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April 2010, Volume 16, Number 2

H-2A: Old Rules, Reactions, Cases

DOL on February 12, 2010 issued a final H-2A rule effective March 15, 2010 that reinstates the 1987-2009 rules, with a few twists. The H-2 program was created in 1952 and modified by the Immigration Reform and Control Act (IRCA) in 1986; it became the H-2A program in 1987. In FY09, employers filed 8,150 labor certification applications requesting 103,955 H-2A workers, and DOL certified 94 percent, approving requests for 86,014 H-2A workers.

The H-2A program has three key elements. First, employers must apply to the US Department of Labor and receive certification that foreign workers are required to fill vacant seasonal farm jobs, generally defined as those lasting less than 10 months. Second, farm employers must offer foreign and out-of-area US workers free housing that has been inspected by state employment agencies to ensure that it satisfies federal and state standards. Third, employers must offer and pay workers the higher of the federal or state minimum wage, the prevailing wage, or an Adverse Effect Wage Rate, which is the average hourly earnings of field and livestock workers reported by employers the year before.

AgJOBS would streamline the H-2A program, making it more employer friendly by substituting attestation for certification, allowing employers to provide housing vouchers instead of housing, and rolling back the AEWR and studying it.

DOL in 2008 proposed to change the H-2A program as proposed in AgJOBS. DOL issued regulations effective January 17, 2009 to allow employers to attest to their need for foreign workers, to relax housing rules, and to change the basis of the AEWR to DOL Occupational Employment Statistics (OES) wage survey. Worker advocates, who agreed to most of these changes in AgJOBS in order to win legalization for unauthorized farm workers, sued unsuccessfully to block them. For example, a UFW suit that alleged DOL's switch from the USDA survey to the OES was arbitrary was rejected in March 2010 by the US District Court for the District of Columbia, which found that DOL "offered an explanation that is reasonable and consistent with the regulation's language and history" to justify the switch to the OES.

DOL in March 2009 rescinded the changes, but a federal judge in June 2009 ordered DOL to honor the Bush rules until DOL engaged in a new rulemaking process. This new rulemaking process resulting in the regulations issued February 12, 2010 that return the H-2A program to a certification process, require state workforce agencies to inspect and approve the housing offered to H-2A workers, and use the USDA survey to calculate the AEWR. The February 12, 2010 regulations also introduce a new national electronic registry to post job vacancies for farm employers seeking certification to hire H-2A workers (USAJobs--www.usajobs.gov), include loggers but not reforestry workers under the H-2A program, and require US employers to provide a contract in the foreign worker's language before the worker leaves for the US.

DOL justified its decision to rescind the Bush-era H-2A rules by noting that H-2A applications fell in 2009, so streamlining did not increase participation in the H-2A program. DOL concluded that the 2008 shift from a USDA survey of employers to a DOL survey of employers to determine the Adverse Effect Wage Rate lowered wages for most farm workers by about $1 an hour. If 100,000 US and H-2A workers averaged 1,500 hours each on farms that used the OES data to determine the AEWR, employers saved about $1,500 x 100,000 or $150 million with the rule that was in effect in 2009.

Reactions. Farm employers expressed disappointment with the February 12, 2010 regulations and predicted that employer applications for H-2A workers would decline. Tom Nassif of the Western Growers Association echoed many farm employers: "Even with an economy that is suffering through 10 percent unemployment, domestic workers are not applying for these jobs. We know our produce is going to be harvested by foreign workers. The question is: Will it be here in the U.S. or will it be abroad?"

Sonoma County's Jeff Carlton, who hires foreign workers under the H-2A program, said "by adding more layers of bureaucracy to the process, it will be tougher for us to find workers, because no one around here wants to do this work." Many farm employers use intermediaries to recruit H-2A workers in Mexico, usually paying about $1,000 for visa expenses and travel to the US work site.

Stan Eury of the North Carolina Growers Association, the largest single H-2A user, complained in an interview with the Packer on February 26, 2010 that the revised H-2A regulations would raise the wages of H-2A workers in North Carolina by an average $1.75 an hour and make it easier to prevent employers who violate H-2A regulations from using the program. Eury believes the revised H-2A regulations are aimed at increasing support for AgJOBS; Eury opposes AgJOBS because it does not "fix" the H-2A program to provide "legal workers when and where they need them at a reasonable cost."

The American Farm Bureau Federation and the NCGA filed suit in March 2010 to block the new regulations. A North Carolina federal judge in April 2010 refused their request to issue an injunction to block implementation of DOL's March 15, 2010 H-2A regulations. As a result, North Carolina farm employers requesting H-2A workers after March 15, 2010 must offer and pay at least $9.59 an hour; the AEWR in California is $10.25 in 2010, $9.20 in Florida, and $10.85 in Washington.

Several Colorado growers reported that they were switching from H-2A to local workers. Bob Sakata of Sakata Farms said "we decided in June [2009] to hire local people who were filling out job applications. We realized it would take more tender love and care, but we did it" for 200 workers. The Colorado Farm Bureau said that peach growers on the Western Slope "seem to be hiring a lot of local people" in 2009 and 2010.

Dairy farmers were especially disappointed that they remained excluded from the H-2A program by the 2010 regulations because they offer year-round jobs. Under a long-standing exception that H-2A jobs be seasonal, sheepherders with H-2A visas are allowed to remain in the US up to 36 months; dairy farms wanted similar treatment.

Worker advocates praised DOL for largely restoring the 1987-2008 H-2A regulations and adding a provision that the negotiated wage in collective bargaining agreements will be the AEWR on the few farms that have union contracts and H-2A workers.

Representative Ed Whitfield (R-KY) introduced HR 4835 in March 2010 to eliminate the Adverse Effect Wage Rate (AEWR) and allow employers to pay H-2A workers the higher of the federal minimum wage or the prevailing wage paid to similar US workers.

Global. Los Angeles-based Global Horizons http://gmpusa.com) was ordered in March 2010 to pay $1.4 million to attorneys for US workers displaced by Thai H-2A workers; Global was also ordered to pay $535,000 to 650 US workers in the class-action suit.

Global and Green Acre Farms of Harrah and Valley Fruit of Wapato were found guilty of violating H-2A regulations by rejecting qualified US workers in favor of Thai H-2A workers. Global's Mordechai Orian testified that Thais were preferred because "they work really hard" and were less likely to "abscond" or leave the employers to whom they were assigned. A federal judge ruled that Global must pay the legal costs of Green Acre and Valley Fruit because Global did not have a valid Washington labor contractor's license.

A separate suit filed on behalf of 150 Thai H-2A workers against Global is pending. The Thais allege that they paid $10,000 to $17,000 each in recruitment fees to obtain jobs at Green Acre and Valley Fruit. Global's contract with the Thai recruiter, AACO International Recruitment, did not stipulate how AACO would be paid; the suit alleges that this shows that Global knew AACO would charge the workers for recruitment services.

The Thai workers say they were promised $8.71 an hour and 40 hours a week for a year. Most of the workers arrived in Washington in May-June 2004 and returned to Thailand in November 2004. The suit seeks payments representing the difference between what the Thais would have earned by working 2,000 hours at $8.71 an hour and their actual earnings, plus recruitment payments made in Thailand.

Bill Jackson, "New regulations will complicate using migrants for farm work," Greeley Tribune, March 6, 2010. Tom Karst, "Q&A|Stan Eury, North Carolina Growers Association," The Packer, February 26, 2010. Christine Souza, "Farmers say new H-2A rule adds cost, complexity," Ag Alert, February 17, 2010.


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