H-2A Wage Rates & SOC Codes Explained

By Richard Stup, Cornell University, reprinted from the Ag WorkForce Journal 

The 2024 Becker Forum was hosted by New York State Vegetable Growers Association on Monday, January 22, 2024. At the event, recent changes to the H-2A program were discussed in detail, including from U.S. Department of Labor’s senior H-2A administrator, Mr. Brian Pasternak. Mr. Pasternak shared incredibly important information with the audience and I want to revisit a few key points here. Much of this message is good news, especially the fact that most H-2A jobs will still fit into the traditional AEWR pay rates. However, employers must carefully describe jobs by using the task language from O*NET as detailed later in this message. Note that everything presented here is for education purposes only and is not legal opinion.

U.S. DOL issued a “Final Rule” effective November 2022 that changed how program wage rates apply to some H-2A jobs. Essentially, it makes certain H-2A jobs such as supervisors, mechanics, some heavy truck drivers, and other jobs subject to wage rates that reflect the broader economy, not just farm jobs. These wages come from the U.S. Bureau of Labor Statistics’ Occupation Employment Wage Survey (OEWS). Generally, these OEWS wages are higher than the farm AEWR wages, so employers are keen to keep most H-2A jobs under the farm AEWR. The following slides are from Mr. Pasternak’s presentation. The column on the left shows the “Big 6” farm jobs with standard occupation classification (SOC codes) that remain under the farm AEWR rates.

The slide below provides a link to the USDOL website that provides the current AEWR and OEWS wages. In the right column it explains that one H-2A job requested by an employer, depending on the job tasks required, could be subject to more than one SOC code. H-2A employers must be very careful about the tasks they list in the job description for H-2A jobs, because these tasks will be used the state and federal agencies to determine which SOC codes apply, and thus which wage rates.

Following are a few examples of the different H-2A wage rates that could be applied in New York. Note that if a higher wage rate is applied, then that rate must be paid for every hour that an employee works, not just when they are performing the higher skill task.

Certainly, the OEWS wages are higher than the FLS-based AEWRs, for this reason, it is important for employers to carefully and accurately describe their positions in their H-2A applications. Fortunately, the vast majority of farm jobs should still fit under the Big 6 SOC codes. The slide below shows typical tasks in the left column that are all under the Big 6, in the right column it shows tasks that would likely move the job into the higher-paid OEWS category.

It is important for employers to become familiar with SOC codes and the descriptions found in O*NET Online, because this is where the job descriptions and specific task lists for certain jobs can be found. Employers can directly use the words from the O*NET descriptions to describe the jobs in their H-2A applications. Following are direct links to O*NET descriptions of the Big 6 agricultural jobs:

• 45-2041: Graders and Sorters

• 45-2091: Agricultural Equip. Operators 

• 45-2092: Farmworkers and Laborers

• 45-2093: Farmworkers, Farm, Ranch, and Aquacultural Animals

• 45-2099: All Other Agricultural Workers

• 53-7064: Packers and Packagers

The slide below provides directions to O*NET Online in the left column. In the right column it focuses on drivers and encourages employers to provide details about any driving duties listed.

Mr. Pasternak shared a clear example in the slide below that most driving duties in H-2A jobs should fit into the Big 6. The red text below describes most driving duties and would fit into SOC codes 45-2092 and 45-2091. Now, if a worker was assigned to drive a regular bus route for other H-2A workers, or required to have CDL and deliver farm product over-the-road to distant deliver points, then these would likely be driving duties that fall outside of the Big 6 codes.

In summary, the Becker Forum communicated a lot of critical information this year. Much of it was good news clarifying that most H-2A work will fit into the Big 6 codes. Work closely with your H-2A advisors to accurately describe jobs in your applications. If you believe a job should fit into the Big 6, and all the tasks can be found in the Big 6 descriptions in O*NET, then be sure to insist on this position if the NYS Department of Labor makes a different determination or denies your application, you can also appeal to USDOL.

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The post H-2A Wage Rates & SOC Codes Explained originally appeared in The Ag Workforce Journal.

Register today for Labor Roadshow VII

Registration is open for Ag Workforce Development Council’s Labor Roadshow VII. Four regional events will cover topics such as how the new NYS Marijuana Law affects the workplace, state and federal employment law compliance, farm safety and OSHA compliance, updating payroll, and workforce development. The topic of overtime will be discussed, including the 2024 NYS tax reimbursements for overtime, payroll systems, and compliance.

