Agricultural Labor

For decades, the most labor-intensive sectors of American agriculture have been dependent on alien workers to meet basic workforce needs. In recent years, almost all sectors have dealt with labor shortages by employing alien workers. Regulatory efforts to protect this segment of the workforce from unfair treatment and exploitation while striving to avoid the displacement of U.S. workers by underpaid immigrant labor have exacerbated the ills they were designed to cure. By using their authority to make it extremely difficult for agricultural employers to utilize legal temporary worker programs, governments have enhanced the economic incentives that underpin a thriving traffic in illegal workers.

The present situation — characterized by a predominance of workers whose right to work in the United States is supported by documentation of dubious veracity or no documentation at all — is untenable in the long run. The short-term consequence of an immediate expulsion of this segment of the workforce would cause a production crisis in a wide range of field and orchard crops, and in the livestock industry. This would leave the United States no alternative but to import many food products from poorer countries that have surplus farm labor. Any workable solution to the current, unstable situation must deal with the rights of both foreign and U.S. workers, with the status of alien workers now employed in the U.S. agricultural sector, and with the conditions under which foreign workers may be employed in the future.

Rights of Agricultural Workers — Alien workers should receive the same wages, benefits, and protections as U.S. citizens working in the same jobs. The wage standard for agricultural labor should be the prevailing local wage rate, subject to applicable state and federal minimum wage legislation. Alien workers should not be permitted to fill positions vacant as the result of a strike, lockout, or work stoppage as a result of a labor dispute. Laws and regulations should be crafted in such a way as to discourage litigation and facilitate rapid dispute resolution. Alien workers should have the right to return to their homes and families during vacations and gaps in legal employment without jeopardizing their right to return to that employment.

Temporary Agricultural Workers — The history of the U.S. agricultural labor market, particularly in the last half-century, suggests that there will probably never be a time that there is an adequate supply of native-born workers willing to perform entry-level work in labor-intensive segments of the agricultural industry. Laws and regulations that pretend that this is not the case – or that imply that the industry can pay wages far higher than state and federal minimum wages and still compete with imports – will assure the persistence of a large underground agricultural labor force. A workable temporary or guest worker program is urgently needed. A reform of the current H2A visa program designed to simplify the application procedure, decrease paperwork, and expedite approvals, is a good starting point. The burden of proof that a labor shortage exists, as well as an adverse impact wage formula designed to augment rather than protect prevailing wage rates, are two reasons why the current program covers only a small percentage of the alien agricultural workforce currently employed.

Identification of Agricultural Workers — NASDA encourages the federal government to develop an identification system that will provide the United States reassurance that its national security is not being compromised while facilitating the availability of migrant farm workers to our agricultural producers.

Adjustment of Status — A workable means of regularizing the status of current agricultural workers is a critical element of any long-term solution to the temporary worker problem, since it will take some time to get the kinks out of a reformed guest worker program. Policies should allow workers already employed in agriculture and willing to commit to future employment in the industry to have their de facto position in the labor force recognized, and should remove sanctions that preclude their ever participating in the workforce on a legal basis. This will help the agricultural industry meet its immediate labor requirements without knowingly or unknowing violating current immigration laws, while placing current alien workers under the protections that all participants in the U.S. agricultural workforce are guaranteed.

Federal Agencies — The vast majority of all agricultural producers are in full compliance with all state and federal laws and regulations regarding the treatment of farmworkers. NASDA urges the U.S. Department of Agriculture, U.S. Department of Labor, and the U.S. Department of State to enforce existing immigration, labor, worker safety and border patrol laws. In addition, NASDA further urges these agencies to increase education and outreach efforts with producers to ensure they have the information necessary to comply with these laws. These agencies should assist NASDA in disseminating information that accurately depicts the current treatment of farmworkers by agricultural producers.

Fair Labor Standards Act — Although the Christmas tree industry has changed considerably over the years to its current agricultural state, it is sometimes still classified as non-agricultural. Most state departments of agriculture, the Internal Revenue Service, U.S. Department of Agriculture, and the U.S. Office of Management and Budget have defined agricultural commodities to include Christmas trees, however, the U.S. Department of Labor has interpreted the Fair Labor Standards Act of 1938 to exclude Christmas tree farming from its agricultural definition. This poses significant confusion and regulatory challenges for U.S. Christmas tree producers.

NASDA supports legislation that would amend § 203(f) of the Fair Labor Standards Act to include Christmas trees within the definition of agricultural or horticultural commodities.