AWI PROGRAMS

Alien Labor Certification

FAQ # 5: What is the “Three-Quarters Guarantee” for wages that I must pay to United States domestic workers and to the foreign workers imported under the H-2A Program?

Federal regulations require that the employer specify on the ETA-790 and ETA-750 (the "contract") the beginning date and the ending date of the job; the days of the week work will be offered; the number of hours of work each day (Sunday through Saturday); and the total number of hours of work each week.

The three-quarters (3/4) guarantee requires the employer “shall guarantee to offer the worker employment for at least three-quarters of the workdays of the total period during which the work contract and all extensions thereof are in effect.”  The guarantee applies to all employees in the occupation on the job offer.  Computation begins on the first workday following the arrival date of the workers.

Special considerations apply regarding the worker’s Sabbath, Federal holidays, and work offers on days or portions of days not included in the contract.

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.

Example A:  A Florida harvesting company specified on the ETA-790 and ETA-750 that work would be offered from Monday, October 6 2003 through Friday, April 30 2004.  Eight hours each day would be offered on Monday through Friday, and 4 hours on Saturday.  No work was listed for Sunday, a non-work day.  A total of 44 hours of work was listed for each week.  Federal holidays were specified as being days off.

The total number of hours that the company offered to provide work opportunities is 1,268 hours.  (30 weeks times 5 days at 8 hours per day = 1200 hours, plus 29 Saturdays at 4 hours per day = 116 hours, minus 48 hours for six holidays- Columbus day, Veteran’s Day, Thanksgiving Day, Christmas Day, New Year’s Day, and Washington’s Birthday Day.)

The number of hours included in the ¾ guarantee is 951 hours.

Example B:  One of the workers that had been hired as a result of the H-2A contract missed several days of work during the first three months of the contract.  He overslept three mornings, decided to go fishing instead of working on three days, was sick for four days, and left the work place early on three occasions after working only four of the eight hours offered each day.  All of these days were weekdays designated as eight-hour workdays in the Clearance Order, and he did not work any of the hours offered by the harvesting company.  The company work rules included in the ETA-790 Clearance Order included these events as refusal of work offered to the employee.  He missed a total of 92 hours and was not paid for those hours.

The company is allowed to reduce this worker’s ¾ guarantee by 92 hours.  This results in an adjusted ¾ guarantee of 859 hours because the worker refused the offered work prior to reaching the 951 hours specified by the contracted ¾ guarantee.

NOTE:  The worker may be subject to dismissal for legally acceptable reasons and the employer would not be required to pay the worker the remaining balance of the ¾ guarantee.  The supervisor should adequately document the refusal of work and the reason, and submit the documentation with the other payroll records for that day.  The workers’ pay stub and records should include an explanation for the reduction in weekly pay and that the ¾ guarantee has been adjusted.

NEED MORE INFORMATION?

H-2A Certification H-2A Certification employer’s information about the three-fourths Guarantee.

Federal Regulation: Three-fourths Guarantee Read Federal Regulation 20 CFR 655.102(b)(6) Three-fourths guarantee to learn more.