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.

Thank you for the opportunity to comment on the U.S. Department of Labor’s
proposed revision of the 2008 H2A regulations. Georgia Fruit and Vegetable
Growers Association commented extensively when the present regulations were
proposed and were pleased with the final rule approved in January, 2009. We
hope our comments concerning the effects of these proposed revisions on
Georgia growers will be given equal consideration.

The Georgia Fruit and Vegetable Growers Association represents more than 400
members who are growers, packers, shippers and industry suppliers in Georgia,
South Carolina, Alabama and Florida. Fresh market growers are also employers
who depend on large numbers of temporary, seasonal workers to produce their
crops. Most of our larger growers have used the H2A program for almost a
decade to ensure their agricultural workforce is legal. These growers are the
Department’s more knowledgeable stakeholders.

Before we detail the changes to the regulation that we consider most detrimental
to the continued operation of H2A-staffed farms, we want to comment on the
justification offered by USDOL for the proposed revisions. The regulations have
been in effect for less than a year, but USDOL is proposing a major and …

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Mr. Thomas Dowd, Administrator
Office of Policy Development & Research
Employment and Training Administration
U.S. Department of Labor
200 Constitution Ave., NW
Room N-5641
Washington, D.C. 20210

RE: RIN 1205-AB55
Proposed Revision of H2A Regulations
For more than a decade Georgia H2A users have been actively involved in an effort to
make H2A regulations less complex. These growers are the “good guys,” agricultural
employers that are making every effort to do the right thing by operating within the law.
As H2A employers these growers use legal labor, provide their workers safe housing,
fair pay and good working conditions. However, these Georgia growers have suffered
financially from unfair competition by those in their industry who employ undocumented
agricultural workers present in our state and throughout other agricultural regions of the
country. Now Georgia’s H2A employers must also deal with significant operational
uncertainty caused by the US Department of Labor’s sudden suspension of the present
H2A regulations.
This rulemaking action by the USDOL allows only a ten-day window for affected
growers to comment and that truncated comment period falls during most growers’ peak
planning and planting season. To expect that the agricultural industry can suddenly
cease operations to immediately prepare a detailed response to an action of such
magnitude is unreasonable.
On January 17, 2009 the US Department of Labor, in compliance with the
Administrative Procedures Act, issued changes to the H2A program addressing many of
the concerns which growers had expressed for years. It is our opinion the changes
which were implemented on January 17, 2009 make the H2A program more workable and have encouraged more growers to participate. The H2A program under the present regulations has become a more viable option for all growers, regardless of size and financial status. As use of H2A increases due to the January 17th program improvements, any reasons to have underpaid, un-housed and unprotected agricultural
workers in Georgia will correspondingly decrease.
The USDOL’s March 17, 2009 arbitrary, unilateral and precipitous action to suspend the
January 17th regulations is inexplicable and will have a significant operational and
financial impact on Georgia’s H2A employers. Long-time H2A growers have already
planned for 2009 crop activities using current regulations to budget operating costs,
secure loans, plan personnel needs, finalize contracts and schedule product deliveries.
To impose different rules after operating loans and planting/harvesting schedules have
been established will result in tremendous disruption to these growers. Examples of
such disruptions are: types/amount of crops that can be planted, cultivated and
harvested, number of acres that can be planted, the size of the workforce hired to
perform the necessary duties. All of these questions affect marketing and contractual
decisions regarding sale of crops.
Additionally, if the January 17th rules are suspended, potential first-time H2A growers
may be discouraged from program participation because of confusion about the
reinstatement of the regulations which were the basis for their reluctance in the past.
Further, growers who may have been planning to use H2A but changed their minds due
to uncertainty regarding costs and operating rules will find it difficult at the last minute to
locate domestic workers in numbers sufficient to meet their needs.
Nowhere in the Federal Register is the economic impact of this precipitous rulemaking
addressed by the Department. It is inconceivable that after only six weeks under
regulations reviewed and then promulgated in compliance with APA, the Labor
Department could ascertain that a return to previous regulations is economically
beneficial to the Department, H2A employers or workers.
Comments from the Department suggest one of the reasons for suspending the
regulations was their concern that the Department lacked sufficient resources– both
people, equipment and ability to develop systems to operate the program under the
January 17th regulations. The Department stated that administering the suspended
rules would significantly overtax the agency’s infrastructure and negatively affect the
processing time required for labor work orders certification. To date in 2009, we are not
aware of any H2A employer in Georgia—one of the three largest H2A-using states—
that has experienced delay in receiving their requested certification under the
regulations that are in place. Most H2A employers have received their certifications in
an average of 5 days, which is quite acceptable and actually an improvement over
previous response periods.
The Foreign Labor Certification section of USDOL has processed H2A applications
manually in the past under more rigid review processes than are required by the present
self-attestation procedures. We do not understand why the new, simpler self-attestation
process would create more work than previously required.

