Services to Migrant Seasonal Farm workers

Services to Migrant Seasonal Services to Migrant Seasonal Farm workersFarm workers

José V. OcasioState Monitor Advocate

Commonwealth of MassachusettsDepartment of Career Services19 Staniford St, Boston, MA 02114

AgendaAgendaMigrant Seasonal Farm WorkersMigrant Seasonal Farm Workers

Part I – Services to MSFW Purpose Background / Definitions Identification of MSFWs Services to MSFWs Indicators of Compliance Data Collection / Reporting Monitor Advocate

Part II – Agricultural Orders Job Orders Local Job Orders ARS Job Orders H-2A Related Job Orders Referrals and Follow-up Apparent Violations Reporting

PurposePurpose

To provide guidance and clarification on the proper procedures to follow when providing services to Migrant and Seasonal Farmworker (MSFW) and agricultural employers under the Wagner-Peyser Act.

TimelineTimeline

1973: MSFW Training Established

1933: Wagner-Peyser

2000: Executive Order 13166

1986: Immigration Reform and Control Act

1970

1971: NAACP Lawsuit

1930

1974: Judge Richey Court Order

1980

1980: ES Regulations

1983: Migrant and Seasonal Agricultural Worker Protection Act

1990

1998: WIA

2000 TODAY

Who are Seasonal Farmworker?Who are Seasonal Farmworker?

20 CFR 651.10

Agricultural workers who, during the preceding 12 months:

Worked at least 25 or more days or parts of days in which some of the work performed was farm work;

Earned at least half their earned income from farm work; and

Were not employed in farm work year-round by the same employer.

Who are Migrant Farmworkers?Who are Migrant Farmworkers?

Seasonal agricultural worker who travelled to do farmwork and did not return to his / her place of permanent residence on the same day. Full-time students traveling in organized groups rather than with their families are excluded.

20 CFR 651.10

Migrant Food Processing WorkerMigrant Food Processing Worker

An agricultural worker who during the preceding 12 months worked at least an aggregate of 25 or more days or parts of days in which some work was performed in food processing earned at least half of his / her earned income from processing food products, was not employed in food processing year round by the same employer, andwho traveled to do farmwork and did not return to his / her place of permanent residence on the same day.

Migrant food processing workers who are full-time students but whotraveled in organized groups rather than with their families areexcluded.

20 CFR 651.10

MSFWMSFW

MSFW means a Seasonal farmworker, a Migrant farmworker, or a Migrant Food Processing worker.

Note: The food processing definition only applies toindividuals that have to migrate to perform the activities.There are no “seasonal” food processors.

20 CFR 651.10

MSFW IDENTIFYING FACTORSMSFW IDENTIFYING FACTORS

Identifying Factors Explanation

Industry Requirement Farm work or Food Processing

Rolling Time Frames 12 months prior to current visit

Income Guidelines 50% of all wages earned from farm work or food processing

Minimum 25 days 25 days (or parts of days) Farm Work or Food Processing during the preceding 12 months

Employer Requirement One or more employers

Full time student Only students who migrate with their families are MSFWs

Seasonal Migrant Migrant Food Processor

Meets all of the above identifying factors

A Seasonal Farm worker who had to travel to perform farm work and was unable to return to his/her place of permanent residence within the same day.

Meets all of the above identifying factors and primary work experience must be in food processing and was unable to return to his/her place of permanent residence within the same day.

MSFW Desk AidMSFW Desk Aid

A copies of the “Desk Aid” can be obtained from the State Monitor Advocate.

Each One-Stop Career Center staff who processes / assist with customer registrations is to maintain a copy of this desk aid for reference.

OSCC staff shall explain the benefits of a full registration.If applicable, check off the MSFW indicator (MOSES)Ensure that all MSFWs receive a list of services available to them at the office (E / S)Document any MSFW pertinent information as appropriateDocument Service Screen as appropriate (MOSES)

MOSES REGISTRATIONMOSES REGISTRATION

MOSES REGISTRATION (cont.)MOSES REGISTRATION (cont.)

