Alberto Zuñiga, an H-2A foreign guest worker from Mexico, harvests apples in October near Ephrata, Washington. Lawmakers and federal regulators have proposed changes to the H-2A program, while several Washington fruit companies have sued the U.S. Department of Labor to challenge midseason wage increases for workers contracted through the visa program. (TJ Mullinax/Good Fruit Grower)
Alberto Zuñiga, an H-2A foreign guest worker from Mexico, harvests apples in October near Ephrata, Washington. Lawmakers and federal regulators have proposed changes to the H-2A program, while several Washington fruit companies have sued the U.S. Department of Labor to challenge midseason wage increases for workers contracted through the visa program. (TJ Mullinax/Good Fruit Grower)

Editor’s note:
After this story was published in our print magazine, the Farm Workforce Modernization Act passed in the House of Representatives on Dec. 11 with bipartisan support in a vote of 260–165.

Proposed bipartisan legislation, suggested regulatory changes and a few administrative actions this year have tree fruit grower organizations optimistic that the country’s H-2A guest worker program might finally become a little more employer-friendly.

“All of those things are very positive developments,” said Diane Kurrle, senior vice president for the U.S. Apple Association of Alexandria, Virginia, which represents the industry at the federal level.

Lawmakers and regulators continue to fine-tune a host of suggestions intended to make hiring H-2A workers simpler and more affordable, as more and more growers rely on the program each year to make up for a growing labor shortage.

In late October, a bipartisan slate of federal lawmakers, led by U.S. Rep. Zoe Lofgren, a California Democrat, introduced the Farm Workforce Modernization Act, which tackles a variety of immigration and farm labor issues.

The bill would establish a path to legalization for workers already in the U.S. who continue to work in agriculture; mandate E-Verify for all farm employment, with a structured phase-in; and reform the H-2A program to make it more flexible and affordable, including setting a cap on increases to Adverse Effect Wage Rates, or AEWRs, the federally mandated wage floors for H-2A workers that are intended to prevent the program from depressing pay for domestic workers.

The bill is sponsored by 24 Democrats and 20 Republicans. Among the key House supporters are Rep. Jimmy Panetta, another California Democrat, and Rep. Dan Newhouse, a Washington Republican who owns an orchard in Granger. The measure faces an uphill battle as the U.S. Congress deals with the impeachment inquiry, the ratification of the USMCA trade pact and other issues.

But the proposal has the advantage of broad support, as it was drafted with support from both labor unions and agricultural employer groups from its infancy in March, Newhouse said.

“Both sides gave things up that they would have liked to have had in the bill, and conversely both sides accepted things,” Newhouse said. For example, labor unions had to agree to a clause that would freeze the AEWR at current levels in 2020 and limit how much it would go up or down each year after that. Mandates that annually increase wages have been one of the biggest complaints of agricultural employer groups.

In turn, employers conceded to the requirement to run all their hires through E-Verify, a digital, federal database that confirms employment eligibility, while conservative groups agreed to grant a path to legalization for those currently working in agriculture without documentation.

Tree fruit industry organizations, such as the U.S. Apple Association, the Northwest Horticultural Council and Western Growers, supported the introduction of the bill and plan to seek fine-tuning as the legislative process moves on. The United Farm Workers, an agricultural labor union, also voiced support for the bill.

Other H-2A changes would include establishing a single online filing portal, allowing staggered arrivals, dropping the printed newspaper job posting requirement, reducing housing costs, expanding provisions to year-round labor needs and preventing the Department of Labor from mandating midseason wage increases.

Proposed regulations

The bill comes on the heels of some of the U.S. Department of Labor’s own administrative changes and proposed rule changes, which tackle a lot of the same issues. Industry groups support many of those, too, but a law would be better, Kurrle said.

“There’s only so much that a rule can do,” Kurrle said.

