[Senate Hearing 106-1058]
[From the U.S. Government Publishing Office]
S. Hrg. 106-1058
THE AGRICULTURAL JOB OPPORTUNITY BENEFITS AND SECURITY ACT OF 1999
=======================================================================
HEARING
before the
SUBCOMMITTEE ON IMMIGRATION
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED SIXTH CONGRESS
SECOND SESSION
__________
MAY 4, 2000
__________
Serial No. J-106-81
__________
Printed for the use of the Committee on the Judiciary
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For Sale by the Superintendent of Documents, U.S. Government Printing Office
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SENATE COMMITTEE ON THE JUDICIARY
ORRIN G. HATCH, Utah, Chairman
STROM THURMOND, South Carolina PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
ARLEN SPECTER, Pennsylvania JOSEPH R. BIDEN, Jr., Delaware
JON KYL, Arizona HERBERT KOHL, Wisconsin
MIKE DeWINE, Ohio DIANNE FEINSTEIN, California
JOHN ASHCROFT, Missouri RUSSELL D. FEINGOLD, Wisconsin
SPENCER ABRAHAM, Michigan ROBERT G. TORRICELLI, New Jersey
JEFF SESSIONS, Alabama CHARLES E. SCHUMER, New York
BOB SMITH, New Hampshire
Manus Cooney, Chief Counsel and Staff Director
Bruce A. Cohen, Minority Chief Counsel
------
Subcommittee on Immigration
SPENCER ABRAHAM, Michigan, Chairman
ARLEN SPECTER, Pennsylvania EDWARD M. KENNEDY, Massachusetts
CHARLES E. GRASSLEY, Iowa DIANNE FEINSTEIN, California
JON KYL, Arizona CHARLES E. SCHUMER, New York
Lee Liberman Otis, Chief Counsel
Melody Barnes, Minority Chief Counsel
C O N T E N T S
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STATEMENT OF COMMITTEE MEMBER
Page
Abraham, Hon. Spencer, a U.S. Senator from the State of Michigan. 1
WITNESSES
Berman, Hon. Howard L., a Representative in Congress from the
State of California............................................ 15
Bishop, Hon. Sanford D., Jr., a Representative in Congress from
the State of Georgia........................................... 13
Camacho, Marcos, General Counsel, United Farmworkers of America,
AFL-CIO, Keene, CA............................................. 78
Craig, Hon. Larry E., a U.S. Senator from the State of Idaho..... 9
Garcia, Polo, Pastor, Casa de Zion, Lutheran Ministry to
Farmworkers, Woodburn, OR...................................... 28
Graham, Hon. Bob, a U.S. Senator from the State of Florida....... 10
Holt, James S., Senior Economist, McGuiness & Williams, on behalf
of National Council of Agricultural Employers, Washington, DC.. 69
Munoz, Cecilia, Vice President, Office of Research, Advocacy and
Legislation, National Council of La Raza....................... 30
Smith, Hon. Gordon, a U.S. Senator from the State of Oregon...... 3
Wunsch, Joshua, Farmer and Board Member, Michigan Farm Bureau, on
behalf of American Farm Bureau, Traverse City, MI.............. 23
THE AGRICULTURAL JOB OPPORTUNITY BENEFITS AND SECURITY ACT OF 1999
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THURSDAY, MAY 4, 2000
U.S. Senate,
Subcommittee on Immigration,
Committee on the Judiciary,
Washington, DC.
The subcommittee met, pursuant to notice, at 2:18 p.m., in
Room SD-226, Dirksen Senate Office Building, Hon. Spencer
Abraham, (chairman of the committee) presiding.
OPENING STATEMENT OF HON. SPENCER ABRAHAM, A U.S. SENATOR FROM
THE STATE OF MICHIGAN
Senator Abraham. We call this hearing to order. And I want
to welcome everybody to today's hearing on the Agricultural Job
Opportunity Benefits and Security Act of 1999.
I am going to make some brief opening comments, and I wish
to apologize for being a few minutes late. Although I have not
been officially asked to, I will also, on behalf of the Ranking
Member, Senator Kennedy, express his concerns, too, about our
day. Both of us have been on the floor in a pair of amendments.
I have offered a first-degree amendment, Senator Kennedy has
offered a second-degree amendment to my first-degree amendment.
So we have spent much of the day together, just not here. And I
am not sure where the current status of things is, but I
apologize for my delay and hopefully he will be able to join
us, as well as other members of the subcommittee.
I actually am going to be fairly brief. We have had several
hearings already over the last couple of years on these issues
that pertain to the workforce situation with respect to
American agriculture. In June 1998, we held a hearing entitled,
``The H-2A Program: Is it working?'' The feeling that emerged,
I felt, from that hearing is that the current system does not
work very well, for a variety of reasons, for all of the
different participants, whether it is the farmers or the
potential workers or American agriculture in general.
One of the goals of that hearing and the process that
hearing helped us to move forward was to bring together
individuals on a bipartisan basis to try to engage in a more
serious discussion of these issues. And then last May we held a
hearing on meeting the workforce needs of American agriculture,
farmworkers and the U.S. Academy, and I think at that hearing
we also made it very clear that some of the problems associated
with the H-2A system had grown worse and that neither employers
nor workers were being very well-served by the status quo.
I also think last year's hearing was very helpful in the
sense that we really had more of a dialogue than a hearing in
the conventional sense, and I think people on both sides got a
chance to hear some of the concerns expressed by people with
rivaling views in a way that maybe doesn't happen typically in
a hearing, and I appreciated that.
At that time, or at least when we conducted that hearing,
no legislation had actually been introduced on the subject at
hand, and it was hoped that the hearing might be helpful in
providing information on all sides of the issue in order to aid
in the drafting of legislation. Since then, we have seen a
bipartisan bill introduced by Senators Gordon Smith, Bob
Graham, Larry Craig, Max Cleland, Mitch McConnell, Paul
Coverdale, Jim Bunning and others. And it is that bill which is
the focus of today's hearing.
Now, I realize as I think everybody does that there is
still not unanimity of opinion on the legislation which will be
discussed here today. Although policy disagreements are often
what receive the most attention, as I note in the previous
hearing, there remains an agreement on a large number of facts
regarding farmworkers and agriculture.
First, we as Americans would like to see our farmers
competitive in global markets and believe it is important to
have agricultural products produced in this country.
Second, migrant farmworkers have hard lives, and we can all
admire them for the very difficult, but important jobs which
they perform on a daily basis.
Third, it is far safer for farmworkers born in other
countries to enter America legally rather than to be faced with
unscrupulous smugglers, who show little concern for their
safety.
And finally, a farmworker who enters the United States to
work legally will have a greater legal recourse than an
individual who is an illegal immigrant.
I made these points last time, and I make them again in the
spirit of hoping that we can forge more common ground. In my
home State of Michigan, many farmers have related to me the
difficulty of finding agricultural workers, particularly on a
timely basis. Today, there are over 45,000 farms in Michigan.
Each year, the food and agricultural industry contribute more
than $40 billion to the Michigan economy. And today we will
hear from a representative of Michigan's Farm Bureau, who will
give us his views and the views of that organization with
respect to the current conditions which confront farmers in my
State.
In Washington, reflecting the views of their constituents,
Senators of both parties have been working together and have
sought this hearing today as a venue to advance the issue.
There are also efforts taking place on the other side of
Capitol Hill in the House of Representatives. Our two previous
hearings, I believe, were successful in helping to forge a good
degree of bipartisanship, though not uniform consensus. So I
hope that today's hearing can help us find additional common
ground that can benefit the Nation, and hopefully ultimately
allow us to pass legislation that is a positive piece of
legislation for all concerned.
So I just would say that I think the witnesses we have
assembled today working with Senator Kennedy share that
interest, and I look forward to hearing their testimony.
We will begin with our panel of Senate witnesses. Senator
Gordon Smith, who is the lead sponsor of the legislation we are
going to be discussing today, Senator Bob Graham, Senator Larry
Craig. I will call on you in that order, unless there is a time
problem, which I would be happy to honor. But if not, we will
proceed first with you, Senator Smith.
PANEL CONSISTING OF HON. GORDON SMITH, A U.S. SENATOR FROM THE
STATE OF OREGON; HON. BOB GRAHAM, A U.S. SENATOR FROM THE STATE
OF FLORIDA; AND HON. LARRY CRAIG, A U.S. SENATOR FROM THE STATE
OF IDAHO
STATEMENT OF HON. GORDON SMITH
Senator Smith. Thank you, Mr. Chairman, for your leadership
and holding this hearing on S. 1814, the Agricultural Jobs
Opportunity Benefits and Security Act. I would also like to
thank you for holding hearings over the past years on the
important issues surrounding the workforce needs of American
agriculture, farmers, farmworkers and the U.S. economy. The
outcome of those hearings, along with the years of
negotiations, are reflected in this bipartisan bill that is
brought to the committee today by Senator Graham, Senator Craig
and myself.
I would also like to take the liberty of introducing two
Oregonians that are here: Pastor Police officer Garcia from the
House of Zion Ministries in Woodburn, OR, who will be
testifying in a later panel today and his wife Marta. They are
right behind me here. They are representative of many people
who really want to improve the current circumstance. It is a
shameful situation that we are in today.
And, Mr. Chairman, frankly, in all of my legislative
career, I have never found an issue that quickly moves off its
merits and onto name calling, as does the issue of immigration.
And I suspect you understand what I am talking about. I have
never had good-faith effort and people called into question so
quickly in my life. And what I am doing here is a bipartisan
effort, a good-faith effort to make a terrible situation to end
and to make a better situation. Our country needs to get off
this illegal system and onto a legal system so farmers are no
longer fugitive or felons and farmworkers no longer need to
conduct themselves as fugitives living in the shadows of our
society.
Frankly, what motivates me to do this are the weekly
reports. We all see, but frankly, we do not see much any more,
even though they happen. It is becoming very common place in
our society, where migrant workers are dying regularly in the
deserts of this country trying to make their way to jobs. These
are people who are raped, they are robbed, they are bribed,
they are pillaged in ways that are unthinkable and unimaginable
or should be unimaginable in American society. They have no
worker protections or minimum-wage guarantees. They live
outside the law. Now, how many people are we talking about?
There are estimates between 1 million illegal workers in
agriculture, and perhaps as many as 6 million illegal workers
throughout this country in various industries.
Now, if I can direct your attention to what we are trying
to fix, these charts right up here. On the left, you see the
current H-2A process. The thing speaks for itself. It is so
cumbersome, so expensive to pursue that frankly it is rarely
used. What my colleagues and I are proposing is a process on
the right, which brings workers and employers together in a
registry. No one is brought in until all domestic workers have
a shot at existing jobs, and only then does H-2A kick in.
We need to get there, sooner than later. In addition to
that, we found a way to give the workers who are already here
working American crops legal status and worker protections. We
want to give these agricultural workers who have tirelessly
helped to put food on your table and mine the benefits of legal
status. We do not want them to remain fugitives in our country
any more.
I suppose the most attractive feature of our new bill is
this process to legality. It is not an outright amnesty, but
frankly it is a way in which they can immediately be here
legally. And I am open to suggestions on the part of some
farmworkers that we expand this to be more family friendly, and
I hope that we can work on that as well. But our three main
components of the bill are to provide legal status to
undocumented workers immediately. And all they have to do is
work 150 days in agriculture prior to this bill's introduction,
and they can earn the right to just permanent resident status
by working then for 180 days in 5 of the next 7 years. But
their legality is immediate.
Second, we create this registry, as you see above.
Third, we enhance worker protections, benefits and labor
standards by providing a premium wage up to 5 percent of our
prevailing wage. We provide housing or a housing allowance. We
provide transportation reimbursement, better labor law
protections. And I would just conclude, Mr. Chairman, by
indicating this is long overdue, as evidenced by two townhalls
I recently had: one in Woodburn, Oregon. It was an Army
National Guard building. There was standing room only--2,000
people at least there with overflow speakers to the outside.
They were primarily illegals that were there, and they
desperately would like us to do something. This is just some of
the letters we have received from Hispanic workers who are
asking us to do something differently to get some legal way for
them to be here.
And finally, I would conclude by reading two quotes; one
from The Washington Post in a recent article: ``Congress has
responded sympathetically to the pleas of the high-tech
industry to hire more skilled workers from abroad, but it has
yet to do anything for employers of those at the bottom end of
the labor market, the end where U.S. citizens do not want to
work. Now, with a record number of illegal immigrants living in
the United States, an estimated 6 million, with most of them
working, some even paying taxes and joining unions. It is time
to bring our immigration policies in line with what is actually
happening in the labor market. It is time to recognize that we
need the immigrants as much as they need us.''
Alan Greenspan has said a similar thing. I will include
that in the record, Mr. Chairman. And, again, I thank you for
holding this hearing. This bill, in an amended form, is long
overdue, and the time has never been better for the
administration and this Congress to strike a deal that really
benefits the victims, farmers and farmworkers.
[The prepared statement of Senator Smith follows:]
Prepared Statement of Senator Gordon H. Smith
Thank you Mr. Chairman and fellow colleagues of the Immigration
Committee for your leadership in holding a hearing on S. 1814, the
Agricultural Jobs Opportunity Benefits and Security act, also known as
AgJOBS.
Mr. Chairman, I would also like to thank you for holding hearings
over the past few years on the important issues surrounding the
workforce needs of American agriculture, farmworkers, and the U.S.
economy. The outcome of those hearings, along with the years of
negotiations, are reflected in this bipartisan bill cosponsored by
myself, Senators Graham, Craig, Cleland, McConnell, Coverdell, Mack,
Cochran, Helms, Grams, Crapo, Bunning, Voinovich, Gregg, and Frist.
I would also like to introduce Pastor Polo Garcia--from the House
of Zion Ministries in Woodurn, Oregon--who will be testifying in a
later panel today. I commend both Polo, and his wife Marta, for their
service to the farmworkers. They are representative of many people who
really want to improve the current shameful situation we are in today.
Mr. Chairman, in all of my legislative career, I have never found
an issue that as quickly moves off the merits and onto name-calling
than the issue of immigration. I was amazed and astounded at the things
that were said to me and my colleagues as we pursued this issue with
the very best of motives last Congress. Those things are said still.
But I challenge anyone who wants to see a better life, I challenge them
to defend the current system we have in this country for agricultural
workers and farmers. We take for granted when we to go the grocery
store all the abundance there that greets us, but we seldom take the
time to think of those who helped produce it and bring it to the
market.
There is a shameful story to be told in this country when it comes
to agricultural workers. What I am offering with all of my colleagues--
a bipartisan group of my colleagues--is a good-faith effort to make a
bad situation much better and to get this country off an illegal system
and onto a legal system so farmers no longer need be felons and
farmworkers no longer need to live in our shadows as fugitives.
What motivates me to do this are the almost weekly reports of
migrant workers dying in the American deserts of the Southwest, trying
to make their way to jobs. These are people who are victimized by human
coyotes. They are raped. They are robbed. They are bribed. They are
pillaged in ways that are unthinkable, and ought to be unthinkable, in
this country. It happens because they have no safe and legal way to
come here and to go home, to work a job, to earn their way, and to
share the American dream, which is really just a human dream. That was
the motive upon which I tackled this issue.
How many people are we talking about? By some estimates, there are
over 1 million illegal workers in agriculture in this country. There
are estimates of 6 million illegal aliens in the United States.
Let me tell you why our current guest workers system doesn't work.
First of all, it is economically beyond the pale of most of those
in the farm communities who would like to hire them. To illustrate,
this is the Department of Labor's 325-page handbook which attempts to
guide employers through the H-2A program's confusing application
process to hire one worker. The GAO itself found that this handbook is
outdated, incomplete, and very confusing to the user. Conversely, when
I applied for a job in the Senate, I had to fill out a two-page
document.
Even the December 1977 GAO report illustrated the burdensome H-2A
process with which employers must comply in order to bring in legal,
foreign workers. A grower must apply to multiple agencies to obtain
just one H-2A worker. This process is further complicated by the
multiple levels of government, redundant levels of oversight and
conflicting administrative procedures and regulations. Also, as
reported by the recent Department of Labor Inspector General, the H-2A
program does not meet the interests of domestic workers because it does
a poor job of placing domestic workers in agricultural jobs.
In the meantime, I have gone forward with Senators Graham and Craig
to fix our farm guest worker program in the hopes of getting something
through in this Congress that could win the support of the
administration and begin to relieve a problem we have now seen in a
very human way.
First, we provide an opportunity for workers already in the U.S. to
earn legal status. To reduce the need for temporary guest workers and
immediately address the illegal worker crisis, workers who meet
specific employment requirements are eligible for immediate, legal
``adjustment of status.'' The workers who qualify for ``adjustment of
status'' can earn permanent residency status in the U.S. if they
continue to meet specific employment requirements for five of the next
seven years. Their change of status from illegal to legal actually
occurs immediately.
It was my experience as a person in business that those who got
amnesty immediately got a voice. As soon as they had a legal right to
be here, their conditions began to improve. The people who will argue
against this bill somehow benefit--even profit--by keeping these people
illegal and by being their voice. I don't think that serves their
interests based on what I saw in the private sector in the middle
1980s.
What we are proposing is not amnesty. Some have said this is
indentured servitude. The indentured servitude is the status quo. The
indentured servitude are those who simply say keep them illegal, keep
them down, make sure they don't have the benefits that other workers in
America do, and we will somehow suggest we are on their side. The way
out of indentured servitude is to give them a legal path to follow.
That is what Senator Graham, Senator Craig and I are doing.
The second part of our bill is to actually improve and streamline
the current H-2A guest worker program by creating a national registry
for matching workers with jobs. To make the H-2A program more efficient
for workers and employers, the bill creates a computerized registry
system that ensures legal, domestic workers will be hired first for all
agricultural jobs. Only after the Department of Labor (DOL) determines
that a shortage of domestic workers exists could adjusted workers be
recruited. If the DOL further determines that a shortage of adjusted
workers exists, H-2A workers could then be recruited. H-2A workers can
only be admitted after it is determined that a shortage of US workers
exists. This ensures that employers hire workers already in the US
before recruiting temporary, foreign guest workers.
What Senator Graham, Senator Craig and I are proposing to do is to
create a national registry that does not even kick in until all
domestic workers have right of first refusal. What it does is connect
workplaces and employers with employees who want to work on farms. It
will provide an opportunity even for organized labor to go to one
place, find out who wants to be there, who wants the job, and even
assist them in organizing if they choose to do so.
I am not here to oppose organized labor. I am trying to help them,
to say there is a legal way to do this that will better serve the
interests of real people, and not the imaginary, hoped-for things that
some are claiming are possible, which are not possible.
Third, Senator Graham, Senator Craig and I are providing enhanced
worker protections. This bill improves the inhumane working and
recruiting practices that victimize current undocumented workers in the
US. It gives all adjusted farmworkers the standard protections under US
labor law that they lack as undocumented workers. The bill also
provides H-2A workers with enhanced worker protections, including
better wages, housing and transportation benefits, and coverage under
the Migrant Seasonal Agricultural Worker Protection Act. Under the new
legislation, all labor protections included in the current H-2A program
are preserved.
All of this is done because we are here to help. We reach out to
all who are in this disadvantaged situation who want to be legal, who
want a future, who want to pursue the American dream, and who want to
do farm work.
Some have suggested we are trying to flood this country with more
illegal problems. I say to you today in this hearing, I'm not asking
for additional workers; I want those who are already here to have a
legal way to be here. This isn't as if they are coming; they are
already here. It is a shameful situation when we can do nothing for
them under law.
I would like to briefly tell you about some meetings I had during
the February recess this year. I had scheduled two meetings, one in
Woodburn, Oregon, and the other in Gresham, Oregon. The subject was
farm labor. I invited people to come and talk about my bill. I was
overwhelmed by what occurred. We met first in an armory in Woodburn.
When I arrived, it was already filled to capacity. There were 1,200
people, most of them illegal, in the armory waiting for me to come.
They had been there, I was told, for an hour or more ahead of time,
hoping to get a seat to hear what was going to be shared. There were so
many people in the armory, they had to put a speaker on the outside
grounds so that those who could not get in could hear. Some in the
media estimated there were 2,000 people in total.
I looked into their faces and saw those who live in our society,
those who live in the shadows of our society, those who fill jobs in
our society, those who keep our shelves full at home and in our grocery
stores, but those who are victimized in the most inhumane way because
we have an unworkable law.
Mr. Chairman, over the past few months, I have received hundreds of
letters from famworkers working in Oregon and throughout the country
who dislike the current farm labor system as much as their boss does.
In their letters to me, most of which are written in Spanish, they say
the program is ``unfair'' and ``does not allow enough people to qualify
for employment.'' The letters go on to say, ``Please work for a new law
that assists (farmworkers) who wish to work and come to this country to
fill the shortage of farm laborers.'' I would guess that many of the
workers in your state feel the same way these workers from Oregon feel.
I heard all kinds of opinions about my bill. I granted to them that
it probably wasn't a perfect bill, but at least I was trying--one of
the few who are--to resolve this situation. I thank Senators Graham and
Craig for their willingness to step into this issue. One gets lots of
arrows in the back when they try to tackle an immigration issue.
What made my meetings, frankly, more productive and very helpful
was a press release from the AFL-CIO, in which they called not for help
to farmers and farmworkers alone, they called for a general amnesty of
all illegal aliens in this country. A general amnesty is something we
have done in this country periodically; every few decades we seem to do
this. The question now is whether it is appropriate to do that now.
There have been lots of editorial comments about this recently in
the Washington Post. There was a very interesting article on this whole
issue of farm labor and illegality. The Post said:
Congress has responded sympathetically to the pleas of the
high-tech industry to hire more skilled workers from abroad,
but it has yet to do anything for employers of those at the
bottom end of the labor market--the end where U.S. citizens
don't want to work. Now, with a record number of illegal
immigrants living in the United States, an estimated 6 million,
with most of them working, some even paying taxes and joining
unions, it is time to bring our immigration policies in line
with what is actually happening in the labor market. It is time
to recognize that we need the immigrants as much as they need
us.
See, I know in Congress there are a lot of people who make an
academic argument that we don't want to reward illegal behavior with a
legal document. I understand that, but it doesn't fix the problem. It
doesn't deal with reality. These people aren't coming; they are here
and they live among us. They live in our shadows and they are
victimized on a daily basis in a whole range of ways--bureaucratically,
even criminally. It is a shame upon this country that we don't resolve
this--short-term and long-term.
I was pleased that in the recent testimony of Federal Reserve
Chairman Alan Greenspan he gave support to what I am talking about.
Said the Chairman:
It's clear that under existing circumstances, not only in the
high-tech and in the farm area, but indeed throughout the
country, aggregate demand is putting very significant pressures
on an ever-decreasing available supply of unemployed labor. The
one obvious means that one can use to offset that is expanding
the number of people we allow in, either generally or in
specifically focused areas. And I do not think that an
appraisal of our immigration policies in this regard is really
clearly on the table.
I think we need to put it clearly on the table as a priority of
this Congress to do something about it. It need not be partisan.
Regarding the position the AFL-CIO has just taken, I hope they will let
me help them. I would like to help them to get a general amnesty. But I
think that we also need to fix our broken farm labor system.
For those who say we should not do anything, I don't know what
their motive is. I fear too often, though, that it is just anti-
immigrant. We rightfully, criticize, for example, Joerg Haider, of
Austria for his anti-immigrant statement, which recalls a bygone era
and a great tragedy. But what is the difference when we have
politicians among us who make comments not unlike that about even legal
immigration? They don't want anymore of it.
