Farm groups are questioning the legal authority for two H-2A proposals that they say would dramatically alter the current employer-employee relationship and drive up costs.
A Labor Department proposal would add protections for farmworkers, identifying six conditions for termination “for cause,” and proposes that new wage rates go into effect immediately upon release, rather than weeks later after publication in the Federal Register.
A proposal from the Department of Homeland Security would allow H-2A workers to move between employers as seasons and labor demands change.
Comment periods closed Monday for the DHS plan and Nov. 14 for the DOL proposal.
Under this administration, producers using the temporary worker visa program have faced eight new rulemakings, finalized or initiated, that National Association of State Departments of Agriculture CEO Ted McKinney said could force some to entirely change their operations to grow less labor-intensive ag products, resulting in higher food prices.
But a letter from 43 House Democrats voiced strong support for the H-2A proposed rules. The lawmakers said DOL's proposal is an “important effort to add new protections to promote worker self-advocacy, better protect H-2A workers against retaliation, make foreign labor recruitment more transparent and enhance the department’s enforcement ability.”
On the other hand, House Agriculture Committee Chairman Glenn Thompson, R-Pa., and Education and Workforce Committee Chairwoman Virginia Foxx, R-N.C., called for DOL to withdraw its rule. “The proposed rule exceeds DOL authority, is a giveaway to Big Labor, infringes on farmers’ property rights and is overly burdensome in numerous other ways,” the committee chairs said.
Many comments from agricultural entities express concern that the proposals signal the agencies believe most employers are not trying to do the right thing. The American Farm Bureau Federation said of the 17,688 unique H-2A employers that filed for workers in 2023 only 99 are debarred from the program.
Kristi Boswell, Alston and Bird
“The starting point of this rulemaking is, should the department be focusing more on current enforcement of current regulations rather than just layering on more regulations that make it harder to use the program and maybe not even improving worker safety?” Kristi Boswell, an ag labor policy specialist with Alston and Bird, told Agri-Pulse.
The Labor Department noted that only 5% of employers are responsible for 70% of the violations, and commenters urged the agency to focus on training and help with compliance, rather than a heavy-handed approach. “We want focused enforcement on violators,” Boswell said.
The House Democrats said that fewer than 1% of ag employers are investigated each year. When DOL does check on an ag employer the department finds wage and hour violations 70% of the time, “indicating that wage theft by employers is grossly undetected.”
Boswell said the DOL proposal shows that the Biden administration “is highly influenced by unions.” She said it allows unions more access to farms and even creates protected activities within the H-2A program that “Congress explicitly exempted farmworkers from” as it relates to union rights.
Washington state farmer Michael Azzano filed comments stating the DOL rule change is “seeking to limit, both for employers and employees, due process, worker privacy, housing and personal property security, and executive overreach in allowing a right to unionize despite a congressional exemption for farmworkers.” Azzano added that the proposed changes endanger worker and employer security, silence employers’ free speech rights and seek to punish farmers for the practices of recruiters in other countries.
Michael Marsh, president and CEO of the National Council of Agricultural Employers, said the DOL proposal would also “violate worker privacy by requiring employers to collect and turn over to potentially malign actors, the personal information of their workers.”
Regarding the wage rate changes, Boswell said the biggest frustration is not even about the pain of the wages, but rather the cumbersome process for a producer to monitor Bureau of Labor Statistics and USDA’s website to establish pay rates. The change also comes on top of another regulatory update earlier this year establishing varying pay rates for different farm jobs and requiring employers to pay farmworkers the highest rate, regardless of time spent on a specific task.
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Sen. Tommy Tuberville, R-Ala., filed comments that criticized the proposal to make wage increases immediate. “Applying immediate adjustments to payroll strips employers’ ability to plan, take out loans or maintain their available labor pool,” he wrote.
The North American Meat Institute said although generally it does not support the DOL proposal, it suggested the department could have regulatory authority and flexibility to amend and expand the H-2A program for industries such as meat processors. Currently the seasonality requirements of H-2A workers prohibit the meat processing industry from utilizing H-2A workers.
Michael Marsh, National Council of Agricultural EmployersThe House Democrats said the DHS proposed rule is an “important effort to modernize and improve the H-2A temporary visa program by strengthening worker protections, improving recruiter accountability and providing greater flexibility for H-2 workers.”
NASDA and the American Farm Bureau Federation detailed concerns in the DHS proposal over its proposal to allow H-2A workers to move between employers as seasons and labor demands change.
AFBF said “employers are concerned that providing a 60-day grace period after an employer has spent considerable time and expense for the H-2 worker to arrive in the United States could lead to H-2 workers arriving and quitting to spend this time period to search for a different, higher-paying H-2 job.”
NASDA also stated it is “relatively concerned that the ability of an H-2A employee to up and leave for new work during the middle of a harvest could potentially result in lower productivity and financial losses for some producers.”
In comments filed on behalf of the Farm Labor Organizing Committee, AFL-CIO (FLOC), the group endorsed the creation of a 60-day grace period and said it “would increase workers' flexibility and allow workers to resign from abusive employers without the fear of losing their H-2A visa status and the opportunity to find new employment.”
Another component of the DHS rule is banning employers from forcing prohibited fees upon their employees. The International Fresh Produce Association said it wants to work with DHS to “increase the integrity in the H-2 programs, to prevent to the extent feasible the threat or charging of prohibited fees and that the worker is reimbursed fully for any unlawful fee. However, as proposed, the department unfairly places [the] burden upon petitioners to prevent the unlawful collection of fees and issues unjust consequences if they fail.”
DHS is proposing to allow an H-2 worker to have “dual intent” of being an immigrant and a nonimmigrant for purposes of obtaining a green card. AFBF said farmers welcome the change, but asked the department to clarify if employers can sponsor H-2A workers for permanent positions, even if they’re also seeking temporary workers in that same position.
Boswell said implementation of the rules will realistically take at least nine months to a year.
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