In MOSES (full registration tab) there are 3categories to chose from when servicing MSFWs, they are:

Seasonal FarmworkerMigrant FarmworkerMigrant Food Processor

SERVICES TO MSFWs

OSCCs are responsible to:

1. Assist customers who need assistance in registration, including Limited English Proficient (LEP) customers;

2. Identify whether each customer is or isn’t an MSFW;3. Ensure that farm worker’s registration includes complete

information for assessing skills, abilities, job preferences, education and training needs

20 CFR 653.101 - 107

4. Provide information about OSCC services to farm workers who come to the office, and

5. Offer full range of OSCC services to farm workers, including to LEP customers;

6. Explain and provide OSCC services to farmworkers that are quantitatively proportional and qualitatively equivalent to services provided to non-farmworkers;

20 CFR 653.101 - 107

SERVICES TO MSFWs (cont.)

Possible challenges when servicing MSFWs or employers:

Determining what assistance is most needed by MSFWs including - job referrals, supportive services, training, etc.

A technologically advanced service delivery system presents a challenge to both MSFWs as well as a number of agricultural employers

Example: MSFW may not be able to complete the registration process electronically due to

lack of computer access.

SERVICES TO MSFWs cont.

MSFW Service Level IndicatorsMSFW Service Level Indicators

The U.S. DOL, Employment and Training Administration (ETA) has established Labor Exchange Program Performance Indicators that State Workforce Agencies must meet.

These include:1. Equity Service indicators 2. Minimum Service Level indicators

- Prevents MSFWs from being excluded from services -

Regulations require SWA to collect and measure MSFW compliance based on the following:

Referral to Employment

Received Staff Assisted Services (Receiving Some Reportable Service)

Referred to Supportive Service

Career Guidance

Received Staff Assisted Service (Job Development Contact)

EQUITY INDICATORS (con’d)

MINIMUM SERVICE LEVEL INDICATORS

Minimum Service Indicators Compliance Level

1. Placed in a job 42.50% 2 .Placed $.50 above minimum wage 14.00% 3. Placed in long term non-agriculture job 3.00% 4. Reviews of significant offices 100.00% 5. Field checks conducted 25.00% 6. Outreach contacts per staff per day 5 per day 7. Timely process of ES complaints 90%

Data CollectionData Collection

Data for MSFWs Services are currently reported on the ETA 5148

The REVISED 9002 captures some but not all of the significant MSFW data to complete the 5148 reportStates are required to CAPTURE MSFW DATA to complete the ETA 5148 until DOL reviews and updates the MSFW regulations and provides new instructions.

20 CFR 653.109

Objectives for Serving MSFWsObjectives for Serving MSFWs

Enhance collaboration with MSFW service providers and the OSCCs. (Mass Migrant Ed / NEFWC / Migrant Health, etc.)Increase the number of agricultural employers using labor exchange services including the use of the Agricultural Recruitment System (ARS) to recruit and hire agricultural workers within the local area or from outside of MA.Increase the number of MSFWs in all labor exchange activities. Placement of MSFWs in higher-wage year-round employment in non-agricultural industries.

What do the regulations require?

State Workforce Agencies must deliver services to MSFWs that are “quantitatively proportionate” and “qualitatively equal” to those received by non-MSFWs.

Culturally and linguistically appropriate services must be provided (LEP).

Outreach activities – Ensure that MSFWs are aware of the services available to them at the OSCCs and allow them to receive needed services at their working or living locations.

What do the regulations require?

Completion of housing inspections - Prevents MSFWs from being sent to sub-standard facilitiesProcessing of “Apparent Violations” – OSCC staff is require to document and report suspected violations.Have an user-friendly OSCC Complaint System for complaint resolution SWA are to CAPTURE MSFW DATA to complete the ETA 5148 report.Maintain a Monitor Advocate Program to monitor the SWA and OSCCs performance to avoid re-occurrence of discriminatory treatment

Federal RegulationsFederal Regulations

20 CFR 652.207 – Labor exchange services must be made available to all employers and job seekers, including unemployment insurance (UI) claimants, veterans, migrant and seasonal farmworkers and individuals with disabilities.

