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Improving Protections for Workers in Temporary Agricultural Employment in the United States

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Northwest Horticultural Council filings
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Northwest Horticultural Council filed 2 comments on this docket between Oct 5, 2023 and Nov 21, 2023. 41 other organizations filed here. The comment window closed 987d ago.

What Northwest Horticultural Council filed (2)

Nov 21, 2023· Comment from Northwest Horticultural Council· ETA-2023-0003-0303

Dear Administrator Vitelli, Administrator Pasternak, and Director DeBisschop: The Northwest Horticultural Council (NHC) writes today to provide comment regarding the U.S. Department of Labor's (DOL) proposed rule, entitled "Improving Protections for Workers in Temporary Agricultural Employment in the United States," published in the U.S. Federal Register on September 15, 2023, under DOL Docket No. ETA-2023-003. The NHC is a trade association that represents the growers, packers, and shippers of apples, pears, and cherries on federal, as well as international trade, policy and regulatory issues. Our growers produce approximately 70 percent of the apples (supplying 80 percent of the U.S. fresh market), 84 percent of the fresh pears, and 73 percent of the fresh sweet cherries grown in the United States. The NHC represents growers with farms of all sizes. With current workers aging and few new domestic workers entering the workforce, more and more growers have turned to the H-2A program to secure the workforce they need to grow and harvest their crops – in spite of paying a wage that is 19 percent or more above the state minimum wage, plus the substantial costs of providing benefits like housing and transportation. The number of H-2A workers brought to Washington state alone increased by a third in just one year, from nearly 18,800 in 2017 to approximately 25,000 in 2018. The number has continued to rise substantially even through the COVID-19 pandemic, with approximately 30,000 worker positions being filled in 2021, a reported 34,661 in 2022, and a reported 38,664 in 2023. In Oregon, the number of H-2A workers jumped by one-third between 2018 and 2021. Numbers are also increasing in Idaho. Unfortunately, during this same period of growth of use of the H-2A program, we have seen multi-generation, family farmers lose their operations at an alarming rate, causing unprecedented consolidation within the industry. With labor constituting 60-70 percent of a grower's input costs, the single biggest contributor to these growers losing their farms is the significant, non-market-based increases to the cost of labor driven by the terms and conditions of the H-2A program. Making the H-2A program more accessible and workable for growers of all sizes is paramount to halting this trend. Treating workers with dignity and respect is critical to retaining a knowledgeable and productive workforce. It is telling that the vast majority of H-2A employers in the Pacific Northwest tree fruit industry report seeing 90 percent or more of their workers continue to return to the same employer year-after-year. Of those that do not return, it is often because that worker has made enough money to invest in a business at home and therefore no longer needs to work away from their families for much of the year. The NHC recognizes the need for rigorous enforcement of the existing requirements of the H-2A program regarding protection of workers. Our organization has advocated with Congress for increased funds for states for this purpose through the Office of Foreign Labor Certification's (OFLC) state grants program. We believe that bad actors who are violating the terms of the program should be punished. Unfortunately, this proposed rule makes the already complex H-2A program far more difficult for growers to navigate, while increasing the risk that growers may lose access to the program without the ability to exercise proper due process – a death knell for Pacific Northwest tree fruit growers utilizing the program, as they rely on this program to secure the workforce they need to grow and harvest their crops. The impact to small growers will be exponentially higher, as they have fewer resources to manage these complexities. The stated intent of this proposed rule is to improve protections for workers in the H-2A program. We believe this can be done in a manner that does not make this already complex program even more difficult to use for the…

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Oct 5, 2023· Comment from Northwest Horticultural Council· ETA-2023-0003-0011

