Compliant-Ready Tips for Avoiding and Resolving H-2A Employee Conflicts
USA Farm Labor helps farms and ag businesses fill their farm labor gap by providing a predictable, skilled, seasonal workforce through the H-2A Visa Program. Once we’ve secured their Temporary Labor Certification and helped them source and hire reliable, experienced foreign ag workers, we help them prepare for worker arrival and onboard new H-2A employees to set them up for a great season. Having a structured system for worker management is key to making sure you and your workers know what to expect every day, all season long.
Despite great intentions, good planning, and comprehensive training, you’ll most likely be faced with H-2A employee conflicts at some point. But these situations can be dealt with promptly, fairly, and effectively. This blog is designed to provide helpful tips for handling conflicts as well as guidance in the event conflicts can’t be resolved in a mutually satisfactory manner.
Common reasons for conflict
We’re all different. It’s inevitable that, sometimes, these differences and how we react to them can cause conflict. But it doesn’t have to cause permanent damage. The key is having solid practices and procedures for effectively managing and resolving these conflicts.
Common reasons for conflict include:
Unclear or unstated expectations, instructions, or goals
Miscommunication/lack of communication
Insufficient deliberation
A lack of regular meetings to coordinate and keep everyone on the same page
Cultural differences (e.g., terms or phrases that have different meanings elsewhere)
Tips for avoiding conflict
Here are some helpful ways to avoid conflict:
Ensure workers understand the goals and expectations ahead of time. Have them review and sign off on your policies, code of conduct, Job Order, and Employee Handbook.
Keep an eye open for potential sources of conflict and discuss them ahead of time
Accept that opinions and views will differ
Never make assumptions about what someone is thinking or feeling
Never jump to conclusions about why someone acts a certain way. If someone is frustrated, it may be because of unrelated, personal issues, not you.
Keep communication open and encourage workers to talk to you if they need help or are unsure of something (daily tailgate meetings and weekly worker check-ins)
Try to build a positive relationship with each worker
Treat workers as you’d want to be treated
Stages of conflict resolution
Conflicts with workers don’t just appear. They typically follow a cycle that involves a progression in severity and remedy. A recent Farm Progress article, Farm labor crisis: Is no one willing to work anymore?, sums up this cycle well.
This article shares a four-tiered system developed by Cassidy Johnson of RC Ranch Management and Consulting and Kim Rounds of Five Rivers Cattle Feeding:
Tier 1: Teachable moments
This is where better instruction or more attention to detail can easily resolve the issue. For example, Johnson says, “A teaching moment is when somebody goes to the wrong pasture. Maybe they fence the neighbor’s pasture. Maybe they got lost. Maybe they just did something a little bit wrong, and that’s OK.”
Tier 2: A good chewing
The next level is a more serious but accidental and fixable mistake. Something that can be resolved through instruction, training, or just a better day where fewer things go wrong. “This is something preventable. Probably shouldn’t have done it but still an accident,” Johnson says. “A broken fence, a mildly damaged vehicle, something preventable but a mistake. This is how we learn, right?”
Tier 3: Probation
When mistakes are repeated many times, or if an employee routinely ignores safety, it becomes a serious issue. “We don’t need to be saying the same things over and over again … if you are being unsafe,” Johnson says. “This is a very dangerous business. We do not need to tolerate a lack of safety that is intentional.”
Tier 4: Get out
While severe offenses should be met with severe consequences, the reality is often quite different. According to Johnson, these issues are often ignored in favor of worker experience or expertise. Keeping employees with serious infractions sets a difficult tone for future hires.
“This stage is felonious behavior like abuse, breaking the law, disregard to the crew or safety, etc.” Johnson says. “The number of operations that I have seen that will fire somebody over a one or two, but keep an employee with schnapps in his glove box. It’s ridiculous that that’s how we set a tone for our operations.”
Establish an issue management protocol
The time to figure out how to deal with worker conflict isn’t when it’s staring you in the face. It’s important to know how you’re going to handle these situations in advance and have a consistent protocol to follow. This will help you when it comes to maintaining H-2A compliance.
The bottom line rule should be to never ignore a problem. If you do, you can bet they’ll multiply fast when multiple workers share housing. In addition, your protocol for crew leaders should be the following at a minimum whenever issues arise:
Address issues quickly
Listen to both sides
Stay calm and neutral
Escalate if needed
If a conflict arises, USA Farm Labor encourages our clients and workers to meet and speak in private as soon as possible. Often, conflicts are the result of simple misunderstandings. If our clients feel uncomfortable discussing a problem with a worker or if communication isn’t working, their assigned Worker Placement Coordinator is always glad to help mediate.
