Wagner-Peyser Migrant and Seasonal Farmworker Program Technical Assistance Guide
The name used for this program component is the Wagner-Peyser Migrant and Seasonal Farmworker (MSFW) Outreach/Monitor Advocate Program. Information can be found at:
· http://www.doleta.gov/programs/MSFW/
Note: Because of terminology used in the regulations, the terms Job Service (JS) and Employment Service (ES) may be interchanged throughout document.
Wagner-Peyser Federal Regulations found at 20 Code of Federal Regulations (CFR) 651, 653, and 658, Federal Register, June 10, 1980, mandate this program. This program is operated under the direction of the United States Department of Labor (USDOL) Employment and Training Administration (ETA).
Funds expended are included within a State’s basic Wagner-Peyser grant for administration and activities. States do not receive dedicated funding for this program.
The MSFW Outreach/Monitor Advocate Program can be described as having a three-part purpose. The primary purpose is to ensure equitable employment services are provided to MSFWs. Services are to be of an equal quantity and quality as those provided to non-MSFW clients through the workforce centers.
The program also places importance on provision of outreach to MSFWs. Outreach is performed to ensure all MSFWs are aware of the full array of services available at Workforce Centers and the benefits derived from using those services. Outreach is further addressed in the Program Services section which follows.
Another important purpose of the program is to document and monitor complaints, both Job Service (JS) related and Non-JS related, ensuring MSFW complaints are processed within prescribed time lines. More information about the complaint system is contained in the Program Services section which follows.
Each state's compliance is partly based on achievement of five equity indicators:
· referred to jobs;
· received staff assisted services;
· referred to support services;
· career guidance; and
· job development contact.
Compliance is also partly based on the State’s performance of seven minimum service indicators:
· Placed in Jobs;
· Placed in job $.50 above minimum wage;
· Placed in long-term non-agricultural jobs;
· Reviews of significant offices (as determined by USDOL. There are no significant offices in Kansas);
· Field checks conducted;
· Outreach contacts per/staff day; and
· Timely processing of JS-related complaints
State and local area achievement of the equity indicators and minimum service indicators is reported through the Migrant Indicators of Compliance (MIC) report generated by KANSASWORKS.com. The MIC and other required information is submitted to USDOL on a quarterly basis using the Labor Exchange Agricultural Reporting System (LEARS).
Required Posters
Federal regulations found at 20 CFR 658.410(d) mandate that state agencies ensure information pertaining to the use of the JS complaint system is publicized. This shall include the prominent display of an ETA-approved JS complaint system poster in each workforce center, satellite or district office, and at each state agency operated day-haul facility.
Posters #1 and #2 are listed by ETA as required according to JS Services Offered to Migrant and Seasonal Farmworkers Federal Review Guide (TAG No. 658-G-1). The Migrant and Seasonal Agricultural Worker Protection Act (MSPA) requires display of poster #3.
1. ETA English/Spanish complaint poster (Kansas equivalent poster available)
2. Equal Employment Opportunity poster required by the Civil Rights Act "Federal Law Prohibits Discrimination by State Employment Offices Based on race, creed, sex or national origin.
3. Migrant and Seasonal Agricultural Worker Protection Act (farmworker rights).
Eligibility and Program Definitions
Any job seeker is eligible for services provided by Wagner-Peyser. After referral to jobs, job seekers must understand that, if hired, they will be required to complete the Immigration and Naturalization Service’s I-9 form which verifies identity and work authorization status. Referrals to other federal or state programs may require the same information before services are provided. Job seekers are to be coded as MSFW using the following definitions:
Seasonal Farmworker: During the preceding 12 months worked at least 25 or more days or parts of days in farmwork; earned at least half of income from farmwork; and was not employed year round by the same employer. Full-time students are excluded.
Migrant Farmworker: During the preceding 12 months worked at least 25 or more days or parts of days in farmwork; earned at least half of income from farmwork; was not employed year round by the same employer; had to travel to the work and was unable to return to permanent residence the same day. Full-time students traveling with groups other than their families are excluded.
Migrant Food Processing Worker: During the preceding 12 months worked at least 25 or more days in food processing; earned at least half of income from food processing work; was not employed year round by the same employer; had to travel to the work and was not able to return to permanent residence the same day. Full-time students traveling with groups other than their families are excluded.
