April 2, 2008
Mr. Thomas Dowd, Administrator
Office of Policy Development and Research, ETA
U.S. Department of Labor
200 Constitution Avenue N.W., Room N-5641
Washington, DC 20210
Re: RIN 1205-AB55
Dear Mr. Dowd,
The following comments are submitted on behalf of the Florida Fruit & Vegetable Association (FFVA), an agricultural trade association located in Maitland, Florida. FFVA represents growers, packers and shippers of fruits, vegetables, sugar cane and tropical produce located in the state of Florida. Our association has been involved in the H-2/H-2A program since 1952 and has seen many changes take place within this program during that period of time. The changes proposed by the United States Department of Labor (USDL) which we are commenting on are with out a doubt the most far reaching changes since the mid 1960’s.
As with most regulations we believe the proposed changes have some very good amendments to the H-2A program and some very bad amendments. However, we would like to thank USDL for finally trying to correct a program that presently is very complex and over all not very efficient in what it is supposed to do. Hopefully USDL is serious about making H-2A a user friendly process that will do what Congress intended it to do and will allow farmers to hire foreign nationals on a temporary or seasonal basis when U.S. workers are not available.
655.100 Definition of terms:
Area of intended employment: We believe the definition of “area of intended employment” proposed by the USDL is a very good definition because it has a lot of flexibility and recognizes the fact that each situation is unique based on geography; interstate highway patterns; what has been historically common in the area; and other relevant factors.
Farm labor contracting activity: In order to maintain consistency we recommend the MSPA definition be used which is as follows:
Farm labor contractor: Here again for consistency the following MSPA definition should be used:
655.102 Required pre-filing recruitment
This section requires the employer to start recruitment 120 to 75 days before the date of need as compared to the present day requirement of 45 days prior to the date of need. It should be noted that the original H-2/H-2A regulation which was published in the middle 1960’s had a filing date of 80 days prior to the demand date. This was changed to 60 than to 45 days for two very important reasons that USDL should take into consideration.
First, the vast majority of U.S. workers who may be interested in the job are not going to sit around and wait 120, 80 or even 60 days until a job starts. History has shown that the overwhelming majority of workers who indicate interest that far ahead of the date of need do not report for work when needed. A second problem was the fact that most vegetable growers may not even know that far ahead of time what plants to plant, how much they plan to plant and how many workers they may use not to mention the fact that they have no idea what the date of need will be or the ending date.
It should also be noted that the proposed regulation will require the employer to file a clearance order in compliance with 653.501, 120 to 75 days prior to demand date. 653.501 requires that the employer give an assurance of available housing as part of the job offer which will be impossible to do since the employer cannot guarantee the available of housing that far in advance for purposes of using the proposed housing voucher. Also this section requires that the SWA staff determine if the housing assured by the employer meet the required standard which will be an impossible task that far before the demand date.
While we support the proposed use of housing vouchers, we’re uncertain how the employer could take that option and still stay in compliance with 120 to 75 day filing requirement that requires compliance with 653.501. For all the above reasons, we ask USDL to either go back to the present 45 days time frame or turn the process into a true attestation process as achieved in the AgJOBS bill.
As for advertising in newspapers, experience has proven time and time again that farmworkers do not read daily newspapers looking for a job. The latest USDL NAWS findings dated Oct. 2006 states: “The majority of crop workers (70%) initially found their current job via references from friends or relatives, and nearly a quarter (23%) had applied on their own. Over five percent were recruited by a grower, foreman, or labor contractor. Less than one percent were referred to their job by an employment service or were hired under union-employer agreements.” No where are newspapers or even radio advertisements mentioned. It should also be noted that some of the newspaper ads costs soared into the thousands of dollars particularly with large newspapers of daily circulation found in large MSA areas.
We would like to suggest that instead of requiring employers to throw thousands of dollars away on unnecessary newspaper ads that the various SWA’s develop lists of organizations and/or agencies that have contact with farmworkers within their state. These groups can then be contacted and send a copy of the job order and asked to send interested farmworkers to the nearest SWA office for interviews. We believe this system will develop more practical results than running farmworkers ads in the Sunday edition of the Miami Herald.