In September, the U.S. Department of Labor announced a streamlined application process for H-2A employers that, among other things, lets growers advertise for domestic workers online rather than having to buy newspaper ads before hiring guest workers. In fact, the department created a new application portal called Foreign Labor Application Gateway, or FLAG, which replaces the old iCERT system used by the Office of Foreign Labor Certification. To find it, visit Flag.dol.gov.

Also, the Department of Labor in July proposed a wide array of rule changes to the H-2A program. They had not been adopted as of late October and may not be until spring due to an overwhelming number of public comments.

Among the proposals:

—Set separate AEWRs for different occupations.

—Ease standards for state workforce agencies advising the department on prevailing wages.

—Allow staggered entry.

—Replace the 50-percent rule with a 30-day rule. Currently, employers must hire qualified domestic applicants within the first half of the contracted work period.

—Require employers to pay workers’ costs of travel to the job site only from the U.S. consulate or embassy that processed their visas, instead of from their hometowns.

—Require employees working under a joint contract to spend at least one day each week working for each employer.

Industry response

Not only is the regulatory proposal long, it attracted tens of thousands of comments by the late-September comment deadline, one of the reasons why implementation may be delayed, Kurrle said. USApple and other industry groups were among those commenting. Most find a lot of positives in the suggested changes but oppose a few details.

“There’s acknowledgement across the board that changes are needed,” said Mike Gempler, executive director of the Washington Growers League, a Yakima, Washington, farm labor nonprofit. “As usual, it’s all about the details.”

The groups generally support allowing the online advertisements, the staggered entry of workers and the 30-day rule. They also favor breaking up AEWR by occupation. They oppose, however, the requirement for each worker to spend at least one day each week under the employ of each farm in a joint application.

However, they saved their loudest objections for AEWR, calling the ever-increasing floor of wages an existential threat to the employers who need H-2A workers the most.

“The continuous and rapid escalation of the Adverse Effect Wage Rate (AEWR) is impacting the ability of growers to continue farming,” said Kate Tynan, vice president of the Northwest Horticultural Council, in the group’s written comments.

Tynan asked the federal government to: consider the other required benefits, such as housing and food, when setting AEWR; examine only guaranteed hourly rates, such as state minimum wages, in determining AEWR; and eliminate midseason prevailing wage hikes that sometimes push the floor above AEWR.

Central Washington orchard companies challenged the prevailing wage increases in two federal lawsuits filed this season, alleging the U.S. Department of Labor relied on inaccurate and unrepresentative wage surveys to determine prevailing wages. For example, Washington blueberry producers were hit with a 50-percent wage increase for their hand pickers in July, right in the middle of harvest.

By law, growers hiring contracted H-2A workers must pay the higher of the prevailing wage or AEWR. AEWR is locked in for an entire year; prevailing wage rates may be adjusted during the season.

“Midseason wage increases in the form of prevailing wages make it impossible to plan,” said Dan Fazio, the director and CEO of wafla, a Washington farm labor association responsible for the bulk of H-2A contracts in the state, in his written comments to the Department of Labor. “The government should not force employers to arbitrarily change a contract after it has been submitted and approved. It is not fair to workers if wages are lowered, nor fair to farmers if wages are increased midseason.” Fazio, in his comments, also lobbied for allowing growers to charge employees for housing.

Meanwhile, the National Council of Agricultural Employers has asked the Department of Labor, in a petition, to measure the actual effect of H-2A wages on local workers before increasing AEWR. The petitioners argue that AEWR actually drives up wages for domestic workers.

“Contrary to an adverse effect, requiring a manufactured wage rate only distorts the economic reality of agricultural wages and further disconnects them from the market. The arithmetic is simple,” the council wrote.

The U.S. Apple Association, the Washington Growers League, the Northwest Horticultural Council and the Washington State Tree Fruit Association are members of the National Council of Agricultural Employers. •

—by Ross Courtney

To read the entire 134-page proposal, visit https://www.federalregister.gov/documents/2019/07/26/2019-15307/temporary-agricultural-employment-of-h-2a-nonimmigrants-in-the-united-states