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NCAE: H-2A proposal would hurt ag employers

by Joan Murphy | October 25, 2009
WASHINGTON -- The latest changes to the H-2A program will be too costly for employers to work through, and the Obama administration should refrain from making changes until Congress acts on AgJobs legislation, according to the National Council on Agricultural Employers.

Employers have had to navigate a shifting regulatory landscape in the H-2A program over recent months. In May, the Obama administration suspended the Bush administration's 2008 H-2A rules. In June, a federal court ordered the federal government not to suspend the rules, so now the 2008 rules remain in force as legal and regulatory fixes move forward.

"The regulatory chaos that has ensued during the past year has made it exceedingly difficult for current and potential H-2A users to understand and comply with the rules of the program," Frank Gasperini Jr., the council's executive vice president, said in Oct. 15 comments to the U.S. Department of Labor.

The 2009 proposal will end in higher costs for small farmers trying to fill their seasonal labor needs, leaving small farmers priced out of the H-2A market, the council said in its 45 pages of comments. "NCAE believes that although all employers will be put at risk by these proposed changes, small growers/farmers will be particularly hard hit."

The group also disagreed with the Department of Labor's argument that the Adverse Effect Wage Rate, in addition to a prevailing wage, is required to prevent H-2A workers from depressing the wages of domestic agricultural workers. The agricultural workforce is "overwhelmingly alien," so the rate is no longer justified, said the council, which represents a range of groups, including Western Growers Association, the United Fresh Produce Association and the U.S. Apple Association.

Changing the methodology for calculating wage rates will lead to wage increases and place domestic producers at a disadvantage with competitors, the California Grape & Tree Fruit League warned in one of more than 500 comments field on the H-2A proposal.

North Carolina growers, one of the larger users of the H-2A program, said that the proposed changes would force farmers to switch to non-labor- intensive crops, turn to questionable labor practices or leave farming.

"We urge the department to abandon this rulemaking and work cooperatively with H-2A employers to produce meaningful reforms to the program that would benefit workers and employers alike," said the North Carolina Growers Association.

In addition, the council urged the federal government to leave the 2008 regulations in place until Congress acts on AgJobs legislation to reform the temporary guest worker program.