Programmed events will run from 8:30 am to 4:30 pm on each date. Registration is required, and payment of $65 per person is collected on site. Visit the Labor Roadshow website.

Labor continues to be the primary challenge for many farm businesses and Labor Roadshow VII tackles those challenges head-on with topics including:

• Experienced labor attorneys to address managing in a union environment, complying with equal employment laws, and managing regulatory audits.

• How the new NYS Marijuana Law affects the workplace.

• State and federal employment law compliance.

• Overtime: the new 2024 NYS tax reimbursements for overtime, payroll systems, and compliance.

• Farm Safety and OSHA compliance.

• Workforce development: finding your future staff.

• Updating your payroll system to stay in compliance.

Dates and locations:

NORTHERN NY: DECEMBER 13 | Old McDonald’s Farm, Sackets Harbor

EASTERN NY: DECEMBER 15 | Greenwich Elks, Greenwich

CENTRAL NY: DECEMBER 19 | Cornell Agritech, Geneva *ONLINE OPTION: on this date only, you can register to attend via Zoom.

WESTERN NY: DECEMBER 20 | Genesee Community College, Batavia

Featured speakers:

• Attorney Joshua Viau, Fisher Phillips Law Firm

• Nick Donofrio, New York Regional Office US Department of Labor / OSHA

• Farm HR Managers Panel

• NYS Department of Ag and Markets

• NYS Department of Taxation

USDA Farm Labor Stabilization Program: $65 Million for Employers

-Reprinted from the Cornell Agricultural Workforce Development blog

USDA recently announced the Farm Labor Stabilization and Protection Pilot Program (FLSP), to distribute $65 million in the form of grants to employers to “improve the resiliency of the food and agricultural supply chain by addressing workforce challenges farmers and ranchers face.” FLSP touts three goals:

“Goal 1: Drive U.S. economic recovery and safeguard domestic food supply by addressing current labor shortages in agriculture;
Goal 2: Reduce irregular migration from Northern Central America through the expansion of regular pathways; and
Goal 3: Improve working conditions for all farmworkers.”

Important details of the program are available at the FLSP website, including  that eligible applicants include employers who have used or at least applied to use the H-2A program, and the application deadline is November 28, 2023. This program encourages employers to recruit H-2A workers from countries in northern Central America: El Salvador, Guatemala, and Honduras. For this grant application it is critical to read the notice of funding in detail. Don’t just rely on what you see on the website and press releases, download and read this 32-page document thoroughly!

Pages 8-11 of the notice of funding get into details of what will be expected of farm employers who successfully receive a grant. Baseline requirements for all successful awardees include: universal protections and benefits for all employees, not just those in H-2A; employer participation in research that includes access to employers’ full workforce by USDA and federal partners; and “know your rights and resources” training provided by “farmworker-trusted entities.” In addition to these baseline requirements, successful grant awardees will also need to make certain commitments about their employment practices in three areas:

1. Responsible recruitment: efforts to recruit H-2A workers from northern Central America using government ministries.

2. Pay, benefits, and working conditions: example can include overtime, bonus pay, paid sick leave, and collaborative employee-management working groups.

3. Partnership agreements, such as: participation in a worker-driven social responsibility program, participation in a collective bargaining agreement (union), committing to neutrality, access, and voluntary recognition when employees indicate an interest in forming a union.

For some employers, these conditions and expectations of receiving between $25,000 and $2,000,000 in grant awards may be a good fit. For other employers, these conditions will be much too intrusive in exchange for any amount of money. Farm employers should read the notice of funding in detail and reflect carefully about how they wish to proceed with this program. But don’t reflect too long, applications are due November 28, 2023, it’s time to get working if you want to participate in this grant opportunity.

New York to Launch First-Of-Its-Kind Agricultural Workforce Development Program

By NYS Department of Agriculture and Markets

The New York State Department of Agriculture and Markets has announced it has issued a Request for Information (RFI) to gather input from stakeholders that will help the Department shape a first-of-its-kind agricultural workforce development program in the State. The Department is also looking to identify potential qualified applicants.  Funding for the program was allocated in this year’s New York State Budget and builds on Governor Kathy Hochul’s goals of strengthening New York’s food supply chain through the attraction and retention of a skilled agricultural workforce.

State Agriculture Commissioner Richard A. Ball said, “Governor Hochul is committed to building a strong agricultural pipeline and to make sure that we are connecting our young people in agriculture to New York companies.  I encourage eligible organizations focused on workforce development to respond to this request; the input gained will be invaluable as we work to develop a program with clear pathways for those interested in a career in agriculture and connect them to high-quality employment across the industry.”

