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.

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.

• ALRP Brochure
• ALRP Summary of Results

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.

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!

Resources for Employees:

• Know Your Rights-Spanish version
• Know Your Rights-English
• ICE Raids Preparedness-Spanish version
• ICE Raids Preparedness-English version
• 2017-09 AWC Statement on Presidential Decision to end DACA

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.

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:

• NCAE Issue Paper (2010)
• NCAE Model Policy “Children in Workplace” (2016)
• National Children’s Center Guidelines for Youth Employment
• National Children’s Center Resource Page
• US Department of Labor Pocket Guide
• CropLife America Issue Summary and Talking Points (2011)

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.

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:

• Workplace hazards – NCAE has issued some model policies to address some of the largest hazards and liability factors
• Environmental Hazards – including:
  • Heat Related Illnesses
  • Wildlife and insects
    • The Zika Virus
    • Mosquito Borne Diseases
    • Tick-borne Diseases

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

• NIOSH (National Institute for Occupational Safety and Health)
• ASHCA (Agricultural Safety and Health Council of America)
• AgriSafe Network
  • In 2016 AgriSafe hosted a series of webinars that NCAE wrote up summaries on:
    • Risk Factors and the Agricultural Industry
    • Total Worker Health
    • Protecting Young Adults in the Agricultural Workplace

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.

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:

• June 2016 – Issue Brief on Raising the Minimum Wage to $15/hr
• June 2016 – Issue Brief on Mandatory Sick Leave
• June 2016 – Non-Wage Benefits to Engage and Retain Workers within the Agricultural Industry

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