[Senate Hearing 109-427]
[From the U.S. Government Publishing Office]
S. Hrg. 109-427
FOREST SERVICE WORKERS
=======================================================================
HEARING
before the
SUBCOMMITTEE ON PUBLIC LANDS AND FORESTS
of the
COMMITTEE ON
ENERGY AND NATURAL RESOURCES
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
TO
REVIEW THE ROLE OF THE FOREST SERVICE AND OTHER FEDERAL AGENCIES IN
PROTECTING THE HEALTH AND WELFARE OF FOREIGN GUEST WORKERS CARRYING OUT
TREE PLANTING AND OTHER SERVICE CONTRACTS ON NATIONAL FOREST SYSTEM
LANDS, AND TO CONSIDER RELATED FOREST SERVICE GUIDANCE AND CONTRACT
MODIFICATIONS ISSUED IN RECENT WEEKS
__________
MARCH 1, 2006
Printed for the use of the
Committee on Energy and Natural Resources
_____
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COMMITTEE ON ENERGY AND NATURAL RESOURCES
PETE V. DOMENICI, New Mexico, Chairman
LARRY E. CRAIG, Idaho JEFF BINGAMAN, New Mexico
CRAIG THOMAS, Wyoming DANIEL K. AKAKA, Hawaii
LAMAR ALEXANDER, Tennessee BYRON L. DORGAN, North Dakota
LISA MURKOWSKI, Alaska RON WYDEN, Oregon
RICHARD M. BURR, North Carolina, TIM JOHNSON, South Dakota
MEL MARTINEZ, Florida MARY L. LANDRIEU, Louisiana
JAMES M. TALENT, Missouri DIANNE FEINSTEIN, California
CONRAD BURNS, Montana MARIA CANTWELL, Washington
GEORGE ALLEN, Virginia KEN SALAZAR, Colorado
GORDON SMITH, Oregon ROBERT MENENDEZ, New Jersey
JIM BUNNING, Kentucky
Bruce M. Evans, Staff Director
Judith K. Pensabene, Chief Counsel
Robert M. Simon, Democratic Staff Director
Sam E. Fowler, Democratic Chief Counsel
------
Subcommittee on Public Lands and Forests
LARRY E. CRAIG, Idaho, Chairman
CONRAD R. BURNS, Montana, Vice Chairman
CRAIG THOMAS, Wyoming RON WYDEN, Oregon
JAMES M. TALENT, Missouri DANIEL K. AKAKA, Hawaii
GORDON SMITH, Oregon BYRON L. DORGAN, North Dakota
LAMAR ALEXANDER, Tennessee TIM JOHNSON, South Dakota
LISA MURKOWSKI, Alaska MARY L. LANDRIEU, Louisiana
GEORGE ALLEN, Virginia DIANNE FEINSTEIN, California
MARIA CANTWELL, Washington
Pete V. Domenici and Jeff Bingaman are Ex Officio Members of the
Subcommittee
Frank Gladics, Professional Staff Member
Scott Miller, Democratic Counsel
C O N T E N T S
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STATEMENTS
Page
Bingaman, Hon. Jeff, U.S. Senator from New Mexico................ 2
Craig, Hon. Larry E., U.S. Senator from Idaho.................... 1
Dale, D. Michael, Executive Director, Northwest Workers' Justice
Project, Portland, OR.......................................... 24
Ellis, David M., President, Renewable Resources, Barnesville, GA. 48
Jungwirth, Lynn, Executive Director, The Watershed Research and
Training Center, Hayfork, CA................................... 35
Lipnic, Victoria A., Assistant Secretary of Labor Employment
Standards Administration, Department of Labor.................. 6
Moseley, Cassandra, Ph.D., Ecosystem Workforce Program, Institute
for Sustainable Environment, University of Oregon.............. 28
Rey, Mark, Under Secretary for Natural Resources and the
Environment, Department of Agriculture......................... 2
Wood, Cindy, Chief Executive Officer, Wood's Fire & Emergency
Services, Inc., Portola, CA.................................... 39
APPENDIX
Responses to additional questions................................ 51
FOREST SERVICE WORKERS
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WEDNESDAY, MARCH 1, 2006
U.S. Senate,
Subcommittee on Public Lands and Forests,
Committee on Energy and Natural Resources,
Washington, DC.
The committee met, pursuant to notice, at 2:32 p.m., in
room SD-366, Dirksen Senate Office Building, Hon. Larry Craig
presiding.
OPENING STATEMENT OF HON. LARRY E. CRAIG,
U.S. SENATOR FROM IDAHO
Senator Craig. Good afternoon, everyone. I would like to
welcome you to the Public Lands and Forests Subcommittee's
hearing on issues related to enforcement of labor, health and
safety laws that are a part of all Forest Service planting and
thinning contracts. Today, testimony will be provided by the
Department of Agriculture's Under Secretary of Natural
Resources and the Environment, Mark Rey. Mark, welcome to the
committee again. You were here yesterday, weren't you? That's
what I thought, deja vu all over again. Okay. And the
Department of Labor's Assistant Secretary for Employment
Standards Administration, The Honorable Victoria Lipnic.
Ms. Lipnic. That's correct.
Senator Craig. Nice to have you here, Victoria.
Ms. Lipnic. Thank you.
Senator Craig. I see that each of you have a number of
people who are accompanying you to help answer questions that
the members might be asking, so please feel free to have them
come up to the table if necessary. Or based on space, you can
rotate according to the questions. Anyway, I want to welcome
Senator Bingaman, who is not yet here, but will be. He is the
Energy and Natural Resources ranking member, and has an
expressed interest in this. I know Senator Bingaman is keenly
aware of the problems and concerns and sees this as a unique
problem.
Congress has been forced to address this or similar issues
about once a decade. And while we have made some progress, it
is not sufficient or occurring quickly enough by most
everyone's opinion. I'm not going to belabor the issue that
revolves around the use of migrant workers who do much of this
type of work, other than to say that evidence suggests we
continue to have great difficulty enforcing the health and
safety, immigration and labor laws of this country when it
comes to these contracts. I know that some progress has been
made on the issue of undocumented workers over the last decade,
but all evidence suggests that much more progress needs to be
made on the enforcement of the health and safety laws and other
labor laws and rules. I would hope the Federal agencies will
find ways to do a much better job than they have managed over
the last decade.
At the same time, I think we all have to understand that
these are not the only jobs that these migrant workers
participate in, and our Federal agencies are stretched fairly
thin when it comes to this type of employment work. Their job
is further complicated by the isolated nature of the work. It
is my hope that we can all work together to improve the
situation rather than participating in finger pointing and the
blame game. I would note that these problems have occurred
during both Democrat and Republican administrations, and I
would hope we can find ways to make improvements on a
bipartisan basis.
I will maintain the 5-minute clock on testimony and
questions of the committee, and we'll make both your written
and oral testimonies a part of the hearing record. I urge each
of you to resist the urge to read your testimony during today's
oral presentations because your full testimony will be a part
of the record. When Senator Bingaman gets here, he'll have the
opportunity to make his opening remarks and offer any
questions.
So, let us move to our first panel. Again, Mark--and that's
Mark Rey, Under Secretary of Natural Resources and the
Environment--welcome before the committee. We'll start with
you.
STATEMENT OF MARK REY, UNDER SECRETARY FOR NATURAL RESOURCES
AND THE ENVIRONMENT, DEPARTMENT OF AGRICULTURE, ACCOMPANIED BY
SALLY COLLINS
Mr. Rey. Thank you, Mr. Chairman, and thank you for the
opportunity to testify today on the role of the Forest Service
in protecting the health and welfare of foreign guest workers
carrying out service contract work on National Forest land. If
you want, I can suspend.
Senator Craig. Why don't you, if you would. Thank you very
much. Senator Bingaman has just arrived. Jeff, I've made my
opening comments. We'll turn to you for that purpose, and then
we'll allow Mark to proceed with his testimony.
STATEMENT OF HON. JEFF BINGAMAN,
U.S. SENATOR FROM NEW MEXICO
Senator Bingaman. Mr. Chairman, thanks for having the
hearing. I don't really have anything earthshaking to add here.
I do think it's an important set of issues and one that I
continue to hear about, and I know you do, and I appreciate the
witnesses coming and talking to us about it. Thanks.
Senator Craig. Thank you much. Mark, please proceed.
STATEMENT OF MARK REY, UNDER SECRETARY FOR NATURAL RESOURCES
AND THE ENVIRONMENT, DEPARTMENT OF AGRICULTURE, ACCOMPANIED BY
SALLY COLLINS--
Continuing
Mr. Rey. The Department of Agriculture and the Forest
Service are committed to the safety and health of visitors and
workers on national forests and will continue to act quickly to
address any problems that may arise in these areas.
Federal law allows foreign citizens to temporarily come to
the United States to perform jobs where U.S. workers may be in
short supply. The law establishes categories for temporary work
visas, H-2A for agricultural workers and H-2B for
nonagricultural, nonprofessional workers. About 15,000 to
20,000 of the H-2B workers are forestry workers.
Several Federal and State agencies have responsibilities
for the many aspects of the temporary guest worker program. In
order for employers, including potential Forest Service
contractors, to hire foreign guest workers, they must get a
certification from the Department of Labor stating that
qualified workers are not available in the United States and
that the foreign worker's employment will not adversely affect
wages and working conditions of similarly employed U.S.
workers.
The Forest Service has an important role in implementing
the laws that apply to H-2B workers because forestry service
contractors often hire foreign guest workers to do the
thinning, tree planting, brush clearing and other types of work
on not only national forests, but on privately owned forests as
well.
On November 18, 2005, the Chief of the Forest Service
issued a letter to Agency leadership stating his expectations
on what Forest Service contracting officers and inspectors must
do when they recognize health and safety violations which
present an imminent threat to workers, such as not using
appropriate safety apparel and equipment. When these situations
occur, agency personnel must take action just as they would
with Forest Service employees. If contractor employees do not
have appropriate safety apparel or equipment, the inspectors
are not to let them work. The Chief also instructed them to
document and report observed violations in the areas of safety,
housing, transportation and wages to the appropriate oversight
agencies. He shared his expectation that documentation of
violations should be a factor--and will be a factor--in
evaluating future bids and awarding future contracts. Violators
can be banned from future awards by the oversight agencies in
cases of repeat violations.
Provisions and requirements developed by the oversight
agencies within the Department of Labor and the Department of
Homeland Security to implement the guest worker protection laws
were previously incorporated by general reference into the
service contracts awarded by the Forest Service.
On January 4, 2006, the Director of Acquisition Management
at the Forest Service issued mandatory clauses for Forest
Service contracts, expressly stating these provisions and
requirements. These clauses include specific language regarding
camp facilities and personal protective equipment requirements
and specific oversight agency requirements that employers of
foreign guest workers must fulfill, such as certification of
adequate housing, proper documentation of legal status and
properly registered and inspected vehicles for transportation.
Adding the language directly to the service contracts will
produce two major results: First, increase follow-up action by
Forest Service contract inspectors when health and safety
violations are observed will occur; and second, will have
greater ability to hold contractors accountable by enforcing
express language in our contracts.
The Director of Acquisition Management also required
regional foresters and station directors to assure every active
tree planting and thinning contract was visited by the
contracting officers onsite within 3 weeks of the commencement
of work. If unacceptable conditions are observed, the work will
be suspended and a report will be made to the appropriate
regulatory agency.
Additional coordination with the oversight agencies has
also been very productive. The Forest Service has provided the
Wage and Hour Division and OSHA with a list of this year's
projects that could involve foreign guest workers.
Additionally, we will shortly sign, with the Department of
Labor regulatory agencies, a memorandum of intent to outline
our joint work in the coming season. And shortly, my
counterpart from the Department of Labor will review the
activities underway at the department.
In addition to workers that are performing services under
contract to the Forest Service, some of the incidents that have
been publicized in the recent past have been people who are
operating under special-use permits. We're reviewing the
Special-Use Permit Policy to see how and the best way to
install additional protections there, although not all of the
requirements, such as the Service Contract Act wage
requirements, will apply to individuals working under special-
use permits on the National Forest System.
With that, I'd be happy to defer to the Department of
Labor.
[The prepared statement of Mr. Rey follows:]
Prepared Statement of Mark Rey, Under Secretary for Natural Resources
and Environment, Department of Agriculture
Mr. Chairman and Members of the Subcommittee: thank you for the
opportunity to testify before you today on the role of the Forest
Service in protecting the health and welfare of foreign guest workers
carrying out service contract work on national forest land. The
Department of Agriculture and the Forest Service are committed to the
safety and health of visitors and workers on National Forests. We have
and will continue to act quickly to address any problem that may arise
in these areas.
background
Federal law allows foreign citizens to temporarily come to the
United States to perform jobs where U.S. workers may be in short
supply. The law establishes categories for temporary work visas: H-2A
for agricultural workers and H-2B for nonagricultural, nonprofessional
jobs such as travel agents, restaurant workers, janitors and forestry
workers. The focus of my testimony today is on the requirements
applicable to the employment of H-2B workers. There is a 66,000 person
per year limit on the number of foreign workers who may receive H-2B
status and this limit is regularly reached early in the year. H-2B
workers already working in this country do not count against the
current year cap so the actual number of H-2B foreign guest workers in
this country could be much higher. About 15,000 to 20,000 are forestry
workers.
