Agricultural Recruitment System Technical Handbook Agricultural Clearance System

Wagner-Peyser Act Wagner-Peyser mandates the United States Employment Service maintain a system for the orderly movement of workers within and between States. The regulations are based on the Department’s policy of requiring specific assurances and information in the Agricultural Clearance Orders. Provide protection to the workers who are not seeking permanent relocation but rather temporary agricultural employment.

How the ARS Process Works Employer determines need for workers and places a local job order at appropriate SWA office. Appropriate SWA office prepares local job order and recruits locally only.

How the ARS Process Works If labor needs are not met through the local job order, employer should be advised of option to clear order to the other local offices within the state. With employer authorization, the SWA submits an Intrastate Job Order to the appropriate Regional ETA office for review as an Interstate Clearance Order.

How the ARS Process Works Regional Office approves or disapproves the Interstate Clearance Orders. If approved, the Regional Office determines the areas of supply to extend the order. Once the SWA has been notified the Clearance Order has been approved, the SWA (OHO) then electronically sends the order directly to AJB, and to ETA designated State(s)

State Workforce Agency (SWA) Responsibilities In States Selected for Recruitment SWA is known as applicant-holding office (AHO) when making referrals Recruits workers by providing information about the availability of jobs Explains terms and conditions of employment Arranges interview through OHO for the interested workers and the employer Assists in finalizing hiring agreements.

Order-Holding Office (OHO) Responsibilities Continues with responsibility for placement process until recruited, out of area workers arrive at the jobsite and begin employment Other Responsibilities include: assisting the employer advising labor supply states of changes in crop and recruitment conditions informing the employer of any changes in the status of recruited workers that may impact the employer’s labor needs

OHO Responsibilities After Workers Arrive and Begin Employment Oversees and conducts on-site field checks of job sites where domestic workers have been placed Responds to any work related complaints from the worker(s) Provides outreach, an explanation of available services to on- site workers and/or local staff

Who May Place an Agricultural Clearance Order? Agricultural employer meeting definition at 20 CFR 651.10 Includes a person, firm, corporation, partnership, association, organization or registered Farm Labor Contractor (FLC) If a FLC functions as an employer, a valid federal and state (if applicable) registration is required

Where and How to Place a Clearance Order Local Job Order Employer contacts SWA Local Job order is placed if sufficient numbers of local workers are not available.

Intrastate Clearance Orders May be filed if sufficient numbers of local workers are unavailable SWA is responsible for preparing forms Employer may prepare forms and supplemental information

Intrastate Clearance Orders ETA 790, Agricultural and Food Processing Clearance Order and all required attachments must be prepared The SWA must schedule pre-occupancy housing inspections or coordinate with other appropriate agencies for housing inspections. If housing has already been approved, the approval should accompany the order

Intrastate Clearance Orders If a request for Conditional Access has been submitted by the employer and accompanies the Intrastate Clearance Order, then the inspection must be scheduled accordingly Once the housing has been approved, SWA notifies ETA SWA reviews the Intrastate Clearance Order to ensure compliance with applicable regulations SWA coordinates recruitment of workers from within the State

Intrastate Clearance Orders Employer is required to provide the same information as is required for Intrastate Clearance Orders SWA uses the same Clearance Order Package as it does for Intrastate Clearance Orders

Intrastate Clearance Orders May request approval as an Interstate Clearance Order if the following conditions are met: Employer and SWA are unable to locate sufficient workers or anticipate a shortage of workers within the state

ETA’s Regional Office Responsibilities Approves or denies the Interstate Clearance Order within 10 working days from the date received from the SWA The Agricultural Clearance Order Checklist should be used to review the Order to ensure compliance with applicable regulations.

ETA’s Regional Office Responsibilities If approved, the Regional Office (RO) specifies the States to which the order is extended RO Notifies OHO of approval and instructs where to extend the Clearance Order If the Order is disapproved, the RO provides the SWA in writing the reasons for denial

OHO Responsibilities Distributes copies of the approved Order and all necessary attachments including summary checklist to the following: One copy to each SWA for States selected for recruitment. One copy to the ETA Regional Office having jurisdiction over the state(s)to which the order has been extended. One copy to the Regional Farm Labor Coordinated Enforcement Committee in the area of intended employment.

OHO Responsibilities in States Selected for Recruitment Begins recruitment of workers Provides checklist of wages, working conditions and other information to the referred workers The checklist is to be made available in English, Spanish, or any other language as necessary Provides statement of worker’s rights to each referred worker Makes a copy of the complete Clearance Order available for inspection

What to Submit as Clearance Order Package Signed Form ETA 790, Agricultural and Food Processing Clearance Order which describes the terms and conditions of employment. ETA 790 Attachments to furnish additional information, numbered accordingly Signed assurances that employer will abide by the terms and conditions of the job order Housing Approval or Request for Conditional Access

When to Place a Clearance Order Order should be placed no later than 8 weeks before the date of need for the workers Order should be placed as soon as it is determined that there are a sufficient numbers of workers who are or are not available within the local area NOTE The earlier the order is placed, the greater the chance of finding workers

Where and How to Place a Clearance Order? File Local Job Order with appropriate SWA office serving area of intended employment Local Order may be changed to Intrastate Clearance Order when it has been determined through local recruitment that sufficient numbers of local workers are not available to meet the employer’s needs or the appropriate SWA anticipates a shortage of local workers

