[Senate Hearing 106-530]
[From the U.S. Government Publishing Office]
S. Hrg. 106-530
MEETING THE WORKFORCE NEEDS OF AMERICAN AGRICULTURE, FARM WORKERS, AND
THE U.S. ECONOMY
=======================================================================
HEARING
before the
SUBCOMMITTEE ON IMMIGRATION
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED SIXTH CONGRESS
FIRST SESSION
on
EXAMINING THE WORKFORCE NEEDS OF AMERICAN AGRICULTURE, FARM WORKERS,
AND THE UNITED STATES ECONOMY, FOCUSING ON ILLEGAL MIGRANT FARM
WORKERS, H-2A REFORM, AGJOBS, COLLECTIVE BARGAINING AGREEMENTS,
SANITATION, AND FARM WORKER UNEMPLOYMENT AND WAGES
__________
MAY 12, 1999
__________
Serial No. J-106-26
__________
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
65-020 CC WASHINGTON : 2000
SENATE COMMITTEE ON THE JUDICIARY
ORRIN G. HATCH, Utah, Chairman
STROM THURMOND, South Carolina PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
ARLEN SPECTER, Pennsylvania JOSEPH R. BIDEN, Jr., Delaware
JON KYL, Arizona HERBERT KOHL, Wisconsin
MIKE DeWINE, Ohio DIANNE FEINSTEIN, California
JOHN ASHCROFT, Missouri RUSSELL D. FEINGOLD, Wisconsin
SPENCER ABRAHAM, Michigan ROBERT G. TORRICELLI, New Jersey
JEFF SESSIONS, Alabama CHARLES E. SCHUMER, New York
BOB SMITH, New Hampshire
Manus Cooney, Chief Counsel and Staff Director
Bruce A. Cohen, Minority Chief Counsel
______
Subcommittee on Immigration
SPENCER ABRAHAM, Michigan, Chairman
ARLEN SPECTER, Pennsylvania EDWARD M. KENNEDY, Massachusetts
CHARLES E. GRASSLEY, Iowa DIANNE FEINSTEIN, California
JON KYL, Arizona CHARLES E. SCHUMER, New York
Lee Liberman Otis, Chief Counsel
Melody Barnes, Minority Chief Counsel
(ii)
C O N T E N T S
----------
STATEMENTS OF COMMITTEE MEMBERS
Page
Abraham, Hon. Spencer, U.S. Senator from the State of Michigan... 1
Feinstein, Hon. Dianne, U.S. Senator from the State of California 16
Kennedy, Hon. Edward M., U.S. Senator from the State of
Massachusetts.................................................. 17
CHRONOLOGICAL LIST OF WITNESSES
Statement of Hon. Bob Graham, U.S. Senator from the State of
Florida........................................................ 2
Statement of Hon. Mitch McConnell, U.S. Senator from the State of
Kentucky....................................................... 12
Statement of Hon. Gordon Smith, U.S. Senator from the State of
Oregon......................................................... 13
Panel consisting of Joshua Wunsch, member, board of directors,
Michigan Farm Bureau, Traverse City, MI, on behalf of the
American Farm Bureau; James S. Holt, senior economist,
McGuinness and Williams, on behalf of the National Council of
Agricultural Employers, Washington, DC; Demetrios G.
Papademetriou, senior associate and co-director, International
Migration Policy Program, Carnegie Endowment for International
Peace, Washington, DC; Cecilia Munoz, vice president, Office of
Research Advocacy and Legislation, National Council of La Raza,
Washington, DC; Dolores Huerta, secretary-treasurer, United
Farm Workers of America, AFL-CIO, Keene, CA; Manuel Cunha, Jr.,
president, Nisei Farmers League, Fresno, CA.................... 19
Statement of Hon. Howard L. Berman, Representative In Congress
from the State of California................................... 25
Statement of Hon. Sanford Bishop, Representative In Congress from
the State of Georgia........................................... 29
Statement of Hon. Slade Gorton, U.S. Senator from the State of
Washington..................................................... 37
ALPHABETICAL LIST AND MATERIAL SUBMITTED
Berman, Hon. Howard:
Testimony.................................................... 25
Prepared statement........................................... 27
Bishop, Hon. Sanford: Testimony.................................. 29
Cunha, Manuel, Jr.:
Testimony.................................................... 107
Prepared statement........................................... 110
Gorton, Hon. Slade:
Testimony.................................................... 37
Prepared statement........................................... 39
Graham, Hon. Bob:
Testimony.................................................... 2
Article from the Florida Times-Union: The Migrant's Pain,
dated May 9, 1999.......................................... 4
Holt, James S.:
Testimony.................................................... 40
Prepared statement........................................... 42
Huerta, Dolores C.:
Testimony.................................................... 82
Report: The 1998 Central Valley Raisin Harvest, dated March
1999....................................................... 86
Prepared Statement........................................... 106
McConnell, Hon. Mitch: Testimony................................. 12
Munoz, Cecilia:
Testimony.................................................... 72
Prepared statement........................................... 75
Papademetriou, Demetrios G.:
Testimony.................................................... 54
Prepared statement........................................... 57
Smith, Hon. Gordon:
Testimony.................................................... 13
Prepared statement........................................... 15
Wunsch, Joshua:
Testimony.................................................... 19
Prepared statement........................................... 21
APPENDIX
Questions and Answers
Responses of Representative Sanford D. Bishop to Additional
Questions From Senator Kennedy................................. 121
Responses of American Farm Bureau Federation to Questions From
Senator Kennedy................................................ 125
Additional Submissions for the Record
Prepared Statement of Senator Larry E. Craig, A U.S. Senator From
the State of Idaho............................................. 128
Memorandum: From Margaret Mikyung Lee, legislative attorney,
Congressional Research Service, The Library of Congress,
Washington, DC, dated July 16, 1997............................ 130
Letters to Manuel Cunha from:
Lee Rhyne, director of welfare, Department of Public Welfare,
Madera, CA, dated February 24, 1999........................ 144
David Crawford, division manager, CalWORKs, Health and Human
Services Agency, Tulare CA, dated March 2, 1999............ 144
Jeff Jue, director, Community Service Agency,
Modesto, CA, dated February 23, 1999....................... 145
Bobbie Fasano, deputy director, CalWORKs, Stockton, CA, dated
February 26, 1999.......................................... 146
Letter to Hon. Alexis Herman, Secretary, Department of Labor,
from Hon. Sanford D. Bishop, Jr., U.S. House of
Representatives, dated May 22, 1997............................ 146
Letter to Hon. Sanford D. Bishop, Jr., from John R. Beverly, III,
director, and John R. Fraser, acting administrator, U.S.
Department of Labor, Employment Standards Administration, Wage
and Hour Division, Washington, DC, dated January 8, 1998....... 147
MEETING THE WORKFORCE NEEDS OF AMERICAN AGRICULTURE, FARM WORKERS, AND
THE U.S. ECONOMY
----------
WEDNESDAY, MAY 12, 1999
U.S. Senate,
Subcommittee on Immigration,
Committee on the Judiciary,
Washington, DC.
The subcommittee met, pursuant to notice, at 2:06 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. Spencer
Abraham (chairman of the subcommittee) presiding.
Also present: Senators Kennedy, and Feinstein.
OPENING STATEMENT OF HON. SPENCER ABRAHAM, A U.S. SENATOR FROM
THE STATE OF MICHIGAN
Senator Abraham. We will call the hearing to order, and I
want to welcome all of you to this hearing on Meeting the
Workforce Needs of American Agriculture, Farm Workers, and the
U.S. Economy.
Last June, the Senate Immigration Subcommittee held a
hearing entitled ``The H-2A Program: Is It Working?'' The
strong feeling that emerged was that the current H-2A system is
quite cumbersome and does not work very well for farmers,
potential workers, or American agriculture. One of the goals of
that hearing and of the process that hearing helped to
accelerate was to bring together individuals on a bipartisan
basis. Therefore, I am pleased to again see a bipartisan group
of legislators here today to testify.
I should note that no legislation has been introduced in
this Congress on the subject before us today as of yet.
However, it is hoped that this hearing will be helpful in
providing information on all sides of this issue in a way that
will aid the drafting of any legislation that might be
developed.
Although there is still not unanimity of opinion on the
topic of today's hearing, and while certainly a number of
differences remain on several issues, I think there is general
agreement on a large number of facts.
First, we as Americans would like to see our farmers
competitive in global markets and believe it is important to
have agricultural products produced in this country. Second,
migrant farm workers have hard lives and we can all admire them
for the difficult but important jobs which they perform on a
daily basis.
Third, it is far safer for farm workers born in other
countries to enter America legally rather than be faced with
unscrupulous smugglers who show little concern for their
safety. Finally, a farm worker who enters the United States to
work legally will have greater legal recourse than an
individual who is an illegal immigrant.
I make these points in the spirit of hoping that we can
forge more common ground here today. In my home State of
Michigan, I have heard from many farmers on the difficulty of
finding agricultural workers, particularly on a timely basis.
Today, there are over 45,000 farms in Michigan, and each year
the food and agriculture industry contributes more than $40
billion to the Michigan economy. I am pleased that a
representative of the Michigan Farm Bureau will be with us
today to give us the views of Michigan farmers.
In Washington, reflecting the views of their constituents,
Senators of both parties have approached me interested in
exploring more options and legislative solutions to improve on
the current system for hiring and protecting the working
conditions of agricultural workers. Many of those Senators are
here today to testify on this subject.
As I noted, last year's hearing, I believe, was successful
in helping to forge a good degree of bipartisan, though not
uniform, consensus. It was my view at that time and it remains
so today that for legislation to move forward on this issue, it
will need to be on a bipartisan basis. This year, at this
hearing, I hope we can extend that cooperative spirit beyond
the Congress and bring together those who have been on opposite
sides on this issue to see if we can find common solutions that
can benefit the entire Nation.
I think the witnesses we have assembled, working with
Senator Kennedy and his office, share an interest in pursuing
the type of common solutions that will benefit our country, and
I look forward to hearing their testimony today.
That said, let us begin with our first panel, which is made
up of members of the U.S. Senate. We will hear today from
Senator Bob Graham, of Florida; Senator Mitch McConnell, of
Kentucky; and Senator Gordon Smith, of Oregon. I believe maybe
one or two others will join us based on floor activity and
commitments they have.
So with that in mind, Senator Graham, would you like to
begin? We welcome you.
STATEMENT OF HON. BOB GRAHAM, A U.S. SENATOR FROM THE STATE OF
FLORIDA
Senator Graham. Senator Abraham, I want to thank you for
holding this hearing today and for your leadership on this
issue. I appreciate the opportunity that you are going to
afford each of us to address the subcommittee on the workforce
needs of American agriculture and farm workers. We have joined
you before to share our thoughts and concerns on agricultural
labor and farm worker issues.
Mr. Chairman, from my experience in Florida over the past
year, I can report that the need for a legal, stable workforce
with rights and benefits is more critical today than it was
when we held that first hearing in 1998. Conditions such as the
historically low unemployment levels, the fact that farmers in
my State and across the Nation found unusual difficulty in
securing an adequate workforce for their harvest in 1998 and in
the 1998-99 winter season, the crisis conditions in much of
Central America which have the potential of creating another
wave of illegal immigrants into the United States and into the
agricultural workforce, have all exacerbated the circumstances
over the last 12 months.
Over the past several years, many of us have tried to reach
out to all organizations involved with farm workers--Hispanic
groups, labor coalitions, legal aid foundations, and others. We
continue to welcome any and all suggestions for improving the
lives of farm workers in the United States.
I am pleased to say that this outreach effort has produced
a number of good ideas. These include ideas that I think the
subcommittee should consider as it examines legislative
proposals. These would include allowing current farm workers
who do not have a valid status in the United States to gain
employment authorization, thus freeing them from the fear of
deportation; providing expanded educational opportunities for
children of legal domestic workers; and increasing wages and
housing benefits for legal domestic workers.
This past Sunday, the Florida Times Union, published in
Jacksonville, FL, ran a front-page story entitled ``The
Migrant's Pain,'' and it was about the conditions of farm
workers in Florida. Mr. Chairman, I would like to ask that a
copy of a portion of that article be submitted for the record.
Senator Abraham. Without objection, it will be.
[The article referred to follows:]
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Senator Graham. The article touched on many of the
challenges facing us in dealing with this issue. For example,
it mentions that farm workers can be very reluctant to seek
basic health care. It indicated that, statewide, one-third of
the farm workers in Florida, based on a survey conducted by the
National Agricultural Workers Survey of the U.S. Department of
Agriculture, volunteered that they were undocumented. And in
the area of northeast Florida, around Jacksonville, 40 percent
of the workforce volunteered that they were undocumented.
As such, among other things, they are afraid to seek
medical attention. Serious communicable illnesses like
tuberculosis and hepatitis go untreated because we have created
this underground, almost unseen category of workers. I recall
vividly after Hurricane Andrew when there were efforts to
inoculate the population against potential communicable
diseases after that disaster that it was extremely difficult to
get the migrant farm workers to come in and be inoculated, out
of fear that they would be deported.
Housing is another issue raised by the article. Crowded
living conditions and sparse housing in extremely rural areas
have made it difficult to provide safe and adequate housing.
The absence of that housing leads to many other problems.
Crowded housing exacerbates health problems, where disease
spreads more quickly. We should address this issue, and I am
pleased to say that with the leadership of Governor Jeb Bush
and my colleague, Senator Mack, that we are hopeful of
expanding the farm worker housing programs in Florida.
Mr. Chairman, I suggest that any plan for addressing this
problem have as its basis the improvement of the lives of legal
domestic workers, better and more certain benefits for legal
domestic workers, adjustment of status of current undocumented
farm workers, and the streamlining of the current H-2A program.
It is a complicated issue and one that has and will continue to
generate much controversy.
I think what we have failed to focus on is the consequences
of inaction. What is the result of a continuation of the status
quo? By not taking action, we assure that the illegal alien
smugglers, the unscrupulous labor contractors and those who
would profit from this most vulnerable population will continue
to have a steady stream of business.
By not taking action, we assure that legal domestic workers
are left without benefits, such as transportation reimbursement
or assistance with housing needs. Without taking action, we
assure that farmers continue to be placed in a situation of
either seeing their crops rot in the field or having to employ
undocumented aliens.
Let's take this opportunity to make our system more
efficient, more rational, and to put out of work those who
would pander to the current status quo, the smugglers and
others who traffic in human misery. Farm workers deserve an
improved life. Farmers deserve our attention on one of their
most pressing needs.
Again, Mr. Chairman, I appreciate your focus on this issue
and look forward to working with you to develop an effective
response during this Congress.
Senator Abraham. Thank you, Senator Graham.
We will turn to Senator McConnell. We welcome you. Thank
you for being here.
STATEMENT OF HON. MITCH McCONNELL, A U.S. SENATOR FROM THE
STATE OF KENTUCKY
Senator McConnell. Thank you, Mr. Chairman. I want to lead
off by commending you, Mr. Chairman, for your leadership in
this whole area of meeting the labor needs in our country,
whether it was the H-1B program which you were clearly a leader
in trying to make better in the past Congress, to now your
willingness to listen to us on the H-2A program. I also want to
acknowledge the outstanding work of my colleague, Senator
Smith, from Oregon, who was the principal author of the bill in
the last session.
To give you an idea, Mr. Chairman, of how serious this
issue is in my State, we grow a very controversial commodity in
our State called tobacco. And at the height of the big tobacco
battle last summer when the Federal Government was proposing a
$600 billion tax increase on that product, which almost
everyone expected would be the end of tobacco as a legal
activity in this country, I had a series of 21 meetings across
my State with tobacco growers. And what was the number one
concern they had? This problem, even with a $600 billion tax
increase having just been defeated on the floor of the Senate.
Farmer after farmer in my State, in those 21 meetings, told me
that the most pressing issue facing Kentucky farmers is finding
and hiring legal temporary migrant farm workers.
Just last month, down in my State, as a member of the
Agriculture Committee, I had a field hearing in Bowling Green.
I decided to give those farmers an opportunity to actually
testify before the Senate Agriculture Committee up close. We
heard from those who administer the program, as well as some
people who oppose the program.
I told the people of Kentucky that I would take their
perspectives back to Capitol Hill because the opinions and
real-life stories of farmers and migrants--we also heard from a
migrant worker, by the way--would be very important to my
colleagues in the Senate as we examined the future of H-2A,
which is what we are doing today.
So, Mr. Chairman, I would like to ask that the transcript
of that appear in your transcript as well because it was
entirely on this subject.
Senator Abraham. Without objection, it will be included.
Thank you.
[Editor's Note: The transcript of the hearing referred to:
H-2A Temporary AgriWorker Program, Senate Committee on
Agriculture, Nutrition and Forestry held in Bowling Green, KY
has not been printed.]
Senator McConnell. The H-2A temporary agricultural worker
program was designed in part to help solve labor problems
facing our farmers. Its purpose is to create a system whereby
farmers could secure legal temporary seasonal workers, while at
the same time assuring the workers transportation costs,
housing, a decent wage and, as Senator Graham pointed out,
legal status.
During the hearing, every farmer told me of the program's
burdens and costs. I heard about the tremendous complexity of
the program. I also heard stories from farmers who had crops
left in the field while the foreign workers whom they had
contracted with were waiting at the border for Government
agencies to process their paperwork.
In short, the H-2A program has become a bureaucratic
nightmare of Government agencies and their rules and
regulations. Even the General Accounting Office has called the
program a bureaucratic maze. It takes a 5-pound, 325-page
manual--and here it is, Mr. Chairman--to even attempt to
explain how to grind your way through this complicated H-2A
program.
Mr. Chairman, I am sure you share my view that a farmer
ought not to have to hire a lawyer to get a worker, and that is
today's situation. Imagine, you are trying to get your crops in
and you discover you have got to master this complicated manual
before you can even get the help that you have to have in order
to get the job done.
There are still, however, many different perspectives on
the current state of the H-2A program. Many believe, as I do,
that the system has become too bureaucratic and expensive for
farmers to use it effectively. Others who spoke at the hearing
that I had have concerns that the program leads to inadequate
protection of the workers and to interference in the local
labor market.
I believe, whatever our opinions, we need to give all sides
the opportunity to express their views, as you are doing today,
Mr. Chairman. Hopefully, we can all work toward a solution
equitable to both the farmer and the worker.
Let me just say in conclusion, before handing it off to
Senator Smith, we had at our hearing a person who administers
the program in Kentucky. As part of the H-2A procedure, you
advertise first to see if there are any domestic workers
available. There aren't any, essentially. After one big
advertising effort, there were three people who said they might
be interested, none of whom ever showed up.
In short, in my State, Mr. Chairman, there aren't any
Americans available to do this work. They are not there. We can
speculate as to the reason for that. I am sure the booming
economy is part of it, but if you are a farmer in the
Commonwealth of Kentucky trying to get your crop both planted
and subsequently harvested, without this program you are out of
luck.
So I want to commend you very much, Mr. Chairman, for your
willingness to consider this issue and for giving us a chance
today to testify.
Senator Abraham. Thank you, Senator McConnell.
Now, we will turn to Senator Smith. Welcome.
STATEMENT OF HON. GORDON SMITH, A U.S. SENATOR FROM THE STATE
OF OREGON
Senator Smith. Thank you, Mr. Chairman, Senator Feinstein.
It is a pleasure to appear before your committee again. I thank
my colleagues for their remarks, and wish to associate myself
with them.
I have a prepared statement that I wish to have included in
the record, Mr. Chairman, and would like to speak from the
heart.
Senator Abraham. It will be included.
Senator Smith. Senator McConnell showed you this manual--it
is 325 pages; they are unnumbered pages, by the way--to tell a
farmer how to hire a farm worker. Most of the applications end
up being between 6 and 20 pages long before it is filed with
the Labor Department.
As a contrast to that, this is the form I filled out to
apply for candidacy to the U.S. Senate. It takes about 5
minutes to fill out, front and back, and then you get to run. I
am almost thinking it is easier to get here than to get a farm
worker employed who is legal.
Last year, with Senator Graham, Senator Wyden from my
State, my counterpart, who is a Democrat--the three of us began
this trek, and I think while I don't speak for Senator Wyden, I
know how he feels. I think it is fair to say that he began this
debate from the standpoint of labor. I began this discussion
from the standpoint of the farmer. Both of us, everywhere we
went, as my colleagues have indicated in their States--and I
think it is interesting to note, Mr. Chairman, that in every
corner of this country this is the same problem.
When we began this effort to fix a problem, we were
overwhelmed with the bureaucracy of it and the unworkability of
the current system and the increasing problems with consistent
labor supply as the Government gets more efficient, between
Social Security and the INS, at identifying those who are
illegal.
Senator Wyden and I do not propose to bring one additional
worker to this country. What we do propose, however, is to
provide a basis for those who are here to be here legally. The
farmers have the employment. The farm workers wish to do the
work and we owe them a legal system.
I suggest to you that the surest way to keep the farm
worker down is to keep him illegal so that he cannot bargain
for his conditions or rights. So those who will come and
present themselves as representing farm workers but also would
like to preserve an illegal system, I suggest they have another
agenda.
Despite Senator Wyden and my efforts to find a legal basis,
because we have done this, we have been characterized in the
most unflattering of terms. But that goes with the territory.
Frankly, though, what we did try to do was to lean hard on the
farmer community to provide an increased wage, a housing
allowance, a transportation allowance, and even priority for
ultimate legal status in this country, and establish a national
registry to which farmers and farm workers could have recourse
so there could be some order to this, so that people no longer
have to ride around in U-Hauls or in the back of cars. I think
we owe this country, the consumers, the farmers and the farm
workers, a system that is legal so that farmers no longer need
to conduct themselves as felons and farm workers as fugitives.
Mr. Chairman, I thank you for this time and this hearing.
[The prepared statement of Senator Smith follows:]
Prepared Statement of Senator Gordon H. Smith
Thank you Mr. Chairman and fellow colleagues of the Immigration
Committee for your leadership in holding a hearing on the serious
problems surrounding the work force needs of American agriculture, farm
workers, and the U.S. economy. I am proud of the bipartisan effort
shown by the Senators here today to continue to develop a workable
system to recruit workers domestically and prevent crops from rotting
in the fields.
I would also like to commend my colleague from Oregon, Senator
Wyden, who is unable to testify before you today. Senator Wyden
continues to play a key role in our Senate working group to develop a
compromise that would be acceptable to growers and farm workers.
Mr. Chairman, I am sure you are aware of the problems that have
arisen within American agriculture. For many years, farmers and
nurserymen have struggled to hire enough legal agricultural workers to
harvest their produce and plants. The labor pool is extremely
competitive, especially in my state of Oregon, where jobs are many and
domestic workers willing to do farm work are scarce.
As one of the most rapidly growing industries in this country, we
can only expect the demand for agricultural labor jobs to continue to
rise. When coupled with the lowest unemployment rates in decades and a
crackdown on illegal immigration, the agriculture industry--and
ultimately its consumers--faces a crisis.
Contrary to some media accounts, these labor shortages and the need
for a guest worker program exist around the country. Mr. Chairman, the
members before you today all agree with the General Accounting Office's
(GAO) statement that while the labor shortage is not caused by one
single problem, regional shortages stemming from region-specific
problems do exist.
One problem that does affect nearly every area of this country is
the astronomical number of illegal workers in agriculture jobs. The GAO
reports that a significant portion of the farm labor force is not
legally authorized for employment, leaving many agricultural employers
vulnerable to potential labor shortfalls in the event of a concentrated
or targeted Immigration and Naturalization Service (INS) enforcement
effort.
The immigrants themselves are also negatively impacted when they
must work as undocumented workers. These foreign workers risk their
lives paying human ``coyotes'' $1,200 to be smuggled across the border
in the trunk of a car to work in this country without any guarantee of
housing or transportation benefits, or even a minimum wage. Because of
the risks these foreign workers face in coming here and the difficulty
of returning if they leave for a visit home, many go for years without
seeing their spouses and children; some never return home. Illegal
workers don't enjoy simple worker protections, such as workman's
compensation insurance and the right to take breaks during the day. Job
security or stability is non-existent, replaced instead by the fear
that they will be caught by the INS and deported.
GAO estimates that there are 600,000 illegal aliens currently
employed in U.S. agriculture. Further, U.S. Department of Labor survey
data shows that more than 70 percent (or about 1 million) of those new
to the U.S. and hired to work on farms are here illegally.
Both INS and the agricultural employers agree that high quality
fraudulent documents are readily obtainable, making it virtually
impossible for employers to be certain that they have not hired
illegally documented workers.
This issue is not new to Congress. Our government's H-2A
agricultural guest worker program was designed in part to help solve
the labor problems facing our farmers. Instead of helping, the H-2A
program--the only legal temporary foreign agricultural worker program
in the United States--merely adds bureaucratic red tape and burdensome
regulations to the growing crisis. And it is failing those who use it.
The H-2A program is not practicable for the agriculture and
horticulture industry because it is loaded with burdensome regulations,
excessive paperwork, a bureaucratic certification process and untimely
and inconsistent decision-making by the U.S. Department of Labor.
To illustrate, Mr. Chairman, this is the application I filled out
to run for the United States Senate. It is one page, front and back.
This is the Department of Labor's 325-page handbook, from January
1988, which attempts to guide employers through the H-2A program's
confusing application process. The GAO itself found that this handbook
is outdated, incomplete, and very confusing to the user.
I draw your attention to the following chart from the December 1997
General Accounting Office (GAO) report illustrating the burdensome H-2A
process that employers must go through to bring in legal, foreign
workers. A grower must apply to multiple agencies to obtain just one H-
2A worker. This process is further complicated by the multiple levels
of government, redundant levels of oversight and conflicting
administrative procedures and regulations. Also, as reported by the
recent Department of Labor Inspector General, the H-2A program does not
meet the interests of domestic workers because it does a poor job of
placing domestic workers in agricultural jobs.
Mr. Chairman, we are looking for solutions to not only make it
easier for employers to hire legal workers to harvest their crops, but
also to ensure that workers are treated fairly in the process.
Any legal U.S. resident who wants to work in agriculture should get
an absolute right of first refusal for any and all jobs that become
available. There needs to be a system or registry where our unemployed
U.S. workers can go to find out about job openings on our U.S. farms.
We also need to improve the conditions of the farm workers' lives
and provide them the dignity they deserve. These needed benefits
include providing a premium wage, providing housing and transportation
benefits, guaranteeing basic workplace protections, and extending the
Migrant and Seasonal Workers Protection Act to all workers.
I'm very concerned that workers are protected, but let's not forget
that growers have been victimized by this process too. In order to feed
their families--and yours--the growers need to harvest their crops on
time, meet payroll, and ultimately maintain their bottom line. Without
achieving those things, farms go out of business and the jobs they
create are lost along with them. So it is in all of our best
interests--workers, growers, and consumers alike--that growers have the
means by which to hire needed workers.
While I don't have a crystal ball to predict the future of the H-2A
program, I can tell you that we will have a major economic and social
crisis on our U.S. farmlands if there is not an improvement over the
current process.
Finally, I would like to applaud the members here today for
addressing this issue on a bipartisan basis. This is not a Republican
or Democrat issue. This is about developing a workable solution for our
growers and workers alike.
Let's not make fugitives out of farm workers and felons out of
farmers. Let's work together to find a solution.
Thank you Mr. Chairman for allowing me to testify before the
subcommittee today.
Senator Abraham. Thank you all. I know several of you,
maybe all of you, have to get on to other commitments. We
appreciate your being here. If anybody wants to stay and listen
to the remaining panels, we would be happy to have you join us
up here. Thank you all.
As we wait for the second panel, we have been joined by two
other members of the subcommittee and I am happy to have them
here. We will turn to the ranking member, Senator Kennedy, if
he would like to make an opening statement.
Senator Kennedy. Can I yield to Senator Feinstein?
Senator Abraham. Please, Senator Feinstein.
STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE
STATE OF CALIFORNIA
Senator Feinstein. Thank you very much, Mr. Chairman. I
very much appreciate your holding this hearing. I am delighted
that Senator Smith is here. He and Senator Wyden have certainly
worked on this issue. I voted against their bill in the last
session.
This matter is of tremendous import to California because
50 percent of any worker program is going to be in California,
and let me give you an example. And I note that Manuel Cunha,
of the Nisei Farmers League, who knows as much about this as
anybody does, is on the calendar today. He tells me that just
in four counties in California alone, on table grapes, it is
40,000 workers just to harvest the table grapes. So the numbers
are very, very great.
I believe the program should be bifurcated in this way: set
up the registry first and attach to it a premium wage; get a
commitment from people to work in this endeavor for a period of
time, whatever that period is; and if necessary, provide green
cards to those who are in this country now who have done this
work for years and can document that in some acceptable manner,
but create a kind of registry of available agricultural workers
to work specific crops in specific States.
In last year's bill, the registry started out being 6
months, and then there would be workers brought in from
outside. There wouldn't be homes for them. There would be a
huge problem with communities. Many people believe that wage
rates are key in this thing, and if you had a registry of
people that provided that premium pay, obviously based on crop
and however it is done, you could, in fact, develop that
registry from the present American workforce.
Now, you get into this legal undocumented area and that is
something we have to work out, but my view is--and I have
talked to the American Farm Bureau, I have talked to the
California Farm Bureau. They all know my views, and I believe
that they are attempting to put a program together which might
meet some of these concerns.
I am sorry that the Labor Department isn't involved in this
hearing because this plays an important role--I should say the
pay issues play an important role. In California, where there
is 10 to 20 percent employment in these counties, some of the
people involved, the employers, have actually gone to welfare
departments and said can you provide us with people to work the
fields during harvest season, and what they have found is that
no one was provided. And I ask that this be done in California.
I hope Mr. Cunha, who is here, I think, today, will testify to
that.
So whether it is the level of pay or the type of work, I am
not willing to say at this stage, but there is really a
problem. I think this is a very big issue. It is a very
important issue. I look forward to hearing the testimony and I
thank you very much, Senator Abraham, for holding the hearing.
Senator Abraham. Thank you, Senator.
Senator Kennedy.
STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR FROM THE
STATE OF MASSACHUSETTS
Senator Kennedy. Just briefly, Mr. Chairman, I thank you
for holding the hearing and our colleagues for being here. I
was here during the full height of the bracero program, Mr.
Chairman, and saw some of the greatest kinds of exploitation of
human beings that I have seen, certainly in this country. It
really matched the kinds of conditions and treatment of people
in Third World countries, and I have some real concerns about
going back to anything that would repeat that tragic aspect of
our whole workforce policy.
I do think that a number of suggestions have been made.
Ideas in terms of how we are going to make some adjustment in
terms of the status of these workers so that there will be a
permanent workforce is something that we ought to take a look
at. But I also would want to see that we are going to treat
people decently and fairly that are going to be a part of this
process, whether it is covering in terms of the minimum wage or
that their children are going to be treated fairly and they are
not going to have the sense of exploitation, which has been so
much a part of this whole kind of program.
The fact remains is that we have high unemployment in a
number of the agricultural counties, and the fact is we have
absolutly abysmal wages that are out there and abysmal working
conditions and extraordinary profits in agribusiness. I mean,
you can't get away from it. That is the record. So I hope that
those who are going to be coming here and talking to us in
terms of what we are going to be doing are going to be people
that have treated their workers fairly and decently.
I understand the administration is interested in a program
in terms of some form of registry, and I am willing to support
that and fund that and try that. I think that it may be a
useful suggestion and idea, although we can understand the
complexities that happen with the workers themselves not having
access to phones or computers and other kinds of ways of being
able to access the newer technologies. But maybe there are ways
of trying to sort of deal with that. I am not opposed to trying
to give consideration to this.
I think we should try and have a dependable, reliable
workforce, and I am all for it, but I want to make sure that we
are going to treat that workforce in a fair, decent,
respectable way. And I think if the ideas are for those that
have worked and toiled long and hard in terms of the program,
some adjustment in status so that these people can be
respected, then we should certainly take a look at that.
But I think we ought to also look at what the conditions
and what the wages are for these people who are working in the
industry itself, and I think we ought to make sure that they
are going to be fairly treated. That, I am sure, is something
all of us want to see. We look forward to hearing from the
witnesses.
I thank the Chair.
Senator Abraham. Thank you, Senator.
I understand that there may be a vote taking place right
now in the House, and the second panel we were supposed to have
today was of two members of the House of Representatives. I am
going to, I think, pass on that panel, in light of their
absence, at least temporarily. I think what we will do is
attempt to get word to them that we are moving ahead to the
next panel, and then hopefully they can join us later or,
alternatively, we certainly will take their written testimony.
So with that in mind, we will ask the third panel, if you
would, to please join us. We will at least get your opening
statements and sort of see where we stand with respect to
possible inclusion of House witnesses at a later point today.
I want to thank this panel for being here. We have a
significant number of people on it, and so we will remind
everyone we have this clock here and I am going to ask our
staff to use it here just because we have votes in the Senate
coming up probably around 4:00 p.m. or perhaps a little before.
And so, basically, it works pretty simply. At 4 minutes the
orange light will go on, and at 5 minutes the red light will go
on, which should be the end of your testimony, although we will
take longer statements in writing and we will usually exercise
a fair amount of discretion in letting people finish a thought
or a sentence or whatever is appropriate.
We are joined on this panel by six witnesses. We begin with
Mr. Joshua Wunsch, who is representing the Michigan Farm
Bureau, as well as the American Farm Bureau; Dr. James Holt,
who is a senior economist representing the National Council of
Agricultural Employers.
We then will hear from Mr. Demetrios Papademetriou, who is
from the Carnegie Endowment for International Peace; then from
Cecilia Munoz, representing La Raza; then from Ms. Dolores
Huerta, who is with the United Farm Workers of America; and
then Mr. Manuel Cunha, who is representing the Nisei Farmers
League, and I think referenced by Senator Feinstein.
Again, we welcome all of you. I know this will be a very
diverse set of views here and we are anxious to hear all
perspectives.
We will begin with you, Mr. Wunsch. Thank you for being
here.
PANEL CONSISTING OF JOSHUA WUNSCH, MEMBER, BOARD OF DIRECTORS,
MICHIGAN FARM BUREAU, TRAVERSE CITY, MI, ON BEHALF OF THE
AMERICAN FARM BUREAU; JAMES S. HOLT, SENIOR ECONOMIST,
McGUINNESS AND WILLIAMS, ON BEHALF OF THE NATIONAL COUNCIL OF
AGRICULTURAL EMPLOYERS, WASHINGTON, DC; DEMETRIOS G.
PAPADEMETRIOU, SENIOR ASSOCIATE AND CO-DIRECTOR, INTERNATIONAL
MIGRATION POLICY PROGRAM, CARNEGIE ENDOWMENT FOR INTERNATIONAL
PEACE, WASHINGTON, DC; CECILIA MUNOZ, VICE PRESIDENT, OFFICE OF
RESEARCH ADVOCACY AND LEGISLATION, NATIONAL COUNCIL OF LA RAZA,
WASHINGTON, DC; DOLORES HUERTA, SECRETARY-TREASURER, UNITED
FARM WORKERS OF AMERICA, AFL-CIO, KEENE, CA; AND MANUEL CUNHA,
JR., PRESIDENT, NISEI FARMERS LEAGUE, FRESNO, CA
STATEMENT OF JOSHUA WUNSCH
Mr. Wunsch. Thank you, Senator, for the opportunity to
appear today. I am Josh Wunsch, a member of the Board of
Directors of the Michigan Farm Bureau, a fruit grower from
northern Michigan, and an employer.
High-quality, diversified production is worthless if it
cannot be harvested, processed or packed for the market in a
timely manner. Farmers in Michigan and across the United States
have experienced similar problems with tight labor supplies and
lost crops in recent years. At Farm Bureau, we believe this
labor supply problem stems from two distinct developments that
have worked together to reduce the supply of labor for farmers.
First, the Federal Government, working with State and local
governments, has been working more effectively than in the past
to enforce U.S. laws to discourage illegal immigration. It has
been illegal for unauthorized persons to seek employment in the
United States and for U.S. employers to employ these people
since 1986, and more resources have been devoted to
enforcement.
Second, the Social Security Administration has begun to
more vigorously implement its enumeration verification system
designed to select, name and number mismatches out of the
database. All of these stepped-up enforcement activities have
diminished the labor supply for farm employers and increased
their proportion of insufficiently documented workers in
agriculture.
Additionally, the thriving U.S. economy has put farm
employers in competition for a limited pool of legally
documented labor with employers in other industries who can
offer longer-term, year-round employment and better
compensation and benefits. Often, these workers are lost to
other States in the migration stream between Texas and
Michigan.
The situation is real and growing worse in Michigan. In
recent years, the labor shortage has led to a real problem in
my State, such as a Kent County fruit grower was informed in
1998 by the Social Security Administration that 115 of the
names and taxpayer identification numbers provided by workers
applying to work that spring did not match. The majority of
these workers had been recruited through the Michigan
Employment Security Agency. In effect, the government referred
workers to this grower who were ineligible to work.
The level of concern and interest by our farmers in H-2A
reform is very high. Today, the H-2A program is not a major
source of workers for farm employers. Only one farm in Michigan
has been able to effectively use the program. We think program
usage is low because the vast majority of growers feel they
cannot navigate the bureaucratic process associated with labor
certification, and they cannot afford to meet the adverse
effect wage statements mandated by the program.
The H-2A labor certification process has been burdensome to
growers because of its ineffectiveness. This process places the
farmer in the absurd position of being forced by the U.S.
Government to employ a worker who is illegal in favor of a
worker legally admitted under the H-2A program.
Another flaw in using the H-2A program is housing. Michigan
is known to have some of the best farm labor housing in the
country. There is, however, a fundamental problem with section
514 of the USDA Rural Developmental Housing Program. In the
eligibility of occupants, H-2A workers are precluded from using
the housing. So we have an additional example of one Government
program prohibiting the effectiveness of another.
The Farm Bureau and the coalition we have worked with on H-
2A reform has proposed several key reforms to the H-2A program
that we believe will alleviate a number of the program's
problems.
First, we propose to replace the current unproductive and
expensive recruitment requirements with an entirely new method
of testing the local labor market to ensure that U.S. workers
are not displaced.
Second, we propose reform of the adverse effect wage rate.
We recommend that the national standard minimum wage for H-2A
program participants be based upon the prevailing wage for
workers in a particular area. Good wages are easy to pay when
profitability is the end result.
In conclusion, the Farm Bureau looks forward to working
with interested members of Congress to ensure that 1999 is the
year when meaningful H-2A reform takes place. We have worked
with the administration and opponents of the H-2A reform to see
if we can reach a mutually agreeable solution to this problem.
We hope to soon engage in substantial discussions of
reforms of rural housing programs that will create more housing
for farm workers. We believe this is beneficial both to farmers
who will need to use the H-2A program in the future but do not
have housing available to them, as well as to those who will
not need the program. Our experience in Michigan would indicate
that good-quality housing will benefit migrant farm workers and
their families, and is an extraordinary asset in attracting a
reliable workforce.
Thank you for the opportunity to appear today. I would be
happy to answer any questions you may have.
Senator Abraham. Mr. Wunsch, thank you very much.
[The prepared statement of Mr. Wunsch follows:]
Prepared Statement of Josh Wunsch
Members of the Subcommittee on Immigration of the Senate Committee
on the Judiciary, thank you for the opportunity to appear today on
behalf of the Michigan Farm Bureau and the American Farm Bureau to
discuss the need for reform of the H-2A temporary foreign agricultural
worker program.
I am Josh Wunsch, member of the Board of Directors of the Michigan
Farm Bureau. I am a farmer and partner in Wunsch Farms, located on the
Old Mission Peninsula in the Grand Traverse area of Michigan. We grow
red tart cherries, sweet cherries and apples on our 360-acre farm. I
employ 50 workers during the peak harvest season, and members of my
family have employed migrant and seasonal labor for three generations.
I currently serve on the American Farm Bureau Labor Advisory Committee,
the Michigan Farm Bureau Labor Advisory Committee, the Michigan Farm
Bureau Fruit and Vegetable Advisory Committee, and the Michigan Farm
Bureau Legislative Committee.
For the last five years, Farm Bureau has worked to demonstrate to
Congress and the Administration the critical need for reform of the H-
2A program. Farm Bureau is Michigan's largest and the nation's largest
membership organization for farmers and ranchers. Many of these farmers
grow fruits, vegetables, and livestock that requires the efforts of
hired labor for their successful cultivation and husbandry. Agriculture
today is far more capital-intensive than it has been in the past, but
for some crops the trends that have brought us fewer farmers, farming
more acres, have created the need to employ more people than just a
farmer, his family members and neighbors and friends.
Farmers in Michigan and across the United States have experienced
similar problems from tight labor supplies and lost crops in recent
years. At Farm Bureau we believe this labor supply problem stems from
two distinct developments that have worked together to reduce the
available supply of labor for farmers. First, there has been a
developing consensus among public policymakers that the federal
government, working with state and local governments, should work more
effectively to enforce U.S. laws to discourage illegal immigration.
Though it has been illegal for non-authorized persons to seek
employment in the United States, and for U.S. employers to employ non-
authorized persons since 1986, relatively few resources were devoted to
enforcement of this prohibition. The Immigration and Naturalization
Service (INS) and the Border Patrol have in the last few years employed
greater resources for border interdiction, interior enforcement, and
workplace enforcement.
More recently, the Social Security Administration (SSA) has begun
to more vigorously implement its Enumeration Verification System, which
is designed to weed name-and-number mismatches out of the SSA database.
It is our understanding that billions of dollars in the Social Security
Trust Fund may be credited to names and Social Security numbers that
may be false. When SSA detects a name and number mismatch, the agency
sends a letter to the farm employer advising of the mismatch and
telling the employer that correct information must be furnished,
threatening fines and Internal Revenue Service action if correct
information is not forthcoming. Of course, when filing to pay the
employer's share of Social Security taxes, the employer furnishes the
information provided to him by the employee in question. In the case of
farmers, when they ask farmworkers to furnish correct information for
SSA, those employees often do not return to work the following day. The
clear implication is that the workers provided fraudulent Social
Security cards, among the most common of employment authorization
documents.
All of these stepped-up enforcement activities have diminished the
labor supply for farm employers. It is important to emphasize that this
is not because farm employers seek to employ undocumented workers. Due
to intensive industry educational efforts, we believe farm employers
probably have a high degree of compliance with pre-employment
verification requirements. However, it is very easy for persons in the
United States to illegally obtain fraudulent identification documents
that appear to be genuine. And when these documents are presented to an
employer, they must be accepted as genuine unless they are clearly
fraudulent. Farm employers are obligated to accept documents that
appear on their face to be genuine because, under federal law, failure
to do so could result in document discrimination charges. Farmers are
in a Catch-22 situation. As citizens they wish to uphold the law and
would thus prefer to avoid hiring illegal aliens. As business people,
they realize they must hire an adequate workforce to plant, cultivate,
and harvest the crops they depend on for their livelihood. And, if they
are too quick to decline to hire someone they suspect is fraudulently
documented, they may run afoul of the discrimination protections of the
law.
Additionally, the thriving U.S. economy has put farm employers in
competition for a limited pool of labor with employers in other
industries who can offer longer-term, often year-round employment and
better compensation and benefits. In Utah, tree fruit farmers in the
Front Range of the Wasatch Mountains are finding themselves bidding
against food processing companies in and around Salt Lake City for
workers. In Mississippi and Tennessee, cantaloupe and tobacco producers
must compete with casino operators along the Mississippi River at
Natchez for the same workforce. In Florida, citrus and winter vegetable
producers often find that construction contractors and the resort
industry can offer higher pay and year-round work.
But even where changing public policy and economic conditions have
not contributed to new shortages of workers, chronic shortages prevail
and are unlikely to dissipate. In the Lake Champlain valley in upstate
New York, it continues to be difficult to find enough people to harvest
hundreds or thousands of acres of apple orchards in counties that have
only a few thousand residents. Where irrigation is available, onion
production in the Nevada desert can be a viable agricultural
enterprise, but there is very little labor available in the area.
Many of the prime apple growing counties in Washington state are
very rural and sparsely populated, as are many of the prime Christmas
tree growing counties in the mountains of western North Carolina.
Growers in these areas have found that the H-2A program, with its many
flaws, is the only workable source of an adequate labor supply to
harvest their crops.
Recently, the Associated Press reported from Kennewick, Washington,
that growers are concerned that INS enforcement efforts in their area
will leave them short of workers for the current asparagus harvest.
That crop employs about 6,500 workers harvesting 22,000 acres of
asparagus over a six-week period. These raids follow closely vigorous
enforcement activities in fruit packing houses in Yakima, which
resulted in packing house operators being forced to fire nearly 1,600
workers who could not produce genuine documentation.
Michigan is very dependent on a steady supply of labor to hand-
harvest a number of specialty crops. Workers pick specialty crops
including apples, peaches, pears, strawberries, blueberries,
cantaloupes and sweet cherries, as well as vegetables including
pickles, cucumbers, tomatoes, peppers, asparagus and onions. Often
these workers are lost to other states in the migration stream from
Texas to Michigan.
The situation is real and growing worse in Michigan. In recent
years, the labor shortage has lead to the following problems in my
state:
A Monroe County apple grower and packer operation was
unsuccessful in getting enough labor. He lost his juice apple
harvest altogether; the quality of his fresh harvested apples
also suffered.
A large greenhouse in eastern Michigan has provided employee
benefit packages including 401(k) and medical coverage. Four
years ago they began recruiting migrant workers because of a
shortage of local workers. As a result, the producer was unable
to ship and deliver products that had already been purchased,
because there was not enough labor to load the trucks. The
greenhouse owner has received notices from the Social Security
Administration notifying him that a number of his workers have
presented names and taxpayer identification which do not match
correctly in the SSA database. These mismatches are causing him
to question if he can rehire these workers.
A raspberry grower in Ingham County needed 12 workers but
could find only three workers; this caused him to lose 75
percent of his raspberry crop. He closed his second business
location in 1998 due to a complete lack of labor.
The owner of a cider and retail farm market in Clinton
County had to take harvest workers out of the field to staff
his retail market. This caused the loss of the crops those
workers had been harvesting, requiring him to purchase
commodities from other farms. In 1998, he did not have enough
workers to plant, stake, and hoe more than 50 percent of the
tomato crop he would normally plant, causing him to cut
production.
A Kent County fruit grower was informed in 1998 by the
Social Security Administration that 78 of the names and
taxpayer identification numbers provided by workers applying to
work that spring matched and 115 did not. The majority of these
workers had been recruited through the Michigan Employment
Security Agency. In effect the government referred workers to
this grower who were ineligible to work.
These examples are representative of those we often hear in
Michigan and from Farm Bureau members around the nation.
Michigan is known to have some of the best farm labor housing in
the country. There is, however, a fundamental problem with Section 514
of the USDA Rural Development Housing program. In determining the
eligibility of occupants, H-2A workers are precluded from using the
housing. So we have an additional example of a government program
prohibiting the effectiveness of another.
For the last two years, the industry has felt the effects of the
efforts of Congress to control persons who work illegally in the United
States. We cannot provide you with enforcement statistics--perhaps INS
can give you that data. We cannot quantify exactly how many workers
have been apprehended, nor can we tell you the total dollar value of
crops lost as a result of this enforcement activity. We measure the
seriousness of a problem just like members of Congress do--by the
number of phone calls and letters we receive. I can tell you the level
of concern and interest in H-2A reform has been very high for the past
two years.