Several federal and state agencies have responsibilities for the
many aspects of the temporary guest worker program. The Department of
Homeland Security (DHS) and the Department of Labor (DOL) have primary
oversight for the program. Other agencies, including the Forest
Service, are involved where H-2B guest workers are employed by
contractors.
In order for employers--including potential Forest Service
contractors--to hire foreign guest workers they must get a
certification from DOL stating that qualified workers are not available
in the U.S. and that the foreign worker's employment will not adversely
affect wages and working conditions of similarly employed U.S. workers.
The employer then petitions DHS to hire guest workers.
Additionally, the employer seeking to hire foreign guest workers
must offer at least the prevailing wage for the occupation in the area
of intended employment. Worker protection provisions that apply to U.S.
workers also cover foreign guest workers. Workers may file complaints
under these worker protection laws with local DOL Wage and Hour
Division offices.
The Federal worker protection laws that apply to H-2B forestry
workers are: 1) the Migrant and Seasonal Agricultural Worker Protection
Act provides requirements for housing, transportation and working
conditions for migrant and seasonal workers; 2) the Service Contract
Act provides for minimum wages and other benefits for those workers
under federal service contracts; 3) the Occupational Safety and Health
Act contains specific workplace safety requirements; and 4) the Fair
Labor Standards Act provides minimum wage, overtime, and child labor
requirements. DOL is responsible for enforcing these laws and has
agreements with some states such as California to administer and
enforce a state occupational safety and health program for the
Department. In addition, states will enforce their own labor
requirements if these offer greater protection to foreign guest workers
than the federal requirements.
forest service responsibilities and actions taken.
The Forest Service has an important role in implementing these laws
because forestry services contractors often hire foreign guest workers
to do thinning, tree planting, brush clearing and other types of work
on national forests. Safety and respectful treatment are core values in
the way the Forest Service conducts day to day business, and the Forest
Service is often the agency with the most direct contact with foreign
guest workers. I commend the Sacramento Bee for bringing attention to
the issues that some foreign guest workers face as they perform work in
this country. It is important that these issues do not escape the
attention of the various agencies responsible and we have already taken
action to strengthen our respective agency roles.
On November 18, 2005, the Chief of the Forest Service, Dale
Bosworth, issued a letter* Agency leadership stating his expectations
on what Forest Service Contracting Officers and inspectors must do when
they recognize health and safety violations which present an imminent
threat to workers such as not using appropriate safety apparel and
equipment. When these situations occur, agency personnel must take
action, just as they would with Forest Service employees. If contractor
employees do not have appropriate safety apparel or equipment, the
inspectors are not to let them work. The Chief also instructed them to
document and report observed violations in the areas of safety,
housing, transportation and wages to the appropriate oversight agency.
He shared his expectation that documentation of violations should be a
factor in evaluating future bids and awarding future contracts.
Violators can be banned from future awards by the oversight agencies.
---------------------------------------------------------------------------
* The letter has been retained in subcommittee files
---------------------------------------------------------------------------
Chief Bosworth designated the Director of Acquisition Management in
the Washington Office as the Forest Service contact with the
appropriate staff of oversight agencies, DOL, OSHA and United States
Citizenship and Immigration Service (USCIS). The Director has already
met with OSHA and with the DOL Wage and Hour Division's Director of
Enforcement Policy to discuss coordination and specific actions each
agency can take to address the issues of health, safety, and wage
payments concerning foreign guest workers.
Provisions and requirements developed by the oversight agencies
within DOL and DHS to implement guest worker protection laws (the
Migrant and Seasonal Agricultural Worker Protection Act, the Service
Contract Act, the Fair Labor Standards Act, and the Occupational Safety
and Health Act) were previously incorporated by general reference into
the service contracts awarded by the Forest Service. On January 4,
2006, the Director of Acquisition Management issued mandatory clauses
for Forest Service contracts, expressly stating these provisions and
requirements. These clauses include specific language regarding camp
facilities and personal protective equipment requirements and specific
oversight agency requirements that employers of foreign guest workers
must fulfill such as certification of adequate housing, proper
documentation of the legal status of foreign workers, and properly
registered and inspected vehicles for transportation. Adding the
language directly into the service contracts is expected to produce two
major results: 1) increase follow-up actions by Forest Service contract
inspectors when health and safety violations are observed; and 2)
provide greater ability to hold contractors accountable by enforcing
language in the contracts.
The Director of Acquisition Management also required Regional
Foresters and Station Directors to ensure every active tree planting
and tree thinning contract was visited by the Contracting Officers on
site within 3 weeks of the commencement of work. Based on these visits,
the regions and stations will submit a report to the Washington Office
regarding the status of housing, transportation and working conditions
for employees of forestry contractors. If unacceptable conditions are
observed the work will be suspended and a report will be made to the
appropriate agency.
Coordination with the oversight agencies has been very productive.
The Forest Service has provided the Wage and Hour Division and OSHA
with a list of this year's projects that could involve foreign guest
workers. The agencies have also exchanged point of contact information
for our respective field organizations. As a result, for example, a
Forest Service contract inspector in Oregon has the point of contact
information for the OSHA and Wage and Hour Division in their area to
report potential violations of the law.
The Wage and Hour Division and CAL-OSHA have conducted training in
California for Forest Service Contract Administrators and private
sector contractors concerning legal requirements regarding the
employment of H-2B workers. OSHA and Wage and Hour are developing
training material to raise awareness of ``red flags'' that may indicate
problems with the employment of H-2B workers. The Forest Service is
also providing this training material to employees involved with
foreign guest workers.
summary
The Department-and the Forest Service are committed to the health
and safety for all visitors and workers on the National Forests and
Grasslands, and that includes foreign guest workers. We will continue
to closely coordinate with the oversight agencies responsible for
administering this program to ensure foreign guest workers will have
safe and healthy working and living conditions.
This concludes my statement, I would be happy to answer any
questions that you may have.
Senator Craig. Again, Victoria, let me welcome you,
Assistant Secretary, Employment Standards Administration,
Department of Labor.
Ms. Lipnic. Thank you, Mr. Chairman.
Senator Craig. Please proceed.
STATEMENT OF VICTORIA A. LIPNIC, ASSISTANT SECRETARY OF
EMPLOYMENT STANDARDS ADMINISTRATION, DEPARTMENT OF LABOR,
ACCOMPANIED BY MICHEAL GINLEY
Ms. Lipnic. Thank you for the opportunity to appear before
the committee today as a member of this panel. You have invited
us to testify on the role of the Department of Labor in
protecting foreign guest workers employed on tree planting and
other service contracts, often called reforestation contracts,
on National Forest lands. And as you suggested, Senator, my
written statement is submitted for the record, and I will do my
best to summarize.
Senator Craig. And I read it. I don't always get to all
written statements. Yours is a very thorough explanation of
procedure and process. Thank you.
Ms. Lipnic. Thank you very much, and I want to credit my
staff in the Wage and Hour Division for putting a lot of work
into that.
A complete picture of the Department of Labor's role with
these foreign guest workers involves mentioning two other
agencies within the Department--the Occupational Safety and
Health Administration and the Employment and Training
Administration. And there are representatives from those
agencies here today. I am also accompanied by Michael Ginley,
who is the Director of our Office of Enforcement Policy in the
Wage and Hour Division, which is a part of the Employment
Standards Administration.
Although reforestation work is found in many national
forests, the challenges of enforcement in the forestry industry
as to labor standards are not confined to one area, but our
testimony today will focus largely on our experiences in
California. I would add that Mr. Ginley has first-hand field
experience on this issue, having served as the District
Director of our Wage and Hour Office in Sacramento during the
1990's.
The challenges of ensuring that the employment of workers
on reforestation contracts complies with the applicable legal
protections are many, but, as you certainly know, they are not
new to the Department of Labor, and we share a strong
commitment with the Forest Service to find a lasting solution
to meeting the historical challenges of protecting these
workers.
Certainly, as was well documented in the Sacramento Bee
series, reforestation work is often hard, dangerous and
involves a significant amount of travel, and I think that
series by and large reflects the experience of the Wage and
Hour Division in the field.
As you know, reforestation guest workers are admitted as
temporary non-immigrants under the H-2B provisions of the
Immigration and Nationality Act. As you alluded to, Senator,
there are many issues related to immigrant workers. Certainly,
among those that we find as to the forestation work and in
other areas, particularly in low wage areas, there is a high
dependence on the employers, and that often instills a strong
reluctance on the part of the workers to complain to the
Department of Labor, or to any other agency for that matter,
about mistreatment, or in our case in particular, about the
underpayment of wages.
Federal reforestation contracts are primarily subject to
the employee protections that are offered by a number of
statutes within the jurisdiction of the Department of Labor.
They include, first and foremost, the Fair Labor Standards Act,
which is the fundamental protection that provides wage
protection to most U.S. workers; the Migrant and Seasonal
Agricultural Worker Protection Act, which requires, among other
things, that workers are paid their wages when they are due,
that there is compliance with Federal and State safety and
health housing standards, and in compliance with vehicle safety
standards. Under MSPA, the contractor must obtain a certificate
of registration from the Department of Labor to operate as a
farm labor contractor.
The Service Contract Act applies to contracts for
reforestation in excess of $2,500 with the Forest Service, and
it requires the reforestation contractors to pay the
reforestation workers the Service Contract Act prevailing wages
and fringe benefits that are determined by the Department of
Labor.
The Occupational Safety and Health Act, which is
administered by OSHA at the Department of Labor, regulates
safety and health conditions in private industry or in the
States through an OSHA-approved State plan, and certainly under
Homeland Security regulations under the Immigration and
Nationality Act. The INA requires employers filing petitions
for H-2B non-immigrant workers with the United States
Citizenship and Immigration Services to include a labor
certification from the Secretary of Labor that qualified U.S.
workers could not be found to fill the job.
One thing I'll mention in particular about OSHA, it's
important to involve the States in developing any of the safety
and health plans to ensure enforcement and training assistance
is coordinated among the Federal agencies and the States since
a significant number of the identified national forests are in
State Plan States, and OSHA works vigorously with the State
Plan States to make sure that that happens.
Wage and Hour is the enforcement agency responsible for
ensuring compliance with the FLSA, with MSPA, with the field
sanitation requirements under OSHA and with the prevailing wage
and fringe benefit requirements of the Service Contract Act.
I'll just mention quickly that Wage and Hour generally
conducts its investigations in two ways: One is if we receive
complaints from workers, then we are required to do
investigations; the other way that we achieve compliance and do
everything we can to achieve compliance is through directed
investigations. Wage and Hour has a very sophisticated
operational plan every year that directs our enforcement
resources, and we have a number of initiatives that have been
in the planning stages over the last couple of years in the
forestry area, and I can talk about those further in the
questions and answers. Thank you.
[The prepared statement of Ms. Lipnic follows:]
Prepared Statement of Victoria A. Lipnic, Assistant Secretary of Labor
Employment Standards Administration, Department of Labor
Mr. Chairman and Distinguished Members of the Subcommittee: thank
you for the opportunity to appear before you today as a member of this
panel. You have invited us to testify on the role of the Department of
Labor (DOL) in protecting foreign guest workers employed on tree
planting and other service contracts (often called ``reforestation
contracts'') on national forest lands. A complete picture of the
Department of Labor's role with these foreign guest workers involves
mentioning two other agencies within the Department--the Occupational
Safety and Health Administration and the Employment and Training
Administration--and there are representatives from those agencies here
today. I am also joined on the panel by Michael Ginley, the Director of
the Office of Enforcement Policy of the Wage and Hour Division (WHD),
which is part of the Employment Standards Administration within the
Department of Labor. Although reforestation work is found in many
national forests and the challenges of enforcement in the forestry
industry are not confined to one area, our testimony today will focus
on our experiences in the national forests of California.
The challenges of ensuring that the employment of workers on
reforestation contracts complies with applicable legal protections are
many, but they are not new to the Department of Labor. We share a
strong commitment with the USDA Forest Service (FS) to find a lasting
solution to meeting the historical challenges of protecting these
workers.
Before explaining these challenges and detailing our responses I
will first describe the:
Nature of reforestation work in national forests;
Typical characteristics of reforestation guest workers;
Federal laws applicable to reforestation in national
forests; and
The different agencies responsible for enforcing these laws.
nature of reforestation work in national forests
Reforestation work is hard, often dangerous work and involves a
significant amount of travel. The duties are physically demanding, the
pressure to work quickly is intense, the environment is often cold and
wet, and the housing and eating arrangements are sometimes poor.
The average reforestation contract on a unit of the National Forest
System (NFS) involves small crews of approximately 15 workers who clear
brush and undergrowth and/or plant seedlings on remote tracts of NFS
land. The contracts usually last several weeks and require constant
movement to new tracts of NFS land. Travel to the contract sites is
time consuming and frequently occurs on unimproved roads early or late
in the day.
Reforestation contractors are typically small, and could very well
be underfinanced businesses. They often struggle to make timely payment
of payrolls, as they must wait for FS payment before paying their
workers. Many of these contractors are former reforestation workers.
The contractors often pay their workers on piece rate, and do not keep
the required accurate record of employee hours actually worked.
characteristics of the reforestation guest workers
Reforestation guest workers are admitted as temporary nonimmigrants
under the H-2B provisions of the Immigration and Nationality Act (INA).
The H-2B workers' continued presence in this country is entirely
dependent on the willingness of the sponsoring employer to continue
their employment. If this employment is lost, the workers must leave
the country. The reforestation workers are typically dependent on their
employer for all transportation and are left to their own devices to
secure housing and food. This dependence instills a strong reluctance
to complain to DOL--or any other agency--about mistreatment or
underpayment of wages by their employer.