As previously stated, we believe USDL should adopt the administrative process outlined in the AgJOBS bill and agreed to by growers; farmworker advocators; and both parties in Congress. In summary, AgJOBS provides that employers desiring to employ H-2A aliens must first file an application with the USDL and a job offer for domestic workers. If the application meets the requirements of the program and there are not obvious deficiencies it must be accepted by USDL. The employer must agree to certain housing regulations, transportation conditions, wage rates, ¾ work guarantee and other terms and conditions of employment and assurances. The employer must contact former farm employees and file a job offer with the SWA 28 days prior to the day of need. No later than 14 days before its date of need, the employer must advertise the job opportunity. Seven days after the filing of the application, USDL must review the application for completion and inaccuracies. If the application is okay, USDL must then issue a certification. The employer may petition DHS for approval for the admission of aliens to perform the work described on the labor certification, or for the extension of stay of H-2A aliens already in the United States who are completing a prior period of authorized H-2A employment. The DHS is required to adjudicate the petition within 7 working days.
While this is a brief summary of the process, we believe the over all procedure is fair, efficient and most importantly approved by all the concerned parties. The process proposed by USDL in the present proposal is far worse than we have now and will be impossible to comply with by a large number of employers. It should also be pointed out the proposed regulation has no provision for an emergency request. This is extremely important since in agricultural employment emergency situations are not unusual.
655.104 Content of job offers
We are uncertain why the statement found at 655.104 (b) regarding job duties is made? Why should the USDL second guess an employer and his/her business decision on an occupations job duties even if they are unique to that employer. The important criteria is whether or not any U.S. workers are available to perform the job duties. The make up of the occupation is not important.
FFVA supports the housing inspection proposal that allows an employer to request an inspection within a certain time and does not hold up the certification if an inspection is not made on a timely basis. This has been a serious problem in the past and has held up some certifications in Florida by as much as three weeks. It should also be noted that this same process is allowable under MSPA for FLC seeking “Housing Authorized” registration.
In light of the Arriaga vs. Fla. Pacific Farms ruling by the 11th Circuit Court of Appeals, we were surprised to read in the proposed regulation that USDL will still allow the employer to repay the worker their inbound transportation expenses at the 50% mark instead of at the end of the first week work as required by the 11th Circuit. As you well know under the Arriaga ruling the court ruled that the inbound transportation expenses paid by the H-2A employee must be repaid to the H-2A employee at the end of their first work week to the extent the expenses cut into the employees minimum wage earnings during that period. This expense was called a de facto wage deduction under the FLSA. Since that decision, H-2A employers have repeatedly asked USDL for a written opinion on how they interpret the FLSA in the area of repayment of inbound transportation expenses and visa fees paid by the H-2A worker. Since we have never received an opinion from USDL on this issue, we assumed the fifty percent employment rule was no longer allowed. Much to our surprise it still appears in the proposed regulation so now we are confused as to how or when to repay the inbound transportation expenses paid by the H-2A employer. Please advise us in the final rule whether we should follow the fifty percent rule or the Arriaga ruling when reimbursing H-2A workers for their inbound transportation expenses.
We note in the transportation requirement between the employer provided housing and the work side the same “vehicle safety standards, driver licenses and vehicle insurance as required under 29W.S.C.1841 and 29CFT Part 500” now applies. We agree that Part 500 will apply when transporting U.S. workers however MSPA specifically excludes H-2A workers from the Act by stating at 500.20 (P):
“(P) Migrant agricultural worker means an individual who is employed in agricultural employment of a seasonal or other temporary nature, and who is required to be absent overnight from his permanent place of residence.
(1) Migrant agricultural worker does not include:
(i) Any immediate family member of an agricultural employer or a farm labor contractor; or
(ii) Any temporary nonimmigrant alien who is authorized to work in agricultural employment in the United States under sections 101(a)(15)(H)(ii)(a) and 214(c) of the Immigration and Nationality Act.”