We have the Chairman of the Federal Reserve saying we need workers
because we have good employment, but it is predicated on an illegal
system. We need these jobs to be filled and we need crops harvested.
Right now, we are victimizing farm workers and farmers because
farmworkers have to live like fugitives among us, and farmers are made
out to be felons. We owe the United States something better. But, more,
we owe the people at the bottom rung something better. They contribute
to our society and they are victimized too often by our society when
they make a significant contribution to the abundance that we enjoy as
Americans.
So I call on our congressioinal leadership to bring us together to
help us fix our farm labor problem. Together, we can find a solution
and we can treat these people more fairly, like human beings, with the
dignity of law and the protection of law and a process that is safe and
humane.
Thank you Mr. Chairman for allowing me to testify before the
subcommittee today.
S. 1814.--The Agricultural Job Opportunity Benefits and Security Act
(AgJOBS)
providing legal status to undocumented farmworkers
To reduce the number of H-24 workers needed after
enactment, utilize the skills of the existing agricultural workforce
and maintain immigration control, farmworkers who can prove that they
worked 150 days in agricultural work in the U.S. during the 12-month
period prior to introduction of the bill may adjust their status to
temporary nonimmigrants and eventually earn the right to become legal
permanent residents.
Eligible workers would have to meet standards of proof to
qualify.
Eligible workers who choose to participate could only work
in agricultural employment during the qualifying period. They would be
in nonimmigrant status during the qualifying period.
Eligible workers could be present in the U.S. and work no
more than 10 months annually in the U.S. during the qualifying period,
with the exception of those with U.S. born children.
Workers eligible for adjustment are free to select their
employer and work anywhere in the U.S. in agricultural employment.
Eligible workers could earn the right to adjust to
permanent residency by working in agriculture a minimum of 180 days
annually in 5 of 7 years following their initial adjustment of status.
making the h-2a program work for farmers and farmworkers
Innovation and technology to the Agricultural Worker Registry
The labor certification process that is used to ascertain
whether domestic workers are available to work in agriculture prior to
the admission of foreign workers is antiquated and inefficient. Its use
in the H-2A Program is over 50 years old. The Department of Labor has
existing computer technology as part of America's Talent and Job Banks
that can simplify and substantially improve upon the existing process.
Under the bill, this technology would be modified to replace the old
system with an Agricultural Worker Registry.
Any U.S. worker interested in agricultural employment
would be able to call or walk into a local job service office and get
listed on the registry by indicating the area, crop, and length of time
they would like to work in agriculture.
Any agricultural employer seeking workers could use the
registry to list jobs available in specific crops, locations, and terms
and conditions of employment. The registry would match workers and
employers with comparable requirements.
Employers seeking H-2A workers would have to use the
registry and hire all qualified and available U.S. workers before they
could get permission from the Department of Labor to bring in temporary
alien H-2A workers. H-2A workers would only be admitted if there were a
shortage of U.S. workers.
Workers adjusted under the bill would have the choice of
being listed on the registry. If they were listed on the registry,
employers seeking H-2A workers would have to hire U.S. workers, and if
an insufficient number of U.S. workers were available, then hire
adjusted workers in the area, before any H-2A workers would be
admitted.
Workers hired off the registry by H-2A employers would
receive the same premium wages and working conditions as H-2A workers.
Employers and the government would have to advertise the
availability of the registry.
Employers would have to independently advertise for U.S.
workers and recruit former U.S. workers regarding employment
opportunities.
Foreign farm workers could not be used if the job for
which they were sought was involved in a labor dispute. Foreign farm
workers could join unions.
Better wages
Premium wage rate. U.S. and H-2A workers would have to
paid the prevailing wage rate plus a premium of up to 5% on prevailing
wages that are less than the prior year's average hourly earnings of
field and livestock workers for the state. In no case could a worker
receive less than the federal, state, or local minimum wage level.
Better housing and transportation
Housing or limited housing allowance. U.S. and H-2A
workers would have to be provided housing or a housing allowance. A
housing allowance set by the U.S. Department of Housing and Urban
Development could be provided in lieu of housing during the 3-year
period after enactment, during which the regulations and adjustment
procedures would be implemented. Thereafter, an allowance in lieu of
housing would be permissible only if the Governor of a particular state
indicated that sufficient housing were available in the area of
employment.
U.S. and Foreign farmworkers get transportation costs
reimbursed. Inbound transportation is reimbursed if workers complete
50% of the contract work period, and outbound transportation reimbursed
if they complete the entire period of employment.
Better labor law protections
Eligible workers would be covered by all U.S. labor law
protections, such as child labor laws, occupational health and safety
regulations, and wage and hour rules.
For the first time, H-2A workers would be covered under
the terms of the Migrant and Seasonal Workers Agricultural Protection
Act.
A commission would study the complicated problem of farm
labor housing and make recommendations for long-term changes and
improvements.
Studies of existing agricultural labor standards and
enforcement would be conducted, including:
The relationship between childcare and child labor
violations.
Field sanitation standards.
Coordinated and targeted labor standard enforcement.
Senator Abraham. Senator Smith, thank you, and we will
include in the record those documents which you wish to add.
[The information of Senator Smith was not available at
presstime.]
Senator Abraham. Senator Graham.
Senator Graham. Mr. Chairman, my colleague, Senator Craig,
is going to be chairing a committee meeting, which starts at
2:30 p.m. Since we Democrats do not do that any more, I would
defer to Senator Craig.
Senator Abraham. Senator Craig, we appreciate the conflict
of time. Please begin.
STATEMENT OF HON. LARRY E. CRAIG, A U.S. SENATOR FROM THE STATE
OF IDAHO
Senator Craig. Mr. Chairman, thank you. The Senator from
Florida now knows that I owe him. [Laughter.]
I apologize for my voice. It is an allergy situation, Mr.
Chairman, but it will also make me brief, very brief.
My colleague from Oregon has done an excellent job of
defining the issue and describing a new product that is in
front of you, Mr. Chairman. And I would hope that with your
knowledge of this issue, you would examine 1814 as a new
product. Following past hearings and past efforts, we tasked
the communities involved in this issue to work with us to build
a product that we could all agree on and that we hoped a
Congress could collectively agree on. We believe we are much
closer to the issue.
Your leadership in H-1B is laudable, and we appreciate it.
Now we seek your help in leading in the H-1A program. And let
me put it this way, Mr. Chairman, and I think that my colleague
from Oregon broached it slightly. We were quick to respond to
H-1B because it was an economic issue in our country. I would
hope that we would be quick to respond to this issue because it
is not only economic, it is a humanitarian issue. H-1B was not.
These folks were not being mistreated and many of them were
white collar. That is not true here.
While these people languish in the shadows and are
mistreated, we sit here in Congress and argue. Your leadership,
along with ours, is desperately needed to resolve this problem.
We have an obligation to do it. My colleague from Oregon is
right, it is not always popular, and it does create conflict,
sometimes with our base, that is for sure. You know that as
well as I.
At the same time, the tragedies that occur in this
situation deserve to be dealt with. And a Congress that
continually turns its back on this issue, for whatever reason,
is, in my opinion, an irresponsible Congress. Whether it is the
Ag jobs registry, whether it is the reform concepts in this
program or whether it is a one-time creation of an adjusted
workers program that we believe offers the opportunity to earn,
to earn, a status in this country. We do think we have a new
work product in front of you that deserves your examination and
the full committee's, and we thank you for this hearing.
And I will ask unanimous consent that my whole statement be
a part of the record.
Senator Abraham. Without objection, it will be included.
Senator Craig. Thank you.
Senator Abraham. Thank you, Senator Craig.
Senator Graham.
STATEMENT OF HON. BOB GRAHAM, A U.S. SENATOR FROM THE STATE OF
FLORIDA
Senator Graham. Thank you, Mr. Chairman. I would also
request that my full statement be part of the record. Much of
what I have included has been spoken eloquently by Senator
Smith and Senator Craig, and I do not wish to be redundant.
Mr. Chairman, I want to join in thanking you for holding
this latest hearing on this important subject, and I hope that
we are at the point that not too many future hearings will be
required because we actually will legislate on this subject.
Doing so, legislating on this difficult subject of agricultural
labor, would be a strong signal of a spirit of bipartisanship
and a feeling of good will not only among the various interests
who are affected by this legislation, but also here in
Congress.
The legislation which we have introduced, as my two
colleagues have already said, focuses on three major concerns:
The first is that the United States today is the home of a
large number, a growing number, of undocumented agricultural
workers. A recent survey by the National Agricultural Workers
Survey, which is conducted by the United States Departments of
Agriculture and Labor, indicated that in 1999 approximately 50
percent, 50 percent, of the nearly 1.6 million agricultural
workers in the UnitedStates were self-identified as being
illegal. Two years earlier, 37 percent were self-identified as
illegal--an indication of how rapidly this problem is festering.
This large number of illegal workers in agriculture poses
problems for both farmers and farmworkers. Farmers are placed
in the position of having frequently to decide whether they are
going to allow their crops to rot in the field or break the
law. Farmers do not like to be placed in that kind of an
economic and legal position. Farmworkers live in the darkest
shadows of our society. If I could cite one personal
illustration of this, in August 1992, a very serious hurricane,
Hurricane Andrew, hit the Southern part of our State, an area
in which there are a large number of farmworkers. Immediately
after the hurricane, there was great concern about communicable
diseases, and therefore the desire to get people, particularly
children, immunized against very serious threats, such as
cholera. What was found that it was extremely difficult to get
farmworkers to allow their children to come forward and be
vaccinated because of the fear that that would lead to the
deportation of the parents.
That is illustrative of the level of anxiety under which
today some 800,000 souls live in the United States. They are
afforded the fewest rights. And even those rights which are
provided have no real protection. As a result, this large
population is among the most vulnerable in our society.
The second issue is that the current H-2A Program is
administratively burdensome, as Senator Smith's charts
indicate. It is subjective in its search requirements and
unreliable in the time that is needed to process an
application. If a farmer cannot find sufficient American
workers and needs temporary or foreign help, he or she must
navigate a maze of complex regulations so complex that there is
a 300-page guidebook to explain the process. The process to
apply for a single foreign worker can run 15 to 20 pages. The
search requirements for U.S. workers is subjective. It varies
from region to regions. Farmers have little assurance that even
after they successfully complete the long forms and the complex
bureaucracy, that the Department of Labor will approve their
request. Indeed, in 1997, a General Accounting Office study of
the H-2A Program indicated that the Department of Labor does
not, in some cases, meet its own deadlines to process H-2A
petitions for workers.
Mr. Chairman, we clearly need a better way to connect
farmworkers with farm jobs and growers with potential
employees. We suggest that the registry that is included in S.
1814 is an important step in that direction.
I want to take this occasion to commend the United States
Department of Labor for its efforts to develop such a registry
and to try, on a pilot basis, what is referred to as Agnet, a
new computerized database. This could be an important first
step in utilizing modern technology to build bridges between
farmworkers and farmers.
The third issue is that it provides unprecedented
enhancement in U.S. farmworker wages and benefits. The 800,000
people who are here illegally, of course have no access to
whatever the law might provide in terms of their wages and
benefits. Current law mandates that growers provide housing to
H-2A temporary farmworkers, no such requirement for the large
undocumented workforce.
Our legislation would require that all legal domestic
workers, including those who would become legalized because
they would receive a temporary work permit, who are hired from
the registry by an employer seeking H-2A workers, would be
provided with housing or a housing allowance. There also are
increases in provisions for transportation and wages.
Mr. Chairman, I do not believe Senators Smith, Craig or
myself pretend that this legislation was given to us as Moses
received the tablets on the top of the mountain. These are our
best efforts to analyze the problem and suggest solutions. I
will say this, as if it were imprinted on tablets of stone,
these problems are not going to go away because we decline to
face them and deal with them. I believe that now is the time to
move forward; that people of good will on all sides of this
issue are coming together trying to understand each other's
positions and to arrive at a position that will best serve the
interests of all of the groups involved and the national
interests of the United States.
So, Mr. Chairman, I again thank you for holding this
hearing, and I hope that we can move forward in this Congress
to face this difficult issue and give to America a resolution.
Senator Abraham. Senator Graham, thank you. Thank you,
Senator Smith. I will now call up the second panel, and if
either of the Senators would like to join me for the balance of
this hearing, we would be glad to have you hear with us.
Our second panel is made up of representatives from the
House. We have both Representative Howard Berman and
Representative Sanford Bishop with us. We welcome you back.
Congressman Berman, I am happy to have you here today. I
was mentioning to you beforehand that, first of all, you win
our subcommittee award for the most appearances by any member
of the House of Representatives before the subcommittee. It
also occurred to me that you also may have been more frequently
than certain unnamed members of the subcommittee themselves
have been here. [Laughter.]
And so for both of those reasons, I am happy that you are
with us again today and appreciate your participation here.
And Representative Bishop, we welcome you back as well.
Thank you both for being here. We will start with you,
Congressman Berman.
Mr. Berman. Thank you very much, Senator. You should know
that I find myself in this subcommittee more than I find myself
in my own Immigration Subcommittee on the Houseside.
[Laughter.]
Now, my sense is that the organization fair probably finds
itself more on the House subcommittee side than they find on
this side. But I just want to say that I have a tremendous
respect for and a real feeling of affinity for your
perspectives on the immigration issues. So it is an honor to be
here.
Congressman Bishop has an Intelligence Committee issue, and
so I would like, if that is all right with you, I would like to
defer to him.
Senator Abraham. Fine. That is no problem at all.
Congressman Bishop, we appreciate your being here. As I
said, again, in deference to your other commitment, we will
start with you.
STATEMENT OF HON. SANFORD BISHOP, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF GEORGIA
Representative Bishop. Thank you very much, Mr. Chairman.
And certainly thank you, Mr. Berman, for your courtesy, and
Senator Graham, Senator Smith, Senator Abraham. I appreciate
the opportunity to come before the committee once again on this
which I believe is a very, very important issue, particularly
to the American farm community.
I have been working on reforming the H-2A program almost
from the day I came to Congress. I have pushed legislation,
proposed rule changes, held countless meetings and negotiated
with the Labor Department and others in Congress at great
length. Just about everyone acknowledges that changes are
justified in our H-2A guestworker program. In my district in
Southwest Georgia, farmers and farmworkers have heard the roar
of helicopters hovering over fields to enforce the current
system. The threat of raids permeates the country air.
America's fields should produce a bounteous wonder, not clouds
of fear.
That is why I have introduced in the House of
Representatives H.R. 4056. which is a companion bill to S.
1814, which is before this committee. H.R. 4056 would improve
the U.S. Labor Department's rarely used guestworker program
over the new system that is designed to achieve two goals: to
make foreign farm labor temporarily more accessible to
America's farmers when U.S. workers are not available, and to
guarantee that domestic and foreign farmworkers receive
prevailing wage rates, decent housing, transportation and
working conditions.
I have concluded that we can make the program available to
farm employers, while making sure that U.S. workers are not
displaced, that we can get control of illegal immigration by
making sure that legal workers are available to take farm jobs
instead of illegals and that it makes no sense whatsoever to
allow crops to perish in the field or never get planted when
there is a waiting labor supply that can do the job.
The bill that we have introduced in the House of
Representatives, the companion bill in the Senate, would modify
the overly restrictive rules, including those modifications
that must be made through legislation and those that can be
done administratively. It would also establish a farmworker
registry. From this registry, U.S. farm employers would hire
workers based on three priorities: Agriculture jobs would be
guaranteed first to U.S. workers; second, illegal foreign
workers who could document that they have previously worked on
U.S. farms would have the second choice of jobs, an opportunity
that is aimed at bringing them off the black market and
enabling them to earn legal working status after at least 5
years of U.S. farm work experience over a 7-year period.
Third, if no workers were available in these two
categories, farmers could temporarily hire workers from outside
the country under a simplified and streamlined guest worker
program.
The fact is, this would be a win-win situation for farmers,
for farm workers, and for immigration control. Farmers would
gain the stability of a legal workforce and the certainty that
crops would be planted and harvested on time. U.S. workers
would be protected by a system that can bring illegal
immigration under control and make sure that they have the
first choice of U.S. farm jobs. And foreign agricultural
workers would benefit from a law that would ensure that they
had safe working conditions, and equitable pay, and the chance
to earn the right to legal status.
The U.S. Labor Department's regulation-ridden guest worker
program which is supposed to allow farmers to temporarily
employ foreign farmworkers when there are shortages of U.S.
workers is too cumbersome and costly for most farmers to use.
Many farmers have no choice but to rely on foreign farmworkers
who have illegally entered the country to get their crops
planted or harvested. More than 600,000 illegal aliens are now
in the country and illegal farm employment is so widespread
that working standards and immigration laws cannot be
effectively enforced.
Extremely burdensome regulations imposed by Congress and
the bureaucracy go beyond anything that's needed to protect
U.S. workers, and have rendered the guest worker program
useless for most producers, leaving many with the choice of
going broke or turning to illegal farmworkers already in the
United States. This is the catch-22 that creates instability
and turmoil within the farm labor system.
However, the proposal is drawing fire from forces opposing
any measure that would enable illegal foreign workers to earn
legal working status and from other forces who believe that the
bill does not make it easy enough for illegal workers to gain
legal status. I'm proposing a thorough overhaul of the badly
broken farm labor system that would be good for producers, good
for foreign and domestic workers, and good for immigration
control; a win-win situation for everyone.
The Agricultural Job Opportunity Benefits and Security Act
of 2000 reforms the current program, provides farmers with a
stable, legal workforce, and grants legal status to hundreds of
thousands of farmworkers already working in the U.S. This
legislation is realistic and sociallyresponsible. It is the
product of farmers, workers, and immigration officials coming together
to address one of the most important issues facing American agriculture
in the 21st Century. Who will bring in the harvest?
We thank the members of the committee and the chairman for
allowing us to testify and to Mr. Berman for his courtesy, I
urge you to please consider and help us reform this badly
working system of guest worker regulations. It is broken. It
needs fixing, and let us join together to do that.
Thank you very kindly.
Senator Abraham. Congressman, thank you very much.
Appreciate your being with us.
Congressman Berman.
STATEMENT OF HON. HOWARD L. BERMAN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Berman. Thank you very much, Senator Abraham, and
Senators Graham and Smith as well for all your courtesies.
The reason I am here is that since I have been in elected
office, first in the State legislature and now here, an issue
that has always been quite important to me is doing what I can
to try to improve the circumstances of farmworkers. These are
the most impoverished working people in the United States. I am
convinced that proposals that make it easier for agricultural
employers to bring in foreign guest workers have the impact of
accomplishing the opposite, which is depriving farmworkers in
America of job opportunities that they badly want, and
exacerbating the oversupply of farm labor. The result of that,
I feel, is to inevitably drive down further farmworker wages
and working conditions.
I want to make it very clear though that I agree with what
has been said by the previous panel, that there is an
unacceptable and growing percentage of agricultural labor
workforce which is undocumented. Having lamented that fact, the
question is now, what do we do about it? I do not think that
guest workers are the answer, whether our concern is the well-
being of farmworkers or combatting illegal immigration. I
remind you again, the U.S. Commission on Immigration Reform
concluded that creating a new agricultural guest worker program
would be a grievous mistake and that it would only serve to
increase illegal migration instead of replacing an illegal
workforce.
There were references, and they are absolutely accurate, to
the fact that S. 1814 is a bipartisan bill. I also think, and I
guess this could be used as an admission or an acknowledgement
that could be used against me if we are not able to make
further changes, that S. 1814 is at least conceptually an
effort to try and deal with some of the issues that have been
raised at previous hearings here, and in that sense is a
meaningful step forward.
But while it is a bipartisan bill, it still is not a bill
that reflects the active participation of farmworkers, their
representatives, and their advocates, and I would like to make
some suggestions for things that I think could move that
forward.
I also have to say that while I have strong feelings on
issues, I know that the final resolution of this--if there is
to be one this year--it is not going to be in a bill that is
exactly what I would want. There would have to be substantial
compromises on both sides. But in our earlier hearings here we
talked about alternatives to guest worker programs, of dealing
with the presence of the undocumented and finding a way to
adjust their status.
The previous bill, I do not know if that was ever
introduced. I am trying to remember. Yes, it was. It was passed
onto the Senate appropriations bill and passed the Senate, that
Senator Smith and Senator Wyden were involved with, and had a
slight, bare hint of a potential for an adjustment program. S.
1814 goes significantly further in that regard.
But what I proposed at our last hearing was a program not
exactly like the SAW program of the 1986 bill, which legalized
workers based on their past work history, but a program more
like the replenishment agricultural workers, RAW program, which
passed in the same legislation but which was never implemented
because there was never a finding of a farmworker shortage.
We put that program on the books in the event that after
SAW occurred there would still be a shortage of workers. What
the RAW program offered prospectively to farmworkers was
permanent resident status upon completion of 90 days of work in
perishable agriculture for three successive years.
I can support the implementation of a RAW-like program with
labor protections necessitated by the tie of workers to
agriculture. I do not like the notion of tying workers to any
particular industry, but I recognize that there is a belief and
probably a reality behind the assertion of agricultural
employers that many of the seasonal agricultural workers, the
SAW workers that were legalized under the 1986 law have left
agriculture.
We can debate whether that happened substantially because
agricultural employers declined to respond to the free market
imperative of improving wages and working conditions in order
to retain the workers or whether it occurred for other reasons.
But let us put that debate aside because that does not move us
forward I do not think.
The point remains that while I do not like the concept in
principle of tying people to a particular industry, I can
support a reasonable tie.
What I cannot support is the adjustment program in its
present form in Title I of S. 1814 because in my view it is a
very far cry from a real legalization program, and because it
would have some harsh and unfair consequences for farmworkers,
in many cases the same kinds of negative consequences I think
some of the H-2A reform proposals in Title III of the bill
have. Let me be real specific on a few of them. I know some of
the witnesses will be talking about this as well in the next
panel.
Title I is not really a legalization program at this point.
The sponsors claim to be adjusting farmworker status but to
leave them consigned to a second class, continually exploitable
status of non-immigrants is not a boon to farmworkers. A
serious legalization program I believe wouldconvey immigrant
status immediately. That is why I view the proposal in S. 1814 and S.
1815 as an alternative kind of guest worker program which allows the
farmworker in the vulnerable status of undocumented worker nothing more
than the possibility of adjusting some time in the future to the still
vulnerable status of guest worker.
I object and do not like the limitation on the type of
labor the adjusted worker could perform in the United States.
Granted that the worker will be permitted to perform
agricultural employment anywhere in the United States and is
not tied to a particular employer, and that is a significant
improvement. But the worker is not allowed to perform any other
kinds of work during this period.
About one-quarter of all farmworkers in the United States
now survive by combining farm work with non-farm work. Anyone
in a seasonal area understands that there are seasons where far
fewer farmworkers are employed than other seasons. Almost by
definition large numbers of farmworkers have to work in other
areas in order to survive. The prohibition against performing
other work consigns many of these workers to abject poverty.
Adding to that concern is the requirement that in order to
maintain the adjusted status and not be terminated or removed
from the country the farmworker must demonstrate to the INS
that he or she worked in agriculture 180 days per calendar year
in each of 5 years. But this could very well be impossible to
achieve for the majority of farmworkers. The average farmworker
now works in agriculture about 29 weeks per year, probably
fewer than 145 days, since the work is not necessarily
available every day of a week. This means that most farmworkers
will be terminated from the program prior to eligibility for
applying for a green card because they simply cannot get the
number of days of work, assuming they are ready, willing and
able, that are required by the program in its current form.
