§ 655.175 - Post-certification changes to applications for temporary employment certification.

§ 655.175 xxx

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Post-certification changes to applications for temporary employment certification.

(a) No post-certification changes. The Application for Temporary Employment Certification may not be changed after certification, except where authorized in this subpart. The employer is obligated to comply with the terms and conditions of employment contained in the Application for Temporary Employment Certification and job order with respect to all workers recruited in connection with its certification.

(b) Post-certification changes to the first date of work. Where the work under the approved Application for Temporary Employment Certification will not begin on the first date of need certified and will be delayed for a period of no more than 14 calendar days, due to circumstances that could not have been foreseen, and the crops or commodities will be in jeopardy prior to the expiration of an additional recruitment period, the employer need not withdraw an approved Application for Temporary Employment Certification, provided the employer complies with the obligations at paragraphs (b)(1) and (2) of this section.

(1) In the event of a delay, the employer must provide to all workers who are already traveling to the place of employment, upon their arrival and without cost to the workers until work commences, daily subsistence in the same amount required during travel under § 655.122(h)(1), except for days for which the worker receives compensation under paragraph (b)(2)(ii) of this section. The employer must fulfill this subsistence obligation to the worker no later than the first date the worker would have been paid had they begun employment on time. Employers must comply with all other requirements of the certified Application for Temporary Employment Certification beginning on the first date of need certified, including but not limited to housing under § 655.122(d).

(2)

(i) In the event of a delay, the employer must notify the SWA and each worker to be employed under the job order associated with the approved Application for Temporary Employment Certification of the delay at least 10 business days before the certified start date of need. The employer must notify the worker in writing, in a language understood by the worker, as necessary or reasonable, using the contact information the worker provided to the employer. If the worker provides electronic contact information, such as an email address or telephone number, the employer must send notice using that email address and telephone number. The employer may provide telephonic notice, provided the employer also sends written notice using the email or postal address provided by the worker. The employer must retain evidence of such notification under § 655.167(c)(12).

(ii) If the employer fails to provide timely notification required under paragraph (b)(2)(i) of this section to any worker(s), the employer must pay such worker(s) the highest of the hourly rates of pay at § 655.120(a), or, if applicable, the rate required under § 655.211(a)(1), for each hour of the offered work schedule in the job order, for each day that work is delayed, for a period up to 14 calendar days. The employer must fulfill this obligation to the worker no later than the first date the worker would have been paid had they begun employment on time.

(iii) For purposes of an employer's compliance with the three-fourths guarantee under § 655.122(i), any compensation paid to a worker under paragraph (b)(2)(ii) of this section for any workday included within the time period described in § 655.122(i) will be considered hours offered to the worker.

[89 FR 34064, Apr. 29, 2024

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