Labor Group Helps Preserve Experience Provision

Most Americans don’t know what it’s like to work in a field harvesting crops. The majority of field hands are migrant workers.

The only source of legal farm workers to replace those who are unauthorized is the H-2A temporary and seasonal foreign worker program administered by the U.S. Department of Labor (DOL). Nonetheless, DOL continues to insist that there are U.S. citizens ready, willing, and able to do seasonal agricultural work, if only they are given the opportunity. This has led DOL to challenge experience requirements and other qualifications that H-2A employers insist are necessary to hiring effective workers.

Some H-2A employers are fighting back and winning. According to Libby Whitley, president of MAS Labor, a company involved in assuring the benefits of the H-2A program are available for growers, the experience provision is critical because field work is hard, physical labor, and workers must assess maturity and assure quality on-the-fly. At a minimum, she says, job applicants need to know what to expect.

Whitley says, “in the past, for many ag jobs, we have been able to get a modest prior experience requirement — 30, 60, or 90 days — in H-2A job specifications without push-back from DOL. We have been able to specify requirements such as being able to work in all kinds of weather and carrying 50 to 60 pounds over the course of the day,” she explains. “The reason the experience requirements and other qualifications are so important is that the employer is entitled to try to hire workers who able, willing, and qualified to perform the job.”

DOL Denies H-2A Applications

For the first time, in 2012 DOL denied most H-2A applications that required experience. Fighting back, Whitley and others filed more than 40 appeals with the administrative law judge, stating the H-2A application needed to include experience. For MAS Labor at least, the results were astounding.

“We prevailed in 100% of our cases in seven states, including Ohio, Pennsylvania, New York, Utah, Virginia, Michigan, and New Jersey,” says Whitley. “The judges agreed the DOL position was wholly unsubstantiated and had no basis in any kind of statistical survey data.”

Whitley explains, DOL used data from a New Jersey survey (from a wholesale nursery) that had responses from four out of a universe of 2,000 commercial nursery operations. “The DOL position was that these four respondents were an adequate sampling to determine what would be normal and acceptable business practices,” she says. “(We said) the state surveys were not statistically valid.”

Effectiveness Of H-2A

MAS Labor’s work on behalf of its clients ties in with a larger industry effort. The National Council of Agriculture Employers (NCAE) commissioned a national statistical survey to assess the government’s effectiveness in administering the H-2A program.

“NCAE raised the quality of the debate,” says Whitley. “Up until their work we had heard plenty of horror stories but no statistically valid evidence of how severely broken H-2A is.”

Last year there were about 70,000 H-2A job openings certified or approved by the DOL. According to Whitley, U.S. workers expressed interest in about half these H-2A jobs.

“But the NCAE survey showed that of the supposedly available and interested U.S. workers, only 5% worked the entire contract period,” she continues. “Sixty-eight percent did not accept employment, 7% did not report for work, and 20% left early or were terminated.”

Making matters worse, says Whitley, “for every U.S. worker referred, they would lose one position off the foreign labor certification application,” meaning that the employer had one less opportunity to bring in a legal seasonal worker who met the qualifications and wanted to work.

In spite of the difficulties, H-2A can work. As David Fulton, Whitley’s business partner at MAS Labor, says, “growers are caught between a rock and a hard place: a lack of legal workers, and stepped up immigration enforcement on one hand, and a cumbersome costly H-2A program on the other hand. Employers can be successful with the H-2A program if they are willing to step up to high compliance hurdles and deal with instances where DOL may be out of line,” he says.

Whitley agrees. “H-2A works well for employers who have a competent agent and good legal resources to fall back on,” she says. “Those two things will drive up costs, but it is essential to have those resources to make the program work for you. We will continue to fight wherever we have to on this issue.”