This, in turn, underscores my concern about why I still
call this program exploitative, the suggested status that we
have created. Workers trying to put together a series of jobs
to secure 180 days year worth of agricultural employment will
be forced into dependence on employers to cooperate with one
another to arrange several jobs amounting to 180 days. Fear of
imperiling the cooperation of employers in order to maintain
their eligibility will mean that these nonimmigrants will
predictably be too fearful to enforce what labor rights they
might have or any ability or inclination to press for higher
wages. That is why I believe this bill still leaves these
workers who are in this status very exploitable because the
last thing they can do is jeopardize anything which enables
them to try to meet the 180-day qualification.
The provision barring the adjusted farmworker from spending
more than 300 days inside the United States in any 1 year,
there is no sound public policy basis behind that. I think I
understand a little bit the reasoning of the authors in putting
that in, in the hopes of a little bit trying to call a tail a
leg as we package this thing and try to sell a program to our
colleagues. But it flies in the face of the family values to
which we all subscribe. Many of these undocumented workers are
here. Arbitrarily forcing them to leave and then using the
failure to have left for 60 days a year as a basis for
disqualifying them, I do not know what we are accomplishing. I
think it is just another potential pitfall in the way the
program is designed. The only way a farmworker can exceed this
limit is if he or she has and lives with a minor child born in
the U.S., but then only if he or she can secure at least 240
days, rather than the already too high 180 days of agricultural
employment for that year.
The adjusted nonimmigrants under this program are
restricted in their mobility and in their access to job
referrals from the bill's job registry. And because the bill
would allow employers to deny jobs to anyone not referred by
the job registry, their restricted access to the job registry
will deny to these farmworkers the very jobs they need to
maintain their status. More specifically, a worker of any type
may only apply to be included in the registry for the State in
which the individual resides and the registry may not refer an
adjustment worker to an employer that is not within the
registry's State or a contiguous State.
There are other things I could say, but I really have gone
on a long time here. It is all in my prepared testimony. I
think these are things we could deal with, but I guess what I
am saying is S. 1814 is not, in this particular form, a
proposal that I think reflects farmworker interest. I listened
to Senator Graham and all of you in talking about this. And I
believe and I accept that you understand the plight of
farmworkers and want this to be a vehicle that not only helps
make agricultural exports a continued valuable commodity for
trade and for the growers' their own economic situation, but
you also want it to be a way to improve the status of
farmworkers. I just think we have got some substantial work to
do to actually put this bill into that position.
I think I will stop at this particular point and indicate
my interest in working this out. I do not think we solve any of
the problems by not doing anything this year. I would like to
see something accomplished. I am willing to put my time into
trying to make that happen. But I do think we have to go
through--I mean, part of the problem is, since it has not been
a collaborative process yet between farmworkers and growers,
some of these points people reasonably do not hear the other
side of as they are putting together the legislation, and it is
very understandable that the bill contains some provisions
which, in reality, will work against the interests of
farmworkers. I would like to see if we can cure some of those
problems.
[The prepared statement of Mr. Berman follows:]
Prepared Statement of U.S. Representative Howard L. Berman
Thank you for the opportunity to testify today. For as long as I
have served as an elected official, I have made it my business to try
to improve the circumstances of farmworkers, the most impoverished
working people in the United States. I am convinced that proposals to
make it easier for agricultural employers to bring in foreign
guestworkers would accomplish exactly the opposite, depriving
farmworkers in America of job opportunities they badly want, and
exacerbating the problem of an oversupply of farm labor. The result can
only be to further drive down farmworker wages and working conditions.
I do want to make one point very clear, however. I do not deny the
fact that an unacceptable and growing percentage of the agricultural
labor workforce is undocumented nor do I condone it. But having
lamented that fact, the question is what to do about it. Guestworkers
are not the answer, whether our concern is the well-being of
farmworkers or combatting illegal immigration. The U.S. Commission on
Immigration Reform (or Jordan Commission) in 1997 concluded that
creating a new agricultural guestworker program would be a ``grievous
mistake'', and that it would only serve to increase illegal migration
instead of replacing an illegal workforce.
I believe that we are on the right track when we talk instead about
creating a program to legalize, within certain well-defined parameters,
the present undocumented workforce. I suggested just that in my last
appearance before this subcommittee, almost exactly one year ago. I
proposed then a program not like the SAW program of the Immigration
Reform and Control Act of 1986, which legalized workers based on their
past work history, but rather like the ``replenishment agricultural
workers'' or RAW program which we legislated in IRCA but never
implemented. We put that program on the books should a shortage of
workers ensue subsequent to the SAW legalization program. What the RAW
program offered prospectively to farmworkers was permanent resident
status upon the completion of 90 days of work in perishable
agricultural for three successive years.
I can support the implementation of a RAW-like program with labor
protections necessitated by the ``tie'' of workers to agriculture. I
don't like the notion of tying a worker to any particular industry, but
I recognize that there is a perception among agricultural employers
that many of the Special Agricultural Workers (SAWs) legalized under
IRCA left agriculture. We can debate whether that happened
substantially because agricultural employers declined to respond to the
free market imperative of improving wages and working conditions in
order to retain workers. But the point remains that while I don't like
it in principle, I can support a reasonable tie. What I cannot support
is the adjustment program in Title I of S. 1814 because in my view it
is a very far cry from a real legalization program, and because it
would be as harsh and unfair in its consequences for farmworkers as the
H-2A reform provisions of Title II of the bill.
Let me lay out some of my main objections to Title I. First and
foremost, Title I is NOT a legalization program. To claim to be
adjusting farmworkers' status, but to leave them consigned to the
second class, infinitely exploitable status of non-immigrants is no
boon whatsoever to farmworkers. A serious legalization proposal would
convey immigrant status. That is why I view the proposal in S. 1814 and
S. 1815 as an alternative guestworker program, allowing a farmworker in
the vulnerable status of undocumented worker nothing more than the
possibility of adjusting to the still vulnerable status of guestworker.
I also object to the limitation on the type of labor the adjusted
worker could perform in the U.S. Granted that the worker will be
permitted to perform ``agricultural employment anywhere in the United
States'' and is not tied to a particular employer, but the worker will
not be allowed to perform other kinds of work. About one-quarter of all
farmworkers in the U.S. survive by combining farm work with non-farm
work. The prohibition against performing other work will consign many
of these workers to abject poverty.
Dovetailing with this concern is the requirement that in order to
maintain the adjusted status and not be terminated or removed, the
farmworker must demonstrate to the INS that he or she worked
agriculture 180 days per calendar year in each of 5 years. But this may
be impossible to achieve for the majority of farmworkers. The average
farmworker now works in agriculture about 29 weeks per year, probably
fewer than 145days since work is not necessarily available every day of
a week. This means that most farmworkers will be terminated from the
program prior to eligibility for applying for a green card.
This in turn underscores my concern about the exploitable nature of
this so-called adjusted status. Workers trying to put together a series
of jobs to secure 180 days per year worth of agricultural employment
will be forced into dependence on employers to cooperate with one
another to arrange several jobs amounting to 180 days. Fear of
imperiling the cooperation of employers in order to maintain their
eligibility will mean that these non-immigrants will predictably be too
fearful to enforce what labor rights they may have or to press for
higher wages. This is why I believe that the bill indentures the
workers to agricultural employers.
The provision barring the adjusted farmworker from spending more
than 300 days inside the U.S. in any one year has no sound public
policy basis and in fact flies in the face of the family values to
which we all subscribe. I say this because the only way the farmworker
can exceed this limit is if he or she has and lives with a minor child
born in the U.S., but then only if he or she can secure at least 240
days, rather than the already excessive 180 days, of agricultural
employment for that year.
The adjusted non-immigrants under this program are restricted in
their mobility and in their access to job referrals from the bill's job
registry, and because the bill would allow employers to deny jobs to
anyone not referred by the job registry, their restricted access to the
job registry will deny to these farmworkers the very jobs they need to
maintain their status. More specifically, a worker of any type may only
apply to be included in the registry for the state in which the
individual resides, and the registry may not refer an adjustment worker
to an employer that is not within the registry's state or in a
contiguous state.
I am also concerned about the unreasonableness of the standards for
acquiring this adjusted non-immigrant status in the first place,
namely, proof of having performed agricultural work in the U.S. for 150
work days during the 12 month period ending in late October, 1999. Many
farmworkers do not work 150 days per year and even fewer can provide
proof of even that amount of work because they worked ``off the book''
due to their undocumented status. These circumstances simply must be
taken into account in drafting any program that is intended to provide
any meaningful opportunity to these workers.
One more criticism I must make about Title I is the complete
absence of labor protections for these workers, despite the fact that
the requirement that they work in agriculture to maintain their status
means that they will have no real ability to say ``no'' to unreasonable
or illegal wages and working conditions. Proponents of the bill have
claimed that it improves upon the status quo for farmworkers because it
would extend H-2A labor protections to these now undocumented
farmworkers. That is simply not correct. The only way an adjustment
nonimmigrant would be eligible for such protection would be if he or
she happened to be hired by an H-2A grower, a highly unlikely outcome
because the bill allows agricultural employers to refuse to accept
referrals of farmworkers from registries that are not in or contiguous
to the H-2A grower's state; employers can refuse to hire someone who
has not been cleared through the registry, and not least of all, H-2A
employers will doubtless prefer H-2A guestworkers because they will be
even more tied to the individual employer than adjustment workers would
be.
I have dwelled upon what's wrong with Title I because, having
suggested a legalization program, I am compelled to say that this is a
far cry from what I had in mind.
But I want to conclude by coming back to a central point that I
have found myself having to make time and again for as long as I have
worked on this issue. We have to ask ourselves whether the perceived
potential for expanded opportunities to bring in foreign guestworkers,
and the widespread availability of undocumented workers, have kept
agricultural employers from engaging in increased and more effective
recruitment efforts, from modernizing their labor-management practices,
and from improving wages and working conditions as employers in other
industries must do in order to attract and retain an adequate supply of
work-authorized labor. And let us not forget that this is an industry
whose workers do not enjoy most of the minimum labor standards enacted
over the course of the past century because time and again agricultural
employers have succeeded in winning exemptions for farmworkers from
federal and state labor protection laws.
There are reforms I can accept in order to eliminate red tape and
take into account the circumstances faced by agricultural employers.
But I cannot and will not accept anything that worsens wages and
working conditions for farmworkers in this country. They have suffered
enough. Let's not make it worse.
Senator Abraham. Congressman, thank you. I would add also
that one maybe perspective that we have not included today on
this panel, either of the panels so far, is the perspective
that would argue that we should not allow anybody to come in to
the country for any purposes or on very limited terms for
employment-related stays. And so I know that part of the
struggle that is also going on in the drafting here, and I am
not one of the drafters, but I know in talking to them has been
to try to find legislation that would at least prevent attacks
on the bill from that perspective either.
And so I do not know if either Senator Smith or Senator
Graham would want to comment about the experiences that they
have undertaken so far. But I would just say that I appreciate,
as was the case last time, your expression of interest in
trying to work on this. And I think your comment about trying
to do something sooner rather than later is a very important
signal, which I hope everybody appreciates and will follow up
on.
Mr. Berman. Can I just move on to one thing you said there?
And that is you are going to hear in a little while from the
general counsel of the United Farmworkers Union, an affiliated
union of the AFL-CIO. The AFL-CIO was an organization that 14
years ago, for its reasons, and they truly were sincere about
that expression, believed anybody coming into this country,
that that was a threat. They have had a significant change in
their perspective in those periods of time. I think other
people have, too. I am seeing it in the atmosphere and the
climate of the way people are looking at this. I just saw a
criticism of the H-1B legislation on the ground that we should
not be letting H-1B immigrants in. We should be allowing them
to come in as full-fledged legal immigrants and that that's the
best way to do it. When the debate starts moving in that
direction, I think we can take advantage of it. I think if we
could have a coalition of people concerned, of agriculture,
farmworkers, labor, management working together, we can
accomplish a lot in this Congress.
Senator Abraham. I think that it has certainly been the
position of this chairman and I think most of the members that
employment related immigration is not meant to be a zero sum
game. Obviously we strive in the context of this legislation,
but also in the H-1B legislation to try to find ways to make
sure that we protect workers already in this country from
having in any way their position exploited by changes in the
law. I do believe it is feasible and I think there is ample
evidence available that in fact done the right way employment
related immigration creates more job opportunities, and
improves America's economy, rather than hurting it.
But, again, I appreciate your comments. I do not know if
either Senators would like to comment themselves, but I will
open it up to either of you for comments.
Senator Smith.
Mr. Smith. Thank you, Mr. Chairman.
Congressman, I appreciate your being here very much. I
would like to say on the record how grateful I am to the AFL-
CIO that they have, frankly, changed their position a lot with
respect to immigration. It is very helpful, I believe, to a
constructive dialogue that they have come out in favor of a
general amnesty. And so I salute them for that. I thank them
for that. It has changed the environment in which we are
working here today.
I would say that nothing you said in your testimony causes
me any difficulty. The difficulty we have in drafting something
is you have to make decisions and draw lines. And if we have
drawn them imperfectly, I think I acknowledged that in my
testimony. They are not done with malice, they are done as a
starting point. And so the notion of working so many days in
agriculture and other employment, I have no problem with that.
But I need you to tell us what number of days is fair, what
number of days does work because I, for one, am open to that.
And I particularly like what you said with respect to
families. I think the proposal we have made can be made better
with better accommodation for dependent children and spouses of
these workers. I think we ought to change that.
Where I find myself caught is, on the one hand, between
those who just want nothing because they like the status quo,
maybe even benefit from the status quo. I don't think they can
defend that publicly, but there are some that, frankly, want
nothing done. On the other side, there are those who just are
against immigration. And Senator Wyden and I last year, Senator
Graham and I this year, find ourselves whipsawed between these
two groups, which do have spokespeople in Congress and on the
political scene. And they seem to be the ones winning, and the
people trying to work it out seem to be the ones with bullseyes
on their backs.
And so I thank you for being here. I do not think we are
that far apart.
Representative Berman. I say let us make a coalition of
growers and farmworkers and advocates of farmworkers and
advocates of growers and all of the folks that they are
affiliated with, that could be a strong coalition. Where you
are in your most difficult position is where you are trying to
move a little bit--I mean, when you get it from both sides,
that may be the worst political position to be in.
And I suggest anybody who says here that the present
situation is okay, and we should let that continue, and who
claims to be caring about farmworkers does not.
Mr. Smith. They do not.
Representative Berman. Because we know what being an
undocumented worker in this country means. Forget every other
aspect of it. Just think of for the benefits of that worker and
his family, and we know how much of the agricultural workforce
is undocumented. Now the question is how can we accomplish what
the growers need to accomplish for their interests and in a way
that is good for farmworkers.
Senator Abraham. Senator Graham.
Senator Graham. Mr. Chairman, I share the position that you
and Senator Smith just expressed. I believe that what
Congressman Berman has shared with us is very constructive and
helps advance our appreciation of the complexity of this issue.
As Senator Smith said, when you are in the position of trying
to draft the first edition of anything, you have to make a
series of decisions, often with less background, less
experience, less insight than you wish you had. But you do it
with the understanding that the very legislative process
through which it is about to be subjected is going to cause
people who are experienced and insightful to come forward and
suggest the kind of modification that you have just done.
So I think the spirit here is one of let us getsomething
done in 2000. Let us do it in a collaborative way because all of the
interests here are being ill-served by the status quo. There are some
interests who I do not think chose to come into this room today who may
be benefitting by the way things are, but not the responsible
representatives of either the farmworkers or the farmers or those that
they represent.
So I look forward to continuing this process just as long
as we all are committed to let us get something done in 2000.
To use the expression that President Reagan used to use, ``If
not now, when? And if not us, who is going to do this job?''
Senator Abraham. Congressman, thank you very much for being
with us again. And we will let you know the rest of our hearing
schedule for the balance of the year any time you want to come
by. [Laughter.]
Appreciate your insights. Thank you.
I will now ask our third panel to please join us, and we
will introduce them in the order in which we will ask them to
speak.
We have Mr. Joshua Wunsch, who is representing the Michigan
Farm Bureau and the American Farm Bureau, from Traverse City,
MI; we have the Reverend Polo Garcia, who is pastor for the
Casa de Zion, a Lutheran ministry for farmworkers in Woodburn,
OR, who was mentioned earlier by Senator Smith; we have Ms.
Cecilia Munoz of the National Council of La Raza here in
Washington, DC; Dr. James Holt, a senior economist representing
the National Council of Agricultural Employers also here in
Washington; and finally, Mr. Marcos Camacho with the United
Farmworkers of America in Keene, California, who I believe
Congressman Berman referenced earlier.
Several of the panelists have been with us for previous
hearings, for at least one of the previous hearings, and so we
welcome you back. And to our new panelists, we appreciate your
being here as well. It is my understanding that Reverend Garcia
is going to have his wife be with him to help interpret,
perhaps, some of his comments here today, and we welcome you as
well. Thank you for participating.
We will begin with you, Mr. Wunsch. Thank you for being
back again. We appreciate your participation and welcome you to
the hearing.
STATEMENT OF JOSHUA WUNSCH, FARMER AND BOARD MEMBER, MICHIGAN
FARM BUREAU, ON BEHALF OF AMERICAN FARM BUREAU, TRAVERSE CITY,
MI; POLO GARCIA, PASTOR, CASA DE ZION, LUTHERAN MINISTRY TO
FARMWORKERS, WOODBURN, OR; CECILIA MUNOZ, VICE PRESIDENT,
OFFICE OF RESEARCH, ADVOCACY AND LEGISLATION, NATIONAL COUNCIL
OF LA RAZA, WASHINGTON, DC; JAMES S. HOLT, PH.D., SENIOR
ECONOMIST, McGUINESS & WILLIAMS ON BEHALF OF NATIONAL COUNCIL
OF AGRICULTURAL EMPLOYERS, WASHINGTON, DC; AND MARCOS CAMACHO,
GENERAL COUNSEL, UNITED FARMWORKERS OF AMERICA, AFL-CIO, KEENE,
CA
STATEMENT OF JOSHUA WUNSCH
Mr. Wunsch. Thank you for having me back, Senator. I am
Joshua Wunsch, member of the Board of Directors of the Michigan
Farm Bureau and a farmer and partner in Wunsch Farms located on
the Old Mission Peninsula in the Grand Traverse area of
Michigan.
For the last 5 years, Farm Bureau has worked to demonstrate
to Congress and the administration the critical need for reform
of the H-2A Program. These reforms are contained in S. 1814,
the Agricultural Jobs Opportunity Benefits and Security Act,
also known as AgJOBS, introduced last year by Senators Gordon
Smith, Bob Graham and Larry Craig. And I am here today to
explain to you how S. 1814 will help resolve some of the
difficult problems faced by farmers and workers.
Farm Bureau and the coalition we have worked with on H-2A
reform has proposed several key reforms to the H-2A Program
that we believe will alleviate a number of the program's
problems. We proposed to replace the current unproductive and
expensive recruitment requirements with an entirely new method
of testing the local labor market to ensure that U.S. workers
are not displaced.
Rather than using the combination of job orders and
interstate clearance orders, we propose that the Department of
Labor and the State job service agencies create agricultural
worker registries in States or regions that correspond to
natural farm labor markets. These registries would be
repositories of employment information provided by farmers and
farmworkers seeking to find one another. Only legally
documented workers could be placed on the registry. Any willing
and eligible U.S. workers will have first access to available
U.S. farm jobs, and farmers are not left in the position of
being unable to fill critical seasonal jobs.
Mr. Chairman, the Michigan Department of Career Development
operates a website designed expressly for farmworkers and
employers. This website offers information on job openings,
specific information on farm employers, as well as information
on services available to farmworkers like migrant Head Start,
migrant health Care and other services. I suggest that if
Michigan can do this and make such a service available to
people who want to work, we can do as well or better at the
national level.
Agjobs recognizes that a very large portion of the present
agricultural workforce present fraudulent documents when they
seek employment. In a recent U.S. Government survey, 52 percent
of workers surveyed admitted they were not legally documented
to work in the United States. About 1.8 million people work in
U.S. agriculture every year. That means the industry has a
potential need for as many as 800,000 legally documented
workers. Compare that to the 34,000 workers legally admitted
under the H-2A Program annually. Obviously, the program is not
up to the job.
Senate bill 1814 will offer the current fraudulently
documented workforce an opportunity to gain legal status to
allow them to work in agriculture immediately if they can
demonstrate a history of working in the industry. After that,
if these workers continue to work in agriculture, Agjobs will
provide them an opportunity to eventually apply for resident
alien status. We hope that AgJOBS provisions in this regard
will serve as a starting point for an honest and forthright
discussion with all affected parties on how to deal with the
illegal status of the current workforce.
We have worked with the administration and opponents of H-
2A reform to see if we can reach a mutually agreeable solution
to this problem. The Farm Bureau looks forward to working with
interested members of Congress to ensure that 2000 is the year
when meaningful H-2A reform takes place. I thank you for the
opportunity to appear here today, and I will be happy to answer
any questions that you may have.
[The prepared statement of Mr. Wunsch follows:]
Prepared Statement of Josh Wunsch on Behalf of The Michigan Farm Bureau
and the American Farm Bureau Federation
Members of the Subcommittee, thank you for the opportunity to
appear today on behalf of the Michigan Farm Bureau and the American
Farm Bureau to discuss the need for reform of the H-2a temporary
foreign agricultural worker program.
I am Josh Wunsch, a member of the Board of Directors of the
Michigan Farm Bureau. I am a farmer and partner in Wunsch Farms,
located on the Old Mission Peninsula in the Grand Traverse area of
Michigan. We grow red tart cherries, sweet cherries and apples on our
farm. I employ 50 workers and have been a user of migrant and seasonal
labor for three generations. I currently serve on the American Farm
Bureau Horticulture Advisory Committee.
For the last six years, Farm Bureau has worked to demonstrate to
Congress and the Administration the critical need for reform of the H-
2a program. Farm Bureau is Michigan's largest and the nation's largest
membership organization for farmers and ranchers. Many of these farmers
grow fruits, vegetables, and livestock that require or depend on the
efforts of hired labor for their successful cultivation and harvest.
Agriculture today is far more capital-intensive than it has been in the
past, but for some crops the trends that have brought us fewer farmers,
farming more acres, have created the need to employ more people than
just a farmer, his family members and neighbors and friends.
Farmers in Michigan and across the United States have experienced
similar problems with tight labor supplies and lost crops in recent
years. At Farm Bureau we believe this labor supply problem stems from
two distinct developments that have worked together to reduce the
available supply of labor for farmers. First, there has been a
developing consensus among public policy makers that the federal
government, working with state and local governments, should work more
effectively than in the past to enforce U.S. laws to discourage illegal
immigration. Though it has been illegal for non-authorized persons to
seek employment in the United States, and for U.S. employers to employ
non-authorized persons since 1986, relatively few resources were
devoted to enforcement of this prohibition. The Immigration and
Naturalization Service (INS) and the Border Patrol have in the last few
years employed greater resources for border interdiction, interior
enforcement, and workplace enforcement.
More recently, the Social Security Administration (SSA) has begun
to more vigorously implement its Enumeration Verification System, which
is designed to weed name-and-number mismatches out of the SSA database.
