or conditions of a worker's
employment that is required by sec. 218 of the INA, 20 CFR 655, subpart
B, or these regulations constituting a separate violation), with the
following exceptions:
(1) For a willful failure to meet a covered condition of the work
contract, or for willful discrimination, the civil money penalty shall
not exceed $5,000 for each such violation committed (with each willful
failure to honor the terms or conditions of a worker's employment that
are required by sec. 218 of the INA, 20 CFR 655, subpart B, or these
regulations constituting a separate violation);
(2) For a violation of a housing or transportation safety and health
provision of the work contract that proximately causes the death or
serious injury of any worker, the civil money penalty shall not exceed
$25,000 per worker, unless the violation is a repeat or willful
violation, in which case the penalty shall not exceed $50,000 per
worker, or unless the employer failed, after notification, to cure the
specific violation, in which case the penalty shall not exceed $100,000
per worker.
(3) For purposes of paragraph (c)(2) of this section, the term
serious injury means:
(i) Permanent loss or substantial impairment of one of the senses
(sight, hearing, taste, smell, tactile sensation);
(ii) Permanent loss or substantial impairment of the function of a
bodily member, organ, or mental faculty, including the loss of all or
part of an arm, leg, foot, hand or other body part; or
(iii) Permanent paralysis or substantial impairment that causes loss
of movement or mobility of an arm, leg, foot, hand or other body part.
[[Page 81]]
(d) A civil money penalty for failure to cooperate with a WHD
investigation shall not exceed $5,000 per investigation;
(e) For a willful layoff or displacement of any similarly employed
U.S. worker in the occupation that is the subject of the Application for
Temporary Employment Certification in the area of intended employment
within 60 days of the date of need other than for a lawful, job-related
reason, except that such layoff shall be permitted where all H-2A
workers were laid off first, the civil penalty shall not exceed $10,000
per violation per worker.
Sec. 502.20 Debarment and revocation.
(a) The WHD shall recommend to the Administrator, OFLC the debarment
of any employer and any successor in interest to that employer (or the
employer's attorney or agent if they are a responsible party) if the WHD
finds that the employer substantially violated a material term or
condition of its temporary labor certification for the employment of
domestic or nonimmigrant workers.
(b) For purposes of this section, a substantial violation includes:
(1) A pattern or practice of acts of commission or omission on the
part of the employer or the employer's agent which:
(i) Are significantly injurious to the wages, benefits required to
be offered under the H-2A program, or working conditions of a
significant number of the employer's U.S. or H-2A workers;
(ii) Reflect a significant failure to offer employment to all
qualified domestic workers who applied for the job opportunity for which
certification was being sought, except for lawful job-related reasons;
(iii) Reflect a willful failure to comply with the employer's
obligations to recruit U.S. workers as set forth in this subpart; or
(iv) Reflect the employment of an H-2A worker outside the area of
intended employment, or in an activity/activities, not listed in the job
order (other than an activity minor and incidental to the activity/
activities listed in the job order), or after the period of employment
specified in the job order and any approved extension;
(2) A significant failure to cooperate with a DOL investigation or
with a DOL official performing an investigation, inspection, or law
enforcement function under sec. 218 of the INA, 8 U.S.C. 1188, this
subpart, or 29 CFR part 501 (ESA enforcement of contractual
obligations); or
(3) A significant failure to comply with one or more sanctions or
remedies imposed by the ESA for violation(s) of obligations found by
that agency (if applicable), or with one or more decisions or orders of
the Secretary or a court order secured by the Secretary under sec. 218
of the INA, 8 U.S.C. 1188, this subpart, or 29 CFR part 501 (ESA
enforcement of contractual obligations); or
(4) A single heinous act showing such flagrant disregard for the law
that future compliance with program requirements cannot reasonably be
expected.
(c) Procedures for Debarment Recommendation. The WHD will send to
the employer a Notice of Recommended Debarment. The Notice of
Recommended Debarment must be in writing, must state the reason for the
debarment recommendation, including a detailed explanation of the
grounds for and the duration of the recommended debarment. The debarment
recommendation will be forwarded to the Administrator, OFLC. The Notice
of Recommended Debarment shall be issued no later than 2 years after the
occurrence of the violation.
(d) The WHD may recommend to the Administrator, OFLC the revocation
of a temporary agricultural labor certification if the WHD finds that
the employer:
(1) Willfully violated a material term or condition of the approved
temporary agricultural labor certification, work contract, or this part,
unless otherwise provided under paragraphs (d)(2) through (4) of this
section.
(2) Failed, after notification, to cure a substantial violation of
the applicable housing standards set out in 20 CFR 655.104(d);
(3) Failed to cooperate with a DOL investigation or with a DOL
official performing an investigation, inspection, or law enforcement
function under sec. 218 of the INA, 8 U.S.C. 1188, this subpart, or 29
CFR part 501 (ESA
[[Page 82]]
enforcement of contractual obligations); or
(4) Failed to comply with one or more sanctions or remedies imposed
by the ESA for violation(s) of obligations found by that agency (if
applicable), or with one or more decisions or orders of the Secretary or
a court order Secured by the Secretary under sec. 218 of the INA, 8
U.S.C. 1188, this subpart, or 29 CFR part 501 (ESA enforcement of
contractual obligations).
(e) In considering a recommendation made by the WHD to debar an
employer or to revoke a temporary agricultural labor certification, the
Administrator, OFLC shall treat final agency determinations that the
employer has committed a violation as res judicata and shall not
reconsider those determinations.
Sec. 502.21 Failure to cooperate with investigations.
No person shall refuse to cooperate with any employee of the
Secretary who is exercising or attempting to exercise this investigative
or enforcement authority. As stated in Sec. Sec. 501.6 and 501.19 of
this part, a civil money penalty may be assessed for each failure to
cooperate with an investigation, and other appropriate relief may be
sought. In addition, the WHD shall report each such occurrence to ETA,
and ETA may debar the employer from future certification. The WHD may
also recommend to ETA that an existing certification be revoked. The
taking of any one action shall not bar the taking of any additional
action.
Sec. 502.22 Civil money penalties--payment and collection.
Where the assessment is directed in a final order by the
Administrator, WHD, by an ALJ, or by the ARB, the amount of the penalty
is due within 30 days and payable to the United States Department of
Labor. The person assessed such penalty shall remit promptly the amount
thereof as finally determined, to the Administrator, WHD by certified
check or by money order, made payable to the order of Wage and Hour
Division, United States Department of Labor. The remittance shall be
delivered or mailed to the WHD Regional Office for the area in which the
violations occurred.
Subpart C_Administrative Proceedings
Sec. 502.30 Applicability of procedures and rules.
The procedures and rules contained herein prescribe the
administrative process that will be applied with respect to a
determination to impose an assessment of civil money penalties, and
which may be applied to the enforcement of covered provisions of the
work contract as set forth in Sec. 501.10(a), including the collection
of unpaid wages due as a result of any violation of the H-2A provisions
of the Act or of these regulations. Except with respect to the
imposition of civil money penalties, the Secretary may, in the
Secretary's discretion, seek enforcement action in Federal court without
resort to any administrative proceedings.
Procedures Relating to Hearing
Sec. 502.31 Written notice of determination required.
Whenever the Administrator, WHD decides to assess a civil money
penalty or to proceed administratively to enforce covered contractual
obligations, including the recovery of unpaid wages, the person against
whom such action is taken shall be notified in writing of such
determination.
Sec. 502.32 Contents of notice.
The notice required by Sec. 501.31 shall:
(a) Set forth the determination of the Administrator, WHD including
the amount of any unpaid wages due or actions necessary to fulfill a
covered contractual obligation, the amount of any civil money penalty
assessment and the reason or reasons therefore.
(b) Set forth the right to request a hearing on such determination.
(c) Inform any affected person or persons that in the absence of a
timely request for a hearing, the determination of the Administrator,
WHD shall become final and unappealable.
(d) Set forth the time and method for requesting a hearing, and the
procedures relating thereto, as set forth in Sec. 501.33.
[[Page 83]]
Sec. 502.33 Request for hearing.
(a) Any person desiring review of a determination referred to in
Sec. 501.32, including judicial review, shall make a written request
for an administrative hearing to the official who issued the
determination at the WHD address appearing on the determination notice,
no later than 30 days after issuance of the notice referred to in Sec.
501.32.
(b) No particular form is prescribed for any request for hearing
permitted by this part. However, any such request shall:
(1) Be typewritten or legibly written;
(2) Specify the issue or issues stated in the notice of
determination giving rise to such request;
(3) State the specific reason or reasons why the person requesting
the hearing believes such determination is in error;
(4) Be signed by the person making the request or by an authorized
representative of such person; and
(5) Include the address at which such person or authorized
representative desires to receive further communications relating
thereto.
(c) The request for such hearing must be received by the official
who issued the determination, at the WHD address appearing on the
determination notice, within the time set forth in paragraph (a) of this
section. For the affected person's protection, if the request is by
mail, it should be by certified mail.
(d) The determination shall take effect on the start date identified
in the determination, unless an administrative appeal is properly filed.
The timely filing of an administrative appeal stays the determination
pending the outcome of the appeal proceedings.
Rules of Practice
Sec. 502.34 General.
Except as specifically provided in these regulations, the Rules of
Practice and Procedure for Administrative Hearings Before the Office of
Administrative Law Judges established by the Secretary at 29 CFR part 18
shall apply to administrative proceedings described in this part.
Sec. 502.35 Commencement of proceeding.
Each administrative proceeding permitted under the Act and these
regulations shall be commenced upon receipt of a timely request for
hearing filed in accordance with Sec. 501.33.
Sec. 502.36 Caption of proceeding.
(a) Each administrative proceeding instituted under the Act and
these regulations shall be captioned in the name of the person
requesting such hearing, and shall be styled as follows:
In the Matter of __, Respondent.
(b) For the purposes of such administrative proceedings the
Administrator, WHD shall be identified as plaintiff and the person
requesting such hearing shall be named as respondent.
Referral for Hearing
Sec. 502.37 Referral to Administrative Law Judge.
(a) Upon receipt of a timely request for a hearing filed pursuant to
and in accordance with Sec. 501.33, the Administrator, WHD, by the
Associate Solicitor for the Division of Fair Labor Standards or by the
Regional Solicitor for the Region in which the action arose, shall, by
Order of Reference, promptly refer a copy of the notice of
administrative determination complained of, and the original or a
duplicate copy of the request for hearing signed by the person
requesting such hearing or by the authorized representative of such
person, to the Chief Administrative Law Judge, for a determination in an
administrative proceeding as provided herein. The notice of
administrative determination and request for hearing shall be filed of
record in the Office of the Chief Administrative Law Judge and shall,
respectively, be given the effect of a complaint and answer thereto for
purposes of the administrative proceeding, subject to any amendment that
may be permitted under these regulations or 29 CFR part 18.
(b) A copy of the Order of Reference, together with a copy of these
regulations, shall be served by counsel for the Administrator, WHD upon
the person requesting the hearing, in the manner provided in 29 CFR
18.3.
[[Page 84]]
Sec. 502.38 Notice of docketing.
Upon receipt of an Order of Reference, the Chief Administrative Law
Judge shall appoint an ALJ to hear the case. The ALJ shall promptly
notify all interested parties of the docketing of the matter and shall
set the time and place of the hearing. The date of the hearing shall be
not more than 60 days from the date on which the Order of Reference was
filed.
Sec. 502.39 Service upon attorneys for the Department of Labor--number
of copies.
