Attachment to GAL No. 1-95, Change 1

 

IX.   Applications Requiring Special Processing (continued)

 

 D.  Forestry Workers.

  1. General

    Applications for tree planter and related forestry occupations are to be processed as H-2B applications. Because the occupations are nationwide and applications in one State can have implications for many other States, the SESA should immediately inform the Regional Certifying Officer upon receipt of a forestry related application.

  2. Operating Procedures

    The following procedures are in the format of frequently asked questions and should be used as a checklist for staff who process forestry related H-2B applications. The responses reflect DOL policy regarding processing of these applications.

    1. WHEN IS A TREE PLANTER (FORESTRY) APPLICATION ACCEPTABLE AS AN H-2B APPLICATION?

      The same basic criteria in GAL No. 1-95, Section II apply to forestry workers in determining the temporary nature of a job offer under the H-2B classification. The employer's need for the services or labor shall be either a:

      • One-time Occurrence: It is highly unlikely that any forestry employers would meet this criterion.

      • Peakload: It is possible that some forestry employers could meet the criterion for relatively short itineraries.

      • Intermittent Need: It is highly unlikely forestry employers would meet this criterion.

      • Seasonal Need: It is clear that tree planting is a seasonal activity which is determined by climatic conditions. The appropriate time for tree planting occurs once, or in some locations, twice a year. However, in making a determination as to whether a tree planting application is temporary based on seasonality, the total employment opportunity must be considered.

      In the case of tree planters, the employer (contractor) bids on a sequence of contracts, linking each seasonal activity into an itinerary of a number of months. Since tree planters are covered by the Migrant and Seasonal Agricultural Worker Protection Act (MSPA), the MSPA definition of "on a seasonal or other temporary basis" cited at 20 CFR 655.100 provides guidance for determining whether the job offer is for temporary employment. The MSPA definition, in relevant part, provides that "(a) worker who moves from one seasonal activity to another, while employed in agriculture or performing agricultural labor, is employed on a seasonal basis even though he may continue to be employed during a major portion of the year." However, the phrase "major portion of the year" does not encompass the entire year, virtually the entire year, or almost the entire year. Regional Offices should contact the National Office if they need further guidance in determining whether or not a particular forestry itinerary constitutes temporary employment.

    2. MUST AN EMPLOYER BE REGISTERED AS A FARM LABOR CONTRACTOR?

      Generally yes. Farm labor contracting activity means: recruiting, soliciting, hiring, employing, furnishing, or transporting workers. A person requesting certification who is not the owner or operator of the land on which the reforestation will be performed, or is not a nonprofit or cooperative organization of such owner/operator, must first register as a farm labor contractor with the U.S. Department of Labor. If the employer is not registered, the application should be returned to the employer with the notification that the SESA cannot accept a job order for this occupation from an employer who is not a registered Farm Labor Contractor. For information on persons currently registered, please contact the Wage and Hour Division at 1-800-800-0235.

    3. MAY AN EMPLOYER FILE A MASTER APPLICATION?

      Yes. The employer has an option of filing one master application provided that all starting location States in the itinerary are in the same ETA Region. As an alternative, the employer may file separately in every State where a crew will start its itinerary.

    4. ARE THERE ANY RESTRICTIONS ON ITINERARIES?

      Itineraries involving States in widely separated geographic areas do not appear to be normal in this occupation. Such itineraries also make it extremely difficult for the Department to satisfy its responsibility for determining the availability of domestic workers as a predicate to certification and have the potential of depriving domestic workers of historically available employment opportunities. Therefore, itineraries such as Arkansas, Mississippi, Louisiana and Idaho or Georgia, Alabama, Tennessee and Maine will not be acceptable. Employers who seek H-2B workers for job opportunities in those remote "downstream" States should file separate job orders for those locations unless clearly documented evidence that such practice has been prevailing is submitted with the application.

      SESAs should review the itinerary to make sure it is normal for that particular Region (i.e., is it prevailing practice to start in a particular area; what type of itineraries are normal for contracts and the H-2B program). SESAs should contact their Regional Office when they receive an itinerary which they feel is not prevailing practice. Regions should consult with the National Office before reaching a final determination on the case.