It is our understanding that as much as $34 billion dollars in the
Social Security Trust Fund may be credited to names and Social Security
numbers that may be false. When SSA detects a name and number mismatch,
the agency sends a letter to the farm employer advising of the mismatch
and telling the employer that correct information must be furnished,
while threatening fines and Internal Revenue Service action if correct
information is not forthcoming. Of course, when filing to pay the
employer's share of Social Security taxes, the employer furnishes the
information provided to him by the employee in question. In the case of
farmers, when they ask farmworkers to furnish correct information for
SSA, those employees often do not return to work the following day.
All of these stepped-up enforcement activities have diminished the
labor supply for farm employers. It is important to emphasize that this
is not because farm employers seek to employ undocumented workers.
Rather, we believe farm employers probably have a greater propensity to
be in compliance with pre-employment verification requirements than
some other types of employers. However, it is very easy for persons in
the United States to illegally obtain fraudulent identification
documents that appear to be genuine. And when these documents are
presented to an employer, they must be accepted as genuine unless they
are clearly fraudulent. Farm employers are obligated to accept
documents that appear on their face to be genuine because, under
federal law, failure to do so could result in document discrimination
charges. Farmers are in a Catch-22 situation. As citizens they wish to
uphold the law and would thus prefer to avoid hiring illegal aliens. As
business people, they realize they must hire an adequate workforce to
plant, cultivate, and harvest the crops they depend on for their
livelihood. And, if they are too quick to decline to hire someone they
suspect is fraudulently documented, they may run afoul of the law.
Additionally, the thriving U.S. economy has put farm employers in
competition for a limited pool of labor with employers in other
industries who can offer longer-term, often year-round employment and
better compensation and benefits. In Utah, tree fruit farmers in the
Front Range of the Wasatch Mountains are finding themselves bidding
against food processing companies in and around Salt Lake City for
workers. In Mississippi and Tennessee, cantaloupe and tobacco producers
must compete with casino operators along the Mississippi River at
Natchez for the same workforce. In Florida, citrus and winter vegetable
producers often find that construction contractors and the resort
industry can offer higher pay and year-round work.
But even where changing public policy and economic conditions have
not contributed to new shortages of workers, chronic shortages prevail
and are unlikely to dissipate. In the Lake Champlain valley in upstate
New York, it continues to be difficult to find enough people to harvest
hundreds or thousands of acres of apple orchards in counties that have
only a few thousand residents. Where irrigation is available, onion
production in the Nevada desert can be a viable agricultural
enterprise, but there is very little labor available in the area.
Many of the prime apple growing counties in Washington state are
very rural and sparsely populated, as are many of the prime Christmas
tree growing counties in the mountains of western North Carolina.
Growers in these areas have found that the H-2a program, with its many
flaws, is the only workable source of an adequate labor supply to
harvest their crops.
Michigan is very dependent on a steady supply of labor to hand
harvest a number of specialty crops. Workers pick specialty crops
including apples, peaches, pears, strawberries, blueberries,
cantaloupes and sweet cherries, as well as vegetables including
pickles, cucumbers, tomatoes, peppers, asparagus and onions. Often
these workers are lost to other states in the migration stream from
Texas to Michigan.
The situation is real and growing worse in Michigan. In recent
years, the labor shortage has led to the following problems in my
state:
A Monroe County apple grower and packer operation was
unsuccessful in getting enough labor. He lost his juice apple harvest
altogether; the quality of his fresh harvested apples also suffered.
A large greenhouse in eastern Michigan has provided
employee benefit packages including 401(k) and medical coverage. Four
years ago they began recruiting migrant workers because of a shortage
of local workers. As a result, the producer was unable to ship and
deliver products that had already been purchased, because there was not
enough labor to load the trucks. The greenhouse owner has received
notices from the Social Security Administration notifying him that a
number of his workers have presented names and taxpayer identification
which do not match correctly in the SSA database. These mismatches are
causing him to question if he can rehire these workers.
A raspberry grower in Ingham County needed 12 workers but
could find only three workers; this caused him to lose 75 percent of
his raspberry crop. He closed his second business location in 1998 due
to a complete lack of labor.
The owner of a cider and retail farm market in Clinton
County had to take harvest workers out of the field to staff his retail
market. This caused the loss of the crops those workers had been
harvesting, requiring him to purchase commodities from other farms. In
1998, he did not have enough workers to plant, stake, and hoe more than
50 percent of the crop he would normally plant, causing him to cut
production.
A Kent County fruit grower was informed in 1998 by the
Social Security Administration that 78 of the names and taxpayer
identification numbers provided by workers applying to work that spring
matched and 115 did not. The majority of these workers had been
recruited through the Michigan Employment Security Agency. In effect
the government referred workers to this grower who were ineligible to
work.
Michigan is known to have some of the best farm labor housing in
the country. There is, however, a fundamental problem with Section 514
of the USDA Rural Development Housing program. In the eligibility of
occupants, H-2A workers are precluded from using the housing. So we
have an additional example of a government program prohibiting the
effectiveness of another.
For the last two years, the industry has felt the effects of the
efforts of Congress to control persons who work illegally in the United
States. We cannot provide you with enforcement statistics--perhaps INS
can give you that data. We cannot quantify exactly how many workers
have been apprehended, nor can we tell you the total dollar value of
crops lost as a result of this enforcement activity. We measure the
seriousness of a problem just like members of Congress do--by the
number of phone calls and letters we receive. I can tell you the level
of concern and interest in H-2a reform has been very high for the past
two years.
For the last five years, Farm Bureau has been engaged in an effort
with state Farm Bureaus and other state and regional farmers'
associations to develop reforms of the H-2a program and work to secure
legislation to accomplish those reforms. Our goal has been to unify
agriculture from the East, the West, and all points in between, and to
unify H-2a program users and non-users to support a reform package that
will help everyone. At the outset, it was clear to us that the cost of
a lack of unity would be high. In the 1980s, agriculture fragmented
into factions seeking different reforms. The resulting Seasonal
Agricultural Worker program legalized a great many ``farm workers'' who
ultimately sought employment in other industries. Concurrent reforms of
the H-2a program proved ineffective. And, the unintended consequence of
the 1986 requirement to obtain documentation from workers encouraged a
market in fraudulent employment documents that still thrives today. By
our disunity, we allowed Congress to pass a ``solution'' to our labor
supply problem that didn't really solve the problem.
For years now, farmers have been struggling with a simple fact of
life: agriculture is hard work, the seasons are short, and people who
work in the industry are sometimes forced to move from place to place
to find work. Farmers are price-takers, taking what the marketplace
offers for what we grow, and it is difficult for us to pass increased
costs along to our customers, who can buy from producers overseas who
have much lower business costs than U.S. growers. These two facts taken
together have made it extremely difficult for farmers to recruit an
adequate, legal workforce. When we can find enough workers, very often
many or most of them are not legally documented to work in the U.S., as
I have discussed before. The 1997-1998 National Agricultural Workers
Survey, conducted by the U.S. Department of Labor, indicated that 52
percent of farm workers surveyed told an identified representative of
the U.S. government they did not have legal status to work in the U.S.
Based on anecdotal evidence, it seems likely that if that high a
percentage self-identified as working illegally, in fact a higher
percentage of the farm workforce is in fact illegal.
We have struggled with a way of resolving this immediate problem,
that a large percentage of our workforce is illegal. It is our belief
that the best way to minimize disruption in our current workforce,
disruption in the lives of our workers, and to illegally documented
workers are not exploited by anyone is to confer on them a legal status
that will allow them to continue to work in agriculture. To add value
to this benefit from a worker's standpoint, we've proposed to allow
these workers to earn the right to apply for a green card it they
continue to work in agriculture for five years after they gain the
right to work legally. We think this is a reasonable compromise between
those with concerns about immigration control, and those who believe
current workers should be offered a blanket amnesty. I urge all of you
to give this issue serious thought and give us the benefit of your
wisdom as to how we can resolve this difficult issue.
It is worthwhile to consider just how useful the H-2a program is to
farm employers now, and how we might go about reforming it. Both
farmers who have successfully used the program, as well as farmers who
have considered and rejected the idea of using the program have told us
that a number of reforms could be made that would make the program less
burdensome and less expensive for growers to use. Farmers have, in
particular, complained about the labor certification procedure they are
required to complete to demonstrate that no domestic workerswill be
displaced by the admission of foreign workers, as well as the
excessively high Adverse Effect Wage Rate standard.
In terms of program usage, the H-2a program today is not a major
source of workers for farm employers. USDA surveys indicate that about
1.6 million people work seasonally in agriculture, excluding raising
livestock, every year. Only about 30,000 workers were admitted under
the H-2a program in 1998. Compare that to the total potential need of
820,000 workers. Only one farm in Michigan has been able to effectively
use the program. While program usage has been growing in recent years,
only a few years ago the H-2a program admitted only about 15,000
workers annually. We think program usage is this low because the vast
majority of growers feel they cannot navigate the bureaucratic process
associated with labor certification, and even if they could, they could
not afford to meet the adverse effect wage standards mandated by the
program.
The market test requirements of the labor certification process has
been particularly burdensome to growers because of their
ineffectiveness. Farmers are required to file job orders with the Job
Service agency in their state, which in turn files interstate clearance
orders with the Job Services in other states where workers might be
available to fill farm jobs. Often, workers referred to farmers by
these activities are in fact illegally documented ``domestic'' workers
to whom a farmer must offer work before being allowed to bring in legal
foreign labor. This places a farmer in the absurd position of being
forced by the United States government to employ a worker who is
illegal in favor of a worker legally admitted under the H-2a program.
In other instances, farm employers have been forced to advertise in
metro-area newspapers for farmworkers, or to advertise on Spanish-
language radio stations in areas where migrant farmworkers have
traditionally resided during the winter months. These efforts have
usually proven to be futile and expensive.
H-2a program wage standards have also been problematic. Under the
current H-2a program, a participating grower must pay all H-2a workers
(and any domestic workers they employ in the same occupation) the
greater of the Adverse Effect Wage Rate (AEWR), the prevailing wage in
the area of intended employment (as determined by Department of Labor
farm employer surveys), or the statutory minimum wage. Under current
regulations, the AEWR is set at the average wage paid to field and
livestock workers in a given state. Obviously, application of the AEWR
will have an undesirable inflationary impact for about half of all farm
employers in a given state, causing unnecessary inflation of the wages
they must pay simply to ensure an adequate labor supply. For almost all
farm employment, the AEWR set wage standard is uneconomic in a globally
competitive labor market. In all cases we are aware of, both the
prevailing wage and the AEWR exceed the statutory minimum wage in every
state. For Michigan, the Adverse Effect Wage Rate in 1999 is $7.34 per
hour. This is the fourth-highest AEWR in the nation, after Hawaii
($8.97 per hour) and Indiana, Illinois and Ohio ($7.53 per hour). It is
important for you to remember that the H-2a minimum wage standard is
paid to workers over and above other expenses not incurred by non-H-2a
employers, like inbound and outbound transportation, housing and
program administration expenses.
Farm Bureau, and the coalition we have worked with on H-2a reform,
has proposed several key reforms to the H-2a program that we believe
will alleviate a number of the program's problems. First, we have
proposed to replace the current unproductive and expensive positive
recruitment requirements with an entirely new method of testing the
local labor market to ensure that U.S. workers are not displaced.
Rather than using the combination of job orders and interstate
clearance orders and ineffective employer recruitment required by the
current program, we have proposed to use information technology to
create a more effective conduit of labor market information for farmers
and farmworkers. We have proposed that the Department of Labor and the
state Job Service agencies should create Agricultural Worker Registries
in states or regions that correspond to natural farm labor markets.
These registries would be repositories of employment information
provided by farmers and farmworkers seeking to find one another. In
order to participate in the registry, a worker would have to
demonstrate that he or she is legally eligible to work in the United
States. The Job Service could not place a worker in the registry who
has not provided documentation that can be verified by the INS or
Social Security Administration.
Farm workers wishing to seek work on farms in a given state would
provide necessary information, like name and current address to the
registry. When a farmer is seeking workers, either domestic workers or
seeking to access the H-2a program, that farmer's first step is to
query the Agricultural Worker Registry. If the farmer needs 20 workers
on August 1, and the registry indicates there are 10 workers who might
be available on that date and might be willing to perform the needed
work, the U.S. Department of Labor contacts these workers and secures a
commitment to work; the farmer then files for 10 H-2a visas. If seven
of the 10 workers available on the registry accept the offer to work
for the farmer in question, the farmer then files for three additional
H-2a visas. Thus, any willing and eligible U.S. workers have first
access to available U.S. farm jobs, but farmers are not left in the
position of being unable to fill critical seasonal jobs.
Another key reform needed is with the operation of the AEWR. We
propose that the national standard minimum wage for H-2a program
participants, (both H-2a visa workers and domestic workers who work
alongside them), should be the prevailing wage for workers in a
particular area, in a particular occupation. This eliminates the major
flaw of the AEWR now, the grouping together of unlike occupations in
dissimilar labor markets to create an AEWR that doesn't reflect the
local labor market.
In 1998, we came very close to success in our efforts to reform the
H-2a program. The Senate passed a proposal to accomplish the reforms I
have discussed in a bipartisan 68-31 vote in July of last year. That
legislation was later combined with a number of other measures to
create the omnibus appropriations bill that funded the operations of
the federal government for fiscal year 1999. In that process. our H-2a
reform was dropped in favor of other provisions. The Farm Bureau looks
forward to working with interested members of Congress to ensure that
2000 is the year when meaningful H-2a reform takes place.
Thank you for the opportunity to appear today. I'd be happy to
answer any questions you may have.
Senator Abraham. Thank you very much.
Reverend Garcia.
STATEMENT OF POLO GARCIA
Reverend Garcia. Before anything I would like to just
excuse myself if there is any mistakes that I make in reading
my prepared document.
Mr. Chairman, thank you for allowing me to be present with
you. S. 1814 will benefit farmers and also farmworkers by this
bill. Also I thank Senator Gordon Smith of Oregon for inviting
me to testify and for his hard work to try to solve the
problems faced by farmers and farmworkers in Oregon.
I am a Lutheran minister in Woodburn, Oregon, House of Zion
Ministries, Incorporated, including a church, and a shelter,
and a learning center. Case de Zion is a Lutheran church of
approximately 140 Hispanic farmworkers. Our shelter provide
places to stay and cooked meals to migrants traveling in the
area during the season, and provide beds and meals for about 20
farmworkers and families a night. Our learning center provides
an opportunity to farmworkers to learn skills such as auto
mechanics, plumbing, and carpentry. Right now we have 12 to 14
farmworkers learning computer skills.
I was born in Mexico. My mother was a migrant farmworker
who bring me to the United States when I was little. I traveled
with her and worked in Texas and Idaho, and Oregon, Washington,
and California. When I met my wife Marta, both were
farmworkers, married and decided to live in Idaho. We continued
working as migrant farmworkers. Around 1975 I decided to get
into ministry and we moved to Oregon. After I become a pastor I
dedicated my life to helping the other farmworkers, and Marta
and I started the House of Zion.
Over the years more and more people work in the fields and
not have legal papers. It is hard to get across the border.
Most of the farmworkers who come to the United States without
papers use the coyotes. They pay the coyotes $1,000, $1,500, or
even more to get across. The trip is very dangerous. People are
robbed and raped and all. People try to walk across the border
in remote areas to save money, and get lost and freeze to death
or even die of thirst.
Usually farmworkers first come without families. It is
expensive and dangerous to go back and forth. They stay longer
and try to bring in the family later. It is especially true in
Oregon where agricultural work is available most of the year.
It costs about $2,000, $3,000 to get a family across.
Farmworkers without legal papers have a very difficult
time. Farm work is difficult but the situation is more
difficult if they always have to hide or to feel someone is
hunting for them. They never know how long they can work before
immigration finds them or finds their employer and their
employer confronts them. Workers often move from job to job,
change their IDs to avoid being caught.
Senator Smith held some public meetings for farmworkers in
Oregon to explain his bill and hear their comments. Farmworkers
are real interested in Senator Smith's bill, and hope the
Congress will finally do something about this problem. They
want to work in the United States and come and go legally.
Naturally, we want as liberal a program as possible, but
they are willing to accept the conditions in the Smith bill.
Many farmworkers in the Willamette Valley work nearly year-
round, all year, and could qualify for the program under the
150-day criteria and meet the 180-day agricultural work
requirement. Even those who will not benefit directly are glad
to see that something is being done.
Many farmworkers work illegally in Oregon and have their
families with them, but they also have families in Mexico. They
have someplace to go during the two months they are required to
be outside the U.S. However, I believe it is important to let
those who have children here in school to stay year round.
On behalf of the farmworkers in Oregon and all farmworkers
illegally working in the United States, I hope Congress acts
soon to help them. These are decent, hardworking people. They
are the only people willing to work in the fields. The farmers
need them. It is not right that they are constantly afraid of
being found, or constantly looking over their shoulders,
constantly moving, afraid to return to visit the family in
Mexico.
Thank you for having me here today.
Senator Abraham. Reverend Garcia, thank you very much. We
appreciate your being with us.
Ms. Munoz, welcome back. We appreciate your participation
again here with us, and we will turn it over to you. Thanks.
STATEMENT OF CECILIA MUNOZ
Ms. Munoz. Thank you very much. I also have a written
statement that I would ask to submit for the record.
Senator Abraham. Without objection, it will be entered in
its entirety.
Ms. Munoz. Thank you. Senator Smith, I am glad you are
here. I have been asked to present to you some petitions that
were signed by farmworkers in the State of Oregon expressing
their concerns about the legislation. And I want to start with
the statement that you made earlier in your conversation with
Congressman Berman that there are some groups who would prefer
that nothing happened with respect to farmworkers, and I would
like to start by making it clear that my organization is not
one of those.
We have, for many, many years, been concerned particularly
about the conditions in which farmworkers live and work. And I
would hope that as this committee considers legislation related
to farmworkers, that it would start with legislation that would
aim to bring their working conditions and living conditions out
of the 19th Century, where they have been stuck for far too
long.
We are also very concerned and have been again for decades
with the situation of undocumented immigrants in this country.
And undocumented immigrants working in agriculture are
obviously a very big part of that set of concerns. So I am glad
to hear those concerns being raised so eloquently today.
I am sorry to say that the legislation that the committee
is considering today goes in the wrong direction in terms of
the goal of improving the working conditions and living
conditions of farmworkers. And we greatly fear that this
situation, which is already abysmal, would get worse if this
legislation were enacted, and I would like to explain a little
bit why.
First, though, I would like to challenge one of the
principal rationales for the legislation that the committee is
considering today, and that is this notion that there is a
labor shortage in agriculture. My organization tends to take
the position supported by research coming out of the Government
and private sector that suggests that there is not a shortage
of work-authorized farmworkers. And the evidence that is cited
is the sort of standard economic evidence. In a situation where
there is a labor shortage, you would expect wages and working
conditions to improve and demand for workers' time to increase.
And the data that we cite in our testimony demonstrates that
farmworkers' wages are stagnant, that their annual earnings
continue to hover well below the poverty line. But the average,
the median income of an individual farmworker in this country
is about $7,500 per year, and the income of a farmworker family
is about $10,000 per year.
Unemployment and underemployment is rampant in farmworker
communities. Even during hiring peaks only about just over half
of the Nation's total farm labor workforce holds agricultural
jobs, and the number of days in which agricultural workers
actually work in the course of a given year has been decreasing
steadily over the last decade.
In California, in particular, the unemployment rates in 18
agricultural counties continue to be nearly double the
statewide average, and that includes even during the peak
harvest months. So for these reasons, we question the principal
rationale for this legislation. In addition to that, our
assessment of the impact of these bills makes it clear that
both of them, unfortunately, would make conditions for
farmworkers worse.
My written statement outlines a variety of concerns with
the way the current H-2A program is structured. We are
concerned about it as well, and I know that is part of the
motivation behind the legislation. Studies by the General
Accounting Office and the Department of Labor indicate that the
protections for workers, which are built into the program, are
not successfully protecting either the domestic farm labor
workforce or the guestworkers themselves. And those are well-
documented in my written statement.
S. 1815 would revise the H-2A Program in a way which would
lower wage rates, eliminate housing opportunities, reduce
recruitment inside the United States, decrease Government
oversight, and in other ways lower the labor standards of U.S.
farmworkers and allow exploitation of vulnerable foreign
workers. That is a step very, very much in the wrong direction.
The bill would also authorize wage systems like group piece
rates and other practices that have been used to circumvent the
law and prevent farmworkers from improving their circumstances.
My organization also has serious concerns about the
adjustment proposal that we have already talked about today in
the hearing. But I want to be clear that we very much support
the notion of legalizing farmworkers. In fact, we are very glad
that it has been introduced into this debate. But the way this
particular proposal is structured is extremely harmful, and we
cannot support it. And I would add that the network of
farmworker organizations that we work with also opposed this,
though it very much supports the notion of legalizing workers,
and we have attached to our testimony a letter with more than
180 organizations on it who share our views.
Among our principal concerns with the way the adjustment
program is structured is that it ties workers who wish to
legalize to farm labor for at least 5 years, and during that
period they would be at the mercy of their employers, who would
have extraordinary control over the workers' economic status
and immigration status. Workers would need their employers to
verify that they worked the 180 days that they would be
required to work each year, and many of them will be too afraid
of being fired or other employer reprisals to demand higher
wages or better conditions or to seek to otherwise enforce the
law if there are abuses. And we know that abuses occur in this
industry.
The adjustment proposal contains none of the wage housing
or other minimum labor standards that have been part of the H-
2A Program and the old Bracero programs in the last 55 years.
We are not convinced that the protections against undercutting
current wage rates or against exploitation are sufficient. And
the program, we think, is going to make it very difficult for
farmworkers to actually legalize. The pool of workers who would
have the hope of legalizing and would attempt, we believe,
would have a very difficult time in fulfilling those
requirements and that data that we have been studying
demonstrate that already the average number of days worked by
farmworkers in this country is less than 180. So we think that
the pool of workers who would ultimately benefit would be very
small.
And even for those few who make it through the process, the
way the adjustment proposal works is not as generous asit
sounds. There would be waiting lists of up to 5 years to receive
immigration status. Therefore, some eligible workers would not receive
their green cards for as many as 10 to 12 years, and they could not
begin to petition for their spouses or their children until after that
process had finished. So we are talking about extraordinary long
periods of time before family members ultimately would be able to
reunite.
While we welcome the fact that the agricultural industry
has introduced the notion of adjusting the status of the
workforce into this debate, even if the adjustment proposal
were structured differently, even if this were an immediate
legalization program, I have to say that for us it is not
enough simply to legalize workers in this industry if we do not
make an effort to change the working conditions that
farmworkers have lived and worked under for so long.
Legalization, even a perfect program by our standards, would
not be sufficient. Ultimately, this debate has to include the
equalization of labor standards. We are not talking about
adding labor rights to farmworkers that other American workers
do not have, but we are talking about leveling the playing
field so that they are ultimately working under the same set of
labor protections as everybody else.
Ultimately, if the real concern here is a steady permanent
source of farm labor, we believe this industry must begin to
make the changes that many other industries began making almost
a century ago. We believe, ultimately, that the way this is
structured, the way that adjustment is structured, is designed
to keep workers in agriculture longer than they would otherwise
want to. And ultimately, we think the best solution to keeping
a steady, permanent workforce is both legalizing workers and
creating the kinds of working conditions that will inspire
people to stay, rather than forcing them to stay.
The history of these issues, Mr. Chairman, is really very
shameful, and it is time to begin to take major steps to change
them. And unfortunately, this legislation does not do that.