The H-2B reforestation workers typically do not speak English, and
are often illiterate in their native language. They are largely
ignorant of the application of U.S. wage and hour and safety laws. The
workers typically reside in remote locations with little if any access
to community or government resources to assist them with work-related
problems.
federal laws applicable to reforestation work in the national forests
Federal reforestation contracts are primarily subject to the
employee protections offered by a number of statutes within the
jurisdiction of DOL. They are:
Fair Labor Standards Act (FLSA)
The FLSA requires the reforestation contractor to:
Pay no less than the federal minimum wage ($5.15 per hour),
free and clear, for all hours actually worked;
Pay time and one half the workers' regular rate of pay for
all hours actually worked over 40 in a seven day work week;
Limit the occupations and hours of employment for children
under 18 years of age in accordance with federal child labor
regulations;
Maintain an accurate record of hours worked and wages paid.
The FLSA does not typically treat time spent traveling to the first
work site of the day, or back at the end of the day, as compensable
hours of work.
The FLSA requires that wages be paid free and clear. Employees may
not be required to pay for the employer's business expenses--such as
providing tools, equipment or fuel--to the extent that such payment
will reduce the employees' wages below the minimum wage.
Migrant & Seasonal Agricultural Worker Protection Act (MSPA)
The MSPA requires the labor contractor to:
Pay workers their wages when due, and give workers itemized,
written statements of earnings for each pay period, including
any amount deducted and the reasons for the deduction.
Comply with federal and State safety and health housing
standards when the contractor owns or controls a facility or
real property used for housing the reforestation workers. A
written statement of the terms and conditions of occupancy must
be posted at the housing site where it can be seen or be given
to the workers.
Assure that vehicles they use or cause to be used to
transport the reforestation workers are properly insured,
operated by licensed drivers, and meet applicable federal and
State safety standards.
Inform the workers in writing about the terms and conditions
of employment, including the work to be performed, wages to be
paid, the period of employment, and whether State workers'
compensation or State unemployment insurance will be provided.
Obtain a certificate of registration from DOL to operate as
a Farm Labor Contractor (FLC). In addition, specific
authorization must be obtained for all housing provided (if
owned or controlled) and each vehicle used to transport the
reforestation workers. The contractors must carry proof of this
registration and show it to workers and any other person with
whom they deal as contractors.
Display a poster where it can be seen at the job site which
sets forth the rights and protections of the workers.
Keep complete and accurate payroll records for all workers.
An FLC's registration status with DOL can be verified by calling
the WHD's toll free number 1-866-4USWAGE (1-866-487-9243).
MSPA posters are available by either calling the toll free number
or by visiting the WHD home page http://www.dol.gov/esa/whd/ and
scrolling to the Quick Finder for Printed Publications.
The Service Contract Act (SCA)
The SCA applies to contracts for reforestation services in excess
of $2,500 with the FS. It requires the reforestation contractors to:
Pay the reforestation workers the SCA prevailing wages and
fringe benefits determined by DOL to be prevailing in the
locality for the class of service worker being employed;
Notify the reforestation workers of the prevailing wage and
fringe benefit requirements applicable to their work.
The reforestation workers must be paid the SCA required prevailing
wages and fringe benefits free and clear. The contractors may not
require the workers to pay for the employers' business expenses--such
as providing tools, equipment or fuel--to the extent that such payment
will reduce the employees' wages below the applicable SCA prevailing
wage.
Occupational Safety & Health Act (OSH Act)
The OSH Act is administered by the Department's Occupational Safety
and Health Administration (OSHA). Safety and health conditions in most
private industries are regulated by OSHA or the States through an OSHA-
approved State plan. Nearly every employee in the nation comes under
OSHA's authority with some exceptions such as miners, some
transportation workers, certain public employees (except in some State
Plan States), and the self-employed. In addition to the requirements to
comply with the regulations and safety and health standards prescribed
under the OSH Act, employers subject to the Act have a general duty
requirement to provide work and a workplace free from recognized,
serious hazards.
OSHA's mission is to help promote and assure workplace safety and
health and reduce workplace fatalities, injuries and illnesses. OSHA,
along with its State partners, achieves its mission through workplace
enforcement of applicable laws, standards, and regulations,
inspections, consultation services, compliance assistance, outreach,
education, cooperative programs, and issuance of standards and
guidance.
The Occupational Safety and Health Act encourages States to
administer their own occupational safety and health programs under
State plans approved by the Secretary. States with approved plans
(referred to as ``State plan States'') operate under the authority of
State law and are responsible for occupational safety and health
protection in that State. State plan States adopt standards at least as
effective as Federal OSHA's, enforce these standards in a manner
similar to Federal OSHA, provide on-site consultation services and
conduct outreach and compliance assistance.
Twenty-two States have received Secretarial approval to administer
their own occupational safety and health program which covers most
private sector employment in their States as well as State and local
government employees. (Four additional States cover only public sector
employees through their State plans.) California administers an
approved State plan and the California Department of Industrial
Relations is the agency responsible for addressing the work place
safety and health issues of the guest workers employed on tree planting
and other service contracts on the national forest lands in California.
Field Sanitation
The OSH Act field sanitation standards establish minimum standards
for field sanitation in covered agricultural settings. Covered
employers are required to provide:
toilets;
potable drinking water;
and hand-washing facilities.
Further, employers must provide each employee reasonable use of the
above.
Authority for enforcing these field sanitation standards has been
delegated to WHD in all States where Federal OSHA generally has
authority, and in certain State plan States.
Immigration and Nationality Act (INA) Relevant Visa Category: H-2B
Department of Homeland Security regulations implementing the INA
require employers filing petitions for H-2B non-immigrant workers with
the United States Citizenship and Immigration Services (USCIS) to
include a labor certification from the Secretary of Labor that
qualified United States workers could not be found to fill the job. In
the case of reforestation activities, employers must file an
application for labor certification with the State Workforce Agency
serving the geographic area. A contractor planting or thinning trees in
a California forest, for example, would file with the local office of
the California Employment Development Department between 60 and 120
days before the work is scheduled to begin.
In each case, the State agency follows guidance from DOL to
determine the appropriate wage rate for the occupation listed,
supervise and guide the employer's recruitment of U.S. workers, and
ensure completion of other requirements of the H-2B program. The State
forwards completed applications to the DOL Employment and Training
Administration (ETA), which reviews the record in its entirety,
including documentation from the State and the employer, to determine
whether and when to issue a certification. The employer then uses ETA's
certification in support of its petition with USCIS for guest workers.
The INA provides no authority to the DOL to enforce the wage rate
identified for the H-2B workers. The INA was amended by the Save Our
Small and Seasonal Businesses Act of 2005, which, among other things,
provided the Secretary of the Department of Homeland Security with
authority to impose certain sanctions when sponsoring employers have
committed a substantial failure to meet any of the conditions of the H-
2B petition or made a willful misrepresentation of a material fact in
such petition. 8 U.S.C. 1184(c)(14)(A).
department of labor agencies and their enforcement roles
Occupational Safety and Health Administration (OSHA)
Federal OSHA and its State plan partners are responsible for
enforcing OSHA standards and providing compliance assistance and
training to reforestation employers. Enforcement programs of both
Federal OSHA and State agencies include planned inspections as well as
unplanned inspections that are conducted in response to employee
complaints, accidents, fatalities, and catastrophes. Planned
inspections target serious workplace hazards or dangerous industries.
Unplanned inspections are typically in response to an employee
complaint, a referral from another government agency, or a fatality or
catastrophe in the workplace. The nature of reforestation work and
those typically performing it makes conducting either type of
inspection difficult. Employees engaged in this work rarely complain to
OSHA for a variety of reasons. Additionally, work is not performed at
fixed workplaces and the length of a job is relatively short.
Therefore, locating these employers is often difficult.
The safety and health issues facing these workers depend on the
task they are performing. For example, employees performing brush
clearing operations are exposed to cuts and contusions from both the
material they are removing, such as branch whip-back, and the equipment
they are using. This necessitates the use of appropriate personal
protective equipment, such as eye and face protection, hand protection,
and appropriate footwear. Employees performing tree thinning are
exposed to cut hazards created by chain saw use, overhead hazards from
falling objects, such as felled trees and branches, and slips and falls
from working on uneven terrain. These conditions also require adequate
personal protective equipment, such as leg protection, head and face
protection, and appropriate footwear. When performing these tasks it is
critical that employees follow safe work practices. Employees who work
in remote reforestation sites must have first aid available in the
event of injury.
Federal OSHA works closely with its State Plan partners to develop
effective strategies to address the safety and health issues of guest
workers. It is important to involve the States in developing those
plans to ensure that enforcement, training and assistance is
coordinated among the various federal agencies and the States since a
significant number of the identified national forests are in State Plan
States. OSHA's State plan partners are well-positioned to address the
conditions faced by reforestation workers. For example, California OSHA
has recently participated with Federal and State Wage and Hour
officials and the FS to present a series of three training sessions for
FS contracting officers and forest service contractors. Oregon has
promulgated a standard which specifically applies to forestry
activities in addition to logging. Finally, many States have developed
effective outreach materials designed for non-English speaking workers.
In summary, this is a complex problem for OSHA and the affected
State Plan States. The solutions require effective coordination and
cooperation between the OSHA partners and with the WHD and the FS.
Employment and Training Administration (ETA)
Under the H-2B visa program, ETA is responsible for review of H-2B
labor certification requests. DOL oversight of worksite enforcement is
provided by WHD and OSHA.
Employment Standards Administration, Wage and Hour Division (WHD)
The WHD is the enforcement agency responsible for ensuring
compliance with the minimum wage and overtime requirements of the FLSA;
the wage, registration disclosure, housing and transportation
requirements of MSPA; the OSHA field sanitation standards in non-State
plan States; and the prevailing wage and fringe benefit requirements of
the SCA. The WHD seeks compliance with these requirements through a
combination of enforcement and compliance assistance. There are some
unique problems associated with enforcement regarding reforestation
contractors. But first, let me explain the enforcement process
generally, and some of the statute-specific differences.
WHD Enforcement Process
The WHD conducts investigations of employers on two bases:
Receipt of a complaint alleging violations;
Directed investigations where there is no complaint but the
potential for violations is high due to the nature of the work,
the vulnerability of the workers, or the industry.
WHD investigators will identify themselves and present official
credentials at the opening of an investigation. They will explain the
investigation process and the types of records required during the
review.
A typical investigation consists of the following steps:
Examination of records to determine which laws or exemptions
apply. These records include, for example, those showing the
employer's annual dollar volume of business transactions,
involvement in interstate commerce, MSPA registration status
and work on government contracts. Information from an
employer's records will not be revealed to unauthorized
persons.
Examination of payroll and time records, examination of
employer-provided housing and transportation (MSPA) and taking
notes or making transcriptions or photocopies essential to the
investigation.
Interviews with certain employees in private. The purpose of
these interviews is to verify the employer's payroll and time
records, to substantiate housing and/or transportation
violations, to identify workers' particular duties in
sufficient detail to decide which exemptions apply, if any, and
to confirm that minors are legally employed. Confidential
interviews are normally conducted on the employer's premises.
In some instances, present and former employees may be
interviewed away from the worksite to protect confidentiality
and WHD takes aggressive action to correct any employer
retribution under the anti-discrimination protections of FLSA
Section 15(a)(3).
When all the fact-finding steps have been completed, the
investigator will ask to meet with the employer and/or a
representative of the firm who has authority to reach decisions
and commit the employer to corrective actions if violations
have occurred. If back wages are owed to employees because of
minimum/prevailing wage or overtime violations, the
investigator will request payment of back wages due; if housing
and/or transportation violations have occurred, the
investigator will note the violations and, depending on the
severity of the violations, will seek appropriate corrective
action.
FLSA Enforcement
Although the WHD makes every effort to resolve the issue of
compliance and payment of back wages at an administrative level, the
FLSA also provides for the following enforcement actions:
An employee may file suit to recover back wages, and an
equal amount in liquidated damages, plus attorney's fees and
court costs.
The Secretary of Labor may file suit on behalf of employees
for back wages and an equal amount in liquidated damages.
The Secretary may obtain a court injunction to restrain any
person from violating the law, including unlawfully withholding
proper minimum wage and overtime pay.
Civil money penalties may be assessed for child labor
violations and for repeat and/or willful violations of FLSA
minimum wage or overtime requirements; employers who have
willfully violated the law may face criminal penalties,
including fines and imprisonment.
Employees who have filed complaints or provided information
during an investigation are protected under the law. They may
not be discriminated against or discharged for having done so.
If they are, they may file suit or the Secretary of Labor may
file suit on their behalf for relief, including reinstatement
to their jobs and payment of wages lost plus monetary damages.
MSPA Enforcement
MSPA provides for the assessment of civil money penalties,
revocation of the contractor's certificate (including authorization to
house, transport or drive), criminal sanctions, fines and imprisonment.
MSPA Transportation Enforcement
Enforcement of MSPA transportation requirements is a critical
element of WHD reforestation investigations, helping to prevent
recurrence of recent horrific accidents involving the transportation of
migrant workers. The enforcement of MSPA transportation requirements
begins with the application for a Farm Labor Contractor (FLC) or Farm
Labor Contractor Employee (FLCE) Certificate of Registration. On the
application form, the applicant must indicate whether transportation
will be provided to the workers and provide a Vehicle Identification
and Mechanical Inspection Report for each vehicle to be used. The forms
used for the vehicle inspection require identifying information on the
person and establishment/garage making the inspection and the form must
be ``properly completed and signed, certifying that the vehicle meets''
the applicable MSPA vehicle safety requirements.
