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The Department of Labor (DOL) proposed a rule to “modernize and improve” the H-2A Temporary Agricultural Labor Certification Program

The Department of Labor (DOL) proposed a rule to “modernize and improve” the H-2A Temporary Agricultural Labor Certification Program.  A comparison grid of current rules to the proposed changes is attached for your review.  The reforms, which do not require Congressional action, would do the following:

  • Streamline the H-2A application process by mandating electronic filing of job orders and applications with the use of digital signatures
  • Provide employers with and the option of staggering the entry of H-2A workers on a single application
  • Strengthen protections for U.S. and foreign workers by enhancing standards  applicable to rental housing and public accommodations
  • Strengthen surety bond requirements
  • Expand the department’s authority to use enforcement tools like program debarment for substantial violations of program rules
  • Update the methods us
  • ed to determine the Adverse Effect Wage Rates and prevailing wages to ensure U.S. workers similarly employed are not adversely impacted
  • Expand access to the H-2A program by revising the definition of agricultural labor or services to include employers engaged in reforestation and pine straw activities

According to a DOL news release, 

“Furthering the agenda to help America’s farmers, the Department of Labor (the Department), Employment and Training Administration and Wage and Hour Division, is posting online a Notice of Proposed Rule-making (NPRM) to solicit public comment on proposed changes to improve the H-2A temporary agricultural labor certification program. These proposed changes would modernize the department’s H-2A regulations in a way that is responsive to stakeholder concerns and enhances employer access to a legal source of agricultural labor, while maintaining the program’s protections for the U.S. workforce and enhancing enforcement against fraud and abuse."

https://www.federalregister.gov/documents/2019/07/26/2019-15307/temporary-agricultural-employment-of-h-2a-nonimmigrants-in-the-united-states

Comments Close SEPT 24, 2019

 

Proposed Changes to Hours-of-Service Released by FMCSA

Late yesterday the Federal Motor Carrier Safety Administration (FMCSA) released the widely anticipated Notice of Proposed Rulemaking for Hours of Service as they relate to the Electronic Logging Device Rule. 

The National Watermelon Association has been working in cooperation with a number of other produce groups.  We would like to recognize and thank the leaders of Florida Fruit & Vegetable Association - Paul Orsenigo (Chairman) and Mike Joyner (President & CEO) – who began this effort with FMCSA to streamline the Hours-of-Service rules to apply more effectively to agriculture, and in particular fresh fruits and vegetables.  

In the joint petition that was submitted to FMCSA earlier this year, we requested a number of key changes to the rules.  Following is a recap of what we asked for:  

  1. Add an allowance for drivers to rest at any point during their trip without counting this rest time against their HOS allotments.
  2. Exclude loading and unloading times from the 14-hour on-duty HOS calculations.
  3. Allow drivers to complete their trip, regardless of HOS requirements, if they come within 150 air miles of their delivery point (if delivery takes place on any day beyond the original departure work period).

In these new proposed rules, we received some of the allowances that we requested.  They include a more flexible split sleeper berth option and the ability to pause the driver’s ELD for a break of 30-minutes or up to 3 hours at any time during his or her day.  The summary is posted here:

Summary of Hours of Service Notice of Proposed Rulemaking:

  1. Pause the ELD for 30 Minutes and Up to a 3 Hour Break:
    1. Current Rule: Not an option
    2. Proposed Rule: Pause the 14 hour on-duty clock for 30 minutes up to 3 hours consecutively, as long as those hours are taken as off-duty
    3. Provision requires 10 consecutive hours off duty at the end of the work shift
  1. Split Sleeper Berth:
    1. Current Rule: 10/0 split and 8/2 split options
    2. Proposed Rule: Adds a 7/3 split option
  1. 30 Minute Rest Break:
    1. Current Rule: 30 minute break required per 8 hours of on-duty time; taken either off-duty or sleeper berth
    2. Proposed Rule: 30 minute break required per 8 hours of driving time; taken off-duty OR on-duty not driving. Time can be used for filling up gas, restroom, eating, etc.
  1. Short Haul Exemption:
    1. Current Rule: Drivers are exempt from logging in an ELD for 12 hours of on-duty time within a 100 air-mile radius of the source
    2. Proposed Rule: Exempt from logging in an ELD for 14 hours on-duty time within a 150 air-mile radius of the source

                                                               i.      Brings the short haul exemption in line with the current agricultural exemption

  1. Adverse Driving Conditions:
    1. Current Rule: 2 hours extra driving time allowed because of adverse conditions does not extend your 14 hour working day
    2. Proposed Rule: Working day would extend to 16 hours following adverse conditions

The FMCSA full news release (129 pages) can be found online here or the printable PDF here.

