Legal Affairs Counsel’s Corner: State Legislative Activity Is Accelerating

State Legislative Activity Is Accelerating: What H-2A Employers Need to Watch in 2026

As state legislatures convene across the country this spring, a clear trend is emerging: policymakers are increasingly targeting long-standing agricultural exemptions from minimum wage and overtime laws. For H-2A employers, this shift—combined with the U.S. Department of Labor’s October 2025 AEWR methodology changes—is creating a compliance environment where state law is quickly becoming the primary driver of wage obligations.

Virginia

Virginia is one of the most important states to watch. A bill that has advanced in the House of Delegates would extend state minimum wage protections to farmworkers, including temporary foreign workers. At the same time, related legislative efforts seek to remove existing exemptions entirely, signaling a continued push to bring agricultural labor fully within the state’s wage framework.

For employers operating in Virginia, the impact would be immediate. If enacted, state minimum wage—rather than AEWR—could become the controlling wage floor, increasing required pay for both H-2A and corresponding workers.

California

California provides a clear example of how these policy shifts play out in practice. Following the state’s elimination of agricultural overtime exemptions, a new bipartisan bill introduced in 2026 seeks to address the downstream impacts by offering tax credits to offset increased labor costs.

This effort follows data showing reduced working hours and lower annual earnings for farmworkers as employers adjusted operations to manage overtime exposure. The broader takeaway is not that states are retreating from overtime requirements, but that they are refining how those requirements function after exemptions have been removed. For H-2A employers, this reinforces that once overtime applies, it becomes a permanent structural component of labor costs.

Colorado

Colorado remains another key battleground. Proposed legislation would formalize overtime requirements after 40 hours per week and 12 hours per day, while competing proposals and advocacy efforts are simultaneously pushing to adjust those thresholds.

Worker advocates have opposed efforts to increase the overtime threshold to 60 hours, highlighting the continued tension between cost pressures on employers and expanding worker protections. Even in states that have already acted, the rules remain fluid and subject to ongoing revision.

National Trend and AEWR Impact

These developments are not isolated. Across the country, states are revisiting agricultural exemptions, expanding worker protections, and using legislative sessions as the primary mechanism for change.

At the same time, the October 2025 AEWR methodology has introduced a new dynamic: in many jurisdictions, AEWR is now lower than the applicable state minimum wage. As a result, state wage laws are increasingly setting the baseline, and any removal of exemptions—whether tied to minimum wage or overtime—can immediately increase employer obligations.

What This Means for H-2A Employers

For H-2A employers, this convergence creates several practical risks. Wage compression becomes more likely as state minimum wages exceed AEWR, placing upward pressure on pay structures across the workforce. Overtime exposure can significantly increase total labor costs, particularly in peak production periods.

Multi-state operations face added complexity as each jurisdiction adopts different thresholds, definitions, and compliance requirements. At the same time, job orders filed months in advance may no longer align with applicable wage laws by the time work begins, creating both financial and compliance challenges.

Given the pace of change, employers should be actively monitoring legislative activity throughout the spring and modeling how proposed laws could affect their operations. This includes evaluating scenarios where state minimum wage becomes the controlling rate or where overtime requirements are expanded or newly applied.

Seso is actively tracking legislative developments across all major agricultural states and working with employers to navigate these changes in real time. This includes advising on wage structuring under the new AEWR framework, identifying compliance risks tied to state-level reforms, and helping employers plan for the 2026 season with greater certainty.

Bottom Line

State legislatures are no longer a secondary consideration in H-2A compliance. They are increasingly setting the rules that determine how—and how much—employers must pay their workforce.

Employers who stay ahead of these developments will be best positioned to maintain compliance, control costs, and avoid disruption as the regulatory landscape continues to evolve.

OFLC Releases Q1 2026 H-2A Data and Early Program Observations

On February 13, 2026, the U.S. Department of Labor’s Office of Foreign Labor Certification (OFLC) released its public disclosure data and selected program statistics for the H-2A program covering the first quarter of Fiscal Year 2026 (October 1 – December 31, 2025).

These data sets provide a comprehensive view of employer filings, certifications, and program activity at the start of the 2026 fiscal year.

Employers can access the data directly through DOL:

• OFLC Data and Program Resources:
  https://www.dol.gov/agencies/eta/foreign-labor

• H-2A Selected Statistics (Q1 FY2026):
  https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/H-2A_Selected_Statistics_FY2026_Q1.pdf

The selected statistics reflect approximately 60,000–65,000 certified positions in Q1 FY2026, consistent with continued high utilization of the program heading into the 2026 season.

Early Observations from Q1 Data

Initial industry feedback and early data review point to a continued—and increasing—concentration of certifications within core agricultural occupations.

OFLC leadership has reportedly indicated that, across approximately the first four months following implementation of the new AEWR methodology (October 2025 through early 2026):

• Approximately 98% of certified positions are falling within the “Big 5” SOC codes

• By comparison, under the prior framework, approximately 95–96% of positions were concentrated within the “Big 6” SOC codes

While the change is incremental, it reflects a continued consolidation of the program around a narrow set of core agricultural job classifications over this initial post-implementation period.

In practical terms, this means that nearly all certified positions—well over 9 out of every 10 roles—continue to be tied to traditional crop labor, equipment operation, and closely related activities.

