On October 12, the U.S. Department of Labor will publish a sweeping and long overdue set of stronger new regulations on living conditions for H-2A workers in agribusiness. They should, among other things, improve the lives of those alien workers, make the use of them more expensive, and thus encourage the employment of U.S. workers — that’s the good news.
The bad news is that growers need not follow these rules if only U.S. workers are involved; the government has the power to issue such regulations only when there are foreign workers. A lot of farm work is done by illegal aliens and they are not covered either.
The long laundry list of reforms starts on a bracing note: The new rules “expressly authorize the Department to debar attorneys and agents for their own misconduct, independent of the employer’s violations”.
Debarment, which is used only rarely by the department, means that a lawyer or agent could be excluded from the H-2A program. That’s progress.
The list of new or clarified requirements is wonderfully detailed and must reflect a wide variety of problems in this area. For example, regarding meals that the grower must provide:
- “Clarifies that employer-provided meals must be provided in a timely and sanitary manner.”
- “Clarifies that employer-provided meals must be nutritionally and calorically adequate. Employers are encouraged to consult the United States Department of Agriculture, National Institutes of Health, or any other credible sources of nutrition and caloric intake guidelines when developing meal plans.”
- “Clarifies that, in situations where the public accommodation (e.g., hotel) provides free breakfast, the employer may not use the free breakfast to satisfy one of the three daily required meals unless the free breakfast is nutritionally adequate.”
The use of the word “clarify”, is, I guess, designed to indicate that these are not new rules, they are restatements of old ones.
Among the other clarifications is one requirement that will surely set off a howl from agri-business: It says that “rental and/or public accommodations” include only hotels, motels, and the like “that are available to the public to rent for relatively short-terms stays”.
In other words, Farmer Jones can’t rent the labor housing from Farmer Smith.
In another interesting move, it “improves working conditions for H-2A workers in animal shearing, commercial beekeeping and custom combining [the harvest of wheat, for example] by codifying standards for mobile housing (distinct from that used in herding and production on the range).”
In other words, not all H-2A farm workers are equal — you must treat H-2A sheepshearers, who work seasonally, better than the year-round H-2A sheepherders. My suspicion is that while all sheepherders are Latin Americans, the other three occupations have a more mixed workforce. It has been a long time since I focused on the subject, but there used to be Canadian tractor drivers among the crews working the combines; they moved north from Texas to the Dakotas as the wheat ripened.
Memories of Cold Showers. These are the kinds of regulatory changes that I should have been involved with nearly half a century ago when I was assistant to the U.S. secretary of Labor for farm labor during the LBJ administration. We spent virtually all of our energy then seeking jobs for Americans, and on wages paid, rather than on working and living conditions. A single example of our encounters with the latter is useful.
While 99.9 percent of Americans took showers with hot water coming from gas or electric-powered water heaters, some farm employers had systems that relied on the sun to heat — or at least warm — the shower water. Rain water was saved in tubs or tanks set on top of the workers’ barracks, which worked fine in hot weather, and not at all with cool temperatures. I forget what, if anything, we did about the matter.