Farmwork: Farmwork includes:
– Cash Grains: Establishments primarily engaged in the production of wheat, rice, corn, etc.
– Agricultural Production: Establishments primarily engaged in beef, hog, poultry, and dairy production.
– Agricultural Services: Establishments primarily engaged in soil preparation, crop planting, crop harvesting, etc.
The following work experience is not considered farmwork:
Establishments primarily engaged in the production of:
– fur and fur bearing animals
– fish farms
– horse farms
– honey production
– laboratory animal farms
– Veterinary services
– animal hospitals
– animal shelters
– pet hospitals
– dog pounds
Program requirements include provision of basic Wagner-Peyser core services and the following additional services: performance of outreach; workforce center monitoring; MSFW advocacy and program coordination; processing agricultural job orders through the Agricultural Recruitment (clearance) System; and maintenance of the Job Service (JS) Complaint System. Provision of services to MSFWs in Kansas is addressed by Workforce Services Policy #4-03-00 (attached).
Basic services to MSFWs through Workforce Development Centers
· Providing brochures and explaining services including counseling, testing, training, referral to job openings (both agricultural and nonagricultural) and the benefits of a full application.
· Issuing pertinent MSFW information – what jobs are available in the local area.
· Obtaining complete work history including employers’ names and dates of employment – 2 years if possible.
· Completing application on each job seeking family member or crewmember. All must have an application before referral to employment.
· Entering all applicable employment codes reflecting work history, training, and education.
· Providing job development, job referral, counseling, and referral to supportive services.
· Accepting and processing MSFW complaints.
THESE ARE NOT SERVICES!
· Referring applicants to a Farm Labor Contractors (crew leaders) unless they have a current Crew Leader Registration Card.
· Accepting job orders from Farm Labor Contractors unless they have a current Crew Leader Registration Card.
· Referring applicants to clearance orders unless the required housing has been inspected and approved according to Federal Regulations.
Outreach Worker and Monitor Advocate Responsibilities
The outreach worker’s primary responsibility is to visit MSFWs and their families not reached through normal intake activities at their living, working, and gathering areas. These activities should result in MSFWs being informed of services available through the workforce centers; the availability of referrals to agricultural and non-agricultural employment and training; support services; as well as the availability of testing, counseling, and other job development services.
Outreach workers should offer to provide on-site assistance in the following services and others as may become necessary:
· Assistance with registering in KANSASWORKS;
· Observe the work and living conditions;
· Referrals to specific employment opportunities;
· Information about upcoming employment opportunities;
· Assistance in the preparation of either JS or non-JS related complaints;
· Receipt and subsequent referral of complaints to the workforce center complaint specialist or manager;
· Referral to supportive services for which the individual or a family member may be eligible; and
· Assistance in making appointments and arranging transportation for individual MSFWs or members of their family to and from workforce centers or other appropriate agencies.
The State Monitor Advocate’s major duties include, but are not limited to the following:
· Ongoing review of the delivery of services and protection afforded by Job Service Regulations;
· Review of the State agency’s annual Agricultural Services Plan;
· Collect and review all daily logs and other reports submitted by outreach workers;
· Serve as an advocate to improve services for MSFWs within the Job Service system; and
· Ensure that outreach efforts are reviewed at least yearly to ensure continued compliance.
Each workforce center must assign a person trained to receive complaints during normal office hours; frequently, this person is the manager. This system is for processing complaints which are Job Service related (against the workforce center itself OR against employers to which workers were referred/placed by the workforce center within the past year) or non-Job Service related (employment was not obtained through a workforce center). All complaints taken by a workforce centers are to be logged onto the center’s Complaint System Log (K-ES 860). The Complaint System Log is transmitted to the State Monitor Advocate on a quarterly basis; specifically, due on the 5th day following the end of each quarter.
Complaints lodged by MSFWs are to be treated as Job Service related complaints regardless of how the worker found the job and must be taken in writing on USDOL Form ETA 8429 One Stop Career Center (OSCC) Complaint/Referral Record and referred to the State Monitor Advocate. Because MSFW jobs are of a temporary nature, all attempts at resolution, including local level resolution, are limited to a five-day time period before elevation to the next highest level.
Complaints alleging discrimination by workforce center staff are to follow their respective LWIA’s Equal Opportunity and Non-Discrimination policies.
