Revisions to H-2A (Temporary Agricultural Worker Visa Program)

Rule Places Heavy Burden on Georgia Growers

The Georgia Fruit and Vegetable Growers Association is opposed to the US Department of Labor’s recent revisions to the H2A program which could drastically reduce Georgia’s production of fruits and vegetables.  The new regulations will significantly increase Georgia’s fruit and vegetable producer’s labor costs by more than 25%.  This includes at least a $1.86/hour wage rate increase, decreased flexibility in managing or assigning workers’ duties, creating additional burdensome paperwork and will add substantially to users’ risk of fines, enforcement actions and litigation. 

Although the Department states the new changes are necessary to protect workers, the revisions to the H-2A program will likely force many Georgia farmers out of the H-2A program altogether, resulting in fewer workers protected under the H-2A program.  This program was authorized by Congress to assure that a reliable and sufficient labor supply will be available to U.S. agriculture at the time of need.  The new rule will make an already cumbersome and costly process even more difficult for growers to access, afford and manage, forcing Georgia growers to look for other labor sources to plant and harvest their crops. 

The new H-2A regulation replaces 2008 reforms that were a step forward in balancing the needs of growers with the responsibility of protecting workers. This is the third effort by the Department of Labor in less than fourteen months to change the 2008 rules.   

Specific areas of concern for the new H2A revisions include the following:

• Retains and increases penalties while taking away operational, paperwork and cost advantages offered under the 2008 Rule. 

Examples include:

1.    To solve the problem of delays in getting workers to the farm to begin work on the day  the contract begins, the 2008 Rule allowed growers to attest to their compliance with housing standards until the state could schedule inspections.  The REVISED rule reinstates the requirement that housing MUST be inspected before USDOL will approve the application.

 2.   The 2008 Rule also allowed a significantly abbreviated application process in which growers could attest to compliance with program requirements but in return, for the attestation the guidelines stepped up subsequent monitoring, auditing and enforcement.  The REVISED rule returns to the tedious application process AND retains the increased audit, monitoring and enforcement activities.

• Tremendously increases employer liability with a return to the 50% rule, despite a study conducted by the Department in 2008 recommending the elimination of the 50% rule.  The 50% rule requires employers to hire all US workers who apply for an H2A job until half of the season is complete. This often adds the cost of additional training and unneeded workers to the payroll if H-2A workers are already in place.

 

• Expands upon already-onerous, expensive, and unproductive advertising and recruitment requirements, despite the Department’s own admission that some of the advertising is inefficient and outdated.

 

• Replaces a streamlined application process with an elongated, paperwork-intensive process that not only could result in long delays in worker arrivals but strains state agencies’ already limited budget resources as they struggle to meet deadlines.

 

• Reinstates a flawed, non-market-based Adverse Effect Wage Rate (AEWR) which makes the program unaffordable for many farm jobs. No other industry is forced into an artificial wage rate model which has little or no relationship to prevailing wages for the work done.  This ‘guaranteed’ wage rate (AEWR) averages about $2 more an hour than the Federal minimum wage in most states.  In addition this ‘guaranteed’ AEWR averages a 4% increase each year – which is significantly more than cost of living increases in the private and government sectors or more than most pension plans, including Social Security.

 

• Up-front costs to growers for each H-2A worker will increase significantly due to the mandated addition of border crossing, visa fees, recruitment fees and reimbursements of travel expenses during the first week of employment rather than at the 50% point. Some of these costs will be unpredictable and therefore unanticipated budget items, such as the requirement that the worker’s travel must be paid to and from the point of recruitment (usually his home) rather than to and from the point at which he accepted employment (usually a US consulate).

 

Charles Hall, Executive Director of the Georgia Fruit and Vegetable Growers Association noted the new regulations could harm the agricultural worker that the new regulations were designed to help by decreasing the number of agricultural jobs available to them.  He said, “The new regulations will cripple, even could destroy, the only legal program available to growers who want to employ workers who want to work in agriculture and are legally authorized to do so. And with the loss of agricultural jobs, we could see a real decrease in fruit and vegetable production in the southeast when increased offshore production becomes more cost-effective to growers and consumers alike.”

According to Bill Brim, co-owner of Lewis Taylor Farms in Tifton, GA and a H-2A employer since 1998, many government officials and DOL staffers feel growers are displacing U.S. citizens that want to work when guest workers are employed.  Brim said, “These officials don’t realize that most US workers want jobs that are not as physically demanding as field production.  If high wages were what attracted US workers, we would have plenty working on our farm right now.  Here in GA, we were offering more than $8.50/hour when everybody else was paying less than $7 per hour, before minimum wages went to $7.25/hour.  In addition we offered free housing and we didn’t have many takers.  So, without a guest worker program that I can afford and use, there’s no way to get my produce in or out of the ground.”

With the increased difficulty in job advertising, record-keeping requirements, potential for litigation, and costs of the program there is real concern many growers may be driven away from the program altogether.  H-2A employer Bo Herndon, President of L.G. Herndon, Jr. Farms in Lyons, GA said, “I would love to employ US workers instead of using the H-2A program but that is not reality.  Now with these new changes in the regulations it will be tough for many of us to stay in the program. I think there will be a lot of growers getting out of the H-2A program.”

According to Dan Bremer, President of AgWorks, Inc, a labor consulting firm that helps ag employers meet the legal requirements of the H-2A program, the new regulations would not create jobs for local communities.  Bremer said, “Fruit and vegetable growers in Georgia create a lot of jobs in the communities supporting the growers up and down the distribution channel including production, packing, shipping and retail marketing.  These H-2A farmers go the extra mile to provide a legal workforce, safe transportation, decent housing and fair pay systems that is also open to local and domestic workers that want to apply.  Now to add almost $2.00 per hour to their wage rate and other onerous record-keeping to their burden is not sustainable and patently unfair.”

Bremer also said there is overall concern that the Department of Labor and State agencies will not have the staff resources to support the certification and regulatory processes in time to meet growers needs.  The regulations go into effect on March 15, 2010 and growers are preparing work orders for the summer and fall.

For more information contact Charles Hall, Executive Director of the Georgia Fruit and Vegetable Growers Association, 706-845-8200, chall@asginfo.net.   

Contributors to this article included: Dan Bremer, AgWorks; Bill Brim, Lewis Taylor Farms; Frank Gasperini, National Council of Agricultural Employers; Charles Hall, Georgia Fruit and Vegetable Growers Association; L.G. Herndon, Jr.(Bo), L.G. Herndon Farms; Bob Redding, The Redding Firm; Sherry Sparks, AEGIS Consulting. For more information contact GFVGA at 706-845-8200.