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Farm Labor, Immigration, and Welfare -- Philip Martin

Farm Labor, Immigration, and Welfare

Philip Martin

October 5, 2000

Introduction............................................................................................................................................. 1

FVH Agriculture....................................................................................................................................... 5

Table 1 California Farm Employers and Workers Hired: 1997........................................................ 6

California Farm Employers and Workers Hired: 1997....................................................................... 6

Farm Workers............................................................................................................................................. 7

Figure 2 Characteristics of CA Farmworkers................................................................................... 9

The 3R’s of the Farm Labor Market......................................................................................... 11

Recruitment........................................................................................................................................... 11

Reward or Motivation.................................................................................................................. 13

Retention................................................................................................................................................. 14

Immigration and Agriculture................................................................................................. 15

The Debate: 1990-98.............................................................................................................................. 17

AgJOBS: 1998-2000.................................................................................................................................... 20

Welfare Reform....................................................................................................................................... 23

Conclusions.............................................................................................................................................. 26

Bibliography............................................................................................................................................. 26

Appendix: Federal MSFW Programs.......................................................................................... 27

Introduction
Agriculture is perhaps the only industry in California in which the major issue at the dawn of the 21st century is the same as they were at the dawn of the 20th century, viz., what is the proper role of federal and state regulation of wages and working conditions in a labor market staffed largely by immigrant workers with few other US job options? Farm labor was a public policy concern in 1900 because agriculture was the state’s largest employer; farm labor is a public policy concern in 2000 because agriculture is the port of entry for many immigrants from Latin America. Since these newcomers and their children are future Californians, decisions made on farm labor today will shape California tomorrow.

California has had large and specialized farms dependent on migrant and seasonal workers since it became a state in 1849. The two most important dates in early California agricultural history were 1869, when the transcontinental railroad was completed, lowering transportation costs and encouraging crop production that required seasonal workers, and 1882, when the state’s fledgling labor-intensive agriculture was challenged by the Chinese Exclusion Act. Having workers willing to wait at their own expense to fill seasonal jobs because discrimination kept them out of urban labor markets raised land prices, and gave farm employers an incentive to preserve access to what Varden Fuller called an "unAmerican" labor supply.

Most farm organizations wanted to transplant Iowa to California, to develop a system of family farms--meaning that most of the farm's work was done by family members--to create what they considered viable rural communities. Thus, stopping Chinese immigration was welcomed by those who thought that using government policy to change the farm labor supply would in turn change the size and specialization of farms. However, waves of other immigrants willing to accommodate to sesaonality because they had few other US job options became available--Japanese in the 1890s and early 1900s, Mexicans in the 1920s, Dust Bowl migrants in the 1930s, and Mexicans since the 1940s--so that labor supply changes did not force structural changes in agriculture.

Federal policy toward farm workers almost changed in the 1930s. Farm workers were excluded from the National Labor Relations Act of 1935, the Social Security Act of 1935, and the Fair Labor Standards Act of 1938. However, a series of books and reports on farm labor in California in 1939-40 set the stage for treating at least the largest US farms like nonfarm employers. The US Senate’s Education and Labor Committee subcommittee chaired by Robert LaFollette (R - WI), provided the record to argue that farms in California were akin to farm workers, and John Steinbeck’s novel, The Grapes of Wrath, added an emotional touch to the calls for farm labor reforms.

Instead of reforms, World War II gave farmers the labor shortage argument they needed to win permission to recruit Mexican workers, laying the ground work for contemporary Mexico-US migration and the dominance of Mexicans among farm workers. Under a series of so-called Bracero (strong arm) programs that began as a war time emergency in 1942, between 1 and 2 million Mexicans gained experience working on US farms.

As with many guest worker programs, the number of Braceros got larger and the program lasted longer than expected. Admissions peaked in the mid-1950s, when almost 500,000 Braceros were admitted each year. Over the objections of US farmers and the Mexican government, the Bracero program was ended unilaterally by the US in 1964, amid predictions that US fruit and vegetable prices would skyrocket and that the nonfarm US workers employed to transport and process the commodities harvested by Braceros would be left jobless as labor-intensive crop production shifted to Mexico.

