Finding The Right
Solution To Labor Reform

By Chris and Eve Pawelski

IN RESPONSE to the farm labor crisis a number of growers and grower organizations have hopped on the AgJOBS bandwagon and have called for the passage of AgJOBS, as is, purposefully rejecting any attempt at this point to amend or change this legislation for the betterment of agricultural employers.

AgJOBS, as proposed, is a good starting point, but it is not a comprehensive or realistic, long-term solution to this agricultural labor crisis. As it stands now, AgJOBS is a very bad deal for agricultural employers and, if passed as is, will actually make our situation worse five years or so down the road.

In October 2006, the USDA National Agricultural Statistics Service reports there were roughly 1,077,000 hired workers on the nation's farms and ranches. The U.S. Department of Labor reports that of that amount, roughly 60,000 were H-2A workers. That's less than 6% of the estimated workforce. Why do so few farmers use the H-2A program? Two reasons, (1) the hassles and (2) the costs associated with the program. While AgJOBS partially addresses the hassles associated with the H-2A program it does nothing in regard to the costs.

AgJOBS does accomplish two objectives. The first objective is that the vast majority of illegal workers will be put on a path to adjusted status. The second is the application process for the H-2A program will be somewhat streamlined and simplified.

However, with the exception of the application process, AgJOBS fails miserably at addressing the problems with the current H-2A program. Even the first stated accomplishment is a dubious one. A large segment of the population, including a number of lawmakers, are categorically and vehemently opposed to legislation that primarily focuses on providing adjusted status or "amnesty." This makes passage of the AgJOBS legislation difficult, if not impossible.

Reality Check

Regardless of how you or I may feel personally, this is the reality of the current political climate. This position also ignores that not all farmworkers, or even a majority, necessarily want to become U.S. citizens. The majority would prefer to participate in a guestworker program that allows them to work in the U.S. for a period of time and then return home to spend time with their families. (See the recent Pew Research Center Hispanic study titled "Survey of Mexican Migrants: Attitudes about Immigration and Major Demographic Characteristics." dated 3/2/05 http://www.immigrationline.org/research.asp?pubid=784.)

In all, too much attention has been focused on a adjusted status and not enough attention has been focused on reforming the guestworker program. Real reform of the H-2A program should incorporate these changes:

1. The current H-2A program uses an adverse effect wage rate (AEWR). This should be replaced with a prevailing wage, which is the standard for ALL other guestworker visas

2. Arcane features as the "50% rule" and the "3/4 guarantee," must be eliminated. These rules along with AEWR were created more than 40 years ago under the theory that these workers would displace willing domestic workers. There are no willing domestic workers displaced for agricultural jobs. (Go to http://www.dol.gov/esa/regs/compliance/whd/whdfs26.htm for more information.)

3. Establish lawsuit checks and balances, specifically requiring mediation before any litigation and requiring the loser to pay both sides. Currently, taxpayer-funded Legal Services organizations file frivolous and expensive lawsuits, sending "demand letters" containing outrageous allegations and exorbitant restitution demands, pressuring for quick settlements, and threatening expensive (and in most cases, cost-prohibitive) lawsuits if demands aren't met.

4. Eliminate the requirement that H-2A employers provide travel and other miscellaneous expenses for migrant workers during their first week of employment. For many small growers, these transportation expenses make the H-2A program cost prohibitive. (Go to http://commdocs.house.gov/committees/judiciary/hju77899.000/hju77899_0.HTM and www.floridafarmbureau.org/pdf/ArriagaDecisionTravelPayments4MigrantFarmworkers.pdf )

Real Reform Is Needed

Despite some misinformation being spread, sadly even by some grower organizations, AgJOBS does not eliminate AEWR. AgJOBS would initially freeze AEWR for three years at the 2002 rate. If after a three-year period Congress does not set a new wage standard, AEWR will be the wage rate (for each state) that would have resulted if the adverse effect wage rate in effect on Jan. 1, 2003, had been annually adjusted, beginning on March 1, 2006, by the lesser of the 12-month percentage change in the consumer price index or 4%. Each subsequent year the AEWR would be increased in the same manner. This "reform" makes AEWR worse. Real reform would replace AEWR with a prevailing wage.

