[Code of Federal Regulations]
[Title 20, Volume 3]
[Revised as of April 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 20CFR653.501]

[Page 442-445]
 
                      TITLE 20--EMPLOYEES' BENEFITS
 
 CHAPTER V--EMPLOYMENT AND TRAINING ADMINISTRATION, DEPARTMENT OF LABOR
 
PART 653--SERVICES OF THE EMPLOYMENT SERVICE SYSTEM--Table of Contents
 
            Subpart F--Agricultural Clearance Order Activity
 
Sec. 653.501  Requirements for accepting and processing clearance orders.

    (a) In view of the statutorily established basic function of the job 
service as a no-fee labor exchange, that is, as a forum for bringing 
together employers and job seekers, neither the ETA nor the State 
agencies are guarantors of the accuracy or truthfulness of information 
contained on job orders submitted by employers. Nor does any job order 
accepted or recruited upon by the JS constitute a contractual job offer 
to which the ETA or a State agency is in any way a party. Nevertheless, 
if the ETA or a State agency discovers that an employer's job order 
contains a material misrepresentation, the procedures of subpart F of 
part 658 of this chapter shall be followed.
    (b) Intrastate and interstate job orders shall include the language 
of the first two sentences of paragraph (a) of this section.
    (c) No local office or State agency shall place into intrastate or 
interstate clearance any job order seeking workers to perform 
agricultural or food processing work before reviewing it pursuant to 
paragraphs (d) or (e) of this section, as applicable.
    (d) No local office shall place a job order seeking workers to 
perform agricultural or food processing work into intrastate clearance 
unless:
    (1) The job order does not contain an unlawful discriminatory 
specification by race, color, religion, national origin, age, sex, or 
mental or physical status unrelated to job performance (handicap);
    (2) The employer has signed the job order and the job order states 
all the material terms and conditions of the employment, including:
    (i) The crop;
    (ii) The nature of the work;
    (iii) The anticipated period and hours of employment;
    (iv) The anticipated starting and ending date of employment and the 
anticipated number of days and hours per week for which work will be 
available;
    (v) An assurance that:
    (A) The employer will provide to workers referred through the 
clearance system the number of hours of work cited in paragraph 
(d)(2)(iv) of this section for the week beginning with the anticipated 
date of need, unless the employer has amended the date of need at least 
10 working days prior to the original date of need (pursuant to 
paragraph (d)(2)(xiii) of this section) by so notifying the order-
holding office. The State agency shall make a record of this 
notification and shall attempt to inform referred migrant workers of the 
change in accordance with the following procedure:
    (B) All workers referred through the clearance system, farm labor 
contractors on behalf of migrant workers or family heads on behalf of 
migrant family members referred through the clearance system shall be 
notified to contact a local job service office, preferably the order-
holding office, to verify the date of need cited no sooner than 9 
working days and no later than 5 working days prior to the original date 
of need cited on the job order; and that failure to do so will 
disqualify the referred migrant worker from the assurance provided in 
paragraphs (a) and (d) of this section.
    (C) If the worker referred through the clearance system contacts a 
local office (in any State) other than the order holding office, that 
local office shall assist the referred worker in contacting the order 
holding office on a timely basis. Such assistance shall include, if 
necessary, contacting the order holding office by telephone or other 
timely means on behalf of the

[[Page 443]]

