AWI PROGRAMS

Alien Labor Certification

FAQ # 4:  What is the Fifty Percent Rule (50% Rule) and how does it apply to my H-2A Program?

The Fifty Percent Rule is found in the United States Department of Labor/Employment and Training Administration regulations about the H-2A Program. [USDOL Transportation Requirement: see 20 CFR 655.102(b)(5) and (12)]

Travel and the Fifty Percent Rule:

Employers must reimburse workers who cannot commute from their home on a daily basis for the reasonable costs of transportation and related subsistence to report to the job site on the date specified in the ETA-790 Agricultural and Food Processing Clearance Order. (See FAQ #2.)  The Fifty Percent Rule specifies that the employer may reimburse these costs on the fifty percent date of the contract.  This is the day when the worker has completed one-half (fifty percent) of the contract period for which he or she was hired.

However, a Florida employer should reimburse the worker’s transportation costs in whole or in part if the worker’s first week pay falls below the Federal Minimum Wage in effect at the time.  (United States 11th Circuit Court, Arriaga, et al vs. Florida Pacific Farms and Sleepy Creek Farms, No. 01-16402)

The employer is not required to reimburse workers who voluntarily depart or are terminated for cause prior to the fifty percent date.

Contract Impossibility (Acts of God).  Special rules apply when an employer encounters an Act of God or other condition beyond the control of the employer.  See FAQ # 11.

Worker Recruitment and the Fifty Percent Rule:

The Fifty Percent Rule also applies to the recruitment of United States Domestic Workers for each H-2A Program Clearance Order contract.  The fifty percent date will be established using the contract “From” and “To” dates approved by the United States Department of Labor National Processing Center in Atlanta, Georgia.  It will be the day one-half of the way through the approved contract.

The employer is required to hire any qualified U.S. domestic worker who is referred to the employer by a Florida One-Stop Center or by a State Workforce Agency office in another state.  Domestic workers must be hired even though a foreign worker might be displaced and the employer required to return the foreign worker to his or her home or the place of recruitment.

This requirement expires on the fifty percent date of the contract that is approved by the USDOL/ETA Region 3 office.

The Florida Agency for Workforce Innovation H-2A staff will close the Florida Job Order for the H-2A contract on the fifty percent date.  U.S. domestic workers will not be referred to the employer after that date.