Predictions about how agriculture would adjust to the end of the Bracero program proved to be false. Instead of shifting to Mexico, fruit and vegetable production rose as US demand expanded with higher incomes and more health-conscious Americans, and mechanization reduced the need for hand workers in many commodities. The absence of newly arrived workers without other US job options enable the fledgling United Farm Workers (UFW) union to win a 40 percent wage increase for some table grape pickers in 1966, raising the minimum wage under UFW contracts from $1.25 to $1.75 an hour at a time when the federal minimum wage was $1.25 an hour.

Farm wages rose rapidly between 1965 and 1980, as the extension of federal and state labor laws and protections to farm workers, union activities, and relatively few newly arrived immigrants led to a construction-style labor market in some commodities and areas, marked by high hourly and weekly earnings when seasonal work was available, and maximum unemployment insurance payments when work was not available.[1] The UFW, seeing the hiring halls of the construction and maritime industries as models, wanted union-run hiring halls to be the major organizing device in the farm labor market, that is, farmers would transmit their requests for seasonal workers to a UFW-run hiring hall, which would then dispatch workers to fill the job. Under such a system, worker seniority and benefits could be tied to the union, not to the farm on which a seasonal worker happened to be employed.

The UFW’s high water mark came in 1973, when it claimed 180 contracts covering 40,000 farm jobs and 67,000 members, a ratio of 1.7 members per job. Some farmers became convinced they would have to deal with some union representing their workers, and many expressed a preference for the Teamsters--in the absence of a labor relations law, farmers could switch their union representative without elections.

This changed on August 28, 1975, when California’s Agricultural Labor Relations Act went into effect. The ALRB, with a $1.5 million budget, was very busy in its first five months after the first election was held September 5, 1975 at the Molera Packing Company near Salinas. After five months of operation, the ALRB reported that by the end of January 1976 it received 604 election petitions, or an average 4 a day, and conducted 423 elections involving over 50,000 workers; objections were filed in 80 percent of the elections. The ALRB received 988 ULP charges in its first five months of operation, almost 7 a day, and issued 254 charges, or almost 2 a day. Beginning with Eugene Acosta et.al. (1 ALRB 1), the Board issued 27 decisions in its first year of operation. After failing to get a supplemental appropriation of $3.8 million, the ALRB closed between April 3, 1976 and June 30, 1976.

The UFW won most of the first elections held in the late 1970s, and had 108 contracts with an average entry level hour wage of $3.38 in 1978, a time when the federal minimum wage was $2.65 an hour. In January 1979, the UFW called a strike in support of a demand for a 40 percent wage increase in the vegetable industry, from a minimum $3.75 to $5.25 an hour. The strike contributed to reduced lettuce production and higher lettuce prices. Imperial county, for example, normally sent about 10 million cartons of lettuce to market in February at a price of just under $4 a carton for total revenues of almost $40 million. In February 1979, only 7 million cartons were marketed, and the price was over $10 a carton, for total revenues of $70 million. The strike was settled with some growers in summer and fall 1979, with minimum wages under union contracts rising to $5 or more at a time when the federal minimum wage was $2.90, i.e., some farm workers under union contract were guaranteed almost twice the federal minimum wage. Several commentators noted that the UFW was able to use the strike " to win wage parity with industrial workers." (Business Week, March 5, 1979).

The minimum wage under UFW contracts continued to increase in the 1980s, but the number of contracts declined. According to contracts in the UCD farm labor contract collection, the minimum wage in UFW contracts peaked at $6.20 in 1985, when there were 28 contracts (the federal minimum wage was $3.35 an hour). The number of UFW contracts has remained in the 25 to 50 range since, and the minimum wage guaranteed under UFW contracts in effect in 2000 ranges from $7 to $8; the federal minimum wage in 2000 is $5.15, and the state minimum wage is $5.75.