worker referred through the clearance system.
    (D) If the employer fails to notify the order-holding office at 
least 10 working days prior to the original date of need the employer 
shall pay eligible (pursuant to paragraph (b) of this section) workers 
referred through the clearance system the specified hourly rate of pay, 
or in the absence of a specified hourly rate of pay, the higher of the 
Federal or State minimum wage for the first week starting with the 
originally anticipated date of need.
    (E) Employers may require workers to perform alternative work if the 
guarantee in this section is invoked and if such alternative work is 
stated on the job order.
    (F) For the purposes of this assurance, ``working days'' shall mean 
those days that the order-holding local office is open for public 
business.
    (vi) The hourly wage rate or the piece rate estimated in hourly wage 
rate equivalents for each activity and unit size;
    (vii) Any deductions to be made from wages;
    (viii) A specification of any non-monetary benefits to be provided 
by the employer;
    (ix) Any hours, days or weeks for which work is guaranteed, and, for 
each guaranteed week of work except as provided in paragraph (d)(2)(v) 
of this section, the exclusive manner in which the grarantee may be 
abated due to weather conditions or other acts of God beyond the 
employer's control;
    (x) Any bonus or work incentive payments or other expenses which 
will be paid by the employer in addition to the basic wage rate, 
including the anticipated time period(s) within which such payments will 
be made. No such payments, however, shall be made contingent upon the 
worker continuing employment beyond the period of employment specified 
in the job order or, in the case of any worker with children, beyond the 
time needed to return home for the beginning of the school year;
    (xi) An assurance that no extension of employment beyond the period 
of employment specified in the job order shall relieve the employer from 
paying the wages already earned, or if specified in the job order as a 
term of employment, providing transportation or paying transportation 
expenses to the worker's home;
    (xii) Assurances that the working conditions comply with applicable 
Federal and State minimum wage, child labor, social security, health and 
safety, farm labor contractor registration and other employment-related 
laws;
    (xiii) An assurance that the employer will expeditiously notify the 
order-holding local office or State agency by telephone immediately upon 
learning that a crop is maturing earlier or later, or that weather 
conditions, over-recruitment or other factors have changed the terms and 
conditions of employment. For orders submitted in conjunction with 
requests for foreign workers, an assurance that the employer will 
follow-up the telephone notification in writing.
    (xiv) An assurance that the employer, if acting as a farm labor 
contractor (``FLC'') or farm labor contractor employee (``FLCE'') on the 
order, has a valid FLC certificate or FLCE identification card; and
    (xv) An assurance of the availability of no cost or public housing 
which meets the Federal standards and which is sufficient to house the 
specified number of workers requested through the clearance system. This 
assurance shall cover the availability of housing for only those 
workers, and, when applicable, family members who are unable to return 
to their residence in the same day.
    (xvi) An assurance that outreach workers shall have reasonable 
access to the workers in the conduct of outreach activities pursuant to 
Sec. 653.107.
    (3) The job order contains all the material terms and conditions of 
the job, and the employer assures that all items therein are actual 
conditions of the job by signing the following statement: ``This job 
order describes the actual terms and conditions of the employment being 
offered by me and contains all the material terms and conditions of the 
job'';
    (4) The wages and working conditions offered are not less than the 
prevailing wages and working conditions among similarly employed 
agricultural workers in the area of intended employment

[[Page 444]]

