Comments on Proposed Changes to H-2A Program

Comments on Proposed Changes to H-2A Program
Adele Gagliardi
Administrator, Office of Policy Development and Research
Employment and Training Administration
U.S. Department of Labor
200 Constitution Avenue NW, Room N-5641
Washington, DC 20210
Re: Temporary Agricultural Employment of H-2A Nonimmigrants in the United States
RIN 1205-AB89

Dear Ms. Gagliardi,
Thank you for this opportunity to comment on the proposed changes to the H-2A program. The Northeast Organic Farming Association Interstate Council (NOFA-IC) wishes to stand on record in opposition to most of the proposed changes to the H-2A temporary agricultural worker program. While the proposal makes a few changes that are helpful to farmers, most of the changes make conditions worse both for foreign workers who wish to come to work on US farms and for farmworkers who are already in the U.S. employed on U.S. farms and thus, ultimately, worse for the future of farming in the U.S. The proposed regulations would decrease farmworker wages, increase their travel costs, decrease oversight of their housing conditions, weaken enforcement of H-2A standards, and reduce job opportunities for U.S. farmworkers. Furthermore, the proposed changes will disproportionately favor the largest farming operations and labor contractors at the expense of family-scale farms.

Founded in 1971, the Northeast Organic Farming Association is one of the oldest organic farming education and advocacy groups in the country. NOFA is a regional federation of seven independent state Chapters in NY, VT, NH, MA, CT, RI and NJ. Beyond work on state initiatives, the Chapters work together regionally, nationally and internationally via the NOFA Interstate Council (NOFA-IC), a separate 501(c)(3) organization.

The U.S. food supply depends on the work of over two million farmworkers, most of them foreign born and more than half of them lacking legal status. The million undocumented farmworkers live in constant fear of detention, family separation and deportation, and the farmers who employ them live in constant fear of losing their employees, including workers who have served farms for many years and hold positions of responsibility. The H-2A program offers the only legal alternative to hiring undocumented people, but it is a poor substitute for root solutions to the farm labor needs of U.S. farms.

The members of NOFA believe that this country will never have a farming system that is worth sustaining until farm work is elevated to the status it deserves, contributing as it does to one of the basic functions of human existence. Workers on farms should be treated with respect, paid living wages for a 40 hour work week with full benefits, including health insurance,

unemployment insurance and Workers Compensation. They should receive adequate training in health and safety and their work should not expose them to toxic materials that threaten their health and the health of their families. They should have the same right to freedom of association as workers in other sectors of the economy. If these conditions were fulfilled, qualified immigrants as well as U.S. residents would be attracted to farm jobs.

In the short term, any credible reform to U.S. policies regarding farmworkers must retain H-2A provisions regarding compensation, housing, and transportation; strengthen protections against employer harassment and unfair practices, including wage theft, particularly focusing on H-2A labor contractors; provide H-2A farmworker access to courts regarding legal grievances against employers, like wage theft and harassment; and establish a significantly altered program that provides for flexible work stay duration, the ability to change agricultural employers, and the full integration of presently undocumented farmworkers, including a path to permanent legal status, including the option of citizenship. Unfortunately, the proposed rule changes to the H-2A program are regressive, making matters worse.

The DOL proposed changes weaken the recruitment requirements and the protections for U.S. workers that allow them first access to available jobs. Instead of importing foreign workers, undocumented workers who are already in the US should be provided with legal status so that farmers can legally hire them without fear of committing a felony.

Under the existing H-2A law, farm employers who would like to hire temporary foreign workers must first obtain a labor certification from the US Department of Labor (DOL) stating that they face a labor shortage and that they are offering wages and working conditions that will not adversely affect US farmworkers’ wages and working conditions.

The DOL proposal eliminates the 50% rule that gives U.S. workers preference for available jobs for the first half of the work contract period, reducing it to the first 30 days of a contract. This change means that U.S. workers applying for work at an H-2A employer with jobs lasting multiple months would be ineligible for the job after the first 30 days. The proposal also includes a “staggered entry” provision, a new system that would allow farmers to bring in H-2A workers at any time up to 120 days after the advertised initial date of need. This provision also makes it harder for US farmworkers to know when jobs might be available to them.

The DOL proposal would allow farmers to make changes to the job terms without providing the H-2A workers, or U.S. workers who may also be working at a farm, with any voice in the changes.

Guestworkers generally lack bargaining power to demand improvements in conditions and higher wages, due to their restricted non-immigrant, temporary status and other factors, including the debt they often owe upon arriving in the U.S. Foreign workers who have traveled long distances and often made great sacrifices for their families should be able to negotiate any changes to the terms of work that they were promised before coming to the U.S. and there should be a process for appeals.

DOL should withdraw the wage proposal because it will cause, not prevent, adverse effects to U.S. workers’ wages. DOL should continue to use the USDA Farm Labor Survey to determine the AEWR. Additionally, DOL should not weaken the prevailing wage requirement, but instead ensure that prevailing wage determinations are made and implemented.

