Industry groups say the Trump administration's plan to make the H-2A farmworker visa program easier for growers to use would instead drive up their labor costs and create new wage disparities.
Farm organizations applauded the proposals to streamline the H-2A application process, but they are calling on the Labor Department to scrap a proposed overhaul of the way that wages are calculated.
“The Department’s proposal negates the benefits of the streamlining provisions, by continuing a wage structure that is subject to change drastically year-to-year and increases record-keeping burdens for H-2A users.” the American Farm Bureau Federation said in comments filed with the department.
AFBF said the 489-page plan would raise minimum H-2A wages significantly for many farms, especially for small to medium-size operations.
Tuesday was the deadline for the industry, advocacy groups and the public to comment on the sweeping proposed rule released by the department in July. The department declined to extend the comment period.
A coalition of farmworker advocacy groups also criticized the plan, saying it would make it harder for U.S. residents to compete with H-2A workers.
“The Department’s decisions regarding the H-2A program are increasingly significant as every year more employers apply for H-2A certification and the program continues to spread geographically. Unfortunately, DOL’s decision to revise the H-2A program would exacerbate the harms that are inflicted on both H-2A and U.S. workers,” say the advocacy groups, which include Farmworker Justice, United Farm Workers and Public Citizen.
However, the advocacy groups expressed support for some proposed tweaks to the wage rate calculations, including the proposal to incorporate additional survey data.
The plan makes a number of changes in the way the program is administered, including farms to stagger the hiring of H-2A throughout the growing season without having to file multiple applications, but the department would not expand the program to year-around workers, a priority of the dairy industry.
Some groups, including AFBF and the United Fresh Produce Association, said the department should allow for annual visas.
“While the law states that the program should be for temporary and seasonal industries, it allows for a visa to be offered for up to one year. Despite that provision in the law, the regulations include an arbitrary cap of 10 months per visa stay,” United Fresh said, noting many of its growers have growing seasons that last up to 12 months a year.
Joe Wright, president and chairman of Florida-based Southeast Milk Inc., a producer cooperative, told the department new labor for dairy farms in his state is nonexistent. "Local workers do not want to work on a dairy farm milking cows,” he wrote.
AFBF said “there is no statutory basis to treat industries that fall under special procedures any differently from industries without access to the program.”
Most of the criticism of the rule centered on how the department calculates “adverse effect wage rates,” or AEWR, which set a floor for what farms typically have to pay the workers based on prevailing regional wages for farm labor.
The rates are currently based on the gross hourly rate for field and livestock workers, based on the semiannual farm labor survey compiled by USDA’s National Agricultural Statistics Service. Supervisors, agricultural inspectors, graders and sorters of animal products, agricultural equipment operators, construction laborers, and crop laborers are all the assigned the same state or regional rate. The plan also would incorporate Bureau of Labor Statistics' survey data when NASS data is insufficient.
Another change could require wages to be adjusted mid-contract.
AFBF calculated the impact of the proposed new wage-setting method on farms of various sizes and said H-2A labor costs for small and medium-sized farms would have been 10% higher in both 2016 and 2017 and 9% higher in 2018.
For large-sized sample farms, H-2A rates would have been 4% higher in both 2016 and 2017 and 3% higher in 2018, although there are a few states where rates could have been lower under the new formula, including Arizona, Kansas, New Mexico, South Dakota and Texas.
AFBF and other groups raised concerns about basing wage rates on as many job categories as the department proposed.
“A farm or nursery where one field worker is called upon to drive a tractor once or twice should not be required to pay its entire workforce of field workers as 'equipment operators' — a premium wage on top of the already-premium H-2A wage levels,” said AmericanHort, which represents greenhouse growers.
“Likewise, if a returning field worker shows newer employees how to perform a given task occasionally, he or she is not magically transformed into a 'supervisor' or 'manager.'”
Some groups suggested the wage rates formula should be scrapped in favor of tying the rate to a certain percentage over the minimum wage.
United Fresh said it is conceptually “a good idea to disaggregate the data by occupation so that higher level and salaried employees do not artificially skew wages in favor of relatively entry level workers.” But the group said basing wages on “too many wage categories” could “enhance volatility in the wages required to be paid.”
The California Farm Bureau Federation also supported the idea of tying the AEWR to the minimum wage, saying that one of the challenges with calculating rates by differing job responsibilities "could be that too many wage categories will enhance volatility in the wages required to be paid."
AFBF also raised concern about a proposal to limit the wage survey to U.S. employees only, “out of concern that undocumented agriculture worker wages may depress the wages of workers in the U.S. similarly employed.
“AFBF objects to this proposal because of the potential legal implications for employers and the fact that H-2A responses, which would result in inflated prevailing wage rates, remain in the data collection,” the organization said.
The farmworker advocates said the proposed changes to wage calculations would have a mixed impact.
"For many states and regions this proposed methodology results in a slight increase in the AEWR, which is justified by the fact that the purpose of the AEWR is to establish a wage rate that, in the absence of a prevailing wage survey or other reliable determination, can approximate the wage rate needed to ensure that U.S. workers are not dissuaded from accepting H-2A jobs because they are not competitive with local wage rates," the groups said.
But the groups noted that according to their analysis there could be wage rate cuts in some areas of the country.
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