or the applicable Federal or State minimum wage, whichever is higher. If 
the wages offered are expressed as piece rates or as base rates and 
bonuses, the employer shall make the method of calculating the wage and 
supporting materials available to JS staff who shall check if the 
employer's calculation of the estimated hourly wage rate is reasonably 
accurate and is not less than the prevailing wage rate or applicable 
Federal or State minimum wage, whichever is higher;
    (5) The employer has agreed to provide or pay for the transportation 
of the workers and their families on at least the same terms as 
transportation is commonly provided by employers in the area of intended 
employment to agricultural workers and their families recruited from the 
same area of supply;
    (6) JS staff have determined, through a preoccupancy housing 
inspection performed by JS staff or other appropriate public agencies, 
that the housing assured by the employer is in fact available, and meets 
the full set of standards set forth at 20 CFR part 654, subpart E which 
details applicable housing standards and contains provisions for 
conditional access to the clearance system; except that mobile range 
housing for sheepherders shall meet existing Departmental guidelines; 
and
    (7) The local office and employer have attempted and have not been 
able to obtain sufficient workers within the local labor market area, or 
the local office anticipates a shortage of local workers.
    (e) No state agency shall place a job order seeking workers to 
perform agricultural or food processing work with interstate clearance 
unless:
    (1) The job order meets the requirements set forth at paragraphs 
(d)(1) through (d)(6) of this section;
    (2) The State agency and the employer have attempted and have not 
been able to locate sufficient workers within the state, or the State 
agency anticipates a shortage of workers within the State; and
    (3) The order has been reviewed and approved by the ETA regional 
office within 10 working days after receipt from the State agency, and 
the Regional Administrator has approved the areas of supply to which the 
order shall be extended. Any denial by the Regional Administrator shall 
be in writing and set forth the reasons for the denial.
    (f) (1) The local office shall use the agricultural clearance form 
prescribed by ETA, and shall see that all necessary items on the form 
are completed, including items on attachments to the form prescribed by 
ETA.
    (2) (i) The original of an interstate agricultural clearance form 
shall be retained for the order-holding local office files. If the 
clearance order is submitted in conjunction with a request for 
certification of temporary alien agricultural workers, the procedures at 
20 CFR 655.204(a) shall be followed. For other clearance orders, the 
order-holding local office shall transmit a complete copy to the State 
office. The State office shall distribute additional copies of the form 
with all attachments except that the State agency may, at its 
discretion, delegate this distribution to the local office, as follows:
    (A) At least one clear copy to each of the State agencies selected 
for recruitment (areas of supply);
    (B) One copy to each applicant-holding ETA regional office;
    (C) One copy to the order-holding ETA regional office; and
    (D) One copy to the Regional Farm Labor Coordinated Enforcement 
Committee in the area of employment, Attn: ESA Regional Administrator.
    (ii) Applicant-holding offices shall provide workers referred on 
clearance orders with a checklist summarizing wages, working conditions 
and other material specifications on the job order. Such checklists, 
where necessary, shall be in English and Spanish. The checklist shall 
include language notifying the worker that a copy of the complete order 
is available for inspection. One copy of the form with all attachments 
shall be available for inspection in the applicant-holding office and 
the order-holding office. State agencies shall use a standard checklist 
format provided by ETA unless a variance has been approved by the 
Regional Administrator.
    (iii) The applicant-holding office shall give each referred worker a 
copy

[[Page 445]]

of a description of worker's rights developed by the National Farm Labor 
Coordinated Enforcement Committee.
    (g) The local office may place an intrastate or interstate order 
seeking workers to perform agricultural or food processing work for a 
specific farm labor contractor or worker preferred by the employer 
provided the order meets JS nondiscrimination criteria. The order would 
not meet such criteria, for example, if it requested a ``white male crew 
leader'' or ``any white male crew leader.''
    (h) In local offices which have been designated significant MSFW 
bilingual offices by ETA, and in any other local office with bilingual 
staff, bilingual (English-Spanish) staff shall assist all agricultural 
workers, upon request, to understand the terms and conditions of 
employment set forth in intrastate and interstate job orders and shall 
provide such workers with checklists in Spanish showing wage payment 
schedules, working conditions and other material specifications of the 
job order.
    (i) No agricultural or food processing order shall be included in 
job bank listings available outside the local office commuting area 
unless the order has been processed according to requirements for 
intrastate or interstate clearance contained in this subpart. If the job 
bank for the local office area incorporates offices beyond the local 
office commuting area, the order may be included in the listing but must 
be clearly designated as prohibiting referral from outside the community 
area, unless the requirements of this subpart are met.
    (j) If the labor supply State agency accepts a clearance order, the 
State agency shall actively recruit workers for referral. In the event a 
potential labor supply State agency rejects a clearance order, the 
reasons for rejection shall be documented and submitted to the Regional 
Administrator having jurisdiction over the State agency. The Regional 
Administrator will examine the reasons for rejection, and, if the 
Regional Administrator agrees, will inform the Regional Administrator 
with jurisdiction over the order-holding State agency of the rejection 
and the justifiable reasons. If the Regional Administrator who receives 
the notification of rejection does not concur with the reasons for 
rejection, that Regional Administrator will so inform the USES 
Administrator, who will make a final determination on the acceptance or 
rejection of the order.

(Approved by the Office of Management and Budget under control number 
1205-0039)

(Pub. L. No. 96-511, 94 Stat. 2812 (44 U.S.C. 3501 et seq.))

[45 FR 39466, June 10, 1980, as amended at 47 FR 145, Jan. 5, 1982]