New York’s agricultural and food industries need to continue to attract and retain future generations of skilled workers who are prepared for a career in an industry that is rapidly developing alongside emerging technologies and ever-changing consumer demand. The Department is interested in working closely with those in the agricultural and food sectors to create a program that will identify clear pathways for jobseekers and connect them to high-quality employment opportunities in agriculture, ultimately helping to strengthen and grow the State’s food supply system.

Information gathered from the RFI will inform a potential Request for Proposal (RFP) for an agriculture workforce development program. The program will identify internships and apprenticeships across the industry and, working with our educational institutions like the SUNY system, ensure that the necessary skills and standards required by the industry are being taught to students. The program will also focus on working with workforce development entities to match and place the new workforce, including migrant individuals and asylum seekers, directly with industry opportunities.

The RFI and additional information can be found on the Department’s website at https://agriculture.ny.gov/request-information-new-york-state-department-agriculture-and-markets-agriculture-workforce. Responders to the RFI may answer in one, or more, of the following areas: 1. Experience; 2. Qualifications; 3. Proposed project scope and services; 4. Other Considerations.

Statements of interest will be accepted via email to Antonia Giuliano, Senior Policy Advisor for Food and Dairy, at antonia.giuliano@agriculture.ny.gov.

Responses are due by November 1, 2023, and questions about the RFI must be submitted by email by October 4, 2023.

Fire Safety in Farm-Provided Employee Housing

By Jay Canzonier, Employee Housing Specialist, Cornell Agricultural Workforce Development

Are your resident employees prepared for fire? Are you?

Having an emergency plan and proper fire safety equipment in your farm-provided employee housing can save lives. The risk of fire in a dwelling occupied by multiple people in an unfamiliar setting, combined with the complexity of residents working multiple shifts, sharing cooking facilities and maintenance responsibilities, increases the need to plan and prepare for fire emergencies. You can greatly reduce risk by breaking fire safety into these five integral parts:

Awareness: What is your risk, your readiness, and your plan in the event of a fire?

• Educate residents on what could potentially start a fire, and the dangers involved with a fire.

• Communicate what to do in the event of an emergency, there should be no delay when calling for help.

• Provide emergency contact information, post 911 and other important numbers in visible locations.

• Post 911 address inside dwelling, and outside in a location visible from street.

• Identify at least two exit points from each room.

• Keep all hallways and exit routes clear.

• Maintain a list of all occupants for accountability in the event of a fire.

Prevention: What do you do to minimize the probability and impact of a fire? What don’t you do?

• Never leave cooking unattended.

• Always dispose of smoking materials (including cigarettes) properly. Or don’t smoke inside house.

• Avoid using portable space heaters. Clean heating appliances, chimneys, oven, and dryer vents regularly.

• Ensure that all appliances and extension cords are UL listed. Avoid using power strips and multi-outlet to single plug adapters.

• Do not charge Ebikes indoors.

Detection: Do you have properly installed, operational smoke alarms and carbon monoxide sensors?

• Discuss the importance of alarms with residents.

• Familiarize residents with basic operation and what to do if an accidental alarm sounds.

• When possible, use 10-year sealed battery detectors to alleviate tampering.

• Check your smoke alarms and carbon monoxide detectors at least twice a year.

• Recommendations for type and placement of alarms and sensors are listed below.

Alarm: Do your residents know what to do if alarm system sounds? Do they have a plan and have they practiced it?

• Carefully check for fire and smoke. Pay attention to smells and check each door for high temperatures with the back of a hand before opening it.

•  If there is smoke, cover nose and mouth with a cloth and keep close to the ground while evacuating.

• Have an escape plan, and a designated meeting place.

• If fire isn’t found, have a knowledgeable person check the batteries in the smoke alarms.

• If a carbon monoxide alarm sounds, evacuate the building and call 911.

Suppression: Have you supplied your residents with properly rated fire extinguishers or installed a sprinkler system?

• Fire extinguishers should be provided and stored in a readily accessible location not more than 100 feet from each housing unit. Fire extinguishers must provide protection equal to a 2 1/2-gallon stored pressure water extinguisher or a 5 Lb. Type ABC extinguisher.

• Discuss what conditions would be safe to suppress a fire, and what conditions warrant immediate evacuation.

• Demonstrate proper use of fire extinguisher.

