Nevertheless, many growers have had no choice but to use the H-2A program as a legal means to the labor shortage, to bring foreign workers into the United States for temporary or seasonal agricultural services. In return, employers must provide workers with a contract, prevailing wages, housing that meets federal, state, and local standards, meals and transportation, and adhere to specific recordkeeping requirements. Other rules govern the number of hours and time laborers can work.
Pros and mostly cons In 2015, there were 7,195 applications certified, covering 139,832 positions. Florida and North Carolina topped the list of states using the program. Last year, California saw a surge in certified positions with 8,591 compared with 6,043 in 2014. But nationwide, only about 6 to 7 percent of growers participated in the program, and 53 percent of hired farm workers responding to a National Agricultural Workers survey said they were not legally authorized to work. Growers say the percentage is much higher and that many “legals” simply have false documentation.
The problem, industry experts say, is that the visa process remains complicated, time-consuming, and expensive. It involves three governmental agencies (the Department of Labor issues H-2A foreign labor certifications; the U.S. Citizenship and Immigration Services adjudicates H-2A petitions; and the Department of State issues visas to the workers at U.S. consulates abroad). And although Western Growers conducts outreach programs to educate members about H-2A and how to remain in compliance with labor laws, and will complete applications on members’ behalf, it is neither a viable solution to the problem nor a particularly positive experience.
Timing is everything For growers of perishables, time is of the essence. Smith says there’s a big gap between filling out the application and actual need, and before growers can even apply, employers must file a job offer with their state workforce agency.
“We have to advertise in three newspapers 60 to 75 days prior to the need for workers,” asserts Maureen Torrey of Torrey Farms in Elba, NY. Department of Labor applications and all required documentation must be received at least 45 days in advance, then the agency approves or rejects the application 30 days before an employer’s date of need. “I have to estimate when I will need workers,” she says. “It’s like rolling the dice.”
Torrey also decries the lack of flexibility in the system. “Mother Nature controls us; if I have a hail storm and lose a crop, I can’t transfer workers to another farm. We have to pay 75 percent of workers’ wages even if they don’t work.”
The shortage of agricultural workers has been an issue for decades. This article presents a current snapshot of the labor crisis, the government’s proposed remedy for the situation, and how fresh produce growers are coping with it.
Agriculture has long depended on migrant workers, many of them illegal immigrants, to fill the gap for seasonal work. And since most fruit and vegetable production is labor-intensive, an insufficient workforce creates a ripple effect throughout the fresh produce supply chain. Over the last several years, an improved Mexican economy and tougher border control have amplified the deficit, with the available number of workers dropping by more than 20 percent from 2002 to 2014, and by nearly 40 percent in California, according to a recent Partnership for a New American Economy report.
Impact & Consequences Although the dearth of workers has significantly impacted growers, for the seasonal laborers who are available, there has been a benefit: higher pay. In Michigan, apple pickers can earn from $20 to $24 per hour, a sharp increase from the previous $12 to $16 an hour. Another example is citrus. “Lemon workers can earn $28 to $30 per hour for piece work,” reports Alex Teague, chief operating officer and senior vice president of Limoneira Company of Santa Paula, CA. “But it is very hard work,” he concedes, and many people don’t want to do it regardless of the wage.
Tom Nassif, president of the Western Growers Association (WGA), echoes the same thought. In his opinion, higher wages and benefits like pensions, health care, and vacations make little difference. Americans, he stresses, don’t want the work. “Raising wages doesn’t increase the workforce,” he says, pointing out that when one grower is short workers and raises the piece rate, it usually draws laborers from another farm, exacerbating the situation. Other growers are then forced to raise their rates, with workers moving to the best wages, and so on. Ultimately, nothing really changes. “It’s still the same number of workers,” Nassif says.
The aging of migrant workers and changing attitude of family members have also added to the crisis. From 2008 to 2012, over 27 percent of migrant workers were 45 years of age or older, nearly double the rate from a decade earlier. “These are skilled workers,” explains Diane Smith, executive director of the Lansing-based Michigan Apple Committee. “But they’re getting older and their children are not going into the business—they want something better for themselves.”
Guest Worker Program While the intentions of the federal guest worker program may be altruistic in preventing terrible working conditions and draconian practices, today’s solution is cumbersome and full of imperfections.
Nevertheless, many growers have had no choice but to use the H-2A program as a legal means to the labor shortage, to bring foreign workers into the United States for temporary or seasonal agricultural services. In return, employers must provide workers with a contract, prevailing wages, housing that meets federal, state, and local standards, meals and transportation, and adhere to specific recordkeeping requirements. Other rules govern the number of hours and time laborers can work.
Pros and mostly cons In 2015, there were 7,195 applications certified, covering 139,832 positions. Florida and North Carolina topped the list of states using the program. Last year, California saw a surge in certified positions with 8,591 compared with 6,043 in 2014. But nationwide, only about 6 to 7 percent of growers participated in the program, and 53 percent of hired farm workers responding to a National Agricultural Workers survey said they were not legally authorized to work. Growers say the percentage is much higher and that many “legals” simply have false documentation.
The problem, industry experts say, is that the visa process remains complicated, time-consuming, and expensive. It involves three governmental agencies (the Department of Labor issues H-2A foreign labor certifications; the U.S. Citizenship and Immigration Services adjudicates H-2A petitions; and the Department of State issues visas to the workers at U.S. consulates abroad). And although Western Growers conducts outreach programs to educate members about H-2A and how to remain in compliance with labor laws, and will complete applications on members’ behalf, it is neither a viable solution to the problem nor a particularly positive experience.
