Beware: DoL Proposes "Streamlining" H-2A Alien Farmworker Program

By David North on July 18, 2019

Whenever a government regulatory agency says it intends to "streamline" a foreign worker application process you know that most, if not all, of the changes will benefit employers.

On July 16, the Department of Labor issued a new set of rules for H-2A foreign workers. The proposed regulations, according to a Law360 report are designed to:

"...streamline and simplify the H-2A application process, strengthen protections for U.S. and foreign workers, and ease unnecessary burdens on employers."

On careful examination by a knowing outsider (I was once the Assistant to the U.S. Secretary of Labor for Farm Labor), I would rewrite that sentence to say:

"...get around the numerical limits in another DoL program, H-2B, for forestry workers, and to give the Department a chance to fiddle with the adverse effect wage rules that help both foreign workers and some U.S. workers."     

Let's look at these two proposed changes.  

Forestry workers. First, a little background: forestry workers are covered in another DoL alien worker program, H-2B, which has numerical limits (something Law360 ignores); the H-2A program has no numerical limits; hence allowing forestry workers to become H-2As not only frees their employers of any numerical ceilings, it helps all H-2B employers by taking some 11,000 workers out of the H-2B system.

This is a very slick move.

The new H-2A workers are to be in "reforestation [that sounds very wholesome] and pine straw activities."

The last phrase sent me to Google, where I learned that pine needles can be used as mulch in landscaping. And the biggest user of H-2B workers is the landscaping industry. Hmm.

The Adverse Effect Wage Rate. This is a kind of minimum wage for both foreign workers and the U.S. workers on the same job.   It is adjusted yearly and differs (appropriately) state by state, is complex, and is routinely gamed by farm employers.

DoL wants to give itself the power to improve "the methodology for how it collects data on wages and how it determines prevailing wages and the 'adverse effect wage rates'..."   

The report continues, "The proposal reflects the Department's concern that the current AEWR methodology may have an adverse effect on the wages of workers in higher-paid agricultural occupations, such as supervisors of farm workers and construction laborers on farms, whose wages may be inappropriately lowered by an AEWR established from the wages of field and livestock workers."

This raises several sets of eyebrows:

  • supervisors of farm workers, when they are not crew leaders, who take care of themselves nicely, thank you, are often year-around employees;
  • why are construction workers covered by H-2A? Shouldn't they be in H-2B?
  • why the concern about the wages of the straw bosses, and not the workers?
  • the stated rationale for reviewing the AEWR sounds a little like Commerce Secretary Wilbur Ross saying that he wanted the citizenship question added to the Census to obtain data needed to help enforce the voting rights of citizens, i.e., that the rationale is contrived.    

All of this will be in the Federal Register, shortly if not immediately, and comments are invited.