Special H-2A procedures for itinerant animal shearing

Accessible letter PDF: https://www.dol.gov/sites/dolgov/files/ETA/advisories/TEGL/2007/TEGL17-06_508.pdf

CLASSIFICATION
EMPLOYMENT AND TRAINING ADMINISTRATION H-2A Program
           ADVISORY SYSTEM             CORRESPONDENCE SYMBOL
      U.S. DEPARTMENT OF LABOR         OFLC
                                       ISSUE DATE
         Washington, D. C. 20210       February 12, 2007

ADVISORY:         FOREIGN LABOR CERTIFICATION
                  TRAINING AND EMPLOYMENT GUIDANCE LETTER NO. 17-06

TO:               OFLC-NATIONAL PROCESSING CENTER DIRECTORS
                  STATE WORKFORCE AGENCY ADMINISTRATORS

FROM:             EMILY STOVER DeROCCO /s/
                  Assistant Secretary

SUBJECT:          Special Procedures for Employers in the Itinerant Animal
                  Shearing Industry Under the H-2A Program

1. Purpose. To outline special procedures, determined by the U.S. Department of
   Labor, as part of the H-2A labor certification process for employers who desire to
   employ temporary foreign workers in the United States in occupations involving an
   itinerary for the shearing of sheep, goats, alpacas, or other animals requiring
   shearing.

2. References. 20 C.F.R. Part 655, Subpart B; 20 C.F.R. Part 653, Subparts B and F;
   and 20 C.F.R. Part 654, Subpart E.

3. Background. Due to the unique nature of the itinerant animal shearing industry, the
   Employment and Training Administration (ETA) is establishing special procedures for
   the processing of H-2A applications for certification of temporary employment in that
   industry. 20 C.F.R. 655.93(c) provides the Department with the authority to continue
   and, where appropriate, revise special procedures in effect for the handling of
   applications for the itinerant animal shearing industry. Historically, H-2A applications
   for the animal shearing industry were processed through ETA’s Regional Offices.

   However, in December 2004, the Department opened two new National Processing
   Centers (NPCs) located in Atlanta and Chicago. These NPCs have been designated
   as the Centers to process applications to employ foreign workers for temporary
   positions under the H-2A agricultural worker visa program. The Department
   published a notice in the Federal Register (Vol. 70, No. 137, pages 41430-

RESCISSIONS                                                    EXPIRATION DATE
None                                                           Continuing

   41438) on July 19, 2005, clarifying that, effective August 1, 2005, employers must file
   original copies of their H-2A applications directly with the NPCs, coinciding with the
   area of intended employment, and simultaneously file a copy with the appropriate
   State Workforce Agency (SWA).

   The special procedures outlined in this memorandum for employers in the itinerant
   animal shearing industry work in concert with this centralized filing process, and
   ensure greater consistency in the processing of these H-2A applications through the
   Centers.

4. Special Procedures. Attachment A outlines special procedures for applications
   submitted by employers in the itinerant animal shearing industry under the H-2A
   program. Unless otherwise specified in Attachment A, applications submitted by
   employers in the itinerant animal shearing industry must comply with the
   requirements for H-2A applications contained at 20 C.F.R. Part 655, Subpart B.

5. Action Required. NPC Directors and State Workforce Agency Administrators are
   directed to provide staff involved in the processing of H-2A applications for the
   itinerant animal shearing industry with a copy of these special procedures.

6. Inquiries. Questions from State Workforce Agency staff should be directed to the
   appropriate NPC. Questions from NPC staff should be directed to the National
   Office of Foreign Labor Certification.

7. Attachment.

   Attachment A      Special Procedures for Applications in the Itinerant Animal
                     Shearing Industry Under the H-2A Program

Attachment: https://www.dol.gov/sites/dolgov/files/ETA/advisories/TEGL/2007/TEGL17-06_Att1.pdf

ATTACHMENT A
                        Special Procedures for Applications in the
               Itinerant Animal Shearing Industry Under the H-2A Program

This document outlines special procedures, as determined by the U.S. Department of
Labor (Department), for applications submitted by employers in the itinerant animal
shearing industry under the H-2A program who wish to employ temporary foreign
workers. Unless otherwise specified below, employer applications submitted for itinerant
occupations involved in the shearing of sheep, goats, alpacas, or other animals requiring
shearing must comply with the requirements for H-2A applications contained at 20
C.F.R. Part 655, Subpart B.

