Workers Harvesting Peppers In Field

Labor Availability

Why does Labor Availability matter?


Ag Workers? What Ag Workers?

Frank Gasperini
Published in Fruit and Vegetable Growers News

As I write this month’s column the Congress is still debating whether they should defund the Department of Homeland Security (DHS) while telling, or rather warning, agriculture groups that we should support mandatory E-Verify for every employee along with enhanced border security now, with a non-specific promise that they will get to our workforce issues later. Many of us of a certain generation cannot help but recall a particular cartoon character from our youth who always said “I will gladly pay you tomorrow for a hamburger today.” You always wondered if the payer could really count on getting paid tomorrow. We still wonder about promises of help later, in return for support or non-objection today. Mandatory E-Verify that is not concurrent with or led by immigration reform that lets our current workers legally continue working for us while providing a workable, economically viable, scalable, and sustainable future flow of workers for ALL agricultural employers; including those with year-around needs is a farm and job killer. A farm and job killer, period. Since the word sustainable seems to mean whatever the writer calls it when applied to agriculture, I mean a program that can work as intended/needed for years while being ethical and moral from both business and personal grounds. Specifically that growers and workers are both better off at the end of each season than had they not worked together for years to come.

This current fight comes at the same time we face a faster and faster decline in domestic workers both local and migrant, and an increasingly hostile regulatory process for acquisition and compliance in using the legal guest worker programs, H-2A for agriculture and H-2B for non-agriculture including processing. We have discussed the growing need for willing, able, and reliable workers in the past. We have also discussed the need for constant growth in efficiencies to allow available workers to be as productive as possible and the constant claims by those who do not understand the nature of fruit and vegetable production to say we could simply mechanize as the corn and soybean growers do, or just pay more to attract the workers we need. We will not waste ink re-plowing that ground however two relatively new studies back up our concern. One from a NY State survey of apple growers suggests that despite increasing productivity by existing workers the need for workers will continue to grow in coming years. This survey, is from Tom Maloney, Sr. Extension Specialist Dyson School of Applied Economics Management of Cornell University. The second is a January 12, 2015 American Journal of Agricultural Economics article discussing and documenting steep decline of the pool of domestic migrant workers.

The continuing concern that we will not see significant legislative improvements in the 114th Congress coupled with continuing regulatory agency hobbling of the only legal temporary worker programs had caused us to focus on practical steps we might take to push the current programs to work more as they were intended. This is the conclusion that my association, NCAE, has arrived at. While we continue to work toward fuller legislative corrections, we plan to focus on using all the help we can get from agriculture friendly agencies, Congressional rep pressures, grassroots pressures, and even litigation to encourage the regulations we are now governed by, that we must all live with until better legislation is achieved, to be administered in ways that at least do no harm to US domestic agriculture. Until we get to real possibilities of Congressional action, we intend to use our limited resources to push, pull, or beg the current regulators and administrators to make the existing programs better serve agriculture.

We do not advocate that any enforcement or regulatory agencies break-faith with their legislative or regulatory mandates, but that they take time to understand the differences in agricultural businesses and those businesses with highly predictable ebbs and flows that are not so directly impacted by uncontrollable variables, and/or are part of large corporations for whom a new and last-minute reporting or procedural change is accomplished by a back-room employee or team and implemented nationwide across multiple locations.

Over the coming months you will read about our ongoing effort to engage with upper management at various agencies to educate them in the realities of agricultural business management, the economy, homeland security, and moral values of continuing to produce the bulk of our food supply domestically, and when necessary targeted invitations to various agency personnel to visit with Congressional representatives who understand the issues. None of these activities are short-term fixes, but in lieu of major legislative reforms which appear less likely in the atmosphere of this Congress, they are the pathways open to us for whatever improvements we can harvest in the orchards, fields, and barns of Washington, DC.

Data and Statistics on Labor Availability

56%

Percent of farmers reported they have used a labor-saving technology, and of those who began using mechanization, 56 percent did so due to employee shortages.

56%

In the 2019 survey, 56 percent of participating farmers reported they had been unable to hire all the employees they needed for production of their main crop at some point during the past five years.

86%

Percent of farmers responding to the survey said they had raised wages in efforts to hire enough people.

Labor Availability
Primary Issues:


In 2010 the National Council of Agricultural Employers completed a substantial survey of H-2A Employers now known as the ALRP. The Survey found that the H-2A Program did not serve growers needs in seeking a reliable, legal workforce – Growers faced economic loss from H-2A program rules and administration, unpredictable start times, a historic number of administrative appeals, and increased regulatory burdens.

Currently, despite lack of current extensive data, NCAE still operates on the principles outlined in this survey and continues to work with both the Ag Employer Community and the Federal Agencies that administer the H-2A Visa to help lessen the regulatory burden and increase the effectiveness of this program until other alternatives can be found through the legislative process.

