ESD Administration of the H-2A Temporary Worker Visa Program

Executive summary

The 2022 Supplemental Budget directed JLARC to conduct a performance audit of the Employment Security Department’s (ESD) administration of the H-2A Temporary Farmworker Visa program (H-2A program). The study evaluates whether ESD administers H-2A program activities in compliance with federal and state law. It does not evaluate the underlying federal H-2A rules and programs.

States administer aspects of the federal H-2A program

The federal H-2A program allows U.S. agricultural employers to hire foreign workers on a temporary basis when there are insufficient U.S. farmworkers available.

While federal agencies have overall program responsibility, states administer some aspects of the program. This includes processing job orders, recruiting U.S. farmworkers, certifying temporary worker housing, and checking employer compliance. In Washington, ESD does this work.

ESD complies with federal H-2A program regulations and applies many best practices

JLARC staff reviewed federal requirements and program documentation such as job orders and ESD data. JLARC staff also interviewed relevant staff from ESD, U.S. Department of Labor, California, North Carolina, Oregon, and Georgia. JLARC also interviewed farmworkers advocates and employers.

• ESD's work complies with relevant federal rules.
• Washington's H-2A processes are like those in other states for processing job orders and recruiting U.S. workers.
• Washington's use of a dedicated compliance office, advisory committee, and state funding are leading practices.

• Like other states and in keeping with best practice, ESD conducts its recruiting and outreach work in languages used by farmworkers. This is primarily English and Spanish; translation is available for other languages. Outreach staff are bilingual in English and Spanish.

Few U.S. farmworkers are hired for the jobs in Washington. Reasons include federal rules that pose barriers to ESD's recruitment efforts.

Before a Washington employer can hire foreign farmworkers, it must work with ESD to recruit U.S. farmworkers. Federal law requires employers to hire all qualified, able, willing, and available U.S. farmworkers before filling those jobs with foreign workers. In 2022, only 11 U.S. farmworkers were placed on Washington H-2A job orders. This is consistent with national rates.

There are many reasons U.S. farmworkers do not apply for the positions. Three federal rules may pose barriers to recruitment. First, federal rules require employers to use the state's system, which relies heavily on online tools. Timing is also an issue; employers must send the job order 60 to 75 days before the work starts. Finally, federal regulations require ESD to redact the employer's name from the job order. This can slow the hiring process and workers often want to know which employer they might work for.

ESD dramatically increased its outreach in 2022, contributing to a rise in farmworker complaints and apparent violations

In 2021, ESD conducted 24 site visits and contacted approximately 3,500 H-2A farmworkers. In 2022, ESD fully staffed the unit responsible for site visits, conducted 566 site visits, and contacted approximately 25,300 H-2A farmworkers.

A site visit is a scheduled visit to H-2A worksites to:

• Help H-2A farmworkers understand their rights and the terms of their contract with the employer.
• Observe the working and living conditions of workers and, if needed, identify apparent violations.
• Provide contact information to each farmworker so they can share concerns, ask questions, or submit complaints.

ESD’s increase in site visits likely contributed to an increase in complaints filed by workers and apparent violations. In 2021, there were seven total complaints and apparent violations. In 2022, there were 87.

ESD resolved 69% of complaints and apparent violations informally, as directed by federal regulation. The remaining 31% were either ineligible by law for informal resolution or were referred to the appropriate enforcement agency.

Figure 1: Site visits and complaints rose in 2022

Source: ESD data.

ESD trains employers and has taken steps to coordinate with other agencies

Program compliance starts with employer training. As directed by state law, ESD conducts training and outreach activities for employers who use the H-2A program and services. 

In 2019, the Legislature created the Agricultural and Seasonal Workforce Services office within ESD. Since then, interagency coordination has increased. For example, ESD collaborates with the Departments of Health (DOH) and Labor and Industries (L&I) to ensure farmworker housing meets safety and health standards. L&I also has started to participate in ESD site visits.

The Agricultural and Seasonal Workforce Services Committee also helps ESD to improve U.S. farmworker recruitment, and prioritize interagency coordination on compliance, enforcement, and data sharing.

ESD does not coordinate field checks as required by state law

State law requires ESD to coordinate with L&I, DOH, and the Department of Agriculture (WSDA) when conducting field checks. Coordination should be done to the extent possible and to limit disruptions to employers.

