NCAE still seeking Department of Labor determination on adverse effect

The National Council of Agricultural Employers still wants the U.S. Department of Labor to determine if U.S. workers are hurt by the H-2A program. 

The Adverse Effect Wage Rate is the required rate for farmers who use the H-2A program, and the Department of Labor on Jan. 2 mandated an increase that will average 6% across the nation, according to a news release. Some regions will be required to increase wages close to 10%. The increase follows a 2019 wage rate increase for the H-2A program that averaged 6.2%.

In comments submitted to the Department of Labor’s notice of proposed changes to the H-2A program last fall, the NCAE recommended an annual review on whether U.S. workers are harmed by the program. The agriculture labor group contends there is no adverse effect.

“If there is no adverse effect, their need be no Adverse Effect Wage Rate,” according to the comment. 

The NCAE filed a lawsuit last year to mandate that annual review, but it was denied by a judge Jan. 28. The decision was appealed but the NCAE withdrew it  because it could not get a quick court date.

The NCAE petitioned the Department of Labor in April, again asking for a determination on adverse effects on U.S. workers from the H-2A program.

“Unfortunately, the response we got back from the (Department of Labor) on the petition request was (that the agency) was going to include that in the notice of proposed rulemaking,” said Michael Marsh, president and CEO of the NCAE. “For the folks who get stuck having to pay these outrageous wages, there’s no relief for them.” 

With more than 80,000 comments received, the Department of Labor is expected to come out with an interim final rule or proposed rule by mid-year, Marsh said.

Farm labor reform

The NCAE and other farm groups are urging Senate action on the H-2A program and other farm labor provisions.
The U.S. House of Representatives passed the Farm Workforce Modernization Act Dec. 11, and groups are pushing for action on the House bill or a Republican version.

Marsh said Republicans will probably create their own legislation but lawmakers need to move quickly. Legislation will likely have to emerge from the Senate by May to have any chance in this Congress. A Senate bill will have to be reconciled with the House bill, and passage could come in the lame-duck session after the election, Marsh said.
“(Growers) are trying to arrange for workers right now and it’s not looking pretty,” he said.

Marsh said the domestic workforce isn’t interested in doing farm work, and while H-2A wages go up, U.S. growers are competing with lower-cost labor in Latin America and Canada.

“The cost profile of those producers in those other countries is significantly different than it is under this Department of Labor program, so it really puts Americans at a disadvantage,” Marsh said.

The Florida Fruit and Vegetable Association in 2019 advertised more than 15,000 jobs to local workers but only five domestic workers filled positions and lasted all season, Marsh said.

“You are far more likely to get hit twice by lightning in the same year than ever have a domestic worker show up and even apply for the job,” Marsh said. “So there is no adverse effect (of H-2A) on the domestic workforce.”
 

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