Two copies of all pleadings and other documents required for any
administrative proceeding provided herein shall be served on the
attorneys for the DOL. One copy shall be served on the Associate
Solicitor, Division of Fair Labor Standards, Office of the Solicitor,
U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC
20210, and one copy on the Attorney representing the Department in the
proceeding.
Procedures Before Administrative Law Judge
Sec. 502.40 Consent findings and order.
(a) General. At any time after the commencement of a proceeding
under this part, but prior to the reception of evidence in any such
proceeding, a party may move to defer the receipt of any evidence for a
reasonable time to permit negotiation of an agreement containing consent
findings and an order disposing of the whole or any part of the
proceeding. The allowance of such deferment and the duration thereof
shall be at the discretion of the ALJ, after consideration of the nature
of the proceeding, the requirements of the public interest, the
representations of the parties, and the probability of an agreement
being reached which will result in a just disposition of the issues
involved.
(b) Content. Any agreement containing consent findings and an order
disposing of a proceeding or any part thereof shall also provide:
(1) That the order shall have the same force and effect as an order
made after full hearing;
(2) That the entire record on which any order may be based shall
consist solely of the notice of administrative determination (or amended
notice, if one is filed), and the agreement;
(3) A waiver of any further procedural steps before the ALJ; and
(4) A waiver of any right to challenge or contest the validity of
the findings and order entered into in accordance with the agreement.
(c) Submission. On or before the expiration of the time granted for
negotiations, the parties or their authorized representatives or their
counsel may:
(1) Submit the proposed agreement for consideration by the ALJ; or
(2) Inform the ALJ that agreement cannot be reached.
(d) Disposition. In the event an agreement containing consent
findings and an order is submitted within the time allowed therefor, the
ALJ, within 30 days thereafter, shall, if satisfied with its form and
substance, accept such agreement by issuing a decision based upon the
agreed findings.
Post-Hearing Procedures
Sec. 502.41 Decision and order of Administrative Law Judge.
(a) The ALJ shall prepare, within 60 days after completion of the
hearing and closing of the record, a decision on the issues referred by
the Administrator, WHD.
(b) The decision of the ALJ shall include a statement of findings
and conclusions, with reasons and basis therefor, upon each material
issue presented on the record. The decision shall also include an
appropriate order which may affirm, deny, reverse, or modify, in whole
or in part, the determination of the Administrator, WHD. The reason or
reasons for such order shall be stated in the decision.
(c) The decision shall be served on all parties and the
Administrative Review Board (ARB) in person or by certified mail.
(d) The decision concerning civil money penalties and/or back wages
when served by the ALJ shall constitute the final agency order unless
the ARB, as provided for in Sec. 501.42, determines to review the
decision.
[[Page 85]]
Review of Administrative Law Judge's Decision
Sec. 502.42 Procedures for initiating and undertaking review.
(a) A respondent, the WHD, or any other party wishing review,
including judicial review, of the decision of an ALJ shall, within 30
days of the decision of the ALJ, petition the ARB to review the
decision. Copies of the petition shall be served on all parties and on
the ALJ. If the ARB does not issue a notice accepting a petition for
review of the decision concerning civil money penalties and/or back
wages within 30 days after receipt of a timely filing of the petition,
or within 30 days of the date of the decision if no petition has been
received, the decision of the ALJ shall be deemed the final agency
action. If the ARB does not issue a notice accepting a petition for
review of the decision concerning the debarment recommendation within 30
days after the receipt of a timely filing of the petition, or if no
petition has been received by the ARB within 30 days of the date of the
decision, the decision of the ALJ shall be deemed the final agency
action. If a petition for review is accepted, the decision of the ALJ
shall be inoperative unless and until the ARB issues an order affirming
the decision.
(b) Whenever the ARB, either on the ARB's own motion or by
acceptance of a party's petition, determines to review the decision of
an ALJ, a notice of the same shall be served upon the ALJ and upon all
parties to the proceeding in person or by certified mail.
Sec. 502.43 Responsibility of the Office of Administrative Law Judges.
Upon receipt of the ARB's Notice pursuant to Sec. 501.42 of these
regulations, the Office of ALJ shall promptly forward a copy of the
complete hearing record to the ARB.
Sec. 502.44 Additional information, if required.
Where the ARB has determined to review such decision and order, the
ARB shall notify each party of:
(a) The issue or issues raised;
(b) The form in which submissions shall be made (i.e., briefs, oral
argument, etc.); and
(c) The time within which such presentation shall be submitted.
Sec. 502.45 Final decision of the Administrative Review Board.
The ARB's final decision shall be issued within 90 days from the
notice granting the petition and served upon all parties and the ALJ, in
person or by certified mail.
Record
Sec. 502.46 Retention of official record.
The official record of every completed administrative hearing
provided by these regulations shall be maintained and filed under the
custody and control of the Chief Administrative Law Judge, or, where the
case has been the subject of administrative review, the ARB.
Sec. 502.47 Certification.
Upon receipt of a complaint seeking review of a decision issued
pursuant to this part filed in a U.S. District Court, after the
administrative remedies have been exhausted, the Chief Administrative
Law Judge or, where the case has been the subject of administrative
review, the ARB shall promptly index, certify and file with the
appropriate U.S. District Court, a full, true, and correct copy of the
entire record, including the transcript of proceedings.
PART 503_ENFORCEMENT OF OBLIGATIONS FOR TEMPORARY NONIMMIGRANT
NON-AGRICULTURAL WORKERS DESCRIBED IN THE IMMIGRATION AND NATIONALITY
ACT--Table of Contents
Subpart A_General Provisions
Sec.
503.0 Introduction.
503.1 Scope and purpose.
503.2 Territory of Guam.
503.3 Coordination among Governmental agencies.
503.4 Definition of terms.
503.5 Temporary need.
503.6 Waiver of rights prohibited.
503.7 Investigation authority of Secretary.
503.8 Accuracy of information, statements, data.
[[Page 86]]
Subpart B_Enforcement
503.15 Enforcement.
503.16 Assurances and obligations of H-2B employers.
503.17 Documentation retention requirements of H-2B employers.
503.18 Validity of temporary labor certification.
503.19 Violations.
503.20 Sanctions and remedies--general.
503.21 Concurrent actions within the Department of Labor.
503.22 Representation of the Secretary.
503.23 Civil money penalty assessment.
503.24 Debarment.
503.25 Failure to cooperate with investigators.
503.26 Civil money penalties--payment and collection.
Subpart C_Administrative Proceedings
503.40 Applicability of procedures and rules.
Procedures Related to Hearing
503.41 Administrator, WHD's determination.
503.42 Contents of notice of determination.
503.43 Request for hearing.
Rules of Practice
503.44 General.
503.45 Service of pleadings.
503.46 Commencement of proceeding.
503.47 Caption of proceeding.
503.48 Conduct of proceeding.
Procedures Before Administrative Law Judge
503.49 Consent findings and order.
Post-Hearing Procedures
503.50 Decision and order of Administrative Law Judge.
Review of Administrative Law Judge's Decision
503.51 Procedures for initiating and undertaking review.
503.52 Responsibility of the Office of Administrative Law Judges (OALJ).
503.53 Additional information, if required.
503.54 Submission of documents to the Administrative Review Board.
503.55 Final decision of the Administrative Review Board.
Record
503.56 Retention of official record.
Authority: 8 U.S.C. 1101(a)(15)(H)(ii)(b); 8 U.S.C. 1184; 8 CFR
214.2(h); 28 U.S.C. 2461 note (Federal Civil Penalties Inflation
Adjustment Act of 1990); Pub. L. 114-74 at sec. 701.
Source: 80 FR 24130, Apr. 29, 2015, unless otherwise noted.
Subpart A_General Provisions
Sec. 503.0 Introduction.
The regulations in this part cover the enforcement of all statutory
and regulatory obligations, including requirements under 8 U.S.C.
1184(c), section 214(c) of the INA and 20 CFR part 655, subpart A,
applicable to the employment of H-2B workers in nonimmigrant status
under the Immigration and Nationality Act (INA), 8 U.S.C.
1101(a)(15)(H)(ii)(b), section 101(a)(15)(H)(ii)(b) of the INA, and
workers in corresponding employment, including obligations to offer
employment to eligible United States (U.S.) workers and to not lay off
or displace U.S. workers in a manner prohibited by the regulations in
this part or 20 CFR part 655, subpart A.
Sec. 503.1 Scope and purpose.
(a) Consultation standard. Section 214(c)(1) of the INA, 8 U.S.C.
1184(c)(1), requires the Secretary of Homeland Security to consult with
appropriate agencies before authorizing the classification of aliens as
H-2B workers. Department of Homeland Security (DHS) regulations at 8 CFR
214.2(h)(6)(iii)(D) recognize the Secretary of Labor as the appropriate
authority with whom DHS consults regarding the H-2B program, and
recognize the Secretary of Labor's authority in carrying out the
Secretary of Labor's consultative function to issue regulations
regarding the issuance of temporary labor certifications. DHS
regulations at 8 CFR 214.2(h)(6)(iv) provide that an employer's petition
to employ nonimmigrant workers on H-2B visas for temporary non-
agricultural employment in the United States (U.S.), except for Guam,
must be accompanied by an approved temporary labor certification from
the Secretary of Labor. The temporary labor certification reflects a
determination by the Secretary that:
(1) There are not sufficient U.S. workers who are qualified and who
will be available to perform the temporary services or labor for which
an employer desires to hire foreign workers; and
(2) The employment of the foreign worker will not adversely affect
the wages and working conditions of U.S. workers similarly employed.
[[Page 87]]
(b) Role of the Employment and Training Administration (ETA). The
issuance and denial of labor certifications for purposes of satisfying
the consultation requirement in 8 U.S.C. 1184(c), INA section 214(c),
has been delegated by the Secretary to ETA, an agency within the U.S.
Department of Labor (DOL), which in turn has delegated that authority to
the Office of Foreign Labor Certification (OFLC). In general, matters
concerning the obligations of an H-2B employer related to the temporary
labor certification process are administered by OFLC, including
obligations and assurances made by employers, overseeing employer
recruitment, and assuring program integrity. The regulations pertaining
to the issuance, denial, and revocation of labor certification for
temporary foreign workers by the OFLC are found in 20 CFR part 655,
subpart A.
(c) Role of the Wage and Hour Division (WHD). Effective January 18,
2009, DHS has delegated to the Secretary under 8 U.S.C. 1184(c)(14)(B),
section 214(c)(14)(B) of the INA, certain investigatory and law
enforcement functions to carry out the provisions under 8 U.S.C.
1184(c), INA section 214(c). The Secretary has delegated these functions
to the WHD. In general, matters concerning the rights of H-2B workers
and workers in corresponding employment under this part and the
employer's obligations are enforced by the WHD, including whether
employment was offered to U.S. workers as required under 20 CFR part
655, subpart A, or whether U.S. workers were laid off or displaced in
violation of program requirements. The WHD has the responsibility to
carry out investigations, inspections, and law enforcement functions and
in appropriate instances to impose penalties, to debar from future
certifications, to recommend revocation of existing certifications, and
to seek remedies for violations, including recovery of unpaid wages and
reinstatement of improperly laid off or displaced U.S. workers.
(d) Effect of regulations. The enforcement functions carried out by
the WHD under 8 U.S.C. 1184(c), INA section 214(c), 20 CFR part 655,
subpart A, and the regulations in this part apply to the employment of
any H-2B worker and any worker in corresponding employment as the result
of an Application for Temporary Employment Certification filed with the
Department of Labor on or after April 29, 2015.
Sec. 503.2 Territory of Guam.
This part does not apply to temporary employment in the Territory of
Guam. The Department of Labor does not certify to DHS the temporary
employment of nonimmigrant foreign workers or enforce compliance with
the provisions of the H-2B visa program in the Territory of Guam.