For the last five years, Farm Bureau has been engaged in an effort
with state Farm Bureaus and other state and regional farmers'
associations to develop reforms of the H-2A program and work to secure
legislation to accomplish those reforms. Our goal has been to unify
agriculture from the East, the West, and all points in between, and to
unify H-2A program users and non-users to support a reform package that
will help everyone. The Seasonal Agricultural Worker program legalized
a great many ``farm workers'' who ultimately sought employment in other
industries. Concurrent reforms of the H-2A program proved ineffective.
And, the unintended consequence of the 1986 requirement to obtain
documentation from workers encouraged a market in fraudulent employment
documents that still thrives today. Neither ``solution'' provided a
lasting solution to agriculture's labor problems.
It is worthwhile to consider just how useful the H-2A program is to
farm employers now, and how we might go about reforming it. Both
farmers who have successfully used the program, as well as farmers who
have considered and rejected the idea of using the program have told us
that a number of reforms could be made that would make the program less
burdensome and less expensive for growers to use. Farmers have, in
particular, complained about the labor certification procedure they are
required to complete to demonstrate that no domestic workers will be
displaced by the admission of foreign workers, as well as the
excessively high Adverse Effect Wage Rate standard.
In terms of program usage, the H-2A program today is not a major
source of workers for farm employers. USDA surveys indicate that about
1.6 million people work seasonally in agriculture every year. Only
about 30,000 workers were admitted under the H-2A program in 1998. Only
1 farm in Michigan has been able to effectively use the program. While
program usage has been growing in recent years, only a few years ago
the H-2A program admitted only about 15,000 workers annually. We think
program usage is this low because the vast majority of growers feel
they cannot navigate the bureaucratic process associated with labor
certification, and even if they could they could not afford to meet the
adverse effect wage standards mandated by the program.
The market test requirements of the labor certification process has
been particularly burdensome to growers because of their
ineffectiveness. Farmers are required to file job orders with the Job
Service agency in their state, which in turn files interstate clearance
orders with the Job Services in other states where workers might be
available to fill farm jobs. Often, workers referred to farmers by
these activities are in fact illegally documented ``domestic'' workers
to whom a farmer must offer work before being allowed to bring in legal
foreign labor. This places a farmer in the absurd position of being
forced by the United States government to employ a worker who is
illegal in favor of a worker legally admitted under the H-2A program.
In other instances, farm employers have been forced to advertise in
metro-area newspapers for farmworkers, or to advertise on Spanish-
language radio stations in areas where migrant farmworkers have
traditionally resided during the winter months. These efforts have
usually proven to be futile and expensive.
H-2A program wage standards have also been problematic. Under the
current H-2A program, a participating grower must pay all H-2A workers
(and any domestic workers they employ in the same occupation) the
greater of the Adverse Effect Wage Rate (AEWR), the prevailing wage in
the area of intended employment (as determined by Department of Labor
farm employer surveys), or the statutory minimum wage. Under current
regulations, the AEWR is set at the average wage paid to field and
livestock workers in a given state. Obviously, application of the AEWR
will have an undesirable inflationary impact for about half of all farm
employers in a given state, causing unnecessary inflation of the wages
they must pay simply to ensure an adequate labor supply. For almost all
farm employment, the AEWR set wage standard is uneconomic in a globally
competitive labor market. In all cases we are aware of, both the
prevailing wage and the AEWR exceed the statutory minimum wage in every
state. For Michigan, the Adverse Effect Wage Rate in 1999 is $7.34 per
hour. This is the third-highest AEWR in the nation, after Hawaii ($8.97
per hour) and Indiana, Illinois, and Ohio ($7.53 per hour). It is
important for you to remember that the H-2A minimum wage standard is
paid to workers over and above other expenses not incurred by non-H-2A
employers, like inbound and outbound transportation, housing and
program administration expenses.
We believe the AEWR should be replaced with the prevailing wage
standard applicable to other non-immigrant worker programs. We also
proposed adding to that a ten-percent premium, to help ensure that
domestic workers are not displaced. This eliminates the major flaw of
the AEWR now, the grouping together of unlike occupations in dissimilar
labor markets to create an AEWR that doesn't reflect the local labor
market.
Farm Bureau, and the coalition we have worked with on H-2A reform,
has proposed several key reforms to the H-2A program that we believe
will alleviate a number of the program's problems. First, we have
proposed to replace the current unproductive and expensive positive
recruitment requirements with an entirely new method of testing the
local labor market to ensure that U.S. workers are not displaced.
Rather than using the combination of job orders and interstate
clearance orders and ineffective employer recruitment required by the
current program, we have proposed to use information technology to
create a more effective conduit of labor market information for farmers
and farmworkers. We have proposed that the Department of Labor and the
state Job Service agencies should create Agricultural Worker Registries
in states or regions that correspond to natural farm labor markets.
These registries would be repositories of employment information
provided by farmers and farmworkers seeking to find one another. In
order to participate in the registry, a worker would have to
demonstrate that he or she is legally eligible to work in the United
States, and the Job Service could not place a worker in the registry
who has not provided documentation that can be verified by government.
Farm employers listing jobs with the registry would be obliged to first
meet terms and conditions of the H-2A program. Farm workers wishing to
seek work on farms in a given state would provide necessary
information, like name and current address to the registry.
In 1998, we came very close to success in our efforts to reform the
H-2A program. The Senate passed a proposal to accomplish the reforms I
have discussed in a bipartisan 68-31 vote in July of last year. That
legislation was later combined with a number of other measures to
create the omnibus appropriations bill that funded the operations of
the federal government for fiscal year 1999. In that process, our H-2A
reform was dropped in favor of other provisions. We have worked with
the Administration and opponents of the H-2A reform to see if we can
reach a mutually agreeable solution to this problem. For example, we
hope soon to engage in substantial discussions of reforms of rural
housing programs that will create more housing stock for farm workers.
We believe this is beneficial to farmers who will need to use the H-2A
program in the future but who do not now have housing available to
them. It will also be beneficial to farmers who will not use the H-2A
program. And of course, more and better housing stock will benefit
migrant farm workers and their families.
The Farm Bureau looks forward to working with interested members of
Congress to ensure that 1999 is the year when meaningful H-2A reform
takes place. Thank you for the opportunity to appear today. I'd be
happy to answer any questions you may have.
Senator Abraham. We have been joined by two House members
who I know have additional votes coming, and I am going to beg
the indulgence of this panel and ask if you would just take
your seats back in the seating area while we hear from both of
them. I know they have got to meet some other obligations, and
so we will bring this panel back as soon as they have each
testified. I ask them to join us.
We are joined by Representative Howard Berman and
Representative Sanford Bishop. We appreciate your both being
here. I know you both are on a fairly fast track. We weren't
quite sure when your arrival would take place, so we apologize
that we got sort of a little bit out of sequence.
Congressman Berman, do you want to start?
STATEMENT OF HON. HOWARD L. BERMAN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Representative Berman. Thank you very much, Mr. Chairman,
both for letting us testify and for accommodating the craziness
of the schedule. We had a couple of votes and that is why we
were late, and we are very grateful to have a chance to talk
now.
I am convinced that the proposals to make it easier for
agricultural employers to bring in foreign guest workers would
accomplish the opposite of my longstanding goal of trying to
improve the wages and working conditions of American farm
workers.
The legislation that passed last year as a rider to the C-
J-S appropriations bill, as well as some of the proposals that
are being floated now in the name of compromise, I think would
deprive American farm workers of job opportunities they badly
want and exacerbate the problem of an over-supply of farm
labor. The result can only be to further drive down the wages
and working conditions of American farm workers. I do see a way
out of the problem that creates the dynamic for the push for
this legislation, though, and I would like just in a couple of
minutes to throw that idea out to you.
First, I believe there is not an overall farm labor
shortage in this country. In the 104th Congress, in the wake of
the resounding defeat of the Pombo guest worker amendment in
the House, proponents of a new guest worker program backed off
and sought a GAO study to determine whether there was a
shortage of farm labor.
The GAO released its report in December 1997, finding that,
``A widespread farm labor shortage does not appear to exist now
and is unlikely in the near future.'' The ink was hardly dry
when efforts commenced to disparage the report by the very
interests that had sought it.
In my own State of California, the most significant
agricultural producing region in the country, the unemployment
figures in rural counties are staggering, double-digit
virtually across the board. The same can be said in the
agricultural areas of Texas and Florida as well. And while we
can scarcely contemplate the difficulty of the migrant farm
worker's existence, the fact is that migrant farm workers
migrate to wherever the jobs are. American farm workers want
those jobs that agricultural employers claim they cannot fill
with American workers.
We at the government level can do a much better job of
alerting farm workers to available jobs, employers to available
workers, as my colleague, Senator Feinstein, has suggested. But
that is a far cry from saying we need to bring in more
impoverished, low-skilled workers from foreign countries.
Now, one thing is clear. I do not deny--I don't think you
can with a straight face deny the fact that an unacceptable
percentage of the agricultural labor workforce is undocumented.
And I don't condone that. A year-and-a-half ago, the GAO study
estimated the percentage at 37 percent. Just a few months ago,
a California study based on the DOL data put the figure at 42
percent.
But not for a second do I think that agricultural employers
exactly have clean hands in lamenting this phenomenon. A
witness you will be hearing from later, Dolores Huerta, can
give you countless examples of American farm workers being
turned away at job sites by agricultural employers who prefer
the foreign undocumented workers.
Having lamented the increasing percentage of the workforce
that is presently undocumented, the question is, is the
solution to create an expanded guest worker program? I would
like to observe the obvious here. The large number of
undocumented farm workers are not going anywhere unless this
committee wants to tell me that we are going to undertake in
this country mass deportations on an unprecedented scale.
Create a new guest worker program, and mark my words, we
will then have the present existing pool of undocumented
workers plus a large number of new guest workers who, if
experience is any guide, will overstay their visas and will
exacerbate the problem of undocumented workers in this country.
No matter how large a percentage of their wages you might
propose to withhold as an incentive to return to their home
country, guest workers won't go back. They are invariably
better off overstaying their guest worker visas and bleeding
into our underground economy.
The Jordan Commission, in 1997, concluded that creating a
new agricultural guest worker program would be a grievous
mistake and would only serve to increase illegal migration
instead of replacing an illegal workforce. In light of all the
efforts by the U.S. Congress, and this subcommittee in
particular, to combat illegal immigration, I urge you not to
approve legislation which will only exacerbate the problem.
A few months ago, I had a most intriguing conversation with
a Republican colleague of mine, one who has a reputation for
not being, ``soft'' on illegal immigration. We rued the problem
of undocumented workers in agriculture, and he said that that
is why he supported an expanded guest worker program. I offered
my observation that we would then have the present
undocumented, plus new guest workers who would overstay. Maybe,
he said--not me--he said we should legalize the present
undocumented workforce.
Consider a program like this, not a program like we did in
1986. Jim Holt and some of the other witnesses you have here
today--we were all involved in negotiating that, and the
reformed H-2A; not that kind of a program, like the SAW program
that simply legalizes workers based on their past work history,
but rather a program like the RAW program, the Replenishment
Agricultural Worker program, which was a contingent part of
that legislation, never triggered into effect because of the
huge over-supply of farm workers, but it was contained in the
1986 law. We put that program on the books, should a shortage
of workers ensue subsequent to the SAW legalization program.
What the RAW program offered prospectively to farm workers
was permanent resident status upon the completion of 90 days of
work in perishable agriculture for three successive years. I
could support the implementation of a RAW-like program now, as
I did in 1986, because it is fair to workers and growers alike,
and because it is the only proposal which would not exacerbate
the problem of undocumented workers in agriculture.
I understand why growers have a concern. This process has
developed in a situation where documents are presented and the
employer accepts it. He knows they are undocumented, and he
watches Immigration and Border Patrol getting tougher and
tougher and he is worried about where his supply of workers
will come in the future. This alternative, the RAW-type
program, is the way out of that.
And the concern that some growers have that they will all
immediately go off to the cities and leave agriculture, I don't
think is well-founded. It certainly wouldn't be well-founded if
they offered good wages. But under this program, the
expectation would be that in order to get permanent resident
status, they would have to continue to work in agriculture for
a reasonable period of time.
You have been very patient with me. There is a lot more I
could say, but I don't want to wear out my welcome any more
than I already have, so I will stop here.
Senator Abraham. Well, thank you. We will include the full
statement in the record.
Senator Feinstein. Will the Representative be able to stay,
because I would like to ask him some questions?
Mr. Berman. Yes.
[The prepared statement of Representative Berman follows:]
Prepared Statement of Representative Howard L. Berman
Thank you for this opportunity to testify today. For as long as I
have served as an elected official, I have made it my business to try
to improve the circumstances of American farmworkers, the most
impoverished working people in the United States. I am convinced that
proposals to make it easier for agricultural employers to bring in
foreign guestworkers would accomplish exactly the opposite. Legislation
that passed the Senate last year as a rider to the Commerce, Justice,
State appropriations bill, as well as proposals now being circulated in
the name of compromise, would deprive American farmworkers of job
opportunities they badly want, and exacerbate the problem of an
oversupply of farm labor. The result can only be to further drive down
the wages and working conditions of American farmworkers. It is out of
this concern that I am grateful for this opportunity to speak to this
subcommittee today.
There is no shortage of farm labor in this country. In the 104th
Congress, in the wake of the resounding defeat of the Pombo guestworker
amendment in the House and questionable prospects for a similar
amendment in the Senate, proponents of a new guestworker program
relented and sought a GAO study to determine whether there is a
shortage of farm labor. The GAO released its report in December, 1997,
finding that ``a widespread farm labor shortage does not appear to
exist now and is unlikely in the near future.'' The ink was hardly dry
when efforts commenced to disparage the report by the very interests
that had sought it.
In my own state of California, the most significant agricultural
producing region in the country, the unemployment figures in rural
counties are staggering, double-digit virtually across the board. The
same can be said in the agricultural areas of Texas and Florida as
well. And while we can scarcely contemplate the difficulty of the
migrant farmworker's existence, the fact is that migrant farmworkers
migrate to wherever the jobs are. American farmworkers want those jobs
that agricultural employers claim they cannot fill with American
workers. Certainly we can do a better job of alerting farmworkers to
available jobs, and employers to available workers, as my colleague
Senator Feinstein has suggested, but that is a far cry from saying we
need to bring in more impoverished low skill workers from foreign
countries.
Now I do at this juncture want to make one point very clear: I do
not deny the fact that an unacceptable percentage of the agricultural
labor workforce is undocumented, nor do I condone it. A year and a half
ago, the GAO estimated the percentage at 37 percent; just a few months
ago, a California study based on DOL data put the figure at 42 percent.
But not for a second do I think that agricultural employers exactly
have ``clean hands'' in lamenting this phenomenon. Dolores Huerta can
give you countless examples of American farmworkers being turned away
at job sites by agricultural employers who prefer foreign workers.
Having lamented the increasing percentage of the workforce that is
presently undocumented, is the solution to create an expanded
guestworker program? Let me observe the obvious: the large number of
undocumented farmworkers are not going anywhere, unless this committee
wants to tell me that we are going to undertake in this country
deportations on an unprecedented scale. Create a new guestworker
program and, mark my words, we will then have the present undocumented
workers PLUS large numbers of guestworkers who, if experience is any
guide, will overstay their visas and exacerbate the problem of
undocumented workers in this country.
Make no mistake, no matter how large a percentage of their wages
you might propose to withhold as an incentive to return to their home
country, guestworkers won't go back. They are invariably better off
overstaying their guestworker visas and bleeding into our underground
economy. The U.S. Commission on Immigration Reform (or Jordan
Commission) in 1997 concluded that creating a new agricultural
guestworker program. would be a ``grievous mistake'', and that it would
only serve to increase illegal migration instead of replacing an
illegal workforce. In light of all the efforts by the U.S. Congress and
this subcommittee in particular to combat illegal immigration, I urge
you not to approve legislation which will only exacerbate the problem.
A few months ago, I had a most intriguing conversation with a
Republican colleague of mine. We rued the problem of undocumented
workers in agriculture, and he said that that is why he supported an
expanded guestworker program. I offered my observation that we would
then have the present undocumented plus new guestworkers who would
overstay. Maybe, he said, we should legalize the present undocumented
workforce. Consider that: not a program like the 1980's SAW program
which legalized workers based on their past work history, but rather a
program like the ``replenishment agricultural workers'' or RAW program
which we legislated in IRCA but never implemented. We put that program
on the books should a shortage of workers ensue subsequent to the SAW
legalization program. What the RAW program offered prospectively to
farmworkers was permanent resident status upon the completion of 90
days of work in perishable agriculture for three successive years.
I can support the implementation of a RAW-like program now as I did
in 1986 because it is fair to workers and growers alike and because it
is the only proposal which would not exacerbate the problem of
undocumented workers in agriculture.
From the worker point of view, by not adding to the supply of
workers, whether documented or undocumented, a RAW-like program would
give farmworkers a chance of seeing an improvement in their deplorable
wages and working conditions. I am convinced that what agricultural
employers fear is not an impending shortage, but rather the
possibility, should the border continue to tighten and employer
sanctions be effectively enforced in agriculture, that they might be
deprived of the gross oversupply of farm labor they presently enjoy. It
is that oversupply which is the reason why the wages and working
conditions of American farmworkers remain a national disgrace.
Underlying the argument for an agricultural guestworker program is
the notion that farmworkers must be forever doomed to poverty and
inequity. Why? Where is it written, in this free market economy, that
agricultural employers need not improve wages and working conditions to
attract and retain an adequate supply of work-authorized labor? Do not
insulate these employers from the laws of supply and demand by enacting
a new guestworker program. The American farmworkers who want these jobs
have suffered enough. Let's not make it worse.
Senator Abraham. Congressman Bishop, thank you for coming.
STATEMENT OF HON. SANFORD BISHOP, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF GEORGIA
Representative Bishop. Thank you very much, Mr. Chairman. I
have a somewhat different view from my colleague from the
House. For a myriad of social and economic reasons, the current
state of affairs is that thousands of aliens do seek entrance
into the United States to find work annually, and it is no
secret that a majority of the illegal influx is from just south
of the border in Mexico.
Presently, an alien from Mexico without a valid work permit
either risks the passage alone or must pay money to a smuggler,
who often brings the alien into the country in a manner that
puts him at great personal risk, whether it is in the back of a
semi trailer which might reach up to 120 degrees or over high
mountain passes where unexpected cold weather or snow can leave
the alien stranded in the event of vehicle trouble.
These paid smuggling operations go awry. There have been
numerous accounts of smuggled illegal aliens ending up in
serious traffic accidents because of unsafe or overloaded
vehicles, and we concede that. These hazards have resulted in a
lot of hardship and senseless tragedy. But I am here today to
make the point that there has to be a better way, and I commend
the subcommittee in its wisdom for seeking a path to a better
way by convening this hearing.
You will no doubt hear through the course of this debate
that the General Accounting Office, in 1997, found that no
national agricultural labor shortage appears to exist. The GAO
concluded this because it made an estimate of some 600,000
undocumented or fraudulently documented farm workers being
available to farmers.
While some might argue the premise of the GAO's inquiry
when it included that estimate in its report, we all recognize
that the GAO's job is to report factual and relevant estimates.
The problem with that report was in a subcommittee hearing we
had in the Agriculture Committee, we questioned the GAO
individuals and they indicated that they did not question one
single grower from the Southeast in concluding that there were
adequate farm workers available.
Most of the people that they interviewed were out West,
very close to the Mexican border. So the people who need this
H-2A reform most are the growers in the Southeast, from Florida
all the way up through Georgia and South Carolina and North
Carolina.
I believe that the Congress should look at the issue in its
totality to ask, are legal farm workers involved in a legal
system that is above-board and provides legal certainty to all
of the parties that are involved. The H-2A agricultural guest
worker program was designed, and it seeks to provide, that
legal certainty. Unfortunately, the way the program is
currently drafted and implemented, it does not provide a
farmer-friendly or a producer-friendly source of workers.
There are problems with the H-2A program which discourages
the program's use by farmers in Georgia and throughout the
country who seek to run their planting and their harvesting
operations legally. I have personally visited farms and have
seen the housing that has been constructed, the dormitory
facilities, as well as the cafeterias that have been provided
for these migrants workers who have been brought in under the
H-2A program, and I have found most of them to be commendable.
I also have personal knowledge of migrant workers who come
under that program who earn upwards of $500 per week, who live
in pretty good conditions and who don't seem to be complaining
at all.
The problem with the lack of a workable H-2A program and
the assumptions that the GAO makes that there are plenty
undocumented workers is that, as is the case in my area where
there are perishable crops--produce, watermelons, peaches,
corn--that is in need of harvesting, if INS representatives
show up in the county at harvest time, all of the workers
disappear. And as a consequence, that grower is left with an
entire crop, and all of the investments attendant with that and
all of the loans attendant with that, left to perish in the
fields. That is simply a bad situation and one that ought not
be allowed to exist.
All the workers want and all the producers want a legal
system so that producers can plant and harvest their crops in a
way that will not result in tremendous economic loss to them
and that will comply with all of the health and safety
standards and all of the humanitarian requirements of a good
workforce.
I believe that a careful examination and reform of the H-2A
program, pursuant to recommendations that I personally and my
colleagues have made to the Secretary of Labor, pursuant to
recommendations by growers which we will submit to this
committee under separate cover, would go a long way toward
helping to alleviate this problem.
While there may be an over-abundance of workers in some
parts of the country, in southwest Georgia, particularly, and
the southeastern United States, we have a problem, and the
problem comes because we have perishable items that are grown
and in need of those workers. And when suddenly they disappear,
it really leaves a farmer in the lurch.
Thank you very much for your patience and your kindness and
your consideration in allowing us to come and testify, and I
certainly would try to be available for any questions that you
might have.
Senator Abraham. Thank you.
Senator Feinstein, do you want to start?
Senator Feinstein. Thank you very much, Mr. Chairman.
Howard Berman, it is great to have you here, and welcome.
In my informal opening remarks, I mentioned, similar to what
you just said, that INS estimates that there are about 600,000
undocumented workers in this country, many of whom have been
here for a long time. They do this work. We all know that our
cities produce very good forged immigration credentials--Social
Security cards, drivers' licenses, green cards. I couldn't tell
a real one from a forgery.
Therefore, wouldn't it make some sense if we were able to
provide a green card to those workers, provided they would
agree to do certain things? And these are workers that would
have worked in this industry for a period of time, whose work
was good, and wanted to continue. And when you signed up for
this kind of registry and availability to harvest a certain
crop, there would be a certain premium pay that would be
granted to the worker.
I wanted to ask you your view, because I think you know a
great deal about this, about adverse wage rates. Given that
average wage rates are used to determine the adverse wage rate,
wouldn't the average be higher if we were to have a completely
legalized workforce?
Representative Berman. There is no doubt in my mind. The
average wage rate, and therefore the adverse effect wage rate,
would be higher if the workforce were legal because it would
raise the bottom.
Senator Feinstein. So in terms of providing a decent wage,
there would be some merit to the proposal to find a way to
provide the ability to work legally to people who are already
here and working illegally?
Representative Berman. I believe that very much. I believe
that the only result of taking the other approach is those
workers will continue to work. They will continue to work
illegally. Growers will continue to be in--they call it a bind;
some people think they enjoy the situation of having those
workers coming in with the forged documents to the farm labor
contractors or to the growers themselves and working. And then,
in addition, you will have the new guest workers.
There are studies that show that the start of the real
trail of undocumented immigration in the United States came
with the bracero program. It was that flow in a legal guest
worker program that created the migration patterns that led to
that flow. So, to me, everything that Congressman Bishop just
talked about--at the heart of it was the problem his farmers
have in finding illegal workers. What happens if INS shows up?
Everybody disappears.
How is the grower going to determine the fake card from the
real card? He is not supposed to be able to do that. In 1986,
we told the employers that wasn't their obligation; they aren't
a little INS. It is this kind of proposal, I think, that you
and I are both talking about now that can deal with that
problem and substantially increase the legal workforce without
undercutting the wages and continuing and exacerbating an over-
supply that would come the other way.
Could I add one other thing here?
Representative Bishop. May I respond to that, too?
Representative Berman. Congressman Bishop talked about
housing that he saw. Yes, in the H-2A program there is an
obligation for housing. In all of these proposals that we are
talking about to establish a new guest worker program, all it
means is taking some of the protections in the existing guest
worker program and diluting them or eliminating them. The new
guest worker program would eliminate the obligation to provide
housing, the kind of housing that was seen.
Senator Feinstein. Representative Bishop.
Representative Bishop. I just wanted to point out that
while there are many undocumented workers that have come in,
particularly in the southeastern United States, in addition to
agricultural needs, we also have poultry processing facilities
that are now beginning to expand in south Georgia.
Many of the people that came in initially as agricultural
workers, farm workers, are now working in the plant processing.
So the poultry processing plants have ``damas'' and ``hombres''
on the rest rooms, and these people who have been working in
the fields harvesting crops are now working in an air-
conditioned poultry processing plant and the farmers are still
in need of workers out in the hot sun to harvest their crops.
So we still will have a problem.
Even though these undocumented people may remain in the
States, they are going to our cities or they are going to
places where they can get more stable employment that is not
seasonal, and so the need still remains for legal agricultural
workers. Otherwise, the food and fiber that our farmers produce
in this country, which now is the most economical, highest
quality, most abundant and safest anywhere in the world, is
going to be jeopardized, and the consumer will ultimately have
to pay at the supermarket.
Senator Feinstein. Thank you.
One quick question of Mr. Berman on the RAW program. This
was before my time. Do you know how many people fell under it?
Representative Berman. We never had to activate it. What we
created was a seasonal agricultural work program that we called
SAW. That took people who had worked in agriculture and gave
them legal status. Some people like to call them the
``rodinos.'' But then the growers said, well, what if that
isn't enough? So we said, all right, we will create a
theoretical program that allows new people to come in, not tied
to a grower specifically, but they have to work in agriculture.
But, you know, we don't want indentured servitude here, so
after several years of working in agriculture they get their
full legal status and they can stay in agriculture if the
growers do what is necessary to keep them in agriculture or
they can go into some other kind of a job. But that notion was
never activated, so our notion is take the RAW concept, apply
it to the undocumented workers now working in agriculture, tie
them for several years into working in agriculture, not for a
specific grower, because that I think is wrong, but proving
that they have worked in agriculture in order for them to get
the credits to allow them to go into permanent resident status
and then on to citizenship.
Senator Feinstein. Thank you very much. I mean, I think
that is an idea that could be fleshed out and at least could be
a proposal that perhaps those Senators that have worked so hard
on this issue would take a look at, and I would be very
interested in hearing Senator Smith's comments.
Senator Abraham. I asked Senator Smith if he wanted to stay
with us here today because we have tried to turn this hearing,
since there isn't legislation yet drafted, an opportunity for
some give-and-take here a little bit, and frankly I think we
would like to hear your reaction both to these ideas and some
of the comments that have been made already.
Senator Smith. Thank you, Mr. Chairman. Senator Feinstein,
I would love to work with you on your idea. I think it has some
merit. And I thank both Congressmen for being here and the
perspectives that you bring.
Congressman Bishop raised a point I was going to make, and
that is the GAO report says there is no agricultural shortage
because we already have all these illegals here. And,
Congressman Berman, it just seems to me that the surest way to
keep a migrant worker down is to keep him illegal----
Representative Berman. I couldn't agree more.
Senator Smith [continuing]. And make sure there is no
process for them to exert their rights. And Senator Wyden and I
worked very hard to try to find a legal basis for them to be
here, recognizing the economics of the marketplace and of the
farmer as well. When it comes to the wage rate, we are open to
suggestions, but we need to get beyond this. When it comes to
transportation, I think we had a good proposal.
When it comes to housing, our State of Oregon won't allow a
farmer to build a structure on farm land. So when it comes to
providing housing, it just isn't possible under State law. So
we came up with a voucher program that they could utilize in
other ways and help create a market that could develop within
the boundaries of urban growth boundaries and what not. So we
are open to your ideas, but we are also bounded by the
realities of the marketplace that farmers have to live in.
Mr. Berman. I agree with----
Senator Feinstein. Could I just----
Senator Abraham. Let me just inject here. I don't want to
confine us too much to the clock or to the sort of individual
Senator's prerogatives here. So why don't we just go back and
forth a little bit?
Senator.
Senator Feinstein. The last time the California Farm Bureau
was in to see me, they brought in a delegation and among them
was a young woman who owned a farm down, I think, in the Paso
Robles-Santa Maria area, who had spent $1.5 million to build
really good farm worker housing to use on her farm. And it was
to have security, it was state-of-the-art, it was modern. And
guess what? The city council turned it down--not in my
backyard. And so that becomes an issue for all of us, I think,
as we look at that issue. Really, how do we develop incentives
for the kind of housing that would be necessary for any
programs?
Senator Smith. And, see, we weren't trying to dilute
housing. We were trying to make it flexible enough to create a
market that would work in California and Oregon.
Senator Feinstein. It won't work in California because
there is no housing. That is the problem.
Representative Berman. That is right.
Senator Smith. Nor Oregon, but how do you create it if your
State law won't allow it or a city council won't approve it?
Senator Feinstein. I would be interested if either of the
Representatives had a comment on the housing issue.
Representative Bishop. Well, I think that it is going to be
very difficult to have one cookie cutter in legislation that
would apply to all situations. In southwest Georgia, from which
I come, housing is not a problem. The problem is getting
growers to build decent, affordable housing, and they do it
because they realize that that is what is required under the
existing H-2A program, and they do everything they can to
comply with the law.
They don't have a problem with the county commission
because many times they are in rural areas where they don't
have an ordinance problem or a zoning problem. Even those
workers who work in cities--I have one constituent who actually
contracts with growers to provide rental housing, and over the
past 5 or 6 years she has been able to acquire some 60 or 70
properties because of, each growing season, being able to rent
to more and more migrant workers.
She makes a good living, the workers are happy, the growers
are happy, and they are complying to the extent that they can
with the H-2A program. I think it should be a flexible enough
program to provide either vouchers or to provide housing
however the grower would like to within the parameters of the
H-2A program.
Senator Abraham. Congressman Berman.
Representative Berman. In the model that I am talking
about--and hopefully this might be appealing to the Chairman
and to Senator Smith as well--get the Government out of setting
the exact wage rate, going through an elaborate determination
of adverse effect wage rates or telling the grower what he has
to provide. Let the marketplace--and then, hopefully, I would
like to see a robust Federal program to deal with the problem
of rural housing and farm worker housing as well.
But if the workers are legalized, then they are workers,
like other workers, and we don't set the wage rates for other
people in the private sector and we don't tell the employer how
he has to house them. Part of how you attract workers is to do
certain things. The marketplace becomes a forcing mechanism in
this kind of a universe.
It is when you bring in foreign guest workers to work for a
specific association or a specific grower, because you have no
marketplace determination, that is when you need to set these
standards. In the model that I am talking about, the
legalization model, you get out of all of that.
I like the registry idea because I know that in Texas at
certain times of the year, there are farm workers there that
want to work in southeast Georgia. And if there was a better
way of using the Federal Government to help the farmers in
southwest Georgia--it is southwest Georgia--get the folks in
the Rio Grande Valley to get there, there would be workers
available. I believe that is also true in Oregon and Washington
for a lot of the folks in California.
Senator Abraham. Congressman Bishop, do you want to
comment?
Representative Bishop. I respectfully disagree. All of the
workers who perhaps might be available in Texas are not
interested in coming to Georgia to work. Many times, our
growers go out recruiting. They get commitments to have the
workers come, only to have them not show up or not follow
through. It is a very, very difficult and arduous process, and
it takes an extended period of time which often is inconsistent
with the growing season.
The requirements of the existing H-2A program require that
the application be placed for a certain time, at a certain date
for harvest. And if there is a weather problem or a disaster
problem, if there is rain, the expected time of harvest may be
delayed by 2 or 3 weeks. The time of planting may have to be
delayed, and as a result of that the time frame that is
required to be on the H-2A application cannot be complied with.
Often, the people who have to pass on it are so backlogged
and don't have enough staff that they can't get the paperwork
done in time for the harvest and the permits to be issued in
time for the workers to be transported, housed, and then go to
work. I mean, you have got a real problem for our producers and
it will threaten--I promise you, it is going to threaten the
availability of our food and our fiber at the supermarket in
our urban areas unless we find a way to legally allow these
farm workers to help harvest and do the agricultural work in
our rural agricultural-producing areas of the country.
Senator Abraham. Senator Smith, any final comments here?
Senator Smith. I was just going to tell Howard, you sounded
like a Republican when it came to setting wage rates.
[Laughter.]
I say that in fun, but Ron Wyden and I put in the
prevailing wage because we frankly wanted to say that as it
relates to current H-2A, nobody is frankly responding to or
participating in it. For the overwhelming number of farm
workers, this would be a pay increase.
Look, I would like to let the system work, but I would like
to make those farmers you talked about who profit from an
illegal system no longer profit, and require that they obey the
law. In exchange for that, give the farmers some certitude that
there will be some workers there.
And believe it or not, we are not trying to bring in guest
workers. We are trying to say these people are here; they are
already our guests. They just ride around in U-Hauls and the
backs of people's trunks, and that is a tragedy. That is a
shame upon this country.
Representative Berman. But the proposal itself last year
wasn't limited to the people who were here. And, in fact, while
it made a slight gesture for a way-down-the-road potential
legalization, there were a bunch of House Republicans who were
going crazy about that, and it ended up that you had to take
even that little glimpse of a legalization program out of the
proposal.
I asked the GAO to do a study in 1998 about the Georgia
Vidalia onion growers. They did the study. I don't think that
is in Sanford's district.
Representative Bishop. No, it is not.
Representative Berman. It is in north Georgia.
Senator Abraham. The last time we had a hearing, we heard
from Senator Coverdell about it.
Representative Bishop. No, no. That is in southeast
Georgia.
Representative Berman. Southeast Georgia, all right.
Representative Bishop. Yes. That is Republican Jack
Kingston's district.
Representative Berman. Yes. [Laughter.]
In any event, here is what they found, that there were
contractors right then offering to bring in documented workers
from the Rio Grande Valley, but other farm labor contractors
offered to bring in H-2A's at a cheaper rate. So the Georgia
Vidalia onion growers said, we don't want the Rio Grande
workers, we want to get those H-2A workers. Then they
complained about all the rigamarole of going through H-2A.
Senator Smith. See, Senator Wyden and I are caught between
the Republicans in the House you identified that don't want a
legal system, and don't want any more immigrant workers,
period, versus those on the labor side who say that they are in
the labor shortage business and don't want any workers at all.
And frankly, there are those of us who would say let's try a
legal system. Frankly, too many people profit from an illegal
system because they get payments from these human coyotes which
is pretty good business for them. I want to put these coyotes
out of business.
Representative Berman. But that Republican that I talked
about that I was talking to was on that letter to the
appropriators yelling about the legalization program. When
people realize that a guest worker program will simply add
eventually to the new number of illegals, all of a sudden
people starting changing their view.
If the growers and the farm worker advocates could get
together--we did it in 1986. We could do it again and we could
do it in a way that would give agriculture what it needs, that
is a workforce in agriculture, but with the workers having
dignity, legalized status, a chance to participate fully.
Representative Bishop. May I comment on this wage issue?
They may very well have not wanted Rio Grande workers not
because they were going to pay them less than the minimum wage,
but I think that any businessman would like to keep his or
her--business person would like to keep his or her labor costs
down. But, certainly, we have set in this country civilized
standards below which we cannot go.
But the dispute between these Rio Grande workers and the
other workers was not substandard wages. They were just wages
that were competitive, and I think that you have to really
understand that. At the risk of sounding like a Republican, you
can't ask business people to bid to pay the highest wages.
Senator Smith. It is not that bad.
Representative Bishop. You ask them to pay competitive
wages so that everybody can make a decent living.
Representative Berman. But at the risk of sounding like a
Republican----
Senator Smith. It isn't that bad, you guys. [Laughter.]
Representative Berman. Scarcity is part of all of this. If
you can always get an unlimited supply of foreign guest
workers, then there is no marketplace.
Senator Smith. But Senator Wyden and I were saying you
can't even go to the guest workers until you can certify that
the U.S. workers are not available under the registry.
Senator Feinstein. No, no, no. You had a period of time in
there, in the bill. It was a year. It started at 6 months and
then it went to a year.
Senator Smith. Well, you had to certify that the grower
could not find sufficient legal domestic workers and then they
could go and recruit H-2A workers.
Representative Berman. But they don't have to do any
recruiting. All they have to do is look at the registry. We
never tried the registry. The farm worker with the cellular
phone waiting for the call from the Department of Labor because
he is on the registry saying ``go to work''--in other words, we
didn't even establish the registry when all of this went into
effect. It wouldn't have worked that way.
Senator Smith. Well, then, please--I am here today because
I am open to new ideas. We have a shameful status quo and we
need to find a legal system. And if we had a flaw in our bill,
then let's fix it.
Senator Abraham. I want to thank this panel. We promise not
to tell Senator Kennedy of your new-found views on prevailing
and other wage-related matters. [Laughter.]
He was absent during the discussion, and I think probably
it is better for all of us that he learn about it a little
later in the day. [Laughter.]
Representative Bishop. Mr. Chairman, I would like to
request permission of the committee to supplement my testimony
by offering suggestions that we offered on the House side and
that we have been negotiating with the Secretary of Labor over
the past couple of years. We have been trying to deal with this
and work through it through provisions that don't require
legislation, and some additional provisions that do require
legislation, based upon recommendation and review by the
Congressional Research Service that did a study of this for us.
Senator Abraham. We will be glad to take that and any other
submissions either of you would like to make. We appreciate
very much you being here. I think it has been a very helpful
part of the hearing today. Thank you both.
We have been joined by Senator Gorton who I know had wished
to be part of the first panel, but due to an Appropriations
Committee meeting was delayed in getting here.
We would be happy to turn to you at this time, if you would
like to offer your testimony or just remain on the panel with
Senator Smith. We are glad to have you here.
STATEMENT OF HON. SLADE GORTON, A U.S. SENATOR FROM THE STATE
OF WASHINGTON
Senator Gorton. Well, Mr. Chairman, I thank you. The
conference committee on the supplemental appropriations is
going on right now and I need to return as soon as possible. So
I appreciate your allowing me to break in.
My colleagues and I appeared before you last year to talk
about the need to reform our agricultural guest worker program.
We are back again. The problem is still not addressed and, if
anything, the need is more urgent. There is no way--and I will
depart from my text here--that I can be as eloquent on this or
as knowledgeable on this as my colleague from Oregon, Senator
Smith, is. And I have been delighted to follow his leadership
on the question, delighted particularly because our States are
so similar that our problems are, for all practical purposes
identical.
It is incredible to me that in this agriculture-dependent
country we are so indifferent to the fact that so much of our
workforce is illegal. In its report on the existing H-2A
program, the General Accounting Office estimated that 37
percent of the agricultural workforce is illegal. Most farmers
in my State think that this estimate is too low. The growers
league in Washington State reports that recent evidence from
Social Security letters to employers on INS enforcement actions
indicate that 50 to 70 percent of agricultural seasonal workers
in Washington are illegal aliens using false documents to gain
employment.
The percentage of illegal workers was not the only aspect
of the GAO report that is contradicted by experiences in
Washington. In its report, the GAO predicted that there would
be no significant agricultural labor shortage essentially
because the GAO did not expect the INS enforcement actions to
be effective. Recent events in Washington State prove this
wrong, and I will get to those and submit some of them.
But, Mr. Chairman, if 70 percent or 50 percent or 37
percent of our employment in a given area is illegal, and if,
as we know from not 2 years or 5 years or 10 years, but 50
years of experience, we are not ever going to be able to
enforce our border crossings sufficiently to keep that very
significant number of illegal workers out of the country,
obviously we need a change. Obviously, we need a change. All of
the enforcement actions aren't going to work.
The attraction for these workers, who do so much better in
the United States as illegals than they can do at home legally,
is going to continue. So why not face reality and come up with
a system that offers employment to people who are going to be
employed in our agricultural industries anyway? We know it.
They are employed now, they were employed last year, they were
employed 20 years ago, they are going to be employed 20 years
from now.
Why not create a way in which they can be here legally, get
their wages above the table, go home when the seasons are over,
return legally, not having to pay illegal smugglers to bring
them here, let our employers be legal, deal with valid
documents? For the life of me, I can't understand why there
isn't an overwhelming surge to make an illegal reality into a
legal reality. It will be better for the workers, it will be
better for the employers, and it will be better for our
economy. It is just as simple as that.
I may tell you I totally despaired of common sense ever
infecting this issue until last year when Senator Smith was
able to get together with his counterpart, Senator Wyden from
Oregon, and with you and others and come up with a system that
passed the Senate and moved us significantly in that direction.
It was progress that was a great tribute to everyone who worked
on it, and I hope we can build on the successes of last year
and be successful this time around.
But I just simply need to repeat: this workforce is here
and it is going to continue to be here. Let's find a way to
make the conditions under which they work better, and the
people who are involved in it, both employers and employees,
honest. I think Senator Smith and his proposal will do just
that and I commend it to you.
I have got lots of other stuff in this statement and if you
will include it in the record as if read, I will save you time
and I will be able to go back to the conference committee.
Senator Abraham. Senator Gorton, thank you for being here.
We will include your full statement in the record. We
understand your need to return, so we excuse you at this time,
but appreciate your participation and look forward to working
with you further.
[The prepared statement of Senator Gorton follows:]
Prepared Statement of Senator Slade Gorton
Mr. Chairman, my colleagues and I appeared before you last year to
talk about the need to reform our agricultural guest worker program.
We're back again, the problem still is not addressed, and the need is
more urgent.
It is somewhat incredible to me that in this agriculture-dependent
country, we are so indifferent to the fact that so much of our
agricultural workforce is illegal. In its report on the existing H-2A
program, the General Accounting Office estimated that 37 percent of the
agricultural workforce is illegal. Most farmers in my state think this
estimate is too low. The Growers' League in Washington state reports
that recent evidence from social security letters to employers and INS
enforcement actions indicate that 50 to 70 percent, of agricultural
seasonal workers in Washington are illegal aliens using false documents
to gain employment.
The percentage of illegal workers was not the only aspect of the
GAO report that is contradicted by experiences in Washington state. In
its report, the GAO predicted that there would be no significant
agricultural labor shortage, essentially because the GAO did not expect
INS enforcement actions to be effective. Recent events in Washington
state prove this wrong.
New INS enforcement strategies combined with improved record-
checking by the Social Security Administration are far more efficient
than GAO foresaw. We must recognize the consequences for agricultural
employment, and act now to ensure a stable, and legal, workforce.
The information technology ``noose'' is tightening. As the Social
Security Administration becomes more able quickly to verify matches
between employees' names and social security numbers submitted to
employers, it is likely that farmers, including fruit and vegetable
growers, will lose a large portion of the current workforce as those
employees using false documents are screened out. The Washington
Growers League anticipates that the Social Security Administration will
require electronic verification of names and social security numbers
within the next few years.
If used throughout the growing season, the INS's new enforcement
strategies, combined with improved technology, will severely disrupt
seasonal employment in 1999.
Earlier this year, 13 fruit packers in the city of Yakima in
central Washington were informed by the INS that between 30 and 70
percent of their employees were illegal and had to be fired. The
employers complied, laying off over 700 workers. Even though the
employers were able to replace the workers relatively easily because of
seasonal high unemployment and the nature of the work (I should note
that the workers, because they were employed in warehouses and not on
farms, would not be covered by the H-2A program) the enforcement action
significantly disrupted the community, the employers, and the displaced
workers and their families. This is an experience no one wants
repeated. And yet, as the INS continues to do its job, it is bound to
be repeated, and with far more dire consequences: If this type of
enforcement action was repeated on farms, where locations are more
remote and the work is of shorter duration and more demanding,
employers would not be able to find legal replacements.
In 1998, some growers, particularly asparagus growers, did not have
enough workers to harvest their crops and the crops rotted in the
ground. It is likely that they will face a shortage again this year. If
the new INS enforcement strategy that was used recently in Yakima fruit
packing houses and in some Puget Sound area horticultural businesses is
employed in other crops, growers will face shortages during critical
work periods in 1999.
Anticipating this, some growers in Washington state have turned in
desperation to the existing guestworker program, though the cost and
bureaucratic burden of the program is deterring most. I understand that
Jim Holt, an economist who has been working on establishing a
guestworker program in Washington and Oregon will testify on a later
panel, and can provide you a first hand account of the problems they
have encountered.
People who work in the orchards and farms in Washington state
understand the meaning and value of hard work, and the illegal aliens
who do this work are there because they believe in family and endeavor
to provide better opportunities for themselves and their children. I
respect the work that they do, and their labor provides value to
everyone in Washington state and America. As a Senator I want to create
a system that allows these workers to come on a seasonal basis and
continue to contribute to their families and our farm economy, without
undermining our efforts to stop illegal immigration.
Last year the Senate passed a bill reforming the H-2A program, but
even this modest measure was opposed by the Administration and died in
conference. We cannot let this rest. In Washington State, as in other
states, the implications are too dire. Unless we can ensure a
sufficient and stable legal agricultural work workforce, we, as
Senators, will continue to be in the untenable position of having to
adopt measures to reduce illegal immigration, as we should, but with
the knowledge that these measures will destroy our states' and the
nations' most vital source of trade. Agricultural employers will
continue to be dependent on illegal workers, though the supply appears
to be shrinking, and forced to engage as long as possible in the
morally and legally suspect practice of remaining as ignorant as the
law allows, because not to do so means economic ruin. Workers here
illegally will continue to live furtively and be victimized by
``coyotes'' as they make the dangerous trip across the border, or to
endure extended absences from their families because they don't dare
attempt to make the crossing more than once.
You will hear again today from some who oppose reforming the guest
worker program, who ask why growers don't simply increase wages to
secure a sufficient supply of domestic labor. As I asked last year, if
growers were willing and able to pay an hourly rate of $20, could they
attract able-bodied pickers from urban jobs? Perhaps, though many would
be loath to forego more permanent positions for arduous seasonal work.
Even if they could attract these workers, however, we cannot overlook
the consequences of dramatically higher wages. Consumer prices
inevitably would rise. More significantly, however, U.S. crops would
become uncompetitive in the world market. Already we are fighting to
maintain a foothold and compete against countries with lower production
costs, significant subsidy programs, and discriminatory trade
practices. We have seen the consequences of uncompetitive wage rates on
other industries--the businesses leave the U.S. Agriculture is
distinct. It's literally rooted and a farm or orchard cannot move
overseas. The production, however, can, and will, if we do not address
this most critical issue of agricultural labor.
The family farm is currently experiencing serious economic hardship
and a seemingly impenetrable wall of regulation. In Washington state,
growers face a myriad of environmental restrictions. They confront
unfair trade practices, fear losing the ability to use chemicals they
depend on, and are struggling from the crash of the Asian market. They
find little recourse from lenders and in many cases face bankruptcy.
And as I have explained today, they also face a very real threat of
losing their workforce. This is one area in which this Committee can
and should help them. I urge you to work with us to reform the
guestworker program in a way that is fair to employer and worker alike.
Senator Abraham. Now, the second panel, we will ask you all
to come back as the third panel. Thank you again. Mr. Wunsch, I
am sure you are happy you got your statement done already.
Mr. Wunsch. Questions? [Laughter.]
I am your grower here today, apparently the only one.
Senator Abraham. I think that is right. Well, we will give
you a chance to comment further on some of the issues we have
heard when we finish the other statements.
