Overview

The Department of Labor’s Worker Protection Final Rule, effective August 29, 2024, imposes stringent documentation requirements for for-cause terminations of H-2A workers, including proof that the employer adhered to a system of “progressive discipline.” This guide provides a comprehensive overview of the rule and practical tips for its implementation.

• Employers will have the burden of demonstrating that any “termination for cause” meets all regulatory requirements. 

• Terminations for cause are limited to two scenarios: 

  • Failure to comply with employer’s work policies and/or rules, 

  • Failure to satisfactorily perform job duties in accordance with reasonable expectations based on criteria/standards described in the job offer. 

• For a worker’s termination to be justified/reasonable, employers must be able to show that the worker was informed (in a language understood by the worker), or reasonably should have known, of the policy, rule, or performance expectation, compliance with which was within the worker’s control, and that the policy, rule, or performance expectation was reasonable and applied consistently to the employer’s H-2A and domestic workers in corresponding employment. 

• Employers must also demonstrate that a fair and objective investigation into the job performance/misconduct occurred, and that progressive discipline steps were followed in an attempt to improve/correct the worker’s performance/behavior prior to termination of employment (with the exception of “egregious misconduct”).

Key Requirements

• Documentation: All disciplinary actions must be documented.

• Fairness: Discipline should be applied consistently and impartially across all workers.

• Communication: Workers must be clearly informed of the reasons behind disciplinary actions.

Model Progressive Discipline Process

Initial Assessment: When an issue arises, assess the severity and gather all relevant facts.

1. Discussion with Worker: Discuss the incident with the worker, and if requested, allow the worker’s representative to join the discussion (phone call or zoom is acceptable).

2. Corrective Action Plan: If applicable, develop a corrective action plan with clear expectations and timelines for improvement.

3. Follow-Up: Monitor the worker’s progress and conduct follow-up meetings to discuss improvements or further actions.

4. Final Decision: Depending on the outcome of the corrective actions, decide on further disciplinary measures up-to and including termination, if necessary.

Best Practices

• Clear Policies: Ensure all disciplinary policies are clearly written and accessible to workers in their language.

• Training: Regularly train supervisors and managers on the disciplinary policies and the importance of consistent application.

• Documentation: Keep detailed records of all disciplinary actions, including the reasons, the process followed, and the outcomes. Verbal warnings must be properly documented in writing within 7 days. 

Seso’s Progressive Discipline Tool

Seso’s Progressive Discipline Tracking feature is designed to help employers document and track HR events and stay compliant with the Department of Labor’s (DOL) requirements. It offers a centralized, digital solution for logging and managing disciplinary events, streamlining HR processes while ensuring compliance with DOL regulations.

Key Features

• Easy Event Logging: Log disciplinary events directly in the worker’s profile.

• Instant Notifications: Workers receive notifications when a disciplinary event is logged.

• Dispute Management: Handle disputes directly through Seso, with notifications for further investigations.

• Comprehensive History: Access a complete history of disciplinary events for each worker.

Want to learn more about Seso’s Progressive Discipline Tool? Click here to schedule a demo.

Frequently Asked Questions

What constitutes “egregious misconduct” allowing immediate termination?

Egregious misconduct includes actions that are illegal, pose a direct threat to safety, or are severely detrimental to the workplace. Immediate termination is justified without the need for progressive steps in such cases. Examples include:

• Plainly illegal actions (e.g., battery or sexual assault).

• Actions that impose imminent danger to physical safety (e.g., operating heavy machinery while drunk).

• Outrageous conduct to a reasonable person (e.g., severe sexual harassment or racial harassment, or intentional destruction of property).

How quickly must we provide documentation of disciplinary action to a worker?

Documentation of each disciplinary action, including evidence the worker presented in their defense and resulting instruction, must be provided to the worker within 1 week of the implementation of the disciplinary measure

What should we do if a worker disputes a disciplinary action?

If a worker disputes a disciplinary action, the employer must afford the worker the opportunity to present evidence in their defense. The employer must undertake reasonable steps to determine whether the worker committed an infraction that was within their control and consider any mitigating circumstances that may provide context to the infraction.

How long must we retain records of disciplinary actions?

Employers must keep records of disciplinary actions, including those evidencing/confirming the type of misconduct/infraction, each step of progressive discipline, evidence the worker presented in their defense, reasons for discipline/termination, and investigation related to the termination, for at least 3 years from the date of approval of the TLC application applicable to the worker.