In addition, evidence of compliance with the insurance requirements
and financial responsibility requirements of MSPA must be submitted.
MPSA requires not less than $100,000 per seat in insurance coverage
(maximum $5,000,000 per vehicle) or worker's compensation coverage
along with a $50,000 property damage policy or a vehicle liability
certificate of coverage showing that passenger hazard is included.
Further, any FLC or FLCE who drives a vehicle transporting workers
must be listed on the application and provide driver license
information and a copy of his or her driver's license. The application
package must include a Doctor's Certificate form completed by a
licensed doctor that indicates the applicant meets minimum physical
requirements to drive a motor vehicle.
An approved FLC or FLCE Certificate of Registration indicates if
the contractor is authorized to drive. It will list each authorized
vehicle by make, model and partial VIN (vehicle identification number);
the number of authorized seats (as provided on the application); and
the date the certificate expires.
During an investigation of an FLC, the WHD investigator will
determine if the FLC is involved with transporting the workers--the
regulatory language looks to one who uses or causes a vehicle to be
used. If the FLC is found to be using or causing a vehicle to be used,
the investigator will check if the contractor is properly registered,
is authorized to use the specific vehicle, and has the proper insurance
in place.
In addition, the WHD investigator will document by observation and
interviews the number of workers being transported, the identity of the
vehicle (make, model, and VIN) and the driver (and whether the driver
is properly licensed and carrying the Doctor's Certificate), current
license tag, and whether the vehicle possesses a current State vehicle
inspection sticker (if required in the State in which the vehicle is
registered). The investigator will also perform a visual inspection of
the vehicle--looking for whether headlights are broken or missing;
whether seating is broken, missing, or inadequate; whether windows are
broken, missing or boarded up; whether tires are badly worn or
defective; or whether windshields are cracked, broken or missing.
Any serious violations posing imminent danger to the occupant are
brought to the attention of the FLC and immediate correction is sought.
WHD investigators do not have authority to stop vehicles and do not
have authority to require a labor contractor to cease using a vehicle.
In such circumstances, the WHD investigator would need to enlist the
cooperation of the appropriate State or local authority, such as the
highway patrol. WHD investigators are trained to contact the
appropriate authorities to ensure the safety of the workers.
In addition to seeking correction of the safety violations, WHD can
assess civil monetary penalties and, if warranted, seek to revoke the
labor contractor's certificate of registration.
SCA Enforcement
When the WHD identifies monetary violations of the SCA, Federal
contract funds may be withheld by the contracting agency to insure
payment of SCA back wages. Employers who violate the SCA may also lose
their Federal contracts and be declared ineligible for future contracts
for a specified period (debarment). The WHD has debarred 13
reforestation contractors in the last decade.
representative wage and hour activities in the pacific northwest
As I mentioned at the outset, the issues associated with
enforcement of the worker protections for the temporary guest workers
doing reforestation work are not new to the DOL, although some of the
issues associated with enforcement are unique. For example, securing
timely correction of significant reforestation safety, transportation
and housing violations is only possible if DOL investigators are
present when and where the workers are employed, housed and
transported; further, special language skills are critical to securing
evidence of the violations from the workers. Transportation enforcement
raises particularly unique issues, given the limited authority vested
in WHD investigators to intervene when unsafe transportation is found.
Cooperation with State and local law enforcement officials, as is
effectively done in California with the California Highway Patrol, is
one means of resolving this issue.
WHD offices in California and the Northwest have consistently
worked with their counterparts in the FS in an effort to protect
reforestation workers. For example, in February 2005, the WHD
Sacramento District Office provided labor law training to 40 FS
contracting officers representing the 17 national forests in
California. The Seattle District Office regularly works with the FS
offices in Idaho, Montana and Washington to ensure compliance with
labor laws, and has effectively secured debarment of serious violators
under the SCA. The Portland District Office has participated for
several years in quarterly interagency ``Farmer Forest'' meetings with
the federal and State Forest Service, the Oregon Bureau of Labor and
Industry, and Oregon OSHA to facilitate joint efforts in achieving
compliance.
Compliance Assistance
The DOL educates employers on compliance responsibilities in
addition to taking independent enforcement actions. This approach is
based on the long-held agency belief that the vast majority of
employers want to comply with worker protections laws, but many do not
know all of the legal requirements. The best preventative approach for
these employers is clear, pertinent, readily-available guidance in
multiple media. DOL is constantly working to provide guidance to
employers via the telephone (toll free numbers), internet, and hard
copies. This guidance includes an interactive, Web-based tool, called
elaws Advisors, which provides around-the-clock assistance on the
application of many DOL laws. Active outreach programs also include
numerous speeches, seminars and training sessions provided to employer
groups and industry associations.
The DOL also seeks to educate employees of their rights under
federal laws in the language they understand, to provide tools that
will help them protect their rights and to give the information needed
to involve the agency in correcting violations.
Finally, the DOL actively seeks partnerships with worker advocacy
groups, industry associations, agencies at all levels of government,
and other entities that will help us educate employers and employees on
achieving compliance with wage and hour laws.
challenges
Although there is an ongoing relationship on a regional level
between the Department of Labor and the Forest Service, DOL agencies
and the FS continue to work to reinvigorate the process by which we
identify and overcome challenges to ensuring protection of guest
workers employed in our national forests. These challenges and our
current and planned solutions are:
Challenge: Educating reforestation contractors, who are
largely ignorant of their responsibilities for compliance when
they are awarded reforestation contracts.
Solution: The FS, WHD, and the California occupational safety
and health program (Cal-OSHA) have worked to develop a multi-
prong approach to educating contractors before contract work
begins. For example, WHD provided training for FS contractors
in California in 2000. Planning began again in FY 2005 for a
renewed effort as part of a WHD reforestation initiative for
implementation prior to the beginning of the 2006 planting
season. This training was offered to all contractors who were
awarded 2006 contracts in central and northern California
national forests. The training seminars were sponsored by the
FS, the WHD, Cal-OSHA and the California Highway Patrol and
held in January, 2006. The majority of contractors attended the
seminars, in no small part because they were advised of the
enforcement agency plans to investigate approximately 50% of
the contractors this season.
The WHD and Cal-OSHA trained FS contracting officers in
California in January, 2006. This training, which is being
considered as a template for future training sessions in
national forests across the country, provided contracting
officers with the knowledge needed to educate contractors on
site.
Reforestation contractors are provided with a complete
package of WHD guidance to facilitate their compliance with
worker protection laws.
Challenge: Finding reforestation workers while they are
working on the reforestation contracts is critical to
identifying and correcting violations, given the short duration
of the contracts; the remote, constantly changing work sites;
the temporary residence of the workers in this country; the
typically poor/nonexistent recordkeeping practices of the
contractors; and the need to personally inspect/document
safety, housing and transportation violations when they occur.
Solution: The FS is providing the WHD and Cal-OSHA with the
identity of contractors who have been awarded reforestation
contracts, the approximate start date and location of the
contract, and contact information on the FS staff responsible
for each contract.
Challenge: Educating employees on their rights and how to
contact the appropriate agencies, despite significant trust,
language and literacy barriers, to correct violations.
Solution: The WHD is developing ``worker rights cards''
specific to reforestation employment in English and Spanish;
working with various entities to distribute these cards and
facilitate the filing of timely complaints; has initiated plans
with the Department of State to provide these cards to workers
upon approval of their non-immigrant visa; and is pursuing a
Spanish language Public Service Announcement and other methods
to reach reforestation workers.
The WHD, Cal-OSHA and the Forest Service will share the
multilingual capabilities of each agency to better communicate
with reforestation workers.
Challenge: Lack of complaints from reforestation workers
requires an effective targeting program that will facilitate
effective enforcement.
Solution: Establishing an effective investigation targeting
program, such as is being done in California later this year
when targeted investigations will be scheduled of approximately
50% of the reforestation contractors.
Using the list of future contracts provided to DOL by the FS,
along with prior WHD and FS experience with the contractors, to
target investigations for maximum effectiveness. Provide
training to FS Contracting Officers (as was done earlier this
year in California), in identifying minor safety/health and
wage/hour issues which can be corrected on-the-spot, and those
more serious issues that must be referred to the WHD or Cal-
OSHA for resolution. On-the-spot correction of minor labor law
violations by contracting officers, as established in recently
expanded FS contract language and field instructions, will
significantly increase compliance with these laws. This new
initiative will be covered in more detail in the FS testimony.
Challenge: Improve timely communication between the FS, Cal-
OSHA and the WHD to insure effective interventions.
Solution: The FS, Cal-OSHA and the WHD are sharing updated
nation-wide contact lists of appropriate agency contacts,
encouraging regular, local/regional meetings when appropriate,
and have established a national level working group to
periodically coordinate and implement joint efforts to protect
reforestation workers.
The dedicated men and women in the field who are charged with
enforcing U.S. worker protection laws understand the challenges and
difficulties of their assignment. On a national level, we are committed
to working together and in the field we will work with any entities
willing to help meet the enforcement challenges we have discussed
today.
Mr. Chairman, this concludes my prepared statement. We would be
pleased to answer any questions that the Subcommittee may have.
Senator Craig. Victoria, thank you.
Mark, this is the fourth or fifth time that Congress has
held a hearing related to enforcements of laws, regulations,
contract provisions for agencies' planting and thinning
contracts since 1980. While some progress has been made, and
we've talked about that, I think there are still many questions
to be looked at and to be concerned about. Both in 1993 and in
the year 2005, the Sacramento Bee wrote articles basically
saying that Forest Service representatives had pointed out that
other agencies have the responsibility to enforce health and
safety and wage law and regulations. Understanding these
charges to your service contracts, why should Congress think
that your employees are going to take this issue seriously at
this time if the fairly standard answer in the past has been
it's somebody else's responsibility?
Mr. Rey. I think this situation is analogous to the
situation of certifying the safety of our large air tankers. We
operated for a period of time under the assumption that the FAA
certificate with those tankers assured their safety for aerial
firefighting, and we learned that wasn't the case. So, we
adapted to do the certification ourselves. Here again, I think
some of our contract officers were under the misapprehension
that they didn't have a specific responsibility. Now we know
that, and they know that they have that specific
responsibility. It's been made express in the contract, made
express in the direction that they've been given by the chief,
and it will be express in their performance reviews.
Senator Craig. Okay. Let's take that a step further then.
If one of your law enforcement officers, contracting officials
or supervisors or line officers happened upon a Forest Service
forest account crew of temporary employees working without the
proper safety equipment or working in an unsafe manner, what
would you expect them to do?
Mr. Rey. What they will do is terminate work on the
contract until the safety problem is corrected. They'll also
indicate to the Department of Labor regulatory agencies that
there's been a safety violation so that that goes on the record
of the contractor.
Senator Craig. How would you expect the line officer to
deal with a direct supervisor or crew boss or a crew found to
be working in violation? You've just answered that maybe.
Suspend the work? Stop the crew?
Mr. Rey. Our only regulatory instrument in terms of
immediate effect is to stop work on the contract. Now that the
contract has express terms of compliance with the various
worker protection requirements, there should be no doubt in the
contractor's mind why he's being told to stop work.
Senator Craig. Is there any reason that the Forest Service
couldn't hire the H-2B-type workers to work on regional
thinning, planting and brush or disposal crews to ensure the
work is getting done in a safe and legal manner instead of the
contract nature that we've had in the past?
Mr. Rey. Well, the reason we use contractors for this
portion of this work is that the work is temporary in nature
and widely distributed throughout the National Forest System,
so it's not the kind of work we would hire permanent employees
to undertake.
Senator Craig. You still believe that that's, for the
circumstances and the situation, the better approach?
Mr. Rey. We still believe that, but we still believe that
we have a responsibility to assure the safety of these workers.
One thing that is changing, though, is--well, two things that
are changing that are worthy of note--one is we are moving much
more heavily into best-value contracting, and we will be
looking at the question of repeated worker safety violations as
part of the criteria in evaluating what the best value will be
from a particular contractor. There's been some view that doing
low-bid contracts or competitive-bid contracts has fostered a
situation where these kinds of worker safety problems are more
common. By moving more heavily into best-value contracting, I
think we're going to reduce the significance of that factor.
The second thing that's changing is that we're doing this kind
of work more and more commonly in long-term landscape scales,
stewardship contracts. And I think with that, what we'll have
is longer-duration contracts with multiple tasks, which will
probably encourage much more worker stability from the contract
work force.
Senator Craig. Well, I was about to ask a similar question
to what you are suggesting, some are temporaries, moving around
as the season changes, not unlike fire crews that we know have
to be mobile because of where fire seasons start and end up. I
mean, there are some analogous situations that would suggest
that maybe summer temporaries might fit that definition.
Mr. Rey. Except that this particular kind of work isn't
usually done in the height of summer, and most of our summer
temporaries are people who have obligations during the balance
of the year, either as students or faculty or teachers or that
sort of thing. This is mostly a spring task because that's the
season we do most of our tree planting.
Senator Craig. Well, with tree planting, that is the case,
yes. Thank you. I've got some other questions. Let me turn to
Senator Bingaman.
