H2A program creates obstacles for producers

Cody – “The H2A program is challenging, and it is broken,” said Mountain States Agriculture Service Executive Director Kelly Griffith at the 2012 Summer Meeting of the Western Association of State Departments of Agriculture (WASDA) meeting on July 16-19.
    Griffith addressed WASDA members to inform them on the obstacles that the program creates and the challenges that producers face in attempting to bring in workers.
    “There is a need for this program,” Griffith added. “There is a reason this program has been utilized even when it wasn’t successful – H2A is the only viable option for a legal agriculture workforce.”
Satisfaction with H2A
    In a survey conducted by the National Association of Agriculture Employers (NAAE), 47 percent of employers responded that in 2010, they were not at all satisfied with the program and 42 percent said they would not participate again because of administrative burdens and cost.
    Additionally, employers using H2A cited $320 million in economic losses.
    “The losses are due to the fact that they don’t know if they are going to get workers, and if they are going to, they don’t know when they will get them,” explainsed Griffith. “With livestock workers, we have more leeway than those raising crops. Farmers need workers there when their crops are ready.”
    “On average, a worker is delayed by 22 days,” she continued. “The sheepherders I bring in from Peru are generally delayed for well over a month, and I have producers facing four month delays.”
    With the lack of assurances in the program to guarantee workers when they are needed, Griffith mentioned that there is need for reform.
Program demands
    Another stumbling block that producers face is the constant demands of the program.
    “The program wants to know exactly where the workers will be going and on what day,” Griffith said. “They are narrowing the ability of producers to manage their own business and increasing costs. These demands keep going up.”
    Along with the demands of the program, Griffith mentioned that the program is also not providing the help it was intended to provide.
    One stipulation of the program is that producers attempt to hire U.S. workers and advertising for positions must be done in a daily print source. Recently, a change has been made eliminating the requirement for sheepherders.
    “Mountain Plains Agriculture Service spent $99,000 on advertising in 2010, and I would be shocked if that yielded five qualified U.S. applicants,” said Griffith, noting challenges and cost-prohibitive advertising requirement. “Very few U.S. workers apply, very few are qualified, and, in the survey by NAAE, of those hired, only three percent finished their contracts.”
    H2A also requires that preference be given to U.S. workers, who, more often than not, do not fulfill their contracts.
    When U.S. workers don’t complete a job or quit in the middle of a season, Griffith added that employers are left with a four-month process to find an H2A worker.
    “It is a constant cycle of delays,” she noted.
Penalties
    “One of the most frightening things is that Wage and Hour seems to be targeting H2A employers,” Griffith commented, noting that expensive fines and increasing audits make some producers nervous.
    Eight percent of surveyed producers reported that they were audited prior to joining the H2A program. However, after joining, 35 percent reported being audited.
    Two types of audits can be imposed on employers: a paperwork audit or a Wage and Hour audit.
    “The paperwork audits require an immense amount of paperwork,” she explained. “The Wage and Hour audits involve investigators showing up at the place of employment. Employers are more than happy to cooperate, and they want to be open and honest, but the prevailing attitude is that Wage and Hour has an agenda.”
    Griffith cited two Wyoming producers in the same area that were fined $54,000 and $13,000, respectively, for the same infractions and neither was given the opportunity to correct the problem before receiving fines.
    “There is very much a lack of consistency and a lack of communication within the agency,” Griffith said. “One investigator even said that enforcement of the rules is subject to interpretation – that is the scare our employers face while they try to work at complying.”
Changing rules
    A similarly concerning issue is that while regulations may not change, the interpretation of regulations does vary. For example, Griffith looked at the three-year limit imposed on sheepherders in 2009.
    “Until three years ago, sheepherders were not subject to a maximum three-year stay. In January 2009, that limit was imposed on sheepherders,” she explained. “Our employers planned so as to adhere to the rules.”
    In the rules, a clause about interrupted stay was interpreted such that when a worker left the U.S. and later returned, the three-year time period started over.
    “Some employers sent their workers home for 60 or 70 days, thinking that they would be in the clear for another three years,” Griffith continued.  “However, when we started getting notices telling employers that their workers had to go home.”
    After nearly two months, the Department of Labor clarified that the interrupted stay clause, under their new interpretation, did not re-start the three-year time limit, but only paused it.
    “The employers had to send their workers home during lambing seasons, for example, that they had tried to plan for,” she says. “It wasn’t a change in regulation, it was merely a change in interpretation, and a very sudden change that we had to deal with.”
Special procedures
    Griffith also mentioned that the H2A program operates under special procedures provisions, which is a policy rather than regulation.
    “In 2010 they added a regulations stating that they can change special procedures without stakeholder input,” she said, “and they came out with multiple changes.”
    While some changes were positive, Griffith noted that insignificant changes can mean large changes for employers
    “From the standpoint of a solution, one hasn’t been identified,” Griffith said.
    Saige Albert is managing editor of the Wyoming Livestock Roundup and can be reached at saige@wylr.net.

Conflicting regulations
    While Kelly Griffith, Mountain States Agriculture Service executive director, mentioned that some conflicting regulations are seen between federal agencies or state laws and the Department of Labor regarding the H2A program and its enforcement.
    “For example, the Forest Service now mandates that producers must have two guys at camp for safety and fire hazard issues, but you can only have one camp,” said Griffith. “H2A says you can only house two men in one wagon for a couple of days, and producers must request a variance.”
    For the variance to go through, it may take up to six months.
    One audience member added that in some cases, state laws conflict with Department of Labor policies, forcing producers to choose with which regulations to comply.