The 1979 was described as a Pyhrric victory for the UFW because (1) many growers learned they could use labor contractors and custom harvesters to obtain newly arrived immigrant workers, especially after the Mexican peso was devalued in 1982, and (2) some of the companies such as Sun-Harvest that signed contracts offering higher wages went out of business. Unions hoped that the Immigration Reform and Control Act of 1986 would usher in a new era in farm labor, as legalized workers would be more willing to demand wage and benefit increases and employers would be encouraged by market forces—no more unauthorized migration—to grant them.

About half of the 1.2 million foreigners legalized under the Special Agricultural Worker program were legalized in California. However, illegal immigration continued at high levels and California experienced a recession in the early 1990s, so that the farm labor market was often described as “flooded,” and there were more cases of wage and benefit cuts then increases. (Martin and Taylor, 1990; CAW, 1992). Instead of voicing the need for change via the unions, most legalized farm workers exited the farm work force for nonfarm jobs. They were replaced by newly arrived and often unauthorized workers, so that, in 1996-98, an estimated 52 percent of California crop workers were believed to be unauthorized.

FVH Agriculture
Most US and California farms are family operations, owned and operated by a farmer and family members. Many family farms produce crops and livestock, ensuring that there is some work to be done year-round. However, the farming subsector that accounted for half of California’s $27 billion in farm sales in 1998 is different. So-called FVH farms that produce labor-intensive fruit and nut crops, vegetables and melons, and horticultural specialties such as flowers and nursery products usually rely on hired workers to do over 90 percent of the farm’s work.[2] California produces about 44 percent of the US’s FVH crops, and hires 40 percent of US farm workers.

Most farm employers, even in California, are relatively small; their inclusion in regularly published data obscures the concentration of production and employment on the largest farms. In most commodities, the 10 largest of 500 to 1,500 growers account for 30 to 60 percent of total employment. However, the major source of detailed farm employment data, the Census of Agriculture, groups labor data in categories that mask this concentration. In 1997 the COA reported that 36,450 California farms hired 549,265 workers—a worker hired on two farms was double counted. The 9,500 farm employers who hired 10 or more workers accounted for 85 percent of the workers hired in California, i.e., 26 percent of farm employers accounted for 85 percent of workers hired. More detailed data would show that the largest 500 to 1000 farm employers accounted for 50 to 75 percent of these hires.

Table 1 California Farm Employers and Workers Hired: 1997
California Farm Employers and Workers Hired: 1997


Farms
Workers
Farms
Workers

1-4 Workers
58%
8%
21,060
46,055

5-9 Workers
16%
7%
5,841
37,983

10 or More
26%
85%
9,549
465,227

Source: Census of Agriculture, California, 1997

Many of the businesses that benefit from the work of farm workers do not appear as farm employers in employment data. For example, Dole Fresh Vegetables in Salinas is listed under wholesale trade, SIC 5148, Fresh Fruits and Vegetables as are D'Arrigo Brothers and Fresh Express.[3] Many of Dole’s US subsidiaries do not hire farm workers directly. Instead, they contract with US growers to produce, under Dole standards, fruits and vegetables that Dole buys, an arrangement that makes these contract growers the employers of the workers producing Dole commodities. Dole's Bud Antle subsidiary, based in Salinas, CA, employs 7,000 farm workers sometime during a typical year to fill about 3,000 jobs harvesting lettuce and other vegetables; these workers are represented by Teamsters Union Local 890.

Farm Workers
Most US and California workers are Hispanic immigrants, an impression left by visiting fields, and most farmers are older non-Hispanic white men. Farming is often described as a career and a way of life; farm work is a short-term job, not a career, usually lasting less than 15 years for seasonal workers.