A. Responsibilities of National Processing Centers (NPCs). The NPC having
   jurisdiction over the state where the employer will begin an itinerary of animal
   shearing in the United States is responsible for processing the employer’s
   certification request for the entire animal shearing itinerary. Such responsibilities
   include directing State Workforce Agencies (SWAs) to place job orders into
   intra/interstate clearance, ensuring employers meet advertising and recruitment
   requirements set forth in the H-2A regulations, and determining whether to approve
   or deny certification for some or all of the jobs requested. The interstate job order
   clearance is to be done for all states listed in the itinerary and for the entire duration
   of need. Certifications may be granted to an employer for a period up to, but not to
   exceed, the estimated date of completion for the animal shearing itinerary.

B. Employer’s Status. Shearing contractors who desire to employ one or more foreign
   workers as shearing crew members on an itinerary must apply to the Department for
   a temporary labor certification under the H-2A temporary foreign labor certification
   program. The individual contractor must be listed as the “employer of record” on the
   H-2A application. For purposes of itinerant animal shearing, the designated
   employer is the contractor, not the rancher who engages the animal shearing crew.
   H-2A labor certification is needed for the jobs to be performed by the animal
   shearers employed by the contractor should those crew members not be U.S.
   workers.

   All farm labor contractors must meet and maintain both Federal and state farm labor
   contractor registrations as required by the Migrant and Seasonal Agricultural Worker
   Protection Act (MSPA) (29 C.F.R Part 500). Evidence of farm labor contractor
   registration must be provided upon submittal of the labor certification request for
   processing.

C. Application Filing. A shearing contractor who is seeking certification under the H-
   2A program is required to file the application with the NPC having jurisdiction over
   the state where the animal shearing itinerary will begin and is required to
   simultaneously file a copy of the application with the appropriate SWA where the
   work will begin. Pursuant to 8 U.S.C. 1188(c)(1) and 20 C.F.R. 655.101(c), the
   employer must submit the application 45 calendar days before the date of need.

                                             -1-

   The NPC will promptly review the application and notify the employer within seven
   (7) calendar days after receipt of the application of any deficiencies that must be
   corrected. If an application has deficiencies that require modification, the employer
   has five (5) calendar days from the date of the NPC’s mailing to submit the required
   modifications or face delays in receiving a certification determination. With its
   application to the NPC and the SWA, the employer must provide a copy of the
   itinerary in the United States, including the names, locations, and telephone numbers
   of farmers/ranchers whose animals are to be sheared, and the estimated dates and
   times for shearing the animals in each location. Itineraries that traverse NPC
   jurisdictions (one worksite is in a state assigned to Chicago, another to Atlanta) will
   not be allowed; employers must file separate applications with the respective NPCs.

D. Duration of Itinerary. An animal shearing contractor may require that a U.S. worker
   applying for a job must be available to work for the remainder of the employer’s
   entire animal shearing itinerary in the United States, and for the total duration of the
   period of employment specified in the job order. This is considered a lawful job-
   related requirement, and U.S. workers must be informed of this requirement at the
   time of referral. A U.S. worker referred after the labor certification has been granted,
   but before 50% of the employment period has elapsed, must be available and willing
   to join the crew at whatever place the crew is located at the time and remain with the
   crew for the balance of the animal shearing itinerary. An employer’s rejection of a
   U.S. worker who is unable or unwilling to accept such a requirement is considered a
   rejection for a lawful job-related reason.

E. Positive Recruitment. All employers are required to engage in active or positive
   recruitment efforts for vacant positions prior to approval of a request to the
   Department for certification to hire foreign workers. The NPC may notify the
   employer that positive recruitment efforts are required within a multi-state region
   where there are a significant number of able and qualified U.S. workers who, if
   recruited, would likely be willing and available for work at the time and place needed.
   The primary source of U.S. workers for animal shearing has traditionally been the
   labor organization that represents sheep shearers. Therefore, when an application is
   received, the NPC will instruct the animal shearing contractor to contact the Sheep
   Shearers Union of North America at the following location:

               Sheep Shearers Union of North America
               14 West Platinum Street
               Butte, Montana 59701-2542
               Phone: 406-782-0006

F. Wages/Recordkeeping for Payment of Piece Rates. In addition to showing the
   established piece rates (i.e., rate of pay per head sheared) on the job orders for each
   state where shearing will be performed, employers seeking H-2A certification must
   guarantee each crew member, for each pay period, at least the highest of the
   applicable hourly Adverse Effect Wage Rate (AEWR), the prevailing hourly wage
   rate, or the state or Federal minimum wage rate (if applicable), as established in the
   area of intended employment where the shearing work will be performed.