Mr. Wunsch. The opportunity is yours, Senator.
Senator Abraham. Right, thank you.
Mr. Holt, we will turn to you.
STATEMENT OF JAMES S. HOLT
Mr. Holt. Thank you, Mr. Chairman. My name is Jim Holt. I
am an agricultural economist and a consultant to the National
Council of Agricultural Employers, on whose behalf I am
testifying today on the need to reform the H-2A alien
agricultural worker program.
As we have heard eloquently here today, the U.S.
agricultural industry depends heavily on an alien workforce.
Nationwide, more than one-third of the seasonal agricultural
workforce, and even more importantly more than 70 percent of
the new entrants into that workforce, self-identify--that is
the important thing about that percentage--self-identify as not
legally entitled to work in the United States. Yet, employers
have to employ these workers or risk penalties. Furthermore,
employers don't have another viable source of labor.
Now, as a result of greatly stepped-up INS border and
interior enforcement activities and the Social Security
Administration's efforts to assure the accuracy of Social
Security accounts, agricultural employers and the Nation are
having to confront the illegal status of the U.S. agricultural
workforce. This circumstance, coupled with the extremely tight
domestic labor market, is making it impossible for agricultural
employers to secure sufficient legal labor, and in some cases
sufficient labor at all.
The H-2A program, the program Congress enacted to deal with
precisely this situation, is unworkable and in a state of
paralysis. It must be reformed. I would like to emphasize that
we are not seeking a new and widely expanded guest worker
program, but reform of the existing H-2A program to make it
work as Congress intended.
Mr. Chairman, there are no other fixes to this problem. We
cannot expect technology and mechanization to bail us out.
Improved technology and mechanization have been adopted at a
very rapid pace, even as the proportion of illegal workers in
our agricultural workforce has grown. Nor can we expect welfare
reform or the unemployed to pick up the slack. Most employable
welfare recipients are already at work. Unemployment is at
historic lows.
The relatively higher unemployment rates reported in some
rural communities merely reflects the seasonality of
agriculture and agriculturally-related employment. The residual
unemployed during the agricultural season either cannot perform
farm work or have choices which do not require them to do so.
There is not an available workforce of unemployed workers in
season.
The current H-2A program is administratively cumbersome and
imposes uncompetitive requirements on employers. It must be
reformed and brought into the 21st century. The slow,
cumbersome paper process must be replaced by modern computer
technology along the lines of America's Job Bank and America's
Talent Bank. Also, the process must assure that the, ``domestic
workers'' being referred are, in fact, legally entitled to work
in the United States, as current law requires.
The terms of employment must be made realistic and
competitive. The adverse effect wage rate, which sets an
uneconomical wage standard for many jobs, must be replaced with
a prevailing wage standard. Flexibility must be provided in the
process for providing housing to migrant domestic and alien
workers. And, finally, provisions must be added to allow the
present agricultural workforce to participate in this program
and to provide those who contribute to the American economy and
abide by program requirements and wish to become permanent
residents the opportunity to do so.
Mr. Chairman, no one can or should defend the status quo.
An agricultural industry based on an almost entirely illegal
workforce is bad for everybody--employers, domestic and alien
farm workers, and the Nation. It is unsustainable. NCAE
believes the national interest is best served by effective
immigration control and a workable agricultural worker program
that enables the United States to realize its full potential
for the production of labor-intensive and other agricultural
commodities in a competitive global marketplace, and which
supports a high level of employment for domestic workers in the
upstream and downstream jobs related to agriculture, while at
the same time protecting access to jobs and the wages and
working conditions of domestic farm workers and providing legal
status, dignity and labor force protections to alien farm
workers who work in the United States.
We believe it is important to enact such a program now, but
we do not believe that is the end of the job. We also believe
there are other important public policy issues related to
seasonal agricultural workers. Seasonal work alone is not
sufficient to sustain a reasonable standard of living for most
persons at any reasonable wage rate. There are problems of
housing, medical care and child care for workers who migrate,
especially with families, and for persons who engage in
intermittent employment or work for many different employers.
Many of these problems extend far beyond the workplace.
NCAE stands ready to work with domestic farm workers and
immigrant groups, not only to develop a workable alien worker
program, but to find a workable solution to the social and
economic problems of those engaged in seasonal farm work.
During the past several months, NCAE has reached out to
workers, immigrants and church groups to explore solutions to
these problems, along with our need for a stable legal
workforce.
Agricultural employers and worker advocates should put
their differences aside and jointly work to solve these
problems. This hearing presents an opportunity to do that, and
let's hope that we don't walk away from it. The economic and
social costs are too high.
Thank you.
Senator Abraham. Mr. Holt, thank you.
[The prepared statement of Mr. Holt follows:]
Prepared Statement of Dr. James S. Holt
Mr. Chairman and Members of the Subcommittee: I appreciate the
opportunity to testify on behalf of the National Council of
Agricultural Employers on public policy issues related to the need to
reform the H-2A alien agricultural worker program.
The National Council of Agricultural Employers (NCAE) is a
Washington, D.C. based national association representing growers and
agricultural organizations on agricultural labor and employment issues.
NCAE's membership includes agricultural employers in fifty states who
employ approximately 75 percent of the nation's hired farm work force.
Its members include growers, farm cooperatives, packers, processors and
agricultural associations. NCAE was actively involved in the
legislative process that resulted in the enactment of the Immigration
Reform and Control Act (IRCA) of 1986. NCAE's representation of
agricultural employers gives it the background and experience to
provide meaningful comments and insights into issues concerning
immigration policy and how it affects the employment practices of its
members' businesses and the availability of an adequate agricultural
labor supply.
My name is James S. Holt. I am Senior Economist with the management
labor law firm of McGuiness & Williams and the Employment Policy
Foundation in Washington D.C. I serve as a consultant on labor and
immigration matters to the NCAE. I am an agricultural economist, and
have spent my entire professional career dealing with labor, human
resource and immigration issues, primarily with respect to agriculture.
I served 16 years on the agricultural economics faculty of The
Pennsylvania State University, and for the past 20 years have been a
consultant here in Washington D.C. I also serve as a technical
consultant to most of the current users of the H-2A program and to
employers and associations who are attempting to access the program.
why is a program for the legal employment of
alien agricultural workers needed?
While the United States agricultural industry is overwhelmingly an
industry of family farms and small businesses, it is also heavily
dependent on hired labor. More than 600,000 farms hire some labor
during any given year. Hired labor accounts, on average, for about $1
of every $8 of farm production expenses. In the labor-intensive fruit,
vegetable and horticultural sectors hired labor costs average 25 to 35
percent of total production costs, and in some individual commodities,
the percentage is much higher.
Even in labor-intensive commodities, however, most of the
production processes are mechanized. Typically, the farm family and
perhaps a few hired workers do all the farm work most of the year. But
large numbers of hired workers are needed for short periods to perform
certain very labor-intensive tasks such as harvesting, thinning or
pruning. In many crops these labor-intensive tasks, particularly
harvesting, must be performed during very brief windows of opportunity,
the timing of which can not be predicted with precision and which is
beyond growers' control. The availability of sufficient labor at the
right time to perform these labor-intensive functions can determine
whether the farm produces a saleable product for that growing season.
The United States has some of the best climatic and natural
resources in the world for agricultural production, and especially for
the production of labor-intensive fruits, vegetables and horticultural
crops. In a world economy where all resources, including labor, were
mobile and there were no trade barriers so that all countries could
specialize in those commodities in which they have a comparative
advantage, the North American continent would be, as it in fact is, one
of the world's major producers of agricultural commodities, including
fruits, vegetables and horticultural specialties.
During the last several decades, markets for labor-intensive
commodities have expanded dramatically in the United States and
throughout the world. This dramatic expansion has resulted from a
number of factors, including technological developments in
transportation and storage, increasing incomes both in the United
States and worldwide, and changes in consumers tastes and preferences
which favor fruits and vegetables in the diet. National markets for
labor-intensive commodities, once protected by trade barriers and the
perishability of the commodities themselves, have now become global
markets, due to technological improvements and the strong drive for
freer trade that has occurred over the past two decades.
Although it has been little regarded in policy circles, U.S.
farmers have participated fully in the dramatic growth in domestic and
world markets for labor-intensive agricultural commodities. U.S. farm
receipts from fruit and horticultural specialties have more than
doubled, and from vegetables more than tripled, since 1980. Labor-
intensive commodities are the fastest growing sector of U.S.
agriculture. At the same time, agricultural labor productivity has also
continued to improve. Therefore, while production of labor-intensive
commodities has expanded dramatically over the past two decades,
average hired farm employment has declined by about one quarter. But
the expansion of labor-intensive agriculture has created tens of
thousands of new non-farm jobs for U.S. workers in the upstream and
downstream occupations that support the production and handling of farm
products.
Aliens have always been a significant source of agricultural labor
in the United States. In particular, labor from Mexico has supported
the development of irrigated agriculture in the western states from the
inception of the industry. As the U.S. economy has expanded, millions
of new job opportunities have been generated. Domestic farmworkers have
been freed from the necessity to migrate by the extension of
unemployment insurance to agricultural workers in 1976. And, as the
federal government has spent billions of dollars to settle domestic
migratory farmworkers out of the migrant stream and train them for
permanent jobs in their home communities, domestic farmworkers have
moved out of the hired agricultural work force, especially the migrant
work force. Alien workers, largely from Mexico, Central America and the
Caribbean have replaced these domestic workers.
Consequently, the U.S. agricultural work force has become
increasingly alien and increasingly undocumented. The U.S. Department
of Labor's National Agricultural Worker Survey (NAWS) in 1997 reported
that 36 percent of seasonal agricultural workers working in the United
States self-identified as not authorized to work in the United States.
This was an increase from only about 12 percent a decade earlier. More
than 70 percent of the new seasonal agricultural labor force entrants
in the 1997 NAWS report self identified as not authorized to work. We
expect that the 1998 survey, due out shortly, will show significant
increases in these percentages.
Throughout this period there has also been a legal alien
agricultural worker admission program. This program was enacted as the
H-2 program in the Immigration and Nationality Act of 1952. In 1956
Congress attempted to streamline the program and redesignated it H-2A.
In recent years use of the H-2A program has declined to a low of
approximately 15,000 workers annually, although in the past two years
the number of admissions has increased substantially and will probably
exceed 30,000 workers this year.
The H-2A program has been used principally on the East Coast in
fruit, vegetables, tobacco and, until recently, sugar cane. The
program's structure and requirements evolved from government-to-
government treaty programs that preceded it. Over the years the program
has become encrusted with regulations promulgated by the Department of
Labor and adverse legal decisions generated by opponents of the program
which have rendered it unworkable and uneconomic for many agricultural
employers who face labor shortages. Now that government policy is
eliminating the illegal alien work force, many growers are caught
between an unworkable and uneconomical H-2A program and the prospect of
insufficient labor to operate their businesses.
The illegal alien seasonal agricultural work force in the United
States consists of two groups. Some are aliens who have permanently
immigrated to the United States and have found employment in
agriculture. Typically, these permanent immigrant illegal aliens move
into non-agricultural industries after they become settled in the
United States. The other component of the illegal alien seasonal
agricultural work force is non-immigrant migrant farmworkers who have
homes and families in Mexico. Many of them are small peasant farmers.
The adult workers from these families, usually males, migrate
seasonally to the United States during the summer months to do
agricultural work. Anecdotal evidence suggests that until recently the
number of such migrant illegal alien farmworkers working was
substantial. Now, as a result of increasingly effective immigration
control policies, some of these migrants are finding it necessary to
remain in the United States during the off season for fear that they
will not be able to get back in or because of the high cost of doing
so, while many others are finding it impractical to continue their
annual migration and are remaining in Mexico.
Congressional efforts to control illegal immigration began with the
landmark Immigration Control and Reform Act (IRCA) of 1986. The theory
of IRCA was to discourage illegal immigration by requiring employers to
see documents evidencing a legal right to work in the United States,
and thereby removing the ``economic magnet'' to illegal immigration. It
did not work for at least three reasons. One was that one of the
motives for illegal immigration to the U.S. was not simply to better
one's welfare, but to survive, literally and figuratively. This
survival drive overwhelmed any fear of apprehension and deportation.
The second was that Congressional concern about invasion of privacy and
`big brotherism' resulted in an employment documentation process that
was so compromised that it was easily evaded by document
counterfeiting. The third was that a serious effort to enforce IRCA,
including the provisions against document counterfeiting, was never
mounted. The result was that IRCA had little impact on the volume of
illegal immigration, and a perverse impact on the hiring process.
Whereas previously an employer who suspected a prospective worker was
illegal may have been willing to risk refusing to hire that worker,
with the discrimination provision of IRCA an employer ran great risks
in refusing to hire any worker who had genuine appearing documents,
even if the employer suspected the worker was illegal.
With the passage of the Illegal Immigration Reform and Immigrant
Responsibility Act (IIRIRA) in 1996, Congress recognized the failure of
IRCA. In IIRlRA Congress decided to test the conventional wisdom that
it was impossible to control illegal immigration at the border by
vastly augmenting the resources and personnel of the Immigration and
Naturalization Service (INS) for border enforcement. The resources for
interior enforcement of employer sanctions provisions were also
augmented. The result has clearly been to make the process of illegal
border crossing more expensive and dangerous. The anecdotal evidence
from farm labor contractors and agricultural employers across the
United States is that many prospective border crossers, especially
migrant farmworkers and prospective migrant farmworkers, have been
unable to cross the border or have made the calculation that the cost
of doing so is too high based on their prospective earnings in the U.S.
We have received reports from all regions of the United States of
reduced numbers of workers and short crews, and this has been one of
the major factors leading to the labor shortages that were observed in
the 1997 season and to an even greater degree in the 1998 season. As
INS continues to ramp up its border enforcement personnel, these
shortages appear to be becoming more and more severe, and we expect
significant shortages and crop losses in some crops and some regions in
the 1999 season.
Increased border enforcement has also had a perverse effect. It
apparently has induced some alien farmworkers, who in the past crossed
the border illegally on a seasonal basis to work in the United States
during the agricultural season, to remain in the United States during
the off season for fear that they would not be able to get back in the
next year. Some of these workers eventually try to smuggle their
families in to join them. Many of these workers would prefer to
maintain their homes and families in Mexico and work seasonally in the
United States, but current immigration policies make this an
unattractive option.
IIRIRA also set in motion the testing of a process, which many
believe, is the only way to effectively control the employment of
illegal aliens. IIRIRA established a program of pilot projects for
verification of the authenticity of employment authorization documents
at the time of hire. These projects are about midway through a four-
year pilot phase. Presumably, at the end of that time Congress will
revisit the question of requiring mandatory document verification at
the time of hire. If and when this happens, there will be a real crisis
in agriculture, given the fact that upwards of 60 to 70 percent of the
industry's seasonal work force apparently has fraudulent documents.
In addition to the increasing effectiveness of border enforcement
activities, additional INS resources for enforcement of employer
sanctions are increasing the frequency of audits of I-9 forms. The I-9
form is the document completed by an employer and employee at the time
of hire on which the employer records the employment verification
documents the employee offers to verify the legal right to work in the
United States. Employers are required to accept the documents offered
by the worker if they reasonably appear on their face to be genuine, a
test which virtually all documents meet. However, when INS does an
audit of the employer's I-9 forms, the INS checks the authenticity of
the employment authorization documents against government data bases,
something it is precluded by case law and INS policy from doing at the
request of an employer. At the conclusion of the audit, the employer
receives a list from the INS of the workers whose documents have been
determined to be invalid. Frequently, INS audits of agricultural
employers reveal that 60 to 70 percent of seasonal agricultural workers
have provided fraudulent documents. The employer is then required to
dismiss each employee on the list who cannot provide a valid employment
authorization document, something few workers can do.
Independent of the effort to improve immigration control, other
forces are also affecting the agricultural work place. The Social
Security Administration (SSA) is under a congressional mandate to
reduce the amount of wage reporting to non-existent social security
accounts. Through its Enumeration Verification System (EVS), the Social
Security Administration is now checking employers' tax filing
electronically within a matter of days or weeks after they are filed to
match names and social security numbers reported by employers with
those in the SSA data base. Employers receive lists of mismatches with
instructions to ``correct the mistakes in reporting''. Of course, in
most cases the mismatch is not a result of a mistake in reporting, but
a fraudulent number. When the employer engages the employee to
``correct the mistake,'' the employee disappears.
It is not uncommon for employers to receive lists of mismatches
from the SSA containing 50 percent or more of the names, which the
employer reported to the SSA. Confronting the employees on these lists
can have devastating effects on an employer's work force. On the other
hand, employers are concerned about their future liability under the
employer sanctions provisions if they do not act on the SSA lists. The
existence of lists from the SSA that the employer had allegedly not
acted upon was cited in a recent INS prosecution of an agricultural
employer for knowingly employing illegal aliens.
While the incidence of INS I-9 audits is still relatively low, very
large numbers of agricultural employers are receiving lists of
mismatched numbers from the SSA. Thus, many agricultural employers have
to confront for the first time the reality of the legal status of their
work force. Both the I-9 audits and the SSA verification program are
having a churning effect on the agricultural work force. Farmworkers
with fraudulent documents are rarely picked up and removed. Instead,
the employer is required to dismiss them. In effect, they are being
chased from farmer to farmer as their employers receive SSA reports or
are audited by the INS.
Increased border enforcement, increased interior enforcement and
increased SSA verification activity have led to reductions in labor
availability and destabilization of the agricultural work force. These
trends will continue. The increase in border enforcement personnel
authorized by IIRIRA will not be complete until fiscal year 2002. The
SSA plans to continue lowering its threshold for rejection of employer
tax returns due to name/number mismatches. These factors, coupled with
the extraordinarily high levels of non-agricultural employment, have
resulted in increasing frequencies of farm labor shortages and crop
losses. The problem is rapidly reaching crisis proportions, and could
easily do so in the 1999 growing season.
Some opponents of an alien agricultural worker program argue that a
program is not needed because employer sanctions cannot be effectively
enforced no matter what the government tries to do. The implication of
this argument is that employers should endure the uncertainties and
potential economic catastrophe of losing a work force, and workers
should continue to endure the uncertainties of being chased from job to
job on a moment's notice. We find such reasoning unacceptable. It is
arguments for the status quo, which all agree is unacceptable.
Furthermore, it is unacceptable to refuse to address one public policy
problem because another accepted and enacted public policy will be
ineffective. We must honestly face the issues with which our policy of
immigration control and employer sanctions confronts us. We believe
that calls for a workable alien agricultural worker program.
are there viable alternatives to an alien agricultural worker program?
Opponents of the employment of an alien agricultural worker program
suggest there are ways to address the problem that would result in the
removal of the illegal alien agricultural work force other than the
legal admission of alien agricultural workers.
One approach that is suggested is that agricultural employers
should be ``left to compete in the labor market just like other
employers have to.'' Under this scenario, there would be no alien
guestworkers. To secure legal workers and remain in business,
agricultural employers would attract sufficient workers away from
competing non-agricultural employers by raising wages and benefits.
Those who could not afford to compete would go out of business or move
their production outside the United States. Meanwhile, according to
this scenario, those domestic persons remaining in farm work would
enjoy higher wages and improved working conditions.
There are several observations one must make about this
``solution''.
No informed person seriously contends that wages, benefits and
working conditions in seasonal agricultural jobs can be raised
sufficiently to attract workers away from their permanent, non-
agricultural jobs in the numbers needed to replace the illegal alien
agricultural work force and maintain the economic competitiveness of
U.S. producers. Thus, this scenario predicates that U.S. agricultural
production would decline. In fact, given that the U.S. hired
agricultural work force is, by most estimates, about 70 percent
illegal, it would decline dramatically.
Seasonal farm jobs have attributes that make them inherently non-
competitive with non-farm work. First and foremost is that they are
seasonal. Many workers who could do seasonal farm work accepted less
than the average field and livestock worker earnings of $6.98 per hour
in 1998 because they preferred the stability of a permanent job.
Secondly, many seasonal farm jobs are located in rural areas away from
centers of population. Furthermore, to extend the period of employment,
workers must work at several such jobs in different areas. That is,
they must become migrants. It is highly unlikely that many U.S. workers
would be willing to become migrant farmworkers at any wage, or that, as
a matter of public policy, we would want to encourage them to do so. In
fact, the U.S. government has spent billions of dollars over the past
several decades attempting to settle domestic workers out of the
migratory stream. The success of these efforts is one of the factors
that have led to the expansion in illegal alien employment. In addition
to seasonality and migrancy, most farm jobs are subject to the
viscissitudes of weather, both hot and cold, and require physical
strength and stamina. Thus, it is highly unlikely that a significant
domestic worker response would result even from substantial increases
in wages and benefits for seasonal farm work.
However, substantial increases in current U.S. farmworker wages and
benefits can not occur for economic reasons. U.S. growers are in
competition in the markets for most agricultural commodities, including
most labor-intensive commodities, with actual and potential growers
around the globe. Since hired labor constitutes approximately 35
percent of total production costs of labor-intensive agricultural
commodities, and 1 in 8 dollars of production costs for agricultural
commodities generally, substantial increases in wage and/or benefit
costs will have a substantial impact on growers' over-all production
costs. U.S. growers are in an economically competitive equilibrium with
foreign producers at approximately current production costs. Growers
with substantially higher costs can not compete. If U.S. producers'
production costs are forced up by, for example, restricting the supply
of labor, U.S. production will become uncompetitive in world markets
(including domestic markets in which foreign producers compete). U.S.
producers will begin to be forced out of business. In fact, U.S.
producers will continue to be forced out of business until the
competition for domestic farmworkers has diminished to the point where
the remaining U.S. producers' production costs are approximately at
current global equilibrium levels. The end result of this process will
be that domestic farmworker wages and working conditions (and the
production costs of surviving producers) are at approximately current
levels and the volume of domestic production has declined sufficiently
that there is no longer upward pressure on domestic worker wages.
These same global economic forces, of course, affect all
businesses. But non-agricultural employers have some options for
responding to domestic labor shortages that agricultural employers do
not have. Many non-agricultural employers can ``foreign-source'' the
labor-intensive components of their product or service without losing
the good jobs. Since agricultural production is tied to the land, the
labor-intensive functions of the agricultural production process cannot
be foreign-sourced. We cannot, for example, send the harvesting process
or the thinning process overseas. Either the entire product is grown,
harvested, transported and in many cases initially processed in the
United States, or all these functions are done somewhere else, although
only one or two steps in the production process may be highly labor-
intensive. When the product is grown, harvested, transported and
processed somewhere else, all the jobs associated with these functions
are exported, not just the seasonal field jobs. These are the so-called
``upstream'' and ``downstream'' jobs that support, and are created by,
the growing of agricultural products. U.S. Department of Agriculture
studies indicate that there are about 3.1 such upstream and downstream
jobs for every on-farm job. Most of these upstream and downstream jobs
are ``good'' jobs, i.e. permanent, average or better paying jobs held
by citizens and permanent residents. Thus, we would be exporting about
three times as many jobs of U.S. citizens and permanent residents as we
would farm jobs if we shut off access to alien agricultural workers.
Another suggestion has been that recruitment of welfare recipients
and the unemployed could replace the illegal aliens. Growers
themselves, most notably the Nisei Farmers League in the San Joaquin
Valley have tried to augment their labor supply by recruiting welfare
recipients. While these efforts have resulted in some former welfare
recipients moving into jobs on farms, the magnitude of this movement
has been insignificant. In fact, welfare directors suggest that the
long term impact of welfare reform is likely to exacerbate rather than
reduce the shortage of domestic farm labor. Some seasonal farmworkers
currently depend on the combination of farm work in-season and welfare
assistance during the off-season. As limitations are set on persons'
lifetime welfare entitlement, this pattern will no longer be viable.
Seasonal farmworkers who supplement their earnings with welfare will be
forced into permanent non-agricultural jobs. Other attributes of
seasonal farm work are also deterrents. The preponderance of those now
remaining on the welfare rolls are single mothers with young children.
Many are not physically capable of doing farm work, do not have
transportation into the rural areas and are occupied with the care of
young children.
The unemployed also make, at best, a marginal contribution to the
hired farm work force. Currently, the U.S. is enjoying historically low
levels of unemployment and many labor markets are essentially at or
above full employment. However, relatively high unemployment rates in
some rural agricultural counties are often cited as evidence of an
available labor supply or even of a farmworker surplus. First it should
be noted that labor markets with a heavy presence of seasonal
agriculture will always have higher unemployment rates than labor
markets with a higher proportion of year round employment. By the very
nature of the fact that farm work is seasonal, many seasonal
farmworkers spend a portion of the year unemployed. Second, unemployed
workers tend to share the same values as employed workers. They prefer
permanent employment that is not physically demanding and takes place
in an inside environment. They share an aversion to migrancy, and often
have transportation and other limitations that restrict their access to
jobs. The coexistence of unemployed workers and employers with labor
shortages in the same labor markets means only that we have a system
that enables workers to exercise choices.
Many welfare recipients and unemployed workers can not or will not
do agricultural work. It is reasonable to expect an alien worker
program to have a credible mechanism to assure that domestic workers
who are willing and able to do farm work have first access to
agricultural jobs, and that aliens do not displace U.S. workers. It is
not reasonable to expect or insist that welfare and unemployment rolls
fall to zero as a condition for the admission of alien workers.
A third alternative to alien workers often suggested is to replace
labor with technology, including mechanization. This argument holds
that if agricultural employers were denied access to alien labor they
would have an incentive to develop mechanization to replace the alien
labor. Alternatively, it is argued that the availability of alien labor
retards mechanization and growth in worker productivity.
The argument that availability of alien labor creates a
disincentive for mechanization is belied by the history of the past two
decades. From 1980 to the present, the output of labor-intensive
agricultural commodities has risen dramatically while hired
agricultural employment has declined. The only way this could have
happened is because of significant agricultural labor productivity
increases. Yet, this was also the period of perhaps the greatest influx
of illegal alien farmworkers in our history.
It does not appear that there has been a great deal of increase in
agricultural mechanization in fruit and vegetable farming since a spasm
of innovation and development in the 1960's and 1970's. Indeed, some of
the mechanization developed during that period, specifically mechanical
apple harvesters, has proven to be uneconomical in the long term
because of tree damage as well as fruit damage. Agricultural engineers
claim the reason for this is the withdrawal of support for agricultural
mechanization research by the U.S. Department of Agriculture following
protests and litigation by farmworkers in California that such research
was taking away their jobs.
But productivity increases can result from many different factors,
of which mechanization is only one. Smaller fruit trees, which require
less ladder climbing, trellised trees, and changes in the way trees or
vines are pruned are also technological developments which improve
labor productivity. The switch from boxes and small containers to bulk
bins and pallets in the field has significantly improved labor
productivity of some harvesting activities. Use of production
techniques and crop varieties that increase yields also improves field
labor productivity by making harvesting and other operations more
efficient. These appear to be the techniques that farmers have used to
achieve the large productivity increases obtained in the 1980's and
1990's. The fact that there appears to have been a slowing in the pace
of mechanization itself does not mean that growth in worker
productivity has slowed.
The argument that alien employment retards productivity increases
is also belied by logic. The incentive for the adoption of
mechanization or any other productivity increasing innovation is to
reduce unit production costs. If the innovation results in a net saving
in production costs, it will be adopted. It doesn't matter whether the
dollar saved is a dollar of domestic worker wages or a dollar of alien
worker wages. On the other hand, if the innovation results in a net
increase in production costs, it will not be adopted. The only way one
can argue that a reduction in alien labor will increase the incentive
to mechanize is to argue that the reduction in alien labor will first
increase production costs. But if, as is argued elsewhere in this
testimony, shifting domestic market share to foreign producers' offsets
the tendency for domestic producers' costs to rise in response to a
withdrawal of labor, the incentive for additional domestic
mechanization will never occur. In a global market, the profitability
of mechanization, just like the profitability of everything else, is
determined by global production costs, not by domestic production
costs.
A fourth alternative to the importation of alien farmworkers, which
has been suggested, is the unionization of the farm work force. The
implication of this scenario is that unionization would augment the
supply of legal seasonal farmworkers and make alien farmworkers
unnecessary. Alternatively, it is argued that an alien agricultural
worker program will make it more difficult for domestic farmworkers to
unionize and improve their economic welfare.
First, it should be noted that use of the H-2A program as a strike-
breaking tool is expressly prohibited. H-2A workers may not be employed
in any job opportunity that is vacant because the former occupant of
the job is on strike or involved in a labor dispute. Secondly, there is
no impediment to an H-2A worker becoming a union member. Indeed, the H-
2A program has been used for decades in unionized citrus operations in
Arizona. Recently, a farmworker union supported a grower's H-2A
application as a means of providing legal status for its own members.
If an employer seeking labor certification has a collective bargaining
agreement and a union shop, the H-2A aliens, like all other employees,
can be required to pay union dues and may become union members.
But there is no reason to believe that unionization will result in
an increase in the availability of legal labor, nor, indeed, any reason
to believe that the membership of farmworker unions is more legal than
the rest of the agricultural work force. Farmworker unions and farm
employers are fishing out of the same labor force pool. The argument
that increased farmworker unionization will increase the supply of
legal labor is based on the supposition that farmworker unions will be
successful in negotiating higher wages and more attractive working
conditions than in nonunion settings, and that this will attract more
domestic legal labor. Yet wages and working conditions in union and
nonunion settings are not (and in competitive global markets cannot be)
significantly different. Furthermore, the same reasons described above
why higher wages and benefits for seasonal agricultural work, even if
they were economically feasible, would not attract significantly more
legal workers into seasonal agricultural work, are as applicable in a
union setting as in a nonunion setting.
The reality is that an alien agricultural worker program is
probably union-neutral. Existence of such a program will probably not
make it significantly more difficult or easier to organize farmworkers.
why does the h-2a program need to be reformed?
There are two broad reasons why the H-2A program needs to be
reformed.
First, the program is administratively cumbersome and costly. Even
at its present level of admission, fewer than 30,000 workers annually,
the program is nearly paralyzed. Secondly, the program sets minimum
wage and benefit standards for which many employers cannot qualify or
cannot afford. Therefore, the program's ``worker protections'' are
cosmetic. They ``protect'' only about 30,000 job opportunities in an
agricultural work force estimated at more than 2 million. The vast
majority of agricultural workers, legal and illegal, get little or no
benefit from the H-2A ``protections.''
The first reason why the current H-2A program must be reformed is
that it is administratively cumbersome and costly. The regulations
governing the program cover 33 pages of the Code of Federal
Regulations. ETA Handbook No. 398, the compendium of guidance on
program operation, is more than 300 pages. Employers must apply for
workers a minimum of 60 days in advance of the date workers are needed.
Applications, which often run more than a dozen pages, are wordsmithed
by employers, by the Labor Department and by legal services attorneys.
Endless discussions and arguments occur over sentences, phrases and
words. After all this fine tuning, workers see an abbreviated summary
of the order if they see anything at all. In hearings in Oregon this
spring workers often testified that they were referred to H-2A jobs
without even being told the wage rate that was offered.
Each employer applicant goes through a prescribed recruitment and
advertising procedure, regardless of whether the same process has been
undertaken for the same occupation by another employer only days
earlier. The required advertising is strictly controlled by the
regulations and looks more like a legal notice than a help wanted ad.
Increasingly, the Labor Department is requiring that advertising be
placed in major metropolitan dailies, rather than the local newspapers
that farm job seekers are most likely to read, if they look for farm
work in help wanted ads at all. The advertisements rarely result in
responses, yet they are repeated over and over again, year in and year
out.
Certifications are required by law to be issued not less than 20
days before the date of need, but the GAO reported in 1997 that they
were issued late more than 40 percent of the time.
Even after all this, the employer has no assurance that the
``domestic'' workers referred to it are, in fact, legal. Most state job
services refuse even to request employment verification documents, much
less verify that they are valid. It is the experience of H-2A employers
that a substantial and increasing proportion of the ``domestic''
workers referred, and on the basis of which certification to employ
legal alien workers is denied, are in fact illegal aliens themselves.
State employment service officials have even been known to suggest to
H-2A growers that they should go back to employing illegal aliens and
save themselves and the employment service all the hassle.
Finally, a high proportion of the workers referred to H-2A
employers and on the basis of which the employer is denied labor
certification for a job opportunity, either fail to report for work or
quit within a few hours or days. This then forces the employer to file
with the Labor Department for a ``redetermination of need''. Even
though redeterminations are usually processed within a few days, the
petition and admission process after redetermination means that aliens
will, at best, arrive about two weeks late.
The second reason why reform is needed is that the current H-2A
program requires wage and benefit standards that are unreasonably rigid
or not economically feasible in many agricultural jobs, and effectively
exclude those jobs from participating in the H-2A program.
The so-called AEWR is one such standard. The AEWR is a minimum wage
set on a state-by-state basis by regulation, and is applicable to
workers employed in job opportunities for which an employer has
received a labor certification. The AEWR standard is unique to the H-2A
program and does not exist in any other immigration or labor
certification program. It was established to create a minimum wage
standard in jobs where foreign workers were employed, because the
federal minimum wage law did not cover agriculture at that time. AEWR's
were initially set at the level of the then non-agricultural federal
minimum wage. Over time, AEWR's were adjusted by a variety of
methodologies. Since 1987, each state's AEWR is set at the average
hourly earnings of field and livestock workers for the previous year in
the state or a small region of contiguous states. For the 1999 season,
AEWR's range from $6.21 per hour in Arkansas, Louisiana and Mississippi
to $7.53 per hour in Indiana, Illinois and Ohio. The average AEWR is
$6.98 per hour.
The AEWR sets a minimum wage standard that makes it uneconomical to
use the H-2A program in many agricultural occupations. The AEWR
standard, in effect, makes the average wage in one year the minimum
wage in the ensuing year. Since the AEWR is set at the average of the
wages for all agricultural workers in the state, it will be above the
actual wages paid for about half of the agricultural employment in the
state, and below the actual wage for about half of all agricultural
employment in the state. Obviously, this standard will not be a
deterrent in using the H-2A program in occupations in which the actual
wage is above the average wage for all agricultural occupations. But it
can be an uncompetitive and unrealistic standard for an occupation in
which the actual wage is below the average of all agricultural wages in
the state. Since, by definition, half of all employment will always
have an actual wage below the average wage, this standard will always
set an uncompetitive wage for some occupations, no matter how much
agricultural wages rise.
Another example of an unreasonably rigid standard is the
requirement to provide housing. The current H-2A program requires an
employer to have housing for all the job opportunities for which an
employer applies for labor certification except those job opportunities
from which local workers will commute daily from their permanent
residences, and to provide that housing at no charge to the workers.
Agricultural employers are only required to provide housing to workers
if they participate in the H-2A program or use the Department of
Labor's interstate clearance system to recruit workers. Only a tiny
fraction of U.S. agricultural employers do either.
The U.S. Department of Agriculture stopped reporting the percentage
of hired agricultural employment that included employer-provided
housing after 1995. But up to that time only about 15 percent of
agricultural employment included employer-provided housing, either free
or at a charge. Given that this percentage had remained relatively
unchanged for many years, it probably reflects current practice
reasonably accurately. Since many employers who provide housing do so
only for year-round employees such as foremen and supervisors, it is
likely that the proportion of seasonal workers provided housing is even
lower. In other words, the vast majority of seasonal agricultural
workers currently arrange their own housing. Employer-provided housing
tends to be provided to seasonal workers only in those areas dependent
on migrant workers that are so remote that community-based housing is
unavailable.
The requirement for employer-provided housing is one of the
greatest current obstacles to expanded use of the legal alien
agricultural worker program. Providing housing is extremely expensive,
and there are many other community obstacles to overcome as well. In
areas where the housing stock is already adequate to accommodate the
seasonal agricultural work force, agricultural employers are
understandably reluctant to invest large sums to construct employer-
provided housing. Even where the housing stock is not currently
adequate, employers are reluctant to invest in housing unless there is
assurance of a workable program for securing labor to live in the
housing.
There certainly can be no disputing the proposition that there must
be adequate housing for both domestic and alien seasonal agricultural
workers. The policy question then is under what conditions this housing
should be employer-provided, and in those circumstances how we get from
where we are now to a situation where there is adequate employer-
provided housing.
what reforms are needed?
The H-2A program must be reformed by modernizing and streamlining
the administrative processes, especially the procedures for domestic
worker recruitment and the labor market test, and eliminating those
administrative requirements that add cost or inflexibility to the
program without providing any corresponding benefits to domestic
farmworkers.
Rather than the cumbersome and antiquated paper process of the
interstate clearance system, and the expensive and unproductive
advertising that are now used to disseminate information about
available jobs and to recruit domestic workers, NCAE has suggested
bringing this process into the 21st century. We have suggested a
computerized farmworker registry system modeled after the Labor
Department's America's Job Bank and America's Talent Bank systems.
Domestic workers who were interested in seasonal farm work would list
themselves and their interests and experience with the registry. They
would indicate whether they were only interested in working locally or
whether they were also willing to consider work in other areas and/or,
if they choose, specify specific areas. Growers who wanted to
participate in the H-2A program would be required to list their jobs
with the registry. Job offers listed with the registry would be
examined to assure they included the required terms and conditions of
employment, just as paper job orders are now scrutinized. If a job met
the program requirements, the registry would be searched to identify
qualified workers who might be interested in filling the job. Qualified
workers would be provided with the information about the job and asked
if they were interested in taking the job. Information about qualified
domestic workers who had accepted the job would be provided to the
employer. To the extent that sufficient qualified workers could not be
located who were willing to accept the jobs, the employer would receive
a ``shortage report'' authorizing the employment of sufficient aliens
to fill the unmet need. Upon receipt of the shortage report the
employer would be authorized to import sufficient aliens to fill the
employer's need or to employ H-2A aliens already in the United States
who were available for new assignments. In short, this process would
work exactly as the current job service recruitment system now works in
filling H-2A jobs, except that it would utilize 21st century technology
rather than early 20th century technology.
Employers who used the registry and the Labor Department would be
required to widely advertise the existence of the registry to potential
farmworkers. To assure that workers who were referred through the
registry were, in fact, legal workers, the registry would check the
validity of work authorization documents through the INS and the Social
Security Administration, before listing the worker on the registry.
This check would not obligate the worker to do anything more than show
valid work authorization documents, just as the law currently requires.
The registry would also presumably be able to assist workers whose
documents did not pass the validation check, but who were, in fact,
authorized to work, to correct the problem with their documents.
Secondly, the program must be reformed to establish realistic wage
and benefit standards that will assure the economic viability of the
jobs as well as provide benefits to the workers. This essential balance
must be struck. To claim that wage and benefit standards ``protect''
domestic workers when jobs at those wage and benefit levels do not
exist and are not economically competitive, is deceptive and ultimately
harmful to farmworkers.
The AEWR must be replaced with a wage standard that is related to
the competitive market wage in the occupation. NCAE has suggested that
the prevailing wage in the occupation and area of employment be set as
the minimum wage for employers to qualify for legal alien agricultural
labor. In the H-2A program, the prevailing wage is defined as the 51st
percentile of wages of workers in the occupation and area of
employment. This standard assures that employers who pay substandard
wages are not permitted to employ aliens, but sets a standard that is
viable in a competitive market. (Employers would still, of course, be
subject to the federal, state or local minimum wage, if higher.)
The prevailing wage in the occupation and area of employment has
widespread application and acceptance in other wage regulation
programs. For example, it is the minimum wage for federal contractors
under the Davis-Bacon and Service Contract Acts. It is difficult to
understand how the prevailing wage standard could be good public policy
in one setting and bad public policy in another.
A second reform that is needed is to provide flexibility in the
provision of housing. Flexibility is needed both to enable employers to
initially get into the program in order to provide legal status for
their current illegal work force, and to accommodate circumstances
where there is adequate housing in the community to accommodate the
seasonal farm work force.
As noted above, only about 15 percent of agricultural employment
currently includes employer-provided housing, and the percentage is
probably lower for seasonal agricultural workers. For employers without
housing, a transition period is needed to enable employers to meet
housing requirements. If agricultural employers have a workable,
functioning program for the legal employment of alien workers, they
(and their lenders) will have the confidence to invest in additional
housing. Such a transition period does not mean lessening farmworker
benefits. Most farmworkers are not now provided housing, and any
mechanism that increases the housing stock will benefit farmworkers.
In addition to a transition period, some assistance in financing
farmworker housing will be needed. The U.S. Department of Agriculture's
Farmers Home Administration (FmHA) has a program of low interest loans
to assist farmers and community organizations to provide in-season
migrant housing. However, the regulations governing the program
preclude housing aliens in the housing and set unrealistically
restrictive standards for employer borrowers. The FmHA rules for
migrant housing programs needs to be reformed, or some other mechanism
for assisting in the funding of in-season migrant housing for domestic
and alien farmworkers must be found.
Employers also face daunting community opposition when trying to
construct migrant farmworker housing. Even employers who were willing
and able to finance the housing have been prevented from constructing
it by community opposition. While there is widespread agreement that
there should be adequate housing for migrant workers, the not-in-my-
backyard response quickly arises when actual projects are proposed.
This opposition can take the form of restrictive zoning, unrealistic
construction standards, or outright opposition to the presence of
migrant farmworkers. Some mechanism is needed to assist farmers who
want to construct migrant housing that meets federal migrant labor camp
standards on their own property to preempt local restrictions.
Finally, flexibility should exist in the way housing is required to
be provided. The vast majority of seasonal farmworkers are currently
living off the farm. Some agricultural communities have adequate
housing for seasonal farmworkers, and experience shows that many
farmworkers prefer not to live on the farms. Some communities do not
have adequate housing for seasonal farmworkers, and in those
communities the housing stock must be increased. However, the current
requirement that the employer maintain a housing unit for every migrant
worker, whether or not the worker chooses to live in it, leads to the
absurd situation where employers must maintain vacant housing merely to
meet the standard to qualify for H-2A certification, while the workers
live elsewhere. NCAE has proposed that in communities where the housing
stock is adequate to accommodate the seasonal agricultural work force,
that employers be allowed the option of providing a monetary housing
allowance in lieu of employer-provided housing. This has been portrayed
as reducing farmworker benefits. In fact, workers are now living in
this housing without the benefit of housing allowances. Clearly, the
provision of housing or a housing allowance will increase farmworker
benefits.
A third reform that is needed is to amend the IIRIRA to assure that
the current agricultural work force can obtain legal status under the
program. NCAE would propose going even further and permitting aliens
who have made a commitment to working in the United States and
complying with the law, and who want to apply for permanent residency,
to have a realistic opportunity to become permanent residents.
Under the current provisions of the IIRIRA, persons who have
accumulated 365 days or more in illegal status in the United States
after April 1998 are debarred from immigration benefits for a period of
10 years. Admission to the United States as an alien worker is one such
immigration benefit. Thus, this provision would debar most aliens who
are currently in the U.S. agricultural work force from participating in
the H-2A program, reformed or otherwise. Employers who choose to use
the program would have to recruit a whole new work force of persons who
were not affected by the bar--persons who had not previously worked in
the United States. This makes no sense whatsoever, and would cause
chaos in the agricultural industry as well as in the immigrant
community. Clearly, the logical solution is to provide a waiver of the
IIRIRA bar to aliens who wish to continue working as legal seasonal
agricultural workers.
NCAE also feels that aliens who participate in the U.S. seasonal
agricultural work force, contribute to the U.S. economy, and abide by
U.S. law, including the requirements of the H-2A program while they are
H-2A workers, should have a realistic opportunity to move up into
permanent agricultural work and greater responsibilities and earnings,
or to move up and out of the agricultural work force if they so desire.
For many participants in the seasonal agricultural work force, seasonal
agricultural work is an entry-level occupation. They ultimately aspire
to better jobs in or out of agriculture. We believe it is unjust to
accept the work and dedication of alien farmworkers as seasonal
agricultural workers, but deny them the reasonable aspirations that
accompany dedication to this work. On the other hand, it is our belief,
based on the close association of our members with their farmworkers,
that many persons who do farm work for a period in the United States do
not want to live here permanently, bring their families here, or become
permanent residents. They want to maintain their homes and families in
their native land. They look at employment in the United States as a
way of sustaining their families or launching a better life in their
native country. We believe that so long as the individuals are
contributing, law-abiding members of our community, both options should
be open to them.
what will be the impact of a reformed h-2a program on farmworkers?
For domestic farmworkers, the reformed program will assure them
first access to all agricultural jobs before they are filled by legal
alien labor. It will assure that this access is real, by assuring that
there is widespread and easy assess to information about the available
jobs. It will protect the wages in jobs approved for the employment of
aliens by making the prevailing wage the minimum wage--in effect a
Davis-Bacon Act for farmworkers. It will assure housing or housing
allowance and transportation benefits to migrant farmworkers who have
no such assurance at present. In short, it will raise the standards for
domestic farmworkers in all H-2A-approved occupations.
It will also provide all of the above benefits for currently
illegal alien farmworkers, the majority of the seasonal agricultural
work force. In addition, it will free them from the fear, indignity and
economic costs of apprehension and removal, or of being thrown out of
work on a moment's notice. It will also free them from dependence on
``coyotes'' and the costs and physical dangers of illegal entry.
For domestic workers in the upstream and downstream jobs that are
created and sustained by U.S. agricultural production, it will assure
the continuation and growth in these employment opportunities.
For agricultural employers, it will assure them an adequate, legal
work force if they are willing and able to meet the requirements of the
program. It will give employers the certainty that will enable them to
plan their businesses and make investments more effectively.
why is a workable alien agricultural worker program good public policy?
In the absence of effective control of illegal immigration and
enforcement of employer sanctions, the status quo will continue--
illegal alien migration, little use of the legal alien worker program,
fewer protections for domestic and alien farmworkers, crop losses due
to shortages of workers, and vulnerability to random INS enforcement
action for employers. This will be true whether or not the legal
guestworker program is reformed, because without effective immigration
control and document verification, agricultural employers as well as
all other employers will continue to be confronted by a work force with
valid appearing documents and no practical way to know who is legal and
who is not. No one can defend or advocate for continuation of the
status quo. The current system of illegal immigration and an
agricultural industry dependent on a fraudulently documented work force
is bad for employers, workers and the nation.
If the nation achieves reasonably effective control of illegal
immigration and enforcement of employer sanctions--which is the
objective of current public policy--then agricultural production in the
United States, particularly of the labor-intensive fruit, vegetables
and horticultural commodities, will be radically reduced. This scenario
will result with attendant displacement of domestic workers in upstream
and downstream jobs, unless a workable agricultural guestworker program
exists.
In conducting the public policy debate on creation of a workable
alien agricultural worker program, it is important to be realistic
about what the public policy options are and are not. The public policy
options are not between greater and lesser economic benefits for
domestic farmworkers. The level of wages and benefits that U.S.
agriculture can sustain for all farmworkers, domestic and alien, are
largely determined in the global market place. The public policy
options we face are between a larger domestic agricultural industry
employing domestic and legal alien farmworkers and providing greater
employment opportunities for domestic off-farmworkers, and a
significantly smaller domestic agricultural industry and drastically
fewer employment opportunities for domestic off-farmworkers with a
wholly domestic farm work force. In either case, the level of economic
returns to farmworkers will be approximately the same, namely those
economic returns that are sustainable in the competitive global
marketplace.