Timing is everything For growers of perishables, time is of the essence. Smith says there’s a big gap between filling out the application and actual need, and before growers can even apply, employers must file a job offer with their state workforce agency.
“We have to advertise in three newspapers 60 to 75 days prior to the need for workers,” asserts Maureen Torrey of Torrey Farms in Elba, NY. Department of Labor applications and all required documentation must be received at least 45 days in advance, then the agency approves or rejects the application 30 days before an employer’s date of need. “I have to estimate when I will need workers,” she says. “It’s like rolling the dice.”
Torrey also decries the lack of flexibility in the system. “Mother Nature controls us; if I have a hail storm and lose a crop, I can’t transfer workers to another farm. We have to pay 75 percent of workers’ wages even if they don’t work.”
Getting workers on time is a major wrinkle. Technical difficulties have caused delays at the various federal agencies, costing growers millions of dollars in lost product. In 2014 and 2015, the State Department experienced computer glitches that held up visas and stranded workers at the Mexican border.
In January of this year, the Department of Labor acknowledged network problems with its certification system, causing processing delays of 10-plus days in California. The problem was further complicated by Immigration Services, which took two weeks to process petitions that were supposed to be completed in five business days. In a letter to California congressional members, Nassif warned that such delays could be “catastrophic” to growers.
Labor and the Law Numerous federal and state laws have been enacted since the Great Depression to improve conditions and protect workers from abusive labor practices. Here’s information on seven acts:
National Labor Relations Act (1935) Protects the rights of employees to organize and bargain collectively when negotiating wages, working conditions, and other benefits. While considered landmark legislation, the law does not cover agricultural workers.
Fair Labor Standards Act (1938) Applies to companies with more than $500,000 in annual business, setting a minimum hourly wage, overtime pay, and a maximum number of weekly work hours. The Act also required recordkeeping and banned child labor. Farm workers were not covered until 1966—though they are exempt from overtime pay and on small farms, from both the minimum wage and overtime.
Federal Insecticide, Fungicide, and Rodenticide Act (1947) Governs the registration, distribution, sale, and use of pesticides—includes accurate labeling practices and Worker Protection Standards to reduce the risk of illness or injury resulting from exposure to pesticides.
Occupational Safety and Health Act (1970) Sets standards and enforces workplace safety and requires employers to maintain records of on-the-job injuries and illness. Small farming operations with 10 or fewer employees (excluding family members) are exempt, though establishment of a temporary labor camp can change this status.
California Agricultural Labor Relations Act (1975) Protects the rights of workers to unionize and select their own representatives in contract negotiations with an employer. The law prohibits employers from interfering with these rights, protects workers from restraint or coercion by unions or employers, and prohibits unions from engaging in certain types of strikes and picketing. An amendment established the Agricultural Employee Relief Fund, which collects fines from an employer found guilty of unfair labor practices, and distributes the money to any employees who were harmed.
Migrant and Seasonal Agricultural Worker Protection Act (1983) Establishes employment standards related to wages, housing, transportation, disclosures, and recordkeeping. Farm labor contractors and their employees must register with the Department of Labor; growers must ensure workers have a valid registration. Exceptions include small growers, family members, and local contracting.
The Immigration Reform and Control Act (1986) Envisioned to control illegal immigration by requiring that only aliens authorized to accept employment in the United States may be hired. Employers and farm labor contractors must verify the identity and employment eligibility of laborers (or face penalties) and can be fined for discriminatory practices against both citizens and authorized aliens. The Act separated H-2 visas into agricultural (H-2A) and nonagricultural (H-2B).
The American Farm Bureau Federation concurs; at the end of April close to two dozen farm bureaus across the country were already reporting shortages as the harvest season began.
Possible solutions Industry experts point to several ways the process could be made easier, faster, and more cost effective. One is as simple as processing petitions electronically. Currently, requests for additional immigration documents are sent by snail mail, adding days to the process.
Limoneira doesn’t currently use the H-2A program, even though Teague admits, “We’re between 20 and 25 percent short on having enough workers in Santa Paula and San Joaquin Valley.” To alleviate the shortage in California, migrant workers are coming over from a property in Arizona, when the season there is over. The company is also considering a similar move in other states, like Washington.
Teague says Limoneira provides workers with sick days, medical insurance, and housing. The company was one of the first in Ventura County to establish worker housing, and currently has a total of 196 units, of which 58 are new, with more to come. “Our housing is for maintaining people, rather than attracting them,” he says.
From Bitter to Better Harvests The labor shortage has spurred some positive momentum, as growers look to technology to improve and streamline the harvesting process. Mechanized harvesting is not feasible for many fruits and vegetables, and when it is, specialized machinery can be very expensive. For its part, the Michigan Apple Committee turned to Michigan
State University, funding research for an economical harvester/sorter that can efficiently sort apples in the orchard. A prototype will be tested this fall, Smith notes, and if successful, could reach the market in a year or so.
Western Growers Association has also poured funding into research and development, opening the Center for Innovation and Technology in Salinas. Created as an incubator to bring technology startups and growers together, the initiative hopes to develop solutions to the many challenges—including water and labor shortages—facing agriculture.
What Lies Ahead While labor has always been a concern for growers, the confluence of a stronger Mexican economy, tighter border restrictions, an aging workforce, and changing attitudes about grueling field work have dramatically increased the shortage of available seasonal workers.
While more growers are reluctantly turning to the federal H-2A guest worker program, most believe it is not a viable long-term solution. Instead it is viewed as overly complicated, expensive, bureaucratic, and riddled with inefficiencies. For an industry already adhering to a slew of labor laws, the best hope remains immigration reform, though this is unlikely to be achieved anytime soon.
