Pickup/delivery locations are not ‘worksites’ for H-2B truckers
October 14, 2019
Pickup and drop-off locations are not a worksite. That was the conclusion the Board of Alien Labor Certification Appeals came to when deciding to grant a trucking company’s application for temporary workers under the H-2B program.
On Oct. 2, the Board of Alien Labor Certification Appeals determined individual stops are not a worksite when reviewing ATP Agri-Services’ H-2B application. The Zolfo Springs, Fla.-based company’s original application was denied based on four issues within the paperwork.
One of the issues the board found was additional worksites “outside of a single area of intended employment,” according to U.S. Department of Labor documents. Those additional worksites were at shippers and receivers in 20 nearby counties.
Need for H-2B truckers
On July 22, ATP Agri-Services submitted an Application for Temporary Employment Certification for 20 truck drivers to “navigate to a field where they will pick up a load of crops,” Department of Labor documents show. Truckers would then drive to the assigned drop off location and then move on to their subsequent load. ATP needed the temporary drivers from Oct. 5 through June 30, 2020.
Approximately one week later, a certifying officer for the Labor Department’s Office of Foreign Labor Certification found four deficiencies with the application:
- ATP failed to establish that the job opportunity was temporary.
- ATP did not state how it determined that it needs 20 truckers during the requested period of need.
- Application appeared to include additional worksites outside of a single area of intended employment.
- Job order did not indicate the geographic area of intended employment with enough specificity to explain to applicants of any travel requirements and where applicants will likely have to reside to perform the services or labor.
On Aug. 6, ATP responded to the four deficiencies. Addressing the first issue, ATP submitted a copy of a Department of Agriculture report on the Florida citrus harvesting season. The season spans from mid-September until the end of June.
A chart showing monthly truck loads for 2018 and 2019 was submitted to prove the need for 20 truck drivers.
However, ATP contested the last two errors identified in the application. The company argued that “BALCA has affirmed on numerous occasions that neither trucking pick-up points nor delivery points qualify as ‘worksites’ for purposes of the area of intended employment analysis,” according to the board’s decision.
Definition of ‘worksite’ under H-2B
According to Department of Labor documents, a “worksite” has been defined by the board as the location where the workers pick up the trucks to begin the workday.
Areas where drivers pick up and deliver cargo are considered locations where workers travel during the workday. Therefore, pickup and delivery sites are not locations where workers commute. Precedential cases have found the area of intended employment is concerned with commute time. More specifically, the noncompensable time between the worker’s home and the place where work begins.
A certifying officer was not satisfied with ATP’s response.
The H-2B application was denied on Aug. 22.
The officer named several “additional worksites” that are a few hours away from the main worksite. Those locations were considered “not within a normal commuting distance and the same area of intended employment,” according to the appellate decision. ATP immediately filed an appeal.
ATP made the following argument in its appeal:
“The pickup and delivery locations that a trucker travels to during the course of the workday are not worksites, and therefore have no bearing on the area of intended employment analysis. The (corrective officer’s) conclusion is entirely incorrect and unsupported by statute, regulation, sub-regulatory guidance, or any applicable case law. The CO has absolutely no basis for its determination. Further, it is apparent by the CO’s refusal to acknowledge the applicable BALCA case law that the CO is acting in bad faith, effectively ‘forum shopping’ in search of a sympathetic (administrative law judge). This determination cannot stand.”
The board ’s determination
In its final decision filed on Oct. 2, the board pointed out that an employer holds the burden of proving the need for temporary labor. At least two factors need to be proven:
- Insufficient qualified U.S. workers are available to perform the temporary services or labor for which the employer desires to hire foreign workers.
- Employing H-2B workers will not adversely affect the wages and working conditions of U.S. workers similarly employed.
Only one application may be filed per worksite within one area of intended employment for each job opportunity. “Worksite” is not defined under H-2B regulations. However, “place of employment” is defined by H-1B regulations.
According to H-1B case law cited by the board, “truckers’ delivery and pickup locations would not qualify as ‘worksites’ because the job functions of a truck driver necessitate frequent changes of location with little time spent at any one location and the nature of the occupation mandates a short-term presence.”
One case determined that “if an employer seeks to employ tractor trailer truck drivers to pick up and deliver cargo through routes across the United States, the job duties generally are not performed in one location. Rather, the job duties are performed in a number of locations across the United States and thus outside of a single area of intended employment. Accordingly, the job opportunity would not be eligible for H-2B certification.”
However, the board has “expressly” rejected that interpretation, according to Department of Labor documents from 2016.
Administrative Law Judge Larry S. Merck wrote the following conclusion:
“Here, (ATP) listed 20 counties that it anticipates it workers to ‘haul citrus to and from.’ A (trucker’s) worksite is the ‘location where the job opportunity is, and where the driver reports to work.’ I agree with employer that the only worksite is located in Zolfo Springs, Fla., where drivers pick up their trucks. Therefore, there is only one area of intended employment that is within a normal commuting distance of Zolfo Springs, Fla. Employer, therefore, complied with the regulations by submitting one application. Accordingly, the (certifying officer’s) denial of employer’s certification is reversed.”
The denial was vacated and remanded for grant of certification.