Next Steps:

The joint group of produce groups (led by FFVA) will schedule a conference call with FMCSA leadership to further clarify these proposed rule changes and provide the chance to ask questions of the administration.  Following that call, we will provide you with our recommended comments which you may (if you choose) submit to the public record during the 45-day comment period. 

The proposed rules are just that – proposed.  Although the changes have gone through a vetting process within the Administration, they are proposed until such time that the public has had the opportunity to comment, those comments have been taken into consideration, and a final rule is vetted and released.  We are still a ways from seeing any of this become final and applied to the current day trucking rules.  However, we are getting closer.  More will come shortly.  Stay posted.
 

Breaking The ICE: How Employers Can Push Back Against Punitive I-9 Fines

Climate change may make our summers hotter, but the ICEman still cometh. Since late 2017, Immigration and Customs Enforcement (ICE) has significantly increased the number of Notices of Inspections issued to employers nationwide. This spike in I-9 audits has also resulted in an increase in assessed civil penalties and punitive fines to employers with non-compliant I-9s. While ICE audits and fines are on the rise, this article will walk you through options to assist with breaking the ICE and decreasing assessed fines.  

What Employers Can Expect In 2019 Through The Election

If your business has not yet had an ICE I-9 Notice of Inspection, consider yourself lucky. However, if you think you are in the clear – think again. In the upcoming election year where politics will be dominated by immigration news, ICE will continue to punish employers for failures to complete I-9s properly and maintain a culture of immigration compliance. Driven by a “zero-tolerance” agenda, ICE will likely push for higher penalty amounts, and have less interest in coming to a reasonable settlement amount with most employers.

ICE assesses penalties after an employer receives a Notice of Inspection and ICE completes its I-9 audit; after that, an employer may receive a Notice of Intent to Fine (NIF). This document title speaks for itself – ICE intends to fine the company a dollar amount.

After receiving a NIF, you have two options: (1) request a hearing before the Office of Chief Administrative Hearing Officer (OCAHO); or (2) agree to pay the fine assessed by ICE. Below we will walk you through these two options and the financial impact each can have on your business.

How OCAHO Can Affect Penalty Amounts 

OCAHO sits within the Executive Office of Immigration Review of the Department of Justice, where traditionally an Administrative Law Judge (ALJ) is assigned to adjudicate I-9 penalty hearings. The ALJ follows the same statutory regulations that ICE is required to follow, which includes the following five statutory factors to determine penalty amount: (1) the size of the employer’s business, (2) the employer’s good faith, (3) the seriousness of the violations, (4) whether or not the individual was an unauthorized alien, and (5) the employer’s history of previous violations.

Although the OCAHO ALJ and ICE follow the same five factors in determining penalty amount, the ALJ is not bound by ICE fine amounts. Instead, the ALJ has discretionary authority in considering a company’s financial situation when determining the fine amount. This flexible discretion can impact fine amounts dramatically.

ICE “Fine Matrix” Calculating Penalty Amounts

ICE follows a “fine matrix” – entirely an ICE invention and a ridged matrix tying base fine amounts to the violation percentage. The violation percentage is broken into six levels, with the highest base fine amount when a company’s violation percentage reaches 50 percent (meaning 50 percent or more of an employer’s I-9s were found to be deficient).  

Next, ICE utilizes its “enhancement matrix,” which will either add or decrease to the base fine based upon its audit findings. The aggravating and mitigating factors are the five statutory factors discussed above: business size, good faith, seriousness, unauthorized aliens, and company history. Each of these five factors has a plus or minus five percent (+/- 5 %) to the base fine amount, making the maximum increase +25 % and the maximum decrease -25%

Unlike OCAHO, ICE does not consider the company’s ability to pay or financial health when assessing fine amounts. Therefore, this ridged formula almost always leads to a hefty fine determination because it artificially inflates the base fine amount. ICE has traditionally demonstrated little interest in whether the fine proposal may have a devastating effect on the company. On the other hand, OCAHO ALJs regularly hold that the I-9 penalty should not be unduly punitive.