[The prepared statement of Ms. Munoz follows:]
Prepared Statement of Cecilia Munoz
i. introduction
My name is Cecilia Munoz. I am the vice-president for the Office of
Research, Advocacy and Legislation of the National Council of La Raza
(NCLR). NCLR is a private, nonprofit, nonpartisan organization
established in 1968 to reduce poverty and discrimination and improve
life opportunities for Hispanic Americans. NCLR is the largest
constituency-based national Hispanic organization, serving all Hispanic
nationality groups in all regions of the country through our network of
230 affiliate community-based groups and regional offices. NCLR has
supported fair and effective immigration and farmworkers policies for
over two decades, and has ensured a fact-based Latino perspective on
the issue of immigration. NCLR approaches this issue as a civil rights
organization, with an interest in protecting the rights of our
constituency and promoting the values and principles of the nation as a
whole.
I appreciate the opportunity to submit this statement before the
Subcommittee today, especially when it concerns an issue that
ultimately will affect the lives of perhaps the single most
disadvantaged of all groups in the United States: the nation's
farmworkers. These hard-working Americans toil in the fields for meager
earnings and few benefits; they sustain multi-billion dollar
industries, and literally put food on our tables. Yet, they remain
largely invisible to the rest of the country. Under a century-old
system of labor, farmworkers continue to be inadequately protected by
federal laws and regulations, including worker protection standards
that all other workers take for granted.
We have heard today from representatives of the agricultural
industry which is again attempting to orchestrate the establishment of
additional special privileges for itself, proclaiming the same
unsubstantiated argument employed continuously since the mid-1800s:
that there are labor shortages.
NCLR continues to side with the experts in government and in the
private sector who have studied and found that there is still no
shortage of work-authorized farmworkers, but a shortage of decent jobs
and decent pay. Second, the status quo is indeed untenable, not because
of over-regulation of labor standards in agriculture but because of a
complete lack of enforcement of the few labor standards that actually
apply to farm work.
Therefore, NCLR strongly opposes S. 1814 the Agricultural Jobs,
Opportunities and Benefits Act, and S. 1815, the Farmworker Adjustment
Act, primarily because they would not improve conditions for America's
farm workers. In fact, we believe that this legislation would give
unscrupulous employers an unreasonable level of control over
farmworkers' lives. Such comprehensive control could only lead to
further exploitation of the nation's most vulnerable workers.
ii. the face of america's farm labor force
The history of farm labor in the United States coincides with the
political awakening of the American Latino community. Since the
beginning of the last century, Mexicans and other Latinos have been an
integral part of the nation's farm labor force, and farmworkers have
been integral to the growth of Hispanic Americans' political
consciousness.
For this reason, NCLR, like most Latino advocacy organizations, is
concerned about current proposals to ``reform'' or expand current
guestworker programs. In fact, the majority of farmworkers in the
United States are Latino. In 1997 and 1998, 81 percent of farmworkers
are foreign-born; 95 percent of these are from Mexico. As many as 52
percent of farmworkers are undocumented; 58 percent of farm workers,
however, consider the United States their permanent home.\1\
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\1\ U.S. Department of Labor, Findings from the National
Agricultural Workers Survey: 1997-1998.
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Further, the plight of farmworkers in the United States has gotten
worse over the last decade. Government studies \2\ show that:
---------------------------------------------------------------------------
\2\ Ibid. See also Linda Levine, ``Farm Labor Shortages and
Immigration Policy,'' a Congressional Research Service Report for
Congress. December 20, 1999.
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Farmworker wages are stagnant: since 1989, the average
hourly wage has risen only 18 percent, compared to 32 percent for non-
agricultural workers.
Annual earnings remain below the poverty line: for the
past decade, the median income of individual farmworkers has been
$7,500 while for farmworker families it has remained less than $10,000.
Despite their poverty, farmworker use of public benefits
remains low and has declined.
Farmworker assets are decreasing: in 1994-5, one-third of
all farmworkers were homeowners, by 1997-8 only 14 percent were
homeowners.
More workers now rely on their employers, contractors and
co-workers for transportation to work: in 1994-5 49 percent of workers
owned a vehicle; in 1997-8, the figure dropped to only 44 percent.
Unemployment and underemployment is rampant: even during
the hiring peak, just over half of the nation's total farm labor
workforce held agricultural jobs.
The number of days crop workers actually were employed on
farms has diminished over time: from 1989-91, the typical foreign-born
worker was employed in farming for 213 days; this figure fell to 193 in
1992-1994, and to 176 in 1995-1997. U.S. born workers are also seeing
less time in the fields, from 183, to 155, to 129 over the same period.
This indicates that the number of jobs available to all farm workers is
shrinking.
In California, the unemployment rates in eighteen agricultural
counties continue to be nearly double the statewide average even during
peak harvest months.\3\ The California Rural Legal Assistance
Foundation (CRLAF) has conducted surveys in the last three years of
farm workers in certain raisin and grape producing counties during
harvest. These surveys have consistently found that there are available
farmworkers who are not being recruited by employers. In fact,
employers are doing a poor job of making their work opportunities
known. CRLAF's most recent report is attached to this testimony as
Appendix A.
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\3\ State of California, Employment Development Department, Report
400C, 1989-1999.
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These findings are very disturbing to us. More importantly, they
indicate that there is truly no shortage of farm labor in the United
States. Were there actually a shortage, wages would be going up, just
as they have in other sectors experiencing difficulty in recruiting and
retaining workers. In fact, these figures indicate a national
oversupply of labor. For this reason, NCLR opposes employer efforts to
enact policy that would guarantee for themselves a continued oversupply
of workers.
Whether it was Chinese immigrants in the nineteenth century, the
4.5 million braceros brought in to toil in the fields between 1942 and
1964, or ``guestworkers'' under the current H-2A program, the
agricultural industry has been dependent on foreign-labor and has been
relentless in maintaining this dependency. They have spent the last
decade soliciting Congressional support for a massive expansion of the
H-2A program.
iii. problems with the h-2a agricultural guestworker program
NCLR believes that the existing temporary foreign worker program,
known as ``H-2A'', is overly generous to the agricultural industry and
insufficiently protective of the rights of both U.S. and foreign
workers. Industry proposals to further ``deregulate'' the H-2A program
will inevitably and inexorably undermine wages and working conditions
for all of America's farmworkers. There is considerable evidence that
the H-2A program--which brings in early 30,000 mostly Mexican and
Jamaican temporary workers each year--has been fraught with abuses.
In its December 1997 study, the GAO found that workers who enter
under the H-2A program are not receiving all of the protections
required by the H-2A law. The ``special requirements'' of the H-2A
program, which the growers decry, are there for a reason. These
protections are intended to ensure that nonimmigrant guestworkers are
hired only to fill actual labor shortages, that U.S. farmworkers' wages
and working conditions are not affected adversely, and that foreign
workers are not mistreated.
In 1998, the Department of Labor's Office of Inspector General
reported that the program fails to protect U.S. farmworkers. it found
that employers and the StateEmployment Service Agencies were doing a
poor job of advertising available jobs to U.S. farmworkers, and that
the Department of Labor's Employment Training Administration was
approving H-2A certifications without sufficient scrutiny.
Nevertheless, the Department of Labor is acceding to growers'
demands by offering, for instance, administrative reform and quicker
processing that further undermine the program's protections. The
current program has resulted in lower wages for farmworkers in America.
That is why the USDA's National Commission on Small Farms urged the
repeal of the H-2A program after hearing testimony that ``large farm
operators and agribusiness have unfair advantages `because employer
costs have been reduced by partial or total exclusion of agricultural
workers from coverage under key labor laws.' In addition, `the
authorized importation of foreign workers for agricultural work (H-2A
program), by adding workers to the pool of available labor, has helped
keep wages for agricultural workers * * * below what they would have
been without such interventions.' '' \4\
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\4\ U.S. Department of Agriculture, A Time to Act, National
Commission on Small Farms, Washington, D.C.: January 1998.
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The current H-2A program approves 99 percent of the applications
filed by agricultural employers despite the labor surplus. The H-2A
program was streamlined for employers in 1986 and has operated to their
advantage. The program is growing rapidly and spreading to new crops
and new states. In Georgia, for example, the Department of Labor
approved applications for more than 2,200 jobs in 1999, even in cases
where the grower failed to file the application on time.\5\ During the
previous year, Georgia received fewer than 200 H-2A workers.
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\5\ Letter from Secretary Alexis Herman, U.S. Department of Labor,
to Senator Paul Coverdell, April 16, 1999.
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Still not satisfied, growers are demanding that Congress ``reform''
the guestworker program to lower wages, reduce recruitment of U.S.
workers, eliminate the current program's housing obligations, authorize
wage and other employment practices that are currently illegal, and
reduce enforcement of labor standards. Guestworkers are desirable
because they lack the right to switch jobs or to remain in the country
once their job ends. Guestworkers also lack economic or political power
to improve their conditions.
The vulnerability of H-2A workers forces them to live with
unbearable working conditions that no other American would ever
tolerate. In a series of articles, the Charlotte Observer recently shed
light on the H-2A program in North Carolina, where employers import as
many as 10,000 H-2A workers every year. These articles are also
attached to this testimony as Appendix B. I'd like to highlight one
particularly poignant story in the first of these articles. It is the
story of Carmelo Fuentes, an H-2A worker who suffered heat stroke while
picking tomatoes in 105-degree heat.
According to his employer, Mr. Fuentes, who was 36 years old, said
he just wanted a short break after showing signs of heat stress, which
state investigators said were ``dangerously ignored'' by his
supervisor. His employer said ``that boy said he was fine, and just
needed to rest.'' As he rested, heat stroke shut down his internal
organs and led to Mr. Fuentes to suffer from severe brain damage.
According to the Charlotte Observer story,
Nobody can know exactly what Carmelo Fuentes said about how he
felt that July day in 1998. But as a veteran working his third
N.C. harvest, he likely understood what some say are the
unwritten rules of the government program that brought him to
an N.C. farm 2,000 miles from home.
Work fast, or lose your job to somebody who is faster. Complain
about your living or working conditions, and you're sent back
to Mexico. Get sick or injured, and you're off the list of
workers invited back next season.
These are the rules that many guestworkers have come to understand as
determining whether they will continue to be able to work in the United
States. That is why the H-2A program reminds so many Mexican Americans
of the universally denounced Bracero program that existed between 1942
and 1964. As in the H-2A program, Bracero workers were so controlled by
their employers that, according to Ernesto Galarza, one of NCLR's
founders, undocumented workers actually used to consider themselves
``libre'' or ``free workers'' since they could leave an employer if
conditions were intolerable.\6\ The same can still be said about the
current program.
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\6\ Galarza, Ernesto. Merchants of Labor: The Mexican Bracero
Story. McNally & Loftin (Charlotte, 1964).
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NCLR opposes the current H-2A program, and calls for its repeal.
Any attempts to reduce the protections it provides for farmworkers,
both those already in the U.S. and those entering through the program,
should be rejected.
iv. problems with s. 1814 and s. 1815
The Agricultural Jobs, Benefits and Opportunities Act and the
Farmworker Adjustment Act fall far short of what is needed to improve
the H-2A program and to make better the lives of America's farmworkers.
These bills would subject farmworkers to even poorer wages and working
conditions and inequitable economic and political status for many years
to come.
This legislation would create two new temporary foreign
agricultural worker programs by modifying the current H-2A program and
by establishing an ``adjustment''program for currently undocumented
farmworkers. Neither proposal is satisfactory, and should be rejected.
As mentioned above, the current H-2A program inadequately ensures
that U.S. farmworkers have access to available farm jobs, and that
individuals entering as H-2A workers are not exploited. S. 1814 would
revise H-2A program to lower wage rates, eliminate housing
opportunities, reduce recruitment inside the United States, decrease
government oversight, and in other ways lower labor standards of U.S.
farmworkers and allow exploitation of vulnerable foreign workers. No
valid reason justifies it. The bill would also authorize wage systems
(``group piece rates'') and other practices that have been used to
circumvent the law and prevent farmworkers from improving their
circumstances.
The ``adjustment'' guestworker proposal in S. 1814 and S. 1815
would guarantee employers a pliable workforce of individuals who are
too desperate to meet its requirements to help realize the few labor
rights they have as farmworkers. The bills' proponents contend that
this new ``adjustment'' guestworker program would benefit currently
undocumented farmworkers because (1) those who qualified could work
legally on a temporary non-immigrant visas as seasonal agricultural
workers and (2) upon satisfying a 5-year agricultural work requirement,
later they would be permitted to apply for immigration status. These
workers (upon showing 150 days of agricultural work for 1998-1999)
would be obligated to find and prove 180 days of agricultural work each
year for five more years. They could perform only agricultural work,
and would be required to leave the country for at least 65 days per
year.
The lack of available work shown by recent survey means that many
``adjustment'' guestworkers would never acquire enough work in each of
5 years to qualify to apply for immigration status. The proposal would
give employers extraordinary control over workers' economic status and
immigration status. Workers would be desperate to comply with the
difficult tasks of securing and proving 180 days of farmwork each year
to remain in the program. Consequently, many will be too afraid of
being fired and other employer reprisals to demand higher wages or
better working conditions, or seek to enforce the law.
The ``adjustment'' guestworker proposal contains none of the wage,
housing or other minimum labor standards that have been part of the H-
2A and the old bracero programs in the last 55 years. There are no
protections against undercutting current wage rates or against
exploitation of the vulnerable guestworkers. As ``non-immigrants,''
guestworkers will be ineligible for federally funded legal services and
for public benefits.
Due to certain immigration-law restrictions, many guestworkers who
complete the 5-year requirement may still not qualify for immigration
status. Because the bills would create a waiting list of up to 5 years
for receiving immigration status, some eligible workers would not
receive a green card for 10 to 12 years. During that time, spouses and
children would not be entitled to enter the US or gain immigration
status.
The ``adjustment'' program does represent a fair compromise between
workers' needs and employers' wants. It further shifts the balance of
power into the hands of the unscrupulous employers, contractors and
crewleaders.
v. recommendations
NCLR believes there should be a change in farm labor policy, but S.
1814 and S. 1815 is not the right policy prescription. Instead,
Congress should seek to improve opportunities for farmworkers, both
foreign-born and U.S. born, by enacting the following recommendations:
Effectively Enforce Existing Protections and Labor Laws:
The Department of Labor (DOL) must prevent persisting employer abuses
of the H-2A program, by enforcing existing protections in the program,
including the ``fifty percent rule,'' which gives U.S. farmworkers
preference over an H-2A workers. Growers must also not be allowed to
exploit foreign workers by underpaying them or denying them crucial
benefits. DOL also must increase its vigilance over the H-2A program
and resist attempts to reduce alleged administrative burdens.
Provide Adequate Resources for Enforcement of Labor Laws:
The Administration should request, and Congress should provide,
sufficient funding to DOL's Wage and Hour Division and OSHA, among
others, to assure effective monitoring and enforcement of labor
standards for U.S. farmworkers and H-2A workers. Congress should also
revisit the budget restrictions and limitations on the Legal Services
Corporation grantees that have traditionally served farmworkers.
Improve Existing Recruitment Methods: The agricultural
industry must improve its current recruitment methods to attract
available, work-authorized U.S. workers. Surveys along the East Coast,
where more growers are using the H-2A program, have shown that U.S.
farmworkers are indeed available for work but need advanced assistance
with transportation; which is rarely provided to U.S. farmworkers.
Growers also must assure that their written job advertisements are
placed in locations where U.S. farmworkers will hear or see them. In
addition, the Department of Labor's U.S. Employment Service must
improve its outreach efforts to match U.S. farmworkers with available
agricultural jobs, primarily since less than five percent of all U.S.
farmworkers use this system to secure work. Employers and DOL should
improve coordination with labor unions and community-based
organizations that are ready and willing to promote recruitment of U.S.
farmworkers to meet the employers' needs.
Make Growers Who Use Farm Labor Contractors (FLCs)
Responsible for Treatment of Their Workers: Congress and enforcement
agencies must assure that growers do not circumvent existing labor laws
by increasingly relying on FLCs for workers. Since the enactment of the
Immigration Reform and Control Act of 1986 (IRCA), growers have come to
depend more heavily upon FLCs to produce a workforce. Essentially,
contractors have become the ``risk buffers'' between growers and their
immigrant workers, and now perform the regulatory duty imposed by IRCA
on all employers. Furthermore, evidence has shown that workers hired by
FLCs are more susceptible to exploitation in the form of lower wages,
reduced benefits, lower retention rates, and inferior working
conditions.
Enact a New Legalization Program: While we believe there
is an oversupply of available work-authorized farm workers, the
currently high proportion of undocumented workers in the arm labor
force is troubling. NCLR believes that the use of farm labor
contractors competing to provide growers with the cheapest available
workers has led to an overrepresentation of undocumented workers. These
workers are not as able to defend themselves from exploitative
practices as are legal workers. Congress should allow workers who have
already contributed to the U.S. economy through their sweat and labor
an opportunity to become legal residents, without any conditions that
would further subject workers to more exploitation.
Enact Pro-Immigrant Legislation This Year: Many
farmworkers would benefit from passage of pro-immigrant legislation
that has already been introduced. Namely, NCLR strongly supports and
calls on Congress to enact:
S. 2407, the Date of Registry Act, which would
update a long-standing provision of the Immigration Act called
``registry'' and allow long-time residents, deeply-rooted
immigrants who are contributing to our economy to remain here
lawfully. This bill would change the registry cutoff date from
1972 to 1986. NCLR would prefer a change in the date to 1994.
S. 1592. the Central American and Haitian Adjustment
Act, which would correct for past unequal treatment among
different groups of similarly-situated Central American and
Caribbean Refugees.
H.R. 1841, to restore Section 245(i) of the
Immigration and Nationality Act, which would allow immigrants
who are eligible to adjust their status to lawful permanent
residency to do so while remaining in the country instead of
traveling to their home country to complete the process. By
passing this provision, Congress could ensure that immigrants
are not separated from their families and employers for as many
as ten years.
Legislation, not yet proposed, to decrease the
immigration backlogs by increasing the number of available
visas so that immediate relatives of U.S. citizens and
permanent residents may join their families and cease having to
wait in interminable backlogs for lawful admission to the
United States. All of these proposals will help reduce the
number of undocumented workers in the labor force, not just in
agriculture, but in other sectors that are genuinely
experiencing trouble finding work-authorized workers.
vi. conclusion
I respectfully urge you to consider these recommendations, as they
represent a consenus among many different immigrant and farmworkers
advocates about immigration policies that Congress should enact in the
short-term. Immigration is but one of the many complicated issues
concerning farm labor that need to be addressed, and I appreciate the
attention the Subcommittee is paying to the issue today. However,
before the Subcommittee considers acting on this legislation, I ask
that you take a closer look at the need for comprehensive reform of our
farm labor system.
Finally, I would like to call your attention to a letter that was
sent to the entire Senate and its leadership last February. It is also
attached as Appendix C. It calls on the Senate to reject S. 1814 and S.
1815, and is signed by 185 organizations made up of farmworkers, and
individuals that work day-to-day with farmworkers. Please take their
voices into account as you consider this legislation.
Once again, I thank the committee for allowing NCLR to present this
testimony.
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Senator Abraham. Ms. Munoz, thank you for your views.
We will turn to Mr. Holt for his. Thank you for being here
today.
STATEMENT OF JAMES S. HOLT
Mr. Holt. Thank you, Mr. Chairman. I, too, have a lengthy
statement which I am submitting for the record.
Senator Abraham. We will include it in the record. Thank
you.
Mr. Holt. I appreciate the opportunity to testify on S.
1814, the AgJOBS bill on behalf of the National Council of
Agricultural Employers or NCAE. NCAE represents growers and
agricultural organizations on agricultural labor and employment
issues at the Federal level. NCAE's membership includes
agricultural employers in all 50 States who employ
approximately 75 percent of the Nation's hired farm labor.
I, myself, am an agricultural labor economist and a
technical consultant on labor and immigration matters to NCAE.
The NCAE strongly supports S. 1814. Senators Gordon Smith and
Bob Graham, with the assistance of Larry Craig and others, have
crafted a carefully balanced bill that provides what the NCAE
believes will be a workable, temporary alien worker program
that will provide labor to responsible law-abiding agricultural
employers under terms and conditions that will permit U.S.
agriculture to be competitive in the global marketplace. It
will protect access to agricultural jobs under fair terms and
conditions of employment for all legal U.S. workers who want to
work in agriculture and for the alien workers who are needed to
supplement the U.S. workforce.
The creation of a balanced workable legislation has been no
mean fete. And NCAE congratulates the bill's authors and
cosponsors for accomplishing a very difficult task. I can
assure you this bill is not the agricultural employers' dream
bill. And as we have already heard and knew I guess before we
came into the room, it is not the farmworkers' dream bill
either. What it is is a set of carefully crafted compromises
that has resulted from literally thousands of hours of
meetings, consultations, hearings, congressional debates over a
period of more than 5 years. The bill has been changed
substantially from that bill which passed the Senate by an
overwhelming bipartisan vote in 1998, and these changes have
been a further attempt I think to address legitimate issues and
problems raised by critics of the bill.
S. 1814 addresses both the short-term and the long-term
agricultural labor problem in the United States by, number one,
providing adjustment of status to those workers who have a
significant commitment to the U.S. agricultural workforce and
are currently working in U.S. agriculture illegally; and, two,
by reforming the H-2 Temporary Alien Worker Program so that
agricultural employers have a practical and workable way to
secure sufficient legal labor in the future.
We cannot emphasize too strongly that both of these
components are necessary to a program that will address the
problem now and in the future. NCAE believes the provision for
adjustment of status for fraudulently documented aliens with a
substantial commitment to the U.S. agricultural industry and a
one-time waiver of the bar on immigration benefits for persons
who have been illegally present in the United States are
absolutely essential elements of a workable and humane solution
to the current agricultural labor problem.
Without these provisions, a substantial portion of the
current workforce would be unable to continue working in
agriculture. Employers would be forced to seek a new and
inexperienced alien workforce, while their experienced former
workers would be unemployable. Such an outcome would make no
sense at all either for workers or employers. Adjustment of
status is also necessary because some key workers in jobs are
not eligible for the H-2A Program either in its current form or
as reformed by S. 1814.
This bill has its critics. As was alluded to in the
dialogue of the last panel, there are people who believe that
no foreign workers should be permitted in the United States and
who would oppose any legislation that provides for that
objective. Some espouse this view directly and some espouse it
by advocating conditions for admission of foreign workers that
assure that they could never be used.
We believe that any objective look at the history of the
U.S. economy and labor force renders the closed-border view
absurd. Every major U.S. industry was built on foreign labor,
and most, spanning the gamut from agriculture to high tech,
still sustain themselves on foreign workers. On the other hand,
some people argue for what, as a practical matter, would be
uncontrolled admission of foreign workers with no effective
labor standards. The NCAE believes this, too, would be wrong.
It would, in effect, make U.S. farmworkers compete directly
with foreign labor standards. We acknowledge that any program
for the admission and employment of foreign workers must
include procedures that assure that U.S. workers who want
agricultural work have meaningful access to such employment and
preference to foreign workers, and that wages and other
conditions of employment are protected from unfair competition.
While the NCAE believes the authors have done a yeoman's
job of achieving a workable yet balanced bill, we do not
believe anyone has yet claimed perfection. As the legislative
process proceeds, additional, reasonable and useful
modifications may be suggested. But we do strongly believe that
the time has come to finalize the debate and to enact
legislation that ends a status quo that no one can or is
defending and which has gone on far too long.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Holt follows:]
Prepared Statement of Dr. James S. Holt on Behalf of the National
Council of Agricultural Employers
I appreciate the opportunity to present this testimony on S. 1814,
the ``Agricultural Job Opportunity Benefits and Security Act of 1999''
on behalf of the National Council of Agricultural Employers.
