Paying for H-2B Worker Transportation

Last year, the U.S. Department of Labor reversed its previous position and now claims that employers are liable for the payment of transportation costs of H-2B employees. A “Field Assistance Bulletin” dated August 21, 2009, providing guidance to Department of Labor inspectors throughout the country asserted that employers were responsible for the transportation costs of their H-2B workers. This was an internal Department of Labor communication and was not accompanied by any announcement or guidance to businesses – and was in direct contradiction to previous DOL policy that clearly stated employers WERE NOT liable for those costs. As a result, the H-2B Workforce Coalition, of which TCIA is a member, contacted the Department of Labor seeking clarification. For almost a year, the coalition received no response to those inquiries.

Finally on July 29, 2010, members of the H-2B Workforce Coalition were able to meet with several department officials to discuss this memo and the policy. While they asked several questions pertaining to the bulletin, department policy, and its application, they were only able to obtain a few solid answers.

The following are some of the answers the coalition was able to obtain:

• The bulletin reflects Department of Labor policy and employers are bound by it.
  
  
• The Department of Labor did not consider the bulletin strictly “internal” but a public document despite the lack of announcement, guidance or other information (They noted that there is a link to the bulletin’s text on DOL’s Web site. It is not easy to find, but can be found at: http://www.dol.gov/whd/FieldBulletins/FieldAssistanceBulletin2009_2.htm
  
  
• There has been no other information provided beyond the bulletin on the policy.
  
  
• There is no current plan to issue any additional information, guidance or fact sheets on the policy for the public and users of the program.
  
  
• Employers are subject to the requirements noted in the bulletin as of the bulletin’s issue date – August 21, 2009.
  
  
• Department of Labor policy holds that employers are obligated to pay for the cost of an H-2B worker’s transportation costs from the worker’s home to the worksite and the return trip home as well.
  
  
• The policy prohibits employers from deducting the cost of an H-2B worker’s transportation costs from the worker’s pay if that deduction reduces the compensation to the H-2B worker to a level below the federal minimum wage. The coalition did not obtain a clear answer on whether those costs could be deducted over the entire term of employment, rather than the first paycheck, if that deduction did not reduce the net pay to a level below the federal minimum wage or if a deduction of a portion of the transportation costs to the level of the federal minimum wage could be made.
  
  
• The Department of Labor did not believe this policy required a rule change or public comments and was merely an interpretation of existing law and regulations.

For more information on the H-2B Workforce Coalition, go to www.h2bworkforcecoalition.com.

Users of the H-2B program should consult with an attorney or other professional that works with the H-2B program in order to ensure they are in compliance with the program’s requirements.

Support Environmental Stewardship and Green Industry Jobs Creation

The Green Industry needs your help to plant millions of trees! The Small Business Environmental Stewardship Assistance Act (H.R. 4509) would reauthorize the Small Business Administration's (SBA) "National Tree Planting Program." Administered by the SBA, this matching grant program would leverage federal resources to allow state forestry agencies to contract with local nurseries, arborists and landscape professionals to plant trees around retail storefronts, rental housing complexes and community parks. During the program's brief existence in the 1990s, more than 18,000 companies were employed to plant more than 23 million trees across the country. These projects created green industry jobs, promoted energy efficiency, contributed invaluable environmental benefits and made retail and commercial areas more appealing.

The program is under consideration for funding again, and we need your help! Passage of H.R. 4509 would reauthorize SBA's National Tree Planting Program at $50 million annually for FY2011 through FY2015. In addition, H.R. 4509 would provide the funding necessary for the costs of administering the program, a past oversight that led to the program's demise over a decade ago. This is our chance to demonstrate that our industry stands ready to deliver on federal investments in green infrastructure. Congress must hear from you, your employees, your colleagues, your family and your friends to make this bill a reality.

A House version of the SBESA Act, H.R. 4509, was introduced by Rep. Kurt Schrader (D-OR) on January 26. Yesterday, Sen. Ron Wyden (D-OR) introduced a Senate version.

Elected representatives listen to messages from voters back in their states. Please see the attached PDF for language you can use and contact your U.S. House or Senate Member today and urge them to support Small Business Environmental Stewardship Assistance Act.

Click here to contact your U.S. Senator     Click here to contact your U.S. Representative 

Support the Sustainable Urban Forests Coalition

The Sustainable Urban Forests Coalition represents arborists, city mayors, community nonprofits, nursery and landscape professionals, urban planners, city managers, public works professionals, utility professionals, foresters, scientists, and others nationwide. We believe that urban and community forests are essential to:

TCIA Hits the road

The third week of July a small but enthusiastic group of TCIA members traveled to Washington to defend the interests of the tree care industry. With a new administration, which brings new people and agendas to the forefront, now is the time to educate government officials on the nature of our profession. From labor concerns to pesticide restrictions, safety regulations and small business survival issues, TCIA member volunteers spent time stalking the halls of Congress on behalf of the industry.

This fifth Legislative Conference, held every two years, was organized in conjunction with the Professional Landcare Network (PLANET), the trade association serving lawn care, landscape management, design/build and interior plantscapers. TCIA and PLANET share concerns on many small business issues - H-2B visas, immigration reform, Employee Free Choice Act, and Healthy Families Act - while some issues are particular to tree care.

Of specific interest this year is TCIA's continuing push for a separate OSHA standard for arboriculture and a continued exemption for some members from the Department of Transportation's Hours of Service rule.

Why we're in Washington

TCIA, through its membership, is organized as a trade association. What does that mean specifically, and how is TCIA different from other groups in the green industry? A trade association is an organization founded and funded by businesses.

TCIA's mission is to "advance tree care businesses". One of the primary ways to protect and advance the industry is through attempts to influence public policy in a direction favorable to our members. TCIA does this with contributions to the campaigns of political candidates through the Voice for Trees political action committee, by supporting or opposing particular legislation, and by working to influence the activities of regulatory bodies such as OSHA.

There are almost 8,000 national trade associations in the United States, but only one represents the interests of the tree care industry.

Thank you to the volunteers who took time from their busy schedules to come to Washington and serve as visible representatives for the industry. No one knows tree care better than the people who run businesses every day, and TCIA - through its dedicated members - will continue to educate Washington on the unique issues and challenges the industry faces.

If you would like learn more about how you can take a more active role in your industry's government relations efforts, please contact Mark Garvin at garvin@tcia.org or by calling (603) 314-5380.

Your Representatives in Washington Will Listen to You

Elected representatives listen to messages from voters back in their states. The ultimate objective is to get our industry organized in a way that will allow fast response to local and national issues.

Click here to contact your U.S. Senator     Click here to contact your U.S. Representative 

Ask Mark

Do you have a question about pending federal legislation? Do you want to know how your representatives voted on issues crucial to commercial tree care? Contact Mark Garvin by clicking here.   

Ask Peter

TCIA provides consultation with members of its staff for free only to members.  If you have questions relevant to the content matter of this part of our Web site, please click here.