Sec. 503.3 Coordination among Governmental agencies.
(a) Complaints received by ETA or any State Workforce Agency (SWA)
regarding noncompliance with H-2B statutory or regulatory labor
standards will be immediately forwarded to the appropriate WHD office
for suitable action under the regulations in this part.
(b) Information received in the course of processing registrations
and applications, program integrity measures, or enforcement actions may
be shared between OFLC and WHD or, where applicable to employer
enforcement under the H-2B program, may be forwarded to other agencies
as appropriate, including the Department of State (DOS) and DHS.
(c) A specific violation for which debarment is sought will be cited
in a single debarment proceeding. OFLC and the WHD will coordinate their
activities to achieve this result. Copies of final debarment decisions
will be forwarded to DHS promptly.
Sec. 503.4 Definition of terms.
For purposes of this part:
Act means the Immigration and Nationality Act or INA, as amended, 8
U.S.C. 1101 et seq.
Administrative Law Judge (ALJ) means a person within the
Department's Office of Administrative Law Judges appointed under 5
U.S.C. 3105.
Administrator, Office of Foreign Labor Certification (OFLC) means
the primary official of the Office of Foreign Labor Certification, ETA,
or the Administrator's designee.
Administrator, Wage and Hour Division (WHD) means the primary
official of
[[Page 88]]
the WHD, or the Administrator's designee.
Agent means:
(1) A legal entity or person who:
(i) Is authorized to act on behalf of an employer for temporary
nonagricultural labor certification purposes;
(ii) Is not itself an employer, or a joint employer, as defined in
this part with respect to a specific application; and
(iii) Is not an association or other organization of employers.
(2) No agent who is under suspension, debarment, expulsion,
disbarment, or otherwise restricted from practice before any court, the
Department of Labor, the Executive Office for Immigration Review under 8
CFR 1003.101, or DHS under 8 CFR 292.3 may represent an employer under
this part.
Agricultural labor or services means those duties and occupations
defined in 20 CFR part 655, subpart B.
Applicant means a U.S. worker who is applying for a job opportunity
for which an employer has filed an Application for Temporary Employment
Certification (ETA Form 9142B and the appropriate appendices).
Application for Temporary Employment Certification means the Office
of Management and Budget (OMB)-approved ETA Form 9142B and the
appropriate appendices, a valid wage determination, as required by 20
CFR 655.10, and a subsequently-filed U.S. worker recruitment report,
submitted by an employer to secure a temporary labor certification
determination from DOL.
Area of intended employment means the geographic area within normal
commuting distance of the place (worksite address) of the job
opportunity for which the certification is sought. There is no rigid
measure of distance that constitutes a normal commuting distance or
normal commuting area, because there may be widely varying factual
circumstances among different areas (e.g., average commuting times,
barriers to reaching the worksite, or quality of the regional
transportation network). If the place of intended employment is within a
Metropolitan Statistical Area (MSA), including a multistate MSA, any
place within the MSA is deemed to be within normal commuting distance of
the place of intended employment. The borders of MSAs are not
controlling in the identification of the normal commuting area; a
location outside of an MSA may be within normal commuting distance of a
location that is inside (e.g., near the border of) the MSA.
Attorney means any person who is a member in good standing of the
bar of the highest court of any State, possession, territory, or
commonwealth of the U.S., or the District of Columbia. No attorney who
is under suspension, debarment, expulsion, disbarment, or otherwise
restricted from practice before any court, the Department of Labor, the
Executive Office for Immigration Review under 8 CFR 1003.101, or DHS
under 8 CFR 292.3 may represent an employer under this part.
Certifying Officer (CO) means an OFLC official designated by the
Administrator, OFLC to make determinations on applications under the H-
2B program. The Administrator, OFLC is the National CO. Other COs may
also be designated by the Administrator, OFLC to make the determinations
required under 20 CFR part 655, subpart A.
Chief Administrative Law Judge (Chief ALJ) means the chief official
of the Department's Office of Administrative Law Judges or the Chief
Administrative Law Judge's designee.
Corresponding employment means:
(1) The employment of workers who are not H-2B workers by an
employer that has a certified H-2B Application for Temporary Employment
Certification when those workers are performing either substantially the
same work included in the job order or substantially the same work
performed by the H-2B workers, except that workers in the following two
categories are not included in corresponding employment:
(i) Incumbent employees continuously employed by the H-2B employer
to perform substantially the same work included in the job order or
substantially the same work performed by the H-2B workers during the 52
weeks prior to the period of employment certified on the Application for
Temporary Employment Certification and who have worked or been paid for
at least 35 hours in at least 48 of the prior 52
[[Page 89]]
workweeks, and who have worked or been paid for an average of at least
35 hours per week over the prior 52 weeks, as demonstrated on the
employer's payroll records, provided that the terms and working
conditions of their employment are not substantially reduced during the
period of employment covered by the job order. In determining whether
this standard was met, the employer may take credit for any hours that
were reduced by the employee voluntarily choosing not to work due to
personal reasons such as illness or vacation; or
(ii) Incumbent employees covered by a collective bargaining
agreement or an individual employment contract that guarantees both an
offer of at least 35 hours of work each workweek and continued
employment with the H-2B employer at least through the period of
employment covered by the job order, except that the employee may be
dismissed for cause.
(2) To qualify as corresponding employment, the work must be
performed during the period of the job order, including any approved
extension thereof.
Date of need means the first date the employer requires services of
the H-2B workers as listed on the Application for Temporary Employment
Certification.
Department of Homeland Security (DHS) means the Federal Department
having jurisdiction over certain immigration-related functions, acting
through its component agencies, including U.S. Citizenship and
Immigration Services (USCIS).
Employee means a person who is engaged to perform work for an
employer, as defined under the general common law. Some of the factors
relevant to the determination of employee status include: The hiring
party's right to control the manner and means by which the work is
accomplished; the skill required to perform the work; the source of the
instrumentalities and tools for accomplishing the work; the location of
the work; the hiring party's discretion over when and how long to work;
and whether the work is part of the regular business of the hiring
party. Other applicable factors may be considered and no one factor is
dispositive. The terms employee and worker are used interchangeably in
this part.
Employer means a person (including any individual, partnership,
association, corporation, cooperative, firm, joint stock company, trust,
or other organization with legal rights and duties) that:
(1) Has a place of business (physical location) in the U.S. and a
means by which it may be contacted for employment;
(2) Has an employer relationship (such as the ability to hire, pay,
fire, supervise or otherwise control the work of employees) with respect
to an H-2B worker or a worker in corresponding employment; and
(3) Possesses, for purposes of filing an Application for Temporary
Employment Certification, a valid Federal Employer Identification Number
(FEIN).
Employment and Training Administration (ETA) means the agency within
the Department of Labor that includes OFLC and has been delegated
authority by the Secretary to fulfill the Secretary's mandate under the
DHS regulations for the administration and adjudication of an
Application for Temporary Employment Certification and related
functions.
Federal holiday means a legal public holiday as defined at 5 U.S.C.
6103.
Full-time means 35 or more hours of work per week.
H-2B Petition means the DHS Form I-129 Petition for a Nonimmigrant
Worker, with H Supplement, or successor form or supplement, and
accompanying documentation required by DHS for employers seeking to
employ foreign persons as H-2B nonimmigrant workers.
H-2B Registration means the OMB-approved ETA Form 9155, submitted by
an employer to register its intent to hire H-2B workers and to file an
Application for Temporary Employment Certification.
H-2B worker means any temporary foreign worker who is lawfully
present in the U.S. and authorized by DHS to perform nonagricultural
labor or services of a temporary or seasonal nature under 8 U.S.C.
1101(a)(15)(H)(ii)(b), INA section 101(a)(15)(H)(ii)(b).
Job contractor means a person, association, firm, or a corporation
that meets the definition of an employer
[[Page 90]]
and that contracts services or labor on a temporary basis to one or more
employers, which is not an affiliate, branch or subsidiary of the job
contractor and where the job contractor will not exercise substantial,
direct day-to-day supervision and control in the performance of the
services or labor to be performed other than hiring, paying and firing
the workers.
Job offer means the offer made by an employer or potential employer
of H-2B workers to both U.S. and H-2B workers describing all the
material terms and conditions of employment, including those relating to
wages, working conditions, and other benefits.
Job opportunity means one or more openings for full-time employment
with the petitioning employer within a specified area(s) of intended
employment for which the petitioning employer is seeking workers.
Job order means the document containing the material terms and
conditions of employment relating to wages, hours, working conditions,
worksite and other benefits, including obligations and assurances under
29 CFR part 655, subpart A and this subpart that is posted between and
among the SWAs on their job clearance systems.
Joint employment means that where two or more employers each have
sufficient definitional indicia of being an employer to be considered
the employer of a worker, those employers will be considered to jointly
employ that worker. Each employer in a joint employment relationship to
a worker is considered a joint employer of that worker.
Layoff means any involuntary separation of one or more U.S.
employees without cause.
Metropolitan Statistical Area (MSA) means a geographic entity
defined by OMB for use by Federal statistical agencies in collecting,
tabulating, and publishing Federal statistics. A metro area contains a
core urban area of 50,000 or more population, and a micro area contains
an urban core of at least 10,000 (but fewer than 50,000) population.
Each metro or micro area consists of one or more counties and includes
the counties containing the core urban area, as well as any adjacent
counties that have a high degree of social and economic integration (as
measured by commuting to work) with the urban core.
National Processing Center (NPC) means the office within OFLC which
is charged with the adjudication of an Application for Temporary
Employment Certification or other applications.
Non-agricultural labor and services means any labor or services not
considered to be agricultural labor or services as defined in 20 CFR
part 655, subpart B. It does not include the provision of services as
members of the medical profession by graduates of medical schools.
Offered wage means the wage offered by an employer in an H-2B job
order. The offered wage must equal or exceed the highest of the
prevailing wage or Federal, State or local minimum wage.
Office of Foreign Labor Certification (OFLC) means the
organizational component of the ETA that provides national leadership
and policy guidance and develops regulations to carry out the
Secretary's responsibilities, including determinations related to an
employer's request for H-2B Registration, Application for Prevailing
Wage Determination, or Application for Temporary Employment
Certification.
Prevailing wage determination (PWD) means the prevailing wage for
the position, as described in 20 CFR 655.10, that is the subject of the
Application for Temporary Employment Certification.
Secretary means the Secretary of Labor, the chief official of the
U.S. Department of Labor, or the Secretary's designee.
Secretary of Homeland Security means the chief official of the U.S.
Department of Homeland Security (DHS) or the Secretary of Homeland
Security's designee.
State Workforce Agency (SWA) means a State government agency that
receives funds under the Wagner-Peyser Act (29 U.S.C. 49 et seq.) to
administer the State's public labor exchange activities.
Strike means a concerted stoppage of work by employees as a result
of a labor dispute, or any concerted slowdown or other concerted
interruption of operation (including stoppage by reason of the
expiration of a collective bargaining agreement).
[[Page 91]]
Successor in interest means:
(1) Where an employer has violated 20 CFR part 655, subpart A, or
this part, and has ceased doing business or cannot be located for
purposes of enforcement, a successor in interest to that employer may be
held liable for the duties and obligations of the violating employer in
certain circumstances. The following factors, as used under Title VII of
the Civil Rights Act and the Vietnam Era Veterans' Readjustment
Assistance Act, may be considered in determining whether an employer is
a successor in interest; no one factor is dispositive, but all of the
circumstances will be considered as a whole:
(i) Substantial continuity of the same business operations;
(ii) Use of the same facilities;
(iii) Continuity of the work force;
(iv) Similarity of jobs and working conditions;
(v) Similarity of supervisory personnel;
(vi) Whether the former management or owner retains a direct or
indirect interest in the new enterprise;
(vii) Similarity in machinery, equipment, and production methods;
(viii) Similarity of products and services; and
(ix) The ability of the predecessor to provide relief.
