Editor’s note: This was recorded before the Department of Labor’s issuance of its interim rule for Adverse Effect Wage Rate Methodology for the H-2A guestworker program.
Labor has been a challenge in agriculture for a long time. However, it seems as though the stakes keep getting higher and higher, to the point it feels like something has to give. Michael Marsh, president and CEO of the National Council of Agricultural Employers, who has been in the thick of the fight joins The Packer Podcast to discuss why he thinks now is the right time for change.
Marsh says NCAE and its members have been a part of a couple of recent victories — namely, a court case vacated the Department of Labor’s 2023 Adverse Effect Wage Rate (AEWR) Methodology rule and the USDA’s discontinuation of the Farm Labor Survey, which sets H-2A wage rates.
Marsh says he feels as though USDA Secretary Brooke Rollins and Department of Labor Secretary Lori Chavez-DeRemer really do want to make agriculture great again, and he says he’s optimistic that there will be an Interim Final Rule released soon to provide more clarity on the future of ag labor in the U.S.
“I’m hopeful that the fact that we’ve had the Department of Agriculture communicating with the Department of Labor, that we’re going to get something out,” he says. “It’s just sad that we had to litigate so much of this, when instead, if we’d had thoughtful regulation coming out, perhaps we wouldn’t have been involved in so many lawsuits in court trying to turn back what we had in the recent past.”
Marsh says some of the challenges in the past that have led to the current state of agricultural labor is some of the regulatory moves versus legislative moves. There have been several opportunities to enact meaningful change, but bills haven’t made it to the floor. And truly, the last real agricultural labor reform happened in 1986 with the Immigration Reform and Control Act.
“I think that one of the challenges that we’ve had for really long-term fixes is that Congress hasn’t done their job,” he says. “They have not chosen to legislate this. So, when the Congress chooses not to legislate, and the regulators are going to regulate, it’s given us, as the employers, the only other option we’ve got is to litigate.”
And that’s led to a broken H-2A program that doesn’t work for all of agriculture. It’s also led, Marsh says, to foreign countries outcompeting U.S.-based farms on cost and efficiencies.
“We’ve had so many changes in agriculture and our foreign competition has gotten much sharper with their pencils, so that they’ve been beating the pants off of us,” he says. “So, if Congress isn’t going to legislate and the regulators are going to regulate, we’ve got to figure out how we get the Congress to do its job.”
Marsh says data from the previous Census of Agriculture conducted by USDA showed that from 2017 to 2022 the U.S. lost 140,000 farms and fallowed about 20 million acres.
“A nation that’s unable to feed itself, has no national security, and we are at a tipping point, I think, as where we’ve got to have some change,” he says. “We’ve got to have some relief.”
Marsh says, though, a solution needs to be almost two-pronged. Growers need immediate relief. This would likely be relief from some of the burdensome regulations within the H-2A program and then also legislative relief.
“For the longer term, Congress has got to act,” he says. “Because, as we know, all you have to do is have one change in administration and the regulatory schemes that you’re attempting to run your business under, they disappear, and something else comes.”
Marsh says the U.S. imports more than 60% of its fresh fruit and 40% of its fresh vegetables, and it’s often easy to see why. Lower wage rates in Mexico and Canada, as well as other countries, might be more appealing to produce businesses.
“We’ve got to make sure that those legacy family operations stay in the family for this generation as well as the next generation, and give them some sense of stability and security,” Marsh says.
