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Clashing opinions on ag workers final rule

By TIM THORNBERRY
Kentucky Correspondent

FRANKFORT, Ky. — As another year filled with labor difficulties for farmers comes to an end, the U.S. Department of Labor’s (DOL) Employment and Training Administration (ETA) and Employment Standards Administration (ESA) published a final rule that “modernizes” the system created to help those farmers locate foreign workers for agricultural purposes.

The H-2A program was originally a part of the H-2 program established in 1964 “which allowed employers to hire foreign workers for both agricultural and non-agricultural jobs in locations with a shortage of domestic workers,” according to information from the U.S. Department of Homeland Security.

In 1986 the program was revised, creating two entities: H2A relating to agricultural workers and H2B overseeing non-agricultural labor.

Since then it has been subject to numerous complaints by farmers, legislators and farm labor groups citing the complexity of the system.

Last year an estimated 75,000 nonimmigrant workers were located using the program, but between 600,000-800,000 undocumented workers were estimated to be working on American farms. In February 2008, the DOL proposed changes to the program that would update many regulations that had not been changed in more than 20 years.

The final rule was released on Dec. 18 and most provisions will take effect on Jan. 16, 2009. Pro-groups such as Farm Bureau expect delays, however, from expected legal challenges to the rule.

In a statement released by the DOL, Secretary Elaine Chow said, “These reforms will improve the operation of the H-2A program for agricultural employers and help ensure that the employment of temporary foreign workers does not adversely affect U.S. workers.”

While groups such as the American Farm Bureau Federation support the new rule, labor organizations such as Farmworker Justice (FJ) say the changes will set agricultural labor practices back decades.
“These changes are devastating for our nation’s farm workers,” said Bruce Goldstein, FJ executive director. “What the DOL is doing is illegal and morally wrong. The DOL should be protecting workers’ rights, not terminating them, especially in this time of economic crisis. Congress should act immediately to reverse the changes.”
Those changes include revisions to the way wages are set, tougher penalties for violations, extension of time for domestic labor to apply for the jobs and less duplication of application paperwork. Whether the changes are good or bad depends on which side of the fence one is on regarding the changes.

The FJ stated in a press release that the changes would reduce obligations for growers to effectively recruit U.S. workers before applying to bring in guest workers, lower the wage rates by changing the program’s wage formula and eliminate government oversight of the program.

Joe Cain, director of National Affairs and Political Education with the Kentucky Farm Bureau, said the changes are needed, citing the regulation regarding how wages will be set. He said under the new guidelines the method will be more realistic for the jobs that are being performed.

“If you have a worker that is performing a task that requires more skill and expertise, then you can recognize that – but if it’s just a basic labor job, (the employer) wouldn’t be paying a wage rate that might be reflective of a person, say, that might be required to operate a high-tech piece of equipment,” he said.

“It makes it more realistic to the job and that, to me, is a benefit to the employee and the employer.”

Cain also noted there are safeguards in place as far as the calculation of the wage rate. Currently wages are set by a system known as the Adverse Effect Wage Rate, which averages wages in a particular three-state area to come up with an amount. This amount has traditionally been higher than the government-mandated minimum wage rate.

“There are three wage rates an employer has to consider. One is the Adverse Effect Wage Rate, second is the ag prevailing wage – which is determined by a survey done here in the state to see what different types of jobs are being performed on agricultural operations and what the wage rates are – and the third is the federal minimum wage. And the farmer is required to pay the higher of the three,” said Cain.

He also said there are safeguards in the new rule to allow domestic workers the chance to get these jobs, which is important considering the number of unemployed workers out there right now.
“The basic premise of the H2A program was to put domestic workers first. And I think you will see more domestic workers applying for those jobs,” said Cain.
The new rule has become a political issue with those opposed to it alluding to a last-ditch effort by the Bush administration to dictate policy long after it is gone. Even incoming Labor Secretary Rep. Hilda Solis has voiced her disapproval in a statement release earlier this month.
“With many families already burdened by this bad economy, our nation cannot afford these guest worker program changes. This recent action by the Bush administration is just the latest example of how out of touch the president is with working families, especially with Latino families that make up a large portion of the farm workers in this country,” she said.
“There is no question that the guest worker program needs significant overhaul, but slashing wages and reducing basic rights for the most vulnerable workers in our country, especially hardworking Latino farm workers, is not the answer. I look forward to working with the Obama administration and the Democratic majority to find the best solutions to strengthen this workforce and protections afforded to them.”
To see a copy of the entire rule, visit www.foreignlaborcert.doleta.gov/pdf/ H-2A_Final_Rule_regtext.pdf online, or the Kentucky Farm Bureau website at www.kyfb.com

December 31, 2008
1/7/2009