August, 1998
Tight labor supply helps nudge Congress toward guest worker reforms
The farm labor situation has been deteriorating for growers over the past few years,
with decreasing numbers of workers and heightened regulatory enforcement activity.
The combination of these factors has forced an increasing number of ag employers to
use the federal H-2A temporary agricultural worker program, which they say is slow,
hard to use and needlessly burdensome.
Now help may be on the way from Congress. Both the House of Representatives and Senate
had been considering bills that substituted a new guest worker program for H-2A.
Evidence of labor pressure from across the country has been so compelling that a
bipartisan bill reforming the existing H-2A program has sailed through the Senate July 23
on a 68-31 vote.
"In the 30 years I've been dealing with H-2A, I haven't seen anything to come along
that's looked this positive," said Gary Fitch of Ag Affiliates, a New York state
based farm labor consulting firm. "If it passed, you would see a whole lot more employers
signing on to H-2A in all the states."
The Senate bill was a "rider" - an attachment to the appropriations bills for the
departments of Commerce, Justice and State. There are no plans to introduce the H-2A
reform language on the House side. Each version of the appropriations bill will go
to a conference committee, and it is there that H-2A reform proponents hope to retain the
language in the final bill.
If successful, agricultural employers hope the bill brings relief to a system that
has so far this season provided moments that could fall under the headings of worrisome
(labor shortages), frightening (seizure of crops and strong-arm attempts to get growers to sign documents) and ludicrous (federal agents in search of child labor abuses
raiding an Easter egg hunt).
The reform bill
The H-2A reform legislation replaces the current labor certification process with
a domestic worker registry. This registry would use existing Department of Labor
job bank computers to match domestic workers seeking jobs in particular crops or
states with employers. The registry would also list wages and benefits for each job. In the event
not enough domestic workers apply for a particular job, employers can then bring
in temporary alien workers. Individual farmers and agricultural associations would
both be able to use the registry and only legally authorized workers will be allowed access
to it.
The present H-2A program requires ag employers to apply for workers 60 days in advance
of the anticipated date of need. Employers have said that date is too long and does
not take into consideration disasters caused by weather or other unpredictable features of agriculture. The reform bill slashes that 60-day period to 21 days. Referral
of workers must be made seven days before the date of need.
A General Accounting Office review of the H-2A program found that under the current
program, workers overstay their visas. Under the reforms, temporary workers must
go home when their visas expire or be banned from future participation in the program.
Workers in the present H-2A program are paid on the basis of the adverse effect wage
rate, which can be inflationary. The new bill redefines that rate, and allows payment
in terms other than the prevailing wage method. The current law set the same wage
for all workers, while the new bill allows employers to pay higher rates to workers with
more tenure, experience and skill.
The reform allows housing or a housing allowance to be provided workers, which is
crucial because the present H-2A cannot be used unless housing is provided. Eight
years after the reform is enacted, if insufficient housing is available in an area,
housing will have to be provided instead of an allowance.
The current situation
Across the United States, ag labor availability is tight. There is not a general crisis
situation, although some individual growers are in that position. The general opinion
is that fewer ag laborers are available than in prior years.
Sharon Hughes, executive vice president of the National Council of Agricultural Employers,
said her group has been receiving reports of a tight labor market from across the
country, even Florida. The major reasons for the shortage are an increased economy
which leads to more permanent job opportunities for workers, and heightened enforcement
activities by Federal agencies.
"As soon as INS (Immigration and Naturalization Service) opens an office in a region,
workers disappear, even without them taking any enforcement action," said Hughes.
"That means it's taking longer to do planting, pruning and harvesting. They're having
a more difficult time."
On the East Coast, participation in the H-2A program has swelled by approximately
4,000 workers over last year, said Hughes. Ohio and Illinois employers are looking
at it and even West Coast employers may need to use it in future years.
"That's another reason to get this bipartisan reform through - to make it easier to
get growers to use H-2A," said Hughes.
In Michigan, most ag employers are managing to get enough workers, said Craig Anderson,
director of Farm Bureau's Regulatory Compliance Assistance Program. To do some, some
growers have had to find new ways to manage their available labor pool.
One blueberry grower is using "off shift workers." This farm is rescheduling the harvest
period for after 6 p.m. and using people who already have day jobs. Another grower
has made the decision to move from using 60-100 hand laborers to mechanical harvesting of his fruit.
"If you ask if this grower has enough labor, the answer is yes," said Anderson. "But
it is a function of accepting a lower value and higher loss of product."
The state's employers are using more farm labor contractors this year, many for the
first time ever and some others for the first time since the 1960s. These people
must have a valid farm labor contractor license if they offer any cash, transportation
or other type of compensation, said Anderson.
Feds in the field
Agents of INS and DOL have already been active this season, with some of their most
dramatic activity taking place in Georgia and Texas during the onion harvest.
In Georgia, the INS activity focused on attempting to coerce growers to sign written
settlement agreements in exchange for allowing them to harvest and ship their crops.
An NCAE analysis of these agreements found these shortcomings:
The agreement is beyond the authority of INS by forcing growers to build housing.
This would then put the growers in the position to use the H2-A program. However,
housing falls under the jurisdiction of DOL, which has not publicly associated itself
with the agreement.
It required growers to agree to waive their legal right to argue that they have
independent contractor relationships with crew leaders and farm labor contractors.
It would force employers to verify through Social Security and INS the work authorization
of all persons prior to employment. This would likely screen out a major part of
the work force and force growers to use H-2A.
The agreement asks employers to waive their right to require INS agents to produce
a search warrant before entering fields.
It asks employers to waive the current requirement that INS or DOL give three days
notice before looking at I-9 and other records. The waiting period gives growers
time to get the proper documents ready and prevents INS from conducting on-the-spot
document requests without notice at peak harvest times.
In exchange for waiving all these rights, the agreement promises that all enforcement
activities against the grower will be curtailed - but only until INS completes an
audit of grower records. After the audit, the agreement does not prohibit INS from
entering the property and seizing all workers who turn out to be illegal.
Several Congressmen from Georgia along with the state's senators contacted Attorney
General Janet Reno about the incidents. Hughes said the agreements were the idea
of a local INS agent, and were not authorized by headquarters in Washington, which
put a stop to the practice.
DOL has been active as part of its "Operation Salad Bowl," which is intended to target
illegal child labor in the fields. This activity has gone to the extent of using
the "hot goods" provision of the law, where a grower's crop is seized at the packing
house and held until he agrees to correct the alleged abuses.
This "hot goods" provision, which was used in Texas, had never before been implemented
in production agriculture. Because of the perishable nature of its product, agriculture
had been exempt from hot goods provisions, but that exemption was not included in the latest version of the Fair Labor Standards Act.
DOL is trying hard to detect kids in the fields, said Hughes. Sometimes they are there
because of insufficient day care, and other times for fun - but that can backfire.
Hughes reports an incident where a grower in Texas was having an Easter egg hunt for
the children of his migrant workers. DOL agents were stationed on the roadside videotaping
the event. Children were finding the plastic Easter eggs containing prizes, but when one child picked up an onion instead, the agents swarmed onto the property on
suspicion of child labor..
"Be aware that when DOL comes around for Salad Bowl, they are going to be looking
for kids. Don't have them in the field at all," said Hughes.
The Great Lakes Fruit
Growers News