Nor are we aware of any new resource issues with the Georgia State Workforce Agency
caused by the present regulations. Under the present regulations, SWA staff is
responsible only for housing inspections and placing job orders, a reduction in program
responsibility that should improve their utilization of H2A staff. Further, the deadlines for
housing inspections have been relaxed, allowing SWA inspectors more time to fulfill
their responsibilities than under the previous regulations.
If one of the USDOL’s purported reasons for the need for additional review of the
January 17th regulations is a claim that the new regulations could adversely affect
agricultural workers, the action is even more inexplicable. To the contrary, increased
use of H2A, with its “domestic workers first” requirement, will offer better working
conditions and higher average wages to ALL agricultural workers—particularly US
citizens and permanent residents who are presently competing with a largely illegal
workforce. The presence of an illegal workforce in any industry depresses wages for
that industry’s legal domestic workforce, as many studies have demonstrated.
The present regulations also significantly strengthen the enforcement role of the
USDOL. Improvement of enforcement to insure compliance with both H2A and other
labor laws administered by USDOL also guarantees better protections for all agricultural
workers.
The agricultural industry contributes significantly to the economy of the United States.
This sudden action is a breach of faith by the United States Department of Labor and
will have significant impact for years to come. The proposed action is a serious and
significant change in rule making.
We therefore urge the secretary to take the following actions:
1. The Department should reverse this action not only because of the hardship and
uncertainly it will cause to H2A employers, but because this rulemaking is in
direct violation of the Administrative Procedures Act. Agriculture production is a
difficult enough profession addressing day-to-day issues of crop pest pressures,
weather, market pricing and multiple-agency regulatory rules without having to
deal with having a new administration change the ‘labor rules’ with only 10 days
notice.
2. If action to immediately withdraw this action is not taken, at a minimum the
Department should lengthen the comment period to 60 days in order to
accommodate an affected industry that is presently in its peak production
season. (It should be noted that during the current regulations’ comment period
of 60 days, the same entities who have raised issues with their implementation
demanded that the Department allow 30 additional days for review and comment.
To require that the agricultural community complete their comments regarding
reversal with any degree of specificity within 10 days is unreasonable.)
3. Further, we urge the Department to create a review committee which includes
H2A users to advise the Secretary on issues affecting the H2A and any other agricultural program. We believe that the Department has no greater stakeholders than those who create the agricultural jobs in this nation.
Thank you for the opportunity to submit these comments.
Charles T. Hall, Jr.
Executive Director
Georgia Fruit and Vegetable Growers Association

TO:         All Members of the Georgia Congressional Delegation

We understand the so-called Employee Free Choice Act (EFCA) could be introduced into Congress in the very near future.  On behalf of the fresh produce growers in Georgia and the southeast, our association, the Georgia Fruit and Vegetable Growers Association strongly urges you to oppose this so-called ‘Employee Free Choice Act’ (EFCA).

This legislation would strip hard-working Americans of the opportunity to keep private their decision whether or not to be represented by a union. It would effectively replace private ballots in union elections with the very public “card check” recognition process, where workers are forced to express their views about the union in front of union organizers, by signing or not signing an authorization card. The card check process subjects employees to increased risk of exposure to intimidation, coercion, and peer pressure, all in an effort to obtain signatures on a majority of cards.

Intimidation and coercion can be leveled by both the employer and the union. A secret ballot process protects employees from abuse by either side. No matter what happens prior to the election, once an individual steps into a private voting booth the decision is theirs alone to make. Even if there is no overt coercion, the Seventh Circuit Court of Appeals observed, “workers sometimes sign authorization cards not because they intend to vote for the union in the election, but to avoid offending the person who asks them to sign, often a fellow worker, or simply to get the person off their back.”

EFCA also contains a provision that mandates compulsory, binding arbitration on the employer and the employees as part the collective bargaining process if an agreement cannot be reached within the first 120 days of negotiations. This misguided language would have a third party, government official impose the terms of a labor contract that are binding upon both parties, even if one or both parties find those terms unacceptable.

GFVGA urges you to oppose this legislation.  We need to make small businesses, including our Georgia  family farms, more competitive, incentivize the growth of new business, and encourage job creation—passage of the EFCA will result in the opposite.

Sincerely,

Charles T. Hall, Jr., Executive Director

Georgia Fruit and Vegetable Growers Association