What's also made worse by AgJOBS is a change in venue in the court system. The H-2A program currently allows H-2A workers to file lawsuits only in state courts under state contract law, not in Federal court. Currently, the H-2A program, due in no small part to these arcane features like the "50% rule" and the "3/4 guarantee," exists as a lawsuit magnet for the various taxpayer funded Farmworker Legal Services organizations and their allies. AgJOBS would allow workers to sue in Federal court, where decisions will typically be much more costly to the grower. The publication by Rael Jean Isaac, "Harvest of Injustice: Legal Services vs. The Farmer," published in 1996 by the National Legal and Policy Center, is a must read for any farmer interested in this issue for it details explicitly how Legal Services (and their allies) view and use the H-2A program to generate lawsuits. Chapter one ("Maryland Apple Growers and the H-2A program: A Case Study") and chapter two ("H-2A Program Under Assault Nationwide") lay out in clear and explicit detail the methods in which Legal Services operatives employ in the actions against growers that utilize the H-2A program. (For more information, go to www.nlpc.org/harvest.asp and http://commdocs.house.gov/committees/judiciary/hju77899.000/hju77899_0.HTM.)
It is disconcerting when I hear growers and grower representatives state that we should not try to change or amend AgJOBS but should lobby for its passage as written. Virtually all legislation, especially serious and complex legislation, on the federal (or even state) level gets amended/modified/changed as it works its way through the legislative process. We will get "one bite of this apple"f" so we had better get it right. And why are so many grower organizations bending over backwards to not upset these self-appointed farmworker advocate organizations? Who cares what they want? They don't like agricultural employers and haven't been chosen by farmworkers to represent them or speak in their behalf.

No Real Reform
As I view it, the advocates get all of the undocumented workers put on the path to citizenship and none of the arcane rules of the H-2A program are removed or reformed (and AEWR gets worse). What must be kept in mind is that the self-appointed farmworker advocate organizations have long viewed and referred to the H-2A program as being nothing more than a form of "indentured servitude." The non-existent reforms found in AgJOBS will not change their view. (For additional information, go to www.fwjustice.org/Immigration_Labor/GuestworkerBASICS.htm, and www.fwjustice.org/Immigration_Labor/H2abDocs/H-2ASummary.doc.)

What will AgJOBS do if enacted as proposed? It will be a three- to five-year reprieve. However, once the vast majority of workers that work in agriculture pass the three- to five-year period required to apply for and obtain permanent resident status, the vast majority of those workers will eventually move out of the agricultural employment field and leave our farms. Anyone that believes otherwise is simply deluding themselves. Growers will then be left with an expensive, problematic and lawsuit magnet of a guestworker program. The difference this time (as opposed to previous immigration reform measure periods) will be that due to enhanced border security and illegal immigration law enforcement, farmers will not have another option, that of millions of available undocumented workers. And then we will go from the frying pan into the fire.

I've heard it said, "well something is better than nothing." True. If you receive two gunshot wounds, one to each leg, stopping the bleeding for one wound is better than doing nothing. The problem though is if you don't fix the other wound you still will bleed to death.

AgJOBS does nothing to address the real problems with the H-2A program, and, in fact, will make some problems worse. Ask yourself if this is the program you want to be left with to supply your workforce. American farmers and ranchers will be better served if their organizations work for the passage of legislation that gets the best possible deal for farmers, consists of real reforms to the H-2A program, and possesses the possibility of passage. AgJOBS as it stands now falls far short of those goals.

The Pawelskis are fourth-generation growers operating a 110-acre onion farm in Orange County, NY.

CUTLINE:
New York onion grower Chris Pawelski