The season has begun, and you’ve realized that for the first time you can no longer depend on a crew of domestic workers to harvest your crop. Do you let fruit rot on the tree, or do you enroll in the H-2A temporary agricultural program?
While this may seem like a no-brainer, the H-2A program isn’t without its flaws — just ask anyone who’s tried it — or its paperwork. But, for a grower worried about completing harvest on time, it might offer the only assurance.
For growers considering the H-2A program, here are a few areas that can trip you up, according to growers currently using H-2a and other industry members from around the country.
Your need for farm workers may come with little notice: one season you have domestic workers and the next you don’t. However, in an ideal world, Katie Vargas, Operations Manager for Great Lakes Ag Labor Services in Lansing, MI, says planning to make the move to H-2A a year ahead allows for a better transition.
“What that will help the grower to do is to evaluate exactly which jobs they need the H-2A workers for, and see if other workers may crossover into these tasks while the season is actually underway,” Vargas says. “An in-season review of jobs will help them in accurately developing their job descriptions, which is a key part of H-2A success. This will also help them in developing work rules and expectations.”
She says this is a good time to improve your operation’s management structure. If there are any management issues, Vargas says the jump to H-2A can make those even more glaring.
“Growers can also use this time to review whether their work rules are fully implemented. They’ll want to be sure that they’re consistent with workers, that they get their supervisors on board with setting any new rules and make certain rules are applied consistently,” she says.
A part of the H-2A application is to document the lack of domestic workers available on your farm. Meticulous records are vital, as much of an added step as they may be.
“The government definitely checks up on you, and if you have a work order and you’re in the program, you know you’re going to be audited,” Alison DeMaree of DeMaree Fruit Farm in Williamson, NY, says. “You have to show that you’ve advertised [for domestic workers], you’re recording people who call, and you have a reason why you didn’t hire people. Or, if you did hire someone, you need to list their names.”
DeMaree says the U.S. Department of Labor can ask you to present your logs, along with subsequent employee paperwork, at any time. She has a series of questions she asks potential applicants to figure out whether they are able to do the work her farm needs. As you get inquiries from prospective employees about your open opportunities, you need to log their name, phone number, and ask certain questions to help you ascertain their experience, as well as someone who can verify their experience.
“I ask a lot of open-ended questions to see if they really have experience,” she says. “You’re asking them typical questions to make sure that if you hire them, they’re going to be there every day and they have the experience to do the job.”
DeMaree says the open-ended questions give her a good indication if someone has picked apples before. She says the questions she uses to screen domestic workers, she uses to screen H-2A applicants, too.
“I’ll ask a question of ‘What fresh apples have you picked in the past?’ I’ve had people in the past say to me “Oh, those red ones,’” she says. “If you’ve picked apples before, you should know the name of the variety.”
One thing to keep in mind is that as you apply to or are in the H-2A program, expect to be audited. It’s just a part of the process.
“Document everything,” says Flor Maldonado, Farm Special Operations Manager at Kershaw Fruit in Yakima, WA.
For Kershaw, Maldonado says it was as simple as making booklets with carbon copies to track any disciplinary measures orchard managers might take with employees on their ranches, which is then stored by their Human Resources Department. This paper trail may seem excessive, but it’s a vital step to ensuring you’re in compliance.
DON’T OVERLOOK THE DETAILS
Your H-2A employees are done with the orchard tasks for the day, with a few more hours in their work day. So, you ask the team to help with spur removal or another orchard task. Is that legal or illegal?
Your H-2A employees can only do tasks that are in your work order. So depending if other orchard tasks were included in the H-2A responsibilities, they may or may not legally be able to do the task. It also seems reasonable that you could write your work order in a way to allow for all sorts of orchard tasks to be included. But, not so fast.
“Anything that’s in your work order, if you have a domestic worker doing that work, you have to pay them the H-2A adverse effect wage rate,” DeMaree says.
She also recommends growers understand the H-2A employees are tied to your operation, they can’t be sent to another farm in need. To be sure their numbers are right, she and her husband, Tom, carefully calculate how many employees they’ll need.