The National Council of Agricultural Employers believes the
national interest is best served by effective immigration control and a
workable alien agricultural worker program that enables the United
States to realize its full potential for the production of labor-
intensive and other agricultural commodities in a competitive global
marketplace, and which supports a high level of employment for domestic
workers in upstream and downstream jobs while assuring reasonable
protections for domestic and alien farmworkers. The Council believes an
alien agricultural worker program that is workable and competitive for
employers and that protects access to jobs and the wages and working
conditions of domestic farmworkers, and that provides legal status,
dignity and protections to alien farmworkers working in the United
States, is important to accomplish now. We, however, do not believe it
is the end of the job.
We also believe that there are other important public policy issues
related to seasonal agricultural workers. Many individuals and families
that perform seasonal agricultural work face serious economic and
social problems that should be addressed. Seasonal farm work alone is
not sufficient to sustain a reasonable standard of living for most
persons who engage in farm work at any practicable wage rate. There are
serious problems of housing, medical care and child care for workers
who migrate, especially with families, and for persons who engage in
intermittent employment or work for many different employers. Many of
these problems extend far beyond the work place. In fact, for this
component of our population, it is when they are not working that these
problems are most severe.
conclusion
The National Council of Agricultural Employers stands ready to work
with domestic farmworker and immigrant groups not only to develop a
workable alien agricultural worker program, but to find workable
solutions to the social and economic problems of those employed in
seasonal farm work. During the past several months, NCAE has reached
out to worker, immigrant and church groups to explore solutions to
these problems along with our need for a stable legal work force. These
issues should be addressed now. Congress should not wait any longer to
fix an indefensible status quo. Agricultural employers and worker
advocates should put their differences aside and work jointly to solve
these problems. This hearing presents an opportunity to do that. Let's
hope that we don't walk away from it. The economic and social costs are
too high.
Senator Abraham. I probably should point out to Mr. Wunsch
that actually you are not the only grower here today testifying
because Senator Smith, in fact, I believe, did something along
those lines before he came to the Senate.
Senator Smith. I used to buy peas and corn.
Senator Abraham. OK.
Mr. Wunsch. Don't quit your day job, Senator. [Laughter.]
Senator Smith. I had to suspend it anyway.
Senator Abraham. Mr. Papademetriou, we appreciate you being
here. We will turn to you now. Thank you.
STATEMENT OF DEMETRIOS G. PAPADEMETRIOU
Mr. Papademetriou. Thank you, Senator and members of the
subcommittee. Thank you for inviting me to the latest dialogue
of the death of immigration. It has already been a bit
interesting. What I am hoping to do in the next 4 minutes, if I
can, is offer an awful lot of ideas, some of them old, I guess
most of them old, some new, as to what kinds of things people
who are interested in the topic and wish to resolve some of the
issues that have bedeviled this topic might take up in their
negotiations.
I think that it is not necessary for me to point out how
important the agricultural industry is or how poor the
conditions under which the people who work in that industry,
who pick our vegetables and fruits, have to work under. What I
will outline is a set of issues around which, as I said,
representatives from both sides can have an organized
conversation. Before I launch into them, I want to make three
global observations.
First, whatever is agreed to must be explicitly
experimental and must be understood to reflect a social
partnership in the classic sense and must acknowledge both the
economic importance of the industry and its responsibility and
ours toward farm workers.
Second, in getting to an agreement, all of us must think
hard about how to protect U.S. workers in low-wage, low-value-
added, difficult seasonal, and thus undesirable labor market
sectors in a global economy.
Finally, any serious discussion must engage the key
individuals and institutions concerned with representing the
interests of the affected parties because only they can
negotiate the broad guidelines, rules, mutual rights and
obligations and enforcement priorities under any agreement.
I have six general principles. The first one is that we
must ensure balance between grower and worker interests. If we
don't manage to do so, we are going to be doing the same thing
2 or 3 years from now, and unhappiness will be even higher.
Second, we must try to test the availability of U.S.
workers to increase the job availability for U.S. workers. We
already heard a lot of claims about availability of U.S.
workers, et cetera, et cetera. I think that we ought to be
imaginative in terms of tax incentives and other packages that,
in a sense, will subsidize some employer costs to a significant
degree for hiring and retaining U.S. workers. Similarly, we
probably have already heard and we may hear in subsequent
conversations here issues about mechanization. We may want to
consider again using the tax code to subsidize and test the
proposition as to how far mechanization can take us.
The next item is we must focus on improving the
circumstances of the families of U.S. agricultural workers and
the lives of farm communities. I think that we have heard a lot
of ideas already here how important it is to intervene
thoughtfully on education services, prenatal and early
childhood health and nutrition programs, health services, et
cetera, for all farm workers.
The next item is employing legal workers should become a
critical priority in seasonal agriculture. I think both Senator
Feinstein and you, Senator Smith, and I suspect most of us
realize that you cannot start a conversation on this issue
unless you acknowledge that the vast majority of the people who
are employed in the sector that we are talking about are
undocumented. In some industries, that increases all the way to
90 percent of the workforce, and we must first do something
about that. You cannot improve the conditions for anyone unless
you have legal workers.
The final item is employment of unauthorized workers. It
seems to me that it is important for all of us to have
enforcement policies that will basically have teeth, and I
suspect you cannot have those unless you do some of the things
that both Senators have mentioned so far, which is legalize
people and balance the interests of growers with employers.
I have a series of selection, entry and employment
conditions. Who would be eligible? In other words, how do you
determine who should be admitted and stay, and under what
conditions, if indeed the mechanism is not enough to secure the
number of workers that employers may need at some time in the
future? The RAW idea that we heard a few minutes ago, in a
sense, can only kick in if you have a mechanism for determining
that you don't have enough workers.
Second, we have to really think hard about testing the
availability of U.S. workers by creating precisely the
registered pool of all workers that may be available. This is
going to do an awful lot of things if it is done the right way.
It is going to test propositions about how many U.S. workers,
American-born workers and others are available to do this work.
And I may suggest here, with all due respect, don't necessary
look to the U.S. Government to do that. The private sector in
most instances is likely to do a better job than the Federal
Government. You are dealing with a particular agency in the
Federal Government that has very little credibility as it is in
the farm worker labor market, and I would hope that you would
pay attention to that.
Program integrity and accountability are critical things in
order to be able to have a system that actually we can look our
opponents in the eye and say, well, you know, we have tried to
do something that makes sense, wages and benefits. There is no
doubt that, as Mrs. Feinstein suggested, we have to have some
sort of a wage rate and some sort of a premium attached to it.
I also think that the market mechanism and the analogy to the
market is a bit off base in this regard and, in a sense, turns
a lot of things on their head.
Program administration issues, mobility. You cannot tie
people to an individual grower. When you do that, you are
asking for trouble, but there is a way to handle this. You can
basically ask an individual to work in a specific area or for a
group of employers or a cooperative. This isn't really as much
of a nuclear science as we have really turned it into. It is a
bit simpler than that.
On housing, again, private sector and public sector will
have to work together if indeed we are going to make a
difference on this difficult issue of housing. Yes, Senator
Smith, vouchers, but we have to think of something different or
in addition to that if there is no housing to be had 100 miles
of where the work is being done. Again, we have to be very
imaginative.
OSHA kinds of regulations are extremely important. We have
done very well the last few years; we have to do better in
terms of how we enforce them. Travel cost reimbursement is a
big, controlling element that employers often have over workers
as to whether they are going to actually reimburse for their
travel costs. Why not create an office of an ombudsman that
will mediate those disputes, and perhaps some sort of a trust
fund where an employer that plays by the rules and is a
participant in the program can actually come up and pay, in
advance, the travel costs, and then have that other office
determine whether the employee has met the conditions for
reimbursement.
Performance and compliance bonds. Business works entirely
on the basis of bonds. It can bond everything from legal
status, duration of stay, certain terms of conditions of work,
et cetera, et cetera. You can also bond things that relate to
workers themselves. It is a bonding issue when you say I will
withhold part of your wages and you can't collect them until
you go back to Mexico or Jamaica. So there is a lot of room
there for thinking hard about what we might do.
And, of course, enforcement. You can't have a program that
cannot be enforced, and you can't ask the Government, it seems
to me--I used to work in the Department of Labor for 4 years.
You can't ask the Department of Labor and the administration to
continue to enforce a program in which all history says it has
done very poorly on. All the incentives are against the market,
and the primary role of the department is basically the
punching bag for all interests at all times.
Thank you.
Senator Abraham. Thank you very much.
[The prepared statement of Mr. Papademetriou follows:]
Prepared Statement of Dr. Demetrios G. Papademetriou
i. introduction
Mr. Chairman, Members of the Subcommittee. My name is Demetrios
Papademetriou, and I am the Co-Director of the International Migration
Policy Program at the Carnegie Endowment for International Peace. Thank
you for asking me to testify today regarding U.S. agriculture and its
workers.
I am submitting this testimony on behalf of myself and my
colleague, Monica Heppel, who is the Research Director of the Inter-
American Institute on Migration and Labor. It outlines our best
judgments about the state of work in the fields of U.S. perishable-crop
agriculture and offers an extensive menu of options for an organized
conversation between growers and workers.
Few policy issues seem more compelling or arouse stronger passions
than the working conditions in our perishable crop fields--the fruit,
vegetable and horticulture (FVH) agricultural sector. In that socially
and economically important sector, the circumstances under which
workers work and they and their families live have long been one of the
starkest reminders of the human consequences of America's persistent
failure to protect what is arguably its most vulnerable population. The
fact that this population is overwhelmingly minority, and foreign born
(see Section 11, below), exacerbates its vulnerability and complicates
both the economics and the politics of the issue.
Public opinion about the presence--and role--of foreign workers in
U.S. fields fluctuates with our discomfort and embarrassment over
reports about the living and working conditions of those who pick our
fruits and vegetables and tend to our horticulture. The discomfort
often becomes pronounced ambivalence when these workers are foreign and
in the United States under a variety of legal statuses, including
illegally. Feelings toward foreign farmworkers, as a result, vary
accordingly. They include guilt about the wages and conditions under
which they work (and about the relationship of such conditions to our
ability to maintain a ``cheap food'' policy); anger toward their
employers because they benefit most directly from these conditions
(little, if any, thought is given to the fact that consumers are also
important beneficiaries of the status quo); and, at times and in some
opinion sectors, resentment toward the domestic jobs ``lost'' to them
and the foreign workers' probable effect in keeping wages and work
standards lower for all farmworkers.
Arrayed along this complex set of attitudes about farmworkers,
generally, and foreign farmworkers, specifically, are two determined
lobbies: growers and farmworker advocates. With few exceptions,\1\ the
former has been politically powerful since the earliest days of
governmental attempts to regulate some of the industry's employment
practices in the second half of the last century, and has as a result
gotten its way both in Washington and in state capitals. Farmworker
advocates have been less successful politically but often make up for
what they lack in raw political power with hard work and extraordinary
zeal. The strength and rigidity of each side's position have typically
meant that the ``quality'' of what passes as discourse on this issue
moves from preaching to the converted to a dialogue of the deaf.\2\
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\1\ These include the formal prohibition of the importation of
temporary foreign workers (which lasted for nearly three-quarters of
century--until the 1952 Amendments to our immigration laws), the
repeated attempts to progressively tighten the conditions under which
employers could gain access to foreign workers (the programs that
replaced that prohibition), the gradual extension of most of the
provisions of the 1938 Fair Labor Standard Act (FLSA) to agriculture in
the 1960's, and special legislation regulating migrant and seasonal
work in the 1960's, 1970's and 1980's. The legal protections embodied
in these acts are widely thought to have had only limited impact in
improving overall conditions--in large part because of continuing
employer access to unauthorized foreign workers combined with a lack of
enforcement of both labor and immigration law.
\2\ In its extreme form, the result has been nothing short of
mutual demonization.
---------------------------------------------------------------------------
The resulting dissonance and political impasse have typically led
to the following policy pattern. On the one side, grower interests
manage to obtain, directly or indirectly, the labor programs they say
they ``must have''. On the other side, farmworker advocates use legal
tools and popular guilt about and aversion to the conditions under
which much farmwork takes place--and indirectly, the axiomatic, if
putative, relationship between such programs and unauthorized
immigration and employment--as the means for ensuring that growers will
use such programs sparingly. As a result, when a program is authorized,
farmworker advocates employ a barrage of legal and political actions
typically directed at the U.S. Department of Labor (DOL). The
unambiguous purpose of these actions is to ``motivate'' the Department
to use rigorous regulation and vigorous enforcement to deter many
growers from using the legislated programs, even in the face of bona
fide shortages of qualified workers.
This strategy has been successful in defeating a series of recent
attempts in the U.S. Congress to introduce new or, most recently,
significantly different variants of the existing temporary foreign
worker program for seasonal agriculture (H-2A).\3\ The strategy has
also helped to keep the size of the H-2A program on only a very slight
upward trend over the past decade (at about 15,000 workers per year,
see Chart 1) despite DOL projections after the 1986 Immigration Reform
and Control Act (IRCA) that usage would increase ten- to fifteen-fold
\4\ and the very substantial growth of the FVH sector.
---------------------------------------------------------------------------
\3\ The defeats have been the result of opposition by both the
Administration (partly on the merits but in the largest part because of
the Administration's closeness to organized labor and its ``tactical
warfare'' with California's Governor Wilson, who supported such
programs) and many in the anti-immigration wing of House Republicans,
led by Immigration Subcommittee Chairman Lamar Smith.
\4\ In developing this projection, DOL anticipated neither the
widespread use of fraudulent documents nor the ineffectiveness of
employer sanctions. A large and easily accessible supply of
unauthorized workers dampens interest in the H-2A program--particularly
in view of perceptions that the program is inflexible and intrusive.
---------------------------------------------------------------------------
ii. the industry and its workers
What follows are some relevant facts that might be helpful in
contextualizing thinking about the issue. Without such a context, few
of the judgments necessary for developing a tentative framework of a
seasonal farmworker recruitment and employment agreement that improves
upon the status quo in significant ways, and builds the road to a
better rural America, are possible.
[GRAPHIC] [TIFF OMITTED] T5020.008
A. Six observations about the agricultural industry and agricultural
policy
1. Agriculture is a critical U.S. industry. In 1992, the
market value of agricultural products sold was $162 billion.
That had increased to $197 billion by 1997.
2. The production of fruits, vegetables, and horticultural
products is a healthy and expanding sector of the agricultural
economy. The value of production for vegetables increased 14
percent between 1993 and 1997, while the value of fruits and
nuts increased by 25 percent. The value of U.S. fruit and nut,
vegetable and melon, and horticultural specialty production in
1997 was more than $35 billion. Floriculture and environmental
horticulture (greenhouse, turfgrass, and nursery-related crops)
is the fastest growing segment of U.S. agriculture. California
accounts for approximately one-half of FVH production.
3. FVH crops have become an increasingly important element of
U.S. export competitiveness. In 1997, FVH agricultural exports
accounted for about thirty percent of its overall production--
$10.5 billion. In that same year, total U.S. exports amounted
to $643 billion while imports were $862, leading to a $208
billion trade deficit. In contrast, farm commodities registered
a trade surplus of nearly $20 billion--with farm exports of $65
billion and imports of $46 billion.\5\
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\5\ As the Commission on Agricultural Workers noted in 1992,
``[w]ith a largely immigrant labor force, capital and technology
flowing across national boundaries, and global markets, FVH agriculture
is increasingly an international operation'' (CAW 1992:3). This fact
affects both production and marketing strategies. Technological
advances coupled with reduced trade barriers make ``differing
production costs between industrialized and developing countries
critical in determining the financial viability of the FVH industry in
the United States'' (CAW 1992:3).
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4. The concepts of the ``family farm'' and nostalgia about
``farming as a way of life,'' i.e., of the self-sufficient
farmer who makes a modest and uncertain living growing our
foods, stand near the center of American nation-building
ideology--yet have an increasingly tenuous economic
relationship to present day realities. Nearly three-fourths of
U.S. farms have sales of less than $50,000. Yet, in 1997, these
farms accounted for only 10 percent of total farm sales. In
contrast, just four percent of all farms accounted for one-half
of total sales, while less than one percent of farms produced
25 percent of total U.S. output. This tendency toward
concentration is more pronounced in California and other
western states and less so in the tobacco-growing areas of the
middle-Atlantic states where many workers hold H-2A contracts.
5. A ``cheap food policy'' is a key pillar of U.S. social
policy--if not always a recognized or acknowledged one.
Approximately 10 percent of disposable personal income is spent
on food in the United States, down from 14 percent in 1970.
This is substantially lower than in any other developed
country.
6. U.S. growers always have been able to rely on inexpensive
foreign labor, with the full complicity of the U.S. government
at all levels.\6\ Regardless of the political party that has
controlled any particular branch or level of government, this
complicity has held true and has led to similar policy
outcomes.
---------------------------------------------------------------------------
\6\ A 1988 U.S. Department of Labor policy document noted that the
Department recognized ``U.S. agriculture's long-term dependence on
`temporary' foreign labor'' and believes ``that a sharp distinction
should be made between the special labor problems experienced by
agriculture and the temporary labor bottlenecks which other sectors may
experience.'' In fact, governmental forbearance for inferior working
conditions in the fields has been nothing less than remarkable. It was
not until the 1960's, for instance, that agricultural employers became
subject to federal legislation protecting workers and the government
began to fund special programs in health, education, child care, job
training and legal services for farmworkers (CAW 1992:9-10).
Specifically, the 1938 Fair Labor Standards Act did not apply to
agricultural workers until 1966, and then only some of its provisions
(for example, there are no requirements for overtime pay) and only for
some agricultural workers (CAW 1992:15). State-level protection of farm
labor has also been inconsistent. For example, by the early 1990's,
only five states--New York, Florida, Missouri, New Jersey, and Hawaii--
and Puerto Rico had passed constitutional provisions guaranteeing
agricultural workers the right to organize and bargain collectively
(CAW 1992:15).
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B. Six observations about seasonal farm labor and the seasonal farm
labor market
1. Approximately 21.6 million people are employed in the food
and fiber sector of the U.S. economy. Agriculture employs
approximately 3.5 million of them. Generally speaking,
employment across agriculture has been declining while
employment in agricultural services (e.g., packing, shipping,
animal and management services, that is, the ``better'' jobs)
has been growing. The 1997 Current Population Survey (CPS)
reported an average of 900,000 hired farmworkers, with
employment varying from 589,000 in January to 1.1 million in
July. In July of 1998, the USDA reported that there were 1.45
million hired farmworkers. (The farmworker population is
notoriously hard-to-count; the CAW observed that a good
estimate may be about 2.5 million--1992:1).
2. The perishable crop industry's labor supply challenge is
extremely complex. In the absence of thoughtful blends of
incentives and disincentives that are administered firmly, the
industry has been reluctant to invest systematically in labor
saving technologies, improve wages and labor standards in
significant ways, alter its labor-management practices, or
offer the associated services (such as the provision of
acceptable housing) that might allow it to attract a more loyal
and stable workforce.
3. The seasonality and arduousness of field work militates
against a significant year-round and permanent workforce.
According to the National Agricultural Worker Survey (NAWS), in
1990, farmworkers averaged only 29 weeks of farm employment per
year. There is also a constant influx of new workers.
Currently, more than one in five crop workers is working in
U.S. agriculture for the first time.
4. Few U.S. young people enter the agricultural labor market.
Most independent observers recognize that many agricultural
jobs are simply not compatible with the expectations of U.S.
workers--at least absent extraordinary increases in
compensation and benefits. In 1997, the Current Population
Survey reported median weekly farm worker earnings of $277--55
percent of the median for all workers. Currently, about three-
fifths of all farmworkers live well below the poverty level
with average annual earnings of less than $10,000.
5. The perishable crop seasonal agricultural labor market in
the United States is dominated by foreign workers and,
increasingly, by unauthorized workers. According to the 1995
NAWS, 70 percent of the farmworker population was foreign-born
and 37 percent was unauthorized. By the early 1990's, nearly 90
percent of new entrants into the perishable crop labor force
were foreign born and virtually all of the remaining ones were
U.S.-born Hispanics. Depending on the area, unauthorized
workers are thought to comprise up to 70 percent of the harvest
workforce. (The INS estimates that the workforce in the Georgia
vidalia onion fields in 1998 may have been more than 80 percent
unauthorized.)
6. Farm labor contractors (FLC's)--the middlemen that are
widely thought to contribute heavily to the systematic
undermining of labor and immigration laws in perishable crop
seasonal agriculture--are not subject to rigorous scrutiny and
applicable regulations are not enforced vigorously.\7\ In
addition to farm labor contractors, the system of middlemen
involved in recruiting and overseeing temporary contract
workers includes growers associations, ``super-contractors,''
and Mexico-based recruiters.
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\7\ Farmworker advocates typically argue that lack of enforcement--
rather than inadequate regulation--is the more important problem. FLC's
currently are less likely to be held accountable for labor or
immigration law compliance than are fixed-site employers (CAW 1992:37)
and are, therefore, used by some employers to evade compliance with
laws.
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C. Six observations about the current temporary foreign worker program
in U.S. FVH Agriculture (H-2A) \8\
---------------------------------------------------------------------------
\8\ Much of the information about H-2A workers is preliminary data
obtained from an ongoing survey of H-2A workers. The interviews are
part of a two-year project, funded by the Ford Foundation and carried
out by the Inter-American Institute on Migration and Labor in
Washington, D.C. See Appendix A for a description of the project.
---------------------------------------------------------------------------
1. In 1997, the DOL certified the need for 23,352 H-2A
workers, up from 17,557 in 1996 and 12,173 in 1994. This
accounts for only a tiny fraction of the seasonal agricultural
workforce. These numbers have been rising steadily despite the
fact that the sugar cane industry--historically the heaviest H-
2A worker user--dropped out of the program in the early 1990's.
The main reason for that growth is that H-2A workers are now
being used in a number of new crops and areas. Most of the new
workers are Mexicans, as has been the case since 1992 (see
Chart 2.)
2. Current H-2A workers express a strong preference for
working under an H-2A-like contract rather than being in an
unauthorized status.
[GRAPHIC] [TIFF OMITTED] T5020.009
3. Most workers currently employed as H-2A workers report
that they value the security provided by their contracts and
the predictability of their seasonal earnings seemingly above
all else. In view of these priorities, issues that relate to
the high levels of control that are frequently demanded by
recruiters and employers are apparently of secondary importance
to the workers.
4. ``Blacklisting'' appears to be widespread, is highly
organized, and occurs at all stages of the recruitment and
employment process. Workers report that the period of
blacklisting now lasts three years, up from one year earlier in
the decade. Violations that typically lead to blacklisting
include not completing the contract, involvement in a dispute
over wages and working conditions, and misbehavior (e.g.
alcoholism).
5. The use of H-2A workers, once initiated, tends to spread
throughout a crop- and area-specific labor market.
6. The majority of H-2A workers do not appear to be using
their H-2A visas as a stepping-stone for entry into the broader
U.S. labor market nor do they appear to overstay their visas by
a significant factor. The practice of working outside of one's
contract during slack times, however, seems to be relatively
common.
iii. perishable crop agriculture and seasonal foreignworkers
Perishable crop agriculture's involvement with foreign workers in a
significant way spans the last one-and-one-half centuries.\9\ More than
a century ago, the Chinese Exclusion Act was expected to break up that
era's large commercial farms into smaller family-sized specialty farms
that could be operated by family labor. That expectation has never been
met. This has been in large part due to the ready availability of ample
supplies of foreign seasonal labor. Nor, apparently, has there been
enough incentive for FVH agriculture to restructure, invest
systematically in available labor saving technologies, or alter its
labor-management practices. Thus, many of the basic features of the
seasonal farm labor market of the 1880's remain the same today.
---------------------------------------------------------------------------
\9\ It involved Mexicans and the Chinese during the Civil War,
Chinese throughout much of the second half of the 19th century,
Japanese closer to the turn or the century, Filipinos and Mexicans
during and after WWI, and Mexicans since the 1930's. Currently, the
workforce is overwhelmingly Mexican with increasing pockets of Central
Americans, especially Guatemalans.
---------------------------------------------------------------------------
One of the most visible, and troublesome, parts of that legacy are
the farm labor contractors (FLC's) who have come to control not only
the livelihoods but the very lives of farmworkers. In 1963, Congress,
in response to evidence that many FLC's were exploiting both farmers
and laborers, sought to regulate the relationship between workers and
FLC's by enacting the Farm Labor Contractor Registration Act. The Act
was amended in 1974, twice in 1976, and again in 1978. The most
significant amendments were those of 1974, which sought to strengthen
the enforcement provisions of the Act. The 1974 Act regulated both
intra- and inter-state activities and its coverage was extended to
contracting activities without regard to the number of workers
contracted out. The Act also increased penalties for violations and
added a provision allowing for a ``private right of action.''
Nonetheless, widespread unhappiness with the Act eventually led to its
replacement by the Migrant and Seasonal Agricultural Worker Protection
Act (MSAWPA) in 1983. The MSAWPA provided that while growers and fixed-
site employers would no longer be required to register as farm labor
contractors, employers and associations would be subject to certain
worker protection requirements, such as disclosures and payroll
practices. MSAWPA also adopted the ``joint employee'' doctrine under
which, for purposes of the act, one farmworker may simultaneously have
two or more employers (CAW 1992:23-24).
However, most analysts acknowledge that these efforts have neither
improved farmworker conditions appreciatively nor dampened employer
interest in using FLC's as critical middlemen in all aspects of
farmwork recruitment and employment. The Commission on Agricultural
Workers, mindful of the problem, recommended that FLC's be either more
effectively regulated or eliminated in favor of government or private-
sector grower or worker associations that would match workers to jobs.
Such a system might include the following: (a) use of job itineraries
or annual worker plans to facilitate the efficient movement of
farmworkers from one job to the next; (b) improved outreach efforts to
provide information on labor needs by crop and area, and on housing
availability; (c) separating the job matching from the non-labor
exchange functions; and (d) offering farmworkers the right to organize
and bargain collectively. The Commission's recommendations have fallen
on deaf ears.
While the system of farm labor contracting has and continues to
shape the structure of the farm labor market, the modal policy
instrument to real or perceived seasonal labor shortages during this
entire period in this sector--a sector that encompasses the production
of fruits, vegetables, and horticulture \10\ and is the industry's most
labor intensive \11\--has been the enactment of a variety of temporary
foreign labor programs. The most significant of them have been the
``bracero'' program that lasted from 1942 to 1964; \12\ and the British
West Indies (BWI) program, also begun in 1942, and that program's
successor, the 1952 Immigration and Nationality Act's H-2 program-
designated as H-2A since 1986. Together, these responses have led to
the de facto formation of a binational labor market for FVH agriculture
in which unauthorized Mexican workers have been the dominant group.
---------------------------------------------------------------------------
\10\ Between 1940 and 1945, the domestic agricultural workforce
declined by 9.3 percent (with the 20.1 percent reduction in the male
agricultural labor force being partly offset by the more than doubling
of the number of women involved in agricultural work). While these
facts do not address whether the critical labor-supply issue has been
one of absolute shortages or one of a reduced willingness (some will
say ability) on the part of growers to pay adequate wages, farm labor
shortages have been indeed in evidence repeatedly since the 1940's
(Griffith 1993:206-207).
\11\ Labor costs play a major role in the FVH industry, accounting
for between 20 and 35 percent--and sometimes as much as between 40 and
50 percent--of the sector's overall production costs. By comparison,
labor costs for corn, soybean, and hogs represent 5.6 percent of all
production costs while those for cattle, wheat and sorghum are even
lower (CAW 1992:33). FVH growers have traditionally relied on cheap
(and often illegal) foreign labor to control their labor costs and on
farm labor contractors (FLC's) to supply such labor.
\12\ The Bracero, program, based on bilateral agreements between
the U.S. and Mexican governments, was instituted on August 4, 1942 and
was terminated in January, 1964. It was interrupted for several years
in the late 1940's and early 1950's but the flow continued nonetheless
(CAW, 1992:5). During its 22-year duration, between four and five
million Mexican agricultural workers may have entered the United States
under that program. By 1956, ``braceros'' made up more than 33 percent
of the seasonal workers in California, concentrating primarily in the
California vegetable harvest. Despite claims that its termination would
result in crop losses, business failures, and higher fruit and
vegetable prices, the termination's modal effect was a gradual rise in
unauthorized immigration from Mexico (CAW 1992:17-9; Griffith, 1993).
---------------------------------------------------------------------------
The programmatic responses to the FVH industry's concerns about
labor shortages are an unambiguous attestation to the country's
sensitivity and responsiveness to those who grow its food, and more
directly, to the political power of agribusiness. Nowhere has that
power been more evident than in California, the country's dominant
producer of perishable crops.
Washington's political responsiveness to FVH grower demands for
foreign workers--evident once again in the industry's preferential
treatment under the Immigration Reform and Control Act of 1986 (IRCA)
\13\--is thought by many to be the major contributor to the failure of
the market mechanism in that part of the agricultural sector. As a
result, one finds few market-led improvements either in wages and
working conditions or (within the technological and capitalization
limitations of each time period) in mechanization and other labor-
saving technological advances. In fact, even when reliance on the large
scale importation of foreign workers has been halted, as with the 1964
termination of the ``bracero'' program,\14\ the flow of foreign workers
into FVH agriculture has not been inhibited.
---------------------------------------------------------------------------
\13\ FVH agriculture's treatment in IRCA included the following
preferential provisions: (a) two special legalization programs for that
sector's workers with very low documentation thresholds; (b) a worker
``replenishment'' program in the event of unanticipated shortages; (c)
a delayed implementation date for employer sanctions (fully 18 months
after all other industries became subject to it); (d) much less
demanding evidentiary requirements for obtaining legal permanent
residence (which, according to some estimates, may have led to several
hundred thousand ``fraudulent'' legalization claims); and (e) generally
lax enforcement standards for employer sanctions. In fact, the
statutory requirement of obtaining a warrant prior to conducting open
field searches has turned sanctions in FVH into a paperwork exercise
for most agricultural employers. As a result, the number of
unauthorized workers with fraudulent employment documents has grown.
The U.S. Department of Labor estimated in its National Agricultural
Worker Survey that 17 percent of migrant farmworkers were unauthorized
in 1989. That proportion rose to 26 percent by 1992 and to 37 percent
by 1995.
\14\ The termination of the ``bracero'' program came about in large
part due to the coalescence of political opposition by organized labor,
civil rights groups and the church. In 1963, that coalition persuade
then-Secretary of Labor Wirtz to appeal personally to President Kennedy
to terminate the program.
---------------------------------------------------------------------------
Considering this background, the question one needs to consider is
as follows: Can a tentative outline of key issues be developed that
allows the United States to pull itself out of the cycle of bad
policies and divisive politics regarding work in seasonal perishable
crop agriculture by addressing those issues in a fair, neutral and
practical manner? At the core of such an endeavor would have to be
meeting FVH agriculture's needs for a predictable access to an adequate
labor force while offering farmworkers, regardless of nationality and
legal status, appropriate working conditions, meaningful labor rights
(including the right to organize), and guarantees of their human rights
and dignity. In addition, any serious conversation about significant
changes on how U.S. seasonal agriculture will be staffed in the future
must recognize that the existence of the North American Free Trade
Agreement (NAFTA) implies that both the Mexican and the U.S.
governments have legitimate political interests in the context of that
Agreement that must be addressed satisfactorily.
iv. issues that will need to be resolved in constructing a fair bargain
on seasonal work in the u.s. fvh in industry
The following are among the principal issues that would require
resolution if a real experiment on changing the employment status quo
in the in FVH agriculture is to be conducted.\15\ The list is not all-
inclusive; rather, it is intended to organize the discussion along
several important categories and themes which, in turn, can generate
additional issues and expose and discuss unexplored hard edges.
---------------------------------------------------------------------------
\15\ This paper is fundamentally agnostic as to whether the end
result of such experimentation is more immigrant admissions, a
radically altered H-2A program, or some new form of a temporary worker
program.
---------------------------------------------------------------------------
Before one launches into any specifics, however, it is important to
make a few ``global'' observations about what might come out of such
discussions. The initial steps must be explicitly ``experimental'' and
their ultimate fate should be determined by the results of an
independent evaluation. The first and foremost challenge in any such
discussion will be the reconceptualization of the notion of
``protections'' for U.S. workers in low wage, low value-added,
difficult, seasonal, and thus undesirable labor market sectors \16\--
while keeping any agreed-upon experiment simple and flexible enough to
entice growers to participate in it in good faith.
---------------------------------------------------------------------------
\16\ Protecting the terms and conditions of work in seasonal
farming may have to become the paramount policy objective in any such
``rethinking.'' Job opportunities, in that scenario, may have to become
a lower priority, at least during a reform effort's initial years.
---------------------------------------------------------------------------
Furthermore, it is important to keep in mind that any outcomes may
only have a chance of getting off the ground, both politically and in
social justice terms, if they are the result of a ``social
partnership'' in the classic sense. Accomplishing that objective would
require that key individuals and institutions concerned with or
representing the interests of the affected parties (such as worker
advocacy groups, employers, relevant U.S. federal and state government
agencies, the Mexican Government [eventually], and those civil society
institutions with mandates that make working conditions at the farm
relevant to them in both countries) must be able to agree on the broad
guidelines, rules, mutual rights and obligations, and enforcement
priorities under any agreements. Successfully engaging
``stakeholders,'' therefore, will be one of the early tests of the
viability of any serious conversation.
A. General principles
Ensuring balance between grower and worker interests. Every effort
should be made to resist both the inevitable grower attempts to
``tilt'' resulting reforms toward directions that make few substantive
improvements in farmwork and continue to place growers in a commanding
position vis-a-vis foreign workers, and the equally inevitable efforts
by farmworker advocates to actually ``strengthen'' the H-2A program (a
program whose implementation they otherwise view with contempt) to the
point of making its use impractical. Tilting too much toward the former
would continue to produce unacceptable social and labor market policies
and make any new or substantially altered H-2A program nonviable.
Siding with the latter (in an attempt to produce what growers will
surely tag as a ``gold-plated'' program for workers) would make it
unviable in the Congress and would have the equally likely (and
counterproductive) effect of growers avoiding the program. It would
also continue to place the government in the untenable enforcement
posture it has always occupied on this issue.\17\ Hence the need for
balance.
---------------------------------------------------------------------------
\17\ The current H-2A program offers growers, primarily in the
eastern half of the United States, the benefit of having the labor they
need, when and where they need it. Because the foreign workers are tied
to the employer, some employers are thought to be exploiting the
foreign workers. Western growers have been reluctant to sign onto the
H-2A program because of its housing requirements, because of the
litigiousness associated with it, and because they did not perceive
access to unauthorized workers to be truly threatened until recently.
---------------------------------------------------------------------------
Increasing the job opportunities of U.S. workers. A successful
program must devise significant, yet financially realistic, incentives
for FVH growers to hire and retain U.S. workers on a preferential
basis. These might take several forms.
One of the most significant ones might be the offering of
positive tax incentives to employers who hire and retain U.S.
workers--in effect subsidizing some employer costs to a
significant degree for the duration of the experiment.\18\
Promoting the hiring and retaining of U.S. workers (initially
perhaps only with a subset of employers so as to test the idea)
through tax incentives would test in a fair and concrete way
whether a workforce in perishable agriculture composed
primarily of U.S. workers can be constructed and maintained.
---------------------------------------------------------------------------
\18\ There should be no loss to the U.S. Treasury because the new
arrangement would likely encourage greater tax compliance by both
employers and workers. Under today's practice, the absence of virtually
any enforcement likely results in significant under-compliance in tax
obligations by both parties.
---------------------------------------------------------------------------
Any such experiment might also be accompanied by subsidized
loans and special depreciation schedules for investments in
labor-saving capital equipment. Such initiatives would
facilitate mechanization in crops where it is practical and may
entice growers to give their fullest consideration to creating
a larger core of permanent full-time workers in return for a
guaranteed supply of labor to meet their peak needs.
Improving the circumstances of the families of U.S. agricultural
workers and the ``lives'' of farm communities. If a grand bargain on
this issue becomes indeed possible, care, energy, and political capital
from both sides must be committed to improving government-provided
services for this underserved population. Among the areas that require
close examination and thoughtful intervention are education services
(particularly but not exclusively head-start and similar programs),
pre-natal and early childhood health and nutrition programs, and health
services--all of which must be designed to respond to the unique
circumstances of living as an (often itinerant) farmworker.
Ultimately, a society (and especially a wealthy society)
that chooses not to invest in the protection of its most
vulnerable members, has no right to be in the business of
leading global efforts in human rights, labor standards, and
related social goals.
Employing legal workers should become a critical priority in
seasonal agriculture. This principle makes clear what must become the
foremost shared priority by both sides. In any experiment's initial
years, the priorities should be as follows:
To change the legal status of most of the workers who now
work in the fields without legal authorization.\19\ These
workers are typically experienced and hence highly valued by
their employers, who are increasingly concerned about U.S.
border controls and INS targeting of farmwork for sanctions
enforcement. These realities create a window of opportunity to
advance the interests of all farmworkers by upgrading
significantly the work and living conditions of the maximum
number of field hands in our country's perishable crop
agriculture.
---------------------------------------------------------------------------
\19\ Unauthorized workers are vulnerable to exploitation by those
employers, farm labor contractors, and recruiters who are unscrupulous
and, arguably, contribute to the deterioration of the wages and working
conditions for all agricultural workers in the FVH sector.
---------------------------------------------------------------------------
To restore to all agricultural workers the benefits they
lost under the 1996 welfare reforms. These ``reforms'' have
made life on the farm even more tenuous than before.
Employment of unauthorized workers. For a new policy to be
successful, it must put in place sharp disincentives for continuing to
hire ``non-program'' (i.e., unauthorized) workers. A good faith effort
in this regard must include the critical re-examination of the panoply
of legal and institutional structures growers and their allies have
created over the years in order to protect themselves from the reach of
the intent of IRCA's prohibitions against the employment of
unauthorized foreign workers and of a variety of labor and safety
regulations. Among the items that must receive an early reconsideration
are the following:
The special procedures for conducting open field searches;
The manner in which an employer is defined, which allows
some growers to play cat-and-mouse games with regulators and is
impeding targeted DOL enforcement; and
The power of FLC's, whose involvement is widely thought to
discourage the employment of U.S. workers, undermine efforts at
collective bargaining, and lead to lower wages and inferior
working conditions for all farmworkers.
Residency rights of temporary seasonal foreign workers. Any
experiment will eventually have to come to terms with the issues of
whether, when and how to convey rights to full legal U.S. permanent
residence to program participants. There are likely to be two sharply
contrasting views on this issue.
On the one hand, denying such rights flies in the face of an
historical aversion in the United States to separating the
right to work from that of permanent residence and eventual
full societal membership. A related sentiment holds that the
right to earn legal permanent resident status should naturally
convey to those who have made sustained economic contributions
to our nation.
On the other hand, another view has emerged in recent years
that is grounded more on political and economic realpolitik. It
argues that ``we'' neither need nor can we absorb any more
poorly-prepared workers (and their families) as permanent
additions to our society. According to that latter view,
appropriate compensation and working conditions, and properly
administered programs that offer foreign workers a fair deal,
should be all that should be expected of us now and in the
future.
Arguably, and considering the seasonal nature of the work, the
latter stance may also comport with the interests of some workers (as
well as sending country interests) in programs that emphasize
circularity and thus contribute most directly toward the improvement of
the living conditions of the foreign workers and their families at
home. In fact, some worker advocates express frequent concern about the
home community consequences of long-term absences by young male
workers.
A natural compromise on this issue might be to adopt the
latter view during the entire (or part of the) pilot period and
postpone a decision on this matter until we have some
experience with and more adequate data about the experiment's
operation and the participants' interests.
B. Selection, entry and employment conditions for foreign workers
Eligibility. The following employer and employee eligibility
criteria could be part of the negotiating mix.
A pilot program could be constructed to last either three or
five years (five years would be better from an evaluation
perspective.)
Participation in the program by individual employers or
employer groups should be made subject to ``playing by the
rules''. To encourage participation, employers would have to be
held harmless against their previous employment of unauthorized
workers.
Initially, eligibility could be only made available to
currently undocumented workers from Mexico and the Caribbean
Basin who are already in the United States.\20\ These workers
would register with the program without prejudice in regard to
their prior illegal status.\21\
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\20\ An exemption would be required from certain provisions of the
1996 Illegal Immigration Reform and Immigrant Responsibility Act
(IIRIRA). That Act bars those who have been in the United States
illegally for more than three or twelve months since April 1, 1997,
from reentering the United States for three and ten years,
respectively.
\21\ Advocates on all sides would likely argue that this could be
construed as another IRCA-like program. It could. However, a major
difference between the two ideas can be constructed. The proposed
program could choose not to confer U.S. permanent residence rights to
its participants during a part or even the entire test period.
---------------------------------------------------------------------------
Preference should be given to those workers already employed
in U.S. FVH agriculture, but other unauthorized workers from
the same geographical catchment area could also be eligible if
the supply of workers proves inadequate. (Later on, and
assuming continuing undersubscription of needed workers, the
program could be opened to new workers from the same region.)
Entry. If the decision is not to offer program participants U.S.
permanent residency immediately, the ability of employers to hire and
retain specific employees would have to be balanced against concerns
about the level of employer control over workers that is endemic in the
current program. In addition, the following ideas could be considered.
Entry could be valid for the duration of each job contract
and might not exceed the length of the agricultural ``season,''
that is, not more than ten months.
Farmworkers could be ``nominated'' by employers who wish to
have them return for a subsequent season. Program participation
would thus be renewable for several seasons.
A process for mediating disagreements, with no blacklisting
of workers who voice legitimate complaints, could be
guaranteed. Considering the desperate economic conditions in
many of the workers' home communities, their willingness to
tolerate poor living and working conditions in the United
States should not be the gauge as to whether the program is
successful.
Testing the availability of U.S. workers and creating a legal pool
of foreign workers. One of the most difficult issues surrounding the
employment of foreign workers in any sector is the labor market test
that is used to determine whether U.S. workers are available and
willing to perform the required work.\22\ If they are not, a process
commences for recruiting and hiring foreign workers in the amount of
the U.S. worker deficit. There are at least two ways to handle this
issue.
---------------------------------------------------------------------------
\22\ For an exposition on the complete failure of the relevant DOL
labor market test (the ``labor certification'' process), see Demetrios
G. Papademetriou and Stephen Yale-Loehr, Balancing Interests:
Rethinking U.S. Selection of Skilled Immigrants. Washington, D.C.:
Carnegie Endowment for International Peace and the Brookings
Institution, 1996.
The first would rely on the U.S. Employment Service (USES)
and its State Employment Service (SESA) \23\ network. These
agencies presumably have the capacity to handle the
registration of both domestic and foreign workers. Thus, the
concept of a ``worker registry,'' included in recent
legislative proposals, may be a good starting point for
shedding light on the issue of the availability of U.S. workers
and should be within the technical and infrastructure means of
USES/SESA to implement it. Recognizing that farmworker
recruitment historically has not occurred through state
agencies, an all-out effort that includes CBO's and private
not-for-profit organizations, such as employment and training
assistance groups, worker organizations, and groups offering
legal services, should also be engaged in the registration
process. Whatever the method agreed upon, any ``new'' or
additional foreign farmworkers would have to be registered in
specially-designated U.S. consulates prior to their first
season in the United States. USES officials might be asked to
assist consular officials with that task. All initial expenses
associated with this activity could be underwritten by the
growers, i.e., the party that stands to benefit most directly
from such an initiative. The entire registration system would
be fully automated and could include the worker's photograph,
fingerprints, and any other relevant information. Re-
registration, for a reasonable fee paid by the worker, could be
required each time the farmworker ``reenters'' the United
States for subsequent seasons.
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\23\ Most observers view the U.S. Employment Service as irrelevant
both in agriculture (where it is responsible for recruiting less than
one percent of workers despite a statutory mandate to do so) and in
other industries (where it ``recruits'' less than five percent of
workers).
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The alternative would be to rely on a newly created
Agricultural Worker Registration Center that could be developed
and run privately. Growers could again be asked to underwrite
part of the Center's start up costs but would have no control
over its operation. Such a Center would collect and maintain
much the same data as the USES without the baggage that weighs
down this federal agency.
In either scenario, once a worker is in the data bank, accessing
the record and issuing work authorization cards to foreign workers
should be on the basis of user fees. (Source country authorities might
wish to register those of their nationals who express an interest in
seasonal work in the United States independently but a person's failure
to be part of that pool should not disqualify him or her from
participation in the program. This way, the ability of the sending
country authorities to corrupt the selection system through cronyism
and related actions will be inhibited.) Once a worker is in the
registry, his/her file would be transferred electronically to the
relevant U.S. Consulate where a joint Consular Affairs and INS team
would undertake the necessary investigations (to detect and deter, with
the cooperation of source country authorities, the entry of otherwise
ineligible workers) and issue the visa.
This ``Service Center'' function must not lead to charging
users unreasonable service fees. First time workers could have
their fee paid by their prospective employer while repeat
workers, as noted earlier, could be expected to be responsible
for all associated fees.
Program integrity and accountability issues. Regardless of the
registration scenario chosen, the relevant parts of the data collected
should be accessible by federal and state departments of labor/
employment and by the INS. Such access would facilitate the
verification of the worker's status during compliance visits. (Foreign
farmworkers would be required to carry their picture identification,
issued by the agreed upon entity, on them at all times.) Furthermore,
employers of foreign workers who violate any of the program rules in a
substantive way should be decertified for a substantial period of time.
(A minimum of two years, for instance, would establish the importance
of playing by the rules.) For subsequent or more flagrant violations,
permanent debarment could also be considered.
Wages and benefits. The following are among the conditions that
will need to be negotiated among the principals.
Employers should be expected to offer a base wage to all
workers that can be anchored on some of the existing formulas
worked out jointly between the Departments of Labor and
Agriculture. The principle that could guide these negotiations
is that a wage premium should be paid to all farmworkers as an
acknowledgment of the effect of the presence of large numbers
of foreign farmworkers on keeping wages lower. (The late
Barbara Jordan-led Commission of Immigration Reform proposed
precisely such a premium for other temporary labor programs.)
Among the additional conditions that could be negotiated are
the so far intractable issues of ``task'' and ``group'' rates
whereby the wages of the most productive workers are averaged
out with those of the least productive ones to meet the
mandated base compensation--a process that leads to paying some
workers less than the agreed-upon (minimum) wage. The
principle, again, should be one of reasonableness that allows
growers to hold on to worker productivity gains made under the
current system without violating the spirit of any wage
agreements through the backdoor.
In states that have inadequate protections for farmworkers,
program-agreed conditions of work could supercede state
requirements. Minimum health and accident insurance coverage
might be offered to all workers--possibly through the creation
of private insurance pools--with premiums divided unequally
between growers and workers. (Canada requires its farmers to
pay 80 percent of the costs of such insurance for its seasonal
foreign farmworker program.)
Employers could be required to pay to foreign workers most
if not all of the social insurance costs associated with
employing U.S. workers.\24\ These funds could be deposited into
a privately-run Farmworker Trust Fund managed by independent
professionals in accordance with bilateral agreements that
would allow a worker to be ``vested'' and draw benefits from
abroad after a pre-agreed number of seasons of agricultural
work in the United States. The principles here are also simple.
There should be no incentive for hiring foreign workers based
on their lower costs.\25\ In addition, reserving these funds
for those who return, increases the probability that workers
will return while also becoming a means for the survival of the
former worker and his or her family in later years.
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\24\ This is also the path followed late last year by legislation
that focused at the high skill end of the temporary foreign worker
program continuum, the H-1B program for professionals.
