by Deborah Jeanne Sergeant
Visits from the New York State Department of Labor’s Division of Immigration Policies and Affairs (DIPA) happen on farms using immigrant workers. A recent Department of Labor (DOL) webinar sought to answer why the visits happen and how producers can prepare for the visits.
Melissa Buckley, representing DIPA, presented.
Buckley said the DOL implements and maintains both a federal and state monitoring and advocacy system ‘to ensure the delivery of employment and training services, benefits and protections to migrant and seasonal workers (MSFWs) on a non-discriminatory basis and to provide such services in a manner that is qualitatively equivalent and quantitatively proportionate to those provided to non-farm workers.”
This means that MSFWs can equally access employment services, opportunities and protections while working in the United States. They can use the same complaint system as any other worker, too.
DIPA decides to visit not only based upon tips from workers or other agencies, but also based upon a farm’s past compliance history. That forms one of the criteria for inclusion on the list of farms receiving inspections.
So what happens during a field visit?
Buckley said staff may collect basic information about the farm and compliance with New York State Labor Law, including work agreements, minimum wage, pay frequency, field sanitation, poster compliance, meal periods, sexual harassment, housing permits (if applicable), grower processer certificate (if applicable) and farm labor contractor registration (if applicable).
Farmers must be available to learn about any DOL updates and compliance issues. Workers will also need to be present to learn about DOL services, state labor laws or H-2A regulation changes, provide information to MSFWs about subsequent employment and address any existing violations.
“Field checks are different from field visits, but DIPA staff may conduct both in one visit,” Buckley said.
Buckley said when DIPA receives information about any possible violations, the organization collects information and details from affected workers and attempts to work with the employer with education and compliance or refer to other appropriate enforcement agencies. If that doesn’t work, the case goes to enforcement.
“During education and compliance, DIPA will not discuss sources of information with employers,” Buckley said. “The only exception is when the violation relates to wages or other benefits due to a specific employee.”
Buckley said employers should be able to remediate small violations without going through higher levels of enforcement.
“If you are able to correct violations, take the opportunity to do so,” she said.
These kinds of violations include failure to provide required posters, required work agreement, compliant paystubs, field sanitation, potable drinking water, New York State minimum wage after a recent increase, or a meal period. Unpaid wages for short periods of time or have pay frequency violations.
Cooperation with DIPA makes sense.
“When an employer chooses to work with DIPA to rectify a violation, it shows good faith on the part of the employer,” Buckley said. “Being open to fixing ‘little’ violations makes good business sense. Employers can be proactive in addressing ‘little’ violations before violations, such as underpayments, become too big to address.”
Fixing smaller problems sooner also helps avoid further penalties.
The DOL’s Foreign Labor Certification Unit (FLCU) handles the H-2A and H-2B Federal Guest Worker Visa Programs. The FLCU processes Job Order applications of applicants who are capable to perform the job duties outlined by the employer.
The DOL’s recent initiatives include the H-2A Visa Guest Worker Program Cards and Pilot Farmworker Rights DVD.
“After certification, at the request of the H-2A employer, the FLCU will produce and mail out the H-2A Visa Guest Worker Program laminated cards containing details about the certified Job Order, so employers may further personalize and distribute to workers,” Buckley said.
In 2018, DIPA produced 789 cards for 50 H-2A job orders. For those who have not requested cards in 2019, Buckley said they can request them by contacting DIPA (877.466.9757 or firstname.lastname@example.org.
In 2019, DIPA began a pilot program of supplying a DVD of their Know Your Rights presentation in English and Spanish. So far, 250 farms have participated.
“It is our hope the DVD will be played for farmworkers as they are onboarding for the season,” Buckley said. “We anticipate feedback from the farmers asked to participate so we can improve the service. Our goal is to use this type of medical for general Know Your Rights so field time can be used providing focused services to the employer and workers.”
DIPA also provides recorded webinars and live training sessions on topics such as wage deductions, New York State labor law, Farm Labor Contractor training and FLCU H-2A and H-2B education to employers and agents.
DIPA’s key programs are the Agriculture Labor Program, which shares information with workers about employment laws, their rights and means of filing complaints; Foreign Labor Certification Unit, which processes H-2A and H-2B job orders for employers seeking foreign guest workers and inspects fields; State Monitor Advocate, which monitors DOL services and advocates; Language Access, which ensures the department provides services in the MSFW’s native language; and Anti-Trafficking Efforts, which help possible victims. DIPA’s outreach staff also works on community education and assists with pre-occupancy housing inspections, field checks and field visits, as well as attempting resolution and/or enforcement.