The National Council of Agricultural Employers (NCAE) is a
Washington, D.C. based national association representing growers and
agricultural organizations on agricultural labor and employment issues.
NCAE's membership includes agricultural employers in all fifty states
who employ approximately 75 percent of the nation's hired farm labor.
Its members are growers, farm cooperatives, packers, processors and
agricultural associations. NCAE was actively involved in the
legislative process that resulted in the enactment of the Immigration
Reform and Control Act (IRCA) of 1986, and for the past five years has
been actively advocating for legislation to address the current
shortage of qualified legal labor for U.S. agriculture and the problems
faced by the illegal alien workers upon whom the U.S. agricultural
industry now heavily depends. NCAE's representation of agricultural
employers and its long history of involvement with national immigration
policy for farmworkers and legal alien worker programs gives it the
background and experience to provide meaningful comments and insights
into the current U.S. farm labor system, the problems with the current
H-2A program, and how S. 1814 will affect agricultural employers and
farm workers.
My name is James S. Holt. I am Senior Economist with the management
labor law firm of McGuiness, Norris & Williams and the Employment
Policy Foundation in Washington D.C. I serve as a consultant on labor
and immigration matters to the NCAE. I am an agricultural economist,
and have spent my entire professional career of more than 35 years
dealing with labor, human resource and immigration issues, primarily
with respect to agriculture. I served 16 years on the agricultural
economics faculty of The Pennsylvania State University, and for the
past 20 years have been a consultant in Washington D.C. I serve as the
technical consultant to most of the current users of the H-2A program,
and to employers and associations who are attempting to access the
program. I was the principal H-2 technical consultant to the H-2A
employer community during congressional consideration of the
Immigration Reform and Control Act of 1986, and I have played a similar
role for the NCAE for the nearly 5 years that Congress has again been
considering legislation to deal with the shortage of legal farm labor.
The NCAE supports S. 1814 and urgently requests that the Congress
pass this legislation this year. Senators Gordon Smith and Bob Graham,
with the assistance of Senators Larry Craig, Max Cleland and others
have crafted a carefully balanced bill that provides what the NCAE
believes will be a workable temporary alien worker program that will
provide labor to responsible, law abiding agricultural employers under
terms and conditions that will permit U.S. agriculture to be
competitive in the global market place, while protecting access to U.S.
agricultural jobs under fair terms and conditions of employment for all
legal U.S. workers who want to work in agriculture and for the alien
workers who are needed to supplement the domestic work force.
The creation of balanced, workable legislation has been no mean
feat, and the NCAE congratulates the bill's authors and sponsors for
accomplishing a difficult task. This bill is certainly not the
agricultural employers' dream bill. It is certainly not the farm
workers' dream bill. It is a carefully crafted set of compromises that
has resulted from literally thousands of hours of meetings,
consultations, legislative hearings and congressional debates over a
period of more than 5 years. It has gone through myriad redrafts. The
bill has even changed substantially from that which was passed by an
overwhelming bipartisan vote by the Senate in 1998. The changes made
since then have been a further attempt to address legitimate issues and
problems raised by critics of the bill. In few, if any, pieces of
legislation presented to this body have the authors made the extensive
and time consuming efforts made by the authors of S. 1814 to reach out
to all affected constituencies and to create a balanced bill that
nevertheless effectively addresses the problem at hand.
This bill, still has its critics, and I am sure you will hear some
of them here today. Some people believe that no foreign workers should
be permitted to work in the United States, and oppose any legislation
that provides for that objective. Some espouse this view directly, and
some do so indirectly by advocating for conditions on the admission of
foreign workers that assure that they can never be used. We believe
that any objective look at the history of the U.S. economy and labor
force renders the closed-border view absurd. It is frequently noted
that the United States is a nation of immigrants, and remains so to
this day. The United States has had provision for the admission of
foreign workers, including farm workers, as long as it has had an
immigration law. Every major U.S. industry was built on foreign labor,
and most, spanning the gamut from agriculture to high tech, still
sustain themselves on foreign workers.
On the other hand, some people, including some agricultural
employers, argue for what, as a practical matter, would be uncontrolled
admission of foreign workers with no labor standards. The NCAE believes
this would be wrong too. It would, in effect, make the U.S.
farmworkers, who, while declining in numbers, are still with us,
competedirectly with foreign labor standards. We acknowledge that any
program for the admission and employment of foreign workers must
include procedures that assure that U.S. workers who want agricultural
work have meaningful access to such employment in preference to foreign
workers, and that wages and other conditions of employment must be
protected from unfair competition. The five year struggle to achieve
this objective, while still having a program that meets the
practicalities of farming and that provide workers on a timely basis,
is the story of S. 1814. While the NCAE believes the authors have done
a yeoman job of achieving a workable yet balanced bill, we don't
believe anyone is yet claiming perfection. As the legislative process
proceeds, additional reasonable and useful modifications may be
suggested, even by agricultural employers. But we strongly believe that
the time has come to finalize the debate and to enact legislation that
ends a status quo that no one can defend or is defending, and which has
gone on far too long.
the current status of agricultural labor in the united states
While the United States agricultural industry is overwhelmingly an
industry of family farms and small businesses, it is also heavily
dependent on hired labor. Labor is an essential input in farming, and
essentially all commercial farms rely to a greater or lesser degree on
hiring labor to perform certain essential tasks. The 1997 Census of
Agriculture reported more than 650 thousand farms hiring labor
directly, and reported 3.4 million hires by farmers. More than 225
thousand farms also hired contract labor. Total expenditures for hired
and contract labor in 1997 were $17.8 billion. This was 12 percent of
total farm production expenses, or $1 of every $8 spent by farmers.
Farmers spent more for hired labor in 1997 than they spent for seed,
fertilizer, agricultural chemicals, petroleum products, interest or
property taxes. In fact, after purchases for livestock and feed, hired
labor accounted for greater farm production expenses than any other
category of expenses reported in the Census of Agriculture. In the
labor intensive fruit, vegetable and horticultural sectors, hired labor
costs average 25 to 35 percent of total production costs, and in some
individual commodities the percentage is much higher.
Aliens have always been a significant source of agricultural labor
in the United States. In particular, labor from Mexico has supported
the development of irrigated agriculture in the western states from the
inception of the industry. As the U.S. economy has expanded, generating
millions of new job opportunities, and as domestic farm workers have
been freed from the necessity to migrate by the extension of
unemployment insurance to agricultural workers in 1976, and the federal
government has spent billions of dollars to settle domestic migratory
farm workers out of the migrant stream and train them for permanent
jobs in their home communities, domestic farm workers have moved out of
the hired agricultural work force, especially the migrant work force.
These domestic workers have been replaced by alien workers, largely
from Mexico, Central America and the Caribbean.
As a result, the U.S. agricultural work force has become
increasingly alien and increasingly undocumented. The U.S. Department
of Labor's National Agricultural Worker Survey (NAWS) reported in its
1998-99 survey that 52 percent of seasonal agricultural workers working
in the United States self-identified as not authorized to work in the
United States. This was an increase from 37 percent in the previous
survey only 3 years earlier, and from only about 12 percent a decade
earlier. More than 70 percent of the new seasonal agricultural labor
force entrants in the NAWS survey self identified as not authorized to
work. Most experts agree that the statistics based on self
identification in the NAWS survey are likely very conservative.
Evidence based on INS enforcement actions and verification of Social
Security cards by the Social Security Administration often results in
60 to 80 percent or more of workers' documents being determined to be
invalid or not pertaining to the person who presented them.
In testimony presented to this Subcommittee May 12, 1999, I
detailed the effect that increased INS enforcement activity and the
verification programs of the Social Security Administration are having
on the agricultural industry and work force. Increased border
enforcement, increased interior enforcement and increased SSA
verification activity have led to reductions in labor availability and
destabilization of the agricultural work force. These trends will
continue. The increase in border enforcement personnel authorized by
IRRIRA will not be complete until FY 2002. The SSA plans to continue
lowering its threshold for rejection of employer tax returns due to
name/number mismatches. These factors, coupled with the extraordinarily
high levels of nonagricultural employment, have resulted in increasing
frequency of farm labor shortages and crop losses. The problem is
rapidly reaching crisis proportions, and could easily do so during the
coming growing season.
the need for congressional action to address these problems
Some opponents of an alien agricultural worker program argue that a
program is not needed because employer sanctions cannot be effectively
enforced no matter what the government tries to do. The implication of
this argument is that employers should endure the uncertainties and
potential economic catastrophe of losing a workforce, and workers
should continue to endure the uncertainties of being chased from job to
job on a moment's notice. We find such reasoning unacceptable. It is an
argument for the status quo, which all agree is unacceptable.
Furthermore, it is unacceptable to refuse to address one public policy
problem on the grounds that another accepted and enacted public policy
will be ineffective. We must honestly face the issues that our policy
of immigration control and employer sanctions confronts us with. We
believe that calls for a workable alien agricultural worker program.
a summary of the provisions of s. 1814
We believe S. 1814 offers such a program. S. 1814 addresses both
the short term and long term agricultural labor problem in the United
States. The bill provides (1) for adjustment of status for those
workers who have a significant commitment to the U.S. agricultural
workforce and are currently working in U.S. agriculture illegally, and
(2) for reform of the H-2A temporary alien worker program so that
agricultural employers have a practical and workable way to secure
sufficient legal labor in the future. We cannot emphasize too strongly
that both of these components are absolutely necessary to a program
that will address this problem now and to the future.
adjustment of status--title i
Title I provides a process whereby persons currently working in
agriculture in the United States who have made a significant commitment
to the U.S. agricultural work force are provided the opportunity to
undertake a process that will enable them to continue to work legally
in agriculture in the United States, and, if they meet certain
conditions, become legal permanent residents. This ``Adjustment of
Status'' provision is essential to deal with the current reality that a
very substantial portion of the United States hired farm work force
consists of persons who are not legally entitled to work in the United
States and who are working with fraudulent documents. The U.S.
Department of Labor's recently published survey of the 1997-98 seasonal
agricultural work force reports that 52 percent of seasonal
agricultural workers in the United States self-identified in this
government-sponsored survey that they were not legally entitled to work
in the United States. Anecdotal evidence based on INS audits of I-9
forms and Social Security Administration (SSA) comparison of employers'
payroll reports and SSA records suggest that the actual percentage of
seasonal agricultral workers who are working with fraudulent identities
may be closer to 70 percent or higher in many cases.
S. 1814 provides that farm workers who can demonstrate with
employment records that they have worked in agriculture a minimum of
150 work days, or 880 work hours, whichever is less, during the year
preceding introduction of the legislation, can adjust to temporary
resident status and undertake a process to become permanent resident
aliens. These temporary resident aliens would be permitted to work in
agricultural employment in the United States for up to 10 months in
each of 5 of the 7 years following their application for temporary
resience. They would be required to remain outside the United States
for a minimum of 2 months a year. An exception to the 10 month maximum
stay is provided for temporary residents with a U.S. born child, who
would be permitted to remain in the United States year round.
Persons granted temporary residence under this program would only
be permitted to work in agricultural employment, but could do so for
any employer anywhere in the United States. They would be protected by
all U.S. labor laws on the same basis as domestic farmworkers. No
special obligations would attach to employing them, except that their
employers would be required to provide records of their employment both
to the workers and to the government. The aliens would be required to
enter the United States legally, and report their departure. They would
be provided with special counterfeit resistant identification that
would be used to record entry and exit, and would provide evidence of
employment authorization.
To maintain their status, the adjusted temporary resident alien
farmworkers would be required to work a minimum of 180 workdays, or
1040 work hours, in agricultural employment for 5 of the 7 years
following application for adjustment of status. Aliens with a U.S. born
child who elected to remain in the United States for the full year
would be required to work a minimum of 240 work days in that year.
Temporary resident aliens who met the bill's 5-year agricultural work
requirement, were law abiding, and were otherwise admissible under
current law, would be eligible to apply for permanent resident alien
status. Upon qualifying and applying for permanent resident status, the
aliens would be permitted to remain in the United States year 'round if
they chose, and would be permitted to work in any employment on the
same basis as any other permanent resident alien. Temporary resident
aliens who did not meet the minimum work requirement during the
qualifying period, or who did not apply for permanent resident alien
status within 6 months of meeting the qualifications, would loose their
temporary resident aliens status, and would not be permitted to legally
remain and work in the United States.
Aliens who do not qualify for adjustment to temporary resident
status, or who do not choose to participate in the adjustment program,
would be provided a one-time waiver of the bar on admission to the
United States by reason of illegal presence in the United States
enacted in the Illegal Immigration Reform and Immigrant Responsibility
Act (IRRIRA) to become an H-2A worker. However, if subsequent to this
one-time waiver the alien again accumulated sufficient illegal presence
in the United States to be barred from admission under IRRIRA, the
alien would not be admissible during the period of debarment. Thus, all
aliens currently or previously employed illegally in agriculture in the
United States would have one opportunity to begin engaging in such
employment legally, either through the adjustment of status program in
S. 1814 or as an H-2A worker.
NCAE believes that provision for adjustment of status for
fraudulently documented aliens with a substantial commitment to the
U.S. agricultural industry, and a one-time waiver of the bar on
immigration benefits for persons who have been illegally present in the
United States, are absolutely essential elements of a workable and
humane solution to the current agricultural labor problem in the United
States. Without these provisions, a substantial portion of the current
agricultural work force would be disenfranchised and unable to continue
working in agriculture. Employers would be forced to seek a new and
inexperienced alien work force while the experienced former workers
would be unemployable. Such an outcome would make no sense at all;
either for workers or employers. Adjustment of status is also necessary
because some key workers and/or their jobs would not be eligible for
the H-2A program, either in its current form or as reformed by S. 1814
retains the requirement of the current H-2A program that jobs be
temporary or seasonal with a maximum duration of 12 months.
It is worth noting that even now, the INS rarely removes illegal
workers when they conduct an I-9 audit and identify workers with
fraudulent documents. The INS merely requires the employer to dismiss
the workers. The result is that workers whom the employer knows and has
trained are sent down the road to work for a competing employer. This
is a system that makes absolutely no sense. No one proposes, nor would
the Nation tolerate, an attempt to round up and remove the millions of
illegal aliens presently working in the United States. The only logical
thing to do is to provide them with an opportunity to earn legal
status, while putting in place a program that will prevent recurrence
of the same problem in the future.
We estimate based on a variety of government data sources that the
number of non-casual workers in the U.S. hired farm work force (person
who do 25 days or more of hired farm work per year) is about 1.6
million persons. Of that number, about half work 150 days or more per
year in hired farm work. The most recent U.S. Department of Labor
surveys report that about half of seasonal farmworkers admit they are
not legally entitled to work in the United States. While we believe
that the actual number of farmworkers who are not legally entitled to
work is probably larger than those who admit this in a government-
sponsored survey, not all aliens who are eligible will avail themselves
of the adjustment program. Assuming about half of those persons working
150 days or more will apply, we estimate that the number of workers who
will adjust under the provisions of S. 1814 will be about 400,000.
reform of the h-2a temporary alien worker program--titles ii and iii
S. 1814 addressed both of the current obstacles to the use of the
H-2A temporary alien worker program. It reforms and streamlines the
administrative procedures for gaining access to the H-2A program, and
it rationalizes the terms and conditions for employment of H-2A
workers.
the agricultural worker registries
S. 1814 replaces the archaic, labor intensive and time consuming
labor certification process currently used to determine the
availability of U.S. workers with a computer-based agricultural worker
registry administered by the Secretary of Labor. Workers legally
entitled to work in the United States who are interested in undertaking
seasonal agricultural work could register with the registry. They would
indicate the kinds of agricultural work experience they had and the
kinds of jobs they were interested in as well as the geographic areas
they were willing to consider, the time of year they wanted work and
any other specific requirements. The Secretary of Labor would determine
that the applicant was eligible to work in the United States and put
the worker's information in a computerized data bank. Employers seeking
seasonal agricultural workers would list the specifications of their
jobs with the registry. All agricultural employers would be entitled to
list their job opportunities with the registry. However, employers
seeking permission to employ H-2A aliens if sufficient U.S. workers
could not be found would be required to list their jobs with the
registry, and the jobs would be required to meet the specific terms and
conditions of employment required for H-2A occupations by S. 1814.
When an employer's job was accepted by the registry, the data bank
would be searched to identify registered workers who meet the
specifications of the job. The registry would contact registered
workers who met the specifications of the job and inform the registrant
of the specific job opportunity. The registrant would, of course, be
free to accept or decline the job opportunity. The employer would be
provided with the names, social security numbers and contact
information of the workers who accepted the employer's job opportunity,
and the workers would be provided with the information about when and
where to report for the job.
If an employer seeking workers from the registry indicates on the
application that the employer desires to employ H-2A aliens in job
opportunities that could not be filled with U.S. workers, and the
employer's job opportunities meet the terms of the H-2A program
required by S. 1814, then if sufficient qualified workers can not be
found on the registry who accept the employer's job offer, the registry
will issue a ``shortage report'' which authorizes the employer to
employ up to the number of H-2A aliens for which sufficient U.S.
workers could not be found. Based on the shortage report, the employer
could either seek admission of H-2A workers from outside the United
States, or employ H-2A workers already in the United States who had
completed their work contracts and were eligible to undertake
additional employment. H-2A aliens would be limited to a maximum of 10
months of employment in the United States in any 12 month period.
The registry mechanism offers significant improvements over the
current labor certification system. One of the most important of these
is timeliness. Currently, employers seeking H-2A workers are required
to file a labor certification application a minimum of 45 days in
advance of the date workers are needed. After the application is
reviewed and approved a cumbersome process of sending job orders
containing the employer's job offer to job service offices throughout
the state, and then to other states, is set in motion. The employer is
also required to place lengthy and complex employment advertisements
that look more like legal notices than help wanted ads, and often
appear a month or more before the actual job opportunity is available.
As a result, typically neither the circulation of job orders nor the
advertising produces many, if any, qualified applicants. The Labor
Department is currently required by statute to issue the labor
certification 30 days in advance of the date workers are needed, but
this rarely occurs. Even when certification was required only 20 days
before the date of need, a GAO study showed that the DOL was late
issuing certifications at least 40 percent of the time.
The registry mechanism is based on searching a computerized data
bank of workers who have already indicate their interest in
agricultural employment. S. 1814 requires the Secretary of Labor to
advertise the availability of the registry widely to prospective
agricultural workers to maximize the number of registrants. Employers
are required to list their job opportunities with the registry only 28
days before the date workers are needed. The shortage report must be
issued a minimum of 7 days before the workers are needed; and is
transmitted directly to the consulate where the employer's workers will
apply for their visas if the employer is seeking newly admitted aliens.
S. 1814 also provides for emergency applications after the 28-day
application deadline in cases of unforeseen need, and authority for the
admission of aliens if the DOL fails to act on an application within
the statutory time frames.
The registry also assures that the workers referred to the employer
are, in fact, legally entitled to work in the United States. One of the
ironies of the current H-2A program is that employers have no assurance
that the ``U.S.'' workers referred by the Department of Labor are
legally entitled to work in the United States, and experience has shown
that a high proportion of them are fraudulently documented. Thus the
current program provides no assurance of legal workers even after the
employer has met all of the H-2A program requirements. Since the
employment eligibility of all workers referredthrough the registry
would be assured, the employer is guaranteed a legal work force by
using the registry.
terms and conditions for the employment of h-2a aliens
S. 1814 requires terms and conditions of employment that
substantially exceed those required of non-H-2A employers and
substantially exceed the terms and conditions of employment required by
all other alien employment programs, whether for temporary or permanent
employment. These terms and conditions of employment also substantially
exceed those actually provided to most domestic and alien farmworkers
at the present time. Furthermore, the required terms and conditions of
employment apply to all workers in the occupation for which the
employer applies to employ H-2A aliens, and apply even if all the
employers' job opportunities are filled with U.S. workers. Thus, if
improvements for farmworkers generally, not just for H-2A farmworkers.
To quality to employ H-2A workers, S. 1814 requires that the
employer offer the higher of the prevailing wage for the occupation and
area of intended employment, or the applicable federal, state or local
statutory minimum wage, in any occupation for which H-2A workers are
sought. This is the same wage standard used in the H-1B and H-2B
programs as well as for employment-based permanent immigrants. It is
also the wage standard used in the Davis-Bacon Act and the Service
contract Act. S. 1814 also includes a provision that goes beyond the
prevailing wage standards in other legislation, and assures that
prevailing wages do not stagnate. The bill provides that if the
prevailing wage in an agricultural occupation is below the average wage
for all field and livestock workers in the state or groups of states,
the wage offered must be at least 5 percent above the prevailing wage,
or such lesser amount as would make the wage equal to the average field
and livestock worker wage rate for the state or group of states.
Critics of the H-2A program are fond of dismissing agricultural
work as minimum wage work, though they almost never cite actual wage
rates. That is because agricultural work is not minimum wage work. The
average hourly cash wages of non-supervisory field and livestock
workers in 1999 were $7.22 per hour, and for all hired farm workers
were $7.77 per hour. This is higher than the wages for many unskilled
and low skill occupations in the same labor markets. Critics also
charge that agricultural wages have declined in recent years in real
terms. This is also a very misleading criticism. The fact is that
agricultural wages have risen more rapidly than non-agricultural wages.
Using the current CPI wage deflators, now widely conceded by economists
to overstate inflation, all wages have declined in real terms in recent
years. However, agricultural wages have risen more in dollar terms, and
declined less in real terms, than non-agricultural wages.
Critics of S. 1814 also claim that the bill would result in a
reduction in wages. This is patently untrue. If the prevailing wage in
any given year becomes the minimum wage for the next year, wages cannot
possibly decline, and will always rise. Furthermore, since the
prevailing wage is defined in S. 1814 as the 51st percentile of wages
in the occupation in the area of intended employment, this means that
wages at the bottom end of the wage distribution will always be above
the previous year's prevailing wage for those occupations, and the
average wage will always rise. To the extent that there is a legitimate
concern about this wage standard, it is that it is inflationary, not
that it would result in wage declines. While agricultural employers are
concerned about the potentially inflationary impact of S. 1814's wage
standard, the NCAE is willing to accept this wage standard if
employer's can be assured an adequate supply of legal labor at a total
employment cost that is acceptable. We think the provisions of S. 1814,
taken as a whole, meet this criterion.
Current law merely provides that the wages and working conditions
offered by applicants for H-2A workers may not ``adversely affect''
United States workers similarly employed. The current ``adverse effect
wage rate'' (AEWR) requirements of the H-2A program are a regulatory
construct of the Department of Labor, not a statutory requirement. As
with so many of the existing H-2A regulations, the adverse effect wage
rate regulations prevent workers from obtaining real wage protections
rather than providing such protections.
The current AEWR regulation set the average wage for all
agricultural occupations in a state or region as the minimum wage for
all H-2A employment. If the prevailing wage in the occupation and area
of employment is higher than this average wage, then the prevailing
wage in the occupation and area of employment becomes the minimum.
Thus, in occupations where the prevailing wage in the occupation is
above the average wage for all occupations (roughly half of all
agricultural employment), the current AEWR has no effect at all, and
the prevailing wage is the minimum wage for H-2A employment. But in
occupations in which the prevailing wage is below the average wage for
all agricultural workers (again, by definition, roughly half of all
agricultural employment), the current AEWR sets a wage standard that
can make use of the H-2A program uneconomical and preclude employers
from using it in that occupation.