\25\ A reasoned way for reaching a balanced view on the cost issue
would be to include the travelling and associated costs for recruiting
foreign workers into the mix.
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C. Program administration issues
Duration of visas and mobility. As noted earlier, the duration of
the temporary worker authorization visa should coincide with the
growing and harvest season and probably should not exceed ten months.
Even more important from a social and labor policy perspective may be
that holders of these visas should be allowed at least partial mobility
within FVH agriculture.\26\ Arguably, no other provision of such an
experiment is likely to be as much of a ``deal breaker'' for the
supporters of farmworkers as the failure to empower foreign workers to
walk out of bad employment situations without fear of such employer
reprisals as the loss of privileges they have earned (such as
transportation costs) or blacklisting by the system.
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\26\ Some will argue that more might be needed to reduce that power
inequality since very few workers ``vote with their feet'' in objection
to wages or working conditions.
One way for this issue to be approached might be through the
appointment of an Ombudsman--an impartial ``arbitrator'' that
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can investigate and resolve conflicts between the two parties.
Housing. A great deal of hard thinking will have to be done on
housing issues because, as noted earlier, this is an issue that is
crucial in social policy terms yet is at the heart of the opposition to
the current H-2A program by western grower interests. Two general ideas
might form the basis for a conversation on this issue.
First, both sides and their allies could expend as much
political capital as may be necessary to impress upon the
Farmers' Home Administration and other similar agencies the
need to review current housing programs with the objective of
facilitating and expanding funding for publicly and privately
constructed and/or rehabilitated housing that meets
appropriate, if modest, standards.\27\
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\27\ The idea here would be to create safe and sanitary living
conditions that are consistent with the seasonality and nature of the
need.
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Second, and to the extent to which appropriate housing for
farmworkers within a reasonable radius from the place of
employment is available, a voucher system that also includes
transportation to and from work or a travel subsidy when the
distance is greater than a negotiated maximum could replace
grower provided-housing. (Housing costs often equal 25 percent
or more of farmworker income.) Such a solution would simply
recognize that housing always has been provided in stable farm
labor markets. Failure to provide housing makes some workers
prey to unscrupulous ``housing contractors,'' entices others to
expose themselves to the elements by sleeping in the fields,
imposes a burden to those workers who seek decent housing, and
often creates inhumane burdens on family members of
farmworkers.
Occupational safety and health administration (OSHA)-type
protections. The hard-fought battle leading to improved regulations in
field sanitation and other OSHA-type protections at agricultural work
sites, as well as pesticide protections for farmworkers, should not be
undermined by any new worker program. Instead, better enforcement of
existing standards must be emphasized.
Travel costs reimbursement. The system of reimbursements for travel
costs from a worker's home country cannot remain as it is in the
current H-2A program if even minimum mobility is granted to program
participants. The resolution of this dilemma could be found in new
mechanisms that might pool transportation contributions by employers
from a designated area and allow a third party to disburse the funds.
Performance and compliance bonds. A program's integrity demands
that accountability by all parties be reinforced by viable and
realistic compliance mechanisms. Bonding by individual employers or
employer groups--even by workers, under certain circumstances (see the
next discussion item)--can provide a disincentive for breaking the
rules associated with the employment of foreign workers while making
collecting fines easier.
There are a number of choices on what to bond--legal status,
duration of stay, certain terms and conditions of work, etc.
Essentially, bonding would become another ``tax'' threat--and,
therefore, an incentive for playing by the rules by all
parties.
Bonding by workers may also be considered. It may take the
form of withholding an amount of a foreign worker's wages and
depositing it in interest-bearing savings accounts accessible
only by the workers and only from the country of origin. These
accounts could be managed by a division of the Trust Fund
discussed earlier but should be held separately from employer
contributions. (An additional advantage of such withholdings
would be to reinforce the entire Trust Fund concept.)
Monitoring by foreign governments. Foreign governments whose
nationals participate in the program should have the right to work with
relevant U.S. Government agencies and civil society institutions as
``observers'' on issues of work standards and civil and human rights
complaints. The most efficient way for these governments to meet their
responsibilities in this regard might be through a specialized cadre of
``monitors'' attached to their consulates in the United States.
D. Enforcement issues
A credible and even-handed enforcement effort is essential to the
programmatic integrity and political viability of any contentious
experiment. It also creates both an incentive and an opportunity for
all parties to an agreement to become socialized into new norms and can
assist civil society institutions with an interest on an issue to
exercise due vigilance. For an enforcement policy to stand a chance to
succeed, however, it--and the rules it enforces--must work with, rather
than against the market. Hence the importance, once more, of balance.
Considering recent, and increasing, evidence of public distaste for
unacceptable conditions of work, getting the public more engaged on
this issue improves both the prospects for a fair-minded deal and for a
robust compliance effort. It may also be necessary to clarify here that
by ``compliance'' we need not understand relying exclusively on
governmental initiatives; instead, we should challenge ourselves to
draw into the compliance equation advocates of all types (including
legal services' representatives) and community-based organizations and
to consider reaching out to such infrequently used mechanisms as
audits, mediation/arbitration, and the like.
A never-before-seen commitment to labor and immigration law
enforcement in FVH agriculture must be part of any bargain. This may
require the formation of dedicated units both within the INS interior
enforcement infrastructure and the DOL Employment Standards
Administration (ESA) Wage and Hour Division and charge them with
enforcing the terms of any initiative.\28\
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\28\ There are only about 950 DOL Wage and Hour compliance officers
with ever expanding responsibilities. It is thus no surprising that
enforcement is lax across the board. Hence, a serious effort must be
made both to enhance DOL resources significantly and to target better
its enforcement efforts.
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Program leakage issues. Creating a ``fire-wall' between employment
in agriculture and employment in other sectors will need to be resolved
to the satisfaction of those concerned about unauthorized employment.
The use of special work authorizing picture identification cards and
vigorous enforcement would be essential elements of any such fire-wall.
Regulating the FLC's. The role of farm labor contractors (FLC's)
must be thoroughly re-examined and radically reformed. At a minimum,
any experimental program reforms--with or without FLC's \29\--must
guarantee that, in the eyes of the law, the grower, as well as the farm
labor contractor, is always the employer and thus the entity
responsible for labor and immigration law compliance.
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\29\ The system of FLC's is almost as old as the specialty crop
farms that emerged in California more than a century ago--when
bilingual FLC's acted as middlemen for Chinese workers in the seasonal
farm labor market. Gradually, FLC's assumed the responsibility for
arranging a succession of seasonal harvest jobs for workers, as well as
for worker housing, meals and transportation. Recently, they have also
expanded into the realm of border crossings.
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v. conclusion: what price are we willing to pay for a ``cheap food''
and international competitiveness policy in fvh agriculture?
At the end of the twentieth century, and in the midst of
unprecedented prosperity, discussions about changes to the seasonal
farmwork status quo may be even more complicated than they have been in
the past. Not only are the politics of the issue as byzantine as they
have ever been but they are complicated further by trade liberalization
and associated competitiveness issues and the not yet fully understood
changes that the new paradigm of regional integration is imposing
already. Furthermore, Republican/Democratic antagonisms, though
somewhat muted at the moment, will grow as presidential politics heat
up, while the ``war'' on illegal immigration can be expected to
continue to buffet the issue in all sorts of unpredictable ways.
Finally, the White House is distracted again--this time by the Balkan
war.
Yet, failure to take up the issue now will continue to condemn
hundreds of thousands of farmworkers to conditions that range from poor
to intolerable. Analysts can continue to report on how deplorable the
conditions are in the industry and propose elegant but often irrelevant
solutions. And advocates from both sides can continue to insist that an
opportunity to negotiate from a position of strength is just around the
corner. The ethical question, however, remains stark: what do we say to
the farmworkers in the meantime? And, if we are willing to join forces
and say that the status quo is no longer acceptable, what are some of
the critical elements that a new bargain might entail? Two are
critical.
First, it is unacceptable to have a significant portion of the U.S.
farm labor force in an unauthorized status. As a result, our policies
of controlling illegal immigration and of insisting--through thoughtful
regulation, tax incentives, and smart enforcement--on proper working
conditions for all farmworkers must reinforce each other. Those foreign
workers who are working in U.S. fields without rights must be given the
opportunity to regularize their status so that they can benefit from
the protections that should be afforded to all workers employed in the
United States. And any new foreign workers that may be required by the
industry in the future must be given the right to leave unacceptable
work situations without fear of reprisals, to choose whether they wish
to participate in initiatives to organize and bargain collectively (and
who it is that they want to have advocate on their behalf), and to
defend themselves against exploitation through legal means.
Second, if at the end of the experiment we are proposing here we
find that we have to open the immigration door to additional foreign
agricultural workers, we must think hard about which door we should
open and who should be allowed to come through it. Workers from Mexico
and the Caribbean Basin have a long history of work in U.S.
agriculture. They are part of mature migration streams. Providing such
workers with the opportunity to work legally in U.S. agriculture is
likely to rekindle interest in the cyclical migration that has been the
historical pattern and that the current border enforcement effort is
preventing. It is also likely to help form a more permanent,
professional cohort of cyclical migrants who could count on the
predictable employment and secure earnings that can support the further
economic development of the sending countries--the only long-term
solution to solving the problem of continuing large-scale illegal
immigration.\30\ Considering the special relationship the United States
has constructed with the region (consolidated through such economic
agreements as the Caribbean Basin Initiative and NAFTA) developing
additional mechanisms that can tie regional economic policy to
migration policy may be highly desirable.
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\30\ The resulting improvements in the wages and working conditions
of all agricultural workers is also likely to lead to improvements in
the life of rural U.S. communities.
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Farming, for many, may still be a way of life; primarily, however,
it is just a business. The status quo may or may not be sustainable;
but it is clearly perverse both on substance and politics. On
substance--on the merits, as it were--it condemns most farmworkers to
unacceptable conditions while also denying domestic workers the
prospects of making a living in agriculture. On politics, FVH
agriculture successfully deploys its political resources to meet its
needs for an adequate, cheap, and often undocumented labor supply
which, in turn, reduces the industry's interest in capitalizing more
aggressively and making the labor market adjustments that might attract
more domestic workers. The losers are always the same: all farmworkers.
Absent changes that address and resolve many of the issues
identified in this paper, we will not be able to test fairly the
propositions whether (a) given appropriate but reasonable incentives,
domestic workers will seek employment in and stay committed to
employment in the immigrant dominated sectors of the agricultural
industry and (b) conditions for farmworkers can indeed be improved
substantially even absent the presence of large numbers of U.S. workers
in the sector.
The critical element that separates agriculture from most other
low-wage/low-skill jobs is seasonality. Under the status quo,
seasonality translates into low annual earnings and guarantees that
workers who live year-round in the United States will remain in
poverty--even if they are the most diligent and motivated of workers.
Unless we, as a nation, are willing to establish proper working
conditions that include a commitment to making farmworker communities
viable and that ensure that farmworkers will be able to rely, every
year, on seasonal unemployment benefits, a large proportion of jobs in
perishable crop agriculture will not become attractive to U.S. workers.
There is never a good time to have a serious conversation on an
issue that has divided people for as long as farmwork has. If the issue
must be engaged, however, some times are better than others. This may
be such a time precisely because the conditions for farmworkers have
deteriorated so deeply and the growers are feeling uncertain enough
about their political power to be eager to commence a dialogue. The
decision whether to view the opening as an opportunity and join the
dialogue--and that dialogues' outcome--or simply choose to stand by the
sidelines will have consequences for those who work the fields, for
America's self-perception, and for America's ability to continue to vie
for moral leadership in the world.
Senator Abraham. Ms. Munoz, we welcome you here.
STATEMENT OF CECILIA MUNOZ
Ms. Munoz. Thank you, Mr. Chairman. As you know, I am
Cecilia Munoz, and I am Vice President for the Office of
Research Advocacy and Legislation at the National Council of La
Raza.
I am happy to see that all the Senators who testified today
have recognized the difficult conditions and situation in which
farm workers live and work today. All have acknowledged that
the status quo is unacceptable, which is a contention with
which we would heartily agree. We have, in fact, been anxious
to change the status quo with respect to farm workers for a
very long time.
If, in fact, we are ready to talk about changing the
situation in which farm workers live and work, we would be
eager to engage in that conversation, and we would like it to
start with the application of the same labor standards that
apply to other workers to those who work in agriculture.
But let's be clear. The proposed H-2A expansion of last
year would not have increased the protections afforded to
workers under the program. It would have eroded them, and
housing vouchers are one example. As several folks have already
pointed out, housing vouchers aren't worth very much where
there is no housing, and those are the individuals who end up
sleeping in the fields, sleeping in caves. And you can
understand our concern about a proposal where that would be the
result, and there are other similar erosions of the existing
protections under the H-2A program that were proposed last
year.
We are also concerned that last year there was a
legislative proposal, which we understand is about to be
reintroduced and cosponsors are being solicited for, which
would erode the labor protections for farm workers under the
Migrant and Seasonal Agricultural Worker Protection Act. So in
an environment when we are talking about reducing protections,
you may understand why we are not confident that this debate is
going to really lead to a change in the status quo in terms of
the wages and working conditions in which agricultural workers
labor.
We have already talked a little bit about the contention
that there are labor shortages in agriculture. Congressman
Berman has referred you to the GAO report. There is some
evidence as well, including a recent review of unemployment
data in California, that shows that the unemployment rate for
the 18 crop-producing counties in California is often double
the unemployment rate for the entire State. The average
unemployment rate for these counties is greater than the
statewide average by as many as 6.5 percentage points even in
peak harvest months.
Similarly, in Washington State, a State government report
revealed that there were twice as many workers as jobs in
agriculture. The State found 139,000 workers available to fill
67,000 jobs, and concluded that there was a plentiful supply of
workers at relatively low wage rates.
It has also been argued today that the presence of
undocumented workers, which is very real in the agricultural
sector, suggests that there is a labor shortage. I would
contend that the presence of undocumented workers--what it
really reflects is the use of farm labor contractors, which is
a system which has been expanding through which the growers
work through crew leaders and the crew leaders recruit, hire
and supervise farm workers. They insulate the growers from the
enforcement of immigration laws and labor laws.
These crew leaders compete for the lowest-price possible
workers, and therefore you are more likely to have undocumented
workers in that labor pool and they are more likely to get
exploited than other workers in this sector. So the presence of
undocumented workers is not by itself necessarily an indication
of a labor shortage, but it does indicate the increased use of
farm labor contractors, which again encourages abuse.
As Congressman Berman pointed out, and I would agree, an
expanded H-2A program does not necessarily do anything to
reduce the undocumented worker stream. The undocumented workers
who are here today are going to stay, and if history is our
guide, we know that the creation of additional migrant streams
means that those migrant streams continue whether or not there
is a program to encourage it. That is what the bracero program
did. That is how the existing migrant stream got created, even
though the bracero program hasn't been with us for a long time.
We believe the expansion of the H-2A program would lead to the
same result, which I don't believe is the result that is
intended.
I would like to talk a little bit about the working
conditions that we see in agriculture because, again, one would
expect that if there is indeed a shortage of labor, wages would
change. The simple law of economics would suggest that the
wages go up in a time of shortage of workers and that working
conditions shift.
In fact, the New York Times has documented that farm
workers' real wages during the last 20 years have decreased by
20 percent or more. Time magazine has reported that California
strawberry experienced a decline in real earnings from $9 per
hour 10 years ago to $6 per hour in 1996. In some crops, piece
rates have not increased in many, many years. We are talking
about a situation where there is a decline in wages rather than
an increase, which belies the notion that we have a labor
shortage.
In addition, we have perhaps the most serious crisis in
farm worker housing that many have seen in decades, and we are
particularly concerned about the potential erosion in the
requirements that housing be provided that was proposed in last
year's proposed H-2A expansion.
I want to conclude by pointing out, Mr. Chairman, that my
organization is not a farm worker organization. We are a Latino
civil rights organization. We are here in part because so many
farm workers are Latinos, but we are also here because our
larger community is very concerned, and indeed outraged by the
conditions in which many Latinos, particularly farm workers,
are expected to live and work.
I think it is safe to say that we are the only group of
Americans whose working conditions have either remained
stagnant or deteriorated in recent years, and we are the only
group of American workers who regularly have to fight over
issues like sanitation in our workplace and the equal
application of labor laws.
The agricultural industry has survived, and indeed thrived
because of what amounts to a subsidy in the form of government-
supported easy access to workers who are vulnerable and
exploitable. And this has translated into the preservation of
conditions which are simply intolerable in this day and age.
When you take this picture as a whole, it is easy to conclude,
as many Latinos do, that this debate is about greed.
We appreciate this opportunity to make these points today,
and I want to say as clearly as I can that any proposal which
undermines the already unacceptable conditions in which farm
workers live and work will not be tolerated by my community. It
is straight up, bottom line; it is something that we care very
deeply about. We are very eager to have a debate about changing
the status quo. We are concerned that this debate may not be
getting us there. If we are indeed prepared to sit at the table
and talk about wages and working conditions for farm workers,
we would be very eager to have that debate. But the proposals
that we have seen thus far--we haven't seen this year's
proposal, but based on what we have seen in recent years, we
don't have a lot of confidence that that is the direction that
the debate is going.
Thank you.
Senator Abraham. Thank you very much.
[The prepared statement of Ms. Munoz follows:]
Prepared Statement of Cecilia Munoz
i. introduction
My name is Cecilia Munoz. I am the vice-president for the Office of
Research, Advocacy and Legislation of the National Council of La Raza
(NCLR). NCLR is a private, nonprofit, nonpartisan organization
established in 1968 to reduce poverty and discrimination and improve
life opportunities for Hispanic Americans. NCLR is the largest
constituency-based national Hispanic organization, serving all Hispanic
nationality groups in all regions of the country through our network of
230 affiliate community-based groups and regional offices. NCLR has
supported fair and effective immigration and farmworker policies for
over two decades, and has ensured a fact-based Latino perspective on
the issue of immigration. NCLR approaches this issue as a civil rights
organization, with an interest in protecting the rights of our
constituency and promoting the values and principles of the nation as a
whole.
I appreciate the opportunity to submit this statement before the
Subcommittee today, especially when it concerns an issue that
ultimately will affect the lives of perhaps the single most
disadvantaged of all groups in the United States: the nation's
farmworkers. These hard-working Americans toil in the fields for meager
earnings and few benefits; they sustain multi-billion dollar
industries, and literally put food on our tables. Yet, they remain
largely invisible to the rest of the country. Under a century-old
system of labor, farmworkers continue to be inadequately protected by
federal laws and regulations, including worker protection standards
that all other workers take for granted.
We have heard today from representatives of the agricultural
industry which is again attempting to orchestrate the establishment of
additional special privileges for itself, proclaiming the same
unsubstantiated argument employed continuously since the mid-1800's:
that there are labor shortages. Whether it was Chinese immigrants in
the nineteenth century, the 4.5 million braceros brought in to toil in
the fields between 1942 and 1964, or ``guestworkers'' under the current
H-2A program, the agricultural industry has been dependent on foreign-
labor and has been relentless in maintaining this dependency. They have
spent the last decade soliciting Congressional support for a massive
expansion of the H-2A program, claiming that recent governmental
efforts to enhance border control and increase interior enforcement of
immigration laws will drain them of their labor force.
ii. proposed expansion of guestworker program
A. Overview
NCLR, like most Latino advocacy organizations, is concerned about
current proposals to ``reform'' or expand current guestworker programs
because the majority of farmworkers in the United States are Latino.
About 70 percent of farmworkers are foreign-born; 94 percent of these
are from Mexico.\1\ As of 1995, an estimated 63 percent held citizen or
lawful permanent resident status. Researchers estimate that there are
1.6 million migrant and seasonal farmworkers excluding livestock
workers in the nation. Half of these are in California, competing for a
shrinking number of jobs.\2\ When you include family members and other
dependents of farmworkers, the national farmworker community
compromises as much as 4.1 million Americans.
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\1\ U.S. Department of Labor, A Profile of U.S. Farm Workers:
Demographics, Household Composition, Income and Use of Services, Based
on Data from the National Agricultural Workers Survey (NAWS), April
1997.
\2\ U.S. Department of Labor, Migrant Farmworkers: Pursuing
Security in an Unstable Labor Market, Based on Data from the National
Agricultural Workers Survey (NAWS), 1994; Martin, Philip,
``California's Farm Labor Market and Immigration Reform,'' in Lowell,
Lindsey, ed., Temporary Migrants in the United States. U.S. Commission
on Immigration Reform, 1996.
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For several years, certain agricultural employer interests have
claimed that there is, or soon will be, a shortage of farmworkers
authorized to work by our nation's immigration laws. Recently, this cry
has reached a feverish pitch as agricultural employer groups have
lobbied in favor of an expanded temporary ``guestworker'' program. Such
programs were proposed in 1996 and 1998, and we expect yet another
proposal to be introduced shortly.
B. No agricultural labor shortage
The House of Representatives resoundingly defeated two agricultural
``guestworker'' amendments to the Illegal Immigration Reform and
Immigrant Responsibility Act in 1996.\3\ Consequently, Congress
requested that the Government Accounting Office (GAO) investigate
claims of an agricultural labor shortage; presumably to shed much
needed light on the notion and settle the argument.\4\
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\3\ Roll Call Vote No. 85 on amendment offered by Mr. Pombo,
Congressional Record, March 21, 1996; Roll Call Vote No. 86 on
amendment offered by Mr. Goodlatte, Congressional Record, March 21,
1996.
\4\ Amendment No. 3741 to S. 1664, Congressional Record, April 25,
1996; U.S. House of Representatives, Conference Report on the Illegal
Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996,
September 24, 1996.
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Contrary to the growers' claims in 1996, the GAO found that there
is, and will be ``in the foreseeable future'' a surplus of agricultural
labor in the United States. GAO found double-digit unemployment rates
in the 20 major crop-producing counties--which feed the migrant labor
stream. These counties--13 of which are in California--account for
about half of the total national value of production in fruits, tree
nuts, and vegetables. The GAO also found that farmworkers' real wages
have declined during the last decade, a fact that contradicts labor
shortage claims.\5\
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\5\ U.S. General Accounting Office, H-2A Agricultural Guestworker
Program, December 1997.
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Moreover, a review of unemployment data in California shows that
the unemployment rate for the 18 crop-producing counties in California
is often double the unemployment rate for the entire state [see chart
A]. The average unemployment rate for these counties is greater than
the statewide average by as many as 6.5 percentage points even in peak
harvest months.\6\
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\6\ State of California, Employment Development Department, Report
400C, 1987-1998.
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Further, a recent Washington State government report revealed that
there were twice as many workers as jobs in agriculture. The State
found 139,000 workers were available to fill 67,100 jobs in 1995 and
concluded that farmworkers average earnings are low because ``there is
normally a plentiful supply of workers at relatively low wage rates.''
\7\
---------------------------------------------------------------------------
\7\ Washington State Employment Security, Agricultural Work Force
in Washington State 1996, June 1997.
---------------------------------------------------------------------------
Some have pointed to the recent INS audits of produce warehouses in
Washington's Yakima valley as evidence that a new guestworker program
is needed to overcome a shortage of authorized workers. The INS action
resulted in the firing of 562 unauthorized workers. While NCLR is
concerned about the disruption these firings have had on the Latino
immigrant community, and about the potential for future hiring
discrimination against Latinos, this case does not prove that there is
a shortage of authorized workers. At the time, Yakima County had an
unemployment rate of 13.9 percent and there were 1,400 agricultural
workers receiving unemployment compensation--which requires
verification of legal immigration status. The State Employment Security
Department referred workers for all job listings submitted by the
produce warehouse within hours. The growers themselves said that there
was no shortage of applicants for job vacancies created the INS
audits.\8\
---------------------------------------------------------------------------
\8\ Smith, Rebecca ``Proposed Agricultural Guest Worker Program:
Issues & Concerns'' Columbia Legal Services, April 1999.
---------------------------------------------------------------------------
Given these statistics, the claims of a labor shortage can take
absurd dimensions. For instance, in September of 1998, the unemployment
rates in the four-county Fresno region were as much as twice the
statewide average, for a total of 99,200 unemployed legal U.S.
workers.\9\ At the same time, however, raisin growers in the area were
calling on then-Governor Wilson to deploy the National Guard, delay
school openings, and release prisoners to the fields to harvest grapes
because they could not find enough workers.\10\ The growers claimed
they were short by 80,000 workers, yet the grapes were harvested.
---------------------------------------------------------------------------
\9\ State of California, Employment Development Department, Report
400C, 1987-1998.
\10\ ``Growers Face Worker Shortage,'' San Francisco Chronicle,
September 11, 1998.
[GRAPHIC] [TIFF OMITTED] T5020.010
C. Recruitment of undocumented workers
The fact that a sizeable percentage of farmworkers is
undocumented--37 percent according to the Department of Labor and the
GAO--is not evidence that there is a shortage of authorized workers.
More likely, it is evidence that the hiring practices used by growers
have contributed to the size of the undocumented population in the
United States. Increasingly, growers have turned to farm labor
contractors (FLC's) or crewleaders to recruit, hire and supervise
farmworkers, rather than directly recruiting workers. As of 1995, fifty
percent of California's seasonal farm jobs were filled through
FLC's.\11\ Workers hired through crewleaders tend to experience lower
wage rates, more unemployment, and higher turnover. Such workers are
also more likely to be undocumented as the contractors compete for the
cheaper workforce. Many growers deny that they directly employ any
farmworkers and blame immigration and labor law violations on the
FLC's, who are hard to prosecute, because they frequently cannot afford
to pay a court judgment for the failure to pay wages or Social Security
contributions.
---------------------------------------------------------------------------
\11\ Martin, Philip and J. Edward Taylor, Merchants of Labor: Farm
Labor Contractors and Immigration Reform (The Urban Institute, 1995) at
15.
---------------------------------------------------------------------------
The guestworker program being proposed by the growers would do
nothing to decrease the number of undocumented workers in the United
States, nor would it regularize or stop unauthorized migration across
the nation's borders. To the contrary, it would likely increase the
size of the flow as new social and employment networks are established
across the United States and abroad. At the same time, workers entering
under such a program would suffer the most intolerable working
conditions not seen in this country since the demise of the Bracero
program.
D. A shortage of decent wages and working conditions
In 1992 the Commission on Agricultural Workers, appointed by
Congress, recommended that agricultural employers would better
stabilize the workforce by improving labor practices. The agricultural
interests requesting a new guestworker program have not followed these
recommendations. Despite their repeated predictions of imminent labor
shortages, these growers have not acted like an industry facing a labor
shortage by improving jobs offered to workers. Instead, we are dealing
with a century-old system of low-wage, high turnover jobs made possible
through the use of labor contractors to attract desperate and
exploitable undocumented workers.
This system has resulted in poor working conditions for all
farmworkers. Real wages, in recent years, have declined and the poverty
rate for farmworkers has escalated to well above one-half the
population.\12\ An ongoing study of migrant and seasonal farmworkers
commissioned by the Department of Labor found that ``median personal
incomes have remained between $5,000 and $7,500 since 1988, which means
that personal incomes, in inflated-adjusted dollars, likely fell during
this period.\13\
---------------------------------------------------------------------------
\12\ U.S. Department of Labor, A Profile of U.S. Farm Workers:
Demographics, Household Composition, Income and Use of Services, Based
on Data from the National Agricultural Workers Survey, April 1997.
\13\ Ibid.
---------------------------------------------------------------------------
The New York Times in 1997 reported economists' assessment that
farmworkers' real wages during the last twenty years have decreased by
20 percent or more.\14\ Time Magazine reported that California's
strawberry workers experienced a decline in real earnings from $9.00
per hour a decade ago to $6.00 per hour in 1996.\15\ In some crops,
piece rates have not increased in many years. The decline in the real
value of the federal minimum wage has also contributed to low
agricultural wages.
---------------------------------------------------------------------------
\14\ U.S. Surveys Find Farm Worker Pay Down for 20 Years,'' New
York Times, March 31, 1997.
\15\ Time, November 25, 1996.
---------------------------------------------------------------------------
Fruit and vegetable growers can afford to pay workers a living
wage. The value of production of such labor-intensive crops grew by 52
percent between 1986 and 1995, netting $15.1 billion. A doubling in the
value of exports of these products during the 1990's largely has fueled
this growth. Productivity has also increased.
At the same time, Americans spend a smaller proportion of their
income on food than consumers anywhere else in the world do. To
compare, Americans spend 9 percent, on average, on food eaten at home,
while the English spend 14 percent; the Japanese 20 percent; Indians 50
percent. The average American family spends only $400 per year--less
than $10 a week--on fresh fruits and vegetables.\16\ Still, growers
often say they cannot raise wages because Americans will not pay more
for their produce.
---------------------------------------------------------------------------
\16\ Rothenberg, Daniel, With These Hands: the Hidden World of
Migrant Farmworkers Today, Harcourt Brace & Company, 1998.
---------------------------------------------------------------------------
Growers currently have little incentive to pay higher wages. If a
grower decides to compete for available work-authorized farmworkers by
increasing the wage offer they may be undercut by competition by a less
scrupulous employer hiring undocumented workers. The lack of wage
standards enforcement gives a competitive edge to the employer who does
not comply with the laws. Currently, the growers are seeking to level
the playing field by lowering the standards for all employers, to the
detriment of the worker. It would be more appropriate, and better for
both the employer and the worker for Congress to improve standards and
provide for more equitable enforcement.
Farm labor is consistently rated among the top three most dangerous
jobs in the nation. The majority of farmworkers continue to be excluded
from many federal and state regulations affecting worker health and
safety. Our laws often discourage against farmworkers regarding child
labor laws, minimum wage, overtime, unemployment insurance, disability
coverage, or workers' compensation.
Workers often sleep in pesticide-laden fields or caves, along
riverbanks and in other unsafe and dangerous locations. They work under
substandard conditions, often with no access to toilets, handwashing
facilities, or fresh drinking water. Housing for farmworkers is
frequently non-existent or intolerably rundown and the wages are not
adequate to stimulate housing development.
Unfortunately, the living and working conditions of the nation's
farmworkers have not improved significantly since the early 1900's. A
report by the California Commission on Immigration and Housing
chronicled the brutal working and living conditions of migrant workers
in 1915, and its recommendations led to state regulation of farm labor
camps. In 1991, the San Jose Mercury News revealed that conditions in
some of California's labor camps have not improved. In Washington State
last year, the Yakima Herald-Republic published a series of articles
that examined the shortage of livable housing for Washington's
farmworkers. The reports found conditions in one housing camp to be
``worse than anyone had expected'' with over 300 health and safety code
violations.\17\
---------------------------------------------------------------------------
\17\ ``Plumbing's a Luxury Here'' Yakima Herald-Republic, April 19,
1998 and ``Housing Camp Shut Down'' Yakima Herald-Republic, April 23,
1998.
---------------------------------------------------------------------------
Agricultural work is exempted from labor standards that most
American workers take for granted. Nevertheless, the few protections
that exist for America's farmworkers are often violated because
enforcement of these minimal standards is severely lacking. In 1995,
the Department of Labor found violations in 63 percent of the 2,300
worksites surveyed. In 1998, 30 percent of California grape growers
were found to have violated farmworkers' minimum wage rights.\18\
---------------------------------------------------------------------------
\18\ Federal Survey of State Grape Industry Reveals Underpaid
Workers,'' Press Release, U.S. Department of Labor, September 15, 1998.
---------------------------------------------------------------------------
Budget reductions for the federal agencies responsible for
enforcing the minimal farm labor protections, including the Department
of Labor's Wage and Hour Division and the Occupational Safety and
Health Administration (OSHA), are likely to result in sporadic and
ineffectual enforcement. The watchdog role traditionally played by
legal service groups has also been eroded.
At the same time, the same growers asking Congress for an extended
guestworker program are requesting that Congress further degrade the
farmworker labor standards under the Migrant and Seasonal Agricultural
Worker Protection Act.\19\ While other industries are seeking to make
their jobs more attractive in order to recruit and retain a stable
workforce, these growers are seeking to make things worse, and
demanding that Congress provide the forced labor.
---------------------------------------------------------------------------
\19\ This effort was manifested in H.R. 2038 in the 105th Congress.
The American Farm Bureau recently announced that it intends to push for
passage of this legislation during the 106th Congress.
---------------------------------------------------------------------------
E. The current guestworker program
NCLR believes that the existing temporary foreign worker program,
known as ``H-2A'', is overly generous to the agricultural industry and
insufficiently protective of the rights of both U.S. and foreign
workers. Industry proposals to further ``deregulate'' the H-2A program
will inevitably and inexorably undermine wages and working conditions
for all of America's farmworkers. There is considerable evidence that
the H-2A program--which brings in about 25,000 Mexican and Jamaican
temporary workers each year--has been fraught with abuses. In its
December 1997 study, the GAO found that workers who enter under the H-
2A program are not receiving all of the protections required by the H-
2A law. The ``special requirements'' of the H-2A program, which the
growers decry, are there for a reason. These protections are intended
to ensure that nonimmigrant guestworkers are hired only to fill actual
labor shortages, that U.S. farmworkers' wages and working conditions
are not affected adversely, and that foreign workers are not
mistreated.
Nevertheless, the Department of Labor is acceding to growers'
demands by offering for instance, administrative reform and quicker
processing that will undermine some of the program's protections. The
current program has resulted in lower wages for farmworkers in America.
That is why the USDA's National Commission on Small Farms urged the
repeal of the H-2A program after hearing testimony that ``large farm
operators and agribusiness have unfair advantages `because employer
costs have been reduced by partial or total exclusion of agricultural
workers from coverage under key labor laws.' In addition, `the
authorized importation of foreign workers for agricultural work (H-2A
program), by adding workers to the pool of available labor, has helped
keep wages for agricultural workers * * * below what they would have
been without such interventions.' '' \20\
---------------------------------------------------------------------------
\20\ U.S. Department of Agriculture, A Time to Act, National
Commission on Small Farms, Washington, D.C.: January 1998.
---------------------------------------------------------------------------
The current H-2A program approves 99 percent of the applications
filed by agricultural employers despite the labor surplus. The H-2A
program was streamlined for employers in 1986 and has operated to their
advantage. The program is growing rapidly and spreading to new crops
and new states. In Georgia, for example, the Department of Labor
approved applications for more than 2,200 jobs in 1999, even in cases
where the grower failed to file the application on time.\21\ During the
previous year, Georgia received fewer than 200 H-2A workers.
---------------------------------------------------------------------------
\21\ Letter from Secretary Alexis Herman, U.S. Department of Labor,
to Senator Paul Coverdell, April 16, 1999.
---------------------------------------------------------------------------
Still not satisfied, growers are demanding that Congress ``reform''
the guestworker program to lower wages, reduce recruitment of U.S.
workers, eliminate the current program's housing obligations, authorize
wage and other employment practices that are currently illegal, and
reduce enforcement of labor standards. Guestworkers; are desirable
because they lack the right to switch jobs or to remain in the country
once their job ends. Guestworkers also lack economic or political power
to improve their conditions.
F. The growers' proposal
There is no valid justification for enacting a new guestworker
program. When one considers the proposal introduced last year, it
becomes clear that the future the growers envision for farmworkers
under such a program would be quite bleak. The guestworker legislation
introduced during the 105th Congress, erroneously entitled the
``Agricultural Job Opportunity Benefits and Security Act of 1998,'' is
rife with injustices. Among other things, it would:
Permit employers to exploit foreign workers and ignore
American laborers. The guestworker proposal eliminates
employers' obligations to privately recruit U.S. workers and
therefore enables them to give preference to cheaper foreign
labor. There is no justification for such a preference; large-
scale growers and processors can well afford to hire domestic
workers given the excellent economic outlook of the sector.
Reduce wages for farm workers, circumventing state and
federal minimum wage laws. It would only require employers to
pay the higher of either the local prevailing wage or a newly
defined adverse effect wage rate (5 percent above the
prevailing wage rate). Worse yet, employers themselves could
determine the ``prevailing wage'' or rely on state agencies'
determinations rather than those of the Department of Labor.
Certain types of abusive labor practices that are now illegal
would be legalized.
Provide an illusory offer of green cards. It would only
permit foreign nationals to apply for permanent visas after
completing four consecutive years of working in the program for
at least 6 months per year. Few farm workers would satisfy that
requirement due to the short nature of their jobs. In addition,
the guestworkers' desire to obtain continued employment would
render them vulnerable to unreasonable employer demands.
Finally, the provision relied upon the ``spill-down'' of
leftover visas from higher preference employment-based
immigration categories which are unlikely to materialize; it is
an illusory offer.
Relieve agricultural growers and labor contractors of the
obligation to provide housing and transportation. New
``allowances'' in the measure would place the burden on foreign
workers to find housing in unfamiliar communities. As a result,
some workers could end up homeless because their wages are too
low for them to afford housing and because there is also a
farmworker housing shortage. The legislation would also remove
the employer's obligation to reimburse workers for in-bound
travel costs at the half-season point and to pay the worker's
cost of going home upon completing the entire season.
Provide no minimum work guarantees unlike the current
program. Without such guarantees, guestworkers have no way to
estimate their potential earnings and employers could over-
recruit to secure a labor surplus, driving down wages.
Last year's proposal is too complex and lengthy to analyze here.
The extensive labor law aspects of the bill, combined with the
guestworker component, would provide employers with extraordinary
control over their workers and permit businesses to escape the economic
law of supply and demand. Moreover, the costs associated with this
program--including the impact on the local community--would be paid by
U.S. taxpayers. Meanwhile, Social Security and unemployment insurance
are not applicable to guestworker wages; essentially providing a tax-
break for the employers using this program.
In short, the growers' proposal is anti-immigrant, anti-worker and
anti-Latino.
iii. conclusions and recommendations
A. Conclusions
NCLR strongly opposes any attempt to expand temporary foreign
agricultural guestworker programs. NCLR opposes the effort to weaken
the existing H-2A program by changing the labor certification process,
which gives preference to the hiring U.S. farmworkers; by repealing the
requirements for housing, transportation reimbursement, and the minimum
work guarantee; by lowering wages required by the current law; and by
authorizing certain employment practices that are currently illegal.
More importantly, there are no convincing arguments to support the
growers' call for more temporary foreign agricultural workers. For far
too long, the United States government has granted select growers a
privilege to which few other industries are entitled. Rather than rely
on market methods for recruiting workers, including offering adequate
wages and favorable working conditions, growers have depended upon
Congress for assistance in obtaining a workforce. In fact, since the
inception of the H-2A program, users of the program have created their
own perpetual ``labor shortages'' by making farm labor jobs as
unattractive to U.S. workers as possible.*
---------------------------------------------------------------------------
* Recruitment of U.S. workers is often done with mixed messages.
While claiming a ``shortage'' of workers for the 1998 grape and raisin
harvest, certain growers representatives discouraged job seekers by
claiming that the jobs were too difficult for U.S. workers and that
they should not complain about the low wages being offered.
---------------------------------------------------------------------------
B. Recommendations
Rather than grant the agricultural industry increased access to
foreign labor, NCLR urges Congress and the Administration to consider
the following recommendations:
Effectively Enforce Existing Protections and Labor Laws: The
Department of Labor (DOL) must prevent persisting employer
abuses of the H-2A program, by enforcing existing protections
in the program, including the ``fifty percent rule,'' which
gives U.S. farmworkers preference over an H-2A worker. Growers
must also not be allowed to exploit foreign workers by
underpaying them or denying them crucial benefits. DOL also
must increase its vigilance over the H-2A program and resist
attempts to reduce alleged administrative burdens.
Provide Adequate Resources for Enforcement of Labor Laws:
The Administration should request, and Congress should provide,
sufficient funding to DOL's Wage and Hour Division and OSHA,
among others, to assure effective monitoring and enforcement of
labor standards for U.S. farmworkers and H-2A workers. Law
abiding employers that wish to compete for workers must be
protected from unfair competition by companies that violate the
law. Congress should also revisit the budget restrictions and
limitations on the Legal Services Corporation grantees that
have traditionally served farmworkers.
Improve Existing Recruitment Methods: The agricultural
industry must improve its current recruitment methods to
attract available, work-authorized U.S. workers, while
recognizing that recruitment only succeeds when the job offer
is decent. Surveys along the East Coast, where more growers are
using the H-2A program, have shown that U.S. farmworkers are
indeed available for work but need advance assistance with
transportation; which is rarely provided to U.S. farmworkers.
Growers also must assure that their written job advertisements
are placed in locations where U.S. farmworkers will hear or see
them. In addition, the Department of Labor's U.S. Employment
Service must improve its outreach efforts to match U.S.
farmworkers with available agricultural jobs, primarily since
less than five percent of all U.S. farmworkers use this system
to secure work. Further, failure of DOL's proposed AgNet or
other similar job registry systems to produce workers
immediately should not trigger automatic certification of
applications for guestworkers, as this system will probably
take several years to become effective. Employers and DOL
should improve coordination with labor unions and community-
based organizations that are ready and willing to promote
recruitment of U.S. farmworkers to meet the employers' needs.
Make Growers Who Use Farm Labor Contractors (FLC's)
Responsible for Treatment of Their Workers: Congress and
enforcement agencies must assure that growers do not circumvent
existing labor laws by increasingly relying on FLC's for
workers. Since the enactment of the Immigration Reform and
Control Act of 1986 (IRCA), growers have come to depend more
heavily upon FLC's to produce a workforce. Essentially,
contractors have become the ``risk buffers'' between growers
and their immigrant workers, and now perform the regulatory
duty imposed by IRCA on all employers. Furthermore, evidence
has shown that workers hired by FLC's are more susceptible to
exploitation in the form of lower wages, reduced benefits,
lower retention rates, and inferior working conditions.
Please take these recommendations into account as you proceed with
your consideration of these issues. The Subcommittee should recognize
that the past is prologue--previous implementations of the growers'
attempts to bring in foreign workers as ``guestworkers'' have not been
effective in controlling undocumented immigration. In fact, immigration
experts believe that the Bracero program--which supporters also claimed
would end unlawful migration--established the networks by which
unauthorized migrant workers continue to enter and work in the United
States today.
The guestworker issue brings together a remarkably broad array of
interests. Every blue ribbon panel that has ever studied the issue,
from the Hesburgh Commission to the Jordan Commission has rejected the
idea of an expanded guestworker program. The Latino community is united
in opposing the growers' efforts. Defeat of the growers' proposal is a
top priority for the National Council of La Raza. It is not often that
such a consensus exists among both immigrant advocates and immigration
restrictionists. Congress should follow this consensus and reject this
proposal as unnecessary, dangerous and counterproductive.
Again, thank you Mr. Chairman and the Subcommittee for considering
our views on this issue.
iv. selected references
H-2A Agricultural Guestworker Program: Changes Could Improve
Services to Employers and Better Protect Workers, General Accounting
Office, Washington, D.C.: December 1997.
Rothenberg, Daniel. With These Hands: the Hidden World of Migrant
Farmworkers Today, New York, New York: Harcourt Brace & Company, 1998.
Schacht, M.S. et al. The 1998 Central Valley Raisin Harvest: a Case
Study of the Availability of Farmworkers During the Alleged Labor
Shortage in the Four County Fresno Area. California Rural Legal
Assistance Foundation, Sacramento, California: April 1999.
Testimony on Proposed ``Guestworker'' Programs, presented by Raul
Yzaguirre, National Council of La Raza, before the Subcommittee on
Immigration and Claims, Committee on the Judiciary, U.S. House of
Representatives, Washington, D.C., December 7, 1995.
Testimony on Temporary Agricultural Work Visa Programs, presented
by Bruce Goldstein, Farmworker Justice Fund, before the Subcommittee on
Immigration and Claims, Judiciary Committee, U.S. House of
Representatives, Washington, D.C., September 24, 1997.
Testimony on the H-2A Program and its Impact on Agriculture,
presented by Raul Yzaguirre, National Council of La Raza, before the
Committee on Agriculture and Subcommittee on Immigration and Claims,
U.S. House of Representatives, Washington, D.C., December 14, 1995.
Senator Abraham. Ms. Huerta, welcome.
STATEMENT OF DOLORES C. HUERTA
Ms. Huerta. Thank you very much for the hearing. My name is
Dolores Huerta. I am the co-founder and the Secretary-Treasurer
of the United Farm Workers. The United Farm Workers represents
workers in California, Arizona, Washington State, Texas and
Florida. We also work very closely with the other farm worker
organizations, Pacun, which is in the State of Oregon, and
FLOC, which is in the Midwest in the United States.
We have offices in all of the areas that I have spoken
about. In the San Joaquin Valley alone, which is the largest
producing area of the United States, vegetable-producing area,
we have five offices in that area. You know, it makes me feel
kind of good to be able to come here. I have been testifying in
the Congress since the 1960's, you know, for the last 30-some
years, and always talking about the terrible conditions of farm
workers.
Senator Kennedy has personally been out there to see the
conditions of farm workers, and here we are 30 years later and
we are still talking about the same things. But it makes me
feel really good to be able to come here to say that there are
solutions and to say that our United Farm Workers union has
been able to solve some of these problems.
We have 27,000 farm workers under United Farm Worker
contracts with agricultural employers, where farm workers have
a full medical plan, which by the way is named after Robert
Kennedy, who was a Senator in this House. We have a pension
plan named after Juan de la Cruz, one of our farm worker
martyrs who was killed in a grape strike in 1973.
We will be giving out $1,000 checks in the next 2 weeks to
farm workers who have retired, who are given a pension check as
a result of our collective bargaining agreements. And this
makes us feel very good. In addition, we have also, through our
non-profit arm, the National Farm Workers Service Center, been
able to build housing for farm workers. We have built over
1,600 family units. Now, these are not barracks and they are
not for single men; they are for families. We are now going
into housing programs in Arizona and in Florida. And these, by
the way, are all done through tax credits and working with the
local municipalities. So, that makes us feel very good.
Also, where we do have our union contracts, we have very
long waiting lists of farm workers that are waiting to go to
work at our contracts because they are getting, number one, a
livable wage. I think we have to talk about a livable wage,
that farm workers need to be able to feed their families, to
pay their rent.
By the way, Senator Feinstein, the rents in Watsonville for
farm workers are as high as they are in San Francisco. That is
how much they have to pay. Yet, at the same time, as was noted
earlier, the wages of strawberry workers have fallen like 23
percent.
So it makes us feel very good that we are able to do this.
And there is no bureaucracy here. The taxpayers don't have to
support it. Our union contracts are only 30 pages long. It is
not hundreds of pages. None of the employers that we have
contracts with have any kind of a labor shortage. We have, as I
say, long waiting lists of people that want to go to work, and
we have been able to partner with some of the employers so that
we can actually make the productivity better, the efficiency
better.
In fact, one of the companies that we have a contract with
which is based out of Medford, OR, Bear Creek Productions--this
is a company that has 1,500 workers. We signed a contract with
them 4 years ago, and with all of the improvements in wages and
medical plans and pension plans, paid holidays, paid
vacations--even Cesar Chavez Day is a paid holiday--that
company for the first time made $1.5 million in profit in 12
years.
So this is, I guess, what I want to say to the employer
community that they have to kind of have a change--the attitude
of the employers has got to be reformed. We have heard
testimony today about Florida. We had a lock-out in Florida of
250 farm workers who protested because they were getting
injured on the job. We recently negotiated an agreement with
that company.
In Washington State, the apple campaign that we were doing
together with the Teamsters Union met with a lot of hostility
and resistance, so that the conditions of the apple workers in
Washington State have not been improved. Pacun, in Oregon, has
had a lot of resistance there in terms of unionization. There
were many hundreds of farm workers that went on strike in
Florida because they were not getting paid even the minimum
wage.