Conflict resolution best practices
Don’t let anger run the conversation. Take time to cool off before taking.
Ask to speak with the worker in private. Don’t confront him/her in public.
Explain the issue to the worker objectively and without sounding accusatory
Try to leave your pride out of the discussion and not take things personally. Apologize if necessary.
Take turns talking and explaining sides without interrupting each other
Don’t jump to conclusions or make assumptions, ensure you and the worker understand each other clearly
Remember the goal is to resolve the matter, not out-argue the other party
Focus on finding common ground, like a goal you share and can both work toward
Be open-minded and discuss possible solutions that benefit both parties
Decide on a solution that satisfies both parties and promotes a win-win relationship
Ensure both parties are clear on the details of the solution
Be patient as the solution is implemented, acclimating to changes can take time
Identify performance and productivity issues as soon as possible
As soon as workers arrive, be sure to review all expectations, rules, and company policies. It’s reasonable to provide an orientation period during which you provide training and allow workers to adjust to being on the farm after travelling across the world.
We recommend giving a worker three weeks to prove he/she has the necessary skills to do what you hired him/her to do. We ask our clients to contact us as soon as they feel a worker isn’t capable of the Job Order tasks, so we can help resolve the issue. It’s important to assess the worker’s capability early on to avoid losing a large window of productivity.
If our clients give a worker a fair amount of time to demonstrate the necessary skills, and feel the worker misrepresented his/her skills or experience, they should notify us immediately and we’ll talk to the worker. Depending on the conversation, we may suggest our client give the worker seven more days. If, after seven days, the worker still seems unable to perform the necessary tasks, we’ll help mediate the problem with the goal of finding the best outcome for all parties involved.
Documentation is critical
Participating in the H-2A Visa Program comes with a lot of requirements that must be met in order to maintain H-2A compliance. Many of the requirements have to do with the treatment of workers. Comprehensive documentation is essential to ensuring your processes stay aligned with H-2A compliance and helps protect you in the event of an audit.
Here’s an outline of the key aspects to document around worker conflict. Documentation should be kept on file for a minimum of three years.
Documentation of the problem/violation should include:
Names of people involved
Type of problem/violation:
Absenteeism
Tardiness
Carelessness
Drug/alcohol abuse
Insubordination
Quality/quantity of work
Phone use during work
Safety violation
Interpersonal
Date of violation
Steps you’ve taken in fair and objective investigation of performance or misconduct
Details, including impact on the company, witnesses, employee statement
Goal
Proposed action plan with timeframes (i.e. instruction/training and reasonable time to meet standards for productivity or performance issues)
Signed by all parties
Documentation of disciplinary action(s) should include:
Evidence you clearly communicated to the worker, verbally or in writing, that a disciplinary action occurred, creating a record of the discipline and minimizing potential misunderstanding
Type of disciplinary measure(s) taken (must be proportional to failure but may increase in severity if failure is repeated):
Verbal warning
Written warning
Suspension
Termination
Evidence/explanation the worker presented in their defense
Timeline and escalation actions if not resolved
Signed by both you and employee
What to do when termination is the only option
Termination should be a last resort. You’ve already made a significant investment in each H-2A employee, plus the DOL has extensive requirements for proving that the firing was for just cause. That’s why sufficient, documented attempts to provide training and progressive disciplinary action should be made before firing an H-2A employee.
Under the Department of Labor (DOL) rule, the definition of “termination for cause” is that a worker may only be considered terminated for cause if the worker fails to meet a disclosed productivity standard or fails to comply with employer policies or rules. This is yet another good argument for having clear, structured Standard Operating Procedures (SOPs).