                                            -2-

    In the event the worker’s piece rate earnings do not generate the applicable AEWR,
    prevailing hourly wage rate, or minimum wage rate, the employer is required to make
    up the difference between the piece rate earnings and the highest applicable hourly
    rate.

    The employer must also retain adequate records of actual hours worked by each
    worker in order to ensure the AEWR guarantee is met per pay period, and to permit
    a determination that the three-fourths guarantee 1 of employment is met. In addition,
    employer records must show the daily production of each worker paid on a piece rate
    basis.

G. Tools and Equipment. Normally, employers must provide all tools, supplies, and
   equipment to the workers without charge where they are required to perform the
   tasks described in the job offer. However, if employers can demonstrate that it is the
   common practice in a particular area, agricultural activity, or occupation for workers
   to provide their own tools, supplies, and equipment, such an arrangement is
   permissible as long as it is approved in advance by the appropriate NPC. The
   employer is responsible for providing evidence to the NPC sufficient to establish that
   a particular practice is, in fact, “common.” Absent approval from the NPC, an
   employer must provide necessary tools, supplies and equipment without charge to
   the workers.

    The wage rates prevailing in the shearing industry reflect a historical practice of
    employees providing their own tools. If the NPC has approved a contractor’s request
    to have its workers provide their own tools, the piece rates as published by the
    Department will apply. However, if an employee uses the contractor’s tools, an
    appropriate wage differential should apply. This differential has usually been $0.05
    per animal shorn. In other words, workers using tools, equipment, or supplies
    provided by the contractor are entitled to a wage rate of $0.05 per animal shorn less
    than the published Department rate. Any change to the above stated differential will
    be published through formal guidance by the Department and made available on its
    Web site.

H. Workers’ Compensation. Animal shearing contractors must specify in their job
   offer(s) that they will provide, at no cost to the workers, insurance, under a state
   workers’ compensation law or otherwise, covering injury and disease arising out of
   and in the course of the workers’ employment. Such coverage must meet the
   minimum requirements for each state where shearing work will be performed,
   regardless of whether workers’ compensation coverage in that specific state is
   mandatory.

                                                         -3-

1
 The employer must guarantee to offer each worker employment for at least three-fourths of the workdays in the work
contract period and any extensions. If the employer affords less employment, then the employer must pay the amount
which the worker would have earned had the worker been employed the guaranteed number of days.
http://www.foreignlaborcert.doleta.gov/h-2a.cfm and 20 C.F.R 655.102(b)(6).

I.   Workers Productivity, Tying Specification (sheep only), and Training
     Opportunities. Animal shearing contractors seeking H-2A certification who pay
     piece rates and specify in their job offer(s) a minimum level of production a worker
     must achieve in order to retain employment, must be able to demonstrate, to the
     NPC’s satisfaction, that these productivity requirements are no more than those
     normally required of U.S. workers by other employers in the area of intended
     employment (unless the NPC approves a higher minimum). In all circumstances, the
     productivity requirement must be approved by the NPC and must be stated in an
     employer’s job offer(s).

     Studies conducted by the Agricultural Research Service in Idaho indicate that the
     “tying” method of shearing is documented to cause damage and even death to the
     animal. Consequently, for purposes of occupational qualifications in job offers, the
     “Australian” or “free-style” method of shearing can be required as a lawful, job-
     related requirement for shearers. U.S. workers who are otherwise qualified but
     whose experience has been limited to shearing using the “tying” method must be
     afforded a specified break-in period to improve their performance and adapt to the
     “free-style” method.

J. Standards for Fixed-Site and Mobile Housing. Employer-provided housing is
   housing owned or controlled by the animal shearing contractor. Fixed-site housing
   must comply with the full set of Department standards (OSHA standards at 29 C.F.R
   Part 1910 or ETA standards at 20 C.F.R Part 654, Subpart E, as applicable). The
   standards for determining the adequacy of mobile housing units for use on the range
   are established under the regulations at 20 C.F.R. § 655.102(b)(1)(ii). Housing used
   exclusively at the ranch site is subject to the same standards as those for other
   agricultural workers at 20 C.F.R. §§ 654.400-654.417 (see also 29 C.F.R. §
   1910.142). Both range and ranch site housing may be self-certified by an employer.
   Employers must submit a signed statement with the application for labor certification
   assuring that the housing is available, sufficient to accommodate the number of
   workers being requested, and meets USDOL standards outlined below.