There were investigations in California. Over 70 percent of
the employers and labor contractors were found to be in
violation of the labor laws, including the minimum wage laws.
And this is California, where we have organization, where
everything is supposed to be so much better than anywhere else.
In terms of the sanitation, one of the strawberry companies,
Driscoll Associates, did an internal audit and found all types
of violations in terms of the sanitary conditions.
So, you know, how can we talk about bringing in guest
workers for employers where they don't even want to improve the
conditions for the workers that they now have? There is no
shortage of farm workers. We are in every single one of these
areas. There are lots of unemployed farm workers. The registry
that you are talking about, we see that as a blacklist.
What we would recommend, I will go through this real fast,
and this was the recommendation of the agricultural commission
that I was on. We did hearings for 2 years and it came out of
the whole commission, including the agricultural employers that
were on that commission. We recommended that we enhance and
develop farm labor services offices throughout the United
States of America so that farm workers will have someplace
where they can go to find a job. And employers should go to
those farm labor services to look for workers, which they have
testified that they do not do.
Farm workers have to go through labor contractors. They are
exploited. They have to pay $5 to $10 a day for a ride to go to
work. They have to buy the labor contractor's food, their
beverages. They end up with not any money at all.
The Worker Investment Act that is now going into effect
should be used to develop the farm worker force. Instead of
taking farm workers out of agriculture, like we have been doing
with the JTPA programs, let's put that money back into the farm
worker community to help those farm workers stay in farm work.
The farm workers that are getting pension checks worked their
entire lives in farm work. Our members consider farm work their
life's work. They want to stay in farm work. They don't want to
be pushed out.
The U.S. Department of Transportation and Secretary Slater
has a new program called Job Access. Let's make that available
to farm workers so that they can get transportation to go to
work and to have to go through the labor contractors.
Also, of course, the discriminatory against farm workers,
as was mentioned earlier, should definitely be removed. The
Farm Bureau Federation and many of the people here at the table
on the growers' side oppose all of these types of improvements
in the lives of farm workers. You know, we can't go on like
this.
I mentioned the registry. I think that that would be a
blacklist. People should go to the local employment office.
That is where they should register for work. We do support the
RAW program that Howard Berman was talking about, but it should
not be any kind of anything in the future. It has got to be
retroactive. If you say to farm workers, you can get amnesty,
but you have got to stay with this employer for 3 years, you
are talking about legalized slavery here just because they will
be under that employer's--right now, farm workers are very
afraid of job security. If a farm worker asks who am I working
for, if he is working for a labor contractor, he can get fired
just asking a question.
I mean, the biggest thing that the union offers is a
seniority clause, that they have that job even after the
season. They can come back to work at that particular employer.
They have job security. This is something they do not have
without a union contract.
One other thing I want to mention is the whole H-2A
program. This is totally discriminatory against women farm
workers. The H-2A program is strictly for single men, strictly
for single men. It does not apply to families and it does not
apply to women. The type of housing that people are talking
about building, again, is barracks. Farm workers are not
soldiers. These are people who have families. They do not need
to live in barracks. They need to have family housing where
they can be there with their families.
So, first of all, there is no worker shortage, there is no
worker shortage. As Cecilia said earlier, the labor contractors
will continue to bring workers in so they can exploit them, so
they can steal from them. And the other thing, too, is that we
lose a lot of revenues. Labor contractors do not pay
unemployment insurance. They do not pay disability insurance in
California. They do not pay income tax withholding, you know,
so we are losing a lot of revenue.
But this doesn't have to be. The only reason we have all of
these problems is because the employers refuse to deal with
their farm workers directly. They want to abandon them, turn
them over to farm labor contractors, and hope that the
Government can continue to supply them with cheap labor.
Senator Abraham. All right.
Ms. Huerta. I just want to--this is a very in-depth study
about farm workers that were out of work during the peak
harvest seasons. Please look at this very carefully. This is a
very careful study that proves that there is more than an
abundance of farm workers.
We had 14,000 farm workers, as Senator Feinstein knows,
unemployed in Tulare County, 14,000 farm workers that will be
employed up until June or July. If they need workers in
Michigan, I think California is a better place to go to than to
go to Oaxaca, Mexico.
Senator Abraham. Ms. Huerta, thank you. We will put the
report in the record; we will submit it with your testimony.
[The report referred to follows:]
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[The prepared statement of Ms. Huerta follows:]
Prepared Statement of Dolores Huerta
The United Farm Workers has offices in California, Arizona,
Washington State, Texas and Florida, the major states that produce
fruits and vegetables for the World. In California, which produces over
50 percent of the fruits and vegetables and which hires the largest
number of farm workers between 400 to 600,000 we have offices in every
major agricultural area, the Imperial Valley, Riverside County, the
South, Central and North Coasts. In the San Joaquin valley which is the
largest agricultural area, we have five offices.
collective bargaining agreements
Currently, we have collective bargaining agreements with
agricultural employers covering 27,000 workers in California,
Washington State and Florida. These contracts give workers job security
with a livable wage, decent working conditions, medical and pension
benefits. (The medical plan is named for a former member of this Senate
Body, the Robert F. Kennedy Medical Plan). (In these next few weeks,
the Juan de La Cruz joint Employer--Employee Pension plan, will be
distributing checks of $1,000 to each of our farm worker pensioners, an
extra check in addition to their monthly retirement check.)
With these agricultural employers, we have established a successful
``partnership model'' to make the work more efficient, productive and
profitable. Bear Creek, a Rose grower in the San Joaquin Valley hires
over 1,500 workers at peak. There are long waiting lists of workers
that want to work at these ranches.
farm labor contractors, violations of labor laws
Unfortunately, in other areas, the employers are not connected with
the farm worker community except at the work site. Testimony by
Agricultural employers during the two years of hearings held by the
Congressionally appointed Commission for Agricultural Workers, on which
I served as one of the Commissioners, testified that they do not use
the farm placement service to recruit workers. In fact, the tendency to
force workers to go through labor contractors to get their jobs has
increased. By using labor contractors, employers no longer have any
responsibility for the well being of their work force or the
enforcement of labor laws. Investigations by the Department of Labor in
Fresno County indicated that over 70 percent of employers were in
violation of California labor laws.
field sanitation
An internal audit by the Driscoll Strawberry Associates in
California, found numerous violations of the sanitation laws where
field toilets had no water, soap, paper towels and some were so filthy
the workers could not sit on the toilet seats.
OSHA investigations by the State of California found widespread
violations of the sanitation laws by agricultural employees and only
.003 percent of the growers have been checked 300 out of 17,000. At
that rate it would take almost 300 years to check them all once. With
the recent outbreaks of food contamination, this should be a major
concern, not only for the health of farm workers but also for the
health of consumers.
But the labor laws and sanitation are not the only laws that are
violated. Contributions are not made to Social Security, Unemployment
Insurance or workers Compensation (in those states that have full
coverage for farm workers) or income tax withholding.
farm workers unemployment
All of the rural farm worker areas throughout the country show
double digit unemployment. The employers do not recruit or develop
their worker base right in the areas where the work exists. Workers do
not know where the jobs are located. To get a job, farm workers have to
face gross exploitation having to pay for transportation $5 to $10 per
day, buy food and beverages from the person who transports them. If
they complain about any ill treatment, they will be stranded without
transportation to work.
Enclosed is a paper by the California Rural Legal assistance that
shows the Unemployment figures in California rural counties which range
from 11 percent in Fresno County to 13.5 in Tulare County, both
counties are in the San Joaquin Valley, figures are prior to the
freeze.
In December of 1998 in California, we had a major freeze that left
14,000 farm workers unemployed. These citrus workers will still be
unemployed into this summer as the navel orange crop was also damaged.
Working together with the Secretaries of Agriculture in California and
Washington, Citrus Mutual which represents the employers, Department of
Labor and California agencies working together with the citrus
employers to bring assistance to these workers. The California
legislature passed an unemployment relief bill that made it possible
for workers to earn up to $200 per week and still collect unemployment
insurance benefits, as the employer needed their labor one or two days
a week to clean the trees and fields.
farmwork wages
Real wages of farm workers have dropped, especially in California,
while profit for agricultural employers have continued to climb. Making
it easier for agricultural employers to bring in foreign labor without
improving the wages and conditions will further deteriorate the lives
for domestic farm workers. That our farm worker population is still
living under the harshest poverty in the richest country on earth is
unconscionable. There is no possible excuse to justify the horrible
working and living conditions of farm workers today. The improvements
that have been made have been under unionization or the pressure of
unionization.
Employers have fought against improving the lives of farm workers,
often using violence. Our union recently won an injunction against the
Western Growers Association and other strawberry growers who
orchestrated and formed an organization to fight unionization. This
group physically assaulted pro-union farm workers in the fields while
they were working.
I believe that the push for changing the recruitment and other
protections in the current H2-A foreign worker agricultural program is
to stop the unionization of farm workers and hereby stop further
improvements in their working and living conditions, and is not in any
way related to worker shortages. Employers on the west coast which have
the largest number of workers in the Country have not suffered labor
shortages. In Washington State where large numbers of undocumented
workers were deported, the press reported that those workers were
replaced and no shortages reported.
Agricultural employers in other parts of the United States where
the work force is still unorganized should at least comply with the
recruitment provisions, provide decent housing and prevailing wages
before they are allowed to import foreign workers.
recommendations to develop the domestic labor force
The Agribusiness community has not responded to the recommendations
of the Agricultural Commission which recommended full unemployment
insurance for workers, workers compensation, and collective bargaining
and encouraged workers to develop their local labor force using the
services of the Employment offices through out the country.
1. The U.S. Department of Transportation's Job Access program
should be implemented to provide transportation for farm
workers to the jobs and these should be made public so workers
can find the jobs.
2. The Worker Investment Act should be utilized to develop
the farm labor force in the local areas.
3. Farm Labor Divisions of the Employment Services should be
developed to make the agricultural jobs public and accessible
to the work force.
4. Discriminatory laws that now exclude farm workers from
social and labor legislation should be amended, such as Fair
Labor Standards, etc.
5. Employers should allow their workers to organize into
bona-fide unions.
All of the above need the cooperation of the Agricultural Employer
community. Employers need to recruit and develop the local labor force
before any laws are changed to allow them to import foreign workers. If
they want to keep their undocumented workers that they have previously
recruited they should be given full amnesty for the time they have
worked, not a future promise of amnesty which would further enslave the
workers.
Senator Abraham. Mr. Cunha, we welcome you and appreciate
your being here today as well.
STATEMENT OF MANUEL CUNHA, JR.
Mr. Cunha. Thank you very much, Mr. Chairman.
Senator Feinstein, I have worked a long time with you on
many issues and I appreciate you being here, and your comments
earlier today were very important to our industry in California
and the Nation.
I am going to read a part of my statement, then I am going
to go right into the issue that I think the Senator brought up,
and that is welfare. I have a tendency sometimes to--rather
than reading a statement, I would rather probably bring you
some real hard points that we did in 1997 and 1998.
I am Manuel Cunha, President of the Nisei Farmers League,
and a member of the Board of Directors of the National Council
of Ag Employers here in Washington. I appreciate the
opportunity to testify before this subcommittee regarding the
difficulty my members have obtaining a legal workforce in
California.
The Nisei Farmers League is an organization which was
founded in 1970 by Japanese Americans, Nisei, second
generation--many of those folks returned from location camps in
a period of time--to assist small family farmers with
regulations and requirements of the government agencies that
are imposed upon our farming industry today.
The primary function of the League is to ensure that its
membership has an adequate, legal, qualified workforce, and
also makes certain that our membership is supplied with the
accurate information necessary to conduct business in today's
society, and the laws that confront our growers across the
country. My average acreage is 64 acres for my growers.
I am a grower of citrus. I have gone through three bad
years, in the 1990 freeze which devastated--we had zero-degree
temperatures in California. In 1995, I was back here working on
an air quality issue and we had one-inch hail that impounded
most of the San Joaquin Valley, in which I lost all of my
citrus. And just recently, we had again another freeze in the
1998 year. So it has been quite an interesting year as a
grower. But, again, my average grower's age is 88 years old, as
far as Japanese Americans that are in my organization.
I would like to get right into the issue of what the Nisei
Farmers League and Valley agriculture did in 1997. Meeting with
our congressional delegates, with Senators Feinstein and Boxer
and other folks back here, you adopted a regulation on welfare
reform in 1996 to deal with welfare. Our congressional people
told us to try to see what we could do to use that mechanism of
labor and type of activities that it could offer our industry.
So in 1997, we met in March with the eight county welfare
directors, the employment development directors, and all of the
ag groups that are involved in the San Joaquin Valley, as well
as the State farm bureau. We had a meeting for a full day to
talk about how can we use welfare reform, and put together
several committees and had a strategy plan. So we worked all
summer in 1997 and came up with a summit idea in August-
September of 1997 to put together a State summit headed in
Fresno, hosted by agriculture, the eight county welfare
directors, the eight county employment development directors,
and the State director and legislators, and all parties with
even junior colleges to address many issues. The summit came
off very well.
On December 5, we held a summit in Fresno. 350 people
attended from all over, including as our guest speaker Deputy
Secretary Richard Rominger, and some economists from outside of
California attended the summit. That summit left that day with
people going into work groups in the morning, coming up with
ideas on how to deal with welfare reform in our industry, as
well as in other industries.
The people left that afternoon with a document that gave
strategy ideas of how to deal with health care, child care, how
to deal with transportation, how to deal with training, how to
deal with seasonal issues that our industry faces as an
industry.
In our industry, in the San Joaquin Valley, we use a
workforce of approximately 231,000 seasonal workers between
July and the end of October, the largest single workforce in
those eight counties--that is astronomical--to a total of 1.9
million in the United States, seasonal workers. So from that
summit, we put a meeting together with subgroups in 1998 to
actually start implementing the ideas that everybody came out
of these groups with, points of how to deal with health care,
transportation, child care.
The welfare department asked us to put together a thing
called a crop calendar, which listed all of the 75 most
intensive crops out of our 300 that are grown in the San
Joaquin Valley, so that they could have that as a mechanism to
show those people that are on welfare, as well as the
employment department, of how we could move labor between our
industries. So we did that, and from that crop calendar then we
went ahead and started doing advertisement, with these welfare
offices sending out flyers, doing news media through Radio
Bilingual, the other non-bilingual stations that are in the
Valley, so that employers as well as farm workers would be able
to know where to go to get jobs.
And it was through the welfare office that sent out
notices--as an example, Fresno County, 37,000 people on
welfare; they sent out 560 letters in the month of August to
recruit workers for us. They had a response of three. Of the
three workers, none showed up.
The employment development department at the same time was
going out trying to get workers. As a matter of fact, they went
into two other counties, into Monterey and Salinas, to see what
available workers were from the unemployment rolls. Our
unemployment rolls at that same time, in September, was 44,000
unemployed in Fresno County.
From those results, we did have a massive amount of
shortages for various commodities. For the first time in the
history of the raisin industry--our last raisins were put down
on October 15th. The crop insurance overlapped--and I am out of
time and I apologize for that, but we tried these various
things.
There is a document here, Mr. Chairman, that I have. It is
a book that gives all the information. Also, the letters that
Senator Feinstein has been very supportive in us getting and
working and seeing that we can try to do things innovatively,
and try to reach out. And we did, and welfare did send in
letters from the eight county directors stating that they could
not train farm workers in agriculture because of the
seasonality issue; that their goal from the 1996 Welfare Reform
Act was to deal with full-time training. In Fresno County,
19,000 out of the 37,000 are single moms. The infrastructure is
not there to even deal with the single moms.
I will stop there, and I apologize for going on, but we did
do welfare. We put a lot of effort, and we went to the
unemployment office and we all worked together. And this wasn't
a facade of doing something. We actually tried to figure out
how can we get workers longer. My size of a grower cannot hire
workers full-time; he can't afford it. The average raisin
grower has 37.9 acres. We have 5,400 of them. We grow 99
percent of the raisins in the United States.
That grower cannot keep workers full-time. They work maybe
9 days, at the maximum, harvesting and pruning. A contractor
becomes a valuable tool because they can be moved from point A
to point B and have a longer time of employment, maybe 9
months. Good contractors is an important issue, yes. Bad
contractors we need to get rid of, but we did try these things
for a full year-and-a-half. The welfare agencies were very
honest. They tried hard. The unemployment offices tried very
hard to do this.
Again, thank you very much, Mr. Chairman. I appreciate the
opportunity.
[The prepared statement of Mr. Cunha follows:]
Prepared Statement of Manuel Cunha, Jr.
Mr. Chairman and Members of the Subcommittee: My name is Manuel
Cunha, Jr., President of the Nisei Farmers League. I appreciate the
opportunity to testify before the Subcommittee regarding the difficulty
the members of our organization and others in California have had in
obtaining an adequate legal workforce. The Nisei Farmers League is an
organization that was formed in the early 1970's to assist its numerous
small family farmers with the regulations and requirements of the many
government agencies. The League represents the interests of
approximately 1,000 various agricultural interests throughout Central
California's San Joaquin Valley and Monterey County. The primary
function of the League is to ensure that its membership has an
adequate, legal and qualified workforce and also to make certain that
its membership is supplied with accurate information necessary to
conduct business within the confines of the law.
Periodically, throughout the course of each year, the League
sponsors seminars for its members and guest speakers are invited from
the governmental regulatory agencies to provide information to League
members regarding legal compliance. Typical guest speakers include the
State Labor Commissioner, the U.S. Department of Labor, Cal/OSHA,
Employment Development Department (EDD), representatives from the
Social Security Administration (SSA) and the Immigration and
Naturalization Service (INS).
The California agricultural industry, of which the Nisei Farmers
League is a part, annually generates $24.5 billion in gross farm
revenue of which, the San Joaquin Valley contributes nearly $13.9
billion. Our Valley's labor demand in the peak of harvest reaches
approximately 231,000 seasonal workers. As you can see, we generate a
great deal of revenue and we require a large work force to make our
harvest possible. To put the State's labor requirement in perspective,
California's total agricultural labor demand is 540,000 seasonal
workers, which represents about 25 percent of the field labor needs of
the entire United States.
I would like to take this opportunity to inform the Subcommittee of
the critical labor situation that is facing the agricultural industry
throughout California. Locating an adequate and available labor force
has become increasingly difficult and farmers are concerned that their
crops may not be harvested on time. The Central San Joaquin Valley in
California is the richest producing farmland in the World. The majority
of the produce grown there is delicate and highly perishable and access
to a legal, qualified and accessible workforce is imperative to its
timely production and harvest.
Recently, Nisei members have experienced declines in available
labor, and have become increasingly aware that the current labor force
is dwindling and that many of those working in agriculture are not
properly documented according to the INS and the Social Security
Administration (SSA). Many of the local Valley agricultural
associations reacted to this problem by seeking a variety of ways to
obtain a legal workforce. One of the ways has been to support
legislative reform the current H-2A program intended to provide legal
seasonal alien farmworkers. I understand that other witnesses will be
focusing on the need to reform that program and I am not going to focus
on that issue.
The Nisei Farmers League took the lead in California in getting a
number of California agricultural groups to attempt to meet
agriculture's labor needs by working with state employment development
and welfare officials after the enactment of the 1996 welfare reform
legislation. We were encouraged by a number of our congressional
representatives to undertake such an effort to see if we could attract
persons leaving public assistance to work in agriculture. We did so by
reorganizing a group that was established several years ago called the
Ag Labor Network (Network) that was previously used to develop a
workable solution to farm labor shortages during peak harvest seasons
in the San Joaquin Valley. Organizations participating in the Network
include the Nisei Farmers League and several other agriculture groups
from throughout California whose combined memberships represent over
10,000 farmers who rely heavily upon agricultural labor for the
production and harvest of a wide range of specialty crops. The members
of the Network believe that the demand for agricultural labor will
continue to remain high while the supply of a readily available labor
pool tightens.
On March 26, 1997, the members of the Ag Labor Network held a
meeting to discuss using the then recently enacted welfare reform
legislation as a means of addressing the agricultural labor situation.
This meeting consisted of leaders from nearly every agricultural group
in the central San Joaquin Valley, legislators and their
representatives, and Directors from the Departments of Social Services
and Employment Development from the eight counties in the San Joaquin
Valley. Many issues relating to agricultural labor were discussed and
at the close of the meeting, sub-committees were formed to address
education, worker training, flow of labor, and interagency
coordination. The sub-committees met and their results attracted the
attention of our elected officials, the media, and the community.
In December of 1997, the Network organized a summit meeting to use
welfare reform to meet agriculture's labor needs, in conjunction with
the Directors from each of the eight county Social Services and
Employment Development Departments. With support from the Director of
the California Department of Social Services, the Secretary of the
California Department of Food and Agriculture and many key legislative
officials, the summit meeting took place with the goal of devising a
feasible plan that would provide agricultural and non-agricultural
employment to those individuals who were leaving public assistance.
The CAL/Work Summit provided an opportunity for industry/non-
industry people, welfare recipients, general public and representatives
from the government agencies to interact and discuss the strengths and
weaknesses of the current processes for obtaining labor through
government channels. Discussion items were predetermined and the topics
that were discussed included: (1) Education/Diversified Job Training/
Worker's Compensation; (2) Welfare Reform Issues; (3) Coordination/Flow
of Labor/Use of Labor Contractors/ Standard Labor Practices; and (4)
Demand for Labor and Unemployment. Sub-topics in each of these
categories included; childcare, transportation and length of
employment. These topics were selected after being identified as
fundamental ingredients in obtaining, training, educating, and
transporting a supposedly available yet inexperienced labor force.
The effort was successful in aligning the local Social Services
Departments and the Employment Development Departments to work with
agriculture in devising a plan to attempt to meet agriculture's labor
needs. A ``Request for Labor'' process was established by agriculture
and the agencies prior to peak harvest season. The ``Request for
Labor'' process was the means the county agencies developed to attempt
to fill agriculture's labor needs with persons on public assistance.
Early in the Spring of 1998, the State of California, Director of
the Department of Social Services requested additional information that
would help the agency understand the labor needs of the agriculture
industry. Through contact with each of the Valley's County Agricultural
Commissioners and EDD Directors, the Nisei Farmers League was able to
obtain the information necessary to create a document that would
reliably illustrate the requirements of the entire San Joaquin Valley
harvest industry. The Network developed a commodity specific calendar
(dealing with 75 of the highest labor-intensive crops of the 300 crops
grown in the San Joaquin Valley) that outlined the labor requirements
on a county by county basis. The finished document not only illustrated
commodity specific harvest labor demands in agriculture, it also linked
commodity group harvest seasons with different commodity harvest
seasons. This association made it possible to provide longer-term
employment through the use of ``licensed'' farm labor contractors and
growers.
Throughout July and August of 1998, many of the County Departments
of Social Services and Employment Development Departments began an
advertising campaign to announce available jobs within the agriculture
industry. Job opportunities were announced over the radio on primarily
Spanish-speaking/bilingual stations and also on television stations
with similar formats. Furthermore, the Fresno office of the Department
of Social Services mailed approximately 560 letters announcing
agricultural employment opportunities to individuals with previous
experience in agricultural work. The Department received a total of 3
responses to the notification. Similar responses were experienced by
growers who submitted ``Labor Requests'' through the Employment
Development Department.
In 1998, the El Nino weather conditions affected much of the
nation's agriculture. Agricultural harvest seasons were prolonged due
to cooler weather conditions early in the season. Neighboring states
were experiencing similar labor conditions and agricultural field labor
became scarce in the central San Joaquin Valley. Many employers,
desperate for labor, attempted to utilize the ``Request for Labor''
process, but neither the Social Services Department or the Employment
Development Department could fulfill a fraction of the required
laborers.
In September of 1998, the Nisei Farmers League conducted a labor
survey of its membership to see if the shortage was as extensive as we
were being told. The results of the survey confirmed what we had heard.
The shortage was widespread and workers, notwithstanding the payment of
higher piece rate compensation than had been offered prior to the
shortage. Farm labor contractors were coming from out of state offering
bonuses to workers to work in other states with labor shortages. The
environment rapidly deteriorated and many farmers were fearful that
their perishable commodities would not be harvested in time. Instances
were reported where late variety tree fruit was left to rot on the
ground and grapes were left to rot on the vine.
After the 1998-harvest season was finished the reporting functions
of the CAL/Work program were utilized. Data were gathered from each of
the Valley's 8-County Employment Development Departments and
Department's of Social Services to measure the success of the effort to
attract persons from public assistance to seasonal agricultural work.
Following are conclusions, based on reports from the county agencies
involved in the effort:
Regulations require that county agencies address the career
interest choices of participants and few chose agricultural
work as a career goal. A large majority of the individuals who
were leaving public assistance were simply unwilling to work in
an agricultural environment.
The federal five-year time limit for receipt of public
assistance encourages farm laborers and agriculture workers to
seek other employment that will provide year around work and
earnings sufficient to keep a family from public assistance.
In many counties, a majority of the able-bodied persons
participating in the CalWorks program directed at taking
persons from public assistance to work were females living in
urban areas for whom child care and transportation presented
major impediments.
County social service agencies placed their emphasis and
resources on efforts to train persons to obtain full-time
employment, rather than agricultural employment, which is
largely seasonal.
Claims that high unemployment rates in the major rural
counties of the San Joaquin County suggest an abundant supply
of ready, able and willing farmworkers are absolutely wrong.
What conclusion can be drawn from the industry's efforts to use the
welfare to work reform law to attract farmworkers to meet the San
Joaquin Valley's large demand for seasonal workers? Unfortunately, none
of the individual government agencies were able to fulfill a minute
portion of the labor requests from agricultural employers that they
processed. The participating Employment Development and Social Services
Department Directors agreed that there was little interest on the part
of individuals leaving public assistance to work in agriculture.
Agriculture invested substantial time, effort and resources to
utilize the welfare to work reform law in 1996 to meet its labor needs.
Unfortunately, it did not work. For the reasons listed above, there is
little reason to hope that our efforts will be more productive in this
or future years. While there is little reason for optimism, the Nisei
Farmers League and other Ag-Labor Network members intend to continue to
work with our local social service and employment development agencies
to attempt meet our labor needs.
Mr. Chairman, a legal, qualified and accessible agricultural labor
force is past due and many farmers cannot sustain financially another
year of crop loss due to lack of sufficient legal workers. Absent an
available domestic workforce, the existing H-2A program is the only
available means to obtain legal workers. Unfortunately, it does not
work. We strongly support the efforts of agricultural groups throughout
the U.S. in urging you to support H-2A reform. We also are willing to
working with farmworkers in improving the economic and social
conditions of the farmworkers who are our partners in producing
America's bountiful food supply
Again, I would like to thank you for allowing me the opportunity to
testify today.
Senator Abraham. Thank you all.
Senator Feinstein, do you have any questions for the panel?
Senator Feinstein. Let me, Manuel, make your point. The
point is that you couldn't find the workforce.
Mr. Cunha. Yes, correct, Senator, we could not. We even got
it in writing.
Senator Feinstein. And you made that point to me earlier,
and I think it is helpful to make that point to the Senators
because there is a question here whether there is an adequate
workforce. There are people that believe there is. They use the
unemployment figures steadily to say that there is an adequate
workforce. But, in fact, there really isn't.
Now, let's talk about the issue of pay for a minute. What
do your growers pay?
Mr. Cunha. This year when the labor shortage occurred, the
sad part about it is employment development won't have the
statistics available until December of 1999 for us to know, but
my growers in the San Joaquin Valley went from $.18 a tray, as
high as $.29 a tray when the labor became so short. That is
documented because of the payroll that is submitted to the
Internal Revenue Service.
Senator Feinstein. What does that translate into?
Mr. Cunha. In dollars?
Senator Feinstein. Yes.
Mr. Cunha. Over the $.20 mark per tray will put you at
about $6.20 an hour for that individual. So when it got up to
$.28, $.27, $.25, you are talking about $7.50. And that is a
normal person working at a steady pace and people make more
than that. So it was above the minimum wage that the State of
California has adopted.
Senator Feinstein. Now, let me be honest, since we have
talked many times and I know you very well. I have also talked
to people in other aspects of agriculture. It is different,
particularly in wine, where they pay like $14 an hour and where
they have no problem finding people.
Mr. Cunha. This year, the wine industry----
Senator Feinstein. My point was going to be where do you
believe the wage is a part of the absence of workforce?
Mr. Cunha. As to what we saw this year in the wine
industry, it is paid on a different basis, but they were very
short with labor and had to increase dramatically to get
workers from the raisins. They stole workers from the raisin
industry. The raisins stole it from the tree fruit guys.
Everybody was raising wages to just survive.
I think the issue is what can the farmers really endure. I
know this year my farmers that had raisin crops couldn't
harvest raisins and had to go for wine, which was very less in
quality because of the mildew and all that. But I think the
commodities--as you stated earlier today, the prevailing wage
of those commodities is what it needs to be based on. If the
raisin industry is paying that and it is fair and above the
minimum wage, whatever that is, then I think that industry has
met its goal.
Senator Feinstein. Well, I would like to work with Senator
Smith, Senator Wyden, Senator Abraham and anybody else that
wants to work on this to try to see if we can't come up with
something. I have relayed that to you in various meetings, and
the last I had heard the California Farm Bureau had retained a
consultant to work with the communities and try to see what
proposal would emerge. Can you give us any information on that?
Mr. Cunha. Well, I know that the California Farm Bureau and
the ag groups are working back here with various groups to try
to come up with those issues, such as--I will give you some
examples that we are even discussing even in Fresno with some
of the other groups, to talk about transportation, to talk
about housing, to get housing started to be built so we get rid
of this ``not in my backyard'' issue, getting rid of the
bureaucratic process that housing has to go through, through
the four agencies.
We talked about health care, and I think you know I spoke
with you about the project that we did in the San Joaquin
Valley. The farmers bought a mobile clinic, paid for it, and
are doing things to go to the farms, to go to the schools to
give kids and their families health care because they don't
have means to get there. We are looking at some type of health
care for farm workers that will be paid for by farmers. We have
talked about tax incentives to help these farmers to where
workers can have a better, I think, relationship with both
sides.
Senator Feinstein. Now, let me get to the question that Mr.
Papademetriou put forward and that I in my halting way tried to
put forward, and that was the issue of we have a workforce out
there, undocumented workforce--it is a big workforce; nobody
knows how big--and providing a methodology that we could create
the registry with this workforce based to an extent on past
performance, in other words, so people show they have been
doing this, that they are here, that they are obviously going
to stay in this country and want to make a commitment to
continue on, in exchange for legalization and a green card.
Would the growers of California be supportive of that?
Mr. Cunha. I would be supportive of your registry concept
of taking those existing people here that are undocumented with
bad cards, because you help resolve that big mess. I believe
your registry concept needs to be a separate system from the
EDD because it is a failure in its own merits because of the
double-dipping problems, et cetera. But I think your registry
is the concept that will give everybody in all the States an
opportunity to sign up through the systems and have our farmers
access that.
But the EDD today, as we know it--the system is broken and
to put it into that system will just bury another welfare
system. My farmers would support a registry and to take what is
currently here and get those people allowed with a card to work
here for periods of time and go home and come back, and allow
them those safety amenities that are required, and the housing
and things that we can work together on. Our growers would be
in favor of that all the way. Your concept is right.
Senator Feinstein. Well, they wouldn't necessarily have to
be required to go home. I mean, they are here. Their families
are here.
Mr. Cunha. But if they wished to, they could legally go for
a month or two and come back.
Senator Feinstein. That is correct. They would have the----
Mr. Cunha. The ability to do so without having the coyotes.
Senator Feinstein. Right, exactly.
I would like to get the comments of others on this very
point. Anybody, Cecilia, Dolores, or the gentlemen?
Ms. Munoz. Yes. If I may, I think that there would need to
be protections in place in such a program, and a promise of a
green card would need to be a real promise, we think. Again,
the proposal that was introduced last year provided what was
really an illusory promise of a green card.
So I think, at a minimum, there would need to be
protections in place for the workers that at least parallel
with the H-2A program. There would need to be a reasonable time
period where the individual would be expected to work in
agriculture and a real promise of a green card. But at the same
time, we would like to include in this discussion some increase
in the labor standards applied to agriculture. What we are
talking about is improving the status quo and that needs to be
part of the debate.
Mr. Holt. Senator, may I also add a thought here?
Obviously, a registry system or any kind of system like that is
predicated on the workers having some kind of legal status. It
is very important, I think, in this discussion that the
discussion tends to have assumed that the illegal workforce is
all resident in the United States. Some of the people working
in U.S. agriculture illegally are permanent residents of the
United States, but a very large proportion of them are, in
fact, migrants who have in the past tried to migrate back and
forth and are continuing to try to migrate back and forth from
Mexico.
They aren't necessarily interested in living here
permanently. In fact, one of the things we find when the new H-
2A program goes into effect is some of the people who have
moved here out of necessity permanently reestablish residences
in Mexico. So to make this work and to legalize the existing
illegal workforce, it has to include a mechanism for people to
go back and forth because many of them are, in fact, doing
that. Even some of those who are not would prefer to do that.
Ms. Huerta. Well, in terms of what Mr. Cunha said about the
EDD, we do have a new governor in California. The whole EDD
department is going to kind of be reformed and renovated, so
that I think that any type of program that is done has got to
be done through a governmental agency like the State EDD and
not through any private employers, like the Farm Bureau or
Western Growers or any other grower organization, because if
you are going to give farm workers any type of an amnesty--and
again I want to repeat it has got to be retroactive. You can't
say to a worker, if you work for this employer or in
agriculture for 3 years, then maybe you will get a green card,
because that again will keep those workers in bondage.
Senator Feinstein. You would have to give the green card up
front.
Ms. Huerta. Yes. We have been trying to get rid of slavery
for 2,000 years now, you know, so we can't keep people in
bondage. And the other thing is that, again, we have to repeat
the wages that farm workers are getting. I mean, farm workers
are earning $4,000 to $6,000 a year. This is disgraceful as we
go into the 21st century that farm workers cannot even feed
their families on the types of wages that they are now living
on.
Also, to Mr. Cunha, we have not been involved--the United
Farm Workers, which is the largest organization that represents
farm workers in California and in the United States of America,
has never been invited to any kind of a meeting. In fact, we
heard that there was a meeting that the Farm Bureau was having
down in Fresno. We sent one of our representatives and they
were not allowed to go into the meeting.
So, you know, I think that any kind of dialogue or
discussion, anything that is going to be contemplated, has got
to have at the table the farm workers themselves because these
are the people whose lives we are affecting by the laws that we
pass.
One other thing, too. A lot of the laws that were passed by
the Congress, like the welfare reform law, immigration reform
law--I mean, it is very difficult for farm workers to bring in
the rest of their families. The type of money that a farm
worker has to earn--he will never be able to earn it at the
current wages that he is being paid in order to be able to
emigrate the rest of the people in his family. So all of these
things really impact. Farm workers are suffering a lot because
of the poverty that they now live in, and that has definitely
got to be addressed.
Senator Feinstein. Thank you.
Senator Abraham. We actually are coming up on a vote, so I
am going to ask anybody who would like to respond to that
question that hasn't already done so, if you would do it in
writing, we would appreciate it.
Senator Abraham. Senator Smith, do you want to make a brief
comment, because I want to----
Senator Smith. Ms. Huerta, do you offer representation to
undocumented workers?
Ms. Huerta. Absolutely. When we organize a company under
the California law especially, the workers that vote at that
company are the ones that the employer hires. If the employer
hired undocumented workers, they are the people that work
there. We also do immigration services in every single one of
our offices to help the farm workers legalize their status.
Senator Smith. If we provide this amnesty, the green card,
up front and they pursue the American dream and go to the H-2A
program or some other program, another industry, how do you
account for others who want to come in here?
Ms. Huerta. Well, farm workers are locked out, Senator. You
know, farm workers are not leaving agriculture, domestic farm
workers, but they are locked out of jobs. I was in Georgia the
other day. There were 500 workers working at this one plant.
This was in Georgia. There was not one African American worker
in that plant. All of the workers were from Mexico and Central
America. Local black African American farm workers are locked
out of that plant. The same thing happens in California.
Senator Smith. Guest workers have got a bad name.
Ms. Huerta. The workers want to stay in the fields.
Senator Smith. What I am trying to get at is how do we
account for employment mobility.
Ms. Huerta. If the wages are good, Senator, and the farm
workers get their medical plan, they get a retirement plan,
they have no reason to want to move on. If they get decent
treatment on the job, if they are treated with dignity, they
have no reason to want to move on. Farm workers like the work
that they do. They like being farm workers, but they want to be
treated with respect, they want to get paid a livable wage, and
they want to get medical benefits and pension benefits and
representation.
Senator Smith. At the Federal level, Senator Wyden and I
tried to do a good-faith thing with the vouchers for housing to
accommodate differences. And if you have got some ideas, I
would like to know because I look at Joshua down here and I
don't know how a guy with 40 acres of trees and a State law
that prohibits him from building any structures--how he
complies with the housing requirement?
Ms. Huerta. Build family housing. Farm workers like to live
in family housing. They don't like to live in barracks.
Senator Smith. But who is going to----
Ms. Huerta. Well, we could do it ourselves, Senator.
Senator Smith. Who is going to pay for that?
Ms. Huerta. We are doing that right now. We are building
homes that are affordable that farm workers can live in, they
can buy or they can rent. We have built many of them in Fresno
County right there were the Nisei Farmers League is at. So it
is doable.
Senator Smith. I am just trying to connect the realities of
agricultural economics with the things that you rightfully want
for your people. And I want them, too. I am just trying to say
how can I get these two sides together.
Ms. Huerta. I think it is communication. I think the
employers have to erase that hostility. This is what I talked
about, reforming attitude. If they want to work together with
the union, we will be glad to work with them, as we are doing
with all the employers that we now have contracts with, to make
it better for them and to make it better for the workers.
Senator Smith. Cecilia, what bill is it that is trying to
lower protections for workers?
Ms. Munoz. There were two proposals introduced in the last
Congress. One was amendments to the Migrant Seasonal
Agricultural Workers Protection Act which would change
requirements with respect to housing, with respect to
transportation, with respect to wages, and the H-2A expansion
which you were an original cosponsor of which, in our view,
would also reduce the protections under the H-2A program.
Senator Smith. I hope you can see that we are trying to
make a system workable. We are not trying to lower people's
standards. We are trying to increase them, and we are trying to
make it within the boundaries of agricultural economics that
frankly are not really good right now on American farms.
Ms. Munoz. I absolutely appreciate and sympathize with the
concern. I think if there is to be a real discussion at which
everybody is at the table, it can't be in the environment where
there are legislative proposals which make things worse. It
makes it very difficult to base a discussion on the assumption
that we all want to change the whole framework that we are
talking about here. H-2A expansion does not change the
framework in which farm workers live and work.
Senator Smith. Mr. Chairman, I have never written or ever
voted on a perfect bill, and so if you have any ideas that are
perfect, we would love to have them.
Ms. Munoz. We would settle for better as opposed to
perfect.
Senator Smith. We are interested in that. Thank you.
Senator Abraham. I do want to say that I feel like maybe
Mr. Wunsch should get a chance, if he wants to, to comment on
some of the statements that were made long after you got your
opportunity here with respect to whether some of these issues
that have been raised you feel are applicable to the Michigan
situation. We have heard a lot about California here today, and
I appreciate, given the magnitude of the agriculture industry
there, the situations, as well as the worker situations.
Is it your perspective that in Michigan there are large
numbers of unemployed people available that just are not being
offered a sufficient inducement to work in agriculture?
Mr. Wunsch. No, and let us be aware of the fact that this
is a seasonal cycle and that we can make a statement that there
is a surplus supply of labor in, for instance, the State of
Florida during a time of year when there are no crops to be
picked. But there may simultaneously be a shortage of workers
in another State where those crops are ready to be picked.
But let's also make the observation that in Florida, if we
have an extremely structured, high concentration of housing,
readily identifiable labor camps and migrant labor communities,
those become very easy targets for INS surveillance. So I was
in Florida this winter and the Florida growers were asking me
where are all our workers, and it occurred to me that an
extraordinary number of workers had stayed behind in Michigan
for the winter and were renting and working in processing
plants or other non-agricultural areas because they were
diffused. There was no easy target for INS enforcement, so
there was a shortage of labor in Florida. But there was not
necessarily a shortage of labor overall.
Let's also go back to the point that the shortage we are
talking about, and I think we have drawn a very good focus on,
is of legally documented people. And the points that are made
as far as the vulnerability of not having a legally documented
workforce are absolutely valid, and it is astonishing that
workers are treated with dignity and paid the wages they are,
given the vulnerability that they are exposed to under those
circumstances. Establishing some kind of a legal status for
those folks is of the utmost importance.
Now, wages. In a situation where there is a need, where
growers--and please don't be offended when I say when you
attribute to growers at this point a state of obscene,
embarrassing or even adequate profits, you tend to undermine
the credibility of many of your other statements which have a
great deal of value. You have got to be sensitive to the fact
that in American agriculture right now, there is not an
acceptable margin of profit for the family farmers.
Now, I will say that my first commitment in a situation of
profitability during a time when my added value brings profit
to my enterprise is to my workers because I know that is where
it begins. I don't exploit those people. We work as a team to
better ourselves. I depend on them. I am their hostage. If
there is anybody who is vulnerable to exploitation in this
situation, it is me, and with that group I am a willing hostage
because together we can succeed. And if we can let that drive
the wages, put those folks in the strongest position of
negotiating a fair wage, then we have a solution. If we try to
impose an artificial threshold or constraint, then we find
ourselves tangled back up in the morass of bureaucratic
constraints, artificially imposed, that we current face with
the present H-2A.
Everybody is on the right page rhetorically. Tremendous
progress has been made from the standpoint of one grower from
where we were a year or so ago. We have something we can build
on together here and we should proceed to do it, but let's stay
on the practical course. We have got a great start.
Senator Abraham. Thank you. I will close just with a final
comment I want to make, and that is this. We are trying in this
hearing, as we tried last year, to try to bring together in a
very balanced sense here perspectives on these issues.
I don't think there is any Senator that I am aware of in
the Senate who is more sincere about trying to come up with a
productive piece of legislation than Senator Gordon Smith. And
I appreciate that you have taken extra time to sit through all
this. Lots of times, advocates of bills come in, make their
speech, go out and do press conferences, and then do whatever
they want. This Senator is absolutely sincere in his interest
in hearing from all perspectives, and I think the other people
who are working with you on it are the same. At least the
expressions to me, in my judgment, from you, from Bob Graham,
from Ron Wyden, Slade Gorton, have been very, very sincere. And
I would urge all the different groups here to take advantage of
what I think is a lot of receptivity.
Now, I would also say this. We aren't going to get a
perfect bill from everybody's perspective, if we get any
legislation. And so it would be fairly easy, I suspect, for
anybody to throw up enough road blocks to prevent anything from
happening. And that may well be the result; I realize that.
But it does seem to me that the absence of anything
happening will absolutely ensure that more and more people will
come to this country illegally to do work. It seems to me from
every piece of evidence I have, those who are here illegally
are exploited more than anybody else. And if we have any kind
of serious commitment to trying to help people in that
situation, then we ought to try to find, if we can, the kind of
common ground that I know Senator Smith and Senator Feinstein
and others are trying to achieve. So I look forward to working
with everybody.
I want to thank the panel. If you have additional thoughts,
please submit them to us. We want to make this as comprehensive
a report as possible. I think that we shouldn't in any way fall
into, I think, the kind of trap Mr. Wunsch is outlining of
saying that everybody is bad on one side or on the other side.
We had a meeting in southwest Michigan that I went down and
participated in with Congressman Upton from that area where
there are a lot of growers, and there was nobody in that room
making a lot of money. They may be in other parts of the
country, but not in southwest Michigan. At least the ones who
came to that meeting, I think, were very sincere in wanting to
come up with a solution and in facing a very serious crisis. So
for their benefit and for the benefit of the workers, I hope we
can make some progress and I hope today's hearing was a step in
the right direction.
Thank you all for participating.
[Whereupon, at 4:32 p.m., the subcommittee was adjourned.]
A P P E N D I X
----------
Questions and Answers
----------
Responses of Representative Sanford D. Bishop, Jr. to Additional
Questions From Senator Kennedy
Question 1. The INS recently arrested a number of illegal
immigrants working on the Vidalia onion harvest. Among those arrested
were four juveniles. All were found to be living in squalid conditions.
I know that many of these people fall victim to farm labor contractors
who smuggle illegal workers into the country and then exploit them. The
labor contractors, however, are hired by the growers. What ideas do you
have to putting an end to the growers' use of unscrupulous farm labor
contractors and ending this exploitation?
Answer. At the root of the behavior of unscrupulous farm labor
contractors is the fact that the workers they hire are undocumented or
fraudulently documented. Knowing this, farm labor contractors are more
likely to ignore or shirk legal obligations, such as Fair Labor
Standards Act minimum wage, work hour, and worker age standards.
An indirect way to reduce the demand for farm labor contractors is
to put in place a viable and workable H-2A farm guestworker system
which encourages farm workers to come to the United States in a legal
manner, for a limited period of time, and which puts into place
incentives for the workers to return to their home country in an
orderly manner at the end of the seasonal activity. If a legal above-
the-board guestworker program that is easily accessible by growers and
workers is put into place, the need to hire the traditional (often
unscrupulous) farm labor contractor will evaporate.
In fact, I submitted several proposals for administrative change
supported by Georgia growers (which I have included as an attachment to
my testimony to the Subcommittee) to the Secretary of Labor. One of
those proposals sought relief from the U.S. Department of Labor
certification requirement that H-2A employers utilize farm labor
contractors as part of employers' positive recruitment efforts. It is
my understanding that the Department of Labor agrees that this
requirement is unwarranted, especially in light of the documented Fair
Labor Standards Act Wage and Hour violations by many farm labor
contractors. I applaud the Department's efforts to administratively
alter this requirement.
Question 2. I understand that the price of a 40 lb. bag of Vidalia
onions is $50.00, yet a farm worker earns 75 cents to 80 cents for
picking 50 lbs. of these onions. Do you think that a modest increase in
wages would still permit growers to obtain a profit? Do you think that
if wages were increased, growers could find U.S. farm workers to
harvest this crop?
Answer. With regard to the price of Vidalia onions, the relevant
price when analyzing the gross return to producers of agricultural
commodities is not the retail price. It is the price the grower
actually receives, sometimes referred to as the ``farmgate'' price.
From this farmgate price, the costs of production must then be
subtracted to determine the net return to the grower.
A recent commodity price season average forecast published by the
University of Georgia Center for Agribusiness and Economic Development
(attached) states that Vidalia onion producers can expect to receive on
average $13.00 for a 50 lb. box of onions in 1999. This amounts to a 26
cents per pound gross return to the grower.
From this gross amount, the costs of seed, fertilizer, land,
irrigation, pesticides and herbicides must be subtracted. The
University reports to me that these costs amount to 12 cents per pound.
The total costs for labor according to the University of Georgia (your
question assumes only the worker piece rate) amount to 4 cents per
pound, or about 25 percent of the grower's cost of production.
This results in a net return to the grower of about 10 cents per
pound. So, the grower realizes net $4 for the $50 retail bag of onions
you posit in your example.