Farm labor data are notoriously unreliable, and the two major sources paint very different pictures of farm worker characteristics. The Current Population Survey[4] reported that farm laborers were 29 percent Hispanic in 1993 (Ilg, 1995). The US Department of Labor, charged with determining whether there were likely to be farm labor shortages in the wake of IRCA, decided to develop a new survey of farm workers. The National Agricultural Worker Survey (NAWS) was designed measure entrances to and exits from the farm work force each year. Unlike the CPS, which is based on random sampling of households and thus generates an estimated total population number as well as worker characteristics, the NAWS interviews farm workers who are employed in on crop farms in selected US counties and generates only a profile of these workers, not a count.

The major change in the NAWS data in the 1990s is the falling percentage of workers legalized in 1987-88 and the rising percentage of unauthorized farm workers. In 1989, 37 percent of crop workers were Special Agricultural Workers who had been legalized under IRCA; by 1998, their share had fallen to 15 percent. In 1989, about 8 percent of US crop workers were unauthorized; that percentage rose to 52 in 1998.


Crop workers in California are much like crop workers in the rest of the US. In the mid-1990s, 95 percent were foreign-born, including 91 percent who were born in Mexico.[5] About 53 percent were in the US less than five years, and 26 percent were in the US less than two years. About 48 percent were of the farm workers interviewed were legal immigrants, and 42 percent were unauthorized, with the unauthorized share rising 3 to 4 percent a year.

Figure 2 Characteristics of CA Farmworkers


About 82 percent of California crop workers were men; their median age was 30, and 63 percent were under 34. About 61 percent were married; most married farm workers have families, with an average three children each. About 60 percent of California farm workers in the mid-1990s had their families living with them while they are doing US farm work, while 40 percent left their families outside the US. Two-thirds of the workers interviewed had less than eight years education—their median years of schooling was six.

Crop workers in California do farm work for about half the year at hourly wages slightly above the minimum. Over the year, farm workers interviewed in the NAWS averaged 23 weeks of farm, three weeks of nonfarm work and 26 weeks without US farm work. About 91 percent were employed in fruits and vegetables, and most of their jobs did not involve harvesting-- about 70 percent were pruning, irrigating and other non-harvest operations. Workers averaged 42 hours a week while they were doing farm work at $5.69 an hour, for average weekly earnings of $239 and annual farm earnings of $5,500-- 55 percent earned less than $7,500 in 1996.

About 70 percent of crop workers in the NAWS were hired directly by growers or farm management companies in the mid-1990s; 30 percent were hired by FLCs. Workers employed by FLCs had lower hourly earnings and were twice as likely to be paid piece rate wages as workers hired directly.

In California, farm workers must be covered by unemployment insurance (UI) and workers compensation (WC) insurance. Both programs are experience-rated, which means that employers with fewer laid-off workers seeking UI benefits or fewer injured workers seeking medical treatment pay lower taxes and premiums. Most farm employers pay WC premiums that are 10 to 20 percent of wages, and UI taxes average 5 to 6 percent of wages. In addition, employers and workers share equally the 15 percent Social Security tax, and workers pay for State Disability Insurance, which provides partial wage replacement to employees who are unable to work because of pregnancy or non-work related illness or injury.

Mandatory insurance premiums and taxes add 23 to 33 percent to the cost of employing a farm worker earning $6 an hour. In the nonfarm economy, most employers provide workers with other benefits, including health insurance, vacation pay, and pension benefits, and these cost employers the equivalent of 15 to 25 percent of earnings. Relatively few seasonal farm workers receive such fringe benefits. For example, only 5 percent of crop workers reported in the NAWS that they received health insurance in the mid-1990s, 4 percent earned paid vacations, and 5 percent lived in employer-supplied housing. One reason for the paucity of benefits such as health insurance is that they are expensive for low-wage workers. Nonfarm US employers paid an average $1 an hour for health insurance in 1998 ($2 an hour for union workers),[6] which makes premiums a high percentage of hourly wages. For example, the 1996-2000 contract between the UFW and Bruce Church Inc, a Salinas lettuce grower, guaranteed workers at least $7 an hour, and BCI contributed $1.10 an hour for health insurance, meaning that health insurance alone added 16 percent to labor costs.[7]

California manufacturing workers earned an average $13.66 in 1998, or more than twice average farm worker earnings. On an annual basis, full-time equivalent workers in agriculture earned an average 40 percent as much as manufacturing workers, with full-time equivalent livestock workers averaging $20,000, almost half the $42,000 in manufacturing, and full-time equivalent agricultural service workers averaging $15,000, about 37 percent as much as manufacturing workers.