ESD reports that it intends to develop an interagency agreement that will allow L&I to participate in field checks with ESD staff. It currently has no immediate plans to develop an agreement with DOH and WSDA.

Legislative Auditor's recommendation

ESD should work with DOH, L&I, and WSDA to provide a plan for determining interagency coordination for field checks.

You can find additional information in the Recommendations section.

Part 1.
H-2A in Washington

Washington is home to approximately 5,600 farms. Most need temporary agricultural workers throughout each year. Agricultural employers that cannot meet their labor demands by hiring U.S. farmworkers can use the federal H-2A Temporary Agricultural Visa program (H-2A program) to hire foreign farmworkers.

Employers may hire foreign workers if two conditions are met

Applications for the program must meet two conditions:

1. The U.S. Department of Labor (U.S. DOL) must be able to certify a labor shortage.
   • This means that not enough qualified, able, willing, and available U.S. farmworkers have applied for the jobs listed in the employer’s application. The employer must recruit U.S. farmworkers directly and use the state’s agricultural recruitment system.
2. Use of the H-2A program cannot adversely affect U.S. farmworkers.
   • Employers must show that they offer U.S. farmworkers the same or better wages and working conditions as they offer to H-2A farmworkers.

Use of the H-2A program has grown in Washington and the nation

Washington employers' use of the H-2A program has grown significantly over the past decade.

• In 2013, U.S. DOL certified applications representing 6,349 visas requested by Washington employers. In 2022, U.S. DOL approved 33,049, a 420% increase.
• Nationally, U.S. DOL certified applications representing 98,821 visas in 2013. This increased to 371,619 in 2022, a 276% increase.

Today, Washington ranks among the top five states using the H-2A program. The others are Florida, California, Georgia, and North Carolina.

Figure 2: The number of H-2A visas approved for Washington employers increased 420% from 2013 to 2022.

Source: U.S. DOL H-2A performance data 2013-2022.

Federal agencies set the rules for and implement the H-2A program

U.S. DOL is the primary federal agency responsible for the parts of the program relevant to this study. It processes applications from agricultural employers and, if they meet conditions, provides a labor certification. U.S. DOL also enforces wage, health, and safety compliance after the foreign workers are in the country.

Three other federal agencies also are involved. The U.S. Citizenship and Immigrations Service (USCIS) approves employer requests for H-2A visas, the U.S. Department of State issues H-2A visas, and the U.S. Customs and Border Control admits foreign workers. Employers must submit documents and work with each federal agency in turn.

ESD administers state-level H-2A program activities in Washington

While federal agencies are responsible for overall administration, states carry out some aspects of the program.

The Employment Security Department's (ESD) responsibilities include reviewing and approving job orders, recruiting U.S. farmworkers, certifying the safety and availability of worker housing, conducting program outreach, and ensuring employer compliance. ESD receives federal funding from multiple sources to carry out this work. Since 2019, the Legislature also has authorized state funding to support increased compliance activities. ESD also completes an annual wage survey.

The Legislature established the Office of Agricultural and Seasonal Workforce Services within ESD to carry out the state’s responsibilities under the federal H-2A program. While this office has primary responsibility, it works with other ESD divisions and the Agricultural and Seasonal Workforce Services Committee to complete the work.

Figure 3: ESD has responsibilities at the beginning of the H-2A application process and once foreign workers are in the state

Source: JLARC staff analyses of program documentation.

ESD manages the Agricultural and Seasonal Workforce Services Committee established in statute

In 2019, the Legislature directed ESD to establish the Agricultural and Seasonal Workforce Services Committee (committee). This advisory committee includes four worker and four employer representatives. ESD chairs the committee, and the Departments of Health (DOH), Agriculture (WSDA), and Labor and Industries (L&I) participate as ex-officio members. The committee's top priority is increasing recruitment of U.S. farmworkers to agricultural labor jobs. It also provides an effective forum for discussing other shared concerns.

The committee:

• Advises ESD about H-2A rules and policies, such as U.S. farmworker recruitment, coordination with state and federal agencies, and federal rulemaking. Other issues, such as health and safety protections related to heat and smoke, also have been discussed.
• Reviews H-2A program data such as job order processing, compliance, and outreach.
• Helps ESD prioritize efforts to improve interagency coordination on compliance, enforcement, and data sharing.
• Issues biennial reports that provide recommendations for improving the H-2A program in Washington and an analysis of costs to administer the H-2A program.