(2) For purposes of debarment only, the primary consideration will
be the personal involvement of the firm's ownership, management,
supervisors, and others associated with the firm in the violation(s) at
issue.
United States (U.S.) means the continental United States, Alaska,
Hawaii, the Commonwealth of Puerto Rico, Guam, the U.S. Virgin Islands,
and the Commonwealth of the Northern Mariana Islands (CNMI).
U.S. Citizenship and Immigration Services (USCIS) means the Federal
agency within DHS that makes the determination under the INA whether to
grant petitions filed by employers seeking H-2B workers to perform
temporary non-agricultural work in the U.S.
United States worker (U.S. worker) means a worker who is:
(1) A citizen or national of the U.S.;
(2) An alien who is lawfully admitted for permanent residence in the
U.S., is admitted as a refugee under 8 U.S.C. 1157, section 207 of the
INA, is granted asylum under 8 U.S.C. 1158, section 208 of the INA, or
is an alien otherwise authorized under the immigration laws to be
employed in the U.S.; or
(3) An individual who is not an unauthorized alien (as defined in 8
U.S.C. 1324a(h)(3), section 274a(h)(3) of the INA) with respect to the
employment in which the worker is engaging.
Wage and Hour Division (WHD) means the agency within the Department
of Labor with investigatory and law enforcement authority, as delegated
from DHS, to carry out the provisions under 8 U.S.C. 1184(c), section
214(c) of the INA.
Wages mean all forms of cash remuneration to a worker by an employer
in payment for personal services.
Sec. 503.5 Temporary need.
(a) An employer seeking certification under 20 CFR part 655, subpart
A, must establish that its need for non-agricultural services or labor
is temporary, regardless of whether the underlying job is permanent or
temporary.
(b) The employer's need is considered temporary if justified to the
CO as one of the following: A one-time occurrence; a seasonal need; a
peakload need; or an intermittent need, as defined by DHS regulations.
Sec. 503.6 Waiver of rights prohibited.
A person may not seek to have an H-2B worker, a worker in
corresponding employment, or any other person, including but not limited
to a U.S. worker improperly rejected for employment or improperly laid
off or displaced, waive or modify any rights conferred under 8 U.S.C.
1184(c), INA section 214(c), 20 CFR part 655, subpart A, or the
regulations in this part. Any agreement by an employee purporting to
waive or modify any rights given to said person under these provisions
will be void as contrary to public policy except as follows:
(a) Waivers or modifications of rights or obligations hereunder in
favor of the Secretary will be valid for purposes of enforcement; and
(b) Agreements in settlement of private litigation are permitted.
[[Page 92]]
Sec. 503.7 Investigation authority of Secretary.
(a) Authority of the Administrator, WHD. The Secretary of Homeland
Security has delegated to the Secretary, under 8 U.S.C. 1184(c)(14)(B),
INA section 214(c)(14)(B), authority to perform investigative and
enforcement functions. Within the Department of Labor, the
Administrator, WHD will perform all such functions.
(b) Conduct of investigations. The Secretary, through the WHD, may
investigate to determine compliance with obligations under 8 U.S.C.
1184(c), INA section 214(c), 20 CFR part 655, subpart A, or the
regulations in this part, either under a complaint or otherwise, as may
be appropriate. In connection with such an investigation, WHD may enter
and inspect any premises, land, property, worksite, vehicles, structure,
facility, place and records (and make transcriptions, photographs,
scans, videos, photocopies, or use any other means to record the content
of the records or preserve images of places or objects), question any
person, or gather any information, in whatever form, as may be
appropriate.
(c) Confidential investigation. The WHD will conduct investigations
in a manner that protects the confidentiality of any complainant or
other person who provides information to the Secretary in good faith.
(d) Report of violations. Any person may report a violation of the
obligations imposed by 8 U.S.C. 1184(c), INA section 214(c), 20 CFR part
655, subpart A, or the regulations in this part to the Secretary by
advising any local office of the SWA, ETA, WHD or any other authorized
representative of the Secretary. The office or person receiving such a
report will refer it to the appropriate office of WHD for the geographic
area in which the reported violation is alleged to have occurred.
Sec. 503.8 Accuracy of information, statements, data.
Information, statements, and data submitted in compliance with 8
U.S.C. 1184(c), INA section 214(c), or the regulations in this part are
subject to 18 U.S.C. 1001, which provides, with regard to statements or
entries generally, that whoever, in any matter within the jurisdiction
of any department or agency of the U.S., knowingly and willfully
falsifies, conceals, or covers up a material fact by any trick, scheme,
or device, or makes any false, fictitious, or fraudulent statements or
representations, or makes or uses any false writing or document knowing
the same to contain any false, fictitious, or fraudulent statement or
entry, will be fined not more than $250,000 or imprisoned not more than
5 years, or both.
Subpart B_Enforcement
Sec. 503.15 Enforcement.
The investigation, inspection, and law enforcement functions that
carry out the provisions of 8 U.S.C. 1184(c), INA section 214(c), 20 CFR
part 655, subpart A, or the regulations in this part pertain to the
employment of any H-2B worker, any worker in corresponding employment,
or any U.S. worker improperly rejected for employment or improperly laid
off or displaced.
Sec. 503.16 Assurances and obligations of H-2B employers.
An employer employing H-2B workers and/or workers in corresponding
employment under an Application for Temporary Employment Certification
has agreed as part of the Application for Temporary Employment
Certification that it will abide by the following conditions with
respect to its H-2B workers and any workers in corresponding employment:
(a) Rate of pay. (1) The offered wage in the job order equals or
exceeds the highest of the prevailing wage or Federal minimum wage,
State minimum wage, or local minimum wage. The employer must pay at
least the offered wage, free and clear, during the entire period of the
Application for Temporary Employment Certification granted by OFLC.
(2) The offered wage is not based on commissions, bonuses, or other
incentives, including paying on a piece-rate basis, unless the employer
guarantees a wage earned every workweek that equals or exceeds the
offered wage.
(3) If the employer requires one or more minimum productivity
standards of workers as a condition of job retention, the standards must
be specified in
[[Page 93]]
the job order and the employer must demonstrate that they are normal and
usual for non-H-2B employers for the same occupation in the area of
intended employment.
(4) An employer that pays on a piece-rate basis must demonstrate
that the piece rate is no less than the normal rate paid by non-H-2B
employers to workers performing the same activity in the area of
intended employment. The average hourly piece rate earnings must result
in an amount at least equal to the offered wage. If the worker is paid
on a piece rate basis and at the end of the workweek the piece rate does
not result in average hourly piece rate earnings during the workweek at
least equal to the amount the worker would have earned had the worker
been paid at the offered hourly wage, then the employer must supplement
the worker's pay at that time so that the worker's earnings are at least
as much as the worker would have earned during the workweek if the
worker had instead been paid at the offered hourly wage for each hour
worked.
(b) Wages free and clear. The payment requirements for wages in this
section will be satisfied by the timely payment of such wages to the
worker either in cash or negotiable instrument payable at par. The
payment must be made finally and unconditionally and ``free and clear.''
The principles applied in determining whether deductions are reasonable
and payments are received free and clear and the permissibility of
deductions for payments to third persons are explained in more detail in
29 CFR part 531.
(c) Deductions. The employer must make all deductions from the
worker's paycheck required by law. The job order must specify all
deductions not required by law which the employer will make from the
worker's pay; any such deductions not disclosed in the job order are
prohibited. The wage payment requirements of paragraph (b) of this
section are not met where unauthorized deductions, rebates, or refunds
reduce the wage payment made to the worker below the minimum amounts
required by the offered wage or where the worker fails to receive such
amounts free and clear because the worker ``kicks back'' directly or
indirectly to the employer or to another person for the employer's
benefit the whole or part of the wages delivered to the worker.
Authorized deductions are limited to: those required by law, such as
taxes payable by workers that are required to be withheld by the
employer and amounts due workers which the employer is required by court
order to pay to another; deductions for the reasonable cost or fair
value of board, lodging, and facilities furnished; and deductions of
amounts which are authorized to be paid to third persons for the
worker's account and benefit through his or her voluntary assignment or
order or which are authorized by a collective bargaining agreement with
bona fide representatives of workers which covers the employer.
Deductions for amounts paid to third persons for the worker's account
and benefit which are not so authorized or are contrary to law or from
which the employer, agent or recruiter, including any agents or
employees of these entities, or any affiliated person derives any
payment, rebate, commission, profit, or benefit directly or indirectly,
may not be made if they reduce the actual wage paid to the worker below
the offered wage indicated on the Application for Temporary Employment
Certification.
(d) Job opportunity is full-time. The job opportunity is a full-time
temporary position, consistent with Sec. 503.4, and the employer must
use a single workweek as its standard for computing wages due. An
employee's workweek must be a fixed and regularly recurring period of
168 hours--seven consecutive 24-hour periods. It need not coincide with
the calendar week but may begin on any day and at any hour of the day.
(e) Job qualifications and requirements. Each job qualification and
requirement must be listed in the job order and must be bona fide and
consistent with the normal and accepted qualifications and requirements
imposed by non-H-2B employers in the same occupation and area of
intended employment. The employer's job qualifications and requirements
imposed on U.S. workers must not be less favorable than the
qualifications and requirements that the employer is imposing or will
impose on H-2B workers. A qualification means a
[[Page 94]]
characteristic that is necessary to the individual's ability to perform
the job in question. A requirement means a term or condition of
employment which a worker is required to accept in order to obtain the
job opportunity. The CO may require the employer to submit documentation
to substantiate the appropriateness of any job qualification and/or
requirement specified in the job order.
(f) Three-fourths guarantee. (1) The employer must guarantee to
offer the worker employment for a total number of work hours equal to at
least three-fourths of the workdays in each 12-week period (each 6-week
period if the period of employment covered by the job order is less than
120 days) beginning with the first workday after the arrival of the
worker at the place of employment or the advertised first date of need,
whichever is later, and ending on the expiration date specified in the
job order or in its extensions, if any. See the exception in paragraph
(y) of this section.
(2) For purposes of this paragraph (f) a workday means the number of
hours in a workday as stated in the job order. The employer must offer a
total number of hours of work to ensure the provision of sufficient work
to reach the three-fourths guarantee in each 12-week period (each 6-week
period if the period of employment covered by the job order is less than
120 days) during the work period specified in the job order, or during
any modified job order period to which the worker and employer have
mutually agreed and that has been approved by the CO.
(3) In the event the worker begins working later than the specified
beginning date the guarantee period begins with the first workday after
the arrival of the worker at the place of employment, and continues
until the last day during which the job order and all extensions thereof
are in effect.
(4) The 12-week periods (6-week periods if the period of employment
covered by the job order is less than 120 days) to which the guarantee
applies are based upon the workweek used by the employer for pay
purposes. The first 12-week period (or 6-week period, as appropriate)
also includes any partial workweek, if the first workday after the
worker's arrival at the place of employment is not the beginning of the
employer's workweek, with the guaranteed number of hours increased on a
pro rata basis (thus, the first period may include up to 12 weeks and 6
days (or 6 weeks and 6 days, as appropriate)). The final 12-week period
(or 6-week period, as appropriate) includes any time remaining after the
last full 12-week period (or 6-week period) ends, and thus may be as
short as 1 day, with the guaranteed number of hours decreased on a pro
rata basis.