Senator Bingaman. Thank you very much. Let me give you a
perspective on this, and you can react, Secretary Rey, or any
or the rest of you. See if I'm right about this. The way I see
it, we wrote these laws, the Congress wrote these laws and
passed them before we got to the circumstance we're now in. And
the circumstance we're now in, there's a commitment by many of
us in the Congress, and I think the administration and others,
to do a multi year, maybe multi decade, effort at proper forest
restoration or thinning work because that's going to be
required in order to deal with the fire risk that we see.
I was in Ruidoso last week in my home state of New Mexico.
And you go around there, and they've done a lot of thinning
around that community, but there's an awful lot more to be
done. And you can almost plan a career working at that if you
decided that that was what you were going to do. That is a
different circumstance than used to exist where it was much
more, you know, here's a short-term project, we need somebody
to come in here and do something. My perspective is that a lot
of this forestry contracting work is very local. I mean, they
say all politics is local. Most forestry contracting work is
local. There are some communities where there are people that
are ready and willing to take that kind of work and pursue it,
and there are others where there just isn't anyone.
The thing that confuses me is, as I understand it, many of
these forestry contractors go ahead and apply for their H-2B
workers. They go ahead and indicate that they need foreign
guest workers and put in their application before they even
know where they're going to have contracts or if they're going
to have contracts. Isn't that sort of crazy? I mean, shouldn't
we first at least know where we're going to have the work done
before we determine whether or not we need to go outside the
country to bring people in to do the work?
Mr. Rey. Well, we're not the only ones doing the
contracting, so, you know, they're doing this work on virtually
all ownerships. And so, what our plans are as far as Federal
land management are concern is only about 30 to 40 percent of
their overall market. But with regard to our plans, I think you
make a point that's very accurate. At least in the thinning and
forest restoration area, we're moving to longer-term, larger-
scale contracts, and that will result in, I think, more local
hiring occurring because people can sort of build a program--a
business plan that extends for several years on the basis of
those longer-term contracts. I think that's going to change the
nature of the contract work force, both the length of the
contract and the fact that the stewardship contracts often have
multi tasks, often tasks that are done in different parts of
the year, which lend a greater degree of stability to the
enterprise than, say, a typical small-scale tree-planting
contract that either we or some forest products company may be
looking for a contractor to do.
Senator Bingaman. And what are the requirements that we put
on as--say we are going to let a contract out near Ruidoso or
northern New Mexico or somewhere to do some work on the
national forest, what do we require that contractor to show us
by way of proof that he or she, whoever that contractor is, has
genuinely tried to hire local people to do this work?
Ms. Lipnic. Senator, that largely falls within the
Employment and Training Administration's certification for the
H-2B contractors, and there is a process by which the
contractor applies to the Department of Labor. First, they
submit an application through the State Workforce Agency. That
application is put together, including the determination about
the worker availability. Ultimately, that file is reviewed by
the Employment and Training Administration at the Department of
Labor. That is not my agency at the department, and I can
certainly get more specifics, but we have someone here from ETA
who could probably address it in greater detail.
Senator Bingaman. Well, I guess my concern--and I see my
time's up, Mr. Chairman, but my concern is that if, in fact,
these contracts are local--and so you've got one in Ruidoso,
New Mexico, on the outskirts of the town there, they want to do
some thinning or some planting of trees, or whatever they want
to do--or up by Truchas, New Mexico, or whatever, is there any
kind of determination made by the Department of Labor or by the
Forest Service or by anyone else that the contractor who
they're getting ready to hire to do that work has actually
tried to hire local people to do that work?
Ms. Lipnic. Well, part of the requirement under the
Employment and Training Administration regulations is that they
have to have looked at the availability of U.S. workers. That
is something that goes into the determination.
Senator Bingaman. But for that contract, or is that just in
a very general sense?
Ms. Lipnic. They have to recruit for the U.S. workers, and
then there has to be a local labor market test. So, they
actually would have to----
Senator Bingaman. Local labor market test, what does that
mean?
Ms. Lipnic. As to the availability of the U.S. workers.
Senator Bingaman. So, they have to determine that there is
a shortage of people willing in that local community to do that
work?
Ms. Lipnic. Yes, sir.
Mr. Rey. And then, when it gets to us, one of the criteria
that we use in determining best value is whether the contractor
is going to produce some local employment, but it's only one
criteria of several that are used in best-value evaluations for
best-value contracting.
Senator Bingaman. Mr. Chairman, I've used more than my
time. Thank you.
Senator Craig. Let me come right off from where the Senator
is questioning as it relates to the test with the contractor.
It's my general understanding, in looking at contractor's lists
and where they work and all of that, that some are operated or
home-officed in one State, but they're doing work in another
State. How diligent is the Department in determining that they
actually made the test for labor availability in the labor
environment in which they are working instead of contracting
from?
Ms. Lipnic. My understanding, Senator, is that they
actually have to look at that local labor market and look at
the test there. Now ultimately, that's reviewed by the State
Workforce Agency and then reviewed by the Employment Training
Administration. So, my understanding is that that is a
requirement and that they have to look at that. Again, this is
not my agency specifically at the Labor Department, so I can
certainly double check on that. The labor market test is
conducted locally even though the crews can certainly move
around.
Senator Craig. Yeah. Well, I have a bit of familiarity with
H-2B workers, and there are a variety of categories in Idaho
beyond just this. Categories where H-2Bs are employed. It is my
sense, in looking at that employment over time, that there
grows a general belief that the type of worker they're looking
for doesn't exist, and they become dependent upon the H-2B
employee. And I'm just curious as to how thorough and rigorous
the test is or if it simply becomes a process now to gain
access to the H-2B worker. That's not to suggest that they are
available and untested at the local level because in most
instances, it is my belief they are probably not. At the same
time, observing several employers in my State who've become
increasingly dependent on H-2B, it is that they are dependent
upon them. It appears to me they are not seeking outside that
particular category or market for an employee of the type that
would fit that job description.
Ms. Lipnic. Senator, I couldn't speak too specifically as
to that. I can tell you that, again, the Employment and
Training Administration would ultimately have to evaluate the
work in the certification that was suggested by the State
Workforce Agency.
Senator Craig. Okay. Well, I'll come back to you in a
moment. Ms. Collins, I would like to ask you a couple of
questions if I may. The Chief and Director of Acquisition
Management, Ron Hooper, sent out memos to the field on the
issue we're addressing here today. The Chief's November 18,
2005, memo said, amongst other things, ``I expect expertise and
immediate action. Contract administrators must be able to
recognize health and safety violations. When these situations
occur, they must take action, and don't let them work.''
Mr. Hooper's January 4, 2005, memo said, ``Please ensure
that these provisions are included in all service contracts.
Finally, please ensure that all service contract files within a
written statement to the effect of the contracting officer, the
contracting officer's representative or the contract inspector,
has reviewed these requirements on these provisions with the
contractor and has conducted at least one inspection of
existing and new service contracts to ensure compliance with
these provisions when applicable.'' And my question to you is
how many contracts have your inspector or contracting officers
reviewed, shut down or found to have failed to live up to the
new service contract provisions since the reference memos went
out?
Ms. Collins. Well, we are in just the first part of March,
and our contracting is just starting right now, so we don't
have any active contracts going on right now.
Senator Craig. At this moment?
Ms. Collins. At this moment. Now, we will start including
these in the new contracts that are coming out this year. We
have about 240 contracts that will be part of our program this
year. All of them will have those provisions in, and then at
that point, we'll--when we have active contracts going on, all
of that will start happening.
Senator Craig. Okay. You now have a significant amount of
experience with best-value contracts or the stewardship
contracting. Would we get better performance that better
enforces health and safety and other labor laws if we shifted
all service contracts to a best-value contract process?
Ms. Collins. We have some great experience with best value,
and stewardship contracting is a good example of that, that we
have been doing for the last couple of years. And most of our
service contracts use best value now already. What we are
assuring through this process is that the kinds of issues we're
dealing with and the cases we're talking about here today will
be incorporated in those best-value determinations. So, it's
not just what's the least cost contract or the low-bid
contract, but its things like do they come in within budget,
did they perform well, did they get the work done that we
wanted done in a quality way, and were they meeting the
provisions of the contract that you just laid out at the
beginning of this question.
Senator Craig. Okay. Victoria, I noted that like many large
Federal departments, many times the right hand doesn't know
what the left hand is doing. Has the Department taken any steps
to ensure that departments within your agency have access to
each other's data and that other agencies from other
departments have access to the data to help them recognize the
bad actors and to withhold contracts from those identified as
continually violating to live up to the health and safety labor
laws of our country?
Ms. Lipnic. Senator, first, as to the relationship between
the Labor Department and the Forest Service, which is certainly
critical to this issue, I'll give you the example of our
Sacramento, California office, which has had a long-standing
relationship with the Forest Service. On a regular basis, the
Forest Service will contact our district office in Sacramento
and ask for any history of violations that we may have,
particularly as to MSPA violations, the Migrant and Seasonal
Agricultural Worker Protection Act. We actually have a form
that we will fax back to them with the violations, and that
would include lists of ineligible farm labor contractors.
Within the Department, we maintain, on the Department's
website for MSPA violations, all of the ineligible farm labor
contractors and certainly any contractors that have been
debarred, which is the ultimate sanction, particularly in the
Service Contract Act. Those are maintained on the GSA website
as to Service Contract Act debarments. That information is
readily available from the Department. Also, we do have an
exchange of information with the Forest Service.
Senator Craig. When you identify a company that has
repeated violations of health, safety and wage requirements, do
you contact the land management agencies to let them know what
your investigators are finding out?
Ms. Lipnic. To the best of my knowledge, as a general
matter, I believe the answer to that is no. Now, that's why it
is critically important that we have the kind of relationships
that we have with the contracting agencies, whether it's the
Forest Service or any other contracting agency for labor
standards violations, that those relationships exist at a
district-office level or at a regional-office level so that
that kind of information can be shared. We do have that
relationship in the Sacramento office with the Forest Service.
And in other offices around the country, it's probably not as
good as it should be, but the Under Secretary and I have talked
about this and have a commitment to have that kind of
relationship, driven from the top down, to make sure that the
practices in our Sacramento office will be incorporated
nationwide.
Senator Craig. Thank you.
Senator Bingaman.
Senator Bingaman. Let me just try to sort out two issues
here--one is to what extent local contractors are hired to do
this work. They're contracted with by the Forest Service to do
this work. Is it possible, in my State of New Mexico, to get a
listing, say, of last year, how many contracts were let and how
much of that went to local contractors versus out-of-State
contractors to do Forest Service work?
Mr. Rey. Sure, we can get you that list.
Senator Bingaman. Okay. And the second issue is to--whether
it's a local contractor or a contractor from another State, the
question is whether that work is actually being done by foreign
guest workers or whether that work is being done by residents
in that community that have been hired. And again, is that
something we could get an indication?
Mr. Rey. Yes.
Senator Bingaman. Because you would know, I mean, as to
each of the contracts that you let, not only who the contractor
is, but whether or not they're doing the work with foreign
guest workers.
Mr. Rey. That's correct.
Senator Bingaman. If I could get that for New Mexico, that
would be helpful in determining whether there's a serious
problem or whether this is just sort of an anecdote that I hear
about when I travel around and isn't really based in a whole
lot of fact.
Mr. Rey. We can get you those.
Senator Bingaman. I hear complaints about both. I hear
complaints by people saying our local contractors can't get
these jobs because people are coming in from Idaho or from
wherever and taking these jobs, these contractors are. And then
I also hear that local workers can't get hired even though they
like the jobs, because there are foreign guest workers that are
brought in. So, if you could help with that, that would be
great. I'm also curious how these prevailing wages are
determined. Maybe that's the Department of Labor's job. How do
you determine the prevailing wages?
Ms. Lipnic. Senator, there is an entire Wage Determination
Office within the Wage and Hour Division that determines the
prevailing wages through use of surveys, whether it's the
Davis-Bacon Act or Service Contract Act, and I think I'll
actually defer to Mr. Ginley, who is probably far more expert
at this than I am.
Senator Bingaman. But when you use prevailing wages in this
context, it's the same as you use in the Davis-Bacon context?
Is that right?
Mr. Ginley. Yes, Senator, it is.
Senator Bingaman. Okay.
Mr. Ginley. We established the prevailing wage for the type
of work in that vicinity for the classification of workers.
Now, under the service contracts, it's basically one
classification of workers, unlike Davis-Bacon, which of course
have multiple classifications. Also, we'll set prevailing
fringe benefit requirements that must be paid on this contract.
Senator Bingaman. And what are those? I mean typically,
what kind of fringe benefit?
Mr. Ginley. Typically, it will be something like $2.32 an
hour toward health and welfare benefits. So, if a worker works
40 hours, that amount of money times $2.32 is contributed
toward health and welfare benefits. Although all of this
doesn't typically happen in these temporary contracts. If they
work for a sufficient period of time, they typically get paid
vacation, a week after a year or something of that nature. But
typically, these contracts are very short.
Senator Bingaman. And you do monitoring to be sure that
those wages are actually paid and that those benefits are
actually provided?
Mr. Ginley. Yes, Senator, we do. When we do an
investigation of one of these contractors, we do the
investigation under both MSPA, the Migrant and Seasonal
Agriculture Worker Protection Act, which has protections for
housing, transportation, notification, and under the Service
Contracts Act, for the prevailing wage requirements and for the
fringe benefit requirements.
Senator Bingaman. Okay. Am I right that there are
protections that the law puts in place for H-2A workers,
agricultural guest workers, that do not apply in the case of H-
2B workers?
