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Labor, H-2A, and the Convenience of Insanity By Ed Overdevest, Overdevest Nurseries, Bridgeton, NJ
As an industry, and as a nation, we face an immigration reform process that has evolved into a frustrating stalemate—a conundrum that outside observers would best describe as insane. Adding to the irrationality is the political reality that, for many, this continuing dilemma is best left unsolved—because it serves as a convenience… a “convenience of insanity.” Some might find it hard to believe that our government has collectively defaulted to the comfort of not wanting a sensible solution to this pressing problem. Yet regardless of political persuasion, incumbents have come to realize how this wedge issue serves as the “gift that keeps giving” each time they hit the campaign trail in their gerrymandered districts. A reelection advantage that is now hard to give up.
This political “convenience of insanity” inevitably spills over into the regulatory arena as well. Executive actions and regulatory decrees are far more expedient, and politically rewarding, than “grind it out” legislative compromise. Even for agriculture, there is a siren song appeal to the current gridlock. As long as this standoff leaves growers with a willing and able staff, the issues of legal status and immigration reform seem best left alone. Yet, unbeknownst to most, circumstances have been changing. The U.S. Department of Labor has been hard at work fashioning a regulatory noose from the rope of survey data agriculture has unsuspectingly volunteered over the years. So much so, that a new reality awaits our industry as this current gridlock gives way to far-reaching regulations that fill the void of legislative inaction in shocking ways. This future is already evident to those participating in the regulatory minefield of H-2A. It will become directly apparent to other growers as they turn to
this Federal agricultural worker visa program to replenish their dwindling farm workforce. Beyond that, the realization will come indirectly to the rest by virtue of the higher wages necessary to hold onto existing workers in an ag labor market that is tightening thanks to: the competing wages of H-2A, tighter border security, and a worker exodus from agriculture to other occupations. And then, what happens when the next president either forces an economic deportation of agricultural workers (perhaps by blocking the flow of their “illegally earned” money out of the country to relatives depending on their support), or facilitates a mass migration of agricultural workers into other occupations through deferred action immunity? Hello H-2A. Rather than finding this program to be a sensible safe haven providing willing, able, and legal workers, new participants will soon become aware of how the US Department of Labor has created a “gotcha” regulatory scheme that imposes hyper-inflationary wage requirements, undermines workforce morale and productivity, exceeds the bounds of enabling legislation, and upends American principle. How so? First, there is the mandatory wage rate for H-2A participants—AEWR (Adverse Effect Wage Rate). Ostensibly designed to protect American worker interests, it is a derived wage rate based on misappropriated data from USDA Farm Labor Surveys never intended for this purpose. Total gross wages, reflecting a full range of ag worker experience and compensation, are conveniently transformed into the base wage rate for H-2A (by region). As a consequence, the higher wages and pay incentives earned by more experienced and productive workers yield a premium base wage that is well above current prevailing (median) wage rates. Sound like a rigged process? It gets better. Through a new regulatory interpretation of “Corresponding Employment,” the Department now says that any entry level employee—no matter how unwilling, unable, or inexperienced—must likewise be paid this experienced/skilled wage rate that AEWR represents—if they perform just one menial task in common with their H-2A co-workers. This breach of fairness, if applied to other businesses, would have a revolutionary impact—as the societal goal of equal pay for equal work becomes zealously twisted into a misdirected policy of equal pay for unequal work. Once again, the “convenience of insanity”!
Over the course of our involvement with H-2A since 1999, we have witnessed the change of an already complex program into a prime example of simpleminded regulatory excess. In a fight against this new Department of Labor “Corresponding Employment” mandate, our company is in the midst of challenging this overreach through the Department’s internal review process and, if necessary, an appeal to the U.S. District Court for the District of Columbia. Left unchallenged, the Department is well on its way to legislating a self-spiraling minimum wage mechanism divorced from reality, and in clear violation of Congressional intent… just because it can. Some might question why we have taken up this fight. We do it because someone must—lest this current “convenience of insanity” turns into an “inconvenience of insanity” that bankrupts our industry.
Ed Overdevest Overdevest Nurseries Bridgeton, NJ ejo@overdevest-nurseries.com
Every Tool, Every Option AmericanHort is advising member employers that there are no silver bullet solutions to the labor woes they are reporting. For the foreseeable future, that means digging deep into the toolkit and being open to new approaches. This year’s GrowPro: Plug & Cutting conference, September 19–21, 2016 in Calsbad, California, will offer fresh insights. Resettled refugees now comprise a large share of the workforce at Bailey Nurseries’ St. Paul headquarters operation. How is it working? How have they dealt with language and integration issues? Hear the answers, first-hand, from Joe Bailey, who heads their human resources program. What can we learn from just outside our industry? Driscoll’s, with growers all over the Americas and beyond, has become a brand synonymous with fresh, delicious berries. Yet berries are one of the most labor-intensive crops out there. How is Driscoll’s approaching labor issues with an eye on getting fresh product to the consumer and protecting their brand? Just like water, labor is an essential input for horticulture. And with the labor situation becoming just as fickle as the weather, creative ingenuity will be key. Visit AmericanHort.org/Plug to learn more.
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