Staggered Entry: Clarifications from Early Implementation

Another issue emerging from early program activity relates to staggered worker entry and how start dates are reflected in filings and adjudication.

Employers should be aware of the following:

• OFLC does not always have full visibility into actual worker arrival timing, particularly where staggered entry is used

• As a result, certified worker counts may not always align cleanly with anticipated start dates or phased arrivals

Importantly, recent feedback indicates ongoing confusion at the state level regarding limitations on staggered entry.

Key clarifications:

• There is no 120-day rule limiting staggered entry under the H-2A program

• Employers may stagger worker arrivals as needed up to the 50% point of the contract period

• The primary limitation is that no additional workers may be brought in after the 50% mark of the contract period

This 50% threshold is increasingly being viewed as a hard cutoff, meaning that once the contract reaches its midpoint, additional inbound workers are not permitted regardless of prior certification levels.

For example:

• For a contract running March 1 through September 1, employers may stagger worker entry between March 1 and approximately mid-April (the 50% point)

• After that midpoint, additional arrivals would not be permitted

Looking Ahead

As additional quarters of data are released, early expectations are that the program will continue to show:

• Increased usage of the H-2A program by both existing employers and new entrants, driven in part by more favorable wage dynamics under the current framework

• Continued concentration in core SOC codes, with the “Big 5” expected to account for approximately 95–98% of all certified positions

• Ongoing reliance on staggered entry to align workforce timing with operational needs

Seso will continue to monitor OFLC data releases and provide updates as additional trends emerge throughout the 2026 fiscal year.

Washington State Moves Toward Farmworker Unionization: What Employers Need to Know

Washington lawmakers have introduced new legislation that would significantly reshape labor relations in agriculture by granting farmworkers—including H-2A workers—a formal pathway to unionize and collectively bargain.

The proposal, introduced as House Bill 2409 and Senate Bill 6045, would place agricultural employees under the jurisdiction of the state’s Public Employment Relations Commission (PERC) for purposes of collective bargaining.

Employers can review the bills directly here:
https://app.leg.wa.gov/billsummary/?BillNumber=2409&Year=2026
https://app.leg.wa.gov/billsummary?BillNumber=6045&Year=2025

What the Bill Would Do

If enacted, the legislation would, for the first time, create a formal collective bargaining framework for agricultural workers in Washington, including those employed under the H-2A program.

Specifically, the bill would:

• Require agricultural employers to recognize and bargain with unions

• Establish a state-run system to oversee union elections and disputes

• Allow for binding arbitration if negotiations fail

• Expand enforcement authority through PERC, including remedies such as back pay and reinstatement

Currently, agricultural workers are excluded from federal collective bargaining protections under the National Labor Relations Act. While Washington law allows organizing activity, employers are not required to formally recognize or negotiate with unions—a distinction this bill would eliminate.

A Fundamental Shift for Agricultural Employers

This proposal represents a major structural shift in how agricultural labor is regulated.

Washington’s agricultural sector operates on tight margins, seasonal variability, and perishable commodities. Introducing a formal collective bargaining framework—particularly one that includes mandatory negotiations and potential arbitration—would impose:

• Increased labor costs

• Reduced operational flexibility during peak harvest windows

• Greater exposure to disputes and work stoppages

Even supporters of the bill acknowledge that it is designed to bring agriculture in line with other industries, but agriculture has historically been treated differently for a reason: its economic and operational realities are fundamentally distinct.

Lessons from California and New York

Washington is not the first state to move in this direction. Both California and New York have already expanded labor protections for farmworkers, including collective bargaining frameworks.

However, these laws have not come without consequences:

• In California, implementation of farmworker labor reforms has been accompanied by ongoing disputes over union access, election procedures, and employer obligations

• In New York, agricultural labor reforms—including overtime and collective bargaining provisions—have resulted in significant litigation and compliance challenges for employers

In both states, these laws remain actively contested in courts and through administrative proceedings, underscoring the complexity and unintended consequences of applying traditional labor frameworks to agriculture.

At the federal level, similar efforts to expand union-related protections to H-2A workers have also faced legal challenges, including a federal court injunction blocking portions of a recent rule extending organizing protections to H-2A workers in multiple states.

Concerns for Employers

From an employer perspective, several concerns are immediately apparent:

• The bill would layer union obligations onto an already highly regulated workforce, particularly for H-2A employers

• It introduces the potential for binding arbitration, effectively allowing third parties to set wages and working conditions

• It risks increasing labor costs at a time when many farms are already operating under financial strain

• It may create conflicts with federal H-2A requirements, which already dictate wages, housing, transportation, and other terms of employment

Critics have also pointed out that unionization rates among farmworkers remain extremely low, raising questions about whether this framework reflects actual workforce demand or broader policy objectives.

Broader Implications

If Washington adopts this framework, it could signal a broader trend of states attempting to replace federal labor exclusions with state-level union systems for agriculture.

For H-2A employers, this would add yet another layer of complexity to an already compliance-heavy program—particularly for multi-state operators navigating different labor regimes.

Takeaway 

Washington’s proposed legislation represents one of the most significant potential shifts in agricultural labor policy in recent years. While framed as expanding worker rights, it raises substantial concerns regarding cost, feasibility, and long-term impacts on agricultural operations.

Employers operating in Washington—or considering expansion into the state—should closely monitor this legislation as it moves through the 2026 session.

Seso will continue tracking developments and advising clients on potential impacts as this bill progresses.