OLYMPIA — The farm labor association Wafla remains opposed to the farm labor bill that passed the U.S. House Dec. 11, saying it would make the H-2A-visa agricultural foreign guestworker program more expensive and prone to litigation.

“It does not create a workable future flow worker program,” Dan Fazio, Wafla executive director wrote in an email to members, Dec. 13.

The Farm Workforce Modernization Act, H.R. 5038, “has little chance of passing, or even being considered, in the Senate,” he wrote.

While the bill seeks to freeze the H-2A minimum wage known as the Adverse Effect Wage Rate, or AEWR, at 2019 levels through 2020, if would be too little too late for 2020 by the time of its adoption, he said.

Reasonable minds differ on whether the U.S. Department of Labor would allow the 2020 AEWR, likely to be $15.83 per hour in Washington and Oregon, to be rolled back to the 2019 level of $15.03 if the bill passes the Senate in the new year, he wrote.

“Make sure you have language in your H-2A contracts that permit you to reduce wages in the event H.R. 5038 passes,” he wrote.

Labor groups pressured lawmakers to keep high AEWRs because they benefit domestic workers who receive them if their employer hires both H-2A and domestic workers, Fazio said.

Another way to benefit domestic workers without raising wages is to allow employers to charge workers for housing they have to provide H-2A workers and domestic workers who come from outside a 50-mile radius, he said. Those within that radius don’t have a right to free housing.

“Lawmakers have not offered any good public policy reason for rejecting this approach,” he wrote.

H.R. 5038 removes longstanding legal protections for farmers by giving H-2A workers the right to sue in federal court for any violation of the H-2A program and provides mandatory damage awards to workers for even technical violations, he said.

The bill also holds farmers liable for violations by H-2A recruiters operating in foreign countries, he said.

Some 300 agricultural groups reportedly back the bill, which legalizes the current workforce. Fazio said ag groups that represent employers using H-2A generally oppose the bill or took no position.

The bill phases in mandatory E-Verify, electronic verification of employment eligibility, which is tough, he said, when the bill does so little to improve H-2A for the average farmer.

“We hope the Senate recognizes that the survival of labor-intensive agriculture in America depends on a future flow program that works for farmers,” Fazio wrote.

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