“There has never been a more important time in all my years of working in Florida agriculture for growers to reach out to their lawmakers.” That’s Mike Carlton’s take on the current situation surrounding agricultural labor and immigration policy. Carlton, Florida Fruit & Vegetable Association’s director of labor relations, says the outcome of pending federal or state legislation could have a major impact on growers’ ability to secure labor.
Immigration policy is a perennial issue and one that has found no reasonable solutions in decades. In the political world, it is easy to understand why — it is an issue that fires strong emotions. Just scroll the talk radio dial any given day and the rhetoric is strong: “call your lawmaker and tell them to build a wall; and no way to amnesty.” And do they ever call, often crashing the Washington, D.C. switchboard whenever any significant immigration policy is up for a vote.
Congressman Ted Deutch (D-FL) reports his office has been inundated with calls regarding E-Verify. The vast majority of the calls, numbering in the thousands, are in favor of mandatory E-Verify, but they are coming from outside his District largely from organized anti-immigration groups. So, it is within this framework that growers must realize they are operating and make the call to his or her state and federal elected officials. They must communicate the critical need for a workable guestworker program regardless of whatever immigration reform may come to pass.
E-Verify On The Move
Because of public outcry, states including Georgia and Alabama have passed strict immigration laws, which include an E-Verify provision. Florida narrowly avoided a similar law being passed last year, and it remains one of Governor Rick Scott’s top priorities. At presstime, HR 2885 had passed out of the House Judiciary Committee with its next stop being the floor of the U.S. House of Representatives for a heated debate. A provision that would provide a more user-friendly alternative to H-2A was struck from consideration in the Committee.
E-Verify is a government-run database that uses Social Security numbers to determine if job applicants are authorized to work in the U.S. Currently, the program is voluntary, but HR 2885 would make E-Verify mandatory.
With so much of agriculture dependent on migrant labor, experts warn mandatory E-Verify could create massive disruptions in the labor supply. Estimates put the number of farmworkers in the U.S. at 1.2 to 1.4 million, with about 75% falsely documented. In Florida, there are an estimated 150,000 farmworkers in the state with a similar rate of false documentation, although the rate among purely harvest workers is likely much higher.
Because the issue is so political, Carlton says it is impossible to predict how state and federal lawmakers will act on new immigration policy. “My biggest fear is people are so emotional on this issue and set [in their opinion] that we are going to have to have significant farm losses before legislators wake up,” he says. “We saw a taste of this in Georgia and in Alabama after they passed their laws.
“We don’t know the consequences of what’s happening in Georgia and Alabama and how it will impact labor here in Florida this year. We know farmworkers were avoiding driving through Georgia last year and likely will avoid Alabama. It almost blocks us off.”
A study conducted by the University of Georgia
surveyed growers that represented approximately 46.6% of the state’s blueberry, blackberry, Vidalia onion, bell pepper, squash, cucumber, and watermelon acreage available for harvest this spring.
Surveyed growers reported a loss of anticipated crop revenue for the spring/summer harvest of more than $74 million. Assuming the grower responses in the study are representative of all growers of that commodity, the total loss at the farm gate attributed to labor shortage for the seven crops studied would be about $140 million. Total losses to the state’s economy are pegged at $391 million.
Not So Safe Haven
If approximately 75% of your workforce disappears, what are you to do? Currently, the only safe haven for ag employers is the Department of Labor’s (DOL) H-2A visa. The program allows foreign nationals to enter the country to work seasonal agricultural jobs.
But, the problems with the program are many and growers say it is fundamentally flawed. It is expensive, bureaucratically complex, and often provides workers after the date of need. In a survey by the National Council of Agricultural Employers (NCAE), 72% of H-2A growers surveyed reported workers arrived after the “date of need” on average 22 days late. The survey shows these growers lost $320 million due to the delays. The delays often are the result of excessive deficiency notices from DOL on H-2A requests. Most deficiencies (58%) are given for small errors or inconsistencies in the application.
Because of problems with the program, grower appeals to DOL have dramatically increased. From 1995 until 2009, there were about 18 appeals annually from H-2A growers nationwide. In 2011, this number is nearing 500.
Putting the normal complaints aside, many argue the DOL can’t handle the new users of H-2A that would be forced by a mandatory E-Verify program, if it were to pass. “The bottom line is they won’t be able to handle the program if E-Verify comes on board,” says Carlton. “There were about 6,500 H-2A applications last year, which represents approximately 60,000 guestworkers. Conservatively, under mandatory E-Verify, the number of applications would balloon to 150,000, representing a 20-fold increase in the amount of workers needed.”
Local Labor Mythology
People with strong ideological positions on both sides insist that in the absence of these guestworkers, local labor will fill the void. From the right, comes the call, “Send them home and let them come in the legal way.” From the left, “End this form of indentured servitude, raise the pay more, locals will go back to work, and the President’s unemployment problem goes away.”
The problem with both the left and right’s point of view is the evidence of what’s happened in Georgia, and the troubles growers had sourcing labor here in Florida just with the threat of a state mandated E-Verify. The NCAE data shows that state workforce agencies referred 36,000 domestic workers to H-2A employers in 2010. Only 5% of those locals worked through their contract period.
And, what of those workers who should get in line and follow the legal channels for citizenship? According to a report by Reason Foundation, it is virtually impossible for unskilled workers to achieve citizenship. Even skilled workers face thousands of dollars in fees and wait times up to 11 to 16 years to obtain a green card and gain U.S. citizenship.
The only answer that works for agriculture is a temporary guestworker program that allows people in to work and return home after the job is done. This program must not burdened by prohibitive costs and bureaucracy that exemplifies the H-2A program. What is certain is this program will not be created without the concerted, unified, and collective voice of all agriculture, including you.
Little Letter, Big Fine
Were a mandatory E-Verify law to pass, new entries into the H-2A program should be aware of the three-quarter rule, which if missed, can cost an employer thousands. The requirement is an H-2A employer must notify the U.S. Department of Labor (DOL) and the U.S. Department of Homeland Security within 48 hours when any domestic employee abandons the job or is terminated. DOL has been relentless in fining farmers who have not complied with this rule. If this notification is not made, the farmer owes the employee who abandoned the job for three-quarters of the hours of the contracted period. In addition, DOL will fine the employer $800 for each worker not reported. For example, if a worker comes to work for the farmer on day one, works a couple of hours and then leaves the farm and never returns, and the farmer does not notify DOL, the farmer will be liable for 30 hours per week at the Adverse Effect Wage Rate (in Florida that is $9.50 per hour) for the remainder of the contract period. Consider a contract period of 10 months: The worker works a couple hours on the first day of the contract period and then quits and the employer does not notify the DOL: ($9.50 per hour X 30 hours per week X 43 weeks = $12,255. In addition, the $800 fine)
The fine for not notifying the DOL that an immigrant guestworker has left an H-2A job is $10.