Mr. Ginley. You're correct, Senator.
Senator Bingaman. And what are those distinctions?
Mr. Ginley. Well, the H-2A provisions require, for
agricultural workers, and we're not talking about agricultural
workers here with the reforestation industry, H-2A agricultural
workers must be paid a prevailing wage also. It has to be the
higher of the two--actually, the prevailing or the adverse
effect wage rate. There are certain transportation guarantees.
Housing must be provided and certain other conditions of
employment that do not come with H-2B status. There are no such
requirements for H-2B workers.
Senator Bingaman. Well, I can certainly understand that it
might make sense to not have the same requirements for H-2B
workers in a lot of different fields. I've wondered, though,
the kind of work we're talking about here is pretty close to
agricultural work.
Mr. Ginley. Yes, Senator, it obviously is. The definitions
used follow the statutory definitions. H-2A work is all work
considered agriculture, under either the IRS code definitions
or the Fair Labor Standards Act definitions, which both exclude
forestry work. Also, the application of MSPA, which is
typically applied to agricultural workers, is required because
of a national injunction placed on the Department by the 9th
Circuit in the 1980's, requiring that we apply MSPA, enforce
MSPA, for the predominantly manual reforestation work done in
the forests.
Senator Bingaman. Okay, so am I understanding that your
view is that the requirements for H-2A generally make sense in
the case of H-2B forestry workers?
Mr. Ginley. It's what the law requires, Senator. I'm not
sure how to respond to what makes sense. We enforce the law as
written. The H-2B provisions of the INA do not have those
requirements, although the work, of course, has some similarity
to the work done by traditional H-2A agricultural workers.
Senator Bingaman. Okay. Thank you very much, Mr. Chairman.
Senator Craig. Well, thank you all very much. We'll stay
tuned and watch with the new regulations in place from the
Forest Service side. As you know, the Judiciary Committee is
starting markup on a major immigration bill tomorrow. And we
will focus on that intently as it relates to the impact on H-
2As, H-2Bs and certainly others and what other adjustments will
need to be made specific to the Forest Service and the kind of
work that is--none of us dispute the critical nature of it and
the importance of it, but we also want to make sure that proper
hiring practices are utilized and people are being treated
appropriately. Thank you all very much.
Ms. Collins. Thank you very much.
Senator Craig. All right. We would like to introduce our
second panel. Michael Dale, Northwest Workers' Justice Project
from Portland, Oregon; Lynn Jungwirth, Watershed Research and
Training Center of Hayfork, California; Cassandra Moseley,
Institute for Sustainable Environment, University of Oregon,
Eugene; and Cindy Wood, Wood's Fire and Emergency Services of
Portola, California. I thank all of you for being here. I can
see by definition you've all traveled a bit. And Lynn, it's
good to see you again. Michael, we'll start with you. Please
proceed.
STATEMENT OF D. MICHAEL DALE, EXECUTIVE DIRECTOR, NORTHWEST
WORKERS' JUSTICE PROJECT, PORTLAND,
OREGON
Mr. Dale. Thank you, Senator, and thank you to the
subcommittee for the opportunity to testify. I am going to
depart quite a bit from my written testimony and try to respond
to some of the questions that were suggested by the earlier
testimony today and then also summarize.
Senator Craig. Well, your written testimony will be a part
of the record, so please proceed as you see fit.
Mr. Dale. I wanted to address a couple of the questions
that came up earlier. From the perspective of a long time--
first, migrant legal services, and then since, in a private
nonprofit, I've been representing reforestation workers for
nearly 30 years. On the question of the regulations of H-2B
workers and H-2A workers and the relative requirements,
actually, when it--at one point, there was only H-2. And in the
Immigration Reform and Control Act of 1986, the two programs
were split with some of the regulations for H-2A written into
the statutes, others to be developed by the Secretary, as part
of an immigration reform bill that basically wanted to put the
H-2A regulations in statute. The understanding at that point
was that similar regulations for H-2B would be developed by the
Department of Labor that would reflect the differences between
other kinds of employment potentially possible under H-2B and
agricultural employment. That's quite appropriate. What the
Department of Labor did, in fact, was they simply adopted about
one page of regulations that says that they'll follow the
statute, and in following the statute, they'll be guided by the
H-2A regulations. And that's it. There are no detailed
regulations governing H-2A and H-2B--I'm sorry, governing H-2B
workers. And it would be appropriate--one of the suggestions I
made in my testimony is to develop detailed recommendations
with respect to regulations of H-2B workers now that the
program has been in existence for nearly 20 years. And they
ought to include a number of the kinds of things, at least for
forestry workers, that are included for agricultural workers.
Second question, this question about where is recruitment
done for H-2B workers. Actually, there is local recruitment,
but the local recruitment where you have what's called an
itinerary application--this is an application that proposes to
move a crew from place to place to place. The recruitment
that's required is fairly minimal, far less than is required of
H-2A agricultural employers, and it is only in the local area
where the itinerary begins. So, if you're talking about--I
first got involved in this in the late 1990's because we were
seeing H-2B workers brought to Oregon where the only
recruitment was done in a small rural town in Mississippi
because that's where the itinerary started. We did get an
agreement from the Department of Labor that they would only
permit itineraries within one DOL region, but nonetheless, it
would not be the case that there is recruitment of local people
in each place that contracts occur, and I'm fairly certain
that's still the standard.
Moving to my recommendations, I would start by prefacing it
with this: I was going to read, actually, a section of a multi-
part expose of the forestry industry. That was not the
Sacramento Bee, it was actually the Idaho Statesman Journal
from 1980, but the lead could have been the lead to the Bee
Series. Simply to say that these have been persistent, nagging
problems, we have had occasional spasms of attention being
given to them. And things improve for a period of time, and
then the attention dies away. And there's something in the
institutional culture of these agencies that says I'm a
forester, I deal with trees, I don't deal with labor, and
there's quite a bit of insularity. So, my suggestions are made
at trying to figure out how to institutionalize the obviously
good faith and genuine intent of the leadership of the agencies
now so that we don't find ourselves back in the same position
in another 5 years.
First of all, it seems to me there needs to be more
cooperation between the agencies. It has to be ongoing. It has
to be institutionalized. And we're suggesting that Congress ask
the Department to create an interagency working group that
periodically reports back to this committee or other
appropriate committees so that you have some continuing focus
and some reason for people to continue to pay attention to
these questions. Many of the fatalities in forestry work come
from vehicle crashes where we haven't had seatbelts. The
Department of Labor has authority to require seatbelts under
the Migrant and Seasonal Agricultural Protection Act.
I would suggest that they do that or be urged to do that by
Congress. Finally, one of the reasons that H-2B workers are
exploited is that they don't have access to very good remedies
with respect to how to get to court. H-2B workers, even though
they're working legally in the United States, even though they
are paying taxes, are not permitted to be represented by
programs and legal services that receive any Federal funding.
There's really not any justification, and that change alone
would have as much effect on this industry as anything that
could be done. Thank you very much.
[The prepared statement of Mr. Dale follows:]
Prepared Statement of D. Michael Dale, Executive Director,
Northwest Workers' Justice Project, Portland, OR
Mr. Chair, members of the Subcommittee, thank you for the
opportunity to speak with you today concerning the protection of
reforestation workers on public lands. I spent twenty-five years as a
migrant legal services lawyer, and directed the Oregon migrant program
for most of that time. A key aspect of our work concerned the
exploitation and abuse of workers on our national forests and BLM
lands. Since its inception in 2003, the Northwest Workers' Justice
Project has been providing legal assistance to reforestation workers in
Oregon, Idaho and elsewhere who have been struggling to enforce their
right to decent conditions and fair pay.
Although some progress has been made, I must say that, overall, the
treatment of workers who replant, thin and maintain national forests
has been shameful. I have represented workers who were not paid the
required Service Contract Act rate, did not get paid overtime, were
unlawfully charged exorbitant fees for recruitment, transportation,
housing, food, and even for the chain saws needed for their work and
the gasoline for the saws, or were not paid at all. My clients have
slept in the cold of winter in the mountains in equipment trailers, or
under a plastic tarp. Some were abandoned in the mountains without food
or transportation by their employer. Saddest of all, I have represented
the families of workers who died in vehicle accidents on icy mountain
roads in unsafe vehicles.
The latest attention focused on this work by articles in the
Sacramento Bee has only begun to scratch the surface of the misery that
some of those who contract with the United States inflict. I welcome
the changes being made by the Forest Service in its contracting
procedures. But with all due respect for obviously sincere good
intentions, it is important to note that we have been here before.
Every few years there have been similar exposes--a few years ago, it
was a segment on Prime Time Live. These episodes have inevitably been
followed by a flurry of activity, with renewed statements of intent to
do better. However, as the focus of public attention faded, so, sadly
did the focus of enforcement activity. To make a truly significant
difference in the industry will require sustained, purposeful effort.
In this light, I propose the following:
proposed reforms to improve h-2b forestry worker safety
and working conditions
The Secretary of Labor should issue a regulation requiring seat belts
and identification for vehicles transporting forestry workers
and other migrant and seasonal agricultural workers
On September 10, 2002,14 H-2B forestry workers were killed when the
van in which their employer was transporting them to work toppled off a
bridge in Maine. In two separate accidents in Washington state over the
past two years, seven Guatemalan workers from the same tiny village
were killed as they were driven over icy roads to pick brush on forest
service lands. Motor vehicle accidents are the number one cause of
fatal injuries among agricultural workers. These accidents have a
common theme--they frequently involve exhausted drivers in overloaded,
unsafe vans driving over long distances on foggy, icy, or windy
mountain roads. In eight of the fourteen accidents reported in the
Sacramento Bee series, ``The Pineros,'' five or more workers lost their
lives in a single accident.
Under the Migrant and Seasonal Agricultural Worker Protection Act,
the Secretary of Labor is authorized to issue regulations to improve
the safe transportation of migrant and seasonal agricultural workers.
29 U.S.C. 1841. (The Migrant and Seasonal Agricultural Worker
Protection Act protects reforestation workers.) The act authorizes the
Secretary to make reasonable regulations, considering the numbers of
workers transported, the distance over which they are transported, the
type of vehicle involved and the type of roads over which they are
transported. In order to protect the health, safety and lives of these
workers, the secretary should amend these regulations.
Currently, federal law requires that vehicles meet a number of
specific safety measures, including that there be a seat for each
passenger. Nonetheless, these regulations do not require seat belts.
Many forestry workers are killed in transportation accidents because
they are ejected from the vehicle due to the lack of seat belts. In the
most recent accident in Washington state, a worker was killed after
being ejected from the van and run over by an oncoming truck. A
particularly tragic accident involving 13 workers in California led the
legislature in that state to pass a law in 1999 requiring seat belts.
The Florida legislature is currently considering similar legislation.
Under the California program, all vehicles used to transport farm
workers are required to be labeled that they are ``Farm Labor''
vehicles so that the State Highway Patrol can specifically inspect them
for compliance with the seat belt and other safety provisions.
The Secretary's regulations also leave a simple escape route for
employers seeking to abdicate responsibility for the vans in which
their workers are transported, by providing that transportation which
is not ``specifically directed or requested'' by an agricultural
employer is exempt. The California state ``raitero'' (driver) law is
more specific in that it covers any vehicle used to transport workers
``to render personal services in connection with the production of any
farm products to, for, or under the direction of a third person.''
We urge the Congress to recommend that the Secretary of Labor
utilize her authority to issue a regulation under the Migrant and
Seasonal Agricultural Worker Protection Act, requiring that: 1)
vehicles used to transport forestry and other migrant and seasonal
agricultural workers be equipped with a seat belt for each passenger;
and 2) be identified on the outside of the vehicle as a ``Agricultural
Labor'' vehicle.
Creation of a joint task force between DOL and U.S. forest management
agencies that reports to Congress
One problem is that the DOL lacks the capacity really to monitor
forestry contracts. Crews are in remote areas, hard to find, and hard
to reach. BLM and USFS have contract compliance people that are
regularly checking on the contracts and often encounter labor
violations; however, they don't have much training on wage and hour
laws, and more importantly, they do not usually see enforcement of the
labor standards aspects of Service Contract Act contracts as being a
significant part of their jobs. What makes sense is to instill a sense
of obligation for the workers in the forest management agencies, and to
institutionalize collaboration with the Wage and Hour Division. To do
that on an ongoing basis, Congress could call for creation of a joint
task force with periodic reports back to Congress on progress made. As
noted above, similar concerns have been raised in the past; however the
higher standards were lost with the decline in public scrutiny.
Accordingly, ongoing reporting on a periodic basis is important in
order to maintain scrutiny. Further, the effort needs to be
sufficiently sustained in order to break down an institutional culture
that sees efficiency in getting the trees planted and thinned as being
paramount over labor considerations.
DOL should adopt regulations imposing H-2A-like standards in the H-2B
program
DOL could take some additional steps to strengthen enforcement.
When the H-2B program was created, DOL was supposed to develop
regulations modeled after the H-2A regulations. This was never really
done, and the result is a lack of standards for H-2B workers. DOL
should be encouraged to fulfill this obligation now. For the most part,
the H-2A regulations should be the model, with consideration for the
special aspects of forestry. However, forestry workers should not be
encompassed within the H-2A program, as this would destroy the
protections that they have under the Migrant and Seasonal Workers
Protection Act.
