Study finds grower dissatisfaction with H-2A

09/29/2011 11:29:00 AM
Tom Karst

Nearly half of U.S. growers who use the H-2A agricultural guest worker program aren’t happy with it, according to a survey from the Washington, D.C.- based National Council of Agricultural Employers.

One of the main findings of the report, said Frank Gasperini, executive vice president of the Washington, D.C.-based NCAE, is that the H-2A guest worker program is so broken that just fixing it won’t be enough to solve America’s agricultural worker problem.

“It does need to be fixed but right now it is providing less than 5% of our labor,” he said. “It is hard to be believe that the Department of Labor could gear up to capacity to provide us with a million workers, which is what we will need with mandatory E-Verify.”

The House of Representatives is expected to pass mandatory E-Verify legislation this year, but produce industry leaders have not yet secured language in the bill that give growers access to a legal workforce.

Gasperini said U.S. agriculture desperately needs some means to keep existing workers — more than half of which are thought to be in the U.S. illegally — on the job.

The NCAE survey, conducted by Washington State University, found 47% of employers were “not at all satisfied” or only “slightly satisfied” with the H-2A program, the study said. Only 14% of employers were “very satisfied” or “completely satisfied” with the program, according to the report.

Libby Whitley, chairwoman of the H-2A Committee for the NCAE and president of Mid-Atlantic Solutions Inc., of Lovingston, Va., highlighted preliminary findings of the report in her testimony Sept. 13 before the House Education and Workforce Committee subcommittee on workforce protection.

Whitley said growers are frustrated with the program for a variety of reasons. She said the survey found that of the employers who quit using the H-2A program in 2012, 42% said it was “too administratively burdensome or costly.”

Of those who remained in the program, 40% said they had no legal alternative or said they expected mandatory E-Verify would be required of them.

Whitley said the Department of Labor has failed in delivering guest agricultural workers in a timely manner, costing growers hundreds of millions of dollars in losses due to delays in the agency processing of growers’ applications, and arbitrary and frivolous denial of application that result in appears to the Office of Administrative Law judges.

In fact, federal statistics show that while the Department of Labor approved 99% of all applications for H-2A workers in 1997, the approval rate was just 78% in the first three quarters of fiscal year 2011.

The NCAE survey said that 68.7% of growers said it was “substantially harder to get certified” or “somewhat harder to get certified” in the most recent year. Application denials have caused growers to employ lawyers to appeal their cases. So far in fiscal year 2011, Whitely said that 442 appeals have been made to the Department of Labor Office of Administrative Law Judge, compare to an average of only 18.4 appeals per year from 1995 to 2009.

What’s more, the survey found that the Department of Labor often doesn’t meet its statutory requirement that it must make a certification an H-2A application within 15 days of receipt of an application and at least 30 days prior to the employers stated date of needs. From 1997 to now, the Whitley said the DOL has met its deadline only 40% to 60% of the time. The NCAE survey found that 72% of growers reported their required H-2A workers arrived an average 22 days late, resulting in more than $320 million in economic losses for farmers.

In addition, growers said they were more likely to be subject to wage and hour division audits than when they were not in he program.

“Only 8% of H-2A employers report being audited by the Department of Labor’s Wage and House Division before participating in H-2A, compared to 35% once they used the program,” Whitley said in her testimony.

Whitley said a mandatory E-Verify law would increase the demands on a broken H-2A program and urged Congress to create a new farm worker program as part of E-Verify legislation.

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