Performance Management of Foreign H-2B Employees

Countless industries rely on the H-2B non-immigrant visa program to satisfy their seasonal and peak load labor demands. For many employers, however, the prospect of employing a foreign workforce can be daunting – especially given the H-2B program’s complex regulatory requirements. 

In this article, we’ll discuss key strategies and best practices for managing and retaining your H-2B workforce while complying with the numerous program requirements.

Disclosure

One of the core tenets of the H-2B program is that all workers – foreign and domestic – should have a thorough understanding of the job for which they’ve been hired, and the terms and conditions to which they are subject.

As part of the multi-stage government approval process, the H-2B program requires complete disclosure of all material employment terms. This includes detailed disclosures regarding pay, benefits, working conditions, and conditions of job retention. Proper disclosure ultimately serves to protect both workers and employers. 

For workers, it provides a complete accounting of what they can expect on the job, which can eliminate or mitigate the uncertainty that many foreign workers face when coming to work in the United States (especially first-time H-2B workers). 

And for employers, the disclosures serve as written evidence of the employer’s rules, policies, and expectations. Documentation is essential for employers to effectively manage performance and productivity while avoiding legal risks such as charges of discrimination, unfair treatment, or retaliation.

Communication

A unique challenge of the H-2B program is the fact that workers often come from foreign countries where English is not the native language. The great majority of H-2B workers come to the United States from the Spanish-speaking world of Mexico and Central America. 

For the most part, the language barrier is not an issue. Even with no prior foreign language skills, both parties usually pick up enough words and phrases from each other’s language to get the job done, and tools like smartphone translation apps have made the effort even easier.

But while basic communication is fine for day-to-day work activities, employers should be cautious when approaching workplace disputes or disciplinary actions. In the world of HR, words matter, and choosing the right words may be the deciding factor between a closed matter and a class action lawsuit.

When dealing with HR issues, it is crucial that employers communicate their intentions effectively to workers. Whenever possible, verbal discussions should be accompanied by written documentation in both English and the worker’s native language, using reliable and accurate translators like Team Engine. This helps ensure that all parties are aligned and that no vital details or context is lost in translation.

Disciplinary Action

No employer wants to take disciplinary action or have tough conversations with employees. It can be an uncomfortable experience and strain an otherwise productive and mutually beneficial relationship. But running a business sometimes requires employers to step outside their comfort zone and address an issue – whether it’s an employee’s attitude, productivity, or quality of work.

H-2B employers are not exempt from this reality, and there will always be times when a foreign worker fails to live up to reasonable expectations. While employers can and should address such issues, they should also be aware of their H-2B program obligations.

First, it’s worth noting that the H-2B program regulations include robust protections against unfair treatment. Employers are strictly prohibited from taking any adverse action (i.e., threats, blacklisting, retaliation, discharge, or other coercive acts) against workers who exercise their legal rights or otherwise raise concerns about their wages or working conditions. 

Consequently, employers should always conduct due diligence before taking disciplinary action against a worker. Workers who previously filed HR complaints or raised concerns about work-related issues may enjoy special protections that warrant added caution on the employer’s part.

Second, employers should understand that they can only enforce terms and conditions that are disclosed to workers and to the U.S. Department of Labor (DOL) as part of the H-2B approval process (see the discussion above regarding disclosures). All job requirements, especially those pertaining to job retention, must be bona fide, disclosed in writing, and consistent with standards imposed by non-H-2B employers. 

This requirement is especially pertinent when it comes to worker productivity. Per the H-2B regulations, all minimum productivity standards must be carefully documented and disclosed. Failure to properly define the standards may make it difficult or impossible for employers to address the issue while avoiding charges of unfairness by the worker.

The H-2B program, in most cases, is a major win-win for employers and workers. It provides employers a capable, reliable, legal workforce while providing foreign workers significant career opportunities and well-paying jobs in the United States. 

But employers must understand that H-2B program participation is a lifestyle choice that requires careful consideration of the regulatory requirements and adaptations to their typical HR practices.

To learn more about the H-2B program, reach out to us at masLabor to start a conversation!

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