Justifiable reasons for termination include:
Misconduct:
Serious violations of company policies or rules, such as theft, fighting, or harassment
Repeated minor violations despite warnings and opportunities to correct behavior
Actions that jeopardize the safety and well-being of other workers or the public
Poor performance:
Consistent failure to meet job performance standards or expectations despite training and guidance
Inability to perform essential job functions due to lack of skill, competence, or effort
Repeated mistakes or negligence that affect productivity and quality
Violation of work rules:
Unauthorized absences or excessive tardiness that disrupt operations
Failure to follow instructions or procedures that are critical to the job
Engaging in activities that are explicitly prohibited by the employer or the contract
Falsification of documents:
Providing false information on employment documents, including applications and time sheets
Misrepresentation of qualifications or credentials
Drug or alcohol use:
Use or possession of illegal drugs or alcohol on company premises
Being under the influence of drugs or alcohol during work hours
Endangerment:
Engaging in behaviors that put themselves, co-workers, or the public at risk
Violation of safety protocols that are critical to the job
Breach of contract:
Failure to adhere to the terms and conditions outlined in the employment contract
Unauthorized disclosure of confidential information or trade secrets
Examples of valid and invalid terminations:
Valid:
A worker refuses to make mechanical adjustments and repairs on equipment despite this being listed in the approved Job Order and he/she being trained, or fails to meet reasonable productivity standards after being warned
A worker commits serious misconduct, such as fighting or theft
Invalid:
A worker is fired for complaining about unsafe housing, lack of water, or asking for better working conditions (protected concerted activity)
A worker is fired to avoid paying for return transportation
If you decide you must terminate an H-2A employee, you must notify the DOL and U.S. Citizenship and Immigration Services (USCIS) within two working days of termination to avoid paying for return transportation. USA Farm Labor takes care of this for our clients once they inform us of the End of Contract (EOC) date and provide the reason for the separation. Your assigned Worker Placement Coordinator helps make sure you maintain H-2A compliance throughout the process and even helps arrange for another worker.
What is an H-2A employee leaves voluntarily?
If an H-2A worker quits, walks off the job, or disappears without notice it’s considered abandonment which is a serious violation of H-2A Program rules. If he/she leaves without telling you and doesn’t return for five workdays, you must submit an End of Contract form to the DOL and USCIS notify the authorities that the worker has absconded. USA Farm Labor takes care of this for our clients.
Workers moonlighting for other H-2A employers is a serious violation. The worker has violated H-2A status and should be terminated immediately. If you know one of your H-2A employees is moonlighting and allow it, you may be responsible for wage violations and are at risk for debarment.
Other H-2A compliance considerations
For all terminations, the H-2A employer bears the burden of proof of demonstrating to the DOL that the termination is properly classified as for cause. If an H-2A employer wants to fire someone and claim it was for a valid reason, he/she has to prove it to the DOL, showing the firing was justified and he/she followed proper disciplinary procedures.
Final wages and reimbursements
Regardless of whether an H-2A employee is fired or leaves voluntarily, the H-2A employer must provide the worker with copies of their pay slips, as well as show proof that all final wages and reimbursements have been paid to the worker. There must also be an acknowledgement, signed by both parties, that the worker has 30 days to find new employment if the contract is complete, or 10 days if the H-2A employee quit or was terminated before the end of the contract. If they don’t find new employment within these timeframes, he/she must return to their home country in accordance with H-2A rules and regulations
Termination and the 3/4 Guarantee
If a worker terminates his/her contract prematurely, the 3/4 Guarantee won’t apply. This rule requires H-2A employers to pay workers for a minimum of 75% of the total hours listed in the approved Job Order.
If a worker is fired for one of the following reasons/just cause, the 3/4 Guarantee won’t apply and the H-2A employer isn’t responsible for the worker’s return transportation to their home country:
The employee refuses, without just cause, to perform the work for which he/she was hired, as described in the approved Job Order
The employee was dishonest about his/her skills, abilities, or experience
The employee commits continuous and/or deliberate negligence
The employee commits a serious act of misconduct or criminal activity (be sure to report it to the local police)
If an employee’s contract is terminated early without just cause, the DOL may require the H-2A employer to pay the worker the amount due according to the 3/4 Guarantee.
You can count on your Worker Placement Coordinator to help resolve conflicts while keeping you compliant
All USA Farm Labor clients are assigned a Worker Placement Coordinator (WPC) who prepares you for your worker arrival and provides a single contact for both you and your workers for any questions or concerns all season long, including help with resolving conflicts. He/she can help mediate issues to provide a win-win resolution while ensuring you maintain H-2A compliance.
USA Farm Labor also provides every worker in our database with information on how to handle conflict professionally, and we have them sign a code of conduct. As a client, you can access forms for all the required documentation we mentioned above (summary of the problem and solution, disciplinary actions, wages and reimbursements paid) in our database to ensure you stay compliant every step of the way.
Last, but not least, USA Farm Labor offers clients a 30-day money-back guarantee to support our number one goal of customer satisfaction. If a worker isn’t meeting your needs, simply follow the contract termination procedure within 30 days and we’ll help you find a different worker. Any recruitment fees you’ve already paid will go toward the new placement.
