We have received a few questions related to H-2A workers that are important to ginners considering the use of H-2A workers. First of all, several ginners have asked about whether H-2A workers have to be paid overtime. The answer is yes they do at a cotton gin. Workers at a cotton gin are subject to the 48-Hour Overtime Regulations that are specific to cotton gins, whether they are H-2A workers or US workers. There is a common misconception that H-2A workers do not have to be paid overtime, and this is incorrect, from our reading of the regulations. We have seen instances where gins with H-2A workers were audited by the Federal Wage and Hour folks, and made to pay back-wages for overtime not paid.
We have also been getting questions about the difference between a Farm Labor Contractor (FLC) and an H-2A Agent. An H-2A agent puts together the H-2A application for you and helps you through the process of hiring the H-2A workers. Once these workers arrive, however, you are the employer. With a FLC, you are contracting with the FLC and the FLC brings you contract employees. Under this scenario, the FLC is the employer. With an FLC you do not have direct responsibility for paying the workers, but it is still important that you do your best to be sure that the FLC is paying the workers properly, especially related to overtime. It is also important to be sure the FLC is following the rules with employee transportation and housing, to the best of your abilities.
The last issue worth considering is the payment of the non-H-2A workers. Your US workers must be paid at least as much as your H-2A workers in the same job. Once you have determined what you are paying your H-2A workers, then double check to be sure you US workers in the same job are paid the same. This is an area where it is important to have written up the job descriptions properly in the H-2A application so that you can tell which workers are in which job group.
If you are planning to use H-2A workers this year, or if you are considering doing so, please let us know! We are trying to keep track of how many gins are using H-2A in any given year, and also how well the program has worked for the gins. With all of the rule changes going on related to H-2A and employees in general, it is important for TCGA to keep up with employment trends in the cotton gins.