The 3R’s of the Farm Labor Market
Recruitment
Labor markets handle three essential tasks—recruitment, reward or motivation, and retention. The California farm labor market deals with these “3R” tasks in unique ways. Recruitment and supervision are usually done by bilingual foremen or FLCs in the language of the worker.

Farming has been consolidating so that fewer and larger farms account for an increasing percentage of farm sales. Economic efficiency would suggest that a similar consolidation should be occurring in farm employment, so that workers needed to fill seasonal jobs report to central clearing houses from which farmers recruit workers. There are several candidates to be clearing houses for seasonal farm workers, including the public employment service (ES), union hiring halls, private labor exchanges and employer associations. Throughout the 20th century, employer associations and the ES played major job matching roles in seasonal agriculture, but their importance declined sharply in the 1970s and 1980s; in 1995-96, the ES in California reported 10,662 agricultural applicants, including 6,533 MSFWs (California Statistical Abstract, 1999).

There are 800,000 to one million job matches a year in California agriculture, and most are made by (1) bilingual foremen employed directly by farmers and (2) farm labor contractors. Recruitment is usually done without employer ads or requests to the ES for workers; it is more common for foremen to tell current employees that additional workers are needed, and to recruit them via networks of current employees. In this manner, relatives and friends from the same village or area of Mexico often wind up working no the same US farm.

Farm labor contractors (FLCs) are often blamed for the ills of the farm labor market. FLCs are intermediaries who, for a fee, organize workers into crews and arrange jobs for them; many FLCs also provide workers with other services, from financing their illegal border crossing to housing and meals. FLCs have a different relationship with farm employers than with farm workers. It is usually hard for a FLC to “cheat” a farm employer, since farm employers often survey themselves to arrange a standard piece rate as well as the FLC commission or overhead fee. For example, farmers may agree to pay $10 a bin for picking oranges or peaches, plus a 32 percent overhead for the FLC to cover payroll taxes, toilets and drinking water, and recruitment and payroll expenses.

Farm workers hired by FLCs, on the other hand, are often newly arrived from Mexico, and do not know about prevailing piece rates, minimum wages, or required payroll taxes and deductions. As the U.S. Industrial Commission explained in the early 1900s, contractors dealing with immigrants from the same country can "drive the hardest kinds of bargain" with newly arrived immigrant workers because they know the circumstances from which farm workers come (US Commission on Immigration, 1911, quoted in Fisher, 1952, p. 43).[8] Many of the most abusive violations of labor laws continue to be found among FLCs hiring newly arrived immigrant workers.

Beginning in the 1960s, the federal and state governments attempted to regulate FLCs to prevent them from taking advantage of vulnerable workers, first by getting to identify themselves to the government by registering. Since then, a three-tiered registration system has developed: FLCs must be registered with the federal, state, and local governments (county agricultural commissioners), and state registration requires providing fingerprints, a bond, and passing a test demonstrating knowledge of labor, safety and pesticide regulations. The state maintains a list of about 1,200 registered FLCs, and encourages growers to utilize only registered FLCs by making growers jointly liable for labor law violations committed by unregistered FLCs.

Bills in the California Legislature that would have automatically made growers jointly liable for the labor law violations committed by FLCs on their farms failed in 1993 and 2000, although a bill establishing a farm labor contractor license verification unit within the state labor commissioner's office was approved. Worker advocates argue that strict joint liability is needed to get growers to ensure that the FLCs who bring workers to their farms abide by labor laws. Farm employers counter that, just as homeowners who hire a contractor to work on their homes are not liable for labor law violations committed by the contractor while he has a crew working at their homes, so farmers should not be liable for violations committed by independent FLC businesses when they have crews on their farms.