Amendments to a Clearance Order Modifications due to a change in the date of need due to changes in crop or market conditions should be filed at least 10 working days prior to the original date of need

Worker Check-in Requirement To be eligible for any wage guarantee, workers must contact the OHO through any SWA office in any state 5 to 9 working days prior to the original date of need The SWA office contacted by the worker must assist the worker in contacting the OHO in a timely manner

Worker Check-in Requirement The SWA in contact with workers whose start date has been delayed must make every effort to refer the worker to alternative job opportunities until the start date occurs The SWA must document notifications made by the employer and the worker(s) to verify the date of need

Other Modifications Extension of Employment Period beyond the period of employment in the Clearance Order does NOT obligate a worker to extend his/her employment commitment Extension of Employment Period beyond the period of employment in the Clearance Order does not relieve the employer from: Paying the wages already earned Any bonus or work incentive stated in the Order Providing or paying transportation expenses to the worker’s home, if specified in the Order

Processing and Referral Procedures for Both Intra and Interstate Orders Positive Recruitment Involves direct action on the part of the employer to recruit workers by referring workers to an interview with employer in an OHO Direct Referral OHO directs qualified job seeker to an employer in another state for an interview

Processing and Referral Procedures for Both Intra and Interstate Orders Delegation of Hiring Authority The SWA is designated as the hiring agent by the employer and makes hiring commitments which are binding upon the employer

OHO Referral Responsibilities Coordinate referrals Makes all changes to terms and conditions in the Clearance Order by the employer after DOL approval Contacts employers to assist in placing applicants Confirms all actions concerning workers Advises workers and provides community service information. Need to add statement re: interviewing terminated or workers refused employment by the employer, giving workers opportunity to file a complaint

AHO Referral Responsibilities Conduct local file search Initiate intensive recruitment action (radio/newspaper, etc.) Complete full or partial application on each job seeker prior to referral Advise worker of terms/conditions and qualifications for the job

AHO Referral Responsibilities Verify that each crew leader functioning as an employer or being referred to the employer has a current Federal and if applicable, a State FLC license with appropriate authorizations Contact OHO to assist in the referral process (arranging interviews, etc.) Confirm with OHO final arrangements

AHO Referral Responsibilities Report any referral problems to OHO Provide translation services if requested/available Assist in transportation arrangements provided by the employer Confirm w/OHO any arrangements made between employer and job seekers Immediately inform OHO of any problems related to the referral

Regulations/Disclaimer Statements The Clearance Order must comply with the regulations at 20 CFR 653.501 The Order must contain the required disclaimers.

Terms and Conditions of Employment The terms and conditions must meet the following provisions: The Order must not contain any unlawful discriminatory specification which is unrelated to job performance. The Order must comply with applicable employment related Federal and State Laws. The prevailing conditions among similarly employed farmworkers in the area of intended employment shall be the minimum benefits and working conditions.

Components of a Clearance Order Nature of Employment The scope of the job must be specified in terms of the crop and crop activities involved, the tasks to be performed, and the tools or equipment used Employment Period The duration of employment must cover the estimated hours of work per day and per week and the anticipated starting and ending dates of employment

Assurances The regulatory assurances must be included as a part of all Clearance Orders As the attachment of a signed copy of the Assurances statement (see Appendix C) As a statement on the ETA Form 790 agreeing to abide by the assurances.

Wage Information and Requirements The wage rate for “each activity” may be no less than the highest of the following: The prevailing wage rate The Federal or the State minimum wage rate The Adverse Effect Wage Rate (AEWR)

Wage Information The wage rate requirement also applies to piece rates, base rates, or bonuses In this instance, the employer must submit the method of calculating the wage rate and supporting materials to the local SWA office The local SWA office staff reviews the estimate to ensure compliance with the prevailing wage rate or The applicable Federal or State minimum wage rate, or the AEWR, whichever is highest.

Wage Information Any bonus or work incentive must be stated in the job order The employer must specify how the bonus is earned Payment of bonuses or incentives are not to be contingent upon the worker remaining in employment beyond the initial period of employment Workers with children who need to return home for the beginning of the school year are entitled to wages, bonuses, incentives, and other expenses at the time of departure

Wage Information The employer must indicate all deductions to be made from wages on the order The employer must list all major non-monetary benefits to be offered to the workers

Housing No cost or public housing which meets Federal, State, and/or other applicable standards must be available to the specified number of workers being requested on the Order Housing facilities cover workers and family members (if applicable) who are unable to return to their residence in the same day

Housing A preoccupancy housing inspection is conducted by the local SWA office or other appropriate public agency

Transportation and Field Visits The employer must provide or pay for the transportation of the workers and their families if it is commonly provided or paid for by employers in the area of intended employment to workers The employer must assure the SWA staff that reasonable access will be available to the employer’s premises in order to: Talk with farm workers and the employer Verify compliance with the terms and conditions of employment as specified in the Order

Field Checks The SWA must conduct random, unannounced field checks of worksites where domestic workers have been placed on Orders Informal resolutions on observed violations must be made by the SWA within 5 working days. Violations of employment related laws shall be referred to the appropriate enforcement agency.

Complaints Job seekers referred on a Clearance Order must be given a copy of workers’ rights information The workers have a right to file a complaint with the Employment Service if the employer violates the terms and conditions of the Clearance Order Specific regulatory provisions are found at 20 CFR Part 658, Subpart E