Proposed H-2A rule changes will make the program more difficult for everyone


Immigration and agricultural labor have a relationship that is indelibly linked in some circles. The nuances of what immigration and agricultural labor look like are often tied to programs like the H-2A farmworker visa program as well.

In 2022, California’s agricultural employers hired 44,400 farmworkers through the H-2A visa program. The number of people hired through the program equates to about 12 percent of the total number of farmworkers hired through the visa program for the entire United States that year. Farmworkers with H-2A visas are temporary workers, legally employed in the United States, whose wages are federally mandated to be significantly higher than the average local wage to discourage use of the program. The Adverse Effect Wage Rate (AEWR) in California in 2022 was $17.51/hr., making it the highest wage rate in the nation.

A recent court ruling solidified the enactment of H-2A rules by the Biden Administration as legal and binding. Late last year, both the U.S. Department of Labor and the U.S. Department of Homeland Security proposed rule changes of their own to the H-2A program that would make navigating the already complex program even more difficult.

The proposed rule changes from DOL include punishing employers for “perceived” workplace violations without evidence, provide rosters of both H-2A and local workers’ contact information to farmworker unions twice a year, allow union organizers 10 hours of open access to workers per contract per month, create a six-step discipline regimen before being able to fire an employee “with cause,” and hold U.S. employers accountable for all employees of a labor recruiter foreign and domestic.

Breaking these requirements into smaller pieces, two of the proposed rules are directly related to unionization. Both forcing employers to provide employee rosters and requiring open access to farmworkers at any time of day, is a significant violation of privacy and private property rights. Both requirements also assume farmworkers, H-2A and local, do not have free time or the right to privacy. H-2A and local farmworkers are not chattle. They are people. They deserve to govern their time – outside of their working hours as they wish – and deserve to guard their contact information as they wish as well. If labor organizers want to reach out to H-2A and local farmworkers, they can do the legwork. It is not, and should not be, incumbent upon their employer to invade their privacy on behalf of a third party.

Similarly, holding employers accountable for “perceived” workplace violations without evidence or holding them accountable for the actions of a labor contractor, effectively another employer, puts the onus where it doesn’t belong. We are a nation founded on the notion of “innocent until proven guilty.” That notion should apply in the workplace as well. H-2A visa holders are entitled to, and receive, all the same protections as a local worker, meaning whistleblowers are protected from any kind of retaliation from their employer.

Agricultural employers also cannot be expected to be held accountable for the actions of labor contractors’ employees. Labor contractors often act as “go-betweens” working in other countries to recruit farmworkers into the H-2A program. It is the responsibility of an agricultural employer to hire a reputable labor contractor. It is not the responsibility of the agricultural employer to screen every person in the employ of the labor contractor. Just as is the case when a person goes to a department store, there is an expectation the store has screened its employees to ensure they are trustworthy people rather than holding customers accountable for thefts committed by store employees.

Finally, establishing lengthy discipline regimens as pathways to termination “with cause.” Terminating employees is never the goal of the H-2A program. The program is designed to discourage its use and discourage termination of employees. Employees dismissed from an H-2A contract are still guaranteed wages in many cases. Finding ways to ensure both employers and employees are responsible, committed, and communicating about the work being done is critical but it should be laid out based upon the needs of the individual farm to determine what that looks like.

The rules proposed by the Department of Homeland Security are eerily similar to those proposed by DOL, but do not include the unionization language. As immigration and farmworkers continue to dominate some parts of our discussion landscape, it will continue to be relevant to keep H-2A in mind.

The H-2A visa program fills a significant need within the agricultural community. It is a need that is growing annually as more people step away from physical, outdoor labor. The H-2A program is an opportunity for people from abroad to truly realize the American dream through hard work earning good wages via a legal means of entry into the United States. We should honor their efforts by making visas more readily available for whomever wants to apply for them rather than increasing the requirements placed on employers, thus making that dream harder to achieve for the people who want it most.

Pam Lewison is a fourth-generation farmer in Eastern Washington, the Ag Research Director for the Washington Policy Center, and a contributor to Pacific Research Institute.

Nothing contained in this blog is to be construed as necessarily reflecting the views of the Pacific Research Institute or as an attempt to thwart or aid the passage of any legislation.

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