(5) Therefore, if, for example, a job order is for a 32-week period
(a period greater than 120 days), during which the normal workdays and
work hours for the workweek are specified as 5 days a week, 7 hours per
day, the worker would have to be guaranteed employment for at least 315
hours in the first 12-week period (12 weeks x 35 hours/week = 420 hours
x 75 percent = 315), at least 315 hours in the second 12-week period,
and at least 210 hours (8 weeks x 35 hours/week = 280 hours x 75 percent
= 210) in the final partial period. If the job order is for a 16-week
period (less than 120 days), during which the normal workdays and work
hours for the workweek are specified as 5 days a week, 7 hours per day,
the worker would have to be guaranteed employment for at least 157.5
hours (6 weeks x 35 hours/week = 210 hours x 75 percent = 157.5) in the
first 6-week period, at least 157.5 hours in the second 6-week period,
and at least 105 hours (4 weeks x 35 hours/week = 140 hours x 75 percent
= 105) in the final partial period.
(6) If the worker is paid on a piece rate basis, the employer must
use the worker's average hourly piece rate earnings or the offered wage,
whichever is higher, to calculate the amount due under the guarantee.
(7) 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 will not be required to work for more than the number of hours
specified in the job order for a workday. The employer, however, may
count all hours actually worked in calculating whether the guarantee has
been met. If during any 12-week period (6-week period if
[[Page 95]]
the period of employment covered by the job order is less than 120 days)
during the period of the job order the employer affords the U.S. or H-2B
worker less employment than that required under paragraph (f)(1) of this
section, the employer must pay such worker the amount the worker would
have earned had the worker, in fact, worked for the guaranteed number of
days. An employer has not met the work guarantee if the employer has
merely offered work on three-fourths of the workdays in an 12-week
period (or 6-week period, as appropriate) if each workday did not
consist of a full number of hours of work time as specified in the job
order.
(8) Any hours 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 work in accordance with
paragraph (f)(1) of this section, and all hours of work actually
performed (including voluntary work over 8 hours in a workday), may be
counted by the employer in calculating whether each 12-week period (or
6-week period, as appropriate) of guaranteed employment has been met. An
employer seeking to calculate whether the guaranteed number of hours has
been met must maintain the payroll records in accordance with this part.
(g) Impossibility of fulfillment. If, before the expiration date
specified in the job order, the services of the worker are no longer
required for reasons beyond the control of the employer due to fire,
weather, or other Act of God, or similar unforeseeable man-made
catastrophic event (such as an oil spill or controlled flooding) that is
wholly outside the employer's control that makes the fulfillment of the
job order impossible, the employer may terminate the job order with the
approval of the CO. In the event of such termination of a job order, the
employer must fulfill a three-fourths guarantee, as described in
paragraph (f) of this section, for the time that has elapsed from the
start date listed in the job order or the first workday after the
arrival of the worker at the place of employment, whichever is later, to
the time of its termination. The employer must make efforts to transfer
the H-2B worker or worker in corresponding employment to other
comparable employment acceptable to the worker and consistent with the
INA, as applicable. If a transfer is not effected, the employer must
return the worker, at the employer's expense, to the place from which
the worker (disregarding intervening employment) came to work for the
employer, or transport the worker to the worker's next certified H-2B
employer, whichever the worker prefers.
(h) Frequency of pay. The employer must state in the job order the
frequency with which the worker will be paid, which must be at least
every 2 weeks or according to the prevailing practice in the area of
intended employment, whichever is more frequent. Employers must pay
wages when due.
(i) Earnings statements. (1) The employer must keep accurate and
adequate records with respect to the workers' earnings, including but
not limited to: records showing the nature, amount and location(s) 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 in paragraph (f) of this section);
the hours actually worked each day by the worker; if the number of hours
worked by the worker is less than the number of hours offered, the
reason(s) the worker did not work; 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 taken
from or additions made to the worker's wages.
(2) The employer must 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 each workweek in the pay period;
(ii) The worker's hourly rate and/or piece rate of pay;
(iii) For each workweek in the pay period the hours of employment
offered to the worker (showing offers in accordance with the three-
fourths guarantee as determined in paragraph (f) of this section,
separate from any hours offered over and above the guarantee);
[[Page 96]]
(iv) For each workweek in the pay period the hours actually worked
by the worker;
(v) An itemization of all deductions made from or additions made to
the worker's wages;
(vi) If piece rates are used, the units produced daily;
(vii) The beginning and ending dates of the pay period; and
(viii) The employer's name, address and FEIN.
(j) Transportation and visa fees--(1)(i) Transportation to the place
of employment. The employer must provide or reimburse the worker for
transportation and subsistence from the place from which the worker has
come to work for the employer, whether in the U.S. or abroad, to the
place of employment if the worker completes 50 percent of the period of
employment covered by the job order (not counting any extensions). The
employer may arrange and pay for the transportation and subsistence
directly, advance at a minimum the most economical and reasonable common
carrier cost of the transportation and subsistence to the worker before
the worker's departure, or pay the worker for the reasonable costs
incurred by the worker. When it is the prevailing practice of non-H-2B
employers in the occupation in the area to do so or when the employer
extends such benefits to similarly situated H-2B workers, the employer
must advance the required transportation and subsistence costs (or
otherwise provide them) to workers in corresponding employment who are
traveling to the employer's worksite. The amount of the transportation
payment must be no less (and is not required to be more) than the most
economical and reasonable common carrier transportation charges for the
distances involved. The amount of the daily subsistence must be at least
the amount permitted in 20 CFR 655.173. Where the employer will
reimburse the reasonable costs incurred by the worker, it must keep
accurate and adequate records of: the costs of transportation and
subsistence incurred by the worker; the amount reimbursed; and the
date(s) of reimbursement. Note that the Fair Labor Standards Act (FLSA)
applies independently of the H-2B requirements and imposes obligations
on employers regarding payment of wages.
(ii) Transportation from the place of employment. If the worker
completes the period of employment covered by the job order (not
counting any extensions), or if the worker is dismissed from employment
for any reason by the employer before the end of the period, and the
worker has no immediate subsequent H-2B employment, the employer must
provide or pay at the time of departure for the worker's cost of return
transportation and daily subsistence from the place of employment to the
place from which the worker, disregarding intervening employment,
departed to work for the employer. If the worker has contracted with a
subsequent employer that has not agreed in the job order to provide or
pay for the worker's transportation from the employer's worksite to such
subsequent employer's worksite, the employer must provide or pay for
that transportation and subsistence. If the worker has contracted with a
subsequent employer that has agreed in the job order to provide or pay
for the worker's transportation from the employer's worksite to such
subsequent employer's worksite, the subsequent employer must provide or
pay for such expenses.
(iii) Employer-provided transportation. All employer-provided
transportation must comply with all applicable Federal, State, and local
laws and regulations and must provide, at a minimum, the same vehicle
safety standards, driver licensure requirements, and vehicle insurance
as required under 49 CFR parts 390, 393, and 396.
(iv) Disclosure. All transportation and subsistence costs that the
employer will pay must be disclosed in the job order.
(2) The employer must pay or reimburse the worker in the first
workweek for all visa, visa processing, border crossing, and other
related fees (including those mandated by the government) incurred by
the H-2B worker, but not for passport expenses or other charges
primarily for the benefit of the worker.
(k) Employer-provided items. The employer must provide to the
worker, without charge or deposit charge, all
[[Page 97]]
tools, supplies, and equipment required to perform the duties assigned.
(l) Disclosure of job order. The employer must provide to an H-2B
worker outside of the U.S. no later than the time at which the worker
applies for the visa, or to a worker in corresponding employment no
later than on the day work commences, a copy of the job order including
any subsequent approved modifications. For an H-2B worker changing
employment from an H-2B employer to a subsequent H-2B employer, the copy
must be provided no later than the time an offer of employment is made
by the subsequent H-2B employer. The disclosure of all documents
required by this paragraph (l) must be provided in a language understood
by the worker, as necessary or reasonable.
(m) Notice of worker rights. The employer must post and maintain in
a conspicuous location at the place of employment a poster provided by
the Department of Labor that sets out the rights and protections for H-
2B workers and workers in corresponding employment. The employer must
post the poster in English. To the extent necessary, the employer must
request and post additional posters, as made available by the Department
of Labor, in any language common to a significant portion of the workers
if they are not fluent in English.
(n) No unfair treatment. The employer has not and will not
intimidate, threaten, restrain, coerce, blacklist, discharge or in any
manner discriminate against, and has not and will not cause any person
to intimidate, threaten, restrain, coerce, blacklist, discharge, or in
any manner discriminate against, any person who has:
(1) Filed a complaint under or related to 8 U.S.C. 1184(c), section
214(c) of the INA, 20 CFR part 655, subpart A, or this part or any other
regulation promulgated thereunder;
(2) Instituted or caused to be instituted any proceeding under or
related to 8 U.S.C. 1184(c), section 214(c) of the INA, 20 CFR part 655,
subpart A, or this part or any other regulation promulgated thereunder;
(3) Testified or is about to testify in any proceeding under or
related to 8 U.S.C. 1184(c), section 214(c) of the INA, 20 CFR part 655,
subpart A, or this part or any other regulation promulgated thereunder;
(4) Consulted with a workers' center, community organization, labor
union, legal assistance program, or an attorney on matters related to 8
U.S.C. 1184(c), section 214(c) of the INA, 20 CFR part 655, subpart A,
or this part or any other regulation promulgated thereunder; or
(5) Exercised or asserted on behalf of himself or herself or others
any right or protection afforded by 8 U.S.C. 1184(c), section 214(c) of
the INA, 20 CFR part 655, subpart A, or this part or any other
regulation promulgated thereunder.
(o) Comply with the prohibitions against employees paying fees. The
employer and its attorney, agents, or employees have not sought or
received payment of any kind from the worker for any activity related to
obtaining H-2B labor certification or employment, including payment of
the employer's attorney or agent fees, application and H-2B Petition
fees, recruitment costs, or any fees attributed to obtaining the
approved Application for Temporary Employment Certification. For
purposes of this paragraph (o), payment includes, but is not limited to,
monetary payments, wage concessions (including deductions from wages,
salary, or benefits), kickbacks, bribes, tributes, in-kind payments, and
free labor. All wages must be paid free and clear. This provision does
not prohibit employers or their agents from receiving reimbursement for
costs that are the responsibility and primarily for the benefit of the
worker, such as government-required passport fees.
(p) Contracts with third parties to comply with prohibitions. The
employer must contractually prohibit in writing any agent or recruiter
(or any agent or employee of such agent or recruiter) whom the employer
engages, either directly or indirectly, in recruitment of H-2B workers
to seek or receive payments or other compensation from prospective
workers. The contract must include the following statement: ``Under this
agreement, [name of agent, recruiter] and any agent of or employee of
[name of agent or recruiter] are prohibited from seeking or
[[Page 98]]
receiving payments from any prospective employee of [employer name] at
any time, including before or after the worker obtains employment.
Payments include but are not limited to, any direct or indirect fees
paid by such employees for recruitment, job placement, processing,
maintenance, attorneys' fees, agent fees, application fees, or petition
fees.''
(q) Prohibition against preferential treatment of foreign workers.
The employer's job offer must offer to U.S. workers no less than the
same benefits, wages, and working conditions that the employer is
offering, intends to offer, or will provide to H-2B workers. Job offers
may not impose on U.S. workers any restrictions or obligations that will
not be imposed on the employer's H-2B workers. This does not relieve the
employer from providing to H-2B workers at least the minimum benefits,
wages, and working conditions which must be offered to U.S. workers
consistent with this section.