Reward or Motivation
Wages reward and motivate work. Many farmers use a so-called “warm body” test in hiring, hiring as many people as were willing to work, but keeping labor costs constant and predictable with a diverse work force by paying piece or task rate wages.[9] Piece rate wages have persisted longer in agriculture than in nonfarm industries, in part because most farm employers were exempted from federal and state minimum wage laws after they were applicable to nonfarm employers and workers.

After minimum wage laws were applied to agriculture, farmers were required to keep records of the hours each employee worked and how many units of work each employee accomplished. If the employee did not work fast enough at the grower-set piece rate to earn the minimum wage, the employer had to make up the difference. Most farm employers terminated workers who did not work fast enough to earn the minimum wage at the piece rate offered, establishing an “iron triangle” between minimum wages, piece rates, and minimum productivity standards. For example, if the minimum wage is $5 an hour, and the employer is paying a piece rate of $10 a bin, then workers must pick an average one-half bin an hour to earn the minimum wage; slower workers may lawfully be terminated.

Piece rate wages motivate workers to work fast, requiring an employer monitor of the quality of the work done. However, the detailed record-keeping requirements to ensure compliance with minimum wage laws encouraged more farmers in the 1990s to pay their workers hourly wages. Hourly wage systems increase the need for monitoring the pace of work. Crews of workers paid hourly wages often include a foreman or crew pusher who sets the pace for workers walking through a field hoeing weeds, or require harvest workers to follow a conveyor belt through the field and place lettuce, broccoli, or melons on it—the speed of the machine controls the pace of work.

Retention
The third key labor market task is retention, identifying and keeping the best workers employed during the season and getting them to return next season. The job ladder in agriculture is short, resembling a pyramid with a wide base and short sides. Upward mobility within agriculture usually involves movement from seasonal harvester to longer-season equipment operator or irrigator or crew leader.

Most farmers are more interested in ensuring that enough seasonal workers will be available when they are needed rather than in ensuring that a particular worker identified by the farm employer’s personnel system returns next year. This leads most farm employers to favor collective pressure on the federal government to provide agriculture with easy access to foreign workers.

For the past 120 years, there have been fears of farm labor shortages. However, farm labor has never been a binding constraint that prevented the expansion of labor-intensive crop production. Indeed, the federal government has usually permitted the recruitment of legal foreign farm workers or tolerated the presence of unauthorized workers, encouraging the flood rather than the drip farm labor strategy.

The US in 2000 may be nearing another farm labor cross roads. Unemployment rates nationally are at their lowest rates in several decades, and farm workers able to find nonfarm jobs are exiting the farm work force, to be replaced by unauthorized workers. Farmers thus become vulnerable to the removal of these unauthorized workers, and they are pressing for another easy-access guest worker program. Farm worker advocates oppose another guest worker program; instead, they favor an amnesty for at least some currently illegal workers. However, if the experience of the 1987-88 farm worker legalization repeats itself, newly legalized farm workers will quickly move on to nonfarm jobs. Unless illegal immigration is slowed, vacant jobs will once again be filled by newly arrived unauthorized workers.

Immigration and Agriculture
In the 19th century, US agriculture in general, and California agriculture in particular, were considered land-abundant and labor short. Labor shortages were compounded in California by the dominance of large farms growing fruit and vegetable crops that required large numbers of harvest workers.

The first seasonal farm workers were the 12,000 Chinese workers who had been imported to build the railroad through the Sierra Nevada mountains. When they were released by the railroad companies in 1870, they were kept out of urban jobs by anti-Chinese movements (Fuller, 1940, 19809). Chinese immigration was halted in 1883, and the next wave of immigrant farm workers were from Japan. Japanese immigration was stopped in 1907, and workers were imported from present-day India and Pakistan. The US began to restrict immigration after World War I--the 1917 Immigration Act, for example, imposed a head tax on immigrants and excluded immigrants over 16 who could not read in any language. However, CA farmers asked the US government to suspend the head tax and literacy test for Mexican workers coming to the US for up to one year to work on US farms, and the government agreed. Thus began US-government approved recruitment of Mexican farm workers.

