ENGROSSED SECOND SUBSTITUTE SENATE BILL 5438

BySenate Ways & Means (originally sponsored by Senators McCoy, Saldaña, Conway, Van De Wege, Keiser, Rolfes, Wellman, Dhingra, Hasegawa, and Kuderer; by request of Employment Security Department)

AN ACT Relating to establishing the office of agricultural and seasonal workforce services within the employment security department; and adding a new chapter to Title 50 RCW.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

The legislature declares it to be in the public interest to clarify the state's role in the H-2A temporary agricultural program to provide adequate protections for foreign and domestic workers and provide education and outreach opportunities to help growers maintain the stable workforce they need.

(1) "Commissioner" means the commissioner of the employment security department.

(2) "Department" means the employment security department.

(3) "Employer" has the same meaning as in 20 C.F.R. Sec. 655.103. "Employer" also includes a "fixed-site employer," as defined in 20 C.F.R. Sec. 655.103, and an employer in a "joint employment" relationship, as defined in 20 C.F.R. Sec. 655.103.

(4) "Field check" means an unannounced inspection and audit of an employer to determine and document whether the employer is providing wages, hours, and working and housing conditions as specified in the employer's approved H-2A application, as required by the United States department of labor.

(5) "Field visit" means a scheduled visit to an employer's premises where H-2A workers work, live, and gather to discuss employment services and other employment-related programs with workers, as required by the United States department of labor.

(6) "H-2A application" means an agricultural food processing clearance order form ETA 790 that describes the material terms and conditions of employment and is submitted in connection with a future application for temporary employment certification for H-2A workers to the United States department of labor under 20 C.F.R. Part 655, as amended.

(7) "H-2A worker" means any temporary foreign worker who is lawfully present in the United States to perform agricultural labor or services of a temporary or seasonal nature pursuant to Title 8 U.S.C. Sec. 1101(a)(15)(H)(ii)(a) of the immigration and nationality act, as amended.

(8) "Office" means the office of agricultural and seasonal workforce services established in section 3 of this act.

(2) The duties of the office include:

(a) Processing and adjudicating foreign labor certification applications from employers;

(b) Processing complaints consistent with 20 C.F.R. Part 658, Subpart E;

(c) Conducting field checks and field visits, as required by the United States department of labor. When conducting a field check, the office shall coordinate, to the extent possible, with the department of labor and industries, department of health, and department of agriculture in order to limit disruption to agricultural employers and efficiently use government resources;

(d) Administering the discontinuation and reinstatement of services process pursuant to 20 C.F.R. Part 658, Subpart F;

(e) Conducting training and outreach activities to employers who are using agricultural and seasonal workforce services and programs within the employment security department; and

(f) If necessary, collecting money in accordance with section 4 of this act.

(2)(a) For the 2019-2021 biennium, the office will be funded by an additional appropriation from the funds established in RCW 50.24.014.

(b) Prior to the end of the 2019-2021 biennium, the department will analyze the costs incurred by the office to administer the H-2A program, and the amount of funds allocated by the federal government to administer the H-2A program. If the federal funds are not sufficient to meet the department's statutory obligations, the department will formulate and adopt rules to implement fees to cover the cost of administering the H-2A program.

(c) The department may establish fees for each H-2A application submitted to the department and an additional fee per requested H-2A worker. Any fee per requested H-2A worker must be waived for the first ten workers requested per employer each year. Any fee established per requested H-2A worker shall not exceed seventy-five dollars per requested H-2A worker. Any flat fee established per application submitted to the department shall not exceed five hundred dollars. The dollar amounts specified in this subsection shall be annually adjusted for inflation.

(3) If the department establishes a fee, then the department must:

(a) Consider the input of the advisory committee established in section 6 of this act;

(b) Annually readjust the fees through the formal rule-making process based on:

(i) An analysis of the costs incurred by the office to administer the H-2A program; and

(ii) The amount of funds allocated by the federal government to administer the H-2A program;

(c) Adopt the rule setting the annual fees by April 30th of each year, and the rule must stay in effect for the whole next fiscal year;

(d) Structure any fee to include:

(i) A scale with varied fees per worker at certain breakpoints to show consideration for economics of scale for larger requests;

(ii) Provisions for discounted rates for employers who have a track record of compliance with the requirements of the H-2A program;

(iii) A process for employers to request reimbursement from the department for any requested H-2A worker fees paid for workers that were not federally certified; and

(iv) Other factors as determined by the department;

(e) Not set fees that are expected to result in revenues in any year in excess of the projected difference between the federal funds allocated and the costs to administer the H-2A program.

(4) If a fee is collected under this section, the department will make the most effective and efficient use of the fees. The department may not use fees collected under this section to pay for any activity that is not specified in the United States department of labor annual H-2A funding grant.

(1) Employer does not pay any fees established in section 4 of this act;

(2) Employer refuses to agree to be subject to field checks and field visits; or

(3) Department discontinued services to the employer pursuant to 20 C.F.R. Part 658, Subpart F and that discontinuation remains in effect.

(2)(a) The committee is composed of eight voting members:

(i) Four voting members representing agricultural workers' interests: One of whom shall be a farmworker; and all of whom shall be appointed from a list of at least four names submitted by a recognized statewide organization of workers;

(ii) Four voting members representing agricultural employers: One of whom shall be an agricultural employer; and all of whom shall be appointed from a list of at least four names submitted by a recognized statewide organization of agricultural employers; and

(iii) One ex officio member, without a vote, shall represent the department and serve as the chair.

(b) The department of labor and industries, department of health, and department of agriculture shall each have one nonvoting ex officio member serve on the advisory committee.

(3) On issues and topics of interest related to this chapter, including the department's assessment of their administrative costs in section 4 of this act, the committee shall provide comment on department rule making, policies, implementation of this chapter, and initiatives, and study issues the committee determines require consideration.

(4) In even years, the committee shall submit a report to the governor and the legislature by October 31st that:

(a) Identifies and recommends approaches to increase the effectiveness of the employment security department's recruitment process as part of the H-2A application. If deemed advisable by the committee, the report may include recommended changes to state law that would lead to increased recruitment and hiring of domestic workers in agricultural employment in Washington; and

(b) Analyzes the costs incurred by the office to administer the H-2A program, the funds to administer other department programs for farmworkers, and the amount of funds allocated by the federal government to administer the H-2A program and all other agricultural programs within the department.

(5) The committee members shall serve without compensation, but are entitled to reimbursement for travel expenses as provided in RCW 43.03.050 and 43.03.060. The committee may utilize department personnel and facilities as it needs, without charge. All committee expenses must be paid by the H-2A enforcement account.

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