Washington's H-2A processes are consistent with other states

JLARC staff interviewed staff from the U.S. DOL's Office of Foreign Labor Certification, reviewed documentation from other states, and interviewed H-2A staff in California, North Carolina, Oregon, and Georgia. Washington's processes are like those in other states for processing job orders and recruiting U.S. workers.

Washington sets leading practices in some areas

Peer states and U.S. DOL view Washington as a leader in some areas. Washington is the only state with:

• A dedicated compliance office that conducts site visits and field checks and investigates complaints filed by workers. Other states work with enforcement agencies to conduct this work.
• A permanent advisory committee to provide input and recommendations related to the state's H-2A program and policies. The committee provides an avenue for labor, employers, and state agencies to discuss concerns and collaborate on solutions.

Additionally, Washington is among a small number of states that provide state funding to support enhanced H-2A program compliance activities.

WSIPP studying needs of farmworkers

The 2022 Legislature directed the Washington State Institute for Public Policy (WSIPP) to study the needs of farmworkers in the state. The study is intended to help policymakers determine if the needs are being met by state-administered programs, policies, and statutes. A preliminary report was delivered to the Legislature on December 1, 2023. A final report is due by June 30, 2025.

Part 2.
Job order processing and U.S. farmworker recruitment

Employers may hire foreign workers if two conditions are met.

1. U.S. DOL must be able to certify a labor shortage. This means that not enough qualified, able, willing, and available U.S. farmworkers have applied for the jobs listed in the employer's application. The employer must recruit U.S. farmworkers and use the state’s agricultural recruitment system.
2. Use of the H-2A program cannot adversely affect U.S. farmworkers. Employers must show that they offer U.S. farmworkers either the same or better wages and working conditions as they offer to H-2A farmworkers.

ESD reviews job recruitment requests from employers (job orders) and recruits U.S. farmworkers for the available jobs. JLARC staff reviewed federal requirements, 2022 job orders, and program documentation, and interviewed ESD staff. JLARC staff also interviewed farmworker advocates and employers. Based on this research, JLARC staff believe that ESD's work complies with relevant federal rules.

ESD complies with federal requirements to process job orders from employers

Before an employer submits the H-2A application to DOL, it must search for U.S. farmworkers who are qualified, willing, able, and available to do the work.

The employer starts by sending a job order to ESD. A job order lists the positions an employer needs to fill, the relevant dates and duties, and other information about wages and working conditions. As required by DOL, ESD:

• Confirms that the job order is complete, accurate, and meets federal requirements.
• Ensures the wages and benefits offered to U.S. farmworkers are the same or better than those that will be offered to H-2A workers.
• Notifies the employer if corrections are needed.
• Sends the employer a Notice of Acceptance and notifies DOL.
• Begins recruiting U.S. farmworkers.

In 2022, ESD reviewed and approved 366 job orders. All were reviewed within seven days, as required.

ESD uses culturally appropriate outreach to recruit U.S. farmworkers to available jobs

ESD sends approved job orders to one of 13 designated WorkSource offices. These offices are in areas that serve a high percentage of the state's agricultural workers.

Each office has:

• ESD staff who have specialized training in H-2A recruitment and referrals.
• Spanish- and English-speaking staff.
• Translation services for job seekers who speak languages other than English or Spanish.

ESD posts the jobs on WorkSourceWA.com, the state's job search tool. Job applicants within Washington and around the country can see and apply for the jobs.

ESD also uses leading practices for culturally appropriate outreach when recruiting farmworkers. These practices are identified in both academic literature and state and federal guides. For example, it advertises H-2A jobs locally in ways that are appropriate to the nearby farmworker community. This includes local Spanish-language radio stations and newspapers. ESD's farmworker outreach staff attend local community events and promote jobs at locations frequented by the agricultural worker community (e.g., housing, worksites, and community centers). Outreach staff also may connect local farmworkers with support services such as training, transportation, and childcare.

ESD follows federal regulations for referring U.S. farmworkers for work on H-2A job orders

Applicants can apply for jobs online or in person at WorkSource offices where staff help them complete their application. ESD staff meet with each qualified applicant to review the job's wages, requirements, and conditions. They refer the applicant to the employer for an interview. ESD staff also may help the applicant prepare for an interview with prospective employers.