     The following standards will apply to mobile housing units:

        1. Housing Site

            Housing sites shall be well drained and free from depressions in which water
            may stagnate.

        2. Water Supply

            a) An adequate and convenient supply of water that meets standards of the
               state health authority shall be provided. The amount of water provided
               must be enough to meet the normal drinking, cooking, and bathing needs
               of each worker; and
            b) Individual drinking cups shall be provided.

                                             -4-

3. Excreta and Liquid Waste Disposal

   a) Facilities shall be provided and maintained for effective disposal of
      excreta and liquid waste according to requirements of the state health
      authority or involved Federal agency; and
   b) If pits are used for the disposal by burying of excreta and liquid waste,
      they shall be kept fly-tight when not filled in completely after each use.

4. Housing Structure

   a) Housing shall be structurally sound, in good repair, in good sanitary
      condition and shall provide protection to occupants against the elements;
   b) Housing, other than tents, shall have flooring constructed of rigid
      materials easy to clean and structured to prevent ground and surface
      water from entering;
   c) Each housing unit shall have at least one window or skylight which can be
      opened directly to the outdoors; and
   d) Tents may only be used where terrain and/or land regulations do not
      permit the use of more substantial mobile housing providing facilities and
      protection adhering to the Department's intent.

5. Heating

   a) Where the housing location climate is such that the safety and health of
      an animal shearer requires heated living quarters, all such quarters shall
      have properly installed operable heating equipment which supplies
      adequate heat. In considering whether the heating equipment is
      acceptable, the NPC shall:
              i. Determine if the housing will be located in a National Forest
                 Wilderness as specified in the Wilderness Act (16 U.S.C. §§
                 1131-1136). Such a location has a bearing on the type of
                 equipment practicable, or whether any heavy equipment is
                 practicable. For example, Section 4 (c) of the Act (16 U.S.C. §
                 1133(c)) restricts certain motorized or mechanical transport
                 and certain roads in wilderness areas. The U.S. Forest Service
                 has regulations for this at 36 C.F.R. Part 293; and
             ii. Consider other factors in evaluating heating equipment are
                 how severe the weather will be and the kinds of protective
                 clothing and bedding made available to the shearer. If the
                 climate in which the housing will be used is mild and not
                 reasonably expected to drop below 50 degrees Fahrenheit
                 continuously for 24-hours, no separate heating equipment is
                 required if proper protective clothing and bedding are
                 available.

                                    -5-

   b) Any stoves or other sources of heat using combustible fuel shall be
      installed and vented in such a manner as to prevent fire hazards and a
      dangerous concentration of gases. Portable electrical heaters may be
      used, and if approved by Underwriters' Laboratory, kerosene heaters may
      be used according to manufacturer's instructions. If a solid or liquid fuel
      stove is used in a room with wooden or other combustible flooring, there
      shall be a concrete slab, insulated metal sheet, or other fireproof material
      on the floor under each stove, extending at least 18 inches beyond the
      perimeter of the base of the stove;
   c) Any wall or ceiling within 18 inches of a solid or liquid fuel stove or stove
      pipe shall be of fireproof material. A vented metal collar shall be installed
      around a stovepipe or vent passing through a wall, ceiling, floor or roof;
      and
   d) When a heating system has automatic controls, the controls shall be of
      the type which cuts off the fuel supply when the flame fails or is
      interrupted or whenever a predetermined safe temperature or pressure is
      exceeded.

6. Lighting

   a) In areas where it is not feasible to provide electrical service to mobile
      housing (including tents), lanterns shall be provided (Kerosene wick lights
      meet the definition of lantern); and
   b) Lanterns, when used, shall be provided in a minimum ratio of one per
      occupant of each unit, including tents.

7. Bathing, Laundry, and Hand Washing

   Movable bathing, laundry and hand washing facilities shall be provided when
   it is not feasible to provide hot and cold water under pressure.

