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April 2012 Volume 18 Number 2
State Laws, Ag, House
Mississippi is expected to enact an Alabama-style attrition-through-enforcement law in 2012 requiring employers to use E-Verify to check new hires and to make it a state crime to be in the state illegally (HB 488). Police are to determine the legal status of persons they arrest (rather than encounter during routine traffic stops) whom they "reasonably suspect" are illegally in the US.<< back
Five states, beginning with Arizona in April 2010, have enacted state laws that crack down on illegal immigration. The US Supreme Court on April 25, 2012 will hear arguments on the constitutionality of Arizona's SB 1070. California joined 10 other states in a brief asking the Supreme Court to overturn SB 1070, arguing that it drives unauthorized foreigners out of Arizona and into California and other states.
The US Court of Appeals for the 11th Circuit heard an appeal against federal district court injunctions that prevented some provisions of Alabama's HB 56 from going into effect. The Obama administration contends that state laws such as HB 56 are unconstitutional because they interfere with the federal government's power to regulate immigration by, for example, enabling states to change federal enforcement priorities.
Alabama countered that HB 56 reinforces federal laws against illegal migration by helping to detect unauthorized foreigners. A federal district court agreed, ruling that Congress has not prohibited state laws against illegal migration.
The Service Employees International Union filed a complaint against HB 56 in April 2012 with the International Labor Organization, arguing that HB 56 is harmful to the ability of unions to organize workers set out in ILO Conventions 87 and 98 (the US has not ratified these ILO Conventions). The SEIU is asking auto manufacturers Daimler, Honda, and Hyundai to support repeal of HB 56. A previous AFL-CIO complaint about the US Supreme Court's 2003 ruling in Hoffman Plastics that an unauthorized worker who was fired unlawfully for union activities and not entitled to back pay because of his unauthorized status brought the US government response that the executive branch cannot override the Supreme Court.
South Carolina's SB 20 has since January 1, 2012 required employers to use E-Verify to check the legal status of new hires, but exempts employers of seasonal farm workers, persons employed in private homes, and fishers with crews of 10 or less. When contacted in spring 2012, many of those who followed the progress of SB 20 through the legislature said they did not recall discussion of these employer exemptions from E-Verify.
Agriculture. There was considerable speculation in winter 2012 about growers' planting intentions in states such as Alabama and Georgia that enacted laws in 2011 making it a state crime for unauthorized foreigners to be in the state. Media reports implicitly highlighted two themes. First, many growers know very little about where their seasonal workers are from and what they do when they are not employed on their farms. If there is a market demand for labor-intensive crops, most growers have been planting and assuming that seasonal workers will be available when needed.
Second, there were frequent assertions that US workers are unwilling to fill seasonal farm jobs. Ted Campbell of the Florida Strawberry Growers Association made a typical statement: "American social systems tend to provide substantial compensation ? with continuously lengthening duration ? to our domestic unemployed, which can sometimes diminish or delay motivation to seek a low-end job."
Most stories did not emphasize that, historically, flexibility in the farm labor market is more often found on the demand rather than supply side of the labor market. As wages rise, farmers usually reduce their demand for labor rather than entice more US workers into the fields. The first US census in 1790 found that over 95 percent of Americans lived on farms. Today, less than two percent of Americans live on farms and produce far more food in a more mechanized agriculture.
If labor costs were to rise because of fewer unauthorized workers and more expensive guest workers, responses would vary by commodity. In some cases, harvest mechanization would be accelerated, as in California raisins. In others, new plantings would anticipate mechanization, as with Florida oranges and Washington apples. Recent growth in some labor-intensive commodities, including cherries and strawberries, may be slowed by higher wages that are passed on to consumers.
House. The House Subcommittee on Immigration Policy and Enforcement held a hearing on farm labor and guest workers on February 9, 2012. Subcommittee Chair Elton Gallegly (R-CA) said that the current H-2A program is "unworkable," but the retiring Gallegly did not indicate whether he favored the proposed American Specialty Agriculture Act (HR 2847) or the Legal Agricultural Workforce Act (HR 2895) as a replacement. Neither is likely to be enacted in 2012.
