AWI PROGRAMS

Alien Labor Certification

FAQ # 11:  What are contract impossibility and an “Act of God”?

H-2A Program regulations allow the employer to terminate the work contract of any worker(s) whose services are no longer required for reasons beyond the control of the employer.  See Federal Regulation: Contract Impossibility or Act of God, 20 CFR 655.102(b)(12) and (13), Deductions.

The US Department of Labor Wage and Hour Florida District Office [  Wage and Hour Florida District Office Locations ]having jurisdiction for the county in which the agricultural employer is operating an H-2A contract should be contacted for assistance in determining if a particular event will qualify. 

Examples of events that may qualify as an Act of God or an event that causes contract impossibility include fire, hurricane, freeze, and flood.  However, an event may not be severe enough to cause conditions leading to contract impossibility.  For example, a Category One hurricane may cause several days of rain disruption and temporary flooding but harvest or planting would be expected to resume, or a substitute crop be planted.  A Category Three hurricane that stripped fruit or vegetables from the plants or destroyed the plants would probably create contract impossibility.

Some business conditions might also create conditions under which contract impossibility would occur.

Normal risks and business cycles encountered in agriculture may not qualify.  Example: A juice processor cancels a contract with the harvesting company.  The harvesting company would be expected to negotiate a new contract with another juice processor or an intermediary.  Contract impossibility would not normally be extended.

Termination of Workers

A.  Three-fourths guarantee.  The employer must pay the three-fourths guarantee from the first workday after worker arrival to the date of termination.

B.  Other work offer.  The employer should try to arrange a transfer of the worker to other comparable employment.

C.  Sequence of terminations.  A basic provision of the H-2A Program is that the foreign workers must be terminated first, then the United States domestic workers if no workers are needed.  The employer may not retain foreign H-2A workers in preference to U.S. workers.

D.  Travel expense.  The employer (if a transfer to comparable work is not possible) must offer to return the foreign and the domestic workers at the employer’s expense to the place from which the worker came from to work for the employer.  The regulation specifies that the location of intervening employment will be disregarded: i.e., the workers will normally be returned to their home in the foreign country or the United States.

E.  Special rule: Reimbursement of travel expenses.  The employer must reimburse the worker for:

1) The most economical and reasonable costs of travel and for subsistence due to the worker for travel from the place the worker, without intervening employment, has come from to work for the employer at the place of employment.   This reimbursement must be made even though the 50 percent date has not been reached.  See FAQ # 2 for information on Travel and subsistence reimbursement.

2) Advanced Travel Costs:  The employer must reimburse deductions made from worker wages to recover advances of travel made by the employer to the worker.  These deductions must be supplemented, if necessary, to cover the economical and reasonable inbound travel costs.