(r) Non-discriminatory hiring practices. The job opportunity is, and
through the period set forth in paragraph (t) of this section must
continue to be, open to any qualified U.S. worker regardless of race,
color, national origin, age, sex, religion, disability, or citizenship.
Rejections of any U.S. workers who applied or apply for the job must
only be for lawful, job-related reasons, and those not rejected on this
basis have been or will be hired. In addition, the employer has and will
continue to retain records of all hired workers and rejected applicants
as required by Sec. 503.17.
(s) Recruitment requirements. The employer must conduct all required
recruitment activities, including any additional employer-conducted
recruitment activities as directed by the CO, and as specified in 20 CFR
655.40 through 655.46.
(t) Continuing requirement to hire U.S. workers. The employer has
and will continue to cooperate with the SWA by accepting referrals of
all qualified U.S. workers who apply (or on whose behalf a job
application is made) for the job opportunity, and must provide
employment to any qualified U.S. worker who applies to the employer for
the job opportunity, until 21 days before the date of need.
(u) No strike or lockout. There is no strike or lockout at any of
the employer's worksites within the area of intended employment for
which the employer is requesting H-2B certification at the time the
Application for Temporary Employment Certification is filed.
(v) No recent or future layoffs. The employer has not laid off and
will not lay off any similarly employed U.S. worker in the occupation
that is the subject of the Application for Temporary Employment
Certification in the area of intended employment within the period
beginning 120 calendar days before the date of need through the end of
the period of certification. A layoff for lawful, job-related reasons
such as lack of work or the end of a season is permissible if all H-2B
workers are laid off before any U.S. worker in corresponding employment.
(w) Contact with former U.S. employees. The employer will contact
(by mail or other effective means) its former U.S. workers, including
those who have been laid off within 120 calendar days before the date of
need (except those who were dismissed for cause or who abandoned the
worksite), employed by the employer in the occupation at the place of
employment during the previous year, disclose the terms of the job
order, and solicit their return to the job.
(x) Area of intended employment and job opportunity. The employer
must not place any H-2B workers employed under the approved Application
for Temporary Employment Certification outside the area of intended
employment or in a job opportunity not listed on the approved
Application for Temporary Employment Certification unless the employer
has obtained a new approved Application for Temporary Employment
Certification.
(y) Abandonment/termination of employment. Upon the separation from
employment of worker(s) employed under the Application for Temporary
Employment Certification or workers in corresponding employment, if such
separation occurs before the end date of the employment specified in the
Application for Temporary Employment Certification, the employer must
notify OFLC
[[Page 99]]
in writing of the separation from employment not later than 2 work days
after such separation is discovered by the employer. In addition, the
employer must notify DHS in writing (or any other method specified by
the Department of Labor or DHS in the Federal Register or the Code of
Federal Regulations) of such separation of an H-2B worker. An
abandonment or abscondment is deemed to begin after a worker fails to
report for work at the regularly scheduled time for 5 consecutive
working days without the consent of the employer. If the separation is
due to the voluntary abandonment of employment by the H-2B worker or
worker in corresponding employment, and the employer provides
appropriate notification specified under this paragraph (y), the
employer will not be responsible for providing or paying for the
subsequent transportation and subsistence expenses of that worker under
this section, and that worker is not entitled to the three-fourths
guarantee described in paragraph (f) of this section. The employer's
obligation to guarantee three-fourths of the work described in paragraph
(f) ends with the last full 12-week period (or 6-week period, as
appropriate) preceding the worker's voluntary abandonment or termination
for cause.
(z) Compliance with applicable laws. During the period of employment
specified on the Application for Temporary Employment Certification, the
employer must comply with all applicable Federal, State and local
employment-related laws and regulations, including health and safety
laws. This includes compliance with 18 U.S.C. 1592(a), with respect to
prohibitions against employers, the employer's agents or their attorneys
knowingly holding, destroying or confiscating workers' passports, visas,
or other immigration documents.
(aa) Disclosure of foreign worker recruitment. The employer, and its
attorney or agent, as applicable, must comply with 20 CFR 655.9 by
providing a copy of all agreements with any agent or recruiter whom it
engages or plans to engage in the recruitment of H-2B workers, and the
identity and location of the persons or entities hired by or working for
the agent or recruiter, and any of the agents or employees of those
persons and entities, to recruit foreign workers. Pursuant to 20 CFR
655.15(a), the agreements and information must be filed with the
Application for Temporary Employment Certification.
(bb) Cooperation with investigators. The employer must cooperate
with any employee of the Secretary who is exercising or attempting to
exercise the Department's authority pursuant to 8 U.S.C. 1184(c)(14)(B),
section 214(c)(14)(B) of the INA.
Sec. 503.17 Document retention requirements of H-2B employers.
(a) Entities required to retain documents. All employers filing an
Application for Temporary Employment Certification requesting H-2B
workers are required to retain the documents and records proving
compliance with 20 CFR part 655, subpart A and this part, including but
not limited to those specified in paragraph (c) of this section.
(b) Period of required retention. The employer must retain records
and documents for 3 years from the date of certification of the
Application for Temporary Employment Certification or from the date of
adjudication if the Application for Temporary Employment Certification
is denied or 3 years from the day the Department of Labor receives the
letter of withdrawal provided in accordance with 20 CFR 655.62.
(c) Documents and records to be retained by all employer applicants.
All employers filing an H-2B Registration and an Application for
Temporary Employment Certification must retain the following documents
and records and must provide the documents and records in the event of
an audit or investigation:
(1) Documents and records not previously submitted during the
registration process that substantiate temporary need;
(2) Proof of recruitment efforts, as applicable, including:
(i) Job order placement as specified in 20 CFR 655.16;
(ii) Contact with former U.S. workers as specified in 20 CFR 655.43;
(iii) Contact with bargaining representative(s), copy of the posting
of the job opportunity, and contact with
[[Page 100]]
community-based organizations, if applicable, as specified in 20 CFR
655.45(a), (b) and (c); and
(iv) Additional employer-conducted recruitment efforts as specified
in 20 CFR 655.46;
(3) Substantiation of the information submitted in the recruitment
report prepared in accordance with 20 CFR 655.48, such as evidence of
nonapplicability of contact with former workers as specified in 20 CFR
655.43;
(4) The final recruitment report and any supporting resumes and
contact information as specified in 20 CFR 655.48;
(5) Records of each worker's earnings, hours offered and worked, and
other information as specified in Sec. 503.16(i);
(6) If appropriate, records of reimbursement of transportation and
subsistence costs incurred by the workers, as specified in Sec.
503.16(j).
(7) Evidence of contact with U.S. workers who applied for the job
opportunity in the Application for Temporary Employment Certification,
including documents demonstrating that any rejections of U.S. workers
were for lawful, job-related reasons, as specified in Sec. 503.16(r);
(8) Evidence of contact with any former U.S. worker in the
occupation and the area of intended employment in the Application for
Temporary Employment Certification, including documents demonstrating
that the U.S. worker had been offered the job opportunity in the
Application for Temporary Employment Certification, as specified in
Sec. 503.16(w), and that the U.S. worker either refused the job
opportunity or was rejected only for lawful, job-related reasons, as
specified in Sec. 503.16(r);
(9) The written contracts with agents or recruiters, as specified in
20 CFR 655.8 and 655.9, and the list of the identities and locations of
persons hired by or working for the agent or recruiter and these
entities' agents or employees, as specified in 20 CFR 655.9;
(10) Written notice provided to and informing OFLC that an H-2B
worker or worker in corresponding employment has separated from
employment before the end date of employment specified in the
Application for Temporary Employment Certification, as specified in
Sec. 503.16(y);
(11) The H-2B Registration, job order, and a copy of the Application
for Temporary Employment Certification and the original signed Appendix
B of the Application.
(12) The approved H-2B Petition, including all accompanying
documents; and
(13) Any collective bargaining agreement(s), individual employment
contract(s), or payroll records from the previous year necessary to
substantiate any claim that certain incumbent workers are not included
in corresponding employment, as specified in Sec. 503.4.
(d) Availability of documents for enforcement purposes. An employer
must make available to the Administrator, WHD within 72 hours following
a request by the WHD the documents and records required under 20 CFR
part 655, subpart A and this section so that the Administrator, WHD may
copy, transcribe, or inspect them.
[80 FR 24130, Apr. 29, 2015, as amended at 84 FR 62447, Nov. 15, 2019]
Sec. 503.18 Validity of temporary labor certification.
(a) Validity period. A temporary labor certification is valid only
for the period of time between the beginning and ending dates of
employment, as approved on the Application for Temporary Employment
Certification. The certification expires on the last day of authorized
employment.
(b) Scope of validity. A temporary labor certification is valid only
for the number of H-2B positions, the area of intended employment, the
job classification and specific services or labor to be performed, and
the employer specified on the approved Application for Temporary
Employment Certification. The temporary labor certification may not be
transferred from one employer to another unless the employer to which it
is transferred is a successor in interest to the employer to which it
was issued.
Sec. 503.19 Violations.
(a) Types of violations. Pursuant to the statutory provisions
governing enforcement of the H-2B program, 8 U.S.C. 1184(c)(14), a
violation exists
[[Page 101]]
under this part where the Administrator, WHD determines that there has
been a:
(1) Willful misrepresentation of a material fact on the H-2B
Registration, Application for Prevailing Wage Determination, Application
for Temporary Employment Certification, or H-2B Petition;
(2) Substantial failure to meet any of the terms and conditions of
the H-2B Registration, Application for Prevailing Wage Determination,
Application for Temporary Employment Certification, or H-2B Petition. A
substantial failure is a willful failure to comply that constitutes a
significant deviation from the terms and conditions of such documents;
or
(3) Willful misrepresentation of a material fact to the Department
of State during the H-2B nonimmigrant visa application process.
(b) Determining whether a violation is willful. A willful
misrepresentation of a material fact or a willful failure to meet the
required terms and conditions occurs when the employer, attorney, or
agent knows its statement is false or that its conduct is in violation,
or shows reckless disregard for the truthfulness of its representation
or for whether its conduct satisfies the required conditions.
(c) Determining whether a violation is significant. In determining
whether a violation is a significant deviation from the terms and
conditions of the H-2B Registration, Application for Prevailing Wage
Determination, Application for Temporary Employment Certification, or H-
2B Petition, the factors that the Administrator, WHD may consider
include, but are not limited to, the following:
(1) Previous history of violation(s) under the H-2B program;
(2) The number of H-2B workers, workers in corresponding employment,
or U.S. workers who were and/or are affected by the violation(s);
(3) The gravity of the violation(s);
(4) The extent to which the violator achieved a financial gain due
to the violation(s), or the potential financial loss or potential injury
to the worker(s); and
(5) Whether U.S. workers have been harmed by the violation.
(d) Employer acceptance of obligations. The provisions of this part
become applicable upon the date that the employer's Application for
Temporary Employment Certification is accepted. The employer's
submission of the approved H-2B Registration, Application for Prevailing
Wage Determination, the employer's survey attestation (Form ETA-9165),
Appendix B of the Application for Temporary Employment Certification,
and H-2B Petition constitute the employer's representation that the
statements on the forms are accurate and that it knows and accepts the
obligations of the program.
Sec. 503.20 Sanctions and remedies--general.
Whenever the Administrator, WHD determines that there has been a
violation(s), as described in Sec. 503.19, such action will be taken
and such proceedings instituted as deemed appropriate, including (but
not limited to) the following:
(a) Institute administrative proceedings, including for: the
recovery of unpaid wages (including recovery of prohibited recruitment
fees paid or impermissible deductions from pay, and recovery of wages
due for improperly placing workers in areas of employment or in
occupations other than those identified on the Application for Temporary
Employment Certification and for which a prevailing wage was not
obtained); the enforcement of provisions of the job order, 8 U.S.C.
