A Bandage Fix For Farm Labor

Responding 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. AgJOBS, as proposed, is a good starting point, but it is not a realistic, long-term solution to this agricultural labor crisis. In all, too much attention has been focused on an adjusted status and not enough attention has been focused on reforming the guestworker program.

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Real reform of the H-2A program should do the following:

• 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.

• Arcane features such as the “50% rule” and the “3/4 guarantee” must be eliminated. These rules along with AEWR were created 40 years ago under the theory that H-2A workers would displace willing domestic workers.

• Establish lawsuit checks and balances, specifically requiring mediation before any litigation and requiring the loser to pay both sides. Now, taxpayer-funded legal services organizations file frivolous lawsuits, sending “demand letters” containing outrageous allegations and exorbitant restitution demands, pressuring for quick settlements and threatening lawsuits if demands aren’t met.

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• Due to the 11th U.S. Circuit Court of Appeals decision in Arriaga v. Florida Pacific Farms and Sleepy Creek Farms, H-2A employers are required to provide travel and other miscellaneous expenses for migrant workers during their first week of employment. For many small farmers, these transportation expenses make the H-2A program cost prohibitive.

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. The H-2A program 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.

Worse Than Before

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, most of those workers will eventually move out of the agricultural employment field and leave our farms.

Growers will then be left with an expensive, problematic, lawsuit magnet of a guestworker program. 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.

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