Dear Administrator Pasternak: The Northwest Horticultural Council (NHC) writes today to respectfully request a 60-day extension of the comment period for the proposed rule entitled "Improving Protections for Workers in Temporary Agricultural Employment in the United States" (RIN 1205-AC12, ETA-2023-0003) that was published in the U.S. Federal Register by the U.S. Department of Labor (DOL) on September 15, 2023. The NHC is a trade association that represents the growers, packers, and shippers of apples, pears, and cherries in Washington, Oregon, and Idaho on federal policy and regulatory issues and matters related to international trade. Our growers produce approximately 70 percent of the apples (supplying 80 percent of the U.S. fresh market), 84 percent of the fresh pears, and 73 percent of the fresh sweet cherries grown in the United States. The NHC contends that an extension of the comment period is necessary to analyze the full impact of the proposed changes, specifically related to proposed disclosures during the H-2A certification process and its operational on-farm impact. Many of our members are currently in harvest, which extensively limits our ability to provide meaningful feedback to DOL on behalf of impacted employers. We also think it is imperative growers themselves have ample opportunity to review and provide substantive comments. In addition, this identical stakeholder group is affected by multiple recent administrative actions that impact their ability to provide meaningful input in the prescribed comment period. The comments for this proposed rule, ETA-2023-0003, are due November 14, 2023. Comments are due just a few days later, on November 20, to the Department of Homeland Security rulemaking titled Modernizing H-2 Program Requirements, Oversight, and Worker Protections DHS Docket No. USCIS-2023-0012. Also, USDA published its Notice of Funding Opportunity for the Farm Labor Stabilization and Protection Pilot Program (FLSP) with a deadline of November 28, 2023. Each of these actions requires significant stakeholder attention and we do not believe the overlapping 60 days will provide ample opportunity for substantive review and comment. We appreciate your consideration of this request. As discussed above, we believe that an extension of the comment periods is necessary to analyze the full scope of this broad package and to make comments based on a comprehensive view of the impact that this rule will have on farm businesses. Sincerely, NORTHWEST HORTICULTURAL COUNCIL

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Abstract

The Department of Labor (Department or DOL) proposes to amend its regulations governing the certification of temporary employment of nonimmigrant workers employed in temporary or seasonal agricultural employment and the enforcement of the contractual obligations applicable to employers of these nonimmigrant workers. The revisions proposed in this notice of proposed rulemaking (NPRM or proposed rule) focus on strengthening protections for temporary agricultural workers and enhancing the Department’s capabilities to monitor program compliance and take necessary enforcement actions against program violators. The Department’s proposals to strengthen protections and improve compliance are aimed at ensuring that the Department can better fulfill its statutory responsibility under 8 U.S.C. 1188(a)(1) to certify that (1) there are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services involved in the petition; and (2) the employment of H-2A workers will not adversely affect the wages and working conditions of workers in the United States similarly employed. The proposed changes include stronger protections for workers who advocate for better wages or working conditions on behalf of themselves and their coworkers, including certain protections for organizing and engaging in concerted activity for the purpose of mutual aid and protection, as well as a new definition of the existing term “terminated for cause” that is intended to ensure that any termination for cause is just and fair. The proposed changes also would require disclosure of additional information about individuals and entities involved in the recruitment of foreign workers and those who manage or supervise workers at a place of employment or own or operate a place of employment included in the H-2A Application for Temporary Employment Certification (H-2A Application), which would enhance transparency in the foreign labor recruitment chain and the Department’s ability to monitor program compliance everywhere that work is performed. The proposed changes also include expedited debarment procedures and revised procedures for applying orders of debarment to successors in interest to debarred employers, agents, and attorneys, both of which would permit the Department to more effectively and expeditiously hold bad actors accountable for violations. In addition, the proposed changes would codify the Department’s test to determine if two ostensibly different employers are in fact a single employer for purposes of assessing temporary or seasonal need and for program compliance. The changes proposed in this NPRM also would enhance worker protections and the enforcement capabilities of the Department’s Wage and Hour Division (WHD) by clarifying and revising various regulatory provisions that have been subject to misinterpretation, including prohibitions on passport withholding, and pay disclosure requirements. The proposed changes also would revise the H-2A program regulations and Wagner-Peyser Act regulations to strengthen protections for workers in the event the employer must delay the start date due to unforeseeable conditions like travel delays or crop conditions at the time work is supposed to begin, and to clarify and strengthen the discontinuation of services regulation. Other changes include additional transportation safety requirements and additional disclosures of terms and conditions of employment to agricultural workers.

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Co-filers (41)

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