20 CFR 653.101 - (a) Each State agency and each local office shall offer to migrant and seasonal farmworkers (MSFWs) the full range of employment services, benefits and protections, including the full range of counseling, testing, and job and training referral services as are provided to non-MSFWs. In providing such services, the State agency shall consider and be sensitive to the preferences, needs, and skills of individual MSFWs and the availability of job and training opportunities.

State Monitor AdvocateState Monitor Advocate

Conducts an ongoing review of the SWA and OSCCs delivery of services and protections afforded by WIA regulations to MSFWsImplements, monitors and evaluates the performance of the complaint system for all employment service applicants, including MSFWs. As an advocate, assists in the development of practices aimed at ensuring that MSFWs are offered the full range of services available

Part IIPart II

Agricultural Job Orders Options

Local Job OrderLocal Job Order

Job orders are taken by the One-Stop Career Centers (OSCC) for the recruitment of workers from the local service delivery area. The Fair Labor Standards Act is applicable to such job orders (Federal minimum wage – currently is $7.25 per hour). Employers are not required to provide transportation, housing or any of the other guarantees applicable to the ARS or H-2A Programs.

Local Job Order (con’t.)Local Job Order (con’t.)

Local Job Orders are not released to other OSCCs outside reasonable commuting distance of the job site, to the Internet or to the Intra / Interstate Clearance System. There are no processing costs or fees to employers and workers.

Agricultural Recruitment SystemAgricultural Recruitment System

These Job orders are exclusively for the recruitment of workers within the State but outside normal commuting distance and for Interstate recruitment.Applicants referred under this type of job orders are entitled to free housing, re-imbursement of Inbound / outbound transportation (if they live beyond commuting distance), Prevailing wages and transportation to and from the labor camp and the work site. There are no processing costs or fees to employers or workers.

AGRICULTURAL JOB ORDERSAGRICULTURAL JOB ORDERS

Job orders with NAICS farmwork industries that includessubsection 111-Crop Production, 112-Animal Production, and 115Support Activities for Agriculture and Forestry are subject to thefollowing criteria (s):1. Specific days and hours to be worked must be included in the

job summary. Phrases such as “TBA” are not acceptable.2. The job summary shall contain all pertinent data, what the

worker (s) will do, how will he/she perform the work; what degree of skill level is required, if any.


3. If the worker is to be paid by piece rate, the job summary should include:

A. The amount to be paid;B. The unit of measurement;C. A brief, concise description of the mode or capacity of the

measurement; andD. A statement as to whether or not the agriculture employer is

covered by the Fair Labor Standards Act (FLSA )or whether employer guarantees minimum wage,Example: $0.55 per 1 3/4 bushel, employer covered by FLSA.


4. If the employer is a crew leader / Farm Labor Contractor (FLC), the job order must include the federal and / or state registration number (see FLC slide)

5. The statement “Refer within commuting distance only” is required if the order is not to be placed in the clearance system.

6. If the work site is different from the employer address, both addresses are needed. Precise location and directions to the job site are required.


7. Use job titles that match the O*NET Codes if possible, otherwise use the job titles provided by the employer.

8. A specific estimated work days or months must be shown on the job orders – an estimation ranging from 1 -150 days is not acceptable.Example: February to June depending on weather, crop, etc.

Employers must use ETA 790 (application form) & its attachments for Agricultural of job orders.


9. A wage rate must be specified related to the job duties listed.

Employers utilizing the ARS (Intra/interstate clearance system) must offer the Prevailing Wage rate set for the occupation. Language such as “depending on experience (DOE)” is not acceptable. Employers covered by FLSA must adhere to minimum wage laws. In addition, employers utilizing the ARS system must adhere to Prevailing, Normal or Common Practices of employers engaged in similar crops or activities.

Farm Labor ContractorsFarm Labor Contractors

Must to be registered at State or Federal levelCan not be served by the OSCC if they do not have a valid certificate of registration. This includes Temp Agencies and their employees (29 CFR 500). Are considered joint employers if they have control over the work assignments, transportation, housing, etc.Verification can be conducted by going to the U.S. DOL Ineligible Farm Labor Contractors web site:

http://www.dol.gov/whd/regs/statutes/mspa_debar.htm

http://www.dol.gov/whd/regs/statutes/mspa_debar.htm

H-2A Related Job OrdersH-2A Related Job Orders

The H-2A temporary agricultural program establishes a means for agricultural employers who anticipate a shortage of domestic workers to bring non-immigrant foreign workers to U.S. to perform agricultural labor or services of a temporary or seasonal nature. There are several standards related to recruitment, wages, housing, worker’s compensation, transportation, and recordkeeping for employers of H-2A workers.

