January 2012 Volume 18 Number 1
Labor Shortages, H-2A Reform
Growers complained of farm labor shortages in many states in summer and fall 2011, especially in Alabama and Georgia, states that enacted laws making it a crime for an unauthorized foreigner to be in the state.
The Washington apple harvest, expected to be about 105 million 42-pound cartons (15 billion apples), was delayed by cool weather that slowed ripening and pushed the first significant picking from mid-August to early September. Governor Chris Gregoire declared a labor supply "crisis" because of a lack of pickers in late October and early November, estimating there were 3,000 to 4,000 too few pickers.
About 45,000 workers are normally involved in the Washington apple harvest, including several thousand H-2A workers. DOL approved 4,200 jobs to be filled with H-2A workers in Washington in 2011, up from 2,100 in 2008.
The state's WorkSource agency reported an "adequate supply of labor" throughout 2011 to pick apples and fill other farm jobs. WorkSource surveys about 900 growers a month; five percent reported labor shortages in August 2011, nine percent in September, and seven percent in October. Yakima-area growers requested 540 workers from WorkSource in September 2011, down from 546 a year earlier.
WorkSource data found that piece rates for picking apples were lower in September 2011, about $14 a 1,000-pound bin for Red Delicious and $20 or more per bin for Gala apples, than in September 2010. Growers asserted that experienced pickers can pick at least seven 1,000-pound bins of apples a day, earning more than the state's $8.67 an hour minimum wage.
Over 100 low-risk prisoners volunteered to pick apples at McDougall and Sons. The state charged McDougall $22 an hour for the prisoners to cover the cost of food, transportation and the temporary tent camps that house prisoners who volunteer for farm work. The prisoners received $8.67 an hour for their work but, after subtracting child support, victims compensation and other charges, most prisoners netted $1 to $2 an hour. Most apples are picked for piece-rate wages that generate average hourly earnings of $11 to $12 an hour.
Many grower comments suggested little contact with workers during the off season. Darla Grubb said that only 50 of the usual 65 pickers appeared for the fall harvest in 2011, delaying a timely harvest. Grubb continued: "You have to have people?We couldn't do this without our workers."
Stemilt AgServices, which used 250 H-2A workers in 2009, switched to labor contractors to obtain additional harvesters in 2010 and 2011. Contract workers typically cost 15 to 20 percent more than workers hired directly, but the contractor assumes liability for labor immigration and tax law compliance.
As the apple harvesting season ended in mid-November 2011, the harvested crop was about 102 million cartons, 97 percent of the expected harvest.
H-2A Reform. DOL reported that 93 percent of employer requests for certification were approved in FY11, meaning that 74,000 US farm jobs were certified to be filled with H-2A workers.
Growers continue to complain that the H-2A program is cumbersome and expensive. The National Council of Agricultural Employers released a survey of H-2A employers suggesting that 42 percent of those who applied to DOL for certification to hire H-2A workers in 2011 would not apply in 2012 because of "administrative burdens" and costs. NCAE said that DOL often requested supplementary information because of "small errors and inconsistencies" in the applications submitted by employers.
The NCAE argues that the H-2A program is broken and cannot be fixed despite proposals to, for instance, allow a farmer to be certified to hire H-2A or H-2B workers for three to five years. The NCAE says that employers spend $1,000 to $1,500 per job per year undergoing DOL certification to prove that US workers are not available to fill the jobs for which they are requesting H-2A workers. The NCAE wants DOL to provide multiyear certification, which NCAE says would allow growers to spread recruitment costs over several years.
Phil Glaize of Winchester, Virginia testified in 2010 that "Growers are forced to choose between using the broken H2-A guest-worker program, which is bureaucratic, inefficient and downright unreliable, or hire migrant workers who present documents that appear to be good, but who may or may not be in this country legally." Glaize added: "Right now, we're not required to use E-Verify. I'm scared to death that if I have to, I'll lose a crop," suggesting that Glaize believes many of the workers he hires are presenting false documents.
