For the past year, NCA has been warning clubs that fundamental changes were coming to the H-2B Visa Program. On February 21, 2012, those changes arrived with the Department of Labor (DOL) issuing a Final Rule that overhauls the entire program.
The H-2B program is used by many private clubs to secure temporary, seasonal workers when Americans are unwilling or unavailable to do the work. Unfortunately, this new rule adds a significant number of new regulations that clubs must follow when recruiting, employing, and paying H-2B (and American) workers.
All of these new requirements are effective April 23, 2012 and apply to H-2B workers currently at your club or who will be at your club any time after that date. While this new rule has numerous new requirements, NCA wants to be certain our members are aware of some of the more egregious mandates.
As users of this program know, H-2B workers must be paid the government’s prevailing wage. Traditionally, this wage is higher than the market demands. Under this new rule, clubs must increase a U.S. worker’s wages to the higher prevailing wage if he does “substantially the same work” as an H-2B worker. Thankfully, this requirement only applies if the U.S. worker makes less than the prevailing wage.
For many clubs, this mandate means the moment an H-2B worker is asked to do substantially the same work as a U.S. worker or a U.S. worker is asked to do substantially the same work as an H-2B worker, the corresponding employment requirement will be triggered. Not only does this mean that current club personnel could be owed higher wages, but it also means that any new U.S. worker hired for the season must be paid this higher wage.
The rule does provide an exemption for employees who have been on the job for at least 52 weeks before the H-2B workers start and whose job responsibilities are not substantially reduced during the H-2B job period. Additionally, if there are incidental or occasional instances where H-2B workers’ and U.S. workers’ duties overlap, then the corresponding employment requirement will not be triggered.
Another major concern for clubs caused by this rule is that they must now provide a guaranteed number of hours and pay to their H-2B employees. Specifically, the rule establishes a “three-quarters guarantee,” which means clubs must pay their H-2B workers 75% of their hours during a 12-week period – even if they do not work due to inclement weather or other unforeseen circumstances.
Not only does this rule force clubs to guarantee hours for H-2B employees, but it also changes the definition of “full-time” from 30 hours per week to 35. Thus, there are now more hours that must be guaranteed. And, of course, this three-quarters guarantee applies to all U.S. workers who are in corresponding employment.
Additionally, this rule requires clubs to pay all transportation, visa, food, and lodging costs for their H-2B workers as they travel to and from the U.S. A club may reimburse its H-2B worker for these costs, but that must be done within the first workweek. This requirement also applies to all U.S. workers who are coming from some other location within the U.S.
In addition to these major issues, the rule:
- Prohibits clubs from using the attestation process for securing their labor certification. Instead, clubs must now apply for an H-2B Registration and then apply for a Temporary Employment Certification. All appropriate documentation must accompany both applications.
- Requires clubs to recruit U.S. workers by contacting all former workers who worked at the club within the last year (other than those fired for cause). If a club is unionized, it must notify the union of the job openings. If it is not unionized, the club must post a notice of the job openings for 15 consecutive business days in two conspicuous places throughout the club (it may also be posted online).
- Requires clubs to advertise in a newspaper of general circulation two times, with one of those ads running in the Sunday edition. The ads must include:
- A description of the job duties, minimum education requirements, the number of hours and days employees are required to work as well as the job’s start and end dates;
- The number of job openings and that the job is a full-time, temporary position;
- The wage rate, and whether overtime and on-the-job training will be offered;
- Whether the club will offer room and board, and daily transportation to and from work and what the club will charge for these services;
- That the club will pay for all transportation, subsistence, and lodging costs to bring a worker to the club’s location and return the worker to his home if he does not live near the club; and
- That the club will guarantee to pay at least 75% of the worker’s hours
- Requires that recruitment for U.S. workers begin within 14 calendar days from the date a club receives its labor certification and that clubs must continue to hire U.S. workers up to 21 days before their H-2B workers start.
- Requires clubs to provide the same information they use to recruit U.S. workers when recruiting foreign workers. If a club uses an H-2B recruiting service, the club must include specific language in its contract with the recruiter that prohibits the imposition of fees on H-2B workers.
- Requires clubs to hang an “Employee Rights” poster issued by DOL.
- Requires clubs to notify DOL and the Department of Homeland Security (DHS) within two days of an H-2B worker or U.S. worker abandoning the job.
- Imposes a monetary penalty of up to $10,000 and possible debarment from the program for 1-5 years for failure to comply with any of these regulations.
This new rule is in addition to the new H-2B Wage Rule that is currently on hold until 10/1/12. Taken together, these two rules will place a tremendous burden on clubs that utilize the H-2B visa program.
NCA is actively working with our allies on the H-2B Workforce Coalition and on Capitol Hill to stop this rule. Recently, Rep. Rodney Alexander (R-La.) introduced a measure that will remove this rule from the books. Between now and April 23, NCA will be working to see that this measure succeeds but it is likely to be a difficult task. As such, those clubs that utilize the H-2B Visa Program should begin preparing for these changes immediately.
For additional information and to print the required poster, please click here. For information on applying for H-2B workers, click here. Also, DOL has set up webinar briefings for the public that club leaders may join at no cost. The dates and times for these briefings are as follows:
Wednesday, March 14, 2012, 1:30 pm – 4:00 pm, EDT
Public Access URL: click here
Teleconference information:
Dial-in #: 888-810-9161
Participant passcode: 7393731
Tuesday, March 20, 2012, 1:30 pm – 4:00 pm, EDT
Public Access URL: click here
Teleconference information:
Dial-in #: 888-810-9161
Participant passcode: 7393731
Tuesday, March 27, 2012, 1:30 pm – 4:00 pm, EDT
Public Access Webinar URL: click here
Teleconference information:
Dial-in #: 888-810-9161
Participant passcode: 7393731
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