Both the ASSA and the LAWA would shift the administration of agricultural guest worker programs from DOL to USDA, eliminate the adverse effect wage rate, and allow dairies and other farmers who offer year-round jobs to be certified to employ H-2A workers. However, the LAWA would not tie guest workers to a particular employer, which would eliminate the need for farmers to provide guest workers with housing.
Most of the witnesses were farm employer representatives who agreed that the current H-2A program needs major changes. H. Lee Wicker of the North Carolina Growers Association (NCGA) called the H-2A program "costly, unpredictable and administratively flawed." The NCGA, which supports the ASSA, is the single largest user of the H-2A program, bringing about 7,000 Mexican workers a year to the US with H-2A visas.
The California Farm Bureau Federation's Paul Wenger, representing mostly employers who do not provide housing for their workers (most NCGA employers do provide housing), supports the LAWA. Wenger testified that California's wide range of perishable commodities makes it hard for farmers to plan their labor needs. Wenger, who emphasized that DOL certified 3,500 California farm jobs to be filled with H-2A workers in 2011, called for a flexible and market-oriented guest worker program.
Farm worker advocates in December 2000, after the election of President Fox in Mexico and Bush in the US, agreed with farmers on a AgJOBS proposal that would legalize currently unauthorized farm workers and make the H-2A program more employer friendly by modifying it to include some of the features that are in the ASSA and the LAWA. Despite bipartisan support, AgJOBS has not been enacted.
Bruce Goldstein testified that AgJOBS was the best immigration reform option for agriculture because it would allow currently unauthorized workers to legalize their status rather than admit new guest workers. He emphasized that H-2A workers are at least 10 percent cheaper than US workers because employers do not have to pay Social Security or Unemployment Insurance taxes on their earnings.
Goldstein expressed support for the Agricultural Labor Market Reform Act (HR 3017) of 2011 introduced by Rep Howard Berman (D-CA), which would grant blue-cards to unauthorized foreigners who did farm work during a 24-month period ending December 31, 2010. Blue-card holders who continued to do farm work could earn a regular immigrant status, and HR 3017 requires farm labor contractors to participate in the E-Verify program.
Some farm employers are seeking changes to the H-2A program without legalizing currently unauthorized farm workers. They warn that mandatory employer participation in the E-Verify system, which checks the legal status of new hires, will "destroy US agriculture" unless there are also employer-friendly changes in the H-2A program.
USDA Secretary Tom Vilsack echoed farmer concerns February 23, 2012, saying: "All of America, but especially farm country, needs comprehensive immigration reform, and we need it now? The sad reality is that crops will be raised in this country this year that may not be harvested because there simply is not the workforce to get the job done."
Vilsack suggested that without immigrant farm workers, some US farmers and commodities would not be economically viable, that is, low-wage immigrant farm workers are necessary to keep the production of some commodities in the US rather than being imported from lower wage countries. Vilsack endorsed AgJOBS by asserting that it would be too costly and disruptive to deport the 11 million unauthorized foreigners in the US.
The Western Growers Association (WGA) released a poll of 1,000 likely voters in March 2012 that found 70 percent of respondents supported a "streamlined and sensible" guest worker program for farm workers; 27 percent of those polled opposed a new agricultural guest worker program.
Under the WGA proposal that was presented to those polled, farm employers would post jobs for US workers and guest workers would arrive without families, work for up to 12 months, and leave. Only 40 percent of those polled supported the idea that current unauthorized workers could become guest workers but not immigrants. The WGA proposal would deduct payroll taxes and refund some of them to guest workers in their country of origin.
WGA said that "What we will propose as a bill will probably be something closer to what we wish for than what we might end up getting, but we need to get this out in front quickly."