That is what has happened in the current H-2A program. The AEWR
regulations offer purely cosmetic ``protection'', because where the
AEWR sets a wage standard appreciable above the prevailing competitive
wage employers cannot afford to use the program. Currently there are
between 30 and 40 thousand H-2A certified job opportunities, yet the
U.S. Census of Agriculture shows that there are well over 3 million
``hires'' by agricultural employers in the United States each year.
About 2.5 million people are employed at some time during the year in
hired agricultural employment. The more than 98 percent of agricultural
workers working outside the H-2A program are protected only by the
statutory minimum wage. Virtually all of the miniscule amount of
agricultural employment current in the H-2A program and covered by the
AEWR standard is in occupations where the prevailing wage is near, at,
or above the average wage, and therefore the AEWR has no effect on such
employment. By creating a program that, in its totality, creates an
administrative structure and terms and conditions of employment that
employers can actually use, S. 1814 creates wage and other protections
that are real rather than cosmetic, and that will actually protect
workers.
The housing provisions of S. 1814 also represent a significant
reform of the current H-2A regulations that have been mischaracterized
by critics of the bill. S. 1814 requires that workers recruited from
outside the local area be provided with housing or, under controlled,
circumstances, a monetary housing allowance. If the employer provides
housing, it must meet applicable federal farmworker labor camp
standards or, if it is public accommodation housing such as a hotel,
motel or apartment, the applicable standards for such public
accommodation housing. In order for the monetary housing allowance to
be an option (after a 3-year initial transition period), the state must
certify that there is sufficient in-season housing available in the
area of intended employment. The amount of the monetary allowance is
set on a state-by-state basis based on the allowances for non-
metropolitan counties in the Department of Housing and Urban
Development's section 8 housing voucher program.
At present most farmworkers are not provided with housing by their
employers and must find their own housing. The requirement to provide
housing imposes substantial costs and management burdens on employers.
It also takes time to obtain the necessary approvals, financing and
undertake the construction. Although the public seems to favor
employers providing housing for their migrant workers, when specific
projects are proposed the ``not-in-my-backyard'' scenario is frequently
triggered. Agricultural employers are reluctant to confront the
formidable expenses and other obstacles to employer-provided housing
without reasonable assurance that there is an adequate source of legal
workers available through a reformed H-2A program. In an attempt to end
this ``chicken-egg'' standoff, S. 1814 provides a 3-year transition
period during which employers can provide a monetary housing allowance
in lieu of housing in H-2A occupations. We believe this is a reasonable
provision that will ultimately result in more and better housing for
farmworkers.
Critics of S. 1814 have claimed that the bill eliminates the
requirement to provide housing. The bill, of course, does no such
thing. What S. 1814 does is provide the flexibility to utilize housing
in the community when an independent determination is made that
sufficient housing exists in the community. Many farmworkers prefer to
live in the community rather than in employer-provided housing. Under
other circumstances farmworker advocates claim that they prefer that
option too. The current H-2A requirement that the employer provide
housing for each certified job opportunity, whether the worker opts to
live in it or not, leads to the absurd outcome that some workers, at
their own expense, live in the community while the employer-provided
housing sits vacant to satisfy a regulatory requirement.
S. 1814 requires that employers reimburse the in-bound
transportation of migrant workers who complete at least half of the
period of employment of the job opportunity, and provide or pay for
return transportation of workers who complete the period of employment.
This requirement applies to all trips of more than 100 miles. They must
also be reimbursed for subsistence costs enroute. This requirement is
similar to the current H-2A regulations.
Job opportunities for which an employer applies to employ H-2A
workers must also be covered by workers' compensation.
S. 1814 also provides other important protections for U.S. and
alien workers employed in occupations approved for H-2A employment. No
qualified U.S. worker may be refused employment for other than a lawful
job-related reason, and no worker may be terminated prior to the end of
the job except for lawful job-related reason. An H-2A alien may not be
employed in a job opportunity which is vacant because the previous
occupant of the job is on strike or involved in a labor dispute.
Employers must comply with all employment-related laws, and the
provisions of the federal Migrant and Seasonal Agricultural Worker
Protection Act (MSPA) are extended to H-2A aliens who are provided only
limited coverage under current law. To effectuate the preference for
U.S. workers, employers must advertise the job opportunities available
through the registry and must inform workers and prospective workers of
the availability of the registry. The employer must also make
reasonable efforts to contact workers employed in the occupation in the
previous season and make them aware of the availability of the job
opportunities. The bill also provides for enhanced worker protections
and labor standards enforcement, including back wages, civil money
penalties, and program disqualification for repeated violators.
Finally, both the registry and the H-2A admission program are funded by
employer-paid user fees.
conclusion
S. 1814 will assure that domestic farmworkers will have first
access to all agricultural jobs before they are filled by legal alien
labor. It will assure that this access is real, by assuring that there
is widespread and easy assess to information about the available jobs.
It will protect the wages in jobs approved for the employment of aliens
by making the prevailing wage the minimum wage. It will assure housing
or a housing allowance and transportation benefits to migrant
farmworkers who have no such assurance at present. In short, it will
raise the standards for domestic farmworkers in all H-2A-approved
occupations. Moreover these benefits will be real benefits--not the
cosmetic benefit offered by the current program--because employers will
be able to use the H-2A program.
S. 1814 will also provide benefits for currently illegal
farmworkers, the majority of the seasonal agricultural work force who
do not work in H-2A occupations. It will free them from the fear,
indignity and economic costs of apprehension and removal, or of being
thrown out of work on a moment's notice. It will also free them from
dependence on ``coyotes'' and the costs and physical dangers of illegal
entry.
For domestic workers in the upstream and downstream jobs that are
created and sustained by U.S. agricultural production, it will assure
the continuation and growth in these employment opportunities.
For agricultural employers, it will assure them an adequate, legal
work force if they are willing and able to meet the requirements of the
program. It will give employers the certainty that will enable them to
plan their businesses and make investments more effectively.
We strongly urge this subcommittee and the full Judiciary Committee
to quickly approve S. 1814 and send it to the full Senate.
Thank you.
Senator Abraham. Mr. Holt, thank you very much.
Mr. Camacho, welcome.
STATEMENT OF MARCOS CAMACHO
Mr. Camacho. Thank you. I also have a lengthy statement we
would like to submit.
Senator Abraham. It will be entered into the record.
Mr. Camacho. I, first, would like to thank you for letting
us appear before the committee, and I also would like to thank
Senator Smith and Senator Graham. And I would also like to
voice that our organization is an organization that is very
interested in this issue, and we are willing to meet with you
and try to look at possible ways of resolving this issue.
I know it is a very critical issue, I know it is a hard
issue. But I would like to point to the fact that I think the
issue here is not whether there is a shortage of workers in
this country. The issue here is how do we eliminate the poverty
that exists among these farmworkers. That is the United
Farmworkers' goal: how do we eliminate this poverty that exists
with these workers? If we focus on that issue, I think that is
how we begin to structure some type of legislation that deals
with it.
We have examined the bill, and again we would oppose the
bill, and we do not feel the bill addresses those issues in the
sense. And specifically, in terms of one of the things that the
bill does, it takes out the what we refer to as the prevailing
wage. And to remove that section of the bill, what it, in fact,
would mean would be that the prevailing wage would become the
existing wage in those areas, where the wage is already
depressed by the fact that undocumented workers have set that
wage. And you are also creating it so that that prevailing wage
will be frozen forever. So you are not improving anything. In
fact, workers will be losing money by removing that protection
that exists presently in the H-2A bill.
The bill also takes away a lot of the housing protections.
It provides for a voucher. For example, in Washington, we have
farmworkers that come in for the apple harvest, and they
literally live next to a river in cardboard huts out there
because there is no housing. Offering $50 to these workers to
find housing is no solution. All it does is simply take the
responsibility away from the employer for trying to solve the
issue. And I think we have to deal with those type of issues up
front and not simply try to figure out how do we take
responsibility from one party and give it to somebody else. I
mean, these workers do need housing. How do we go in there and
provide housing for them? I think some of the other panelists
have, especially Ms. Munoz, talked about some of the things
that the bill takes away.
I would like to focus my talk on what we think should be
some of the things that this panel and this committee should be
looking at. We strongly oppose any attempt to change the H-2A
program. And we think, in fact, that there are certain things
that should be done to improve it. But most importantly, what
we believe is that a regular legal immigration is better than
uregulated illegal immigration. And for that reason, we support
a generous farmworker adjustment program similar to the one
that was enacted in Congress in 1986.
And we also support immigration reform this year that would
address the following priorities: We are asking that
Salvadorans, Guatemalans, Hondurans, Haitians to apply for
adjustment of status in the same terms as already allowed for
Cubans and the Nicaraguans in 1997, to allow adjustment of
status for all persons of good character who have resided in
the United States since 1994; to restore the provision
permitting those who are out of status or otherwise ineligible
for permanent residence, to be able to adjust the status in the
United States; reunite families by establishing a program that
provides additional visas for family members of citizens and
permanent residents so to reduce the unacceptable backlogs and
help stabilize workforce. These measures, although they are not
farmworker-specific, would allow farmworkers to obtain legal
residency.
As was alluded to earlier, we need the strength and the
protections that are presently found in the H-2A Program to
protect both H-2A workers and U.S. workers. We think, first,
there should not be an incentive to employers to hire H-2A
workers simply because they are cheaper. Presently, employers
do not pay FICA or FUTA taxes on H-2A employees, and therefore
U.S. workers have an automatic disadvantage because they are at
a 13.8-percent less cost than H-2A workers. We think this
should be eliminated.
We also think that H-2A workers should be given complete
protection under all U.S. laws. And that includes protection
under the Migrant Seasonal Agricultural Protection Act, which
they are presently excluded from.
Thirdly, we think that there should be incentives for
employers to improve working conditions and wages. It has been
the UFW's experience that where farmworkers have been able to
organize, there has developed a stable, structured, productive
workforce, and we see this as a long-term solution to the
agricultural labor problems in the United States. We want to
break the cycle of an unstable labor market, which constantly
needs to be replenished with new foreign workers, which should
encourage the emergence of a stable labor market through
organizing and collective bargaining.
The UFW has been actively involved in trying to develop
such a model. In December 1994, a company by the name of Bear
Creek, their workers voted for the UFW to be their collective
bargaining representative. This company, instead of taking the
traditional anti-union approach to us, decided that they would
honor the election victory and sit down and bargain with us for
a collective bargaining agreement. We got a collective
bargaining agreement with the company and began to form a
partnership with the company where some of the issues that the
company started looking at, along with workers and the union,
were the growth and difficulties inherent in the agricultural
industry, the physical demands that seasonal work places on
farmworkers, the virtual absence of standard employee benefits
for farmworkers, the overall reliance of inexpensive labor
rather than development of a skilled workforce.
And working together with the company and trying to resolve
these issues, for the first time, in 1998, after the union had
begun this partnership, the company recorded a profit, where,
in prior years, prior to the union coming in, they had been
simply breaking even. But most importantly, we were able in
this partnership to do, we were able to reduce the hourly labor
costs in terms of percentage to total overall spending by 3
percent in 1996 and by 2 percent in 1998, while at the same
time we were able to increase the wages and benefits of
farmworkers.
So there is another way to do it. It is not simply
stripping away at worker rights and figuring out how we reduce
that wage lower, and lower and lower. We think that there are
other models out there that can be beneficial to all of the
parties.
I would like to thank the committee for letting me share my
views with you.
[The prepared statement of Mr. Camacho follows:]
Prepared Statement of Marcos Camacho on Behalf of the United Farm
Workers of America, AFL-CIO
My name is Marcos Camacho. I am General Counsel of the United Farm
Workers of America, AFL-CIO. Cesar Chavez founded the United Farm
Workers of America, AFL-CIO in 1962. Since its inception the UFW has
been strongly involved in the immigration policies that affect farm
workers in this country. The UFW was actively involved in the
legislative process that resulted in the enactment of the Immigration
Reform and Control Act of 1986 (IRCA). The UFW represents and organizes
farm workers in several states, including California, Washington,
Arizona, Texas, and Florida. The Farm Workers that our organization
works with include workers that work in wine grapes, table grapes,
raisin grapes, citrus, row crops such as broccoli, lettuce, celery,
tomato and other vegetables, mushroom plants, nurseries, tree fruit,
and roses. The UFW representation of and day-to-day work with farm
workers in various states and in various crops for the last 38 years
gives it a unique background and experience to provide meaningful
comments and insight into the issues concerning immigration policy and
how it affects farm workers in this country.
Mr. Chairman, thank you for the opportunity to appear before the
Subcommittee today.
The UFW has examined Senate Bill 1814 and concluded that if
enacted, it will have a devastating impact on the two million farm
workers who work in America's fields and groves. This legislation would
allow employers to bring in hundreds of thousands of foreign workers as
non-immigrant guestworkers tied to agricultural jobs under a system
that would guarantee their economic poverty and political
powerlessness. Furthermore, neither Senate Bill 1814 nor the current H-
2A program address the underlying problems which have created an
unstable agricultural labor market.
the real problem is farm worker poverty not labor shortages
What are the economic realities facing America's farm workers at
the beginning of the 21st Century?
The most recent and reliable information we have from the National
Agricultural Workers Survey shows that the situation of farm workers
has continued to decline: wages have stagnated, annual earnings remain
beneath the poverty level, and farm workers face chronic unemployment.
In 1997-98, most farm workers held only one farm job per year and
were employed in agriculture for less than half a year.
Even in July, when demand for farm labor peaks in many parts of the
country, just over half of the total farm workforce held agricultural
jobs.
Since 1990-1992, the average work year in agriculture has decreased
from 26 to 24 weeks while the number of weeks in nonagricultural
employment has fallen from eight to five. Another month of unemployment
has been added to the farm worker misery index.
At the same time despite a strong economy and record prosperity,
farm worker wages have lost ground relative to those of workers in the
private, nonfarm sector. Adjusted for inflation, the average real
hourly wage of farm workers has dropped from $6.89 to $6.18.
Consequently, farm workers have lost 11 percent of their purchasing
power over the last decade.
The result is that farm workers are increasingly disadvantaged.
Today fewer farm workers own a vehicle. More workers now rely on
contractors and raiteros for transportation to work often in unsafe and
uninsured vehicles. Another large change is in home ownership. In 1994-
95, one third of all farm workers owned or were buying a home. By 1997-
98, only half as many farm workers were buying their home.
All of these facts--low wages, underemployment, and low annual
wages--point to a national oversupply of labor. It is the continued low
income of farm workers which has destablized the agricultural labor
market by causing farm workers to seek jobs paying higher wages and
offering more hours of work.
This is the economic reality that Agricultural Employers do not
want to discuss in this hearing. For them, the only problem is how to
secure access to another pool of low-wage workers, not what to do about
the desperate plight of the two million farm workers already here.
We believe that the current labor practices in U.S. agriculture are
unsustainable in the long term and, unless fundamentally changed, will
continue the socially destructive economic hardshipsfaced each day by
the farm workers throughout this country while at the same time doing
severe damage to U.S. agriculture's global competitiveness.
Unfortunately, Senate Bill 1814 is not a step forward into the 21st
century, but a step backward to an era of indentured servitude.
why the ufw opposes the graham bill
The Graham bill actually contains two programs of indentured
servitude. First, it holds out a false hope of legalization to the many
farm workers who are working in this country without proper
authorization. Unauthorized workers who could prove that they did at
least 150 days of farm work in the previous year could apply for a new
probationary non-immigrant status. Many farm workers will not be able
to prove that they have met this threshold requirement. Those workers
who do, will have to work 180 days of farm work each year for five of
the next seven years before they can begin to apply for residency and
reunite their families. During this time, they will be non-immigrants
and will have to leave the United States for 65 days each year. In
other words, the unauthorized workers will be converted into
guestworkers without any safeguards for them or the current legal
workforce.
The future work requirements imposed on these workers are likely to
lead to both exploitation and fraud. Workers desperate to satisfy the
five-year work requirement to avoid deportation are unlikely to
complain about workplace violations, risk firing and to an even lesser
extent seek out their right to organize. At the same time, we can
expect that farm labor contractors will develop a lucrative business
selling real and false letters of employment to their workers.
Second, the Graham bill would greatly expand the current H-2A
program which ties the worker to a particular employer by eliminating
many of the protections for workers contained in the current law. It is
no exaggeration to say that the Graham bill offers fewer protections
for workers than the Bracero program. (A copy of the official Bracero
Agreement is attached to my testimony).
Senator Graham and his supporters have repeatedly made the claim
that his bill ensures better wages, housing, and transportation for
domestic workers. This is simply not true. There are no enhanced worker
protections for domestic workers or adjusted workers. Under the Graham
bill, H-2A employers must offer to provide U.S. workers the same
benefits and protections which are to be provided to the H-2A workers.
This has been a longstanding requirement of the current program;
however, very few U.S. workers benefit, because H-2A employers
generally do not employ U.S. workers in the jobs for which they have H-
2A certification. Moreover, contrary to what the Senator has said,
under his legislation all labor protections included in the current
program are not preserved.
Under the current program, before H-2A workers may be employed, the
Secretary of Labor must certify that ``the employment of the alien in
such service or labor will not adversely affect the wages and working
conditions of workers in the United States similarly employed.'' In
order to protect U.S. workers from adverse effect, the Secretary has
promulgated regulations containing the minimum benefit, wage and
working conditions that must be contained in the employer's job office.
These are the labor protections that Agricultural Employers wants
eliminated.
Under the Graham bill, the Secretary of Labor would no longer have
to certify that the use of H-2A workers would not adversely affect U.S.
workers; the Secretary's role is limited to approving the employer's
application. If the employer's application contains the employment
requirements as found at Section 304 of the Graham bill, the Secretary
must approve the application; she has no authority to require that
other labor protections be provided.
Section 304 sets forth employment requirements with respect to
wages, housing, and transportation. In each instance, they provide
workers with less protection than under the current law:
Wages
Under current law, H-2A employers are required to pay their workers
the so-called adverse effect wage rate (``AEWR''). The AEWR is the
annual average hourly wage rate for field and livestock workers in the
state where the H-2A workers are employed. The current AEWR for
California is $7.27 per hour; the AEWR for Florida is $7.25 per hour.
Under the Graham bill, the current AEWR requirement would be
eliminated. H-2A employs would only have to pay the prevailing wage in
a particular area and crop; often this will be a prevailing piece rate
rather than an hourly rate. Where wages have been depressed by the use
of undocumented aliens, this method ``locks in'' the depressed wage
rate forever. Under the Graham bill, a 5% ``premium'' would be added to
the required wage only if the prevailing rate resulted in average
earnings below the average hourly wage for field and livestock workers
in the state.
To better understand what the Graham bill would mean, consider the
raisin growers in Fresno. Today, they would have to pay their workers
at least $7.27 per hour if they wanted to use the H-2A program. The
prevailing piece rate for raisins is 20 cents per tray and many workers
are barely able to earn the minimum wage. Under the Graham bill, all
they would have to do is pay 21 cents per tray, no matter what the
workers were able to earn. Moreover, once the use of H-2A workers
became established in the raisin industry, there would never be any
need to raise wages or make any other improvements in working
conditions.
The Bracero Agreement required that wages to be paid the worker
shall be the same as those paid for similar work to other agricultural
laborers under the same conditions within the same area, in respective
regions of destination.
Housing
Under current law, H-2A employers are required to provide housing
``without charge to the worker'' to those workers who are not
reasonably able to return to their residence within the same day. If
provided by the employer, the housing must comply fully with federal
standards. Employers cannot charge workers for security deposits.
Under the Graham bill, employers could substitute a housing voucher
($40-$50 per week) for free housing whether or not housing was actually
available to workers in the area of the job. Growers who failed to
provide their workers with the required housing would only be liable
for the cost of the housing. For example, if a worker died from
exposure from sleeping under a bridge, under the Graham bill, his
family could sue for $50. The housing would no longer have to meet
federal standards. Employers would be able to charge workers for
security deposits, maintenance, and utilities.
The Bracero Agreement provided that the Mexican workers will be
furnished without cost to them with hygienic lodgings, adequate to the
physical conditions of the region of a type used by a common laborer of
the region and the medical and sanitary services enjoyed also without
cost to them will be identical with those furnished to other
agricultural workers in the regions where they may lend their services.
Transportation
Current law requires employers to advance transportation expenses
to U.S. workers if it is a prevailing practice among area employers to
do so, or if transportation is being provided or advanced to the H-2A
workers. After the worker has completed 50% of the contract period, the
employer is required to reimburse transportation from ``the place from
which the worker has come to work for the employer to the place of
employment''. DOL has taken the position that workers must be
reimbursed for travel from the actual place where the worker was
recruited, not a location that the employer ``deems'' to be the place
of recruitment.
Under the Graham bill, there is no obligation for the employer ever
to advance transportation. Thus, an H-2A employer will be free to
provide transportation to H-2A workers without having to offer the same
benefit to U.S. workers. Reimbursement of transportation is limited to
distances greater than 100 miles and is only available to individuals
living in grower provided housing or housing provided through vouchers.
The place where the alien is issued the H-2A visa is deemed to be the
alien's place of residence.
Under the Graham bill, a worker can be recruited in his home in
southern Mexico, told to report to the U.S. consulate in Calexico to be
issued his visa and then travel to the Imperial Valley, a journey of
hundreds of miles and not receive any transportation reimbursement (the
Imperial Valley is less than 100 miles from Calexico). Moreover, there
is nothing in the Graham bill that prevents the employer from actually
charging the worker for this transportation.
The Bracero Agreement required that transportation and subsistence
expenses for the worker, and his family, if such is the case, and all
other expenses which originate from point of origin to border points
and compliance of immigration requirements, or for any other similar
concept, shall be paid exclusively by the employer or the contractual
parties.
While the Graham bill weakens existing wage, housing, and
transportation protections, it totally eliminates many other worker
protections found in the DOL regulations. These protections exist
because under current law, the Secretary of Labor must certify that the
employment of the H-2A workers will not adversely affect the wages and
working conditions of U.S. workers similarly employed, Among the
protections that would be eliminated are the following:
No preferential treatment of H-2A workers
Under current law, the employer's job offer to U.S workers must
offer the U.S. workers no less than the same benefits, wages and
working conditions which the employer offers H-2A workers. Conversely,
no job offer may impose on U.S. workers any restrictions or obligations
which will not be imposed on the employer's H-2A workers.
This critical protection for U.S. workers is nowhere to be found in
the Graham bill.
Guarantee of employment
Current regulations require that the employer guarantee to offer
the worker employment for at least three-fourths of the workdays of the
total periods during which the work contract and all extensions thereof
are in effect.
Under the Graham bill, the three-quarter guarantee is eliminated.
The Bracero Agreement provided that for such time as they are
unemployed under a period equal to 75% of the period (exclusive of
Sundays) for which the workers have been contracted they shall receive
a subsistence allowance at the rate of $3.00 per day.
Limitations on productivity requirements
Given that an H-2A worker has no choice but to work for the
employer who was issued his visa. H-2A employers are in a position to
speed up production requirements to the limit of human endurance.
Current regulations provide that employers cannot requireminimum
productivity standards higher than those normally required by other
employers for the activity in the area of intended employment, unless
DOL approves a higher minimum.
The Bracero Agreement provided that piece rates shall be so set as
to enable the worker of average ability to earn the prevailing wage.