H-2A regulations require employers to hire all qualified, able, willing, and available U.S. farmworkers. ESD staff follow up on all referrals to find out whether the applicant was hired and, if not, why. However, not all employers or job applicants update ESD after the interview. ESD has increased its efforts to document these outcomes.

ESD reports all referrals to U.S. DOL regardless of whether the applicant was hired. Employers also must report their own recruitment activities to U.S. DOL. This requirement lasts until half of the time of the job order has elapsed. However, U.S. DOL does not require employers to share the reports with ESD.

ESD's U.S. farmworker placement rates on H-2A job orders are low but consistent with national rates

ESD reports that between January 1 and September 12, 2022, Washington employers hired 11 of the 455 U.S. farmworkers who applied for positions listed on H-2A job orders. According to ESD, the unsuccessful applicants either:

• Did not meet criteria for being able, willing, and qualified,
• Were ineligible foreign workers, or
• Did not show up for the interview.

In comparison, the U.S. DOL National Monitor Advocate reports that from July 1, 2020, through June 30, 2021, a total of 68 U.S. farmworkers were hired for positions on agricultural clearance orders nationwide.

JLARC staff contacted state agencies responsible for H-2A implementation in California, North Carolina, Georgia, and Oregon. They also report difficulty recruiting U. S. farmworkers. Like Washington, they report connecting directly with workers to educate them about positions listed on job orders and building trust to increase recruitment. Similarly, other states also provide materials in both Spanish and English and have bilingual staff.

There are many reasons U.S. farmworkers do not apply for the positions. Some federal rules may pose barriers to recruitment.

Researchers, advocates, employers, and farmworkers report that there are many reasons that U.S. farmworkers do not hold the positions listed on H-2A job orders. The Agricultural and Seasonal Workforce Services Committee highlighted several barriers to effective recruitment, including the following examples.

1. Recruitment system: Federal rules require that employers must use the state’s agricultural recruitment system in addition to recruiting workers directly. However, Washington's agricultural recruitment system relies heavily on its online job search tool. The tool requires job seekers to upload a resume and create accounts with both the state and WorkSource. This requires computer skills and access that many farmworkers may not have. Job applicants who choose not to use the online system can apply for jobs in person at any WorkSource office, where staff can help them through the application process.

2. Timing: Employers must send the job order to ESD 60 to 75 days before the work starts according to federal rules. However, farmworkers and employers report that hiring for farm labor typically occurs when the job becomes available. Requiring a farmworker to accept a job weeks or months before the start date is not a typical practice in Washington and may increase the risk that the worker will not be available when the work begins. The committee also noted that the requirement to commit to the full term of an H-2A job has a discouraging effect because it may limit a farmworker's mobility within the job market.

3. Information: Federal rules require ESD to redact the employer’s name on H-2A job orders. This requires ESD to accept all job applications, review them, and pass along qualified candidates to the employer. The committee reports U.S. farmworkers have expressed an interest in knowing which employer they are applying to. In addition, having ESD, rather than the employer, manage the recruitment slows the hiring process. Following a recommendation of the Advisory Committee, ESD requested a waiver from this requirement. U.S. DOL denied the request.

ESD expects its Customer Experience Study will provide further insights about barriers to U.S. farmworker recruitment

The committee addressed U.S. farmworker recruitment in its two biennial reports. The 2020 report included several recommendations to ESD for improving U.S. farmworker recruitment.

ESD is working to implement each of these recommendations. For example, the committee recommended that ESD conduct a customer experience study. In response, ESD initiated a study in 2022 to better understand what factors impede the recruitment process from farmworkers' and employers' perspectives. ESD reports that it will use the results to inform agency strategies for improving placement of U.S. farmworkers on temporary agricultural jobs.

ESD conducts annual prevailing wage surveys according to federal requirements

States may conduct an annual prevailing wage and practice survey. If they do, they must follow U.S. DOL requirements. The survey helps U.S. DOL establish prevailing wages in agriculture. It is intended to keep the wages of U.S. farmworkers from being adversely affected by an employer’s use of the H-2A program.

ESD follows federal requirements and surveys farmworkers of small, medium, and large employers. It also surveys those who work with specific crops such as apples, pears, and cherries.

In 2022, the employer response rate in Washington was 29%. Employer participation in the surveys is voluntary, which may contribute to the low response rate. Other states that conduct a prevailing wage or practice survey also report low response rates from employers.

Part 3.
Temporary worker housing

The H-2A program requires employers to provide housing at no cost to H-2A workers and qualifying U.S. farmworkers.

