Farmworker Sequeira

Leon Sequeira, a lawyer and former assistant secretary of labor in the George W. Bush administration, spoke against the Farm Workforce Modernization Act during a presentation Jan. 16 at the Wafla H-2A Workforce Summit in Lake Oswego, Ore.

LAKE OSWEGO, Ore. — Legislation aimed at fixing some of agriculture's deepening labor woes would actually do little to benefit farms in the long term, according to attorney Leon Sequeira, a former assistant secretary of labor under President George W. Bush.

Sequeira said the Farm Workforce Modernization Act, which passed the House on Dec. 11, has flaws that make it unlikely to pass the Republican-controlled Senate.

Sequeira spoke Jan. 16 at the Wafla H-2A Workforce Summit in Lake Oswego, Ore. 

Lawmakers, led by Reps. Zoe Lofgren, D-Calif., and Dan Newhouse, R-Wash., introduced the Farm Workforce Modernization Act last year. It provides a pathway for immigrant farmworkers to gain legal status in the U.S., while proposing key changes to the country's H-2A visa program.

All members of the Oregon and Washington House congressional delegations voted in favor of the bill.

Wafla, a farm labor association based in Olympia, Wash., has opposed the bill, arguing it will make the H-2A program more expensive and prone to litigation without solving worker shortages.

Sequeira highlighted those concerns during his presentation, beginning with the bill's mechanism for worker legalization. Under the bill, farmworkers can apply for legal status as a "Certified Agricultural Worker" if they claim 180 days of agricultural work over the last two years.

Workers can then renew that status every five years if they claim at least 100 days of agricultural work per year. But Sequeira said the bill has virtually no verification standards for checking claims, and after fulfilling their minimum hours workers can quit and go on to  other jobs.

"(The bill) does a great job of providing legal status for agricultural workers," Sequeira said. "It really doesn't do anything to solve the labor problems in agriculture."

As for H-2A changes, the bill does offer a few positives, such as streamlining applications online and capping the minimum wage rate increases for H-2A workers at 4.25% over the next 10 years, he said.

However, Sequeira said it does nothing to limit higher prevailing wages in states such as  Washington, where a $16 per hour minimum wage was recently imposed on some apple harvesting activity.

"This is a huge problem in Washington state," he said.

Sequeira said the bill does allow growers access to H-2A workers year-round, though it initially caps the number of visas at 20,000 per year, half of which are reserved for dairy. The Department of Labor issued 200,000 H-2A visas in 2019.

Perhaps the biggest issue with the bill, Sequeira said, is it allows farmworkers to sue employers in federal court over alleged program violations, creating a massive legal liability for farmers. Taxpayer-funded legal aid groups could also represent foreign clients and sue farms.

"This is really just a horrendous element of this bill that nobody talks about," Sequeira said. "It's a lawyer's dream. It's not too great for you, if you're trying to survive."

Finally, the bill would also phase in mandatory use of E-Verify to check workers' eligibility, but for agricultural employers only.

Sequeira said it is highly unlikely the Senate will take up the bill, though a small group of senators led by Thom Tillis, R-N.C., is discussing possibly drafting an alternative.

With a divided Congress and election year on the horizon, he said it remains to be seen whether anything will happen soon.

"There's always a chance. It can be solved," Sequeira said. "But it's a politically difficult issue."

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