In a globally competitive marketplace where a national supermarket
chain produce buyer can just as easily call a U.S., European, Chilean,
Mexican or Canadian produce supplier, any increase in any component of
the costs of production can make fungible agricultural commodities
uncompetitive. Therefore, an increase in the labor component beyond 25
percent of the current cost of producing Vidalia onions might well make
the production of Vidalia onions in Georgia uncompetitive compared to
the costs of producing a similar onion in another part of the world.
Certainly wages for any activity could be increased to the point
where U.S. workers are compelled to seek those jobs. If the U.S. closed
its borders to imports of all other onions, so as to ensure the that
the only onions sold in the U.S. are grown exclusively by U.S. growers,
harvested by U.S. workers who are paid highly enough to endure
seasonal, hot, dirty and tiring hand-labor, then such wage increases
are realistic. However, in the context of free trade in agricultural
produce today where U.S. growers must compete against the labor costs
of other countries and where a small profit margin is the only
incentive for growers to risk their capital, wage increases of a
magnitude that would provide sufficient incentives for enough legal
U.S. workers to leave year-round stable indoor employment in other
industries appears unrealistic.
[GRAPHIC] [TIFF OMITTED] T5020.031
[GRAPHIC] [TIFF OMITTED] T5020.032
Responses of American Farm Bureau Federation to Questions From
Senator Kennedy
Question 1. I understand that 99 percent of H-2A applications filed
by growers are approved. With approval rates so high, how can this
program be unworkable?
Answer. To the knowledge of the American Farm Bureau Federation,
the Department of Labor maintains no database to track applications,
how many are received how many are approved, and how many are declined.
Further, it is unknown how many potential program users are discouraged
by the program's high costs and bureaucratic hurdles. Senator Kennedy
cites figures from a December 1997 Government Accounting Office study
to the effect that 99 percent of applications filed in a particular
time period were certified. That figure does not reflect the many
instances where the ultimate certification was late, where specific
actions required by the Department for certification were late, or
where farmer applicants for the program and the Department were unable
to reach agreement on terms of employment for H-2A workers, causing no
application to be filed. The American Farm Bureau is seeking
legislation that will define the program's labor standards in law
rather than through action (or inaction) in the instance of each use of
the program, and to control program costs.
Question 2. I understand that perhaps 30 percent of grape growers
were found to have violated the minimum wage laws last year during a
study conducted by the U.S. Department of Labor. Is this an isolated
incident or are these types of violations common? Doesn't that kind of
employer conduct deter U.S. workers--citizens and legal immigrants--
from applying or staying in agricultural jobs?
Answer. We are not aware of any ``study'' that purported to
demonstrate that 30 percent of grape growers in any region are out of
compliance with minimum wage laws. We are aware of a recent ``survey''
conducted by the Department of Labor of grape producers in California
where farmers were questioned as to their employment practices, they
were not advised of their legal rights, and were penalized when their
conduct apparently resulted in a minor violation of the law. This
``survey'' has also had the negative effect of discouraging employer
participation in the National Agricultural Workers' survey.
It is the sense of the American Farm Bureau that no employer in any
industry could withstand a ``white glove'' inspection by DOL without
any finding of any significant or de minimus violation of minimum wage
laws.
The Farm Bureau shares the Senator's concern for compliance with
the law and the welfare of workers. Obviously farmers who participate
in the H-2A program are subject to much more stringent scrutiny than
are non-participating farmers. Therefore, it is clear that greater
farmer participation in the H-2A program will bring about a higher
degree of assurance regarding the welfare of workers.
It is also worth noting during the hearing on H-2A reform, Dmitri
Papademetriou of the Carnegie Endowment of International Peace reported
preliminary results of the work of his colleagues with H-2A program
participants that found 90 percent job satisfaction among H-2A workers.
This, combined with H-2A farmer participant experience that H-2A
workers participate in the program year after year seems to indicate
that if the Senator believes that many non-H-2A farmers violate the law
he should enthusiastically embrace the H-2A program as a means of
improving worker welfare.
Question 3. Unemployment rates for California's major agricultural
areas, as well as agricultural counties in Arizona, Washington, Texas,
and Florida are extremely high, especially when compared to the low
unemployment rates enjoyed nationally. With such high unemployment
rates, how can Congress streamline the H-2A program to enable employers
to bring in more foreign workers?
Answer. Unemployment will, by definition, be high during periods of
slack demand for labor; thus there will be high unemployment during
non-harvest periods. When annual unemployment rates are calculated,
high non-harvest period unemployment rates will skew the unemployment
rate upward even though the entire available local harvest workforce is
employed during the harvest season. Further, neither employers nor the
government can force unemployed individuals to make themselves
available for work, particularly if collecting unemployment benefits
appears to be a better option than working for a limited period of
time, which is common in agriculture. It is our belief that about three
jobs in agriculture-related industries like packing, processing, and
transportation depend directly or indirectly on each job planting,
cultivating and harvesting agricultural commodities. It is precisely
these harvest jobs for which workers are in shortest supply for farm
employers. Failure on the part of Congress to ensure that these field
jobs are filled endangers many other jobs that depend on these jobs
directly or indirectly.
Question 4. I understand that the value of fruits and vegetables
produced in the United States has more than doubled in the last ten
years, and that much of that expansion has occurred through increased
exports. Given the significant growth of the agricultural sector, how
can we continue to justify not offering farm workers the same rights
enjoyed by other U.S. workers, such as higher wages, overtime pay,
unemployment insurance, worker compensation, and health insurance?
Answer. The Senator's question appears to be based on several
faulty premises. Citrus and non-citrus fruit production has not doubled
in the last 10 years. Citrus and non-citrus fruit production increased
27 percent since 1987, from 28.006 million tons in 1987 to 35.64
million tons in 1997. Examining 20 years of data provides similar
conclusions. In 1977, citrus and non-citrus fruit production totaled
27.84 million tons. Production since then has increased 28 percent.\1\
---------------------------------------------------------------------------
\1\ Fruit and Tree Nuts Situation and Outlook Report Yearbook Issue
U.S. Department of Agriculture, Economic Research Service, October
1998.
---------------------------------------------------------------------------
It is true that the value of citrus and non-citrus fruit,
production has doubled in the last decade. In 1987, total cash receipts
equaled $8.035 billion and increased to $12.76 billion in 1997, an
increase of 59 percent. In 1987, the index of fruit prices received by
growers equaled 93 (1990-92=0) and increased to 108 in 1997 for an
increase of 16 percent.
The U.S. is a net exporter of fresh fruit. While the percent of
U.S. production that is being exported is increasing, most of that
increase is due to two commodities. Apple exports have increased from
295,000 tons in 1989 to 724,000 tons in 1997. Fresh grape exports have
almost doubled over the same timeframe from 149,713 tons in 1989 to
296,532 tons in 1987.
U.S. fresh vegetable production has also not doubled in the last 10
years. In 1985, production totaled 33.706 million tons and increased to
49.388 million pounds in 1998, an increase of 47 percent. Since 1990,
production has increased 27 percent.
U.S. fresh vegetable exports have not changed in the last 20 years.
In 1980, the percent of the U.S. fresh vegetable supply that was
exported totaled 7.0 percent. In 1997, that amount equaled 7.5 percent.
Conversely, the amount of U.S. fresh vegetable imports has almost
doubled since 1980, increasing from 7.9 percent of total utilization in
1980 to 14.1 percent in 1998.\2\
---------------------------------------------------------------------------
\2\ Vegetables and Specialties Situation and Outlook Report, U.S.
Department of Agriculture, Economic Research Service, November 1998.
---------------------------------------------------------------------------
It does not logically follow that if the aggregate value of all
horticultural crops grown in the United States has increased by a given
amount over any given period of time, that farmers' income (and
therefore their presumed ability to bear higher costs) has increased by
a like proportion, as the Senator's question seems to imply. Rather, it
is our sense that a larger number of farmers have chosen to produce
horticultural crops given weak demand for more traditional agricultural
commodities. Therefore, more aggregate income will be earned by a
greater number of farmers, though each individual farmer may not
experience a substantial increase in income. Thus, citing the greater
aggregate value of horticultural commodities does not alone establish
any ability on the part of farm operators to bear greater labor costs.
The Senator's question seems to assume that farm employers are
somehow immune from the laws of supply and demand, and that they are
not required to raise wages in response to short supplies of labor. In
fact the opposite is true. The U.S. Department of Labor National
Agricultural Statistics Service (NASS) reported on May 21 that in April
11-17, 1999 survey week, farmers paid farm workers 5 percent higher
wages than during a similar period in 1998. Farmers were forced to
raise wages even during a period of rather light demand in the spring.
Wages were also up 5 percent in the February 21 report, which reported
on the quarterly period with the lightest national labor demand NASS
will survey in 1999, the week of January 10-16. In 1998, the survey
period with the highest total employment (1.25 million workers) was
reported by NASS on November 20 for the week of October 11-17. Wages in
that period were up 4 percent over a similar period in the previous
year.
It is important to remember that changes in federal law extended
unemployment insurance to farm workers in 1976 and we believe the vast
majority of workers are covered. Workers' compensation insurance
coverage is a state issue, though most of the states where
horticultural crops are grown require farm employers to furnish
workers' comp. With regard to health insurance, if the Senator is
advocating that farm employers should be required to furnish health
insurance, it is worth remembering that no other industry is subject to
such a mandate. Some farm employers and their associations have been
notably successful in providing health insurance to farm workers, but
this has been the exception rather than the rule. In general, it is
very difficult if not impossible to complete health insurance
underwriting for a group of workers that may work for a single employer
for as little as 2-3 weeks, but probably no longer that 8-10 weeks.
Lastly, the Senator apparently objects to the longstanding overtime
exemption provided in the Fair Labor Standards Act with respect to farm
fieldwork.
A manufacturing employer can make a rational economic decision to
operate his factory an additional 8 hours in any given week in order to
manufacture 10 additional widgets. If his operating costs, including
labor, do exceed the profit he will earn selling the 10 widgets,
operating the factory 8 additional hours makes economic sense. Farmers
face a different economic situation, in that perishable crops must be
harvested when they are ready to be harvested, or their economic value
will decline or become zero. Due to factors beyond the farmer's
control, harvest windows may arrive unexpectedly and can close with
little or no warning. Imposing an overtime pay requirement with respect
to farm field work will unfairly penalize farm employers attempting to
harvest crops in situations they cannot control.
Question 5. I understand that more than 50 percent of the farm
worker labor force may be illegal. A proposal that is under discussion
would call for an immigration program that would grant legal status to
undocumented workers already in the U.S. employed in the agriculture
sector. Does the American Farm Bureau support a legalization program?
It is estimated that one-half or more of the agricultural workforce
is employed using fraudulent documents to complete the I-9 employment
eligibility verification process. Farmers make extensive efforts to
live up to their legal obligation to complete the I-9 process, and we
do not believe it is a widespread practice for farmers to employ
undocumented workers as the Senator's question seems to imply.
Because the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 (IIRIRA) bars certain aliens who have entered or remained
in the United States illegally during certain times from enjoying any
immigration benefit, the workers mentioned above cannot participate in
the H-2A program. However, it is the view of the American Farm Bureau
that provisions should be made to offer these workers an opportunity to
participate in the workforce legally and to continue to play their
important role in the production of perishable horticultural crops.
Additional Submissions for the Record
----------
Prepared Statement of Senator Larry E. Craig, A U.S. Senator From the
State of Idaho
Mr. Chairman, I appreciate you holding this hearing. I also want to
acknowledge your leadership, as well as that of Senators Gordon Smith,
Bob Graham, Slade Gorton, and Ron Wyden on this issue. I also know
personally of the interest all the Subcommittee members have in this
issue.
We are facing a problem today that will be a crisis tomorrow. This
hearing is the first critical step the Senate can take to do what our
federal government does all too rarely--fix a problem in a timely and
common-sense fashion before it inflicts great hurt on millions of
Americans.
what we need
Our agricultural growers want and need a stable, predictable, and
legal work force, and they are happy to pay good, fair, market-based
compensation for it.
Unemployed workers and those hoping to move from welfare to work
want and need to be matched up with decent jobs. American citizens
should have first claim on American jobs, but all workers would rather
be working legally and hope for the protection of basic labor
standards.
These goals are not being met today. In fact, current federal law,
and its bureaucratic implementation, are hurting growers and workers.
working on a solution
Last year, the Senate took the first step toward meaningful H-2A
reform, on a bipartisan vote of 68-31.
That vote was on the Smith-Wyden-Craig-Graham amendment--the
``Agricultural Job Opportunity, Benefits, and Security Act--``AgJOBS''.
We chose that name because, in short, that's why we need H-2A
reform--to make sure we have enough safe, legal AgJOBS in America.
Unfortunately, our AgJOBS amendment was dropped in the final hours
of the conference on last year's Omnibus Appropriations Act. But the
sponsors of the original AgJOBS legislation remain firmly committed to
pursuing and enacting H-2A reform this year.
We've refrained from reintroducing a new AgJOBS bill in this
Congress, out of respect for the Administration and other
stakeholders--some of whom are represented here today.
There is wide agreement that problems exist with the status quo. We
hope and believe we can all work together to build an even broader
consensus for H-2A reform, and to put together a new, improved AgJOBS
proposal that can become law this year.
workers need h-2a reform
There is no debate about whether many--or most--farm workers are
immigrants. They are now, and they will be, for the foreseeable future.
The question is whether they will be legally authorized to work in
America or not.
Immigrants not legally authorized to work in this country know they
must work in hiding. They can not assert their rights, for fear that
the U.S. government, the employer, or the labor contractor can ignore
them or retaliate.
In contrast, legal workers have legal protections. They can assert
wage and other legal protections. They can bargain openly and join
unions. H-2A workers, in fact, are even guaranteed housing and
transportation.
That's a far cry from the plight of those working here illegally,
who have been known to pay $1,000 and more to be smuggled into the
country.
In fact, the only group who has a stake in continuing the status
quo are ``coyotes''--a minority of labor contractors, who illegally
smuggle workers into this country, often under dangerous and inhumane
conditions. Meaningful H-2A reform means we start putting criminals who
trade in human beings out of business.
the h-2a status quo is broken
The current H-2A Agricultural Guest Worker Program is profoundly
broken.
The failure to fix or replace this program means that the federal
government is completely ignoring the growing needs of a significantly
changed agricultural labor market.
The status quo is a lose-lose-lose situation. It is bad for
growers, bad for workers, and bad for American citizens and taxpayers
who expect to have secure borders.
The status quo is breeding an underground economy that makes some
of its victims hide from the rest of society and threatens to bankrupt
the others.
Unlike many other sectors, farm and ranch work is often temporary,
seasonal, and itinerant. This is not a matter of choice on anyone's
part, but a matter of necessity.
Many of these jobs are filled by unauthorized immigrants. This,
too, emphatically is not the desire of any employer. But our current
laws and their enforcement have created worse than a Catch-22--for
growers and for workers.
The employer is required to make sure prospective workers fill out
an I-9 form and present what appears to be legitimate identification.
However, beyond that, any inquiry into legal status is suspect under
civil rights laws.
Therefore, many employers who meet the minimum and maximum legal
standards of diligence when they hire a worker, really have no idea if
the next raid by the Immigration and Naturalization Service, three
counties away, will scare half or more of their work force into
disappearing.
In fact, last year's General Accounting Office study estimated that
as many as 600,000 farm workers--or 37 percent of 1.6 million--are not
legally authorized to work in the United States.
In contrast, this year H-2A is expected to place only 34,000 legal
guest workers--two percent of the total agricultural work force.
I want to put that number of known unauthorized workers--600,000 or
37 percent--into a practical perspective.
When Census-takers go door-to-door, they reassure interviewees that
the personal information they collect will not be used for any other
purpose by any other government agency--including deportation of
illegal immigrants. Yet we've all heard innumerable stories and studies
about how the Census under-counts unauthorized immigrants, because they
hide from the Census-takers--the least-threatening of any information-
collecting government employees.
Amazingly, the GAO figure of a work force that is 37 percent
illegal concurs with Department of Labor estimates and is based on
self-disclosure by unauthorized immigrants in government surveys.
This more-than-implies that the true number of farm workers who
come here illegally is much higher than 37 percent--a number that is
already astronomically high.
The H-2A status quo is complicated and fraught with legalistic
risks. For farmers and ranchers who already deal with an over-
complicated tax code, environmental laws, complex labor laws, and
government bureaucracies in all areas from trade to commodity
regulation to farm programs--the status quo requires them to hire yet
another lawyer to digest the 325-page H-2A handbook plus cope with
additional, unpublished, agency practices.
The H-2A status quo is slow, bureaucratic, and inflexible. It does
nothing to recognize and adapt to the uncertainties farmers face. It
requires growers to predict with perfect precision their labor needs
months in advance, despite the challenges of changing weather,
international and domestic markets, and individual worker needs.
And the H-2A status quo imposes unrealistic costs in the form of
permanent capital investments in housing needed only temporarily,
transportation costs that can be applied inequitably, and the far-
above-market ``Adverse Effect Wage Rate''.
Finally, even the grower who lines up all those ducks well in
advance, still can't count on his or her government to do its job as
promised. The GAO study found that, in more than 40 percent of the
cases in which employers filed H-2A applications at least 60 days
before the date of need, the Department of Labor missed statutory
deadlines in processing them.
Those are some of the reasons why the H-2A program today supplies
about 34,000 workers, instead of 600,000. Today's program doesn't work.
Which brings us to the point of why H-2A reform is becoming a more
critical necessity almost daily.
the consequences of inaction
If we do not reform H-2A, what will happen to the unauthorized 37
percent of the farm workforce as we do a better and better job of
controlling our borders?
Hundreds of thousands of workers will be pulled out of the
agricultural labor pool.
There will be no effective way to replace them with legal workers.
Thousands of growers, already operating on the brink because of
international economic problems, will have to give up the farm or go
bankrupt.
If we fail to fix or replace the status quo, poor, immigrant
workers will resort to more desperate means to sneak into our country.
The further underground they go means they will have less and less in
the way of protection against exploitation from all sides. The
``coyote'' smuggling industry that already provides counterfeit
documents and stealth transportation will escalate its illegal
activities.
At the same time, as the number of legally available workers drops,
crops will go unplanted or unharvested. We are already seeing spot
shortages and localized crises because of these trends--from Washington
State to Georgia, from California to New York.
Unless we fix the status quo, the domestic farm products that will
no longer make it to the grocery store will be replaced by more and
more imported food products.
I do not believe we, as a country, want to lose the ability to
produce our own food supply. If we do, then the quality of the food we
eat will be uncertain and the health and safety of our people will be
put at risk.
The crisis may not appear this week or this month. But we should
act before this situation becomes a crisis.
We will hear from those who think a little administrative tinkering
will solve the problem. But Administrative band-aids will not help. In
many cases, relying on administrative tinkering simply means asking the
fox to reinvent the henhouse.
A 40 percent failure rate at DOL does not inspire confidence in the
status quo. In fact, as a member of the Labor-HHS Appropriations
Subcommittee, I think there's some additional oversight due in this
area.
conclusion--the solution is in sight
Reforming H-2A is the most humane alternative, for both workers and
farmers.
We want and need a stable, predictable, legal work force in
American agriculture.
Willing American workers deserve a system that puts them first in
line for available jobs with fair, market wages.
American consumers deserve a safe, stable, domestic supply of food.
American citizens and taxpayers deserve secure borders and a
government that works.
All of these essential needs can be met if we fix or replace the H-
2A guest worker program with one that provides an effective job-match
system that provides legal temporary, immigrant workers when the need
cannot be met by the domestic labor force.
We need a national AgJOBS registry, linked with ``America's Job
Bank,'' currently run by DOL's, to match farmworkers with jobs.
Domestic workers should be given preference. The job bank should verify
the worker's legal status. If domestic workers are not available, using
the job bank should qualify the farmer for expedited approval for
hiring H-2A workers.
We need to make H-2A more flexible and economical, while
maintaining basic worker protections. H-2A Workers should be guaranteed
at least the prevailing wage. Our already strapped farmers should have
economic and flexible options in providing for the housing and
transportation needs of H-2A workers.
We need to make sure any new program prevents overstays and makes
our borders more secure. For those guest workers who follow the law,
come here to work legally, and return home on schedule, if they want to
immigrate to the United States someday, they should have some degree of
preference.
I look forward to working with my colleagues, and all interested
parties, to these ends.
__________
Memorandum
Congressional Research Service,
The Library of Congress,
Washington, DC, July 16, 1997.
TO: Hon. Sanford D. Bishop,
Attention: Kenneth Keck
FROM: American Law Division
SUBJECT: Proposed Changes to the H-2A Program for Foreign Agriculture
Workers
This memorandum is sent in response to your request for an analysis
of your ten proposed changes to the H-2A program; specifically, the
question of which way be made administratively and which must be made
through legislative action. As part of this analysis, you ask which
statutory provisions, if any, specifically authorize particular
regulations. It appears that the proposals numbered 1, 2, 4, and 9
could be changed administratively, i.e., by the Department's changing
the requirements pursuant to an informal rule-making process. To the
extent that current regulations reflect longstanding policies and, in
some instances, compromises, such rulemaking could be lengthy. The
proposals numbered 3, 5, 6, 7, 8, and 10 apparently would require some
legislative action.
Under the H-2A program, employers submit petitions requesting H-2A
visas for nonimmigrant foreign agricultural workers to the Immigration
and Naturalization Service [INS]. Such workers are admitted on a
temporary basis. The regulations for the H-2A petitions are found at 8
C.F.R. Sec. 214.2(h)(5), promulgated pursuant to 8 U.S.C. Sec. 1188,
added to the Immigration and Nationality Act [INA], codified as amended
at 8 U.S.C. Sec. Sec. 1101 et seq., by the Immigration Reform and
Control Act of 1986, Pub. L. 99-603, 99th Cong., 2d Sess. [IRCA]. A
condition for the grant of an H-2A visa is the issuance of a labor
certification by the Department of Labor, certifying that there are no
qualified, willing and able U.S. workers who are available to work at
the time and place needed and that the importation of the foreign
workers will have no adverse effect on the wages and working conditions
of U.S. workers similarly employed. The regulations governing the
certification process are set out in 20 C.F.R. part 655, subpart B,
promulgated pursuant to 8 U.S.C. Sec. 1188 and the Wagner-Peyser Act,
codified as amended at 29 U.S.C. Sec. Sec. 49 et seq. An effort to
recruit U.S. workers is required as part of the certification process;
an agricultural clearance order must be circulated within the U.S.
Employment Service System. The regulations governing agricultural
clearance order activities are set out in 20 C.F.R. part 653, subpart
F. Part 653 was promulgated in 1977 pursuant to a court order,
discussed below.
1. The requirement that an application must be filed at least
sixty (60) days prior to the date of need should be reduced to
thirty (30).
This requirement may be changed administratively. It is found at 20
C.F.R. Sec. 655.101(c)(1). This is generally authorized by 8 U.S.C. if
Sec. Sec. 1101(a)(15)(H)(ii)(a) and 1184, establishing the H-2A
category of nonimmigrants and the procedures for the admission of
nonimmigrants, and by the Wagner-Peyser Act, codified as amended at 29
U.S.C. Sec. 49 et seq., establishing the U.S. Employment Service. It is
specifically authorized by 8 U.S.C. Sec. 1188(c)(1), which provides
that the Secretary of Labor may not require that the application for
labor certification required for approval of H-2A petitions be filed
more than sixty days before the first date the employer needs the H-2A
workers. Sixty days is the maximum interval which can be required as
the deadline. The Secretary of Labor has the discretion to reduce the
application deadline to thirty days before the first date of need. The
legislative history emphasizes that ``[r]ecognizing that future labor
needs may sometimes be difficult to predict, the Committee bill
specifies that growers may not be required to apply for certifications
more than 60 days prior to the anticipated date of need.'' H.R. Rep.
No. 682, 99th Cong., 2d Sess., pt. 1, at 81 (1986). The notice in the
Federal Register, 52 Fed. Reg. 20496, 20498-99 (1987), notes that
regulations adopt the maximum permitted deadline of sixty calendar days
prior to need, which ``permits time for review of the application, time
for an employer to submit an amended application * * *, and adequate
time for the recruitment of U.S. workers, with a certification
determination no later than 20 calendar days before the employer's date
of need for workers.'' Under 8 U.S.C. Sec. 1188, the Department of
Labor is required to review the application and notify the employer of
any deficiencies within seven days, and to issue the labor
certification not later than twenty days before the first date of need
(provided the requirements for certification are met). These other
requirements may make the thirty-day interval a tight deadline if
amendments are needed. We note in passing that prior to the current 60-
day statutory restriction on the deadline, the Department of Labor once
contemplated extending the deadline for applications to 90 days prior
to date of need, but decided that was too onerous and stayed with the
60-day deadline. 42 Fed. Reg. 4671 (1977); 43 Fed. Reg. 10307 (1978).
The regulations currently provide for a waiver of the 60-day time
period for emergency situations, under 20 C.F.R. Sec. 655.101(f)(2).
This waiver is only available to an employer who either has not made
use of H-2A workers during the previous year's agricultural season or
who has other good and substantial cause, which may include unforeseen
changes in market conditions. The waiver has the further proviso that
the Regional Administrator from the Employment and Training
Administration in the Department of Labor has an opportunity to obtain
sufficient labor market information on an expedited basis to make the
certification determinations.
2. Contract time should be amended to Include ``or duration
of crop activity,'' and market conditions an well as acts of
God should be considered legitimate reasons for ending the
contract.
It appears that the requirement concerning reasons for contract
termination may be changed administratively. Under 20 C.F.R.
Sec. 655.102(b)(12), promulgated first in 1978, the job offer must
provide that the employer may only terminate the work contract before
the specified expiration date if an ``Act of God,'' such as a fire or
hurricane, renders the fulfillment of the contract impossible. None of
the statutes which appear to be general authority for this regulatory
provision--8 U.S.C. Sec. Sec. 1101(a)(15)(H)(ii), 1184(c) and 1188, and
29 U.S.C. Sec. Sec. 49 et seq.--specifies and mandates the conditions
for contract impossibility and subsequent termination. The ``Act of
God'' language appears in regulations that predate the enactment of the
IRCA, which apparently led to an overhaul of the regulations at 52 Fed.
Reg. 20496 (1987); before 1987, only fire was given as an example of an
Act of God. Part 655 of title 20 C.F.R. was added in 1978 at 43 Fed.
Reg. 10306 (1978). In 1978, the language concerning reasons for
contract impossibility and termination was found at former 20 C.F.R.
Sec. 655.202(b)(12) and remained basically the same until 1987.\1\
---------------------------------------------------------------------------
\1\ The 1978 regulations in part 655 replaced prior regulatory
provisions found at 20 C.F.R. Sec. Sec. 602.10 et seq. These prior
regulations contained a longer list of examples of Acts of God than do
the current regulations, but essentially permitted early contract
termination only for ``reasons beyond the control of the employer (due
to an Act of God * * *) * * *.'' These earlier regulations were
implemented in 1967. 32 Fed. Reg. 4570 (1967). Before the promulgation
of the 1967 provisions, the contents of job offers were not as detailed
as they are now.
---------------------------------------------------------------------------
It also appears that the requirement regarding the guaranteed
contract period may be changed administratively, consistent with a 1974
court order. The requirements of 20 C.F.R. part 653 apply to seasonal
agricultural job clearance orders. Under 20 C.F.R.
Sec. 653.501(d)(2)(ix), the job order must state the terms and
conditions of employment, including, among others, any time for which
work is guaranteed and, for each guaranteed week of work, the exclusive
manner in which the guarantee may be abated due to ``weather conditions
or other acts of God beyond the employer's control.'' This regulation
is authorized generally by the Wagner-Peyser Act, codified as amended
at 29 U.S.C. Sec. 49 et seq., particularly by 29 U.S.C. Sec. 49(k),
which authorizes the Secretary of Labor to promulgate necessary
regulations under the U.S. Employment Service program. It is also
authorized by 29 U.S.C. Sec. Sec. 1821(a)(4) and 1831(a)(1)(D), which
concern required disclosure to migrant and seasonal agricultural
workers and are part of the Migrant and Seasonal Agricultural Worker
Protection Act [MASAWPA], codified at 29 U.S.C. Sec. Sec. 1801 et seq.
By its terms the MASAWPA does not apply to H-2A workers directly (29
U.S.C. Sec. 1802(8)(B)(ii) and (10)(B)(iii)), but under the adverse
effect criteria of the INA many of the protections in the MASAWPA apply
to working conditions for H-2A workers set out in the regulations.
However, neither of these statutes, the Wagner-Peyser Act and the
MASAWPA, appears to contain any specific requirement or direction
regarding the details of the guaranteed duration of the work under the
job order.\2\
---------------------------------------------------------------------------
\2\ The current language at 20 C.F.R. Sec. 653.501(d)(2)(ix) was
implemented in 1980 (45 Fed. Reg. 39466 (1980)) and appears in
virtually the same form at former 20 C.F.R. Sec. 653.108(c)(2)(viii)
under the original implementation of part 653 in 1977 (42 Fed. Reg.
4727, 4729 (1977)). Prior to that time, the requirements for clearances
and job orders, found under former 20 C.F.R. part 604, were not as
detailed.
---------------------------------------------------------------------------
The 1977 implementation of part 653 paralleled a court order in
NAACP, Western Region v. Brennan, 8 Empl. Prac. Dec. (CCH) P 9634
(D.D.C., Aug. 13, 1974). This court order required the Secretary of
Labor to provide the full range of manpower services, authorized by law
and required by Department of Labor regulations, to migrant and
seasonal farmworkers on a non-discriminatory basis. Subparagraph
I.D.1.c. of the court order required all job orders to include
disclosure of the terms and conditions of employment including the
``period and hours of employment, the anticipated starting date of
employment and the number of days or weeks thereafter for which work is
available.'' Subparagraph I.D.1.d. required that the job orders include
the ``starting date of employment and the number of days or weeks
thereafter for which work is guaranteed, if any. For each guaranteed
week of work, the job order must state the exclusive manner by which
the guarantee is abated if the offered employment becomes unavailable
due to unforeseeable weather conditions or other acts of God.''
Paragraph VII.D. states that nothing in the order shall preclude the
adoption of new regulations and policies, or changes in regulations and
policies, consistent with the terms of the order.
Under paragraph VII.D., it appears language concerning the
guaranteed period of employment and the conditions for abatement of the
guarantee may be changed as long as they are ``consistent with the
terms of this Order.'' The purpose of the order appears to be the
establishment of procedures which would enable effective monitoring of
and discourage discriminatory hiring practices and illegal job
conditions which violate labor laws, see NAACP, Western Region v.
Brennan, 360 F. Supp. 1006 (D.D.C. 1973). So a change in the
description of the employment period would appear to be permissible if
it did not undercut the policy behind the court order. A guaranteed
period of employment is not required in the job order; the regulations
simply refer to a required disclosure of ``any'' guaranteed period.
Arguably, a change in the method of describing any guaranteed period
would not necessarily undercut the court order's scheme to prevent
labor violations. On the other hand, the overall scheme of the
regulations arguably already takes into account the need for
flexibility in the anticipated work period, while still enabling a
degree of security to the farmworkers.
Current regulations at 20 C.F.R. Sec. Sec. 653.501(d)(2)(v) and
653.502 provide for procedures to be followed by employers and state
agencies when the anticipated date of need for workers changes due to
crop activity and recruitment levels, and for the listing of
alternative work to be done if the work guarantee is invoked. They also
provide for placement by state agencies in alternative jobs where
weather conditions, overrecruitment or other conditions have eliminated
scheduled job opportunities.
3. Regulations should be modified to allow the federal
minimum wage rather than the adverse effect wage rate [AEWR] to
be used as a base ``training wage'' for inexperienced workers
for the duration of the training period stipulated in the
contract. Further, employers should be allowed to specify
``agricultural experience'' as a condition of hiring.
It appears that, due to statutory and judicial requirements, the
Department of Labor cannot modify the regulations to permit the federal
minimum wage rather than a higher AEWR to be used as a base ``training
wage'' for inexperienced workers, both H-2A and U.S. workers, for the
duration of the training period stipulated in the contract. Under 8
U.S.C. Sec. 1188(a), a petition to import H-2A workers may not be
approved unless the petitioner has applied to the Secretary of Labor
for a certification that ``there are not sufficient workers who are
able, willing, and qualified, and who will be available at the time and
place needed, to perform the labor or services involved in the
petition''; and that ``the employment of the alien in such labor or
services will not adversely affect the wages and working conditions of
workers in the United States similarly employed.'' [Emphases added.]
The statute does not address whether inexperienced workers are
considered ``qualified'' and makes no distinction between experienced
and inexperienced workers when referring to the adverse effect on wages
of workers similarly employed. The regulations of the Department of
Labor likewise make no distinction between experienced and
inexperienced workers in providing for the wage requirements necessary
to avoid an adverse effect on U.S. workers when an employer hires H-2A
workers.
Once the employer decides to seek H-2A workers, the statutory
requirement prohibiting an adverse effect on similarly employed U.S.
workers must be satisfied. If an employer hires only U.S. workers
through an agricultural job clearance order in the U.S. Employment
Service system, under 20 C.F.R. Sec. 653.501(d)(4) and (e)(1), the job
order must provide that the ``wages and working conditions offered are
not less than the prevailing wages and working conditions among
similarly employed agricultural workers in the area of intended
employment or the applicable Federal or State minimum wage, whichever
is higher.'' However, if insufficient numbers of qualified U.S. workers
are available and the employer applies for a labor certification, a
copy of the job offer which will be used by the employer to recruit
U.S. and H-2A workers must be included with the certification
application. This job offer must comply with regulations concerning
wage rates which are intended to ensure that the wages offered to H-2A
workers do not adversely affect the wages of similarly employed U.S.
workers, as required by 8 U.S.C. Sec. 1188(a). Under 20 C.F.R.
Sec. 655.102(a), the job offer must offer U.S. workers no less than the
wages offered to H-2A workers, and must offer H-2A workers the same
level of minimum benefits offered to U.S. workers consistent with the
adverse effect criteria. Under 20 C.F.R. Sec. 655.106(b)(1)(ii), the H-
2A labor certification will not be granted if the employer has
``adversely affected U.S. workers by offering to * * * H-2A workers
better wages * * * than those offered to U.S. workers'' after the
certification application was accepted for consideration.
At the time of its promulgation of a final rule concerning AEWR
methodology pursuant to the IRCA, the Department of Labor explained
that the AEWR ``is The minimum wage rate that agricultural employers
seeking non-immigrant alien workers must offer and pay their U.S. and
alien workers, if prevailing wages and any Federal or State minimum
wage rates are below the AEWR. The AEWR is a wage floor, and the
existence of an AEWR does not prevent the worker from seeking a higher
wage or the employer from paying a higher wage.'' 54 Fed. Reg. 28045
(1989).
Apparently, the AEWR was meant to be the minimum wage regardless of
experience, since it appears that, in theory, experience may be
specified as a job qualification on the labor certification
application. In practice, such a qualification may not be acceptable.
The regulations for the Department of Labor and the Immigration and
Naturalization Service permit employers to specify qualifications
required for H-2A workers. The regulations are not explicit about
whether ``agricultural experience'' is permissible as a qualification.
Under 8 U.S.C. Sec. 1188(c)(3)(A), in considering whether a specific
qualification is appropriate in a job offer, the Secretary of Labor is
required to apply the normal and accepted qualifications required by
non-H-2A employers in the same or comparable occupations and crops.
Under the related regulation, 20 C.F.R. Sec. 655.102(c), an employer
may specify bona fide occupational qualifications in the job offer
attached to an H-2A certification application, but they must be
consistent with the normal and accepted qualifications required by non-
H-2A employers in the same occupations and crops. The regional
administrator for the U.S. Employment Service will review the
appropriateness of the qualifications. If a qualification is not
normally required by non-H-2A employers, permitting such a
qualification may artificially and abnormally reduce the pool of
``qualified'' U.S. workers who might be recruited before a
certification that there were insufficient U.S. workers.
Employers also must show that the beneficiaries listed on a
petition for H-2A visas have the minimum qualifications and experience
specified on the labor certification for the job. Under 8 C.F.R.
Sec. 214.2(h)(5)(i)(D), an H-2A petitioner, the prospective employer,
``must show that any named beneficiary qualifies for [the]
employment.'' The ``petition will be automatically denied if filed
without [certification evidence] and, for each named beneficiary, the
initial evidence required in paragraph (h)(5)(v) of this section.''
Under 8 C.F.R. Sec. 214.2(h)(5)(v), an H-2A petitioner must show that
any named beneficiary ``met the stated minimum requirements and was
fully able to perform the stated duties when the application for
certification was filed'' and that ``any unnamed beneficiary either met
these requirements when the certification was applied for or passed any
certified aptitude test at any time prior to visa issuance or prior to
admission if a visa is not required.'' The petition must be filed with
evidence that the beneficiary meets the certification's minimum
employment, job training, and any formal educational requirements.
These regulations implement the policy expressed in the conditions for
approval under 8 U.S.C. Sec. 1188(a), that H-2A workers should not be
imported unless ``there are not sufficient workers who are able,
willing, and qualified, and who will be available at the time and place
needed, to perform the labor or services involved in the petition'' and
``the employment of the alien in such labor or services will not
adversely affect the wages and working conditions of workers in the
United States similarly employed.'' [Emphases added.] Not only must the
specified qualification be normal and accepted by employers who employ
only U.S. workers, but prospective H-2A employers must show that the
foreign workers in fact have such qualifications.
Although ``qualified'' does not necessarily mean ``experienced,''
it appears that experience can be specified as a qualification in the
job offers for the labor certifications required for H-2A workers, if
such a qualification is normal and accepted for non-H-2A employers. In
Elton Orchards, Inc. v. Brennan, 508 F.2d 493 1st Cir. 1974), the court
upheld the Department of Labor regulations and job clearance system,
which required an employer to hire inexperienced American workers when
other growers in the area were permitted to hire experienced foreign
workers, as rationally related to the legislative purpose of reducing
domestic unemployment. As noted above, the statute directs that, before
any foreigners may be hired, there must not be any qualified domestic
labor available. The employer-plaintiff had argued that ``inexperienced
workers were ``unqualified.'' On the one hand, the court noted that
``experience'' was not specified on the certification application. This
implies that experience could have been specified as a required
qualification. On the other hand, the court observed that
``qualified''--in the absence of any specified experience required as a
qualification--did not normally mean ``experienced'' in the case of the
apple picking before it. Apple picking was described as unskilled labor
in the Dictionary of Occupational Titles published by the Department of
Labor, and the plaintiff in the ease admitted to having hired
inexperienced U.S. and foreign workers in the past. 508 F.2d at 499 fn.
7.
In the Employment and Training Administration Handbook [ETA
Handbook] published at 53 Fed. Reg. 22076 (1988), the section on
``Appropriateness of Required Occupational Qualifications'' notes that
most occupations for which H-2A certification is sought are ``low
skilled in nature, and normally would not require much, if anything, in
the way of special skills, training, or experience on the part of the
workers. Where special skills, training, or experience are identified
as requirements in a job order, the Regional Office must review them
for their appropriateness.'' The Handbook notes that reference to the
Dictionary of Occupational Titles is recommended. The non-acceptability
of a required occupational qualification on a job order is sufficient
justification for refusing to accept an H-2A certification application,
and the burden of proving the acceptability of a qualification rests on
the employer. So although experience theoretically could be specified
as a qualification required by the employer, it also appears unlikely
that the Department of Labor would accept this qualification for most
H-2A occupations.
Finally, one should note that section 6 of the Fair Labor Standards
Amendments of 1989, Pub. L. 101-157, 103 Stat. 938, 942, provides for a
training wage to be paid to eligible employees in lieu of the federal
minimum wage; however, ``eligible employee'' is defined as someone who
is not a migrant or seasonal agricultural worker nor an H-2A worker.
Therefore, it appears that Congress did not accept the concept of a
``training wage'' or significant ``training period'' for H-2A and U.S.
migrant and seasonal agricultural workers. The legislative history
discusses the need to train unskilled workers so that they may attain a
productive level, H.R. Rep. No. 260, 101st Cong., 1st Sess. 20 (1989).
As the court discussed in Elton Orchards and as the ETA Handbook noted,
agricultural occupations generally are not considered skilled
occupations requiring an extended training period.
4. Change the 50-percent rule so that once employers are
certified and the foreign workers are employed, employers are
obligated only to hire load (non-migrants who reside within
commuting distance) applicants. Also, the obligation to hire
local workers should be for the duration (100 percent) of the
H-2A certification period, that is, the duration of crop
activity.
It appears that the 50-percent rule could be changed by the
administrative action of the Department of Labor. Under 8 U.S.C.
Sec. 1188(c)(3)(B), for three years from June 1, 1987, employers were
required, as a condition of certification, to hire any qualified U.S.
job applicant from the time the H-2A worker departed for the place of
employment until 50-percent of the period of the contract under which
the H-2A worker was hired had elapsed. Six months before the end of the
three-year period, the Secretary of Labor was required to consider the
findings in the report of the President required by subsection
403(a)(4)(D) of the IRCA. These findings concerned the relative
benefits to domestic workers and the burdens upon employers of
requiring employers to continue to hire U.S. workers after the date the
H-2A worker departed for the place of employment. In the absence of
further legislation concerning this matter and the 50-percent rule, the
Secretary of Labor was required to promulgate regulations based on the
findings of the report, which were to take effect no later than the
expiration of the three-year period.
There has been no further federal legislation on the subject; since
June 1, 1990, the continuation of the 50-percent rule at 20 C.F.R.
Sec. 655.103(e), and of its exceptions and clarifications under 20
C.F.R. Sec. 655.106(e-g), has been a matter of administrative
discretion. Although subsection 403(b) of IRCA requires that the
President's report be submitted every two years, there is no explicit
requirement that the Secretary of Labor reconsider the fifty-percent
rule and issue regulations in accordance with the findings of each
report or in any way revisit the issue. Thus, it appears that the
Secretary of Labor may reconsider the issue and promulgate new
regulations in accordance with the overall policy of balancing the
employer's need for foreign workers with the protection of U.S.
workers. If the Secretary determines that the proposed regulatory
scheme would improve the implementation of that policy, the Secretary
may promulgate new regulations accordingly. Courts have recognized that
the Secretary of Labor has been given broad discretion over the
regulation of the H-2/H-2A program over the years and that, in the
absence of explicit legislative direction, the Secretary may modify the
regulatory scheme if he/she determines that such modifications would
attain a better balance between the interests of employers and U.S.
workers. See AFL-CIO v. Dole, 923 F.2d 182, 187 (D.C. Cir. 1991); AFL-
CIO v. Brock, 835 F.2d 912,915 n. 5 (D.C. Cir. 1987).
One should note that the 50-percent rule has a long history, dating
back nearly twenty years. It was proposed as 20 C.F.R. Sec. 655.4(c)(2)
at 42 Fed. Reg. 4672 (1977), originally implemented as 20 C.F.R.
Sec. 655.203(e), and explained at 43 Fed. Reg. 10308-9, 10316 (1978).
The rule was a compromise measure prompted by concern for the adverse
effects on U.S. workers and the sufficiency of U.S. recruiting efforts
prior to labor certification. The U.S. workers wanted the obligation to
hire until the end of the harvest. The employers wanted the obligation
to hire U.S. workers to end upon the issuance of the labor
certification. So the Department of Labor split the difference and took
fifty-percent of the period from the time the foreign workers left for
the place of employment until the end of the work contract (basically,
the end of the harvest for that employer).
Before 1978, it appears that the policy shifted between an
obligation to hire U.S. workers which ended upon the issuance of
certification to an obligation for absolute preference then back again.
Under former 20 C.F.R. Sec. 602.10(c)(3)(iv), promulgated at 29 Fed.
Reg. 19102 (1964), employers had to give preference to domestic workers
when they became available for jobs in which foreign workers were
employed. Then, under amendments to 20 C.F.R. Sec. 602.10, promulgated
at 32 Fed. Reg. 4570 (1967), this obligation disappeared and a
preference for U.S. workers after the labor certification was not made
explicit in regulations until the promulgation of the 50-percent rule.
The language of the current 50-percent rule and its exceptions and
clarifications remains as originally promulgated at 52 Fed. Reg. 20501,
20516, 20520 (1987), to implement section 218(c)(3) of the INA, added
by IRCA, codified at 8 U.S.C. Sec. 1188(c)(3). Under 8 U.S.C.
Sec. 1188(b)(4), the obligation of ``positive'' recruitment ends on the
date H-2A workers depart for the place of employment. The U.S. workers
who would be hired under the 50-percent rule generally are those
referred through the U.S. Employment Service system. The 50-percent
rule has been upheld as rationally related to the legislative goals of
giving a hiring preference to U.S. workers while not unduly burdening
the already certified foreign workers and employers, Virginia
Agricultural Growers Association, Inc. v. U.S. Department of Labor, 756
F.2d 1025 (4th Cir. 1985).
5. Continue to require employer-provided housing, but allow
reasonable charges (perhaps capped at $25 per week) to cover
maintenance, repair, clean-up and utility costs.
It appears that the requirement that the employer provide housing
free of charge is currently mandated by statute, and is long-standing
by regulation and initially by international agreement. Under 8 U.S.C.
Sec. 1188(c)(4), housing must be ``furnished,'' ``provided,'' or
``secured'' by the employer for the H-2A worker. Although nothing in
the MASAWPA appears to require free housing for U.S. migrant
agricultural workers, under the adverse effect criteria of 8 U.S.C.
Sec. 1188(a), any benefit provided to the H-2A workers must be provided
to the U.S. workers and, conversely, minimum benefits for U.S. workers
must be provided to H-2A workers. Although the terms used with regard
to housing in 8 U.S.C. Sec. 1188(c)(4) do not necessarily indicate free
housing, the legislative history of the statute, H.R. Rep. No. 682,
99th Cong., 2d Sess., pt. 1, at 82 (1986), indicates that the
congressional understanding of those terms means free housing, and that
congressional intent was to continue the free housing for workers, as
well as for family where it was the prevailing practice, long required
by regulation.\3\ The main change made by the statute to existing
regulatory policy was to the type of housing permitted to be
furnished--public housing or temporary labor-camp type accommodations
were to be permitted.
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\3\ ``Under current regulations, H-2 agricultural employers are
required to provide workers with free housing. The Committee bill
continues this basic policy, but with certain modifications [regarding
types of housing which may be provided or secured] * * *. The bill also
requires that free, family housing be provided to those who request it
whenever it is the prevailing practice in the area and occupation of
intended employment to provide family housing.'' H.R. Rep. No. 682,
99th Cong., 2d Sess., pt. 1, at 82 (1986).
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The requirement that housing be provided free of charge to H-2A
workers apparently has its genesis in the agreements with Mexico during
World War II. Paragraphs e and f of the ``Wages and Employment''
article of the Agreement on the Migration of Agricultural Workers,
United States-Mexico, 56 Stat. 1759, 1767 (Aug. 4, 1942), refer to the
rights of workers domiciled at migratory labor camps and to the
standard for housing conditions but do not establish a requirement for
the actual furnishing of housing. Article 14 of the subsequent
Agreement on the Temporary Migration of Mexican Workers, United States-
Mexico, 62 Stat. 3887, (Feb. 20, 21, 1948), provided that the ``Mexican
workers will be furnished, without cost to them, with hygienic lodgings
* * *.'' This free-housing requirement was included in a more detailed
form in Article 2 of the Standard Work Contract incorporated into the
Agreement on Mexican Agricultural Workers, United States-Mexico, 2
U.S.T. 1940, 1987 (Aug. 11, 1951) [Migrant Labor Agreement of 1951 or
1951 Agreement], which, as amended, governed the Bracero program until
its expiration in 1964. There was no explicit reference to free housing
in Pub. L. No. 78, c. 233, 65, Stat. 119 (July 12, 1951), formerly set
out at 7 U.S.C. Sec. Sec. 1461-1468, which authorized the 1951
Agreement.