ESD certifies that an employer's housing is safe and available

Before U.S. DOL approves an H-2A application, the employer must demonstrate they have sufficient and safe housing for the H-2A farmworkers. ESD certifies to U.S. DOL that the employer's temporary farmworker housing is sufficient for the number of workers, available for the period of the work, and meets health and safety standards. Sufficiency and availability are validated during the job order review process. Pre-occupancy physical inspections validate that the facilities meet health and safety standards.

DOH and L&I inspect housing before ESD certifies it

Although ESD is responsible for certification, DOH and L&I share responsibility for inspecting temporary worker housing. They do this work under a memorandum of understanding.

• DOH inspects all temporary worker housing that has more than four units or that houses more than nine occupants. Under Washington law, it is also responsible for licensing these facilities. As of November 2023, there were 557 licensed temporary worker housing facilities in Washington.
• L&I conducts pre-occupancy inspections for facilities that house nine or fewer occupants. In 2022, L&I conducted approximately 30 pre-occupancy inspections.

Both DOH and L&I use Washington's state safety and health standards as the basis of their inspections. In the future, U.S. DOL will require the state to certify H-2A temporary worker housing using federal standards. State and local health and safety requirements will continue to apply. While these are similar to Washington's standards, DOH and L&I are identifying differences that they will need to incorporate into their agencies' inspection standards for facilities housing H-2A workers.

Roles related to inspecting housing for small groups of workers are unclear

Occasionally, an employer houses ten or more people across multiple housing facilities that are near each other. As a result, each facility may have nine or fewer occupants. This has created some confusion about whether the facilities must be licensed as temporary worker housing.

• For example, if an employer hires 14 farmworkers and houses them in one facility, it would need to be licensed because it houses more than nine people. If an employer houses the same 14 farmworkers in two facilities, the housing may not meet the licensing threshold.

If an employer learns late in the H-2A application process that their housing will need a license, it could slow the H-2A approval process. As a result, an employer may need to find alternative housing while the process is proceeding. Federal agencies might not approve the employer for H-2A visas until the issue is resolved. While this affects only a small number of H-2A agricultural employers (data indicates eight or fewer in 2022), it can have a significant impact for those employers.

ESD, DOH, and L&I are working to address this ambiguity and are reviewing a draft process.

Hotels and motels used to house H-2A workers must be licensed as temporary worker housing

Some agricultural employers use hotels and motels as temporary worker housing. In some cases, the entire facility is closed to the public and converted to farmworker housing. In November 2023, ESD reported that 19 hotels or motels were being used as temporary worker housing.

DOH currently licenses these facilities only as hotels or motels. They are not licensed as temporary worker housing. As a result, certain standards such as minimum square footage per occupant and availability of personal storage have not been evaluated during the pre-occupancy inspection.

DOH reports that in January 2024 it will begin implementing a new agency policy. The policy will require hotels and motels to comply with temporary worker housing standards and be licensed as a temporary worker housing facility before they can house H-2A farmworkers.

Part 4.
Outreach and site visits

ESD also has responsibilities once H-2A farmworkers are in the state. This includes educating workers about their rights and responsibilities.

ESD contacts workers during site visits

ESD conducts site visits with H-2A farmworkers to build rapport and explain ESD's work. The agency schedules site visits in advance, and the visits usually last between 15 and 20 minutes.

During a site visit, ESD staff:

• Help H-2A farmworkers understand their rights and the terms of their contract with the employer.
• Observe the working and living conditions of workers and may identify apparent violations.
• Explain ESD's complaint system.
• Provide contact information to each farmworker so they can share concerns, ask questions, or submit complaints.

ESD follows leading practices identified in literature when providing services to culturally and ethnically diverse communities. Outreach staff conduct site visits at worksites and at worker housing, in the language spoken by farmworkers, which is primarily Spanish. Information on workers' rights is provided in English and Spanish; it can be translated into other languages. Workers can file complaints in their preferred language and ESD has internal policies that align with leading practices to ensure clients of all backgrounds and preferred languages are served effectively and equitably.

ESD completed at least one site visit for each H-2A job order in 2022

In 2021, ESD conducted 24 site visits and contacted approximately 3,500 farmworkers.

In 2022, ESD fully staffed the unit responsible for site visits. It also set a goal to conduct at least one site visit on every H-2A job order. It conducted 566 site visits and contacted approximately 25,300 farmworkers. In doing so, ESD met its goal (some job orders include multiple worksites).