Therefore, we assume employers only transporting H-2A employees would not be covered under your proposed requirement.
Under “Failure to Work”, we note the omission by USDL in the proposed regulation of what an employer may count toward the 3/4th guarantee when they voluntarily work more than the contract requires. In order to be consistent with the present regulation we would ask that the following language be included in this section “and all hours of work actually performed (including voluntary work over that required in the contract in a workday or on the worker’s Sabbath or federal holiday) may be counted by the employer in calculating whether the period of guaranteed employment has been met.” We believe putting this language back in the regulation will eliminate any confusion as to whether or not this time may be counted.
FFVA believes the section entitled “Obligation to provide housing and meals” should be amended to reflect the fact that employers are not responsible to provide this benefit for workers who quit, refused to work or were terminated for cause but refuse to leave the housing facility. While this rarely occurs, from time to time, it has occurred and the employer should not have to continue to provide for or pay for these benefits under these circumstances.
Under “Records” we believe the time period for retention of records should be three years rather than five years as proposed. Both MSPA and FLSA require a three year retention and the H-2A records should also be three years. Also rather than use the term “reasonable notice” to produce records, we believe a specific time should be used and we suggest five (5) calendar days. We believe five calendar days is reasonable and should allow the employer time to gather such records.
655.105 Assurances and obligations of H-2A employers
We are a little concerned by the language that contractually forbids any foreign labor contractor who the employer employs to recruit H-2A applicants may not seek or receive payment from the applicants. While we agree that the worker should not have to pay a recruitment fee, there may be times when the worker will ask the recruiter to assist in completing certain paperwork such as the visa applications form. We believe the recruiter should be able to charge for such services if they are offered on a voluntary basis to the worker.
655.106 Assurances and obligation of Farm Labor Contractors and 501.8 Surety bond
We do not believe that USDL has the statutory authority under the INA or MSPA to require a Farm Labor Contractor (FLC) to obtain a surety bond in order to request H-2A certification. We know of no law that allows USDL to levy such a requirement. If USDL feels that certain FLC’s are violating the H-2A requirements they have plenty of tools in which to penalize the contractor. It seems to us that any employer, FLC or not, who requests certification for the employment of H-2A will be financially sound or they could not afford to provide very expensive housing that meets state and federal requirements.
One of the problems a FLC has when they file for H-2A certification is that they may not always be sure as to who all the employers will be that they contract with. For this reason there should be a statement in the final regulation that a FLC may provide his/her services to another employer if notice is provided to USDL.
655.108 Offered wage rate
For years, FFVA has argued that USDL should not require an H-2A employer to pay their workers an artificial wage known as an adverse effect wage rate (AEWR) which has very little if any relationship to the actual wages being paid to workers employed in the requested H-2A occupations. Study after study has shown that the mere employment of workers illegally in this country does not necessarily lower the wages of U.S. workers in that or similar occupations. In fact, some economists have argued that the presence of low skilled illegal workers in some entry level occupations such as agriculture may have even increased the wages of U.S. workers. Because there is no finding of adverse effect we continue to argue that USDL should eliminate the requirement from an AWER.
If USDL chooses not to eliminate the AEWR than we agree the proposed methodology by USDL, with some clarification, is far better than the present USDA wage data. The present USDA data is either by region or in a few cases by state and for Florida wage rate has no relationship to the wage rate paid to most occupations in the H-2A program who for the most part are harvest workers. Also the sample size in the USDA data is fairly small and therefore in areas like Florida where there are a large number of nurseries which employ a large number of salaried year round farm workers could tend to skew the wage data. This is particularly true when the data takes in the entire state rather than by growing regions or counties. Also USDA’s Farm Labor data includes the wages of supervisors/managers and office workers as well as other workers employed on the farm but not directly involved in farm intense labor activities.