DOL and the forestry agencies should hold repeat offenders responsible
for their actions
Both DOL and the forestry agencies need to be willing to take
strong action against repeat offenders of labor standards. At one time,
the Forest Service agreed to subject contract bids that were
significantly below the agency's estimate to special scrutiny to assure
that the lowest bidder is a responsible one. It is unclear if they
still do this, but blatant abusers of workers are awarded contracts
year after year. They should be debarred by the DOL, and should not be
viewed as being capable of performing the contract by the contracting
agencies. One of the contractors in the Pineros series who had been
sued for holding workers in peonage was still defended by a Forest
Service official as being a great contractor because he produced
quality results for the Forest Service.
Further, the Forest Service and BLM need to take steps to change
the culture of those agencies so that contract officers know that
enforcing the service contract's labor protections is just as important
as getting the work done. Training, evaluation and promotion should
take this factor into equal consideration, and the agencies'
expectations in this regard must be clearly and consistently
communicated. The steps taken by the Forest Service are a good
beginning, but the obligation of agency line staff to follow through
must be reinforced over time.
The DOL should ensure that the H-2B program is used as intended--only
when there is a shortage of U.S. workers
The H-2B program is abused in forestry in a number of ways that
should be addressed by DOL. The program is supposed to be used to
provide a way to obtain needed workers for existing jobs where an
employer can't find U.S. workers available at a time and place needed
for a specific job. Many forestry contractors, though, apply for H-2B
workers before they know what contracts they will have. The workers are
recruited and brought here on speculation that contracts will be
awarded. Then, it may turn out that expected work is not available.
This leads to underemployment of the workers, and commonly, to use of
the workers in other jobs which pay less than the forestry wage and
which are not authorized work. Since forestry jobs are covered by the
Migrant and Seasonal Agricultural Protection Act, forestry contractors
are required to give recruited workers a disclosure statement
describing the particular work and pay arrangements they are offering.
H-2B procedures require contractors to attempt to recruit U.S. workers
for the work for which foreign workers are sought prior to admission of
the visa workers. DOL could require that forestry contractors supply a
copy of their recruitment disclosure statement detailing promised work
with their H-2B application to help ensure that the contractor actually
has a specific need for workers.
Forestry Workers should be given access to legal services provided by
the Legal Services Corporation
Ultimately, agency enforcement of labor standards can only go so
far. Workers need to have the ability to take steps to protect
themselves, and often will need specialized legal assistance to do so.
H-2B workers are working in the United States legally as ``guest''
workers at the invitation of the United States, under guarantees of
labor protections designed to protect them, and importantly, to protect
the wages and working conditions of U.S. workers. Yet, they are
excluded from eligibility for representation by legal services programs
that receive any funding from the Legal Services Corporation. Often,
they find that there is no other legal representation available to
them. There is no rational basis for this exclusion, and its
elimination would do more to improve the conditions of H-2B forestry
workers than any other step that Congress could take.
A final recommendation concerns what DOL and the forestry agencies
should not do. Some of the contractors on national forests use workers
who are not properly authorized to work in the United States. In past
efforts to clean up the reforestation industry much of the emphasis has
been on turning such workers in to the immigration authorities. This
practice has been highly counter productive. Ultimately, given the
isolation of the work, enforcement of labor standards in the woods
depends upon the cooperation of exploited workers. A policy that leads
workers to conclude that the only response to complaints will be that
they will be turned over to ICE will not foster the needed cooperation
and openness; rather, it will only drive abuse farther underground and
leave Pineros even more dependent on those who would exploit them.
Thank you for your consideration of these comments.
Senator Craig. Michael, thank you. I would hope that we
don't register this hearing as an occasional spasm.
Mr. Dale. No, this is the beginning of the real solution.
Senator Craig. All right, thank you. That makes my day feel
a bit better.
Cassandra, please proceed.
STATEMENT OF CASSANDRA MOSELEY, Ph.D., ECOSYSTEM WORKFORCE
PROGRAM, INSTITUTE FOR SUSTAINABLE
ENVIRONMENT, UNIVERSITY OF OREGON
Ms. Moseley. Thank you, Mr. Chairman, and thank you for the
opportunity to let me come today and share some of my thoughts
on the working conditions of forest workers.
I want to begin by commending Tom Knudson and the
Sacramento Bee for what I think is outstanding reporting on the
plight of forest workers, and I also want to applaud the Forest
Service for its rapid response to the issues raised in the
``Pineros'' series. I would argue, however, that although the
Forest Service is on the right track, the agency seems to be
interpreting the problem too narrowly and therefore is at risk
of failing to address some of the systemic problems that face
forest workers and contractors.
Over the past several years, I've been studying the working
conditions of forest workers. And today, I want to share some
of those results and offer some ideas about how things might be
improved. The Sacramento Bee series focuses primarily on H-2B
workers, and that's been a lot of the discussion today, but
forest workers can also be U.S. citizens, non-citizens with
green cards, and they also are frequently people without
permission to work in the United States. And all of these
workers can suffer from labor law violations and poor job
quality, and I want to suggest some of the problems that we
found in our recent studies.
According to data from the Oregon Employment Department,
half of forestry services workers in Oregon earn less than
$4,400 a year, and more than 85 percent earned less than the
Federal poverty level for a family of four in 2003. The wages
that workers actually receive may well be less, particularly
for undocumented workers. Undocumented workers are sometimes
recruited by people who take part of their wages, something
between $1 and $4 an hour in exchange for continued employment.
Another practice is to pay workers for 8-hour workdays even if
they work more. And although some workers are employed nearly
all of the year, most work part time erratically and
seasonally. And if you squish all their work into a period of
time, they work about--the average forest worker in Oregon
works the equivalent of about 3 full-time months. It's
tempting, then, to think that these might be the summer jobs of
college students, but that's not the case. Most are Hispanic
workers, and half of the forestry services workers in Oregon
also work in jobs outside of forestry.
Our studies also suggest that many workers felt that they
could not report on-the-job injuries for fear of being fired,
and we also heard frequent reports of crew bosses who required
forest workers to work all day without breaks for lunch or
water. There are undoubtedly a number of causes of these
working conditions in the various policies and practices of
Federal procurement and labor law, but I want to highlight
three major institutional causes of these working conditions
that I think will have to be tackled if real progress is going
to be made. Those are accomplishment targets and budget
allocation processes in the Forest Service, de facto use of
low-bid contracting, and the lack of labor law enforcement.
Some of these themes have already come up today.
The Forest Service's budget and staff advancement has long
been tied to accomplishment targets. Meeting targets in one's
area increases budgeting and staffing. It leads to promotions.
Units that don't meet targets or fail to do so or do so at too
high of a cost suffered from budget cuts. This focus on
maximizing natural resource accomplishments creates few
institutional incentives for attending to job quality of
contracted work forests or ensuring that contractors follow
labor laws.
The pressure of meeting targets is compounded by a history
of low-bid contracting. Until the 1990's, the Forest Service
and the Bureau of Land Management, as most Federal agencies,
were required to award contracts to the lowest bidder. In the
1990's, the Federal procurement laws changed, and the agencies,
the Forest Service and the BLM, began to be able to negotiate a
contract. This is what we've been referring to as best-value
contracting. But our interview with contractors and workers
found that many--and the Forest Service does use best-value
contracts most of the time, but interviews with contractors and
workers felt that--most felt that the most important criteria
was still price. They felt that price was the most important
factor and that in this environment, they had to compete
against contractors who were willing to cut corners on quality
and break the law in order to offer the lowest bid.
The Forest Service has typically viewed enforcement as the
responsibility of the Department of Labor, but this enforcement
with the Department of Labor as the primary--maybe the only--
actor is very difficult because of the remoteness of work
sites. Of the roughly 85 forest workers we interviewed in
Oregon, virtually no one had ever seen someone from the
Department of Labor or the Oregon Bureau of Labor Industries
when they were working in the woods, and contractors complain
that they face unfair competition from businesses that are
breaking the law.
So, my written testimony presents several recommendations,
but I'm just going to focus on one here, and that is that the
system of enforcement and accountability needs to be
overhauled. And I think today we've heard some of the beginning
steps of that from the Forest Service's perspective, but we
need a system where the Forest Service and the Bureau of Land
Management participate actively in enforcing labor law. Yes,
they cannot issue citations, but they can play other vital
roles because they are the ones who are regularly in contact
with contractors and workers in the field. We need a system
where Forest Service staff report and correct problems with
working conditions as quickly as they address the land
management components of contract compliance. The agency needs
staff who understand that it's their job to collect and report
information about how the workers are being treated. The agency
needs to provide staff with direction and training to ensure
that they can identify labor law violations and know that they
are responsible for reporting suspected problems to the
Department of Labor. The agency needs bilingual inspectors and
contracting officer representatives who can talk directly to
workers. And to echo your recommendation, they need to have a
mandated relationship with the Department of Labor.
So, let me stop by saying 13 years ago, theSacramento Bee
ran a series about the working conditions of forest workers.
Then, the emphasis was on undocumented workers. Today, it's on
H-2B workers, but the working conditions were no different. My
hope is that in 13 years, the Bee won't have to run another
series about forest workers because by then, high-quality jobs
in our Nation's forests will become commonplace. Thank you.
[The prepared statement of Ms. Moseley follows:]
Prepared Statement of Cassandra Moseley, Ph.D., Ecosystem Workforce
Program, Institute for a Sustainable Environment, University of Oregon
Mr. Chairman and Members of the Subcommittee:
Thank you for the opportunity to testify before you today. I am
pleased to be able to contribute to this timely issue. Tom Knudson's
``Pineros'' series in the Sacramento Bee has brought to light troubling
and all-too-common problems with the way the work of federal forest
management is accomplished.\1\ Today's hearing is particularly
important because the working conditions in our nation's forests affect
not only the lives of workers and their families, but also the
viability of small rural businesses and the integrity of forest
ecosystems. It presents an important opportunity to discuss our current
understanding and explore solutions to the challenges of creating
quality jobs for forest workers and economic opportunities for public
land communities.
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\1\ Tom Knudson, ``The Pineros: Men of the Pines,'' Sacramento Bee
, November 13, 2005. http:/www.sacbee.com/content/news/projects/
pineros/.
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I am on the faculty of the University of Oregon, where I direct the
Ecosystem Workforce Program in the Institute for a Sustainable
Environment. Founded in 1994, the Ecosystem Workforce Program seeks to
help build a high-skill, high-wage forest and watershed restoration
industry in the Pacific Northwest. The Ecosystem Workforce Program does
this by providing technical assistance to rural communities and their
agency partners, and by undertaking applied research and policy
education related to community-based forestry and federal forest
management.
Over the past five years, I have undertaken a series of studies on
how Forest Service and Bureau of Land Management (BLM) restoration
contracting creates rural community benefit, and on the working
conditions of federal contract forest workers. As part of these
studies, my collaborators and I have interviewed forest workers and
contractors and analyzed federal contracting and state employment data.
We have examined these issues in general terms as well as under
specific programs including the National Fire Plan, the Northwest
Forest Plan, and stewardship contracting.
Much of my work has been focused on the Pacific Northwest, but the
work of other scholars such as Josh McDaniel and Vanessa Casanova make
clear the challenges are not limited to a single part of the
country.\2\
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\2\ Josh McDaniel and Vanessa Casanova, ``Forest Management and the
H2b Guest Worker Program in the Southeastern United States: An
Assessment of Contractors and Their Crews,'' Journal of Forestry 103,
no. 3 (2005); Josh McDaniel and Vanessa Casanova, ``Pines in Lines:
Tree Planting, H2b Guest Workers, and Rural Poverty in Alabama,''
Southern Rural Sociology 19, no. 1 (2003).
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a forest restoration workforce
Our nation's forests and watersheds have significant restoration
and maintenance needs, including decaying forest roads, degraded stream
and forest habitat, and overstocked stands in need of thinning to
reduce wildfire risk and restore fire-adapted ecosystems. These needs
present an opportunity to create high-skill, high quality jobs to
benefit rural communities, small businesses, and forest workers. For
over a decade, community forestry advocates and their federal agency
partners have sought to combine the ecological need for high quality
restoration with the economic need for high quality jobs to contribute
to the well-being of public land communities. The hope has been that
communities could replace lost logging and milling jobs with jobs
restoring national forests and other public lands.
The notion of creating community benefit through federal forest
management dates back to the founding of the Forest Service. It can be
found in Gifford Pinchot's writings as well as in 20th century
legislation including the New Deal, the Sustained Yield Management Act
of 1944, and the National Forest Management Act of 1976. Several times
since 2000, Congress has encouraged the Forest Service to create
community benefit through forest restoration as part of the National
Fire Plan, Secure Rural Schools and Communities Self Determination Act,
and through stewardship contracting authorities. In addition, Congress
has enacted numerous labor laws, including the Service Contact Act,
Contract Work Hours and Safety Standards Act, and the Migrant and
Seasonal Agricultural Workers Protection Act, which were designed to
create quality jobs for federal contract workers.
contract forest work and workers
Forest restoration work involves a wide variety of tasks, from
maintaining forest roads, restoring streams to create fish habitat, and
collecting native grass seed, to planting trees after logging or
wildfires, and thinning overstocked stands to improve habitat and
reduce fire hazard. The primary way that restoration work is performed
on national forest and other federal forest lands is through service
contracts and, increasingly, stewardship contracts. The federal
government awards restoration contracts to businesses that, in turn,
hire workers to undertake restoration and maintenance activities.