    5. UNDER WHAT CONDITIONS MAY AN EMPLOYER FILE A MASTER APPLICATION?

      1. All starting locations in all itineraries (crews) in a Master Application must be in one ETA Region;

      2. It must be filed in the State with the largest of first location job opportunities;

      3. It must consist only of crews working for one employer; and

      4. The total range of the crews' start dates cannot be greater than 14 days.

      The following examples demonstrate when a Master Application is acceptable and when it is not:

      EXAMPLE 1:MASTER APPLICATION

      ITINERARY 1
      Crew One 200 workers
      Alabama 2/01/97 - 2/09/97
      Tennessee 2/11/97 - 2/30/97
      Georgia 3/04/97 - 3/16/97
      ITINERARY 2
      Crew Two 250 workers
      N. Carolina 2/01/97 - 2/28/97
      Texas 3/03/97 - 3/15/97
      Mississippi 3/15/97 - 3/30/97
      ITINERARY 3
      Crew Three 100 workers
      Alabama 2/14/97 - 3/20/97
      N. Carolina 3/21/97 - 4/10/97

      The employer may file a Master Application with ETA Region IV since all starting location States are in Region IV. The employer must file with Alabama, since 200 workers in Crew One and 100 workers in Crew Three clearly are the majority (300 workers) of total job opportunities (550 workers). Even though the second crew will work in Texas (Region VI), it is not at a starting location.

      EXAMPLE 2: INDIVIDUAL APPLICATIONS

      ITINERARY 1
      Crew One (150 workers)
      Arkansas 3/01/97 - 3/15/97
      Texas 3/19/97 - 3/30/97
      Oklahoma 4/15/97 - 4/19/97
      ITINERARY 2
      Crew Two (275 workers)
      Idaho 3/01/97 - 3/15/97
      Oregon 3/23/97 - 4/15/97
      Washington 4/17/97 - 5/01/97
      ITINERARY 3
      Crew Three (130 workers)
      Arkansas 3/21/97 - 3/29/97
      Texas 4/01/97 - 4/14/97
      Oklahoma 4/15/97 - 4/30/97

      The employer should file three separate applications for the following reasons: a) The itineraries consist of crews starting in two different regions and b) The start dates of the crews starting in Region VI are more than 14 days apart. Therefore, the employer must file three separate orders: One each for Itineraries 1 and 3 in Region VI (in Arkansas), and one for Itinerary 2 in Region X (in Idaho).

      EMPLOYER'S OPTIONS

      In Example 1, the employer may choose to file one master application or separate applications for each crew. In Example 1, the employer would have the option of:

      1. Filing one master application in Alabama; or

      2. Filing one master application in Alabama and one order in North Carolina, or

      3. Filing two separate applications in Alabama and one application in North Carolina.

    6. WHAT ARE THE JOB ORDER AND ADVERTISEMENT REQUIREMENTS?

      A 10-day job order (Note: SESAs shall circulate job orders through the America's Job Bank {AJB}).

      A three-day advertisement in a newspaper in the State where the application is filed. Advertising should be conducted in the first location of the itinerary where the Master Application is filed.

      In accordance with Section V., the Certifying Officers, in judging if a U.S. worker is available for a temporary employment opportunity, shall determine from documented results of the employer's and SESA's recruitment efforts, if there are other appropriate sources of workers where the employer should have recruited or may recruit U.S. workers. Therefore, if a State believes advertising in other States on the itinerary is appropriate, the State should contact the Certifying Officer immediately.

    7. WHAT INFORMATION SHOULD BE INCLUDED IN ITINERARIES?

      Employers should submit a signed and dated itinerary with the following information:

      - Number of crews

      - Number of workers in each crew

      - Wages for each location

      - Locations (County/City/Town/State) of each crew

      - Starting and estimated ending dates

      Since this occupation is weather dependent, the precise ending dates and subsequent contracts may not be defined at the time of placing a job order.

    8. HOW IS THE RATE OF PAY DETERMINED?

      The rate of pay will be established in accordance with the regulations at 20 CFR 655.40. If there is an SCA wage for the State or subdivision, that wage must be offered. If the wage has been determined by the SESA, the employer may offer 95% of the determined wage.

      In accordance with GAL 4-95, any SESA wage determination made within the past 24 months can be used in determining wages for forestry applications filed up to December 31, 1997. For applications filed on or after January 1, 1998, SESA wage determinations will be based on Occupational Employment Statistics (OES) data.

      Each July, the National Office will compile a list of current SCA wages and OES wages for forestry occupations and distribute that list to the SESAs and Regional Offices by August 1. If a SESA accepts an employer's survey in lieu of an OES wage, the SESA should notify the National Office to insure that the correct prevailing wage is published.

      In accordance with 20 CFR 656.40, if the worker is to be paid on a piece rate basis, the employer must guarantee the required hourly wage rate per pay period. The required hourly wage will be either the SCA wage for the geographic area or the prevailing wage determined by the SESA.

      The piece rate job offer must also state that:

      Should the average hourly earnings for a pay period not equal the amount the workers would have earned if paid by the hour, the worker will be paid supplemental pay to increase the earnings to the guaranteed minimum hourly wage.

      In addition, the job offer shall clearly state the length of the pay period, and the ending day of the week of the payroll period and date.