Complaints are considered resolved when the:
· Complainant is satisfied with the outcome;
· Complainant chooses not to elevate the complaint to the next level;
· Complainant fails to respond within 40 working days of a written request for information;
· Complainant exhaust the final level of review
· A final determination is made by the enforcement agency that received the complaint.
Questions about how a complaint is to be handles should be referred to the State Monitor Advocate.
The Wagner-Peyser Act requires that the United States Employment Service maintain a system for the orderly movement of workers within and between states. The ARS helps agricultural employers recruit qualified migrant workers on a temporary or seasonal basis. The ARS provides protection to workers who are not seeking permanent relocation, but rather temporary agricultural employment.
The Wagner-Peyser Act provides authority for ARS. Key regulatory provisions can be found at 20 CFR 653.500 – 653.503. Through the ARS, state workforce agencies can systematically recruit and refer qualified workers from within a state and from other states when there is an anticipated shortage of workers. These regulations provide the system for agricultural or food processing clearance orders which request workers for less than one year of employment. Additional information about the ARS can be found at:
· http://www.doleta.gov/programs/ars.cfm
Strong interaction exists between the Wagner-Peyser MSFW Outreach/Monitor Advocate Program and various other federal and state programs and laws, including, but not limited to the following:
H-2A Labor Certification Program
The H-2A program allows employer importation of temporary agricultural workers on a non-immigrant status. Workforce center staff members are responsible for assisting in preparation of job orders, recruitment of local workers, and conducting necessary housing inspections prior to certification by the regional certification officer. In Kansas, Foreign Labor Certification programs, including H-2A, are administered by the Kansas Department of Commerce. The following links provides information detailing the labor certification process.
· http://www.foreignlaborcert.doleta.gov/h-2a.cfm
· Kansas Foreign Labor Certification
Kansas Agricultural Rates
The Administrator of the Office of Workforce Security announces the calendar yearly pay rates, which must be used for interstate clearance orders associated with H-2A job orders. Employers must pay the highest of the Adverse Effect Wage Rate, federal or state minimum wage, or prevailing wage for the work to be performed. Typically, the Adverse Effect Wage Rate is the highest of the three.
Adverse Effect Wage Rate (AEWR)
The AEWR is the minimum wage rate USDOL determines must be offered and paid to U.S. and H-2A visa holders. AEWRs are established to prevent the employment of these aliens from adversely affecting the wages of similarly employed U.S. workers. The current Kansas AEWR is $10.66/hour.
An employer's petition for admission of temporary alien agricultural (H- 2A) workers to perform agricultural labor or services of a temporary or seasonal nature in the United States will not be approved unless the petitioner pays the minimum wage rates announced by USDOL and published in the Federal Register.
· http://www.foreignlaborcert.doleta.gov/adverse.cfm
Special Prevailing Monthly Wage Rates for Custom Combine Harvest Activities
These rates are based on the prevailing wage survey conducted by Kansas and shall be used in writing and evaluating H-2A job orders.
· http://www.foreignlaborcert.doleta.gov/aowl.cfm (select Kansas)
Housing
Employer provided housing must be inspected according to Occupational Safety and Health Administration standards for temporary labor camps found at Standard 1910.142. Job Service local housing inspectors perform all necessary inspections.
· http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=STANDARDS&p_id=9791
Migrant and Seasonal Agricultural Worker Protection Act (MSPA)
MSPA is administered by USDOL’s Wage and Hour Division. The Job Service’s major role in conjunction with MSPA is registration of Farm Labor Contractors (crew leaders) and referral of H-2A related complaints. To date, the United States Employment Service is the sole agent for crew leader registration. Local law enforcement agencies should be used for completion of necessary fingerprint cards. Information about MSPA compliance may be found at the following link.
Instructions for completing Farm Labor Contractor applications can be found at:
· http://www.dol.gov/whd/forms/fts_wh530.htm
Registration of Farm Labor Contractors is also addressed by Kansas Statutes 44 125-129. The text of these statutes is as follows:
Chapter 44.--LABOR AND INDUSTRIES
Article 1.--PROTECTION OF EMPLOYEES
44-125. Definitions. As used in this act, the following words shall have the meaning respectively ascribed to them herein:
(a) "Migrant worker" means any person who is a nonresident of Kansas and who is employed temporarily in agriculturally-related work involving seasonal labor requiring his migration from one area to another in order to gain employment but shall not mean any person who is employed by any custom combine operator.