A Fine Calculation Example

Let’s assume your company received a Notice of Inspection, then presented 100 I-9 forms to ICE for inspection. During the audit, ICE determined that 50 of the forms presented were defective due to sustentative and uncorrected technical violations (uncorrected errors on the form itself). This would result in your company having a 50 percent violation rate. Using ICE’s fine matrix, it would calculate the fine using the highest base fine amount of $1,862 per defective I-9. Therefore, you would be facing a base fine already at $93,100 before factoring the aggravating and mitigation factors.

After ICE takes into account the aggravating and mitigating factors, the final fine amount will stand somewhere between $69,825 (base fine -25%) and $116,375 (base fine +25%).    

This simple example demonstrates how ICE’s unforgiving fine matrix artificially inflates the fine amount by setting the 50 percent violation rate as the threshold for the highest fine amount for each defective I-9 form. Even if your business has less than 100 employees, a small amount of defective I-9s can result in a hefty fine proposal.  

OCAHO ALJ Fine Determination History

Unlike ICE, however, OCAHO case law indicates that the ALJ’s fine determination has been far more lenient than ICE’s fine matrix and enhancement matrix. In fact, in a review of the 32 OCAHO I-9 cases from the past four years, not a single OCAHO fine determination resulted in a fine increase. Of the 32 cases, only two cases upheld ICE’s fine proposal without reduction. The other 30 cases allreceived a fine reduction, with the average fine reduction rate at over 40%. By way of example, in the simple example above with your company being assessed a fine from ICE of $116,375, an average OCAHO reduction could reduce this fine to $69,231.

In the most recent 2019 OCAHO case, U.S. v. Intelli Transport Services, the ALJ primarily used the employer’s small size to justify a nearly 80% fine reduction, which reduced the fine amount from ICE’s $21,506 proposal to a mere $4,500. In another 2015 OCAHO case, the dollar amount fine reduction was over $207,000. These cases demonstrate that when ICE’s fine proposal is high enough, there is truly little reason not to push back and litigate the case to the OCAHO.

Conclusion

While many attorneys have negotiated with ICE, few have experience with OCAHO and litigation strategies around reducing ICE proposed fines. If you have questions about ICE, OCAHO, and litigation strategies to “break the ICE,” please contact any member of our firm’s experienced Global Immigration Practice Group or your Fisher Phillips attorney.

For more information, contact the authors at RHua@fisherphillips.com (206.247.7014) orLSobaski@fisherphillips.com (816.460.1237).

 

U.S. Dept. of Labor releasing their ‘proposed’ reforms to the H2-A program

With the (USDOL) U.S. Dept. of Labor releasing their ‘proposed’ reforms to the H2-A program, the public now has until September 24th to submit comments.  A side-by-side comparison has been created to show the current program and what the new rule proposes.  CLICK HERE to review the comparison.  It should serve as a useful tool for any comments that you may wish to submit.  The link to the published rule is:  https://www.govinfo.gov/content/pkg/FR-2019-07-26/pdf/2019-15307.pdf

 

Due to high demand, FMCSA has added additional live Q&A sessions to answer your ELD questions.

After December 16, 2019, all motor carriers and drivers subject to the ELD rule will be required to use electronic logging devices (ELDs) to record hours-of-service data. To help the motor carrier industry and ELD providers prepare for this important deadline, FMCSA is hosting a series of live question and answer sessions.

Register for a Live ELD Q&A Session

To keep these sessions as informative for the participants as possible, FMCSA is segmenting the Q&A sessions by audience. Select the most relevant session for you and register using the links below.

UPDATE: Due to high demand, FMCSA has added additional Q&A sessions for motor carriers and drivers. For all sessions, FMCSA is also offering a conference call option; callers will not be able to access the webinar, but will be able to listen in to the discussion.

Sessions for Motor Carriers and Drivers:

Sessions for ELD Providers:

Space is limited. Recordings of the sessions will be made available on the ELD website.

Pre-Learning Coming Soon

FMCSA is currently developing a set of self-guided eLearning lessons. These lessons may address some of the questions you have, or may inspire new questions you can submit to FMCSA during the live Q&A session. Register for a Q&A session now, and a link will be emailed to registered participants when these eLearning lessons are available.

Information about these Q&A sessions is also available on the News and Events page of the ELD website.
 
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