Another study shows that “migrancy” is down. This study from Ball State University discusses trends including a continuing decline in migrancy. The summary also says the percentage of female migrant workers has increased and also discusses more issues that deserve further study. There may be a contradiction in that while documented workers still migrate, undocumented workers appear less migratory due to risk of being apprehended, but then one of the conclusions is that status normalization might cause even less migrancy and thus make the labor situation worse.

See the study here: 2014 Ball State Study – Why Do Fewer Agricultural Workers Migrate Now.

Latest News on Labor Availability


Get in Touch


While the NCAE focuses on advocating for Agricultural Employers at the national level, we also aim to serve as a reliable resource for our members. If you have a question or concern, send us a message.

Two men picking apples

Worker Eligibility

Why does Worker Eligibility matter?


Determining the employment eligibility of every single employee you hire is a key responsibility of every employer. In the current immigration issues environment where federal sanctions and penalties are widely enforced against the employer, you cannot afford to make any exceptions or assume that any employee is a “legal” worker. You must verify every employee at the time they start to work.

There are several programs or processes that may be included in employment eligibility but the federal Form I-9 is the one that must be completed for every hire, even your relative!

There are many rules to follow such as not “pre-screening” applicants, that would be discriminatory, the three day window to complete the I-9, no document steering by the employer, etc. Most employers find it safest and easiest to make sure the new-hire knows they will have to complete the I-9 on day one when they report for work, what documents they can choose from to bring with them, and complete the form on the day the employee starts. It is also best to have only one person in your organization do all the I-9s, and self-audit regularly.

The US Citizenship and Immigration Service (USCIS), part of the Department of Homeland Security, manages the I-9 process and are the organization who might audit your compliance. They have an online site called “I-9 Central” which does an excellent job of teaching everything you ever needed to know about I-9s and more.

Additionally, NCAE and allied groups and associations routinely offer I-9 compliance updates at meetings and seminars.

The key is, no I-9, no work. It is as simple as that, if an employee will not or cannot provide the necessary documents within the time allowed, you need to remove them from your payroll and send them home until they can!

Data and Statistics on Worker Eligibility

84

Number of countries eligible to participate in the H-2A program.

Top Destinations for H-2A Workers

Georgia 12.3%, Washington 11.3%, Florida 10.9%, California 9.6%, and North Carolina 8.8%.

93%

Percentage of H-2A workers originating from Mexico.

Latest News on Worker Eligibility


Get in Touch


While the NCAE focuses on advocating for Agricultural Employers at the national level, we also aim to serve as a reliable resource for our members. If you have a question or concern, send us a message.

Supreme Court

Youth Labor Rules

Why do Youth Labor Rules matter?


We believe that youth should only work in safe situations and tasks, unexposed to hazards or situations that would subject them to undue risk of injury or long-term health risks. We believe that teenagers can work in agriculture or other businesses, in a way that provides safe conditions and appropriate hours. We understand that teenagers differ from adults in many respects, and that businesses that employ teenagers must supervise them differently from adults. To that end, we support the work of the National Children’s Center for Rural and Agricultural Health and Safety, and the work of the National Farm Medicine Center.

Some agricultural operations are hazardous and special protections must be mandated and implemented to protect youth and untrained workers from specific jobs, locations, and practices. This does not mean wholesale bans on participation of youth, less trained, or less able workers from agricultural work. With proper training, adequate supervision, and consistent enforcement of work rules, farm work can provide safe and valuable introductory work experiences and important income opportunities for youth.

Quick Facts on Youth Labor Rules

Work Protections for Minors

In most states, ag employers must get proof of age, parental permission and school authorization (during the school year) before they hire minors.

The Fair Labor Standards Act

The Fair Labor Standards Act outlines protections for youth workers in agriculture regulating work conditions and hours.

Special Protections

The Department of Labor restricts minors 15-years-old and younger from working in certain roles declared hazardous.

Youth Labor Rules
Resources:


Every farm should have a written policy to keep unauthorized persons of all ages out of the workplace. Additional legislation or regulatory authority is not needed. The abuses held up as examples are illegal and improper under current law and should be fully prosecuted. Congress must adequately fund the Department of Labor to assure that current laws and regulations are obeyed in order to prevent, or stop, employment abuses in all industries.

NCAE and our industry support legal and responsible employment of youth. We believe all children should attend school. If teenagers work, their work should not interfere with their education or their safety. NCAE strongly supports agricultural occupational work experience opportunities for youth through approved education and training programs such as Vocational Agriculture, Occupational Work Experience, and others.

Additional Resources:

Latest News on Youth Labor Rules


Get in Touch


While the NCAE focuses on advocating for Agricultural Employers at the national level, we also aim to serve as a reliable resource for our members. If you have a question or concern, send us a message.

