H-2A guestworker

An H-2A guestworker clips stems while harvesting Fuji apples in Washington state. More than a quarter-million guestworkers are used for a wide variety of farm tasks across the nation, including planting and pruning in the spring.

An agricultural labor bill may be introduced in the U.S. Senate during March and could include relief for growers from escalating minimum wages for H-2A-visa agricultural foreign guestworkers.

Agricultural groups, including the National Council of Agricultural Employers, are working with senators of both parties on a response to the Farm Workforce Modernization Act, HR 5038, that passed the House, 260-165, on Dec. 11, says Michael Marsh, NCAE president and CEO.

A Senate bill likely will be introduced in March and will contain H-2A reform, stabilization for domestic workers in the country illegally and hopefully will be more grower-friendly with greater minimum-wage relief than the House bill, Marsh said.

Republican senators meeting on the topic recently with White House officials were not shut down, which was good news, he said.

“We have to get it done before May because then we’re in the silly season before the election,” he said.

A top priority of the NCAE is relief on the Adverse Effect Wage Rate — known by the acronym AEWR — which is the minimum wage set each year by the U.S. Department of Labor for H-2A workers.

Based on a federal survey of prevailing wages by region, the AEWR went up 5.32% on Jan. 2 in Oregon and Washington, from $15.03 to $15.83 per hour. It is the highest in the nation.

In comparison, the Oregon state minimum wage is $11.25 an hour and $12.50 in the Portland metro area. Washington’s is $13.50. The national average AEWR is $13.99 per hour, up 5.58%. It increased 6.3% in January of 2019 and increased 22.8% in Nevada, Utah and Colorado at that time.

Such increases have been double or triple the increases for domestic workers, are costing farms hundreds of millions of dollars and are forcing some out of business, Marsh said.

It’s a huge issue for Washington tree fruit growers heavily dependent on H-2A workers.

The solution NCAE is looking for in the Senate bill is enforcement of existing law requiring the U.S. Secretary of Labor to set an AEWR only if he or she first determines wages paid to foreign workers are adversely affecting domestic workers. If they are not holding domestic wages down there is no need for an AEWR, Marsh said.

For years, DOL has skipped determining the need and “defaulted to setting an AEWR to mitigate any potential adverse effect,” he said.

That’s not what the law intended and has resulted in a never-ending upward spiral of foreign and domestic wages hurting growers, he said.

NCAE sought an injunction against DOL a year ago to stop the 2019 increases but lost in U.S. district court on grounds that a six-year statute of limitations to challenge DOL’s rule of calculating increases had expired. An NCAE appeal is pending.

Meanwhile, NCAE also has sought relief in H-2A rule changes DOL is due to announce in late spring. If relief isn’t there, NCAE will consider a legal challenge to the rules or will again petition the secretary directly to determine an adverse effect, Marsh said.

“These increases are terrifying to growers,” he said. “A vegetable grower in rural Nebraska brings in 250 H-2A workers a year because unemployment in his county is about 2% and no one there is looking for work.

“His AEWR is now $14.99 an hour and he has to pay H-2A worker transportation, housing and visa costs and he’s hoping to keep the farm in the family and not go bankrupt. It’s terrifying.”

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