      When a piece rate wage is offered, the job order should state the minimum productivity required for job retention.

      If the SESA does not have a prevailing wage or SCA wage for a State which has not had a previous forestry worker application, the SESA shall contact the Regional Office which in turn will work with the National Office to determine a wage.

    9. WHAT SHOULD BE INCLUDED IN THE ADVERTISEMENT?

      To ensure that the job order is clear and concise in terms of the wages and conditions for U.S. workers, employers and SESAs are required to include the following information when advertising in newspapers and the AJB:

      - Brief description of job

      - Address and location of Order Holding Office

      - Summary of the itinerary

      - Incentive wages (i.e., piece rates)

      - Benefits if offered (e.g., housing and free transportation)

      - Notice that job is temporary

      - Wage at each crew's starting locations

      - Notice if employees must purchase or rent tools

      - Job Order Number

      - Range of Wages

      - Starting locations

      The following example is acceptable for advertisements in newspapers and the AJB:

      Example: Crew One (300 workers)
      Alabama 2/01/97 - 2/09/97
      Tennessee 2/11/97 - 2/30/97
      Georgia 3/04/97 - 3/16/97
      Crew Two (400 workers)
      N. Carolina 2/01/97 - 2/28/97
      Georgia 3/03/97 - 3/15/97
      Mississippi 3/15/97 - 3/30/97

      Using the above information, the narrative for newspapers might read:

      "Tree Planter, 700 workers-Temporary. Plant seedling trees to reforest timberlands. Dig planting hole using mattock-like tool or dibble. Must be able to work in various weather & terrain. Work beg. in AL ($8.00) & NC ($5.15). Crews will also work in TN, GA & MS from 2/97-3/97. Wages vary by State and range from $5.15-8.00. Contact your nearest State Employ. Office. Job #ID1234567"

      Using the above information, the narrative for the America's Job Bank might read:

      "Tree Planter-Temp. Plant seedling trees to reforest timber lands. Work beg. in AL ($8.00)& NC ($5.15). Crews will also work in TN, GA & MS from 2/97-3/97. Wages will vary by State and range from $5.15-8.00. Contact nearest State Employ. Office. Job #ID1234567."

    10. CAN STATES ACCEPT AGENT DESIGNATIONS?

      Yes. States should accept agent designations on the ETA 750 as they do for the H-2A program. A G-28 is required for an agent. The State should also request a copy of the "Agency Agreement" or similar document for the file so that there is a record of the specific authority granted to the agent.

    11. CAN AN EMPLOYER FILE A TREE PLANTER APPLICATION WITH MULTIPLE JOB DUTIES?

    Yes. Employers can require tree planter workers to perform minor related reforestation job activities such as tree seedling pulling, thinning, seed cone gathering and pine straw harvesting. These activities must be stipulated in the application in order for the worker to realize the full scope of possible job duties.

  3. CLARIFICATION OF ETA 750 FORM

For consistency, employers and SESAs should use the following annotations:

Item #7 - Employer should write "See Attached Itinerary" and follow the instructions under ITINERARY in "Section E."

Items #10b - Employer should note the maximum amount of hours required for overtime.

Item #12b - Employer should note the "rate of pay" which shall be time and a half.

Item #13 - Production standards must be noted (Employer must justify any standard higher than the standard the employer used from the previous year). Most forestry employers have been in the forestry business for a number of years and should have records/documentation on file. (Examples include: past production records, improved equipment, statement of how terrain will impact production rate). States should use their judgment, based on their experience, to accept or deny the employer's justification.

Item #15 - Specific requirements such as requiring employees to purchase tools or housing accommodations should be noted. In accordance with the Migrant and Seasonal Agricultural Worker Protection Act, if there is a relationship between the employer and the store to which employees are directed to purchase or rent tools, it must be disclosed to the employee. This information should also be stated in the job order.

SESAs should examine all deductions (including housing, transportation, meals, tools, safety equipment, etc.,) to determine if they are in accordance with the prevailing practice for the area of intended employment. States and employers are encouraged to consult with the Wage and Hour Division regarding the allow ability of certain deductions. This consultation is extremely important for those deductions which are for tools of the trade and other materials and services incidental to carrying on the employer's business.

SESAs should contact their Regional Office if deductions are not in accordance with the prevailing practice for the area. The Regional Office will consult with the National Office before notifying the State of the propriety of the deductions.

If a SESA has a question or concern not under ETA's jurisdiction (e.g., housing), the SESA should forward the question or concern to the appropriate agency. States should not accept job orders that violate State and Federal laws.

SESAs should also process the application according to Parts II, III, IV, V, VI, and VII in GAL 1-95 as appropriate.