Source: Dan Fazio, WASHINGTON FARM LABOR ASSOCIATION, 7/12/11

DOL inspectors are targeting employers who use the H-2A program, in the process violating state law and demanding that employers do the same.

State law requires employers to deduct a portion of the workers' compensation premiums from worker paychecks.  Federal regulations governing the H-2A program require employers to comply with state law regarding workers' compensation.  But inspectors from the federal Department of Labor wage and hour division are telling employers who use the H-2A program that the employer must pay 100 percent of the workers' compensation premium for all workers.

Washington Farm Labor Association and the Washington Farm Bureau worked with the Department of Labor for more than four years on this issue, and based on Farm Bureau input, DOL changed its regulation to specifically recognize Washington law.  But the agency is apparently disregarding its own regulation.

On June 20, an employer informed DOL of the federal regulation and state law, and inspectors promised that they would immediately check with supervisors, but on July 6 an agency official told me that the agency position is unchanged - employers cannot deduct anything from worker pay to cover workers' compensation.

WAFLA sent a letter to Secretary of Labor Hilda Solis in an attempt to clarify the agency position.

The larger question is:  Why is the DOL targeting employers who use the H-2A program?  There are approximately 20 employers in Washington State who use the H-2A federal guest worker program.  The program is designed to allow farmers who have a seasonal need for workers to access a legal foreign work source when there are insufficient domestic workers.  With government estimates that up to 70 percent of the domestic seasonal agricultural workforce lacks work authorization, employers really have only two choices: use the H-2A program or hire undocumented workers.

So why has the government chosen to target employers who use the H-2A program in an attempt to hire a legal and stable workforce?  So far the agency won't say.

In the coming weeks WAFLA will  be meeting with the Washington congressional caucus and the governor's office to try and better understand the DOL actions.