THE PACKER

February 13, 2010

H-2A final rule may not help guest-worker program make sense for growers

By Tom Karst

An 118,000-word final rule published in the Federal Register on Feb. 12 did little to make the agricultural guest-worker program easier for growers to use. Instead, the rule — effective March 15 — was the final step in the process to reverse 2008 Bush administration changes to the program, industry advocates believe.

The summary of the final rule provided by the Department of Labor said the final rule amends enforcement rules under the H-2A program “so that workers are appropriately protected when employers fail to meet their obligations under the H-2A program.”

The agency said 7,000 comments were received during the rulemaking process.

“There is an underlying feeling that the Department would like to see this program go away,” said Frank Gasperini, executive vice president of the Washington, D.C.-based National Council of Agricultural Employers. “The growth in the H-2A program is not sustainable because it has become so difficult.”

Tom Nassif, president of Western Growers, Irvine, Calif., said the Obama administration’s rule reverses H-2a changes endorsed by President Bush which made in large part made it easier for growers to hire temporary foreign workers.

Nassif said Congress needs to pass the AgJobs legislation to help secure growers an adequate legal labor supply.

Nassif said any changes the federal government makes to the guest-worker program won’t necessarily create more domestic jobs.

“Even with an economy that is suffering through 10% unemployed, domestic workers are not applying for these jobs,” he said in the news release. “We know our produce is going to be harvested by foreign workers, the question is, will it be here in the U.S. or will it be abroad?”

Gasperini said the most immediate negative effect on employers using the H-2A program will be an increase in the average wages for guest workers under the program.

The NCAE believes the rulemaking undertaken by the Obama administration will create an artificially high wage rate. The wage rate will increase because of the renewed use of the Adverse Effect Wage Rate, which the Bush administration had set aside in favor or prevailing wages.

Beginning March 15, Gasperini said growers in the program could be paying an average of about $1 per hour more than under the Bush rules.

Craig Regelbrugge, vice president of government relations for the Washington, D.C.-based American Nursery and Landscape Association, said in a news release that Congress needs to step up and pass AgJobs.

“The lack of a clear statutory framework leaves the (guest-worker) program — and users — vulnerable to shifting political priorities and ideologies,” he said.