Of the two methodologies the Bureau of Labor Statistics Occupational Employment Statistics survey (BLS/OES) appears to be the most appropriate. The only draw back is the fact that farmers and their employees are not included in the survey. However, “Suggest Activities for Crop Production” which involved farm labor contractors and crew leaders along with farm management services are included. It should be noticed that the USDA Farm Labor Survey for Florida does include wage data for farm labor contractors and crew leaders and their wage data is always higher than farm workers hired directly by the farmer. Based on this analysis it seems the use of BLS/OES data for agricultural field jobs would be skewed higher than wages for farm workers hired directly by the farmer. Even with this flaw FFVA believes the proposed BLS/OES survey is superior to the present USDA farm labor data.
For one thing, the BLS/OES survey collects data by wage groupings rather than take the total hours worked and total gross wages paid during the pay period and then divide the two to obtain a means hourly wage rate. The BLS/OES surveys include a questionnaire which includes a list of the likely occupational categories employed by the respondent, and respondents are asked to report the number of workers by wage class separately for each occupational category. From this data they calculate the appropriate hourly wage rate. Also the occupational wage data can be broken down by metro statistical area (MSA) in each state and groups of counties not included in MSA’s. This puts the wage determination a lot closer to the work site where the jobs are performed as opposed to a state wide means average rate. The BLS/OES survey data also breaks the wage findings for each occupation down into four levels based on skill, experience and competence level. For low skill, low experience, entry level jobs in agriculture such as harvest workers whose main qualification is to be in healthy shape this has always been a problem. The reason for this problem is because the USDA farm labor data includes all these requirements into one wage rate for all occupations regardless of skill experience level requirements for the job. This has always skewed the wage rate up for jobs that require no experience or skills in field jobs. With the understanding that agricultural jobs that require no occupational skills, experience or level of competence will be rated level I (entry level jobs) we would support USDL’s proposed use of the BLS/OES survey data as to AEWR.
Since neither the USDA or BLS/OES data series is perfect in determining what the wage should be for growers seeking H-2A certification, we suggest USDL forms a study groups of knowledgeable people to study then recommend how best to make the wage determination. This group should be formed after USDL publishes its revised H-2A regulation in order not to delay several of the much needed reforms.
655.109 Labor certification determination
Needless to say, we are extremely disappointed when we read that USDL proposes to raise their fee from $100 per application plus $10 per worker with a cap of $1,000 to $200 per application plus $100 per worker with no cap. Until we read this ridiculous fee level we truly believed USDL had finely decided to fix a regulation that very few growers can afford to use. The approval of a fee increase as large as USDL has proposed will render the program completely unaffordable for most growers including those presently using the program. It also fails to recognize the disproportioned economic impact it will have on small growers. For example, you may have a citrus grower with a small grove that requires 60 H-2A farm workers for 9 months and on the other hand you may have a small blueberry grower with 100 acres who needs 300 workers for 5 weeks. Obviously under the proposed fee increase the blueberry grower will be economically barred from the H-2A program.
Section 301 (a)(2) of the Immigration Reform and Control Act states: “The Secretary of Labor may require by regulation, as a condition of issuing the certification, the payment of a fee to recover the reasonable costs of processing applications for certification.” We do not believe that Congress when it passed IRCA ever believed it would cost USDL $100 per requested worker to merely determine whether or not the application was in compliance with the regulation. The amount of time to review and process a request for H-2A certification by USDL is the same whether its for one worker or 1,000 workers. FFVA is not opposed to paying a “reasonable” fee to USDL however, the proposed amount is far above what most growers can afford and will do nothing other than decrease the number of growers using the program instead of increasing the number.
In closing we would like to thank USDL in its effort to amend the H-2A regulation. This program has been broken for too long not to under go a complete overhaul and it has been stated on many occasions that the present AEWR has been one of the greatest impediments to growers wishing to use the H-2A program. FFVA believes that if these changes to the regulation are adopted with the changes recommended in this letter, then the H-2A program has a far greater chance of being utilized by growers across the United States.