LAS VEGAS — Election-year politics will present a big challenge to reform efforts for H-2A regulations, but growers must be prepared to lobby for changes in the increasingly important farm labor program, Mike Carlton believes.
Carlton, director of labor relations for the Florida Fruit & Vegetable Association, spoke about the agricultural guest worker program in a Jan. 15 speech at the 2020 Potato Expo called “H-2A or Bust.”
Carlton said U.S. agricultural employers used 257,667 certified H-2A workers in 2019, up 6.1% from 242,762 workers in 2018, 9.3% higher than 235,200 workers in 2017, and 28.5% higher than the 200,000 approved in 2016.
However, the government’s agricultural labor survey, which dictates H-2A wage increases, caused an hourly rate increase of 22% in one state this year . Overall, all U.S. states saw wage rates for the H-2A program increase at least 4% this year, he said.
“The adverse effect wage rate is a real stumbling block for the program and is not sustainable long-term,” Carlton said.
One change in the program is the increasing importance of farm labor contractors relative to the H-2A program.
Carlton said 41% of 2019 H-2A workers were certified under farm labor contractors, compared with just 12% in 2013.
“The business model for agriculture is changing dramatically,” Carlton said.
In fiscal year 2019, the top state using H-2A workers was Florida. Carlton said Florida employed nearly 34,000 workers in 2019, up from about 6,000 workers in 2008.
Carlton said the Trump administration’s 489-page rulemaking proposal, released in July last year, to modernize and streamline the H-2A program offers a number of positive provisions, including:
- Allows staggered entry for all;
- Allows 14 day ‘grace period’ for start date;
- Eliminated useless newspaper ads for ag work; and
- Allows post-certification amendments to the job order.
However, Carlton said the proposed regulation also includes some provisions that concern ag employers, including:
- Increases farm labor contractor surety bonds exponentially;
- Does not correct ‘Definition of Ag’ issue;
- Says contracted wage rate will change if it goes up – but not if it goes down;
- Does not change the adverse effect wage rate calculations.
Asking for action
Meanwhile, Carlton also provided an update on Congressional action on the legislative solutions. The House of Representatives passed the Farm Workforce Modernization Act by a vote of 260 to 165, with 25 Republicans supporting the bill. The legislation, which he called a “real attempt at bipartisanship,” gives a path to legal status for the current workforce, and seeks reforms to the H-2A program. Eventually, it would require that agricultural employers participate in the E-Verify program, Carlton said.
Carlton said some helpful changes the legislation proposes include:
- Single platform to file with State Workforce Agency, Department of Labor, and the Department of Homeland Security;
- Adverse Effect Wage Rate (AEWR) – maximum increase per year of 3.25% and maximum decrease of 1.5% up to year 2029;
- Wage rate at time of contract will not change with new adverse effect wage rate;
- Allows a limited number of year round workers but with caps;
- Allows some staggered entry; and
- Still no cap on seasonal workers.
Areas of concern with the legislation, Carlton said, include:
- Farm Labor Contractor access to staggered entry;
- What happens to wages after 2029;
- Caps on year round visas;
- Wage disaggregation;
- Added Migrant and Seasonal Agricultural Worker Protection Act coverage;
- Definition of Agricultural Labor and Services;
- Doesn’t not allow farm labor contractors to haul product from the field to processing/packing house;
- Does not allow cooperatives to participate; and
- Does not allow packing houses not physically located on the farm to participate.
Carlton said the Republican-controlled Senate may consider developing a separate bill and not take up the House bill. The challenges, of course, include election year-politics and Republican opposition to farm worker legalization efforts.
He asked potato growers to urge their U.S. senators to act on farm labor legislation.
“Our ask is to please call your senators,” Carlton said. “You don’t have to say we need you to pass this bill;; just say that (Congress) needs to fix the ag labor problem,” he said. “Get their attention; the bottom line is that our ag labor issues are dependent on Congress.”