What Does an H-2A Employer Have to Pay Workers?

H-2A wage requirements start with an hourly floor that is usually higher than the local minimum wage, and they do not stop at the hourly rate. An H-2A employer must pay at least the highest of the adverse effect wage rate, the applicable prevailing wage, any agreed collective bargaining rate, and the federal or state minimum wage. It must also guarantee work for at least three-fourths of the hours promised, cover inbound and return travel on a set schedule, and provide daily transportation, tools, and housing at no cost. Each obligation is written into the job order and enforced by DOL’s Wage and Hour Division. Our H-2A employer compliance work starts with budgeting these costs before the job order is filed, because they cannot be changed once workers arrive.

The wage floor: the AEWR and the highest-of rule

The adverse effect wage rate exists so that hiring foreign farmworkers does not drag down wages for U.S. farmworkers. DOL publishes the AEWRs that apply to each state and type of farm work. The method DOL uses to set them has been revised several times in recent years and may change again, so check the current published rate before you budget a season rather than relying on last year’s figure.

The rule is a comparison, not a single number. Pay at least the highest of:

• The AEWR in effect for the work and location
• A prevailing wage rate, where DOL or the state has found one for the crop and activity
• The agreed rate under any collective bargaining agreement
• The federal or state minimum wage

If a new, higher AEWR is published during the contract period, the employer generally must raise pay to that rate from its effective date. The same wage and working conditions extend to U.S. workers in corresponding employment, meaning those doing substantially the same work for the employer.

Piece rates

Paying by the bin, bucket, or pound is allowed if the job order discloses it. But piece-rate earnings must at least equal the hourly floor for the hours worked in each pay period. If they fall short, the employer tops up the difference. Any productivity standard must be disclosed in the job order and cannot be stricter than what non-H-2A employers in the area normally require.

The three-fourths guarantee

The H-2A employer must offer each worker employment for at least three-fourths of the hours in the workdays of the contract period. The period starts on the first workday after the worker arrives or the advertised date of need, whichever is later, and runs to the end date in the contract. If the employer offers fewer hours, it owes the worker the pay for the shortfall at the end of the contract.

Hours the worker was offered but chose not to work count toward the guarantee. If a worker abandons the job or is fired for cause, and the employer gives DOL and DHS timely notice, the guarantee no longer applies to that worker. A fire, flood, or similar event that makes the contract impossible to complete can end the guarantee early, but the employer must still meet the guarantee for the period up to that point and handle return transportation.

Travel, daily transportation, and tools

Inbound transportation and daily subsistence from the place of recruitment are reimbursed once the worker completes 50 percent of the contract period. The Fair Labor Standards Act can require earlier reimbursement: if travel and related costs bring a worker’s first-week pay below the federal minimum wage, the employer must make up that amount in the first workweek. Return transportation and subsistence are owed when the worker completes the contract, or if it ends early through no fault of the worker.

Transportation between the employer’s housing and the worksite each day must be free, and the vehicles must meet applicable safety standards and be insured. Tools, supplies, and equipment needed for the job are also provided at no cost.

Meals, housing, and deductions

The employer either provides three meals a day or gives workers free and convenient cooking and kitchen facilities. If meals are provided, the employer may charge only up to a daily amount DOL publishes. Housing is free for workers who cannot reasonably return home each day, and it must meet inspection standards; our guide to H-2A housing requirements covers that obligation.

Deductions must be lawful and disclosed in the job order. Recruitment fees are a separate issue: the employer cannot pass them on, and it must contractually forbid its recruiters and agents from charging workers fees.

Pay schedule, statements, and records

Pay must go out at least twice a month, or more often if that is the local practice. Each pay statement must show the hours offered, the hours worked, any piece-rate units, the rates, and every deduction. The employer keeps payroll and hours records for at least three years. Those records are what Wage and Hour investigators ask for first.

How enforcement works

DOL’s Wage and Hour Division investigates H-2A employers, sometimes after complaints and sometimes on its own. Violations can lead to back wages, civil money penalties, revocation of the labor certification, and debarment from the program. Most findings involve missed reimbursements, guarantee shortfalls, and records that do not support the hours paid. A compliance review before the season, along with the approach described in our risk management and legal compliance work, catches most of them. For how these costs fit into the full season, see our H-2A process and timeline.

If you are budgeting an H-2A season or responding to a Wage and Hour inquiry, a consultation with Capitol Law Partners can map the right path for your situation. Schedule a consultation.

This article is for informational purposes only and does not constitute legal advice. No attorney-client relationship is formed by this communication.

Attorney Cagatay Ersoy. Practical strategy for founders, investors, and growing companies.

Need help with this topic? See our H-2A employer obligations and compliance page or schedule a consultation.