H-2A PROGRAMH-2A PROGRAMCONDITIONS TO BE SATISFIEDCONDITIONS TO BE SATISFIED

RECRUITMENTWAGESHOUSINGTOOLS & SUPPLIESLABOR DISPUTE

MEALSTRANSPORTATIONWORKERS COMP3/4 GUARANTEE50% RULE

H-2A ProcessingProcessing

Employers/Agents must file a completed ETA Form 790 to the SWA no more than 75 calendar days and no fewer than 60 calendar days prior to the anticipated Date of Need (DON)Employer (s) must identify that the ETA Form 790 is a job order and must be placed in connection with a future application for H-2A workersIf the anticipated worksites are located in more than one States within the area of intended employment, the employer may submit a job order to any State (SWAs) having the jurisdiction

H-2A Processing cont.Processing cont.

ETA Form 790 must satisfy all the following requirements: −Content for agricultural clearance orders at 20 CFR 653

Subpart F −Content for job offers at 20 CFR 655.122

SWA reviews ETA 790 and notifies employer of any deficiencies.

Upon acceptance, the SWA must promptly place the job order in intrastate clearance on its active file and begin recruitment of eligible U.S. workers


SWA must keep the job order on its active file until 50 percent of the work period of the contract has elapsedSWA must refer each U.S. worker who applies (or on whose behalf an application is made) to that job order

NOTE: No active recruitment from 3 days before DON up until the JO closes (50%)


Employer’s job opportunity 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-2A workers

−Not impose any restrictions or obligations on U.S. workers that will not be imposed on H-2A workers

−Offer job qualifications and requirements that are bona fide and consistent with the normal and accepted qualifications required by employers that do not use H-2A workers in the same or comparable occupations and crops

Minimum Benefits, Wages, and Working Minimum Benefits, Wages, and Working Conditions / Regulatory Citation (s)Conditions / Regulatory Citation (s)Provision of Housing 655.122(d)Provision of Workers’ Compensation 655.122(e)Provision of Tools, Supplies, and Equipment 655.122(f)Provision of Meals or Cooking Facilities 655.122(g)Provision of Transportation and Daily Subsistence 655.122(h)Three-Fourths Guarantee 655.122(i)Hours / Earnings Records, Rates and Frequency of Pay 655.122(j) through (m)Abandonment or Termination for Cause 655.122(n)Contract Impossibility 655.122(o)Required Deductions from Worker’s Pay 655.122(p)Work Contract or ETA Form 790 and attachments 655.122(q)

Referral and Follow-upReferral and Follow-up

OSCCs must complete follow-up activities on job referrals within 5 calendar days.All referrals and results must be accounted for in MOSES (20 CFR 653.109).If referrals are made to an H-2A related application, the OSCC must document any and all activity resulting from the referral.

Note: DCS must report to U.S. DOL the result of recruitmentbefore certification is granted.

Fair Labor Standards Act (FLSA) – Overtime/ # of hrs worked.Since at least 1976 OSHA has been directed by Congress in it’s Annual Appropriations Bill to limit its activities on small farms. Under this limitation OSHA cannot engage in any activity on a farm that has 10 or fewer employees unless the farm has had a temporary labor camp within the previous 12 months. Unemployment Insurance (FUTA), etc.

Agricultural - ExceptionsAgricultural - Exceptions

Programmed Safety InspectionsProgrammed Health InspectionsEmployee ComplaintAccidents (including fatalities)Imminent Danger 11(c) (whistleblower investigation)Consultation & Technical AssistanceEducation & TrainingConduct Surveys & Studies

OSHA Activities Prohibited on Small Farms (less than 10 workers):

Thank you for taking the time to participate in this workshop.

If you have any questions, please contact me at:

[email protected] Phone (617) 626-5587 / (413) 452-4688

mailto:[email protected]

Documents

Services to Migrant Seasonal Farm workers