Provision for contract impossibility
The current regulations provide that an employer may terminate the
worker's contract because a hurricane or other Act of God makes the
workers services unnecessary. However, the employer is required to
either transfer the worker to other comparable employment or return the
worker to his home at the employer's expense and reimburse the worker
for the cost of transportation to the job site.
The Graham bill provides no such protection; the worker bears all
the risk.
Written contract required
Under the current regulations, workers must be provided with a copy
of the work contract, no later than on the day the work commences.
Under the Graham bill, there is no requirement that a worker be
provided with a contract of employment.
The Bracero Agreement provided that contracts will be made between
the employer and the worker under the supervision of the Mexican
Government (contracts were required to be written in Spanish).
In short, the Graham bill offers workers fewer protections than
Mexican workers were given under the 1942 Bracero program.
The Graham bill would also create a new bureaucracy dedicated more
to ``proving'' there is a labor shortage than to actually helping farm
workers find employment. Each state employment service would be
required to create a farm worker ``registry.'' H-2A employers would not
be obligated to hire any U.S. worker who was not registered and would
not be expected to undertake any real efforts to recruit U.S. workers
before turning to the H-2A program. The registry concept has already
been piloted in Senator Graham's own state where it was an abysmal
failure.
What would be the impact of the NCAE-Graham bill on farm workers?
For the one million legal farm workers and their family members,
the Graham bill would push them even deeper into poverty. Currently
able to find work only about 135 days per year, they would now find
themselves in a desperate competition for jobs with hundreds of
thousands of newly legalized farm workers required under the Graham
bill to work at least 180 days per year or face deportation.
Both the current legal workers and the newly legalized workers
would soon face even more competition in the labor market as growers
sought to take advantage of the revised H-2A program. Without the
protections of the current H-2A program, growers would find the
prospect of not having to pay employment taxes on their H-2A workers
irresistible. U.S. workers would face not only competition for jobs but
for scarce housing. Further declines in wages would be inevitable as
one crop after another became dominated by H-2A workers.
For the current H-2A workers, the Graham bill is simply a pay cut
as growers switch from the AEWR to the lower prevailing wage. They will
also lose their transportation reimbursement from their homes to the
border. They will lose their guarantee of employment. Their employers
who provide housing will now be able to charge them for security
deposits, maintenance, and utilities. Their employer may decide not to
provide housing at all, and they will have to try to find someplace to
live in a strange country with only a $40 or $50 voucher. If they are
successful, they will probably have to pay a contractor or raitero $3
to $5 per day to take them to work since the Graham bill eliminates the
current requirement that the employer provide free transportation from
the employee's living quarters and the worksite. Workers may also find
themselves subjected to excessive meal charges and charges for tools
and equipment.
For the currently illegal workforce, many will be unable to
demonstrate that they worked 150 days in the prior year and will
therefore not qualify for the adjustment program. Those that do qualify
will have legal status for a time, but many will never be able to
obtain permanent resident status in the United States. These workers
will remain trapped in the underground economy where they will surely
be joined by new unauthorized workers for there is nothing in the
Graham bill directed at halting the activities of the farm labor
contractors and coyotes who profit from illegal migration.
what should be done
The UFW strongly opposes any attempt to expand the current H-2A
program by reducing the protections for U.S. workers or the H-2A
workers as the Graham bill does. Furthermore, the UFW opposes any
further changes to the H-2A program's current labor certification
process. Replacing the existing certification process with a labor
attestation process would weaken the minimal protections worker
protections found in the current program, and would essentially remove
DOL from having to certify that the employment of the foreign workers
will not adversely affect the wages and working conditions of the
hundreds of thousands of farm workers who are legal residents of the
United States.
Rather than allowing agriculture to revert to a 20th century
``Harvest of Shame'' past, we need to push it toward a sustainable 21st
century future where there is a real partnership between agribusiness
and its workforce.
We believe that regulated legal immigration is better than
unregulated illegal immigration. For that reason, we support a generous
farm worker adjustment program similar to the one enacted by Congress
in 1986. We also support immigration reform this year which would
address the following priorities:
Allow Salvadoreans, Guatemalans, Hondurans and Haitians to apply
for adjustment of status on the same terms as already provided to
Cubans and Nicaraguans in 1997;
Allow adjustment of status to all persons of good character who
have resided in the United States prior to 1994;
Restore the provision permitting those who are out of status but
otherwise eligible for permanent residence to adjust their status in
the United States;
Reunite families by establishing a program to provide additional
visas for family members of citizens and permanent residents so as to
reduce unacceptable backlogs and help stabilize the workforce.
These measures, while not farm worker specific, would allow
thousands of farm workers to obtain legal residency.
We also support new approaches to reducing undocumented immigration
and employer abuse including the enactment of whistleblower protections
for undocumented workers who report violations of workers protection
laws or cooperate with federal agencies during investigations of
employment, labor and discrimination violations. Such workers should be
given protected immigration status and accorded full remedies,
including reinstatement and backpay. Furthermore, undocumented workers
who exercise their rights to organize and bargain collectively should
also be provided protected immigration status.
With respect to the existing H-2A program, we believe that labor
and business should work together to design cooperative mechanisms that
allow law-abiding employers to satisfy legitimate needs for new workers
in a timely manner without compromising the rights of and opportunities
of workers already here. It is critical that immigrant workers should
have full workplace rights in order to protect their own interests as
well as the labor rights of all American workers. The current program
does not meet this standard.
We need to strengthen the protections under the current H-2A
program to better protect both H-2A and U.S. workers. In doing so, we
believe that the Committee needs to focus on three broad principles
which we believe both side of this debate should be able to agree upon.
First, it should not be cheaper to hire an H-2A worker than to hire
a U.S. worker. Currently, employers of H-2A workers are not required to
pay FICA and FUTA taxes on their H-2A employees. This means that an H-
2A employer saves 13.85% by hiring a foreign worker instead of a legal
U.S. resident. Congress needs to remove this economic incentive to
discriminate against U.S. citizens and legal residents. In 1995, the
National Council of Agricultural Employers proposed that H-2A employers
be required to pay an amount comparable to what they pay for FICA and
FUTA taxes on domestic workers into a trust fund to be used to fund the
administrative costs of the program. We think trust fund is a good
idea; however, we propose that the funds be used for the purpose of
improving labor management practices in agriculture by stabilizing the
labor force, improving productivity, and increasing earnings for farm
workers through longer periods of employment.
The second principle is really a corollary of the first principle:
All temporary guestworkers should be afforded the same workplace
protections available to U.S. workers.
Otherwise, unscrupulous employers gain an advantage by employing
foreign workers. Furthermore, we are committed to this principle with
respect to foreign workers from Mexico by the NAFTA Labor Side Accords
in the United States agreed to ``providing migrant workers in a Party's
territory with the same legal protection as the Party's nations in
respect of working conditions.'' The most important federal statutory
protection for farm workers in the United States is the Migrant and
Seasonal Agricultural Worker Protection Act, 29 U.S.C. Sec. 1801 et
seq. (``AWPA''). However, H-2A workers are specifically excluded from
the protections of the Act. They need to be covered by AWPA.
Third, employers must have a continued incentive to improve wages
and working conditions.
In 1993, the National Commission on Agricultural Workers concluded
its report to Congress by noting that--``The response of the United
States to competition from countries that pay even lower wages should
be the development of a more structured and stable domestic labor
market with increasingly productive workers. Industries must modernize
to remain successful in the increasingly competitive international
market place. Agriculture is no exception. * * * To assure its long-
term competitive position, agriculture must improve its labor
management practices.''
In reaching its conclusions,the Commission specifically noted that
farm workers face special problems if they attempt to organize and
bargain collectively in order to improve their working conditions:
``effective organizing is made more difficult by the fact that
farmworkers are essentially powerless, both in objective terms and
relative to the agricultural employer who oppose organizing.'' However,
it has been the UFW's experience that where farm workers have been able
to organize, there has developed the more structured, stable and
productive work force which the Commission recommended as the long-term
solution to the agricultural labor problem in the United States. If we
want to break the cycle of an unstable labor market which constantly
needs to be replenished with new foreign workers, we should encourage
the emergence of a stable labor market through organization and
collective bargaining.
The UFW is actively working on such a model today. On December 17,
1994, Bear Creek workers voted to have the UFW be their collective
bargaining representative. Bear Creek chose to not fight the UFW's
election victory and instead chose to sit down and bargain a contract.
In three months a model contract was signed between the UFW and Bear
Creek. A new partnership was established that was based on six
principles: (1) Commitment by both leadership levels to making the
partnership work. (2) the development of continuous learning and skill
building, (3) the open sharing of technical and financial information,
(4) the joint development of the partnership plan, (5) the continuous
integration of leading-edge technology, and (6) recognizing the
continual need for trust and open communications. The workers, Bear
Creek and the UFW decided that the major issues that the partnership
should address, were (1) the growth of the difficulties inherent in the
agricultural industry, (2) the physical demands and seasonality of the
work, (3) the virtual absence of standard employee benefits, and (4)
over-reliance on inexpensive labor rather than development of a skilled
workforce. With this new partnership Bear Creek in 1998 set record
profits and prior to that had only been breaking even. But most
notable, however is the fact that hourly labor costs, as a percentage
of total overall spending, was reduced by 3% since 1996 and reduced by
2% since 1998, while at the same time wages have been increased and
benefits improved.
It is only through these type of models that we will address the
real issue of poverty that confronts farm workers today and upon which
we can create a stable market that benefits all interested parties.
We thank the Subcommittee for its consideration of our views.
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Senator Abraham. Thank you for being here. We appreciate
the participation of your organization. In that I do have an
amendment on the floor, I am not going to ask a lot of
questions of this panel. I want to just get a couple of quick
ones though.
This issue of whether or not there is a shortage, Ms. Munoz
argues that the wage issues argue that there may not be a
shortage. Mr. Holt, Mr. Wunsch, you certainly would argue
presumably on the other side. If anybody would like to expand
on their earlier remarks, I would like to hear them.
Mr. Camacho, you said that we should not be debating or
that this issue of shortages was not----
Mr. Camacho. Not the real issue.
Senator Abraham. Not the real issue. Does that imply that
you agree that there are shortages or that there are not?
Mr. Camacho. No, I do not think there is a shortage. I
think that the issue is if agriculture employers are willing to
pay wages that are a living wage to farm workers, then you are
going to have a lot of people working in those areas.
What is happening now is that they are not willing to do
that, so like anybody else, workers are finding other jobs that
pay better.
Senator Abraham. Mr. Holt?
Mr. Holt. Mr. Chairman, I think we need to sort of hit over
the head this notion that the wages in agriculture are
stagnated. That statement is based on--well, usually the way it
is articulated is that real wages in agriculture are stagnated,
that they in fact have declined. And that is true as far as it
goes. The fact of the matter is, that real wages in the economy
in general have stagnated, have declined based on the current
CPI wage deflator that the Bureau of Labor Statistics is still
using, but what they and the entire community has pretty much
determined is out of date.
If you look at agricultural wages compared to non-
agricultural wages, they have risen more in money term--
agricultural wages have risen more in money terms and have
declined less in real terms than non-agricultural wages. So,
you know, I think you would have to argue--if you are going to
argue that there is a surplus of labor in agriculture, that
there is an even greater surplus of labor outside of
agriculture, and I think we know that that is not the case.
If you have a labor force in which 52 percent of the world
force self-identifies as being illegal, it seems to me that is
prima facie evidence that there is a shortage of legal workers
in agriculture. Now, we might debate how big that shortage is,
but I do not think we can debate its existence.
Senator Abraham. Ms. Munoz.
Ms. Munoz. I would just refer you to page 2 of my written
statement. There are two studies which are cited which
demonstrate. The hourly wage for agricultural workers has risen
only about half the rate as for non-agricultural workers, and
in real terms that is a stagnant wage. This study that we cited
from, the Department of Labor, as well as the Congressional
Research Service, which did a report for Congress.
Senator Abraham. Mr. Wunsch, did you want to comment?
Mr. Wunsch. Well, responding to the question from the Chair
on the shortage, if I relate that to personal experience, I am
short of workers when I have more work than I have available
workers. When the job is done, I have a surplus of workers.
In response to the wage question, I can honestly say I have
told my workers I will never be able to pay them what they
deserve to make, whether they are seasonal workers, year-round
workers, Anglos, Hispanics, insufficiently documents, valid
green cards, old, young, because the value of my activity as an
agricultural producer does not generate the revenues necessary
to make such wages available. So we do the best we can.
Now, I know there are certainly situations where wage abuse
may occur. I do not think there is any argument there. But what
I see between the agricultural employer and the agricultural
employee is a situation where we have a shortage, not so much
of workers, but of legal workers, and a great weariness on the
part of all living with this criminal status as employers who
are subject to fines for employing folks that are not
sufficiently documented, but most particularly, the workers and
the worker families, who for years have been subject to the
life of fugitives on the run, who now have kids that are
getting ready to graduate from high school that were born in
the U.S.
So we have got a worker shortage. We have got an economic
situation that some consider intolerable as far as the wage and
living conditions, but most particularly we have an incredible
paradoxical situation as far as the legal situation we have
inadvertently created for ourselves, and an opportunity to fix
it.
Ms. Munoz. And that is the place where in broad principle
there is agreement. I do not think there is disagreement on the
panel that legalizing the existing work force which is
undocumented, would be a useful thing for all concerned. The
question is how to do it.
Senator Abraham. I am just going to ask both of my
colleagues from the Senate if they want to comment on this
issue as well.
Senator Smith. Just briefly, Mr. Chairman. I would like to
stipulate it is my opinion, for the record, there is no
agricultural labor shortage as long as you are willing to
accept an illegal system. That is what the GAO said. There is
no problem, because we have all of these illegal workers here,
and that is the problem.
Housing, Mr. Camacho, in my state it is illegal to build
housing on farmland, so I am trying to figure--my motive in the
way we structure this is to create some capital to create some
housing someplace where it is legal. Every state has different
land use laws. Mine are very restricted.
The bill I am looking at has the prevailing wage plus 5
percent. You made the comment that we get rid of the prevailing
wage. Are we reading the same bill? I just do not understand
that.
The Agricultural Worker Protection Act. We specifically
include that, and there has been testimony today that said that
we have not. We are really, really trying to include everything
we can to provide financially to correct the problems and to
provide the safety that the workers deserve, and to provide the
legality, believing legality will result in a living wage, but
as long as they are kept illegal, they are going to be kept
victims, andthat is what I am trying to fix. I am so frustrated
that we cannot seem to read the same words on the same piece of paper.
Senator Abraham. Mr. Camacho, do you want to comment on
those two provisions?
Mr. Camacho. Yes. The housing issue, I mean I think there
is a lot of ways to look at it. Do you give workers in the
states where there is available housing? Maybe a voucher
concept would work. In states where there is no housing for
farm workers, a voucher concept is not going to work. So you
have to figure out--you have to provide housing for those
workers.
In terms of the prevailing wage, maybe I did not explain it
correctly, but right now the prevailing wage is based on not
the industry, not the particular industry they are working, but
what state average workers make.
Senator Smith. It is Davis-Bacon.
Mr. Camacho. No, it is not. The prevailing wage in the bill
would be, for example, if raising growers are paying 20 cents a
tray, then that would become the prevailing wage. And all you
are going to do is 5 percent above 20 cents. It comes up to 21
cents. So all they are raising it is 1 penny on that tray. It
is not the prevailing wage for the state, as it is now on the
H-2A program.
Senator Smith. Jim, can you comment on that?
Mr. Holt. Yes. I think there is a little bit of terminology
confusion here between ``prevailing wage'' and ``adverse effect
wage rate.'' I think with all due respect, what you were
meaning when you said ``prevailing wage'' was ``adverse effect
wage rate.''
Mr. Camacho. That is correct.
Senator Abraham. Senator Graham, would you like to comment?
Senator Graham. Well, I would like to just put some numbers
on the table and see if there is agreement or disagreement,
because I think they go to the question of is there a shortage
of a legal work force? According to the survey that was done in
1999 by the U.S. Department of Agriculture and the U.S.
Department of Labor, there are 1.6 million persons who worked
in American field agriculture, of which 50 percent were
undocumented. They self-described themselves as undocumented.
In 1999 the Department of labor issued 41,000 certificates
for H-2A workers, which was almost double the number of
certificates they had issued two years earlier, which I think
has some commentary on the domestic labor market.
If you accept all of those numbers, that would indicate
that the total work force in field labor broke down into
800,000 undocumented aliens, 759,000 legal domestic workers,
and 41,000 H-2A workers, assuming all of the certificates that
were issued were in fact utilized.
Now, is there any strong disagreement with those numbers as
to what is the current status and distribution of American
field farm workers?
Ms. Munoz. We do know that the H-2A program has been
expanding. It is being applied to new crops and it is being
used in new parts of the country. There is some language in my
written statement about the State of Georgia, for example,
which did not tend to use H-2A workers, and now there has been
a dramatic expansion in the H-2A program in that state.
We also know that among domestic farm workers there are
very--and I spoke about it earlier--there is high rates of
unemployment, but we have specific evidence with respect to
California in a study done by the California Rural Legal
Assistance Foundation, which is attached to my testimony, which
found even during peak harvest months there were domestic,
legally-authorized-to-work farm workers who were not being
recruited by employers. And Mr. Camacho's statement, I think,
illustrates that the way the H-2A program is structured, the
domestic work force becomes less desirable, and that I think is
reflected in the number of days people are working, as well as
the unemployment rates in various sectors of the economy where
these workers are located.
So, clearly the numbers can be used to prove a variety of
points of view. I think ultimately the broader point here is
that nobody accepts and is comfortable with the proportion of
undocumented workers in this work force. I think that is a
place where there is agreement. I would hope that nobody is
comfortable with the wages and the working conditions that we
see in this industry. Ultimately, the broad point that we are
trying to make is whether or not legislation can be advanced
which makes substantial improvements towards both of those
ends.
Senator Graham. In terms of the circumstances of legal
domestic workers, how much of those conditions are a function,
in your opinion, of the 800,000 undocumented? That is, how much
does that 800,000 work force contribute to depression of wages
and working conditions for the legal domestic workers?
Ms. Munoz. We think there is a relationship. We do believe
there is a relationship. Again, that is why ultimately we have
taken the position for a long time, and the AFL-CIO has
recently taken the position, that it is ultimately in the best
interest of all workers for the domestic work force, not just
in agriculture but across the country, to be legalized. We do
not dispute that question at all. The question is whether or
not tying people to agriculture and creating a set of steps
that are going to be difficult for folks to climb is the best
way to achieve that goal.
Senator Graham. I would like to ask, if I could, a follow-
up question, but if Mr. Holt or Mr. Camacho or any other
members of the panel would like to comment on what is the
relationship between the 800,000 undocumented agricultural
field workers and the working conditions of the 759,000 legal
domestic workers?
Mr. Holt. Well, I would like to say--I would like to
disagree with my colleague here on the panel. I think the
evidence--I do not think there is evidence to support that
agricultural wages are depressed. And I think the fact that--
notwithstanding the substantial proportion of the agricultural
work force which is undocumented, the fact that agricultural
wage rates are increasing more rapidly than non-agricultural
wage rates is indicative of this, and the figure that I am
working from at least are the Department of Agriculture's
figures that go into the national income accounts and into the
BLS national income accounting figures. These are the standard
agricultural hourly wage statistics.
Now, there is a difference between hourly wage rates and
workers' earnings, workers' average earnings. This is,after
all, a seasonal industry, and in particular, the NAWS data, the
National Agricultural Worker Survey that Ms. Munoz is citing from, is a
survey of the seasonal agricultural work force. It excludes everybody
who is not seasonal. So annual earnings are a function of how many
weeks a person works, and I would say in a highly--in a work force
highly populated with illegal aliens, where there is the kind of rapid
changes in identity that, for example, Polo Garcia referred to, talking
about trying to deduce statistics on average annual earnings of
individuals is, frankly, a fruitless undertaking. But the hourly
earnings in agriculture are in fact increasing at a more rapid rate
than non-agriculture. You know, there is probably nobody in this room
that could cite what the average hourly earnings of agricultural
workers are. We would probably all guess something close to the minimum
wage. The fact of the matter is that in 1999 it was $7.77, which is a
higher hourly rate than many unskilled and low-skilled non-agricultural
occupations generate in rural areas. The problem is, it is a seasonal
industry. That is why workers' earnings are low, their annual earnings
are low, and it is why workers move out of that industry into year-
round work when it become available. And that has been happening for
the last century, and it is going to happen for the next century.
Mr. Camacho. I think Mr. Holt sort of supports the--his
statement supports that in fact the 800 do suppress wages,
because if you have two people waiting for one job, then that
automatically is going to suppress wages. And the fact that
wages have been increasing so rapidly has been because they
were so low to begin with. So, yes, they are going to increase.
And in California the reason wages increased was because
minimum wage was increased. It was a legislative act that
created that race. So, again, my feeling is that, yes, there is
a depression of wages.
Senator Abraham. Mr. Wunsch, you want to comment?
Mr. Wunsch. Yes, I do. I think there is a fundamental
fallacy here that needs clarification. At the level of the
agricultural employer, the undocumented worker is virtually
indistinguishable from the properly documented worker. In other
words, of that 759,000 workers, you have within that some
subgroups. You have the ones that came through in the 1985
Amnesty Program. You have the blue-eyed, blond-haired Norwegian
farm boy from next door that comes over and does the milking.
You have got a very diverse group that are included in that.
But let us just say that we are going to specify migrant-
Hispanic-alien-registration-card-bearing workers.
From the standpoint of the employer, you are looking at a
card, whether it is fraudulent or genuine, it is virtually
identical. You do not know who is illegal and who is legal. You
are going to afford to each one of those individuals the same
protections under the law that you as an employer are obligated
to provide. You cannot make a distinction between legal or
illegal. You cannot knowingly infringe upon somebody's rights
or exploit them, knowing that one person is not legally
documented and the other one is. From the standpoint of being a
legal employer, everyone must be treated the same. From the
standpoint of worker protection, wages, insurance, there are no
glowing signs on their foreheads that say ``I am legal'', ``I
am illegal.'' They all have, from what appears to us as non-
professional document experts, the same criteria for working.
Actually, we know in our heart of hearts that those great-
looking fraudulent documents are provided for us and only for
us as employers to protect us from the $10,000 fine that we are
subject to if we knowingly employ an undocumented worker.
So there is no really clear way to distinguish one subset
from another. We have to treat them equally.
Senator Abraham. Well, I appreciate this panel's, in
several cases repeat appearances, but all of your appearances
here today. We do not always envision these hearings producing
a consensus. Today has not produced consensus. It has maybe
opened a few more opportunities for dialogue in the
deliberations on this legislation.
I would only say that I am hopeful that we can address this
issue this year. I hope that the various sides can do more
deliberating and try to make some progress.
At the same time, I would just say that from the
perspective of our Michigan agriculture community, it is an
ever more significant problem, and I think that we do have
regional differences here that should not go overlooked in
these panels. One of the reasons that I asked Mr. Wunsch to be
here again was because we don't have quite the same labor
situation that you might have in Florida or Oregon or certainly
in California. But I hope that we can try to address it
together, and we will even consider additional hearings in the
future if that is of any further benefit, although hopefully
now we ventilated a lot of these issues enough, and can move
forward.
I will just leave the record open for the other
Subcommittee members who are not here if they wish to include
statements or to submit questions to you within the next day or
so. And as I mentioned, all of you who had longer statements,
that we will include those in their entirety in the record.
We thank you all for being here. Thank you very much. The
hearing is adjourned.
[Whereupon, at 4:07 p.m. the subcommittee was adjourned.]