“We look week-by-week at what acreage are we harvesting, how many bins do we expect to harvest that week, and we determine for our peak period how many people we need. We try to make sure between domestic workers and foreign workers, that we have enough people to meet those needs,” she says.
Other details such as factoring for enough worker housing is important. Any benefits that an H-2A employee has, a domestic worker who is participating as well is eligible for. This includes housing. That’s why if you’ve asked for a permanent address from your potential domestic employees, you’re able to determine whether domestic workers will need housing.
One component of entering the H-2A program is ensuring you don’t discriminate against domestic workers or favor H-2A laborers. Whatever questions you ask potential domestic workers, you must do the same for your H-2A workers. Disciplinary procedures must also be the same.
“Have a set disciplinary procedure to go over with them, some type of progressive discipline program,” Maldonado says. “Make sure you’re enforcing it the same way throughout your ranches.”
Whatever the work hours are listed in the contract — whether that’s a six-hour day or an eight-hour day — H-2A workers don’t have to work longer days. Granted, they usually do because they’re here to work.
“Make sure they know it’s a choice, they’re not required to work more than what’s on the contract. Those hours are by choice,” Maldonado says.
Another important component, which dovetails with disciplinary procedures, is ensuring the management staff is on board and educated on the program and the work order.
“Spend time training supervisors and field staff on H-2A,” Vargas says. “They’ll be the ones out in the field. They’ll be the voice for the employer. At the end of the day, they are in one of the most critical positions for the farm to succeed in H-2A ”
Maldonado says it’s also important to “continue to do refresher training [for staff] on arrival and after they arrive.”
EXPECT A ROUGH RIDE
While growers are optimistic folks, they’re also realistic. Advice for those would-be H-2A applicants also includes a strong dose of reality: “Be prepared for a rough first year,” Vargas says.
While this isn’t necessarily the type of glowing review you’d want to hear, it is important to understand that the decision to move to H-2A will take time.
“There’s a steep learning curve, it gets better after the first year,” Maldonado says. “It definitely helps us sleep at night.”
Vargas says it’s vital to remember the end goal of entering the H-2A program: Knowing a dedicated workforce will be coming year after year to harvest your crops.
“It’s really important that they keep in mind that they’re working toward a long-term goal of establishing a returning team of both H-2A and domestic workers,” she says. “Keeping that long-term goal in mind has been absolutely critical for our farmers as they hit some rough patches in either the application process or just trying to get their supervisors on board with the program. They just have to remember what this could lead to in the future.”
There are a lot of nuances to the H-2A program. And if everything you’ve read so far seems a bit daunting, it can be.
“Growers getting into H-2A or already in H-2A should surround themselves with is a good attorney, a good agent, and other growers that have done H-2A in the past or are currently doing it so they can network and get the right advice,” Vargas says.
“A grower who is getting into H-2A or is in H-2A should surround him or herself with is a good attorney, a good agent, and other growers that have done H-2A in the past or are currently doing it so they can network and get the right advice,” Vargas says.
Maldonado also suggests a lawyer can help navigate the complexities of the application process, but you should also find an agent who has experience in your orchard or farm’s state because there are often updates to the application process, which can trip up applicants.
“Do lots of research. The H-2A program is very complex. You have to dive in and actually understand the regulations and if a grower doesn’t have the time to do that, then hire someone that understands the program in order to be compliant with the program,” she says.
DeMaree agrees. She says working with an agency is vital for new folks in the H-2A program, especially when it comes to recruiting workers.
“You have to have somebody screening people,” DeMaree says. “You have to have somebody making appointments at the U.S. consulate at that country where their visas are going to be processed.
Most farms, they don’t have someone who they can send to another country to do all that. You have to make sure whoever is screening workers in that country that they’re not asking for workers to pay to get them the visa. That’s why the first time you do this it’s really important to have someone who knows what they’re doing.”
Above all, Maldonado says if you’re considering entering H-2A, “remember that this program is there to supplement the workforce; it’s not a replacement for the labor pool we already have now.
You have to reach out for the previous year’s domestic workforce. You really need to start to planning ahead and add it into your budget.”