LABOR ISSUES BRING SRO CROWDS TO FORUM

A record 260 attendees participated in the Florida Specialty Crop Foundation’s annual Agricultural Labor Relations Forum in September to get the latest information on the AgJOBS bill, immigration reform, workers’ compensation issues, wage and hour laws, and Worker Protection Standard practices.

Organizers attributed the heavier-than-usual attendance to interest in the no-match rule issued by the Department of Homeland Security in late August. A federal judge in California ruled Oct. 1 to extend a temporary ban on the rule, saying there would be “irreparable harm” to the groups that filed suit, which include the American Civil Liberties Union and the U.S. Chamber of Commerce.

Ag industry labor leaders shared their knowledge with attendees at the 33rd Annual Ag Labor Forum.

“Agricultural employers are extremely interested in what’s going on right now with immigration reform and the DHS no-match rule, for obvious reasons,” said Walter Kates, director of FFVA’s Labor Division. “We are at standing-room-only capacity because these issues have the potential to disrupt and possibly eliminate a large part of the agricultural work force.”

Michelle Williamson of G&F Farms in Dover said the forum is a must-attend for anyone dealing with agricultural workers. “Anyone who hasn’t been definitely needs to go, and even if you’ve been you should continue to attend. There’s a significant level of expertise at that seminar, and the session leaders give that expertise so freely,” she said.

This year was especially timely because of the session on the DHS no-match letters, she said: “That was very helpful from the industry standpoint because we’re going to have to start dealing with that.”

At the forum, attorney Monte Lake of the National Council of Agricultural Employers gave an update on the status of the AgJOBS bill. Though the outlook isn’t bright, he emphasized, “We’re not dead yet.” Senate majority leader Harry Reid has given AgJOBS sponsor Sen. Diane Feinstein a commitment that the bill can be brought forward, though it’s not clear whether 60 votes exist to keep it moving and avoid a filibuster.

From California to Florida to New York, producers of various commodities are experiencing labor shortages. “Increased enforcement, the DHS no-match rule and the threat of RICO lawsuits make enactment of AgJOBS imperative. Only through this type of legislation will we have insulation from the problems and uncertainties that exist with the status quo,” Lake said.

Until the court rules conclusively on the no-match rule, employers should begin planning now in case it is upheld. “You will need to adjust and change the way you operate in the future,” he said.

Lake said the H-2A program doesn’t have the capacity to expand right now, nor is there enough housing to accommodate a surge of additional workers. AgJOBS would serve as a three- to five-year “bridge” to allow time for the program to expand.

FOOD SAFETY AND THE AG WORKFORCE

Other sessions covered in detail topics including workers’ compensation issues, work performance and leadership, and avoiding WPS mistakes.

Dr. Martha Roberts of the University of Florida’s Institute for Food and Agricultural Sciences opened the second day of the forum with a discussion of food safety issues and how they relate to the agricultural workforce.

Florida is under a microscope when it comes to food safety. “We’ve had the most produce-associated outbreaks in the past few years along with California,” Roberts said, adding that produce has been associated with 71 illnesses from 1996 to 2006. “Of all the produce that’s consumed each year in the United States, that’s an infinitesimally small number. But when you start talking about illness and death, it doesn’t matter whether that number is 71 or five or 10. People won’t accept it,” she said.

Florida Farm Bureau's Kevin Morgan talks with food safety expert Dr. Martha Roberts.

Employers must ensure their workers are taught good agricultural practices, especially personal hygiene. “Food safety begins on the farm, and you have the most control,” she said, stressing the importance of employees simply washing their hands thoroughly after bathroom breaks. Employers face several challenges in training, she added, including language, literacy and cultural barriers, in addition to the seasonal nature of their workforce.

Roberts urged employers to document that they have trained their workers in food safety practices because inspectors won’t accept verbal confirmation. “You must have a record. Set up a system or form to record what you trained your workers on and when.” Employers looking for helpful tools can go to www.foodprotection.org for signs that can be downloaded or purchased on CD.

THE H-2A 'OCTOPUS'

Wrapping up the seminar was a detailed review of the H-2A guest worker program. Dr. James Holt and FFVA’s Walter Kates discussed the pros and cons of the program and provided a step-by-step look at the application process.

Holt said explaining the complicated H-2A program is like describing an octopus: “You don’t know which tentacle to start on first.”

“The landscape is changing,” Holt said. “We’re dealing with constant pressure on the government to control immigration, increase border security and step up interior enforcement.” All of those factors make it imperative that employers consider the H-2A program as an option.

“It’s not a pretty picture,” he continued. The agricultural workforce in this country is almost entirely foreign-born – 78 percent of all hired farmworkers were born outside this country, and 75 percent were born in Mexico.”

Attorney Monte Lake briefs attendees on the status of federal labor laws now before Congress.

Despite criticism that the H-2A program is cumbersome and complex, thousands of employers across the country use the program every year, Holt told the crowd. More than 90 percent of the 6,700 H-2A applications filed every year are certified, and more than 95 percent of the job opportunities represented on those applications are approved. In Florida, 1,800 job openings were approved last year.

“The fact is you can use the program if you’re determined to use it and if you’re willing and financially able to jump through the hoops,” he said.

However, there are some pros and cons to consider in deciding whether to bring in H-2A workers:

Pros:

• The program provides a source of assured legal workers.
• You have a reasonable assurance that you will get the workers you need on a timely basis (although there are numerous bureaucratic glitches that can occur along the way).
• You can plan because you are getting a supply of workers with a known set of wages and working conditions.
• It gives you a reasonable opportunity to develop stability in your seasonal workforce, which typically is hard to achieve.
• Because of that stability, you also can develop workforce quality and productivity.

Cons:

• The program is heavy on bureaucracy, with numerous broad areas that are subject to administrative discretion.
• You lose some control over your labor policies because you have to follow a prescribed process.
• It involves wages and other benefits costs that are above the market.
• It opens your business and employment to scrutiny by a number of groups.
• It involves significant administrative costs that you might not otherwise incur; however, it also eliminates the “worry factor” of making a mistake.

Holt cautioned employers not to go it alone if they decide to use the H-2A program. A knowledgeable consultant or attorney is a “reasonably attractive” option.

“In Florida, you have some of the most knowledgeable attorneys here – but those aren’t found in most other states. Make sure they have the experience and knowledge,” he said.

Most employers access the program through a growers association. Citing FFVA, he said, “You have the benefit of one of the oldest and most experienced associations in helping growers use the program.”

MAKING OUR VOICE HEARD

Paul Allen of R.C. Hatton Inc. in Belle Glade said he came away from the forum somewhat encouraged that there is some hope for reform, no matter how small. He added that he realized the H-2A program isn’t a solution – only meaningful change to immigration policy will give the industry the adequate, legal workforce it needs. “It really woke me up to take action and do more than what we’ve done in the past to make our voice heard.

“On our local Farm Bureau level, we want to encourage our members to send letters to our senators and representatives. I’m also doing that through the Sweet Corn Exchange,” he said.

Allen said the industry must make its voice heard. “We’re going to try to do our part, and we hope everyone else will, too. I would encourage other growers and suppliers to contact their representatives and tell them how they feel about it,” he said.

For more information on the H-2A guest worker program, contact FFVA’s Labor Division at 321-214-5200.