Congress. Many farm-oriented conventions discussed immigration reform in December 2011 and January 2012. The starting point for discussions was usually the Legal Workforce Act (HR 2164), which would phase in E-Verify for all US employers over four years. Many farm groups oppose mandatory E-Verify unless Congress also enacts a "workable" guest worker program, that is, an alternative to the current H-2A program that permits US farm employers anticipating labor shortages to hire legal guest workers.
There are several proposals pending in Congress to provide an alternative to the H-2A program. The American Specialty Agriculture Act (ASSA) would admit up to 500,000 foreign farm workers with H-2C visas; they could stay in the US up to 10 months a year before leaving the US for at least two months.
The ASSA would allow farm employers to attest that they are obeying program regulations rather than undergo DOL certification, would allow farm employers to give H-2C workers housing vouchers rather than provide them with housing, and would eliminate the Adverse Effect Wage Rate, the higher-than-minimum wage that farm employers must pay. Farm employers would reimburse the inbound transportation costs of H-2C workers only if they complete half of the work contract.
The Legal Agricultural Workforce Act (LAWA) would create a USDA-administered guest worker program that would grant an unlimited number of 10-month W-visas to foreigners who could move from one farm employer to another. USDA would determine the number of W-visas to be issued on a monthly basis, and farmers would post their vacant jobs, including wages and working conditions, on DOL's Electronic Job Registry for US workers to apply before hiring W-visa workers. Employers could specify the W-workers they want to hire by name.
The LAWA would devote the employer's share of Social Security and the Federal Unemployment Insurance Taxes on worker wages to the cost of administering the program, and refund the worker's share of Social Security taxes in the country of origin. W-visa workers would pay for their own transportation to the US and housing in the US. Western growers prefer the LAWA because it reduces their liability for housing and other employment-related issues.
The Better Agriculture Resources Now Act (BARN) would modify the H-2A program to reduce farm employer applications for H-2A workers from at least 45 days before the start date to 30 days and allow dairies and ranchers offering year-round jobs to hire H-2A workers. H-2A workers could be in the US 12 months, up from the usual 10-month limit, and could renew their visas once for 24 months of continuous US farm work, followed by at least two months abroad.
Farmers could provide vouchers that H-2A workers could use to obtain housing rather than providing it directly, and housing oversight would shift from the US Department of Labor to the US Department of Agriculture. The BARN Act would set the AEWR at 115 percent of the federal, state or local minimum wage, reducing the minimum wage that must be paid to H-2A workers in most areas. The current H-2A program does not allow farm employers to require US applicants for jobs to have experience. BARN would change this requirement, allowing farmers to specify that US workers who respond to job ads have experience doing farm work.
The Agriculture Labor Market Reform Act of 2011 would allow up to one million currently unauthorized workers and their families to apply for a probationary legal Blue Card status. Like AgJOBS, it emphasizes the steps Blue Card holders would have to follow to become immigrants, and requires farm labor contractors to enroll in E-Verify within six months of enactment.
Senator Dianne Feinstein (D-CA), the major advocate of AgJOBS in recent years, did not re-introduce the Agricultural Job Opportunity Benefits and Security Act in 2011. AgJOBS is based on a compromise negotiated between farm worker advocates and farm employers in December 2000 that would legalize unauthorized foreigners who have done farm work and make it easier for farm employers to hire guest workers under the H-2A program, largely repeating the legalization and guest worker changes of the Immigration Reform and Control Act of 1986.
Dave Bennett, "Farms needing crucial migrant labor face daunting regulations," Southwest Farm Press, December 12, 2011. Lornet Turnbull, "Washington apple growers scrambling to find workers," Seattle Times, October 30, 2011. David Lester, "Late apple harvest puts some growers in a labor crunch," Yakima Herald-Republic, October 7, 2011.