Source: ANDREW JACKSON LAW, 8/23/20

I hope you and your family are well.  This email provides an overview of a specific development concerning the H-2A program.  It is not intended to be, and should not be construed as, legal advice for any particular fact situation.  Please contact me directly if you have questions or need advice about how this might pertain to you and your operation.

Recently there has been an uptick in litigation over "voluntary" meal plans.  These plans generally involve arrangements made by H-2A workers to hire a cook to prepare meals for them in the employer-provided kitchen for a weekly fee.  These arrangements are fraught with compliance issues that can lead to expensive litigation.  Attached are two recent Wage and Hour case decisions involving voluntary meal plans.  A New Jersey orchard was ordered to pay almost $345k in back wages plus more than $211k in fines.  In a more recent case, a New Jersey tomato farmer was ordered to pay more than $48,000 in back wages to 62 H-2A workers for meal charges.  The legal decisions reached in each case turn on detailed factual findings that mostly relied on interview statements taken at the farm.

The H-2A regulations are clear in that they allow employers only two options regarding board arrangements for workers who live in employer-provided housing.  The employer must either furnish free and convenient access to kitchen facilities where the workers can prepare their own meals; or, the employer must provide 3 meals a day, 7days a week, in which case the job order must disclose any charge for the meals.  The employer cannot profit from the provision of food and beverages to the workers.  The Department of Labor sets a maximum daily meal charge each year that the employer may charge the workers (currently $12.68 per day for 3 meals).  Most employers choose to provide free access to kitchen facilities to enable the workers to prepare their own meals.  But long work days and remote field sites away from the labor camp make it more convenient and cost-effective for the workers to pay someone to go to the store, cook and clean for them.  This leads to problems:  some workers don't like the food or the cook; some workers don't eat the food; some workers don't want to participate; the cook does not want the workers messing up the kitchen or restricts access to certain hours etc.

If you allow some type of voluntary meal plan in your housing, then you need to be aware of the compliance issues and litigation risks highlighted by these recent case decisions.  Worker advocacy groups have been emboldened by these decisions and have begun targeting these voluntary meal plans with litigation.  Here are some key factual issues from each case:
• Family relationship of the cook to the farm or a supervisor on the farm
• Did the cook always cook for the workers in the camp, even before H-2A? 
• Profiteering from food and drink
• Are workers charged for meals they did not consume?
• Whether the arrangements were made by the farmer or the workers directly 
• Involvement of the farmer in the food operation
• Existence of a written agreement between the workers and the cook
• Whether workers have free choice to not participate in the meal plan
• Whether the kitchen is adequately sized with sufficient stoves, pots and pans provided for the number of workers in the housing
• Whether workers have unrestricted access to the kitchen and all equipment and utensils 24 hours per day/7 days per week
• Is the kitchen or refrigerators locked or is access limited at any time?
• Whether the meal charges are disclosed in the job order
• And, most importantly, what will the workers say when interviewed by Wage and Hour or a worker advocate?
You should consult with me about the legalities of any meal plan before allowing any type of arrangement to occur in your housing.

See Attachment 1 - Click Here for USDOL Wage & Hour Vs Sun Valley Orchards

See Attachment 2 - Click Here for USDOL Wage & Hour vs Bald Eagle Farms 

Again, please do not hesitate to call me about your H-2A employer obligations.

Regards,

--
Andrew M. Jackson, Attorney
Andrew Jackson Law P.C.
Physical: 407 College St
Clinton, NC 28328
US mail:  PO Box 27
Clinton, NC  28329-0027
Ofc 910-592-4121
Direct 910-214-6010
Fax 910-590-1012