(b) "Crew chief" means any person, other than an employer, who brings a crew or group of migrant workers into the state of Kansas or is responsible for finding employment for them but shall not mean any custom combine operator.
History: L. 1974, ch. 202, § 1; July 1.
44-126. Wage payment. Any employer employing migrant workers, or any employee of an employer responsible for the payment of wages to migrant workers, shall make such payments directly to the individual worker and no such payment shall be made to a crew chief.
History: L. 1974, ch. 202, § 2; July 1.
44-127. Crew chief registration; information to state employment service. Any crew chief who brings any migrant worker into the state of Kansas or who is responsible for any migrant worker within the state of Kansas shall register with a local Kansas state employment service office. Upon registering, such crew chief shall furnish to such office a list of names and social security numbers of all migrant workers he serves in his capacity as crew chief and the names of those for whom recruitment is being done.
History: L. 1974, ch. 202, § 3; July 1.
44-128. Availability of information furnished. Any information filed with the local Kansas state employment service office pursuant to the provisions of K.S.A. 44-127 shall be made available to the public upon request.
History: L. 1974, ch. 202, § 4; July 1.
44-129. Violation of act. Any violation of this act shall be a class C misdemeanor. Any crew chief found to be in violation of this act shall cease to operate as a crew chief in this state for a period of two (2) years.
History: L. 1974, ch. 202, § 5; July 1.
The NFJP is administered by the USDOL-ETA National Office. Similar to services provided under WIA Employment and Training Services for adult workers, but specific to MSFWs, the mission of this program is to empower migrant and other seasonally-employed farmworkers and their families to achieve economic self-sufficiency by providing services that address their employment related needs. SER Corporation administers this WIA and One-Stop partner program in Kansas. The following link provides information on the NFJP program.
· http://www.doleta.gov/MSFW/html/NFJP.cfm
· http://sercorp.com/
Worker Protection Standards are administered by the Environmental Protection Agency and the Kansas Department of Agriculture. The Job Service’s major role is to accept written complaints pertaining to suspected pesticide-related violations for forwarding to the Kansas Department of Agriculture. The following links provide Federal/State information about Worker Protection Standards.
· http://www.epa.gov/pesticides/health/worker.htm
· http://www.ksda.gov/pesticides_fertilizer/content/168
Kansas Statewide Farmworker Health Program
The Statewide Farmworker Health Program is administered by the Kansas Department of Health and Environment. This program provides primary health services to farmworkers through the State’s county health departments. This voucher program makes use of case managers who provide farmworker clients with holistic health services. The following link provides information about this health program.
· http://www.kdhe.state.ks.us/olrh/FW.html
Community Based Organizations
Harvest America Corporation: http://www.harvestamerica.org/
United Methodist Mexican American Ministries: http://www.ummam.org/
El Centro, Inc.: Welcome2.aspx
Kansas State Programs
Kansas Department of Education – Migrant Education Program: http://www.ksmigrant.org/
KDOL, Employment Standards (enforcement of labor laws):
http://www.dol.ks.gov/es/about.html
Kansas Agricultural Statistics: http://www.nass.usda.gov/Statistics_by_State/Kansas/index.asp
Kansas Hispanic & Latino Affairs Commission: http://www.khlaac.org/
Kansas Attorney General-Human Trafficking:
http://www.ksag.org/page/about-human-trafficking-in-kansas
United States Programs
DOJ, Office of Special Counsel for Immigration Related Unfair Employment Practices: http://www.usdoj.gov/crt/osc/index.html
FBI, Involuntary Servitude/Human Trafficking: http://www.fbi.gov/hq/cid/civilrights/slavery.htm
US Education Migrant Education Programs: http://www.ed.gov/programs/mep/index.html
The National Agricultural Workers Survey: http://www.dol.gov/asp/programs/agworker/naws.htm
Social Security Administration (If You Are a Farmworker): http://www.ssa.gov/pubs/10074.html
For additional information, program training, or an electronic version of this guide contact:
Jenny Tavares, Monitor Advocate
Workforce Compliance and Oversight, Legal Division
Kansas Department of Commerce
1000 S.W. Jackson St., Ste 100
Topeka, KS 66612
(785) 296-5014
Email: jtavares@kansascommerce.com
Note: Links current as of October 21, 2010