Farm Progress

• Growers believe the U.S. Labor Department, which largely administers the H-2A program, is hostile to them and the program.• Growers are also troubled by the great cost of using the H-2A program, especially the ‘adverse effect wage rate. 

Paul L. Hollis

March 12, 2012

8 Min Read
<p> <em><strong>NUMEROUS STUDIES AND surveys have confirmed that Georgia farmers have suffered labor shortages since the state&rsquo;s general assembly passed a tough new immigration law this year.</strong></em></p>

Farm leaders from the Southeast appeared recently before a Congressional Subcommittee on Immigration Policy and Enforcement to offer their views on improving guestworker programs and insuring a steady workforce for their states’ farmers.

The hearing on “Regional Perspectives on Agricultural Guestworker Programs” was called by the Judiciary Committee’s Subcommittee on Immigration Policy and Enforcement.

Judiciary Committee Chairman Lamar Smith, a Texas Republican, said that while agriculture needs to hire hundreds of thousands of seasonal workers each year to help put food on Americans’ tables, workers with better options choose to work elsewhere.

“That is why many illegal immigrant farm workers who received amnesty in 1986 soon left the fields for other jobs in the city,” said Smith.

“As the president of the American Farm Bureau has stated, any new amnesty such as AgJobs would have the same result.  Because of this, U.S. employers often face a shortage of available American workers to fill seasonal agricultural jobs.”

Growers believe the U.S. Labor Department, which largely administers the H-2A program, is hostile to them and the program, he said.

“Growers are also troubled by the great cost of using the H-2A program, especially the ‘adverse effect wage rate.’ Growers have to build free housing for their guestworkers,” he said.

Smith said he had introduced legislation, “the American Specialty Agriculture Act,” that establishes an H-2C guestworker program “responsive to the needs of American growers and maintaining strong policies to protect citizens and legal workers.”

The bill, he said, puts the USDA in charge of the H-2C program, and it is “attestation-based,” like the H-1B program for highly skilled works. In addition, it requires growers to pay H-2C workers and American workers the prevailing wage, as required in other guestworker programs. 

“The bill allows growers to provide a housing voucher instead of actual housing, which can prove extremely burdensome for growers who may need foreign workers for only a few weeks a year.

“It also opens up the H-2C program to dairies and other agricultural producers that cannot use the H-2A program because they employ workers year-round.”

Finally, the bill allows growers to include binding arbitration in contracts with H-2C workers in order to forestall abusive and frivolous litigation, said Smith.

He noted that the recent report on immigrant labor from the Georgia Department of Agriculture found that his bill “institutes an H-2C program that will be responsive to the needs of America’s specialty growers.” 

Among the agriculture industry representatives giving testimony was Georgia Agriculture Commissioner Gary Black, who said the success of his state’s agricultural industry rests on a legal workforce that growers can rely on.

“In my view, it is not just a labor issue but also a food safety issue. We need to make sure we know who is on our nation’s farms, and we need to make sure that America does not become reliant on third-world countries to put food on the family tables across this country.”

Strict immigration laws

Georgia is one of several states, including Alabama and North Carolina, that have enacted strict immigration reform laws that have resulted in farm labor shortages.

After passing the law in Georgia, the state’s legislature directed Georgia’s Department of Agriculture to conduct a study on the labor needs of agriculture.

“The survey revealed statistics specifically addressing the need for agricultural guestworker reform. Twenty-six percent of survey respondents reported a loss of income due to the lack of available workers.

“Although only 26 percent reported losses, these losses estimated in the excess of $10 million. Further analysis of this statistic suggests those in the fruit and vegetable industry experienced the greatest losses,” said Black.

More than 50 percent of respondents who produce blueberries, cabbage, cantaloupe, cucumbers, eggplant, peppers, squash, tobacco and watermelon reported income losses in 2011 due to lack of workers, he added.

“The survey also found that while 52 percent of the respondents did not have issues finding full-time labor, 21percent did. Poor economy, loss of revenue, poor worker retention, and lack of workers were listed as major reasons for hiring fewer workers in 2011.

“Similarly, 48 percent of respondents found their part-time workforce to be about the same over the last five years while 20 percent reported their workforce was smaller.”

Producers, he said, expressed both concern and frustration with the eligibility requirements of H-2A. In response to why producers do not use the H-2A program, 40.1 percent said the question was not applicable to their operation.