The current regulations regarding housing can be found at 20 C.F.R.
Sec. 655.102(b)(1) and at 20 C.F.R. Sec. 653.501(d)(xv). The former
requires job offers under the labor certification process to provide
for housing without charge, in the form of rental or public housing, to
those who cannot reasonably return to their residence within the same
day. Where the use of public housing normally requires charges from
migrant workers, the employer is to pay such charges directly to the
manager of the public housing. The regulation also prohibits deposit
charges but permits employers to charge workers for damages to housing,
beyond normal wear and tear, for which they have been found
responsible. Further, where it is the prevailing practice in the area
of intended employment and occupation to provide family housing, it
shall be provided upon the request of the worker. In 1964, the
Department of Labor's post-Bracero program regulations indirectly
provided for free housing of the worker under former 20 C.F.R.
Sec. 602.10(c)(2)(ii) and (c)(3)(ii), promulgated at 29 Fed. Reg. 19101
(1964), requiring domestic workers to be offered, as a minimum, the
terms and conditions listed in the Migrant Labor Agreement of 1951.
Family housing was required to be provided where feasible and
necessary. Under former 20 C.F.R. Sec. 602.10a(b), promulgated at 32
Fed. Reg. 4570 (1967), job offers were explicitly required to provide
for housing without charge to workers and to provide family housing if
it was the prevailing practice in the area of employment. Under
proposed 20 C.F.R. Sec. 655.3(a)(1 & 2), set out at 42 Fed. Reg. 4671
(1977), the job offer had to provide for housing without charge and for
housing for women and for families. The final rule, former 20 C.F.R.
Sec. 655.202(b)(1), promulgated at 43 Fed. Reg. 10314 (1978) and
reiterated at 45 Fed. Reg. 14185 (1980) (providing for housing
standards), provided for housing without charge to the worker and for
family housing where it was the prevailing practice in the intended
area of employment. The current regulations were promulgated at 52 Fed.
Reg. 20499, 20513-514 (1987).
Under 20 C.F.R. Sec. 653.501(d)(xv), the current job order
requirements provide for an assurance of the availability of no-cost or
public housing for workers and, where applicable, for family members
who are unable to return to their residence in the same day. Under
former 20 C.F.R. Sec. 653.108(c)(6) and (d)(2), promulgated at 42 Fed.
Reg. 4730 (1977), the employer was required to provide housing which
met certain standards for an interstate job order and to provide
assurances that, if housing was to be provided to workers in an
intrastate job order, it would meet certain standards. Although the
regulations at former 20 C.F.R. part 653 in 1977 substantially followed
the guidelines established in 1974, by court order in NAACP, Western
Region v. Brennan, supra at 4, those guidelines merely require random
field checks to ensure that housing conditions are as specified in the
job order, but do not address the issue of whether employers are
required to provide housing without charge. In 1980, proposed 20 C.F.R.
Sec. 653.501(d)(xv), set out at 45 Fed. Reg. 2499, 2508 (1980), would
have required that job orders include an assurance of the availability
of ``no cost or nominal cost housing'' for those workers unable to
return home the same day. In the notice for the final rule at 45 Fed.
Reg. 39455-6, 39467 (1980), the Department of Labor discusses comments
questioning its authority to require free or nominal cost housing on
job clearance orders. The Department does not cite any statutory or
international agreement authority, but merely refers to long-standing
regulations of the Department. However, the Department, agreeing with
comments that the term ``nominal cost housing'' was confusing and open
to many interpretations, changed the term to ``public housing.''
Apparently, in some States, migrants were/are required to pay small
charges. As noted above, currently, employers must cover this nominal
cost. ``Public housing,'' defined in 1980 at 20 C.F.R. Sec. 651.7 and
currently at 20 C.F.R. Sec. 651.10, means ``housing operated by or on
behalf of any public agency.'' The final rules promulgated in 1980 also
added the requirement that job orders assure the availability of family
housing ``when applicable.''
6. Eliminate the Adverse Effect Wage Rate (AEWR) and use only
the prevailing wage rate for the area in which employment
occurs.
It appears that legislative action would be necessary in order to
eliminate the AEWR in favor of the prevailing wage rate. As discussed
above under the section for proposal number 3, the adverse effect wage
rate is authorized by 8 U.S.C. Sec. 1188(a), requiring that there be no
adverse effect on the wages and working conditions of U.S. workers.
Under the current regulations at 20 C.F.R. Sec. Sec. 653.501(d)(4),
655.102(b)(9) 655.106(b)(1)(ii) and 655.107, the prevailing wage rate
is to be used in lieu of the AEWR for a state only if the prevailing
wage rate for an area is higher than the calculated AEWR and the
federal or state minimum wage. Although the AEWR existed mainly as an
administrative measure for many years before IRCA, it is now a creation
of statute and could not be replaced by the prevailing wage without an
amendment of the INA. Congress expressly incorporated the prior
regulatory requirements of the AEWR into the immigration statutes,
although it left the description and method of determination to the
discretion of the Department of Labor. AFL-CIO v. Dole, 923 F.2d 182,
184 (D.C. Cir. 1991); see also AFL-CIO v. Brock, 835 F.2d 912, 914
(D.C. Cir. 1987). The court in Brock noted that the legislative history
of IRCA confirms the general intent of Congress to protect U.S. workers
against the adverse effect from imported workers. 835 F.2d at 915. It
also stated that ``Congress made absolutely no alteration in the
statutory mandate that underlies AEWR's, the regulatory adverse effect
prohibition promulgated pursuant to the INA was expressly retained in
the IRCA.'' 835 F.2d at 918-919. In a case prior to the enactment of
IRCA, the court noted that, under the INA, the authority of the
Secretary of Labor concerning the basis of wage rates was limited to a
determination of the ``rate that will neutralize adverse effect'' from
the influx of foreign workers. Williams v. Usery, 531 F.2d 305, 306
(5th Cir. 1976). The case law thus reflects the view that although the
adverse effect criteria protecting domestic workers were not explicit
in the immigration statutes until IRCA, the AEWR was the regulatory
response required by the underlying policy of the INA even before IRCA.
Neither the statutes nor the regulations, however, establish a
formula for the AEWR; that formula is left to the discretion of the
Secretary of Labor. Florida Sugar Cane League v. Usery, 531 F.2d 299,
301 (5th Cir. 1976); see also Brock, 835 F.2d at 914, noting the broad
discretion of the Department of Labor in determining the AEWR. No
substantive law guides the methodology of the AEWR. 531 F.2d at 303.
Therefore, the Secretary and the Department of Labor have considerable
latitude in the actual methodology for determining the wage necessary
to ``neutralize adverse effect,'' and one could argue that the
prevailing wage could be sufficient to neutralize adverse effect. But
in such a case, the prevailing wage for a particular area would simply
have been determined to be, in effect, the AEWR. The adverse effect
criteria would still be the standard by which wages for H-2A workers
would be determined.
Moreover, as at least one court has noted, the experience of the
Department of Labor has been that determining the prevailing wage rate
is not always possible, for reasons that also would make it an
unsuitable substitute for the AEWR. In Williams v. Usry, 531 F.2d at
307, which involved the Florida sugar cane industry, the court noted
that the ``prevailing wage rate'' was defined by the Department of
Labor, and stipulated by the plaintiffs, as ``wages paid to domestic
agricultural workers.'' Since nearly 100 percent of the Florida cane
cutters were foreign, there was no way to determine the ``prevailing
wage rate.'' Prior to IRCA, the AEWR was not calculated for every
state, but only for those states and occupations where the percentage
of foreign workers was so high that the foreign workers effectively set
the prevailing wage rate. Therefore, the Department of Labor could not
rely on the prevailing wage rate as the wage rate necessary to
neutralize any adverse effect on the wages of potential U.S. workers.
The court in Williams noted that the piece-rate system used in certain
agricultural industries, such as sugar cane cutting, did not lend
itself to the calculation of a prevailing wage rate.
As discussed above, before IRCA, the adverse effect criteria were
not explicit in the immigration statutes and had not been explicit in
federal laws since the Bracero program was terminated at the end of
1964 by Pub. L. No. 88-203, 88th Cong., 1st Sess., 77. Stat. 363
(1963). Under former 7 U.S.C. Sec. 1463, authorizing the Bracero
program, no Mexican agricultural workers could be imported until the
Secretary of Labor had certified that the employment of such workers
would not adversely affect the wages and working conditions of domestic
agricultural workers similarly employed. Under Article 15 of the
Migrant Labor Agreement of 1951, the prevailing wage was the minimum
wage to be offered the Mexican workers. The prevailing wage remained
the minimum wage until the 1961 amendments to and extension of the 1951
Agreement, United States-Mexico, 13 U.S.T. 2022. Article 15 was then
amended so that the minimum wage would be either the prevailing wage
rate or ``the rate specified in the individual work contract which
shall be the rate determined by the Secretary of Labor as being
necessary to permit him to certify in accordance with the provisions of
Article 9(a) of the Agreement, whichever is higher.'' Article 9(a)
provided that no Mexican workers should be imported where their
employment would adversely affect the wages of domestic agricultural
workers. The joint interpretation of the amended Article 15 described
the alternative minimum wage rates as ``the prevailing wages for
domestic workers performing the same activity in the same area of
employment'' and ``the wage rate determined by the Secretary of Labor
as necessary to avoid adverse effect upon the wages and working
conditions of domestic agricultural workers similarly employed.'' The
corresponding Article 4 of the Standard Work Contract was amended in
accordance with the amendments to Article 15. After the end of the
Bracero program, the AEWR was no longer required by international
agreement and statute.
Until IRCA's restructuring of the H-visa programs, which created
the H-2A program, the admission of agricultural workers other than
those from Mexico was authorized through the H-2 program established
under the INA upon its enactment in 1952. This program used the
prevailing wage rate as the minimum for H-2 workers until 1963, when
the H-2 program began using the AEWR for eleven H-2 user states. 54
Fed. Reg. 28037 (1989) (setting out the history of the AEWR). After the
Bracero program ended in 1964, the admission of Mexican workers was
also regulated under the H-2 program. The AEWR under the H-2 program
was not explicitly established as it had been under the international
agreements establishing the Bracero program. However, although it was
continued, by administrative action in the Labor regulations for the H-
2 certification, as noted above, courts have considered the AEWR to be
mandated by the underlying policy of the INA. Currently, the courts
have found that the IRCA establishes the explicit authority for the
AEWR. Finally, the Department of Labor notes in its justification for
the AEWR methodology used pursuant to IRCA, the ``AEWR is the minimum
wage rate that agricultural employers seeking nonimmigrant alien
workers must offer to and pay their U.S. and alien workers, if
prevailing wages and any federal or State minimum wage rates are below
the AEWR. The AEWR is a wage floor * * *.'' 54 Fed. Reg. 28045 (1989).
7. Allow foreign workers to move from one H-2A certified
employer to another at any time during the certified period of
employment. Subsequent employers could amend their
certifications and the final employer would be responsible for
transportation costs back to the worker's country.
Restrictions on the transfer of H-2A workers among different
employers appear to be based on statutory requirements which would have
to be amended to permit a loosening of restrictions. The legislative
history of IRCA indicates that Congress did not intend that H-2A
workers should be permitted to move freely among employers who were not
represented by the same association acting as the sole or joint
employer. The provision for a separate program of ``special
agricultural workers'' [SAW's], codified at 8 U.S.C. Sec. 1160, was
meant to address the need for workers who would move about freely from
employer to employer.\4\ Congressional understanding and intent was
that the H-2A program would not permit such movement except among
members of an association which was acting as a sole or joint employer,
not as an agent. The legislative history also notes that the
legislation ``specifically authorizes the continuation of this practice
[permitting associations to file applications for certification on
behalf of their members] and sets forth several rules regarding the
legal responsibility of each party involved when a violation,
sufficient to cause a denial of certification, occurs.'' H.R. Rep. No.
682, 99th Cong., 2d Sess., pt. 1, at 82 (1986).
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\4\ ``Regarding perishable commodities, the Committee recognizes
that special situations exist that may render the H-2 program less than
fully responsive to Western grower needs. Accordingly, the Committee
bill establishes a mechanism by which `special agricultural workers'
may be admitted to perform field work in perishable crops. Because the
Committee is fully cognizant, however, of the problems that occurred
under the Bracero program of the 1940's and 1950's, the Committee
believes that two essential elements must be included in any new
program created. First, the workers must be free to move from employer
to employer without risk of negative repercussions. And second, the
workers must be fully protected under all federal, state and local
labor laws.'' H.R. Rep. No. 68Z 99th Cong., 2d Sess., pt. 1, at 51
(1986).
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In certain circumstances, H-2A workers already are permitted to
move among employers. Under 8 U.S.C. Sec. 1188(d), multiple producers
may join together in an agricultural association and file a single H-2A
petition and the related labor certification. If the association is a
joint or sole employer of H-2A workers, the certifications granted to
it may be used for the certified job opportunities of any of the
producers who are members of the association. Any H-2A workers on the
petitions and certifications granted to the association may move among
the association members to fill certified jobs. Under 8 C.F.R.
Sec. 214.2(h)(5)(i)(A), originally promulgated at 52 Fed. Reg. 205544,
20555 (1987), as 8 C.F.R. Sec. 214.2(h)(3)(i)(A), implementing the IRCA
provisions, agricultural associations which are sole or joint employers
may file petitions for H-2A workers. Under 8 U.S.C.
Sec. 1188(c)(3)(B)(iv), any association, including one acting as an
agent rather than as a joint or sole employer, is permitted to transfer
or refer workers among its members for the purpose of complying with
the 50-percent rule, but an association acting as an agent shall not be
considered a joint employer because of such referrals and transfers.
Except for the purpose of complying with the 50-percent rule, an
association acting as an agent rather than as a sole or joint employer
is not permitted to transfer H-2A workers among members.
The H-2 visa regulations prior to IRCA did not provide for the
filing of petitions by associations and required new petitions for
changes of employer while in the United States. Currently, under 8
C.F.R. Sec. 214.2(h)(2)(i)(D), H-2A workers generally may change
employers while in the United States if the new employer files a new,
separate petition requesting classification and extension of the
worker's stay in the United States.
Prior to IRCA, although the INS regulations did not provide for the
use of associations in petitions, the Department of Labor regulations
already provided for the filing of labor certification applications by
associations, as noted by the legislative history of IRCA, discussed
above. The MASAWPA defines and refers to ``agricultural associations''
(29 U.S.C. Sec. 1802(1)) but does not provide any explicit criteria for
job orders or labor certification or transfer of workers. By its terms
it does not apply to H-2A workers directly (29 U.S.C.
Sec. 1802(8)(B)(ii) and (10)(B)(iii)), but under the adverse effect
criteria of the INA, many of the protections in the MASAWPA apply to
working conditions for H-2A workers under the regulations.
The statutory provisions under 29 U.S.C. Sec. 49 et seq., governing
the U.S. Employment Service System, also do not provide explicit
guidelines concerning the transfer of workers or the filing of
certification applications by associations. However, under the broad
authority given to the Secretary of Labor for such matters, over the
years the regulations have established a policy permitting associations
to file.\5\ The current requirements for certification applications
filed by agents and associations are found at 20 C.F.R.
Sec. 655.101(a)(2 & 3). The regulations concerning assurances do not
refer specifically to associations that act as sole or joint employers,
but they are understood to be included in the term ``employer.'' Under
current 20 C.F.R. Sec. 655.106(c)(2), associations which are joint
employers are no longer required, as they once were, to agree to
liability in writing in order to transfer workers among the members,
but the association must control the assignment of workers among its
members and keep records of assignments. According to the notice at 52
Fed. Reg. 20502 (1987), the language of 20 C.F.R. Sec. 655.106(c)(2)(i)
was clarified to indicate that joint employer associations may transfer
workers among members as long as central records are kept. For the
purpose of complying with the 50-percent rule, any association,
including those acting as agents, is permitted to transfer and refer
workers among its members. Workers may not be transferred or referred
to a member who is ineligible to obtain H-2A workers because of non-
compliance with labor certifications.
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\5\ Under former 20 C.F.R. Sec. 602.10(b), promulgated at 32 Fed.
Reg. 4570 (1967), ``association employers'' were permitted to file an
application for labor certification for foreign workers. Under the
proposed rules for 20 C.F.R. Sec. Sec. 655.1, 655.2(a), at 42 Fed. Reg.
4670 (1977), ``employer'' was defined as not meaning an association,
but an association was permitted to file a certification application as
the agent for its members. The application had to include letters from
the member-employers authorizing the agency and assuming responsibility
for the application and requirements for the certification. The final
rule regarding definitions at 20 C.F.R. Sec. 665.200(b), promulgated at
43 Fed. Reg. 10307, 10313 (1978), changed the proposed definition of
``employer'' to include associations where the associations themselves
had an employer-employee relationship with workers, and added a
definition of ``agent'' which included associations which acted as
agents rather than as employers or joint employers. Under former 20
C.F.R. Sec. Sec. 655.201(a)(2 & 3) and 655.203(d)(5), promulgated at 43
Fed. Reg. 10314, 10316 (1978), agents and associations were permitted
to file certification applications and were required to offer the same
assurances concerning efforts to recruit U.S. workers. Under former 20
C.F.R. Sec. 655.206(b)(2 & 3), promulgated at 43 Fed. Reg. 10317
(1978), certifications made to associations which were sole employers
could be used for the job opportunities of all members and workers
could be transferred among members. Certifications made to associations
which were joint employers with their members could serve as the basis
for transferring workers among members only if the members and the
association agreed to be jointly and severally liable for compliance
with the certification obligations.
With relatively minor amendments, these regulations were continued
by the current regulations promulgated pursuant to IRCA at 52 Fed. Reg.
20496 (1987). The definition of ``employer'' continued to include
associations under former 20 C.F.R. Sec. 651.7, promulgated at 45 Fed.
Reg. 39458 (1980), and under current 20 C.F.R. Sec. 655.100(b). The
current definition of agent is found at 20 C.F.R. Sec. 655.100(b).
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As part of the issue of transferring workers among employers, you
asked under what authority employers were required to transport workers
back to their home country upon the termination of the work contract.
There does not appear to be any statutory requirement for the return
transportation of H-2A workers generally, although under 8 U.S.C.
Sec. 1184(c)(5)(A), employers of H-1B and H-2B workers are responsible
for the reasonable costs of return transportation where the worker was
dismissed before the end of the period of authorized admission. Under
20 C.F.R. Sec. 655.102(b)(5), promulgated pursuant to the authority
granted in the Wagner-Peyser Act and the INA, an employer is required
to advance the cost of transportation ``from the place from which the
worker has come to work for the employer to the place of employment''
when it is the prevailing practice of non-H-2A employers in the area
and occupation to do so, or when such benefits are extended to H-2A
workers. If such an advance has not been made and the worker has
completed 50-percent of the contract period, the employer shall
reimburse the worker for the cost of transportation. If the worker
completes the contract period, the employer is required to pay the
costs of return ``to the place from which the worker, disregarding
intervening employment, came to work for the employer,'' i.e., the cost
of return to the home country. The phrase, ``disregarding intervening
employment,'' originally promulgated at 52 Fed. Reg. 20500, 20514
(1987), is meant to clarify that the employer must provide or pay for
the worker's transportation home or wherever the worker began the
series of jobs culminating at the current place of employment. If the
worker is going to work for a subsequent employer who has not agreed to
pay the cost of transportation to that subsequent worksite, the prior
employer is required to pay those costs. If the subsequent employer is
covering such costs, the prior employer is not obligated to do so. The
last employer of an H-2A worker covers the cost of return. Under
current 20 C.F.R. Sec. 653.501(d)(5), promulgated at 45 Fed. Reg. 39467
(1980), the employer must agree to provide or pay for transportation of
the workers and their families ``on at least the same terms as
transportation is commonly provided by employers in the area of
intended employment to agricultural workers and their families from the
same area of supply.''
Although the requirement to pay the cost of return transportation
appears currently to be purely a regulatory requirement, the
requirement apparently originated in the series of migrant agricultural
worker agreements with Mexico, and the legislation authorizing and
implementing them. Under the section of the 1942 Agreement concerning
Transportation, the employer was responsible for transportation from
the place of origin to the destination and back. Under Article 10 of
the 1948 Agreement, the employer was responsible for the cost of
transportation from the place of contract to the place of employment
and the return. Under Article 6 of the original Migrant Labor Agreement
of 1951, the Secretary of Labor, at the expense of the U.S. government,
was responsible for the transportation of the worker between the
migratory centers in Mexico and the reception centers in the United
States. Under Article 17 of the original Migrant Labor Agreement of
1951 and Article 7 of the Standard Work Contract, an employer was
responsible for the costs of transportation between the reception
center and the place of employment. The Department of Justice was
responsible under Article 31 of the Agreement for the return of a
worker to Mexico through a reception center under conditions not
covered by the Agreement or the Contract. Amendments to Article 17 of
the 1951 Agreement, made in 1952 at 3 U.S.T. 4349, clarified that the
employer was obligated to pay for transportation from the place of
employment back to the reception center regardless of whether the
worker left before the expiration of the contract and clarified the
limited circumstances under which the employer was relieved of the
obligation. Amendments to Article 7 of the Work Contract, made at 5
U.S.T. 399 (1954), provided that the employer was not obligated to pay
for return transportation to the reception center if the worker failed
to complete his contract for unjustified reasons except for an amount
having the same proportion to the total transportation cost as the
actual period worked to the total contract period.
The Migrant Labor Agreement of 1951 was authorized and implemented
by Pub. L. 78, c. 223, 65 Stat. 119 (1951), codified formerly at 7
U.S.C. Sec. Sec. 1461-1468, now omitted. Under this statute, the
employer was obligated to pay the United States for the costs of return
transportation for workers from the place of employment to the
reception centers, unless he could establish that he had provided the
worker with such transportation or its cost. The Secretary of Labor was
authorized to provide transportation to the worker from recruitment
centers outside the continental United States to the reception centers
and back.
8. Strengthen the program of registering farm labor
contractors (FLC's) by requiring both certification/licensing
and bonding. At a minimum, allow employers to require bonding
as a condition of employment.
It appears that the implementation of a bond requirement in the
registration program would necessitate legislative action, although
employers probably could contractually require a bond. Guidelines for
the registration of FLC's are established in detail under title I of
the MASAWPA, codified at 29 U.S.C. Sec. Sec. 1811-1816 (this is the
authority for the regulations in 29 C.F.R. Sec. Sec. 500.40 to 500.50
concerning the registration of FLC's). A person cannot engage in FLC
activities (recruiting, soliciting, hiring, employing, furnishing, or
transporting any migrant or seasonal agricultural worker) without a
certificate of registration, as required by 29 U.S.C. Sec. 1811. Under
the 29 U.S.C. Sec. 1812, the Secretary of Labor ``shall issue a
certificate of registration * * * to any person who has filed * * * a
written application'' containing certain required documentation
[emphasis added]. The Secretary may refuse to issue a certificate on
grounds enumerated at 29 U.S.C. Sec. 1813. These grounds do not include
a failure to be bonded. Therefore, a bond requirement for registration
probably would have to be added by legislative action; the Secretary
apparently does not have the authority to deny a certificate because a
prospective FLC is not bonded.
One should note that one of the requirements in the written
application for registration is a statement listing vehicles to be used
in transporting workers and documentation that the FLC is in compliance
with the MASAWPA requirements for such vehicles, including insurance or
a bond. It appears that a certificate would not be issued if a
prospective FLC did not have vehicle insurance. The existence of this
specific insurance/bond requirement and the contrasting absence of a
general bond requirement seems to be a further indication that a
general bond requirement would need to be legislatively authorized.
Also, under 29 U.S.C. Sec. 1854, there is a private right of action by
persons injured by a violation of MASAWPA, but no provision concerning
bonding of any co-defendants.
The Secretary is permitted to request, among the documents required
for registration, ``other relevant information'' in the declaration of
the applicant's residence and prospective FLC activities. The Secretary
probably could request information about whether the FLC applicant is
or will be bonded without specific statutory authority.
An employer probably could require a bond from the FLC as part of
its contract with the FLC without any statutory or administrative
authority to do so. There do not appear to be any restrictions or
prohibitions on requiring a bond in the contract between the FLC and
the employer or association in the INA, the MASAWPA or the statutes
establishing the U.S. Employment Service system. Most of the statutory
and regulatory conditions concern the work contracts with the
agricultural workers, to protect them by ensuring a minimum standard of
working conditions and wages. Only a few pertain to the relationship
between the FLC and the employer or association. Under 29 U.S.C.
Sec. Sec. 1821(e) and 1831(d), for example, FLC's are required to
furnish wage and work records of each worker to the employer or
association. FLC's are prohibited by 29 U.S.C. Sec. 1844 from
violating, without justification, the terms of written agreements with
employers or associations pertaining to any contracting activity or
worker protections under the statute.
9. Eliminate the requirement that FLC's must be hired by
employers who apply for H-2A certification if use of FLC's is
the prevailing practice in the area.
It appears that this requirement, found at 20 C.F.R.
Sec. 655.103(f), can be changed administratively. None of the relevant
statutes contains an explicit direction concerning the use of FLC's in
recruitment efforts. However, the legislative history of 8 U.S.C.
Sec. 1188 and the statute itself indicate that the employer of H-2A
workers must demonstrate a recruitment effort at the level of non-H-2A
employers in the area in order to obtain a certification. Under 8
U.S.C. Sec. 1188(a)(1)(A), the Secretary of Labor must certify that
there are not sufficient workers who are able, willing, qualified, and
available to work at the time and place where they are needed. Under 8
U.S.C. Sec. 1188(b)(4), the Secretary may deny a certification if he
determines that the employer has not made the required positive
recruitment efforts where the Secretary finds there is a significant
number of U.S. workers who, if recruited, would be able, willing,
qualified and available to work at the time and place needed. According
to the legislative history, ``[o]n this last point [the adequacy of
recruitment efforts where U.S. workers can be expected to be found],
the Committee intends that the Department of Labor shall consider,
among other things, the recruitment efforts for workers made by non-H-
2A employers located in the area of intended employment and the efforts
made by the employer to obtain H-2A workers.'' H.R. Rep. No. 682, 99th
Cong., 2d Sess., pt. 1, at 80-81 (1986).
Apparently, the rationale behind 20 C.F.R. Sec. 655.103(f) is that
where the prevailing practice of employers in a locality and industry
is to use FLC's, a failure by H-2A employers to use FLC's is equal to a
failure to exert the same recruitment effort. Therefore, even if the
Department of Labor eliminated the absolute requirement to use FLC's
where it is the prevailing practice, it may still question whether a
certification applicant had fulfilled the requirement of exerting the
same recruitment effort, if such an applicant failed to use an FLC
where the prevailing practice was to use one. Thus, although the
elimination of the FLC requirement might allow more technical
flexibility, in practice it might not result in any greater actual
flexibility. The FLC requirement may be a recognition or codification
of how Regional Administrators actually evaluate labor certification
applications.
The evolution of the recruitment regulations indicates that a
clearer, more specific standard for recruitment efforts was considered
desirable. It also shows that the current FLC regulation resulted from
the implementation of congressional intent expressed in the legislative
history and perhaps partly from an attempt to specify the type of
effort that would be adequate.\6\
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\6\ Originally, the regulatory requirements for recruitment efforts
were vague. See 42 Fed. Reg. 4672 (1977), promulgating former 20 C.F.R.
Sec. 655.6, requiring ``reasonable efforts.'' The Department of Labor
discarded the ``reasonable'' standard for recruitment efforts with
specified recruitment requirements because of complaints voiced by both
employers and workers that the type and level of recruitment efforts
required were unclear and varied from year to year. See 43 Fed. Reg.
10307-308, 10316 (1978), promulgating former 20 C.F.R.
Sec. Sec. 665.203(f) and 655.205(a). Subsequently, the Regional
Administrator for the U.S. Employment Service was required to notify
the employer about the specific recruitment efforts necessary to
satisfy the requirements of the certification process and to continue
to offer the employer direction concerning these efforts. Pursuant to
IRCA, the Department of Labor proposed new rules, including the current
20 C.F.R. Sec. 655.103(f). It noted the new FLC requirement and the
requirement to make recruitment efforts no less than non-H2A employers
of comparable size in the same area, citing the legislative history to
support the reasonableness and appropriateness of considering the
efforts of non-H-2A employers. See 52 Fed. Reg. 16773, 16788 (1987),
and 52 Fed. Reg. 20499-500, 20516 (1987).
10. Create a national verification system so the employers
can check on the status of U.S. workers who are hired before
---------------------------------------------------------------------------
and during the H-2A process.
Legislative authority would be necessary for such a system since
Congress has power over immigration and naturalization under Article I,
section 8, clause 4, of the Constitution and authority must be properly
delegated to the President for executive branch actions regarding such
a system. Also, it would require establishment of an extensive database
involving the sharing of records between federal agencies such as INS
and the Social Security Administration and the development of
tamperproof identification and/or work authority documents, and would
require appropriations to fund the development. Such legislative
authority already exists to a degree, but although it provides for a
procedure to evaluate and implement such a system, it does not provide
final authority actually to implement an improved national system.
Section 274A(d) of the IRCA, codified at 8 U.S.C. Sec. 1324a(d),
which provides for the evaluation of and changes in the current
employment verification system, established section 274A(b) of the
IRCA. The President is required to report to Congress on any proposed
changes to the system, which must satisfy certain requirements.
Congress reviews the proposed changes and no major change can be
implemented unless Congress specifically provides for funds for
implementation of the change. The President has the authority to carry
out demonstration projects/pilot programs for verification system
changes. Section 101(d & e) of the IRCA provided for studies of a
telephone verification system (TVS), a social-security-number
validation system and a tamperproof social security card. Although
authority has existed for some time for a procedure to develop an
improved national verification system, and although a pilot program for
a TVS has been in place since 1992, the actual implementation of a new,
secure, computerized verification system has been not occurred.
Dissatisfaction with the current system led to active study and
discussion of an improved system,\7\ culminating in more detailed
provisions for pilot programs in the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, Division C,
Sec. Sec. 401-405, 110 Stat. 3009 [IIRAIRA]. Section 404 provides for
the development of an employment eligibility confirmation system,
including a toll-free telephone line and electronic media. Sections 401
to 403 in title IV set out the guidelines for establishing pilot
programs, volunteering to participate in such programs, and the
procedures for such volunteer participants. However, Representative
Lamar Smith, noting that the effort to establish a strong verification
system dates back at least to the time of the IRCA, cautioned in a
hearing that the pilot programs in the IIRAIRA of 1996 should not
``become an excuse for delay or inaction in establishing a reliable,
nationwide verification system.'' Verification of Benefit and
Employment Eligibility. Hearing before the Subcomm. on Immigration and
Claims of the House Comm. on the Judiciary, 104th Cong., 1st Sess.
(1995) (opening statement of Hon. Lamar Smith, Subcommittee Chairman).
---------------------------------------------------------------------------
\7\ For a discussion of the demonstration/pilot programs pursuant
to IRCA and the proposals and actual provisions of the 1996 Act, see
H.R. Rep. No. 879, 104th Cong. 2d Sess. 109-111, 119-120, 123-124, 137;
H.R. Conf. Rep. No. 828, 104th Cong., 2d Sess. 233-237; H.R. Rep. No.
469, 104th Cong., 2d Sess., pt. 1, at 108, 126-130, 166-170, 248-250
(1996); Verification of Benefit and Employment Eligibility. Hearing
before the Subcomm. on Immigration and Claims of the House Comm. on the
Judiciary, 104th Cong., 1st Sess. (1995); Subcomm. on Immigration and
Refugee Affairs of the Senate Comm. on the Judiciary, Options for an
Improved Employment Verification System, S. Prt. No. 114, 102d Cong.,
2d Sess. (1992).
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If we may be of further assistance, please contact us.
Margaret Mikyung Lee,
Legislative Attorney.
Department of Public Welfare,
Madera, CA, February 24, 1999.
TO: Manuel Cunha, Jr.
FROM: Lee Rhyne, Director of Welfare
SUBJECT: TANF Plans and Farm Labor for Madera County, 1999
This is in response to your phone call of last week regarding the
status of our TANF caseload and our CalWORKS Program in Madera County.
You are also concerned about our prospects for farm labor for the
harvest season of 1999.
Our total TANF (CalWORKS) population is three thousand five hundred
(3,500) cases. Of this number, two thousand (2,000) are actively
enrolled in the TANF (CalWORKS) Self Sufficiency Program. The remaining
fifteen hundred (1,500) cases are exempt for various reasons. The
largest single reason is children living in the household of a non-
needy adult or other needy relative. Also included in this number are
three hundred twenty five (325) cases where the father and/or mother
are undocumented aliens who have children born in this country. Most of
these three hundred twenty five (325) cases have adults working in farm
labor and are not included in the following numbers.
Of the two thousand (2,000) cases actively enrolled in the Self
Sufficiency Program, three hundred thirty two (332) are either part-
time or full-time employed in farm labor.
Madera County's TANF Program has no significant plans to recruit
and prepare clients for work in farm labor who are not presently
employed in that category. Our only activity will be to encourage
clients to participate in farm mechanics and other classes related to
upgrading their farm labor skills.
In regard to TANF recipients available for farm employment in the
coming harvest season, I do not see any significant number of available
clients. Those experienced in, and identified with farm labor will
already be fully employed in the farm labor cycle and this will leave
no significant available pool of workers.
One of the dynamics of the TANF Program is to have the TANF
recipients engaged in either an employment activity or a pre-employment
activity. Because of this, we simply do not have any groups of people
sitting around waiting for a call to work in farm labor or any other
industry. However, this certainly is not to say we will not give you
our fullest cooperation in advertising and in exhorting our clients to
be involved in farm labor. We have found in the past that almost
without exception all of our farm labor potentials are already
connected with a farm labor contractor and are routinely working when
work is available.
In summary, I do not see any significant increase in the
availability of farm labor nor do I anticipate we will be able to
develop any larger pool than those already involved in the farm
industry.
Lee Rhyne,
Director of Welfare.
__________
Health & Human Services Agency,
Tulare, CA, March 2, 1999.
Manuel Cunha, Jr., President,
Nesei Farmers League,
5108 E. Clinton Way #115,
Fresno, CA.
Dear Mr. Cunha: We appreciated the opportunity to talk to you last
week about the CalWORKs program and the interests of the Nesei Farmers
League. You have previously provided us with estimates of the number of
fruit and vegetable acres in Tulare County and surrounding areas and
the number of workers that are needed to harvest those crops during
various times of the year.
The TulareWORKs program is charged with implementing, the
provisions of Federal and State welfare reform. Those provisions
require that persons applying for or receiving cash assistance, be
required to participate in work activities with the goal of obtaining
employment to achieving self-sufficiency. We work with many people who
have been recipients of aid for extended periods of time and have
difficulty transitioning to the world of work. Therefore, many of them
are enrolled in vocational education and work experience programs to
develop the skills needed to work. Consistent with the goals of welfare
reform, we try to prepare the participants for full-time employment in
work activities that reflect the jobs available in the labor market.
As you heard at the meetings convened in Kern and Fresno counties
last year, we have difficulty recommending that participants engage in
work associated with the vegetable and fruit harvest because of several
factors. These include the fact that generally the harvest laborers are
employed by farm-labor contractors who direct their activities to
specific farms and crops for limited periods of time. The farmers do
not want to be the employer. There are a variety of skills associated
with the different kinds of harvests and the degree of skill dictates
the level of income for the worker. The work requires traveling to
various sites and involves manual labor in difficult conditions--the
high summer-time temperatures of the Greater San Joaquin Valley, very
basic field amenities including access to food, water and toilet
facilities. Finally, there is no on-going training and employment that
a participant can rely on that results in full-time, year round work,
with associated health or other benefits. Finally, it is highly
unlikely that farmers will benefit from workers who are not well-
prepared for the work and may have difficulty working effectively under
the conditions associated with harvesting crops. We do offer training
in other areas associated with the farming industry of our Valley and
will continue to work in those areas.
The TulareWORKs program is willing to explore other options with
you. As you know we are doing everything we can to assist workers in
the orange harvesting and packing industry, who were impacted by the
December 1998 freeze, including providing training in various
employment areas and finding work for them. Please let us know if there
is anything more we can do to work with you.
Sincerely,
David Crawford,
Division Manager, CalWORKs.
__________
Community Service Agency,
Modesto, CA, February 23, 1999.
Manuel Cunha, Jr., President,
Nesei Farmer's League,
5108 E. Clinton Way Suite 115,
Fresno, CA.
This is a follow up to your conversation with Ms. Caviness on
Tuesday. Below, you will find information related to the number of
families/individuals receiving Temporary Aid to Needy Families (TANF);
data on clients currently engaged in seasonal work; and information
about the types of jobs and training programs available to TANF
recipients in Stanislaus County.
In Stanislaus County, we have approximately 10,400 families,
consisting of 29,600 adults and children, receiving benefits from the
TANF program. Eighty-six percent of these families are female, single
parent, heads of households. As you know, this family structure has
unique child care and transportation issues that must be considered
when preparing individuals for work.
We estimate that approximately 450 TANF adults are currently
engaged in some kind f seasonal employment. These families rely on TANF
benefits for their income support, during the months they are not
employed. However, since these families are facing time limits on
receiving benefits, our goal is to work with these families to secure
year-round employment.
The jobs most often obtained by our clientele are in the areas food
service, personal and domestic services, sales, food processing,
packaging/materials handling, clerical, construction, and health.
There are a number of training programs offered through the local
Junior College and Adult Education/ROP Centers which are utilized to
prepare clients for jobs in high demand occupations. There are no plans
at the present time, to develop and offer field work training programs
in fiscal year 99/00. On occasion, we will work with the College and/or
Adult Education to develop specialized training programs where there is
identified business need. In the past year, we offered a Culinary
training program in partnership with the College and the local
Restaurant Association. At the present time, we are offering a
Landscape training program, in partnership with the College and the
Sheriff's Department.
I hope this information is helpful to you. If you have any
questions, please do not hesitate to give me a call.
Jeff Jue,
Director.
CalWORKS,
Stockton, CA, February 26, 1999.
RE: Employment Opportunities for CalWORKs Participants in Agricultural
Jobs.
Mr. Manuel Cunha, Jr., President,
Nesei Farmer's League,
5108 E. Clinton Way Suite 115,
Fresno, CA.
Dear Mr. Cunha: This letter is written in response to your request
of February 19, 1999 concerning the above subject. Per our
conversation, the following is provided:
1. San Joaquin County is an agriculturally based employment
sector. However, the majority of agriculture jobs are seasonal
and do not provide sufficient income to move welfare recipients
into self-sufficiency.
2. The San Joaquin County CalWORKs population includes a
significant number of individuals (particularly two-parent
families) who already work in agriculture-related jobs which
only provide seasonal employment and limited income during the
year. Once the ``season'' ends and any unemployment insurance
is exhausted, the workers re-apply for and receive public
assistance benefits.
3.The federal five-year time limit for receipt of public
assistance encourages farm laborers and agriculture workers to
seek other employment which will provide year around work and
earnings sufficient to keep a family from public assistance.
4. San Joaquin County is not providing training to our
CalWORKs participants for jobs that are seasonal or
agricultural based because it does not lead to full time
employment and self-sufficiency as previously stated above.
I hope you find this information useful. If you have any questions,
please do not hesitate to contact me.
Sincerely,
Bobbie Fasano,
Deputy Director CalWORKs.
__________
Congress of the United States,
House of Representatives,
Washington, DC, May 22, 1997.
The Hon. Alexis Herman,
Secretary, Department of Labor,
200 Constitution Ave.,
Washington, DC.
Dear Alexis: As you know, I represent the heaviest agricultural
production area in Georgia. The area I represent is extremely reliant
on an adequate supply of farm labor, especially during harvest.
I continually hear from producers in Georgia about the growing
shortage of legal workers who are willing to take on the labor-
intensive harvesting jobs commonly found in the fruit and vegetable
industries.
Despite years of research devoted to the development of mechanical
harvesting options, most fresh fruits and vegetables must still be
harvested by hand. As you can imagine, without adequate hand labor
during critical periods of harvest, producers of fruits and vegetables
face a substantial risk to the value of their crops.
As you are aware, an attempt was made in the last Congress to
create a new system for temporary agricultural workers through reform
of the Department of Labor's H2-A Program, but that effort failed.
After the failure, Georgia's agricultural leadership met with the U.S.
Department of Labor staff to brief them on reforms that could make the
H2-A program into a program agricultural employers could use. It is my
understanding that the Republican Leadership in Congress is endorsing a
legislative package of H2-A Program reforms. That bill is due to be
introduced in the second week of June.
I am concerned, however, that the legislation may not be passed
this year.
Therefore, I would request that you consider addressing these
concerns administratively, if at all possible. To that end, I would
request that you and appropriate Department of Labor Officials meet
with several agricultural employers from my district, interested
Members of Congress and me to discuss the enclosed proposals developed
by Georgia agribusiness leaders. These changes are supported by
Governor Miller, Georgia's Commissioner of Labor, Commissioner of
Agriculture, and the General Assembly, as evidenced by the additional
materials enclosed herewith.
If possible, I would like to arrange this meeting to take place
sometime during the week of either June 2 or June 9.
Thank you for your attention to this request, and I look forward to
a constructive dialogue with the Department of Labor on these proposed
administrative changes.
Hon. Sanford D. Bishop, Jr.
U.S. House of Representatives.
__________
U.S. Department of Labor,
Employment Standards Administration,
Wage and Hour Division,
Washington, DC, January 8, 1998.
The Hon. Sanford D. Bishop, Jr.,
U.S. House of Representatives,
Washington, DC.
Dear Congressman Bishop: We appreciated the opportunity to meet
with you on November 7 to discuss in detail several of the changes to
the H-2A temporary nonimmigrant farm worker program proposed by your
constituent Georgia growers. In addition, thank you for providing a
copy of the Congressional Research Service's (CRS) analysis of the
growers' proposals.
As you requested, this confirms information and views we provided
in this meeting regarding the proposals for changes to the H-2A program
the CRS believes do not require legislative change. We have identified
each proposal by the number listed in the CRS analysis. Our comments
are as follows:
1. The requirement that a prospective employer's H-2A
application must be filed at least sixty (60) days prior to the
date of need should be reduced to thirty (30) days.
The Department of Labor (Department) is required by law to issue H-
2A labor certifications at least 20 days before the first date of need
for H-2A workers. As a result, the Department believes that reducing
the filing period from 60 to 30 days will not provide adequate time for
potentially effective domestic recruitment. Ten days would not be
adequate to perform meaningful domestic recruitment.
The Department does recognize the difficulty growers face in
predicting the number of workers that will be needed 60 days before the
date of need and, therefore, intends to reduce the lead time for filing
applications for H-2A workers from 60 days to 45 days. In addition, the
Department will discuss with the Immigration and Naturalization Service
(INS) possible streamlining in the INS H-2A visa petition process.
2. H-2A employers should be allowed to end the contract
period based on the ``duration of crop'' activity, including
market conditions (as well as ``acts of God'').
Under current regulations, growers must specify the contract period
for which they need workers (initially for recruitment purposes) and
provide both domestic and foreign workers with a ``three quarter
guarantee'' of the number of hours in the job offer contract period or
pay for any shortfall. This requirement is an attempt to insure that
both domestic and foreign workers who may travel long distances and/or
forgo other employment opportunities to accept an H-2A job offer are
treated fairly. Growers have the latitude to reduce the contract period
by up to 25 percent without any justification. In addition, growers can
further reduce the contract period based upon ``acts of God'', such as
weather conditions, but not for market conditions. Growers also have
the latitude to assign alternative work if it is incidental to the job
described in the application and can seek the assistance of the State
employment service in securing alternative jobs for domestic workers in
the event the grower is not able to provide the 75 percent of the work
which had been guaranteed.
The Department believes that the regulations afford growers a
significant amount of flexibility, especially since it is the grower/
applicant which unilaterally establishes the contract period in the
first place. The Department also believes that it would be unfair for
low-wage farmworkers--both domestic and foreign farmworkers--to assume
an even greater portion of the grower-employer's business risk should
the farmworker choose to take employment, and that this change would
contribute to discouraging domestic farmworkers, from accepting such
employment.
4. Change the ``50 percent rule'' so that, once certified, H-
2A employers are obligated to hire only local workers (non-
migrants who reside within commuting distance) for the duration
(100 percent) of the H-2A work period (i.e., the duration of
crop activity).
The current ``50 percent rule'' represents a compromise between
domestic farmworkers who believe they should benefit from a hiring
preference through the end of the contract period and growers who
believe that any requirement to hire domestic workers should end with
labor certification (i.e., well before the start of work). Migrant
workers often travel significant distances for short term seasonal work
and a change to the ``50 percent rule'' as proposed would further
reduce seasonal work opportunities available for domestic farmworkers
who often seek to link a series of short-term, possibly overlapping
jobs.
9. Eliminate the requirement that farm labor contractors
(FLC's) must be used by employers who apply for H-2A
certification if use of FLC's is the prevailing practice in the
area and crop.
One of the primary objectives of the H-2A program is that domestic
farmworkers be given preference in agricultural employment and that
every avenue is explored and utilized in recruiting domestic
farmworkers prior to allowing foreign workers into the country. In some
regions and crops FLC's are used as a matter of practice by growers for
securing sufficient domestic farm labor during peak periods. It is in
those regions and those crops that the Department of Labor requires use
of the licensed FLC's by growers submitting H-2A applications. This
requirement helps assure that every effort is made to secure a domestic
workforce; failure to require the use of licensed FLC's would ignore a
significant resource for domestic recruitment.
Nonetheless, the Department acknowledges and agrees that some FLC's
are the cause of serious labor abuses. In this context, your staff
inquired as to whether an exception to this requirement could be made
in those areas where the FLC's have a history of relying on
undocumented workers or labor abuses. We have asked our legal staff to
examine this issue more closely and we will further advise when we have
completed this review.
In our conversation with you and your staff, we also discussed two
grower proposals that CRS had not identified as regulatory in nature:
7. Allow foreign workers to move from one H-2A certified
employer to another at any time during the certified period of
employment, with the final employer responsible for
transportation costs back to the worker's country of origin.
The H-2A program does allow for movement of H-2A workers among
certified employers and, in fact, it is a common practice in some areas
and crops. We would be pleased to speak with Georgia growers interested
in pursuing transfer of H-2A workers.
8. Strengthen the program of registering FLC's by requiring
both certification/licensing and bonding. At a minimum, allow
an employer to require bonding as a condition of employment of
an FLC.
As we explained, the Administration did attempt to broker an
agreement between growers and worker advocates for legislation on this
issue a few years ago, although this initiative was not successful. The
Department would be pleased to work with you in achieving such a
requirement and would also note that some states already impose this
requirement on FLC's operating in their jurisdictions.
Again, we appreciated the opportunity to meet with you and your
staff to review the Georgia growers' proposed changes to the H-2A
program. We understand your commitment to making the H-2A program more
responsive for the growers and we look forward to further discussions
on how we might be able to assist you.
Sincerely,
John R. Beverly, III, Director,
U.S. Employment Services.
John R. Fraser, Acting
Administrator,
Wage and Hour Division.