H-2A Action Alert!
The Bush Administration has proposed extensive and devastating changes to the H-2A program. These changes would drastically lower wages, labor protections, and housing standards for farmworkers, severely limit the ability of U.S. workers to obtain employment with H-2A employers, and limit the oversight and enforcement of the few protections that remain.
The proposed regulatory changes were published in the Federal Register on February 13, 2008 and are available for download here.
We can stop these harmful changes from going through. We need to generate a large number of comments from individuals and concerned citizens to fill the administrative record with opposition to the U.S. Department of Labor’s proposal to change the H-2A agricultural guestworker program. Sample comments can be found below.
Please follow the instructions for posting comments online at the DOL's official website. Comments are due to DOL by April 14, 2008.
Go to the DOL website and fill in this form.
If the above link does not work, go to http://www.regulations.gov.
Under the middle tab, “Comment or Submission,” enter document ID ETA-2008-0001-0001. Look for a document titled “Temporary Agricultural Employment of H-2A Aliens in the United States; Modernizing the Labor Certification Process and Enforcement.” Submit comments by clicking on the “send a comment or submission.” Be sure to include the Regulatory Information Number, which is RIN 1205-AB55.
Please contact us if there are any questions or if you have problems submitting your comments.
[Your name and address]
Re: H-2A Temporary Foreign Agricultural Worker Program: (RIN) 1205–AB55
Dear Secretary Chao,
I write to oppose the proposed changes to the H-2A temporary foreign agricultural worker program. The proposal is unfair, harms farmworkers, and contains many illegal provisions. [Identify yourself or your organization and your interest.]
The proposed regulations are devastating to farmworkers because they would cut their wages, weaken the modest labor protections of the H-2A guestworker program, and reduce oversight and enforcement of the few remaining protections. The H-2A law requires employers who would like to hire temporary foreign workers to obtain a labor certification from the Department of Labor (DOL) stating that they face a labor shortage and are offering wages and working conditions that will not “adversely affect” U.S. farmworkers' wages and working conditions. DOL’s proposal violates this requirement by allowing employers to avoid recruiting and hiring U.S. workers so that they can hire foreign guestworkers at exploitative wages and under harsh conditions. The proposed regulations also reverse the longstanding policy of ensuring that U.S. workers are offered the same wages and benefits as H-2A workers and would instead affirmatively allow employers to treat U.S. workers less favorably than H-2A workers.
Farmworkers' conditions are an embarrassment; they need to be improved not worsened.
Under the current H-2A regulations, farmworkers' wages under the “adverse effect wage rate” vary by state from about $8.40 per hour to a little over $10 per hour. These wages are based on the average wage paid to farmworkers in a regional area, as determined by the U.S. Department of Agriculture's Farm Labor Survey. For such hard, dangerous work, with no health care, paid sick leave or paid vacation, that's not enough. Yet DOL is proposing to switch to a methodology based on the Bureau of Labor Statistics Occupational Employment Survey, which would result in lower average hourly wage rates for most farmworkers due to its inaccuracy. The BLS OES does not even survey farms; its information about farmworkers is based primarily on surveys of farm labor contractors, a small subset of the agricultural sector that disproportionately pays low wages, employs high numbers of low-paid undocumented workers, and violates employment laws.
In addition, DOL would no longer require employers to pay, at a minimum, the average farmworker wage. Employers could pay workers one of four possible DOL-set wage levels that are not related to skills or experience but are simply a way to lower H-2A wage rates. There appears to be nothing to prevent most employers from offering the lowest wage level, which is the average wage received by the lowest-paid one-third of farmworkers. Many employers could reduce wages to the state or federal minimum wage.
DOL should withdraw the wage proposal because it will cause, not prevent, adverse effects to U.S. workers’ wages. DOL should continue to use the USDA Farm Labor Survey, but, to compensate for the depression caused by hiring guestworkers and undocumented workers, employers in the H-2A program should offer wages at the 662/3 percentile of the wage scale or the average, whichever is higher.
In addition to cutting wage rates, DOL proposes to end the longstanding rule that H-2A employers must provide non-local workers with free housing that meets basic safety standards. DOL would allow employers to provide workers with housing “vouchers” even though most farmworkers lack the tools to perform a long distance housing search. Where will these workers live? DOL’s proposal leaves too many unanswered questions to finalize this proposal. Farmworkers can't afford decent housing and often can’t find any. This proposal would subject many farmworkers to homelessness or dangerous and substandard places, such as the very fields they harvest.
DOL also seeks input as to whether it should continue to require H-2A employers to reimburse workers for transportation costs. Such payments are necessary for many reasons— to attract U.S. workers; to encourage employers to fully employ the workers in whom they have invested and to recruit only those workers needed; to help guarantee that workers are able to afford to return home; and, because farmworkers’ wages are so low, to prevent farmworkers from becoming even more deeply indebted (and more exploitable) or from seeking low-cost transportation that is often unregulated and deadly.
DOL is proposing to stop requiring employers to recruit for U.S. farmworkers in areas where other employers are seeking farmworkers. This makes no sense in a market economy that recognizes competition as good. The recruitment DOL would require is unlikely to attract workers as it does not reflect the reality of how farmworkers learn about or apply for jobs and would eliminate the requirement that H-2A employers follow successful recruitment methods of non-H-2A employers. DOL’s proposal also would eliminate a key job preference for U.S. workers, the 50% rule, and would instead make U.S. workers jump through additional hoops, such as employment eligibility verification, to get jobs with H-2A employers.
DOL also proposes to switch from a labor certification to a labor attestation process, which would reduce government oversight of the few remaining protections. Instead of eliminating regulations that protect farmworkers, DOL should improve and enforce their protections.
The answer to America's need for farmworkers is not to make wages and working conditions worse so that employers substitute low-paid and exploitable guestworkers for low-paid and exploitable undocumented workers. The answer is to improve wages and working conditions to reduce employee turnover, increase productivity, and reduce poverty among America's farmworkers. If guestworkers are needed, they should be paid and housed decently so that employers do not have an incentive to hire guestworkers and displace U.S. workers or depress their wages. Guestworkers from poor nations are vulnerable; their vulnerability should not be exploited. The solution is to treat farmworkers fairly. DOL should withdraw this proposal.
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