Man standing in vineyard

Safety Issues

Why do Safety Issues matter?


A baseball game; the bottom of the ninth inning, the home team is down by one run, a player on third waits to come home for the tie, the player on second hopes to score the winning run. The batter hits the ball sharply past the second baseman. The runners drive for home, SAFE says the umpire once, SAFE he says the second time. The home team wins, the game is over, victory is celebrated.

Coming home SAFE. Easy to take for granted. Easy to think of as something that will always happen without intentional planning and management. Far too easy to forget for that one tragic, or even fatal, split second that changes life forever. In baseball, coming home safe and winning the game are the result of skill, training, practice, and good management. Winning baseball clubs never leave winning to chance or luck. The same discipline should be true of safety for every Harvester operation, from the smallest part-timer, to the largest multi-state/multi-national enterprise.

Statistically, agricultural work is classified as a dangerous occupation. According to the U.S. Department of Labor (DOL) farmers and ranchers have the fourth highest fatal injury rate among occupations, with only fishing, logging, and aviation being higher! Because of this, there is tremendous pressure from state and federal elected and regulatory officials to expand and increase the regulation and enforcement activity into all agricultural work. DOL is not alone, State and Federal DOT regulators look at us, agriculture, as likely Farm and agricultural accidents kill or maim our friends, neighbors, and family members every year. Can anyone who has been in agriculture for most of their life state that they do not have a family member, friend, neighbor, or other acquaintance who has been killed or suffered some permanent injury on the job? The personal costs and family tragedies are terrible enough. In addition to the personal cost, every time someone allows him/herself, or another, to be involved in an agricultural accident there are huge and looming “costs” and “losses” to the entire agricultural community. Whether we personally know the victims or not, every time young people are killed or maimed, we lose part of the future of agriculture. Every time a Harvester, family member, visitor, or employee is involved in an accident American agriculture loses people, time, produce, money, and reputation. Every agricultural related accident we read about pushes us closer to more and more regulatory burden on farm and other agricultural operations. These costs are only added to the terrible burden that everyone who has had such an accident related to their business carries with them for the rest of their lives.

“Safety is no accident”— “nearly all accidents are preventable”— these are true statements and everyone has a responsibility to take the necessary precautions to prevent agricultural accidents; for yourself, for your family and friends, for the future of agriculture. In addition to personal/family considerations, as employers, you have both moral and legal responsibility to provide a safe workplace, to provide proper training, to provide the necessary safety equipment and programs, and to require everyone to participate.

Safety does not happen by accident, it is always the result of intentional planning, and it does not result from writing or adopting a one-time plan, but requires a relentless every-day commitment to creating a culture of safe work in every aspect of your operation.

A culture of safety in a Harvest, or other business, must be an almost religious pursuit. USCHI, NCAE and many others stand committed to building safety into every aspect of daily agricultural life.

Options to Eliminate or Mitigate Safety Issues

Eliminate

Eliminate risks by removing risk factor out of system.

Substitute

Replace the hazard with a non-hazard.

Control Hazards

Isolate the hazard as much as possible.

Administer Control

Utilize training, schedules, and signage to decrease risk.

Personal Protection

Personal protective equipment can be used to lower the risk of hazards.

Employer Issues
Primary Issues:


In 2015, NCAE Executive, Frank Gasperini wrote an article on how to protect your workers, your family, yourself and your business: 2015 Health Safety Liability.
Some of the specific Health and Safety Risks that the Agricultural Industry encounters includes:

Some external Resources on Health, Safety and Liability Issues can be found through:

Latest News on Employer Issues


Get in Touch


While the NCAE focuses on advocating for Agricultural Employers at the national level, we also aim to serve as a reliable resource for our members. If you have a question or concern, send us a message.

US Capitol Building

Employee Benefits and Compensation

Why do Employee Benefits and Compensation matter?


The Department of Labor Wage and Hour Division has published general information concerning the application of the Fair Labor Standards Act (FLSA) to agricultural employment. The FLSA is the federal law which sets minimum wage, overtime, record keeping, and child labor standards. Virtually all employees engaged in agriculture are covered by the Act in that they produce goods for interstate commerce. DOL’s Fact sheet dictates Agriculture to include farming in all its branches when performed by a farmer on a farm or as an incident to or in conjunction with such farming operations.