Figure 4: ESD conducted 566 site visits in 2022

Note: H-2A farmworkers hired by Washington employers also worked in four locations in Oregon. ESD conducted site visits to these farmworkers as well.

Source: JLARC staff analysis of ESD data.

ESD coordinates site visits with L&I

In 2022, ESD responded to a recommendation from employers and developed a pilot project to coordinate site visits with L&I. L&I staff visit farms to inform farmworkers of L&I programs and services. During the joint visits, staff from each agency provide information and resources to workers and employers. The pilot program, which was limited to counties in northwest Washington, was well received by workers and employers. ESD reported having L&I staff at 36 site visits in 2022.

In 2023, ESD and L&I developed an interagency agreement that expanded the pilot program to the whole state.

Part 5.
Compliance and field checks

As directed by state law, ESD conducts training and outreach activities for employers who use the H-2A program and services. ESD follows many leading strategies to help employers comply with the H-2A program. Examples include:

• ESD helped organize a forum to help employers better understand the H-2A process in 2023. The forum also addressed approaches employers could use to help ensure that they comply with H-2A requirements.
• ESD attends employer association events to share information about the H-2A program and ESD's role.
• During site visits, ESD staff give employers information about program requirements and compliance resources.
• ESD uses a mix of strategies to informally resolve complaints and apparent violations.

ESD checks employer compliance based on complaints, observations, and field checks

ESD ensures compliance by processing complaints and apparent violations and conducting field checks. It does this work consistent with federal requirements.

• Complaints: Farmworkers can file complaints directly with ESD.
• Apparent Violations: ESD staff observes, has reason to believe, or receives information about a suspected violation.
• Field Checks:

  ESD conducted 10 field checks in 2022.

  A random, unannounced visit by ESD at a worksite where a U.S. farmworker is hired to do the work on an H-2A job order. The purpose is to ensure that the wages, benefits, and working conditions are as stated on the job order. ESD staff also ensure that the employer is not violating employment laws. The field check includes interviews with farmworkers.

Federal requirements direct ESD to resolve issues informally when possible

If a complaint alleges that an employer is not complying with H-2A program requirements, ESD will try to informally resolve the issue unless the allegation is ineligible for resolution per federal law.

ESD informally resolved 69% of complaints and apparent violations in 2022. For example, one complaint stated that an employer was not paying the correct wages to farmworkers. ESD informally resolved the complaint with the employer and the employer reimbursed workers a total of $60,800. Complaints that were not resolved informally were either ineligible or referred to the appropriate enforcement agency.

ESD sends other issues to enforcement agencies for investigation

If ESD is unable to reach informal resolution, the complaint is ineligible for informal resolution, or the farmworker does not want it, the agency sends the complaint to the appropriate state or federal enforcement agency (e.g., L&I's division of occupational safety and health or DOL's wage and hour division) for investigation. ESD refers all complaints involving discrimination or sexual harassment to an enforcement agency such as the Equal Employment Opportunity Commission.

Federal requirements outline procedures for failure to comply

If an employer remains out of compliance with H-2A program requirements, ESD may initiate discontinuation of services procedures per federal requirements. The procedures give employers the opportunity to correct the deficiency within 20 working days. Failure to do so could affect participation in the H-2A program. For example, an employer could be barred from participating in the H-2A program for a period of time. ESD initiated a discontinuation of services for one employer in 2022.

Complaints and apparent violations increased in 2022

Figure 5: Complaints and apparent violations increased Source: ESD data.

ESD’s increase in site visits likely contributed to an increase in the number of complaints filed by H-2A workers and apparent violations identified by ESD.

• In 2021, there were seven total complaints and apparent violations. In 2022, there were 87.
• Complaints and apparent violations related to wages were the most common issue (29%) in 2022. Other common issues were related to housing, harassment, transportation cost reimbursement, and incomplete pay records.

In 2022, ESD began tracking complaint and apparent violation data. It currently uses the data to improve its compliance activities with individual employers. The data can inform decisions about when to use informal resolution and education to correct violations and when to escalate the matter (e.g., for employers with repeated violations). As the program and data mature, ESD can use the data to evaluate and refine the effectiveness of the program's outreach strategies.