1184(c), 20 CFR part 655, subpart A, or the regulations in this part;
the assessment of a civil money penalty; make whole relief for any
person who has been discriminated against; reinstatement and make whole
relief for any U.S. worker who has been improperly rejected for
employment, laid off or displaced; or debarment for no less than 1 or no
more than 5 years.
(b) The remedies referenced in paragraph (a) of this section will be
sought either directly from the employer, or from its successor in
interest, or from the employer's agent or attorney, as appropriate.
Sec. 503.21 Concurrent actions within the Department of Labor.
OFLC has primary responsibility to make all determinations regarding
the
[[Page 102]]
issuance, denial, or revocation of a labor certification as described in
Sec. 503.1(b) and in 20 CFR part 655, subpart A. The WHD has primary
responsibility to make all determinations regarding the enforcement
functions as described in Sec. 503.1(c). The taking of any one of the
actions referred to above will not be a bar to the concurrent taking of
any other action authorized by 8 U.S.C. 1184(c), 20 CFR part 655,
subpart A, or the regulations in this part. OFLC and the WHD have
concurrent jurisdiction to impose a debarment remedy under 20 CFR 655.73
or under Sec. 503.24.
Sec. 503.22 Representation of the Secretary.
The Solicitor of Labor, through authorized representatives, will
represent the Administrator, WHD and the Secretary in all administrative
hearings under 8 U.S.C. 1184(c)(14) and the regulations in this part.
Sec. 503.23 Civil money penalty assessment.
(a) A civil money penalty may be assessed by the Administrator, WHD
for each violation that meets the standards described in Sec. 503.19.
Each such violation involving the failure to pay an individual worker
properly or to honor the terms or conditions of a worker's employment
required by the H-2B Registration, Application for Prevailing Wage
Determination, Application for Temporary Employment Certification, or H-
2B Petition, constitutes a separate violation. Civil money penalty
amounts for such violations are determined as set forth in paragraphs
(b) to (e) of this section.
(b) Upon determining that an employer has violated any provisions of
Sec. 503.16 related to wages, impermissible deductions or prohibited
fees and expenses, the Administrator, WHD, may assess civil money
penalties that are equal to the difference between the amount that
should have been paid and the amount that actually was paid to such
worker(s), not to exceed $14,960 per violation.
(c) Upon determining that an employer has terminated by layoff or
otherwise or has refused to employ any worker in violation of Sec.
503.16(r), (t), or (v), within the periods described in those sections,
the Administrator, WHD may assess civil money penalties that are equal
to the wages that would have been earned but for the layoff or failure
to hire, not to exceed $14,960 per violation. No civil money penalty
will be assessed, however, if the employee refused the job opportunity,
or was terminated for lawful, job-related reasons.
(d) The Administrator, WHD, may assess civil money penalties in an
amount not to exceed $14,960 per violation for any other violation that
meets the standards described in Sec. 503.19.
(e) In determining the amount of the civil money penalty to be
assessed under paragraph (d) of this section, the Administrator, WHD
will consider the type of violation committed and other relevant
factors. In determining the level of penalties to be assessed, the
highest penalties will be reserved for willful failures to meet any of
the conditions of the Application for Temporary Employment Certification
and H-2B Petition that involve harm to U.S. workers. Other factors which
may be considered include, but are not limited to, the following:
(1) Previous history of violation(s) of 8 U.S.C. 1184(c), 20 CFR
part 655, subpart A, or the regulations in this part;
(2) The number of H-2B workers, workers in corresponding employment,
or improperly rejected U.S. applicants who were and/or are affected by
the violation(s);
(3) The gravity of the violation(s);
(4) Efforts made in good faith to comply with 8 U.S.C. 1184(c), 20
CFR part 655, subpart A, and the regulations in this part;
(5) Explanation from the person charged with the violation(s);
(6) Commitment to future compliance, taking into account the public
health, interest or safety; and
(7) The extent to which the violator achieved a financial gain due
to the violation, or the potential financial loss or potential injury to
the workers.
[80 FR 24130, Apr. 29, 2015, as amended at 81 FR 42986, July 1, 2016; 82
FR 14149, Mar. 17, 2017; 83 FR 12, Jan. 2, 2018; 84 FR 218, Jan. 23,
2019; 85 FR 2298, Jan. 15, 2020; 86 FR 2968, Jan. 14, 2021; 87 FR 2334,
Jan. 14, 2022; 88 FR 2216, Jan. 13, 2023]
[[Page 103]]
Sec. 503.24 Debarment.
(a) Debarment of an employer. The Administrator, OFLC may not issue
future labor certifications under 20 CFR part 655, subpart A to an
employer or any successor in interest to that employer, subject to the
time limits set forth in paragraph (c) of this section, if the
Administrator, WHD finds that the employer committed a violation that
meets the standards of Sec. 503.19. Where these standards are met,
debarrable violations would include but not be limited to one or more
acts of commission or omission which involve:
(1) Failure to pay or provide the required wages, benefits, or
working conditions to the employer's H-2B workers and/or workers in
corresponding employment;
(2) Failure, except for lawful, job-related reasons, to offer
employment to qualified U.S. workers who applied for the job opportunity
for which certification was sought;
(3) Failure to comply with the employer's obligations to recruit
U.S. workers;
(4) Improper layoff or displacement of U.S. workers or workers in
corresponding employment;
(5) Failure to comply with one or more sanctions or remedies imposed
by the Administrator, WHD for violation(s) of obligations under the job
order or other H-2B obligations, or with one or more decisions or orders
of the Secretary or a court under 20 CFR part 655, subpart A or this
part;
(6) Impeding an investigation of an employer under this part;
(7) Employing an H-2B worker outside the area of intended
employment, in an activity/activities not listed in the job order, or
outside the validity period of employment of the job order, including
any approved extension thereof;
(8) A violation of the requirements of Sec. 503.16(o) or (p);
(9) A violation of any of the provisions listed in Sec. 503.16(r);
(10) Any other act showing such flagrant disregard for the law that
future compliance with program requirements cannot reasonably be
expected;
(11) Fraud involving the H-2B Registration, Application for
Prevailing Wage Determination, Application for Temporary Employment
Certification, or H-2B Petition; or
(12) A material misrepresentation of fact during the registration or
application process.
(b) Debarment of an agent or attorney. If the Administrator, WHD
finds, under this section, that an agent or attorney committed a
violation as described in paragraph (a) of this section or participated
in an employer's violation, the Administrator, OFLC may not issue future
labor certifications to an employer represented by such agent or
attorney, subject to the time limits set forth in paragraph (c) of this
section.
(c) Period of debarment. Debarment under this subpart may not be for
less than 1 year or more than 5 years from the date of the final agency
decision.
(d) Debarment procedure. If the Administrator, WHD makes a
determination to debar an employer, attorney, or agent, the
Administrator, WHD will send the party a Notice of Debarment. The notice
will state the reason for the debarment finding, including a detailed
explanation of the grounds for and the duration of the debarment and
inform the party subject to the notice of its right to request a
debarment hearing and the timeframe under which such rights must be
exercised under Sec. 503.43. If the party does not request a hearing
within 30 calendar days of the date of the Notice of Debarment, the
notice is the final agency action and the debarment will take effect at
the end of the 30-day period. The timely filing of an administrative
appeal stays the debarment pending the outcome of the appeal as provided
in Sec. 503.43(e).
(e) Concurrent debarment jurisdiction. OFLC and the WHD have
concurrent jurisdiction debar under 20 CFR 655.73 or under this part.
When considering debarment, OFLC and the WHD will coordinate their
activities. A specific violation for which debarment is imposed will be
cited in a single debarment proceeding. Copies of final debarment
decisions will be forwarded to DHS and DOS promptly.
(f) Debarment from other labor certification programs. Upon
debarment under this part or 20 CFR 655.73, the debarred party will be
disqualified from filing any labor certification applications or labor
condition applications with the
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Department of Labor by, or on behalf of, the debarred party for the same
period of time set forth in the final debarment decision.
Sec. 503.25 Failure to cooperate with investigators.
(a) No person will interfere or refuse to cooperate with any
employee of the Secretary who is exercising or attempting to exercise
the Department's investigative or enforcement authority under 8 U.S.C.
1184(c). Federal statutes prohibiting persons from interfering with a
Federal officer in the course of official duties are found at 18 U.S.C.
111 and 18 U.S.C. 114.
(b) Where an employer (or employer's agent or attorney) interferes
or does not cooperate with an investigation concerning the employment of
an H-2B worker or a worker in corresponding employment, or a U.S. worker
who has been improperly rejected for employment or improperly laid off
or displaced, WHD may make such information available to OFLC and may
recommend that OFLC revoke the existing certification that is the basis
for the employment of the H-2B workers giving rise to the investigation.
In addition, WHD may take such action as appropriate where the failure
to cooperate meets the standards in Sec. 503.19, including initiating
proceedings for the debarment of the employer from future certification
for up to 5 years, and/or assessing civil money penalties against any
person who has failed to cooperate with a WHD investigation. The taking
of any one action will not bar the taking of any additional action.
Sec. 503.26 Civil money penalties--payment and collection.
Where a civil money penalty is assessed in a final order by the
Administrator, WHD, by an ALJ, or by the ARB, the amount of the penalty
must be received by the Administrator, WHD within 30 calendar days of
the date of the final order. The person assessed the penalty will remit
the amount ordered to the Administrator, WHD by certified check or by
money order, made payable to the Wage and Hour Division, United States
Department of Labor. The remittance will be delivered or mailed to the
WHD Regional Office for the area in which the violations occurred.
Subpart C_Administrative Proceedings
Sec. 503.40 Applicability of procedures and rules.
(a) The procedures and rules contained in this subpart prescribe the
administrative appeal process that will be applied with respect to a
determination to assess civil money penalties, to debar, to enforce
provisions of the job order or provisions under 8 U.S.C. 1184(c), 20 CFR
part 655, subpart A, or the regulations in this part, or to the
collection of monetary relief due as a result of any violation.
(b) With respect to determinations as listed in paragraph (a)
involving provisions under 8 U.S.C. 1184(c), the procedures and rules
contained in this subpart will apply regardless of the date of
violation.
Procedures Related to Hearing
Sec. 503.41 Administrator, WHD's determination.
(a) Whenever the Administrator, WHD decides to assess a civil money
penalty, to debar, or to impose other appropriate administrative
remedies, including for the recovery of monetary relief, the party
against which such action is taken will be notified in writing of such
determination.
(b) The Administrator, WHD's determination will be served on the
party by personal service or by certified mail at the party's last known
address. Where service by certified mail is not accepted by the party,
the Administrator may exercise discretion to serve the determination by
regular mail.
Sec. 503.42 Contents of notice of determination.
The notice of determination required by Sec. 503.41 will:
(a) Set forth the determination of the Administrator, WHD,
including:
(1) The amount of any monetary relief due; or
(2) Other appropriate administrative remedies; or
(3) The amount of any civil money penalty assessment; or
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(4) Whether debarment is sought and the term; and
(5) The reason or reasons for such determination.
(b) Set forth the right to request a hearing on such determination;
(c) Inform the recipient(s) of the notice that in the absence of a
timely request for a hearing, received by the Chief ALJ within 30
calendar days of the date of the determination, the determination of the
Administrator, WHD will become final and not appealable;
(d) Set forth the time and method for requesting a hearing, and the
related procedures for doing so, as set forth in Sec. 503.43, and give
the addresses of the Chief ALJ (with whom the request must be filed) and
the representative(s) of the Solicitor of Labor (upon whom copies of the
request must be served); and
(e) Where appropriate, inform the recipient(s) of the notice that
the Administrator, WHD will notify OFLC and DHS of the occurrence of a
violation by the employer.