Many respondents felt that H-2A was too expensive and too complicated. More than 26 respondents were not familiar with the program, and almost 17 percent said they had heard negative things about the H-2A program.

Survey respondents indicated it was not difficult to retain experienced workers once hired, but it was somewhat difficult to find experienced workers to hire.

Shortly after the Georgia legislation was signed into law, said Black, producers began reporting labor shortages.

“During the month of June, Georgia Labor Commissioner Mark Butler, worked with various agricultural associations to place unemployed Georgians in these positions.

“Even with unemployment rates hovering around 10 percent, this task was not as easy as it would seem.

“For example, one Georgia producer shared he had one employee that worked half a day one week and two half-days the next week. This employee earned a total of $119. The employee walked off the job and did not return though plenty of work was available.

“In addition, the employee filed an unemployment claim, and the producer received notification that the employee was eligible for $235 weekly benefits for 17 weeks.

“The producer filed a timely appeal, and it was finally determined that he was not responsible. In addition to harvesting his crops to earn a living, the producer had to take time to ensure he was not held financially responsible for the employee’s irresponsibility.

“We have heard similar complaints from producers regarding the 50 percent rule of H-2A. I do not believe employers should bear this unnecessary burden as they try to create jobs and stimulate our economy. Producers would rather employ Americans, and this aspiration should not be overlooked. Unfortunately, the immediate reality trumps those aspirations.”

Developed pilot program

The state’s labor department also worked with the Georgia Department of Corrections to develop a pilot program using probationers to fill Georgia’s agricultural labor needs, but there were also problems reported with that program.

Black said the first recommendation of his department’s report to the legislature was that first and foremost, agricultural guestworker reform must start with the federal government.

“From expanding eligibility to exercising common sense in writing rules for the antiquated program, only the federal government can make this program useful for farmers. It is yet to be seen if H-2A can be rebranded to fulfill the needs of 21st century agriculture, but reforming the archaic program must be a near term priority.”

The study also indicated a need for improved and expanded education and outreach to the agricultural industry about state and federal labor recruitment programs.

The third and final recommendation highlighted the need for more research to thoroughly comprehend Georgia’s agriculture labor needs.

Also speaking before the subcommittee was Lee Wicker, deputy director of the North Carolina Growers Association (NCGA).

“As the largest H-2A Program user in the nation, NCGA has over 700 farmer members who will employ more than 7,000 H-2A workers and many thousand more U.S. workers in 2012.

“I am extremely proud of the farmers and farm workers of NCGA because, working together, they have refused to succumb to the conventional wisdom that it is impossible to comply with labor, immigration and worker protection laws.

“Instead, the farmers and workers of NCGA have committed themselves to compliance and intend to continue promoting compliance and working towards a level playing field for all agricultural employers,” said Wicker.

Labor-intensive agriculture can comply, compete, survive and thrive if the federal government would institute common-sense agriculture labor policy reforms, he said.

“American farmers need a reasonable, rational, predictable and workable guestworker program that supplies a legal, available and fairly compensated farm workforce.

“A guestworker program that actually works in a reasonable and rational manner is absolutely critical if our nation intends to secure the future viability of our farms, especially those that grow our fresh fruits and vegetables,” he said.

Most farmers lack confidence, said Wicker, that the federal agencies running the current H-2A program will make the required decisions on time even when the farmers execute their responsibilities perfectly and well in advance of the deadlines.

Wicker offered possible reforms to the current program, including a rational wage rate linked to the FLSA minimum wage plus 10 to 15 percent to help preclude wage stagnation; binding mediation and arbitration to streamline resolution of worker grievances and avoid costly lawsuits that end up enriching lawyers; having farmers and workers who share in the benefits of the program also share some of the fixed costs associated with the program; simplifying the overly bureaucratic processes required to participate in the program, which serves as a disincentive to participation; and including all sectors of agriculture in the program to encourage wider participation, and provide a path for farmers and farm workers to comply with immigration law.

“In addition, any reforms must include clear statutory language that explicitly defines the role and reach of administrative agencies so that farmers are not continually whipsawed and subjected to different legal interpretations and regulations with every change in the White House,” said Wicker.

(To read about earlier testimony on the Georgia labor situation, visit

[email protected]

About the Author(s)

Paul L. Hollis

Auburn University College of Agriculture

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