Particularly concerning is that the DOL proposal will probably result in lower wages for farm workers. The existing low wages is one of the primary reasons that farm jobs are unattractive to many US citizens; lowering them will only make things worse. Under the current H-2A regulations, workers’ wages must be at least the higher of: (a) the local “prevailing wage;” (b) the state or federal minimum wage, (c) the agreed-upon collective bargaining rate; or (d) the “adverse effect wage rate” (AEWR). The AEWR is intended to ensure that the hiring of guestworkers does not undermine (“adversely affect”) the wage standards for U.S. farmworkers. The proposal would change the methodology for calculating the AEWR. Currently, the DOL sets an AEWR for each state based on the USDA’s Farm Labor Survey (FLS). Under the proposal, the first source for the AEWR would be USDA’s FLS; however, if the FLS does not report an annual average hourly gross wage for the standard occupational classification (SOC) for that job in the state or region, the AEWR would instead be the statewide annual average hourly wage for the SOC reported by the Bureau of Labor Statistics’ Occupational Employment Survey (OES). The practical impact of these and other technical changes is that farmworkers’ wages will likely decrease. As the DOL itself acknowledges, the OES does not even survey farms, but rather surveys establishments that support farm production, such as farm labor contractors, who are among the lowest paying employers of farmworkers. Thus, the OES should not be used as a source of the AEWR. DOL’s own explanation of this proposed methodology shows that if it had been used in 2018, some workers at H-2A employers would have earned lower wages.

We also strongly oppose the proposed changes regarding the longstanding requirement that farmers offer a local prevailing wage if it is the highest wage. Under the H-2A program, there are supposed to be surveys of the prevailing wage for U.S. workers for particular jobs in local labor markets (while the AEWR measures wages in a broader set of jobs and wider geographic area). Under the proposal, DOL would only require consideration of a prevailing wage rate if the DOL’s Office of Foreign Labor Certification (OFLC) issued a prevailing wage, which would be based on the state workforce agency (SWA) submitting a wage survey that must meet a number of challenging requirements. It is likely that few prevailing wage determinations would be issued. In some jobs, the local prevailing wage rate for particular jobs is a significantly higher wage than the state AEWR. In the absence of the prevailing wage determination, however, H-2A employers could lawfully offer below-market wage rates. For low-wage farmworkers these could be very harmful pay cuts.

The DOL should withdraw the proposed changes to the transportation reimbursement. This cost should continue to be covered by employers, not workers.

The proposed regulations would shift some H-2A program costs from farmers to H-2A workers. The H-2A program for decades has required that farmers reimburse workers for their long-distance travel costs to the place of employment. Now, DOL proposes to only require farmers to pay the costs of transportation for H-2A workers to and from the U.S. consulate or embassy in their home country, rather than their homes. Yet workers often live far from consulate locations and are recruited where they live. DOL acknowledges that farmworkers will lose tens of millions of dollars per year from this change, which is money they cannot afford. Many H-2A workers borrow money to pay such costs and arrive in the U.S. under great pressure not to risk employer retaliation due to their fear that they will be unable to repay their loan. This change will only drive foreign workers further into debt to travel to jobs in the U.S. and make them more vulnerable to exploitation by unethical employers.

Despite high profile stories of dangerous and substandard housing under the H-2A program, the proposed regulations would allow housing to be provided to farmworkers without annual inspections by government agencies.

If a state workforce agency (SWA) notifies the DOL that it lacks resources to conduct timely, preoccupancy inspections of all employer-provided housing, DOL would allow housing certifications for up to 24 months, during which time conditions could deteriorate to unsafe levels. Further, following a SWA inspection, DOL would permit employers to “self-inspect” and certify their own housing. Given the high rates of violations of the minimal housing standards that apply, it is deeply troubling that DOL could allow vulnerable H-2A workers to live in housing that has not been inspected annually by a responsible government entity.

The proposed changes do include some modest improvements to address health and safety concerns regarding housing that must be provided to H-2A workers and long-distance, migrant U.S. farmworkers. In a very troubling development as the H-2A program spreads to new areas where there is limited housing, some H-2A employers have been housing workers in motels or other rental or public accommodations. Under the proposal, where there is a failure of the applicable local or state standards to address issues such as overcrowding, adequate sleeping facilities, and laundry and bathing facilities, among others, DOL would require that the housing meet certain OSHA standards addressing those issues. While this is a step in the right direction, greater protections, including improved standards, are needed for H-2A housing. Furthermore, the effectiveness of these improved standards could be undercut if there is not a sufficiently strong system for and commitment to inspections and enforcement of housing violations.

The surety bond requirement must be substantially increased and coverage extended to cover more H-2A farmworkers, as the victims of harassment.

The proposal includes a modest improvement requiring an increase in the bond amounts required to be posted by H-2A labor contractors (H-2ALCs). This is important because H-2A labor contractors are unable to pay back workers for labor violations. DOL has recognized the need for higher surety bonds, but the increases are insufficient. Improvements are also needed to help victimized workers access the bonds. However, the proposal fails to address a number of other significant challenges workers face with H-2ALCs, and the already troubling lack of transparency with H-2ALCs will be exacerbated by the proposed changes. Too often farm operators seek to keep their labor costs low by hiring H-2ALCs and seeking to use the H-2ALCs as a shield to escape responsibility. The DOL is well aware that labor contracting is a notorious method for farmers to evade responsibility for the mistreatment of farmworkers, but its responses to these abuses are utterly inadequate.

The Department of Labor should withdraw the harmful proposed changes to the H-2A program consistent with these comments.
In addition, there are serious shortcomings in the program’s policies, administration and enforcement that this proposal utterly fails to address. For example, in many locations around the country there are no prevailing wage surveys being done and therefore the prevailing wage is not required to be paid by H-2A employers, who are allowed to undercut the labor market. The Department and other agencies have also failed to prevent recruitment fees being charged to many farmworkers under the H-2A program, which leads to greater debt and contributes to the workers’ vulnerability and fear of challenging unfair or unlawful conduct. Discriminatory job qualifications are applied to U.S. workers by employers that prefer guestworkers. There are also rampant violations of farmworkers’ labor rights, including occupational safety protections.