Mexican migration for US farm work was stopped by repatriations during the Depression, and the arrival in CA of dustbowl farmers from the midwest. In 1942, US government-approved Mexican migration for farm work resumed, and continued until 1964. So-called Bracero workers were imported under a number of agreements but, between 1942 and 1964, more Mexicans were apprehended in the US than were admitted as legal farm workers, i.e., illegal immigration occurred alongside legal migration. Both apprehensions and Bracero admissions measure events and not unique individuals--the same person could be apprehended several times, and the same person could be legally admitted as a Bracero several times.

After the Bracero program ended in 1964, some Mexican workers became US immigrants who commuted seasonally from homes in Mexico to farm jobs in the US. During the 1960s, Mexicans could become so called green-card commuters by obtaining a letter from a US employer offering a job, and certifying that the employer sought and failed to find a US worker to fill it-- most of the 50,000 to 60,000 Mexican immigrants admitted each year in the mid-1960s were believed to be ex-Braceros who got immigrant status as a result of a US employer offering them jobs.

During the 1970s and early 1980s, US citizens and greencard commuters were joined in the fields by unauthorized or illegal alien workers. As IRCA moved toward approval in 1986, CA farmers argued strongly that they needed easy access to Mexican and other foreign workers. The "farm labor" compromise in IRCA permitted illegal alien farm workers who had done at least 90 days of US farm workers to become immigrants. These Special Agricultural Worker (SAW) provisions permitted 1 million Mexicans--about one-sixth of the adult men in rural Mexico--to become legal US immigrants.

If SAWs did not remain in US agriculture, US farmers could obtain legal foreign workers through two programs. The H-2A program is a non-immigrant program that admits foreign workers to fill vacant jobs after the US government certifies that the farmer tried and failed to recruit US workers. The Replenishment Agricultural Worker (RAW) program, by contrast, was a four-year safety valve--if SAWs left agriculture, and labor shortages developed, then RAW probationary immigrants could be admitted.

The Debate: 1990-98
IRCA created a Commission on Agricultural Workers to review the agricultural provisions of 1986 immigration reforms. The Commission’s 1992 report concluded that IRCA had not led to the virtuous circle envisioned, viz, a legal farm work force and higher farm wages and benefits, because of “an oversupply of labor resulting from continuing illegal immigration and a stagnant economy with little job growth in competing sectors.” (Commission on Agricultural Workers, 1992, xix). The Commission noted that “a large proportion of [legalized farm workers] SAWs who were identified as working within agriculture after obtaining legal status appear to continue to work in seasonal agricultural services” and that “the national supply of agricultural labor has been more than adequate for the past several years…the attrition of newly legalized workers from agriculture has been much less rapid than expected.” (Commission on Agricultural Workers, 1992, xxi, xxii, xxxi). These findings justified one of the Commission’s central conclusions, viz., “neither an extension of the RAW program nor any new supplementary foreign worker programs are warranted at this time.” (Commission on Agricultural Workers, 1992, xxvi).

During the 1990s, farm employers had one program through which they could obtain legal foreign guest workers—the H-2A program, named for the section of US immigration law that authorizes it. The H-2A program has existed for almost five decades, and has three essential features:[10]

· Certification: farm employers must convince the US Department of Labor of the need for a foreign worker on a job-by-job basis. DOL will not certify the need for foreign workers unless an employer can offer housing and promises to pay the higher of the minimum, prevailing, or Adverse Effect Wage Rate (AEWR)

· Contracts. Employers recruiting US workers must complete an ETA-790 form that fully describes wages and working conditions so that the ES can circulate the job offer among ES agencies to see if US workers are interested. The employer’s ETA-790 form becomes a contract between the employer and the US or H-2A worker who fills the job.

· Oversight. Under the H-2A program, the US farm employer must continue to hire US workers until 50 percent of the work period has passed, so that an employer recruiting workers for an eight-week harvest must accept US workers until the 5th week.