Sec. 503.43 Request for hearing.
(a) Any party desiring review of a determination issued under Sec.
503.41, including judicial review, must make a request for such an
administrative hearing in writing to the Chief ALJ at the address stated
in the notice of determination. In such a proceeding, the Administrator
will be the plaintiff, and the party will be the respondent. If such a
request for an administrative hearing is timely filed, the
Administrator, WHD's determination will be inoperative unless and until
the case is dismissed or the ALJ issues an order affirming the decision.
(b) No particular form is prescribed for any request for hearing
permitted by this section. However, any such request will:
(1) Be dated;
(2) Be typewritten or legibly written;
(3) Specify the issue or issues stated in the notice of
determination giving rise to such request;
(4) State the specific reason or reasons why the party believes such
determination is in error;
(5) Be signed by the party making the request or by the agent or
attorney of such party; and
(6) Include the address at which such party or agent or attorney
desires to receive further communications relating thereto.
(c) The request for such hearing must be received by the Chief ALJ,
at the address stated in the Administrator, WHD's notice of
determination, no later than 30 calendar days after the date of the
determination. A party which fails to meet this 30-day deadline for
requesting a hearing may thereafter participate in the proceedings only
by consent of the ALJ.
(d) The request may be filed in person, by facsimile transmission,
by certified or regular mail, or by courier service within the time set
forth in paragraph (c) of this section. For the requesting party's
protection, if the request is by mail, it should be by certified mail.
If the request is by facsimile transmission, the original of the
request, signed by the party or its attorney or agent, must be filed
within 25 days.
(e) The determination will take effect on the start date identified
in the written notice of determination, unless an administrative appeal
is properly filed. The timely filing of an administrative appeal stays
the determination pending the outcome of the appeal proceedings.
(f) Copies of the request for a hearing will be sent by the party or
attorney or agent to the WHD official who issued the notice of
determination on behalf of the Administrator, WHD, and to the
representative(s) of the Solicitor of Labor identified in the notice of
determination.
Rules of Practice
Sec. 503.44 General.
(a) Except as specifically provided in the regulations in this part
and to the extent they do not conflict with the provisions of this part,
the Rules of Practice and Procedure for Administrative Hearings Before
the Office of Administrative Law Judges established by the Secretary at
29 CFR part 18 will apply to administrative proceedings described in
this part.
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(b) As provided in the Administrative Procedure Act, 5 U.S.C. 556,
any oral or documentary evidence may be received in proceedings under
this part. The Federal Rules of Evidence and subpart B of the Rules of
Practice and Procedure for Administrative Hearings Before the Office of
Administrative Law Judges (29 CFR part 18, subpart B) will not apply,
but principles designed to ensure production of relevant and probative
evidence will guide the admission of evidence. The ALJ may exclude
evidence which is immaterial, irrelevant, or unduly repetitive.
Sec. 503.45 Service of pleadings.
(a) Under this part, a party may serve any pleading or document by
regular mail. Service on a party is complete upon mailing to the last
known address. No additional time for filing or response is authorized
where service is by mail. In the interest of expeditious proceedings,
the ALJ may direct the parties to serve pleadings or documents by a
method other than regular mail.
(b) Two copies of all pleadings and other documents in any ALJ
proceeding must be served on the attorneys for the Administrator, WHD.
One copy must be served on the Associate Solicitor, Division of Fair
Labor Standards, Office of the Solicitor, U.S. Department of Labor, 200
Constitution Avenue NW., Room N-2716, Washington, DC 20210, and one copy
must be served on the attorney representing the Administrator in the
proceeding.
(c) Time will be computed beginning with the day following service
and includes the last day of the period unless it is a Saturday, Sunday,
or Federally-observed holiday, in which case the time period includes
the next business day.
Sec. 503.46 Commencement of proceeding.
Each administrative proceeding permitted under 8 U.S.C. 1184(c)(14)
and the regulations in this part will be commenced upon receipt of a
timely request for hearing filed in accordance with Sec. 503.43.
Sec. 503.47 Caption of proceeding.
(a) Each administrative proceeding instituted under 8 U.S.C.
1184(c)(14), INA section 214(c)(14) and the regulations in this part
will be captioned in the name of the person requesting such hearing, and
will be styled as follows:
In the Matter of __________, Respondent.
(b) For the purposes of such administrative proceedings the
Administrator, WHD will be identified as plaintiff and the person
requesting such hearing will be named as respondent.
Sec. 503.48 Conduct of proceeding.
(a) Upon receipt of a timely request for a hearing filed under and
in accordance with Sec. 503.43, the Chief ALJ will promptly appoint an
ALJ to hear the case.
(b) The ALJ will notify all parties of the date, time and place of
the hearing. Parties will be given at least 30 calendar days' notice of
such hearing.
(c) The ALJ may prescribe a schedule by which the parties are
permitted to file a prehearing brief or other written statement of fact
or law. Any such brief or statement must be served upon each other
party. Post-hearing briefs will not be permitted except at the request
of the ALJ. When permitted, any such brief must be limited to the issue
or issues specified by the ALJ, will be due within the time prescribed
by the ALJ, and must be served on each other party.
Procedures Before Administrative Law Judge
Sec. 503.49 Consent findings and order.
(a) General. At any time after the commencement of a proceeding
under this part, but before the reception of evidence in any such
proceeding, a party may move to defer the receipt of any evidence for a
reasonable time to permit negotiation of an agreement containing consent
findings and an order disposing of the whole or any part of the
proceeding. The allowance of such deferment and the duration thereof
will be at the discretion of the ALJ, after consideration of the nature
of the proceeding, the requirements of the public interest, the
representations of the parties, and the probability of an agreement
being reached which will result in a just disposition of the issues
involved.
[[Page 107]]
(b) Content. Any agreement containing consent findings and an order
disposing of a proceeding or any part thereof will also provide:
(1) That the order will have the same force and effect as an order
made after full hearing;
(2) That the entire record on which any order may be based will
consist solely of the notice of administrative determination (or amended
notice, if one is filed), and the agreement;
(3) A waiver of any further procedural steps before the ALJ; and
(4) A waiver of any right to challenge or contest the validity of
the findings and order entered into in accordance with the agreement.
(c) Submission. On or before the expiration of the time granted for
negotiations, the parties or their attorney or agent may:
(1) Submit the proposed agreement for consideration by the ALJ; or
(2) Inform the ALJ that agreement cannot be reached.
(d) Disposition. In the event an agreement containing consent
findings and an order is submitted within the time allowed therefore,
the ALJ, within 30 days thereafter, will, if satisfied with its form and
substance, accept such agreement by issuing a decision based upon the
agreed findings.
Post-Hearing Procedures
Sec. 503.50 Decision and order of Administrative Law Judge.
(a) The ALJ will prepare, within 60 days after completion of the
hearing and closing of the record, a decision on the issues referred by
the Administrator, WHD.
(b) The decision of the ALJ will include a statement of the findings
and conclusions, with reasons and basis therefore, upon each material
issue presented on the record. The decision will also include an
appropriate order which may affirm, deny, reverse, or modify, in whole
or in part, the determination of the Administrator, WHD. The reason or
reasons for such order will be stated in the decision.
(c) In the event that the Administrator, WHD assesses back wages for
wage violation(s) of Sec. 503.16 based upon a PWD obtained by the
Administrator from OFLC during the investigation and the ALJ determines
that the Administrator's request was not warranted, the ALJ will remand
the matter to the Administrator for further proceedings on the
Administrator's determination. If there is no such determination and
remand by the ALJ, the ALJ will accept as final and accurate the wage
determination obtained from OFLC or, in the event the party filed a
timely appeal under 20 CFR 655.13 the final wage determination resulting
from that process. Under no circumstances will the ALJ determine the
validity of the wage determination or require submission into evidence
or disclosure of source data or the names of establishments contacted in
developing the survey which is the basis for the PWD.
(d) The decision will be served on all parties.
(e) The decision concerning civil money penalties, debarment,
monetary relief, and/or other administrative remedies, when served by
the ALJ will constitute the final agency order unless the ARB, as
provided for in Sec. 503.51, determines to review the decision.
Review of Administrative Law Judge's Decision
Sec. 503.51 Procedures for initiating and undertaking review.
(a) A respondent, the WHD, or any other party wishing review,
including judicial review, of the decision of an ALJ will, within 30
days of the decision of the ALJ, petition the ARB to review the
decision. Copies of the petition will be served on all parties and on
the ALJ.
(b) No particular form is prescribed for any petition for the ARB's
review permitted by this part. However, any such petition will:
(1) Be dated;
(2) Be typewritten or legibly written;
(3) Specify the issue or issues stated in the ALJ decision and order
giving rise to such petition;
(4) State the specific reason or reasons why the party petitioning
for review believes such decision and order are in error;
(5) Be signed by the party filing the petition or by an authorized
representative of such party;
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(6) Include the address at which such party or authorized
representative desires to receive further communications relating
thereto; and
(7) Include as an attachment the ALJ's decision and order, and any
other record documents which would assist the ARB in determining whether
review is warranted.
(c) If the ARB does not issue a notice accepting a petition for
review of the decision within 30 days after receipt of a timely filing
of the petition, or within 30 days of the date of the decision if no
petition has been received, the decision of the ALJ will be deemed the
final agency action.
(d) Whenever the ARB, either on the ARB's own motion or by
acceptance of a party's petition, determines to review the decision of
an ALJ, a notice of the same will be served upon the ALJ and upon all
parties to the proceeding.
Sec. 503.52 Responsibility of the Office of Administrative Law Judges
(OALJ).
Upon receipt of the ARB's notice under Sec. 503.51, the OALJ will
promptly forward a copy of the complete hearing record to the ARB.
Sec. 503.53 Additional information, if required.
Where the ARB has determined to review such decision and order, the
ARB will notify the parties of:
(a) The issue or issues raised;
(b) The form in which submissions will be made (i.e., briefs, oral
argument); and
(c) The time within which such presentation will be submitted.
Sec. 503.54 Submission of documents to the Administrative Review Board.
All documents submitted to the ARB will be filed with the
Administrative Review Board, U.S. Department of Labor, 200 Constitution
Avenue NW., Room S-5220, Washington, DC 20210. An original and two
copies of all documents must be filed. Documents are not deemed filed
with the ARB until actually received by the ARB. All documents,
including documents filed by mail, must be received by the ARB either on
or before the due date. Copies of all documents filed with the ARB must
be served upon all other parties involved in the proceeding.
Sec. 503.55 Final decision of the Administrative Review Board.
The ARB's final decision will be issued within 90 days from the
notice granting the petition and served upon all parties and the ALJ.
Record
Sec. 503.56 Retention of official record.
The official record of every completed administrative hearing
provided by the regulations in this part will be maintained and filed
under the custody and control of the Chief ALJ, or, where the case has
been the subject of administrative review, the ARB.
PART 504_ATTESTATIONS BY FACILITIES USING NONIMMIGRANT ALIENS AS
REGISTERED NURSES--Table of Contents
Authority: 8 U.S.C. 1101(a)(15)(H)(i)(a) and 1182(m); sec. 3(c)(1),
Pub. L. 101-238, 103 Stat. 2099, 2103; and sec. 341 (a) and (b), Pub. L.
103-182, 107 Stat. 2057.
Source: 61 FR 51014, Sept. 30, 1996, unless otherwise noted.