OMAK-OKANOGON (Washington) CHRONICLE

March 3, 2010

Employers unhappy with new temporary agriculture rule

By Sheila Corson
The Chronicle

WASHINGTON, D.C. - The U.S. Department of Labor has released its final rule for H-2A temporary agricultural workers through the AgJobs program, but many employers are not happy with the results.

Labor officials said the final rule will “strengthen worker protections for both U.S. and foreign workers.”

It requires the department to certify there are not sufficient domestic workers qualified and available for work before foreign workers can be employed.

It also sets an adverse effect wage rate, so that both domestic and foreign workers earn the same amount, and prohibits cost-shifting from the employer to the worker for recruitment, visa, border crossing and other U.S. government-mandated fees.

The rule is effective March 15.

After poring over the 431-page ruling, Okanogan County Farm Bureau President Jon Wyss said it does not provide a realistic mechanism for employers to hire farm workers.

"The program is too complex, too bureaucratic and too uncertain to be useful for farmers," Wyss said. "Therefore, Washington Farm Bureau, joined by several of the major users of the H-2A program, does not support AgJobs."

Wyss said the previous ruling required employers seek domestic workers through only the first month of a typical H-2A contract period, May through October.

Now, all domestic workers who apply through July (or 50 percent of the contract period) must be hired, which can displace foreign workers if the work force is already full, he said.

That can mean employers spend money on recruitment, training, transportation and housing for a foreign worker and lose it all if a domestic worker wants a job after the season has already begun, Wyss said.

The biggest impediment to using H-2A, Wyss said, is the adverse effect wage rate, set about 20-25 percent above prevailing wage, which must be paid to all workers. The previous ruling set it at a prevailing wage, which seemed to be working.

“AgJobs does not fix the problem," Wyss said. "Instead, AgJobs would freeze (the wage rate) for three years, study it, and then bring it back, with a cost of living adjustment up to 4 percent for each year that the wage is frozen, unless the study revealed a need to establish a different rate."
  

Overall, the program is just too expensive, Wyss said. For some farmers, it could add $4 per hour for each worker, plus costs of border crossing fees, recruiter fees, transportation and housing costs, all of which are the employer’s responsibility.

This is a “sure fire formula” for frequent litigation, he said.

Wyss said the issue would be taken to Washington, D.C., soon, with suggestions on how to change the program to make it more worker- and employer-friendly.

One major employer in the county uses the H-2A program. Others have shared that they would be interested in using it, but it is too complex and expensive to be sustainable, he said.