ESD does not coordinate field checks with other agencies, as required by state statute

State law requires ESD to coordinate with L&I, DOH, and WSDA to the extent possible when conducting field checks (RCW 50.75.020). The intent is to limit disruptions to agricultural employers.

Agencies have different reasons for visiting farms. ESD aims to view the day-to-day working and housing conditions. DOH, L&I, and WSDA visit employers to enforce their own regulations:

• DOH enforces health and safety housing standards.
• L&I enforces workplace conditions.
• WSDA enforces agricultural requirements.

ESD reports that it intends to develop an interagency agreement that will allow L&I to participate in field checks with ESD staff. It has no immediate plans to develop an agreement with DOH and WSDA.

Recommendation

The Legislative Auditor makes one recommendation.

Recommendation #1:
ESD should work with DOH, L&I, and WSDA to provide a plan for determining interagency coordination for field checks.

State statute requires that ESD coordinate with DOH, L&I, and WSDA in the execution of field checks. ESD is currently working on an interagency agreement with L&I to coordinate field check activity. ESD should provide the Legislature a plan for extending that interagency coordination to include DOH and WSDA as required by state statute. The plan should have clear timelines, measurable progress benchmarks, and achievable outcomes.

Legislation Required: None

Fiscal Impact: JLARC staff assume this work can be done within existing agency resources.

Implementation Date: November 30, 2024

Agency Response: To be included in proposed final report.

Agency Response

To be included in proposed final report.

Current Recommendation Status

JLARC staff follow up on the status of Legislative Auditor recommendations to agencies and the Legislature for four years. The most recent responses from agencies and status of the recommendations in this report can be viewed on our Legislative Auditor Recommendations page.

Appendices

Appendix A: Applicable statutes | Appendix B: Study questions | Appendix C: Methods | Appendix D: Audit authority

Appendix A: Applicable statutes

The following are the applicable state statutes. The relevant federal code is 8 U.S.C. 1101(a)(15)(H)(ii)(a).

Appendix B: Study questions

This study aimed to answer the following questions, which were presented to JLARC in May 2023 (view here).

1. Does ESD administer the H-2A program in compliance with state and federal laws?
2. How does ESD fulfill its obligations to recruit U.S. farmworkers for H-2A jobs?
3. Do ESD’s training and outreach activities help to:
   • Increase employer compliance with H-2A program requirements?
   • Increase worker awareness of their rights and responsibilities under the H-2A program?
4. Does ESD effectively coordinate outreach and compliance activities with other state agencies?
5. What approaches does ESD use to provide culturally responsive interactions with farmworkers?
6. How does ESD’s administration of the H-2A program compare with other states?

Appendix C: Methods

The methodology JLARC staff use when conducting analyses is tailored to the scope of each study, but generally includes the following:

• Interviews with stakeholders, agency representatives, and other relevant organizations or individuals.
• Site visits to entities that are under review.
• Document reviews, including applicable laws and regulations, agency policies and procedures pertaining to study objectives, and published reports, audits or studies on relevant topics.
• Data analysis, which may include data collected by agencies and/or data compiled by JLARC staff. Data collection sometimes involves surveys or focus groups.
• Consultation with experts when warranted. JLARC staff consult with technical experts when necessary to plan our work, to obtain specialized analysis from experts in the field, and to verify results.

The methods used in this study were conducted in accordance with Generally Accepted Government Auditing Standards.

More details about specific methods related to individual study objectives are described in the body of the report under the report details tab or in technical appendices.

Appendix D: Audit Authority

The Joint Legislative Audit and Review Committee (JLARC) works to make state government operations more efficient and effective. The Committee is comprised of an equal number of House members and Senators, Democrats and Republicans.

JLARC's nonpartisan staff auditors, under the direction of the Legislative Auditor, conduct performance audits, program evaluations, sunset reviews, and other analyses assigned by the Legislature and the Committee.

The statutory authority for JLARC, established in Chapter 44.28 RCW, requires the Legislative Auditor to ensure that JLARC studies are conducted in accordance with Generally Accepted Government Auditing Standards, as applicable to the scope of the audit. This study was conducted in accordance with those applicable standards. Those standards require auditors to plan and perform audits to obtain sufficient, appropriate evidence to provide a reasonable basis for findings and conclusions based on the audit objectives. The evidence obtained for this JLARC report provides a reasonable basis for the enclosed findings and conclusions, and any exceptions to the application of audit standards have been explicitly disclosed in the body of this report.

JLARC Members