1. Pull pin.

   1. Aim nozzle at base of fire.

   2. Squeeze handle to discharge contents.

   3. Sweep stream to cover burning material completely.

Smoke Alarms are the first step in a fire escape plan.

Smoke spreads fast, properly selected, located, and maintained smoke alarms give residents an early warning so they can get out quickly. The following recommendations for placement and types of smoke alarms are based on the most recent requirements from New York State Uniform Fire and Building Code.

Smoke alarms should be located:

1. On the ceiling or wall outside each separate sleeping area or bedroom. (If within 10 feet of each door, can be combined CO detector)

2. In each room used for sleeping purposes. (bedrooms)

3. In each story within a dwelling unit, including basements.

4. Keep smoke alarms away from the kitchen to reduce false alarms. They should be at least 10 feet from the stove.

5. Smoke alarms should not be installed less than 3 feet horizontally from the door or opening of a bathroom that contains a bathtub or a shower.

Carbon Monoxide (CO) detectors:

1. One carbon monoxide detector on each floor containing a fuel burning appliance.

2. At least 1 on each story that contains a sleeping area or bedroom.

3. More than 1 should be installed to ensure no sleeping area is more than 10’ from a carbon monoxide detector.

4. A carbon monoxide detector should be installed in each sleeping area that contains a carbon monoxide sou

Help Farm Employees “Sleep for Success!”

By Jay Canzonier, Housing Management Specialist, Cornell Ag Workforce Development

June 21 marks the first day of summer and longest day of the year. A glorious day and evening for barbeques and corn hole tournaments…unless you are working the night shift. Our co-workers who brave the dark during their workday have a much different outlook on the sunlight looking in while they try to sleep.

In the darkness of evening and as you enter sleep, your body produces melatonin, a naturally occurring hormone which regulates your body’s circadian rhythms, your natural sleep-wake cycle. By morning light your body begins to suppress melatonin by elevating levels of cortisol, a steroid hormone which plays a significant role in waking up. Exposure to light helps your body figure out when it’s time to sleep, and time to wake up. Light, whether it be natural sunlight or artificial, disrupts the creation of melatonin. This disruption cues your internal body clock to be awake and active, making it difficult to enter a restful sleep.

Most adults require seven to nine hours of sleep daily. A lack of sleep can lead to decreased energy, delayed reaction times, increased anxiety, inability to process information quickly, and many more side effects that decrease productivity at work and overall quality of life. Long term sleep deprivation can contribute to more severe chronic health risks including anxiety, coronary heart disease, depression, obesity, stroke, and Type 2 diabetes just to name a few. Inadequate sleep can be a key contributor in work related accidents.

Working the night shift causes your body to get out of its natural sleeping rhythms by requiring you to be alert when the light cycle programs it to be sleeping. Conversely, when you go home after a night shift, your internal body clock and exposure to daylight tells your body to be awake and active. There are sleep hygiene tactics that can be used to help your body minimize the effects of an opposite sleep schedule resulting from night duty. Tools to make your sleep time more pleasant and productive include:

• Wear dark sunglasses to suppress light when leaving the workplace in the morning. Even if it is a short exposure, minimizing the effect of sunlight on your body can have an impact on how quickly you enter a restful sleep, and how long you sleep.

• Use blackout curtains in sleeping rooms to eliminate sunlight during the sleep time. Blackout curtains are fabric drapes or shades that cover the window completely, eliminating all light from entering the sleeping area. Note that these will be labeled differently from other drapes and shades which may be only “light filtering.” Blackout curtains help create a dark environment that mimics nighttime, your body will produce melatonin and lead to a longer and more refreshing quality of sleep.

• Eliminate sources of “blue light” from electronic devises within the sleeping area. Blue light decreases the production of melatonin, making sleep incredibly difficult particularly when working the night shift.

• When possible, align work shifts with sleeping shifts in employee housing. Doing so can minimize daytime disturbances in the sleeping area and accommodate the sleeping needs and preferences of the night shift workers.

These strategies are affordable and simple ways to improve sleep quality, overall health, safety, and productivity. Maintaining your body’s natural circadian rhythm is an essential building block in overall health and quality of life. By sharing this information with our night shift workers and providing them with the necessary tools, we can help those who work while we sleep…sleep while we work.

This link is to an informative website and short video on the importance of sleep and how it affects performance. Dr. James B. Maas was a professor at Cornell University for more than 48 years and is famous for coining the term “power nap.”