Within Agriculture there are some exemptions which exempt certain employees from the minimum wage provision, the overtime pay provisions or both:

  • Employees who are employed in agriculture as that term is defined in the Act are exempt from the overtime pay provisions. They do not have to be paid time and one half their regular rates of pay for hours worked in excess of forty per week.
  • Agriculture does not include work performed on a farm which is not incidental to or in conjunction with such farmer’s farming operation.
  • Agriculture does not include operations performed off a farm if performed by employees employed by someone other than the farmer whose agricultural products are being worked on.
  • Any employer in agriculture who did not utilize more than 500 “man days” of agricultural labor in any calendar quarter of the preceding calendar year is exempt for that current calendar year.
    • A “man day” is defined as any day during which an employee performs agricultural work for at least one hour.
  •  Agricultural employees who are immediate family members of their employer.
  • Those principally engaged in the range production of livestock.
  • Local hand harvest laborers who commute daily from their permanent residence, are paid on a piece rate basis in traditionally piece-rated occupations, and were engaged in agriculture less than thirteen weeks during the preceding calendar year.
  • Non-local minors, 16 years of age or under, who are hand harvesters, paid on a piece rate basis in traditionally piece-rated occupations, employed on the same farm as their parents, and paid the same piece rate as those over 16.

Typical Issues on Employee Benefits and Compensation

Incorrect Record Keeping

Not keeping or incorrect record keeping of names, addresses, DOB, hours worked, etc. can be a liability for employers.

Overtime Pay

Employers should ensure they avoid failing to pay overtime to employees whose jobs are related to agriculture but which do not meet the definition of agriculture contained in the Act.

Joint Employer Liability

Ag employers and farm labor contractors can be held liable if either party fails to comply with the law.

Employee Benefits and Compensation
Primary Issues:


In addition to adherence to the FLSA and its exemptions, many employers engage in non-wage benefits packages or incentives to engage and retain their employees. Employee benefits are optional, non-wage compensation provided to employees in addition to their normal wages or salaries. These types of benefits may include group insurance (health, dental, vision, life etc.), disability income protection, retirement benefits, daycare, tuition reimbursement, sick leave, vacation (paid and non-paid), funding of education as well as flexible and alternative work arrangements.
For the Agricultural Employer community, some types of benefits are more feasible than others given some of the seasonal and temporary nature of the work.

NCAE Policy Papers on Employee Compensation and Benefits:

Other Resources:
INTERNS: Jackson & Lewis Publication on “Primary Beneficiary” Test – Determining Employee Status of Unpaid Interns.

Latest News on Employee Benefits and Compensation


Get in Touch


While the NCAE focuses on advocating for Agricultural Employers at the national level, we also aim to serve as a reliable resource for our members. If you have a question or concern, send us a message.

Worker In Field Harvesting Potatoes

H-2A Visa Program

Why does the H-2A Visa Program matter?


The H-2A temporary agricultural worker visa program allows agricultural employers facing a shortage of domestic workers to bring nonimmigrant foreign workers to the U.S. to perform seasonal or temporary work.

When using temporary visa program for workers, agricultural employers must prepare well in advance, and are under strict scrutiny from the US Department of Labor and other regulatory agencies. Employers are frequently audited, so skilled preparation and execution becomes crucial.

Latest News in the H-2A Program

August 27, 2019. OFLC Announces New H-2A Application Forms and Schedule for Electronic Filing in the Foreign Labor Application Gateway System.

Data and Statistics of the H-2A Visa Program

220%

Increase in H-2A Visas Issued from 2013 to 2018

242,762

H-2A Positions Certified in FY18

16.7%

Increase in Number of H-2A Applications Received by OFLC from FY17 to FY18

Active Regulatory Reform For the H-2A Program


NCAE applauds the Trump Administration’s announcement on July 15th of its Notice of Proposed Rulemaking (NPRM) to modernize and improve the H-2A temporary agricultural labor certification program.

According to the Department of Labor’s announcement, “These proposed changes would modernize the Department’s H-2A regulations in a way that is responsive to stakeholder concerns and enhances employer access to a legal source of agricultural labor, while maintaining the program’s protections for the U.S. workforce and enhancing enforcement against fraud and abuse.”

“We are very pleased the Administration has agreed to roll out this much needed modernization effort for the H-2A program. It is obvious, based upon the 489 pages included, the deep dive that was done by the agencies in their effort to evolve the program to one more responsive to the needs of stakeholders,” said Michael Marsh, President and CEO of NCAE.

According to the Department, the wide-ranging rulemaking will streamline the application process and strengthen protections for U.S. and foreign workers. The rule also looks to update methodologies used to determine Adverse Effect Wage Rates while addressing many other issues.

Marsh noted, “The breadth of this proposed rule is substantial. NCAE will be working with its committees, members and legal counsel to develop targeted, cogent comments to provide to the Department. This type of hefty rulemaking doesn’t come around often. Our sleeves are rolled up and we’re raring to go!”.

Latest News on the H-2A Visa Program


Get in Touch


While the NCAE focuses on advocating for Agricultural Employers at the national level, we also aim to serve as a reliable resource for our members. If you have a question or concern, send us a message.