8. Food Storage

   When mechanical refrigeration of food is not feasible, the worker must be
   provided with another means of keeping food fresh and preventing spoilage,
   such as a butane or propane gas refrigerator. Other proven methods of
   safeguarding fresh foods, such as salting, are acceptable.

9. Cooking and Eating Facilities

   a) When workers or their families are permitted or required to cook in their
      individual unit, a space shall be provided with adequate lighting and
      ventilation; and
   b) Wall surfaces next to all food preparation and cooking areas shall be of
      nonabsorbent, easy to clean material. Wall surfaces next to cooking
      areas shall be of fire-resistant material.

                                   -6-

10. Garbage and Other Refuse

   a) Durable, fly-tight, clean containers shall be provided to each housing unit,
      including tents, for storing garbage and other refuse; and
   b) Provision shall be made for collecting or burying refuse, which includes
      garbage, at least twice a week or more often if necessary. Refuse
      disposal shall conform to, state or local law, whichever applies.

11. Insect and Rodent Control

   Appropriate materials, including sprays, must be provided to aid housing
   occupant(s) in combating insects, rodents and other vermin.

12. Sleeping Facilities

   Except in a family arrangement, a separate sleeping unit shall be provided for
   each person, except in a family arrangement. Such a unit shall include a
   comfortable bed, cot or bunk with a clean mattress, or sleeping bag or bed
   roll in case of tent accommodation. When filing an application for
   certification, the employer may request a variance from the separate sleeping
   unit requirement to allow for a second shearer to join the operation on a
   provisional basis. However, the employer must explain why it is impractical
   to set up a second unit and the employer must clearly outline the period of
   time (not to exceed seven (7) calendar days) the second shearer will occupy
   the same unit. The second shearer must provide his/her individual sleeping
   bag or bed roll. If this is impractical, the employer must supply a sleeping
   bag or bed roll.

13. Fire, Safety, and First Aid

   a) All units in which people sleep or eat shall be constructed and maintained
      according to applicable state or local fire and safety law;
   b) No flammable or volatile liquid or materials shall be stored in or next to a
      rooms used for living purposes, expect for those needed for current
      household use;
   c) Mobile housing units for range use must have a second means of escape.
      The second egress must be a window which can be easily opened, a
      hutch or other provision. It must be demonstrated that the shearer would
      be able to crawl through the second egress without difficulty;
   d) Tents are not required to have a second means of escape, except when
      large tents with walls of rigid material are used. A heater may be used in
      a tent if the heater is approved by a testing service, such as Underwriters’
      Laboratory, and if the tent is fireproofed; and
   e) Adequate fire extinguishers in good working condition and first aid kits
      shall be provided in the mobile housing.

                                         -7-

K. SWA Housing Inspections. The SWA uses the standards outlined under Section J
   of this TEGL in conducting inspections of fixed-site and mobile housing units at least
   once every three years. With respect to self-certification of housing, the employer
   must submit with the H-2A application a signed statement assuring that the
   housing/lodging is available, sufficient to accommodate the number of workers being
   requested, and meets all applicable USDOL standards.

   SWAs must inspect at least one-third of such self-certified housing once a year, and
   develop a schedule of inspections which insures that each employer’s housing is
   inspected at least once every three years. These inspections may be performed
   either before or after a request is submitted for H-2A animal shearers. Before
   referring a worker who is entitled to such housing, the SWA must ensure that the
   housing is available and has been, or will be, inspected in accordance with the three-
   year schedule. For employer-provided housing, if either fixed-site housing or mobile
   units owned or controlled by the employer cannot be inspected in accordance with

   the three-year schedule, or if such housing, when it is inspected, does not meet the
   applicable standards within the prescribed time frame, certification of the employer
   H-2A request will be denied in full or in part, as warranted. In all circumstances, if
   the SWA determines that an employer's housing does not meet USDOL standards,
   the NPC may require additional inspections as needed.

   A shearing contractor may lease a mobile unit owned by a shearing crew member or
   other person, or make some other type of “allowance” to the owner. Neither the
   NPC, nor the SWA, should be involved in establishing or negotiating the amount an
   employer offers to provide to a worker or other person who owns a mobile unit and
   desires to lease it to the employer. However, if the employer represents such mobile
   unit as “housing or lodging provided by the employer”, the employer “controls” the
   unit and, consequently the mobile unit must meet the applicable standards and must
   be inspected at least once every three years. The employer in such case may self-
   certify such a mobile unit.

                                           -8-