The number of H-2A workers certified by DOL as needed to fill vacant farm jobs has almost tripled between FY95 and FY99, from 15,117 to 41,827, largely because of the growth of H-2A admissions in North Carolina and Georgia, where many H-2A workers hand harvest tobacco. Worker advocates and independent studies find that the H-2A program does not always protect US and foreign workers as intended. For example, a US worker who responds to fill a job advertised by an employer seeking DOL certification for H-2A workers may be deemed “not qualified” by the US employer and not hired. The GAO found that DOL does not have an effective mechanism for checking on whether US workers not hired should have been hired (GAO, 1988a, 2000).

Farm labor lobbyists kept fears of farm labor shortages alive among growers, and in February 1995, the National Council of Agricultural Employers released a proposal for a supplementary foreign worker program to fill temporary or seasonal US jobs, which was introduced in Congress by Rep Richard Pombo (R-CA) in 1996 as the "Alternative Agricultural Temporary Worker Program" designed "to provide a less bureaucratic alternative for the admission of temporary agricultural workers." This proposal would have permitted farmers to attest that they needed foreign workers rather than be certified as needing foreign workers, as under the H-2A program.

Under the Pombo proposal, defeated on a 242-180 vote March 21, 1996, farmers wanting to employ foreign farm workers would have had to file at least 25 days before the job was to begin a labor condition attestation (LCA) with their state Employment Service office. Local ES offices would have had to approve the employer attestations if they:

· promised to pay the higher of the local prevailing wage or the minimum wage;

· spelled out working conditions, housing and transportation arrangements that would not adversely affect local workers; and

· promised to give preference to US workers who applied for the job until five days before work began.

To encourage foreign workers to leave the US when their farm jobs end, 25 percent of the foreign workers' wages would have been placed into a federal trust fund, and trust fund monies would have been used to pay for emergency health care for the foreign workers in the US. Returned migrants could get their withheld wages and any unclaimed trust fund monies in their country of origin.

In January 1997, Senator Larry Craig (R-ID) introduced the Agricultural Work Force and Stability Protection Act, S 169, which would have reduced the minimum time that growers must recruit US workers under the H-2A program from 60 to 40 days and shifted the burden of recruiting US workers from the employer to local Employment Service offices. Instead of providing free housing before being certified to need H-2A workers, farmers could provide local and foreign workers with a housing allowance and let the workers seek their own housing. The Craig proposal would have eliminated the AEWR, the concept that the government must act to prevent wages from being depressed by the presence of foreign workers, and required farmers to pay only the higher of the minimum wage or the "median rate of pay for similarly employed workers in the area of intended employment."

Later in 1997, Rep. Bob Smith (R-OR) introduced a scaled-down version of the Pombo proposal, limiting the guest worker program to a 24-month pilot program for a maximum 25,000 temporary foreign agricultural workers. Employers would have filed attestations with local ES offices promising to pay minimum or prevailing wages to be permitted to hire these workers, who would migrate within one of five "geographically and agriculturally diverse areas" created by USDA.

Congress did not act in 1997, awaiting a report by the General Accounting Office on whether a new guest worker program was needed. On December 31, 1997, the GAO issued a report that concluded there are "no national agricultural labor shortage at this time" and that "a sudden, widespread farm labor shortage requiring the importation of large numbers of foreign workers is unlikely to occur in the near future.” The GAO did not dispute the presence of a significant percentage of unauthorized workers in the farm work force, citing the 38 percent unauthorized estimate of the NAWS in 1995-96, but downplayed the concerns of farmers that there would be stepped up enforcement of immigration laws that could lead to farm labor shortages. The GAO concluded that there was not likely to be enforcement-caused farm labor shortages because: (1) the INS was concentrating on removing criminal aliens etc., not inspecting agricultural work places[11] and (2) unemployment rates indicated an ample supply of farm workers--11 of 20 large US agricultural counties in June 1997 had unemployment rates more than twice the US rate of 5.2 percent.