Labor-intensive forest workers those who plant trees, thin
overstocked stands, pile brush, and fight fires--come from a variety of
ethnic backgrounds. Typically, they are Hispanic and white and, to a
lesser extent, Native American and African American. Although the
Sacramento Bee ``Pineros'' series focused primarily on H2-B workers,
forest workers can be U.S. citizens, non-citizens with resident alien
papers, H2-B guest workers, and those without permission to work. In
the Southeastern U.S., contractors seem to make more use of H2-B
workers, whereas contractors in the Pacific Northwest appear to rely
more heavily on undocumented workers.
challenges of creating rural community benefit
Despite the direction to create rural community benefit and to
protect workers from exploitation, the Forest Service and other federal
land management agencies have had difficulty systematically creating
rural community benefit with their procurement contracting program. The
main way that the agencies create community benefit in public lands
communities is when they award contracts to local firms (as opposed to
distant firms hiring local workers).\3\ In the Pacific Northwest, the
Forest Service and BLM frequently award equipment intensive contracts
such as forest road maintenance and stream restoration to local
businesses. But contracts that involve labor-intensive activities such
as thinning, tree planting, and brush piling tend to be awarded to
urban-based businesses that have access to large pools of low-cost
labor and are able to travel long distances inexpensively.\4\ The
authority to consider local benefit as part of best value (such as with
the National Fire Plan) can have some positive impact, but it is
unclear how frequently it is used.\5\ In addition, partnerships between
local non-profit organizations and the BLM and Forest Service can be
used to create local benefit from restoration work using grants and
agreements authorities.\6\
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\3\ Steverson Moffett et al., ``Assessing Community Benefits from
Land Management Activities on National Forests,'' (Washington, D.C.:
Pinchot Institute for Conservation, forthcoming).
\4\ Cassandra Moseley and Stacey Shankle, ``Who Gets the Work?
National Forest Contracting in the Pacific Northwest,'' Journal of
Forestry 99, no. 9 (2001). Cassandra Moseley, ``Procurement Contracting
in the Affected Counties of the Northwest Forest Plan: Twelve Years of
Change,'' (Portland, OR: USDA Forest Pacific Northwest Research
Station, 2005).
\5\ Cassandra Moseley and Nancy Toth, ``Fire Hazard Reduction and
Economic Opportunity: How Are the Benefits of the National Fire Plan
Distributed?,'' Society and Natural Resources 17, no. 8 (2004).
\6\ Mark Baker, ``Socioeconomic Characteristics of the Natural
Resources Restoration System in Humboldt County: A Partial View,''
(Taylersville, CA: Forest Community Research, 2004).
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poor working conditions for forest workers
As recent news articles and academic research make clear, many
forest workers, especially those that perform labor-intensive
activities such as firefighting, tree planting, and thinning, face
dangerous working conditions, irregular employment, low wages,
exploitation, and inadequate training. Guest workers and undocumented
workers are most vulnerable to exploitation, but studies also suggest
that citizens and resident aliens can also suffer from labor law
violations and poor job quality.
For example, in 2003, the median wage among forestry services
workers in Oregon was $11.97 per hour, but half of workers earned less
than $4,355 all year.\7\ More than 85% of workers earned less than the
federal poverty level for a family of four (see figure 1).\8\ Wages
that workers actually receive may well be less, particularly for
undocumented workers, because workers are sometimes hired through
``subcontractors'' who recruit workers on behalf of contractors. These
``subcontractors'' may take part of workers wages ($1.00-$4.00 per
hour) in exchange for continued employment. Our studies suggest that
these workers are also paid for 8 hours of work per day even if they
work more. Travel time is rarely paid except when firefighting.
---------------------------------------------------------------------------
\7\By contrast, the median wage for loggers was $17,810 in 2003.
\8\In 2003, the federal poverty rate for a family of four that
included two children was $18,660. Ecosystem Workforce Program, Working
Paper #10, Job Quality in Logging and Forestry Services in Oregon,
forthcoming.
---------------------------------------------------------------------------
Labor-intensive forest work is also quite seasonal and erratic
(figure 2).* The average worker was employed the equivalent of three
months a year, compared to six months for loggers. But, this is not
simply the work of college students with summer jobs. Most are Hispanic
immigrants and half of forestry service workers in Oregon also work
outside of forestry. They are commonly employed by temporary agencies,
restaurants, and in agriculture, and typically earn even less than they
do when working in the woods.
---------------------------------------------------------------------------
* Figures 1 and 2 have been retained in subcommittee files.
---------------------------------------------------------------------------
Although official accident rates are lower for forest workers than
for loggers, our studies also revealed that many workers felt that they
could not report on-the-job injuries for fear of being fired. In
addition, we heard frequent reports of crew bosses who push their
employees to work very quickly and require that they work without
stopping for breaks or lunch. Performing physically demanding,
dangerous work under these circumstances only increases the likelihood
of accidents. Crew van accidents are all too common and have resulted
in fatalities because drivers were tired, under the influence of drugs
or alcohol, or driving unsafe vehicles.
Although many excellent contractors work for the federal
government, others forge fire fighter qualification documents (red
cards) and fail to pay workers legally-mandated wages or overtime,
supply safe vehicles, and provide medical care for on-the-job
injuries.\9\ These working conditions harm workers, contractors, rural
communities, and national forest ecosystems.
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\9\ In addition to the ``Pineros'' series see, Alex Pulaski, ``Fire
Crew Crackdown Proposed,'' Oregonian, January 29, 2003; Alex Pulaski,
``State Tightens Fire Crew Enforcement,'' Oregonian, September 22 2002.
---------------------------------------------------------------------------
institutional challenges
Although there are numerous labor laws in place to protect forest
workers, they are not as effective as they could be because of the ways
in which the Forest Service and the BLM structure and award contracts
and oversee project implementation. Land management agencies face
budget constraints, output-based accomplishment targets, and a culture
of efficiency that encourages staff to minimize administrative costs
and contract prices, sometimes to the detriment of other objectives,
including job quality and community benefit.
Accomplishment Targets and Budget Allocations
The Forest Service's budget and staff performance evaluations and
advancement have long been tied to accomplishments targets. Meeting
targets in one's area of contracting means increased budget and
staffing as well as promotion. Programs and management units that fail
to meet their targets or do so at too high a cost have their budgets
cut. The focus on maximizing natural resource accomplishments--e.g.
volume, acres, miles--creates few institutional incentives for
attending to the job quality of its contracted workforce or ensuring
that its contractors strictly follow labor and immigration laws. When
targets measure only the quantity of outputs, without consideration of
the quality of those activities, community benefit, or treatment of
workers, the incentives to accept the lowest-price bid are strong. With
declining budgets for federal forests and national direction to do more
with less, incentives to ignore impacts on communities, contractors,
and workers become even stronger.
Low-Bid Contracting
The pressure of meeting targets is compounded by a history of a
low-bid contracting system in the federal land management agencies.
Until the mid-1990s, the Forest Service and BLM, as with most federal
agencies, were required to award contracts to the lowest bidder almost
regardless of the quality of they work that they performed. In the mid-
1990s, federal procurement laws changed and the Forest Service and BLM
became able to use negotiated contracts, which allows the agencies to
consider best value to the government when awarding contracts. Now,
they could consider factors such as past performance, technical
capability, key personnel, and, under some circumstances, benefit to
the local community. Best-value contracting has created an opportunity
to ensure that restoration work would be high quality, workers would be
treated well, and rural communities would benefit.
Although best-value contracting has created an opportunity for
federal agencies to consider factors other than price when awarding
contracts, our interviews found that many contractors still felt that
they were primarily operating in a low-bid contracting environment.
That is, price was still the most important criterion in awarding
contracts.
Lack of Labor Law Enforcement
Numerous laws including the Service Contract Act, Davis-Bacon Act,
Migrant and Seasonal Agricultural Workers Protection Act, and the
Contract Work Hours and Safety Standards Act are in place to protect
forest workers from exploitation; however little enforcement of these
laws occurs. The Forest Service typically views enforcement as the
responsibility of the Department of Labor or state labor agencies. But
enforcement led by the U.S. Department of Labor or state labor
departments can be difficult because of remote worksites. In our
interviews with roughly 85 forest workers in Oregon, no one had seen
staff from the U.S. Department of Labor or the Oregon Bureau of Labor
and Industries while working in the woods.
Consequences
These pressures have created a system that rewards contractors who
cut corners to offer the lowest prices. When contracts involve
significant physical labor, contractors' options for cutting costs lie
primarily in increasing the speed at which people work and reducing
wages. Strategies for cutting costs include not paying over time,
paying below the required minimum wage, and paying some people under
the table to reduce worker compensation and tax costs. At first blush,
low-price contracting appears to save the government money. In reality,
however, it costs the American taxpayer when poor quality work has to
be redone, when taxes are underpaid, and when poorly paid workers have
to apply for food stamps and other public assistance or seek medical
care in emergency rooms without insurance.
forest service response to ``pineros'' series
The Forest Service offered a rapid response to the ``Pineros''
series by directing its contracting officers to insert new clauses in
their labor-intensive service contracts to clarify contractors'
obligations. This is helpful because it can make contractors more aware
of relevant laws and shows that the Forest Service does want
contractors to follow the law. However, it presumes that the major
problem facing contract workers is ignorance of the law on the part of
contractors. Although contractors may be ignorant of some issues, it is
not the central cause of the problems facing forest workers.
The Forest Service's response does little to address larger
systemic problems. In the words of one contractor, ``the agencies, by
their action and inaction have played a major role in the creation of
an `underclass industry' among service contract workers.'' \10\ These
new contract clauses do little to address the lack of contractor and
agency accountability because they do little to improve the lack of
viable enforcement mechanisms. Nor, do they address the larger
institutional issues such as accountability targets, direction to do
more with less, and culture of efficiency that encourages the agency to
practice low-bid contracting.
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\10\ Statement of Celia Headley, Subcommittee on Forests and Public
Land Management, Committee on Energy and Natural Resources, To Conduct
Oversight on the Administration's National Fire Plan, 107th Congress,
1st Session, March 29, 2001.
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recommendations
The following recommendations for improving the working conditions
of forest workers were developed in collaboration with community-based
forestry and forest worker organizations, based on their experiences
working in the woods, and my research of federal restoration
contracting and the working conditions of federal contract forest
workers.
Systemic Change
1. The Forest Service and BLM should participate actively in
enforcing labor laws by involving inspectors, contracting officer
representatives, and contracting officers in labor law compliance.
Forest Service contracting officer's representatives and inspectors
already visit these sites, and are responsible for overseeing other
components of project implementation. The agencies should provide staff
with direction and training to ensure that they understand their roles
and responsibilities. Inspectors and contracting officer
representatives should be directed to report suspected problems to the
Department of Labor for enforcement action. They should also report
problems to agency contracting staff to ensure that these problems are
taken into account when awarding future contracts.
2. The Forest Service and BLM should make full use of best-value
contracting authorities to reward contractors who perform high quality
work, treat their workers well, train their workers, and provide rural
community benefit.
3. To reduce the pressure to accept below-cost bids and increase
incentives for the agency to investigate potential labor law
violations, the Forest Service and BLM should establish outcome-
oriented accomplishments targets and performance measures that
incorporate ecological and socioeconomic goals, including tracking
progress towards creating durable, high-quality jobs.
Short term steps--Congress
1. Congress should strengthen the payroll reporting requirements
under the Service Contract Act to be similar the reporting requirements
of the Davis-Bacon Act. The Davis-Bacon Act requires that contractors
regularly file certified payroll with state labor departments. This
effective and efficient process has provided clear, consistent
information to settle wage complaints or undertake enforcement actions.
2. Congress should direct the Forest Service and the BLM to end the
practice of awarding contracts at prices that are lower than 20% below
the government estimate.
Short term steps--Forest Service and BLM
1. The Forest Service's National Partnership Office should convene
a series of meetings between workers, contractors, rural community
organizations, contracting officers, National Forest System managers,
and other relevant federal staff to develop and implement concrete
improvements in the Forest Service's procurement system.
2. The Forest Service should commission a study on how the agency
uses best-value contracting. Although the Forest Service typically uses
negotiated contracts that allow for consideration of best value, many
of the contractors we interviewed felt that they were still operating
in a low-bid contracting system. Further knowledge of how best value is
actually being used could help the agency provide better direction and
training.
3. The Forest Service and BLM should create ombudsmen who can hear
the concerns of workers, contractors, citizens, and agency staff about
labor law and other contracting issues and act as an advocate to
facilitate action when problems arise. Currently, it is difficult for
many types of people to report suspected labor law violations.
Thank you for the opportunity to comment on the difficult
challenges facing the federal land management agencies, forest workers,
and rural communities in creating quality jobs restoring our nations'
forests.
Senator Craig. Cassandra, thank you very much. Lynn, please
proceed. But in opening your statement, how deep is the snow in
Hayfork?
Ms. Jungwirth. Actually, we have a lot of rain, but the
snow is gone.
Senator Craig. The snow is gone, okay.
STATEMENT OF LYNN JUNGWIRTH, EXECUTIVE DIRECTOR, THE WATERSHED
RESEARCH AND TRAINING CENTER, HAYFORK, CA
Ms. Jungwirth. The snow is gone, so we're good. Thank you
for letting me come today and speak to these issues that are
important to the forest communities and the forest workers. I
think that my written testimony has a lot in it, and it's going
to be in the record, so I would really like to build upon the
testimony and the discussion that I've heard here today.
Senator Craig. Sure.
Ms. Jungwirth. We can talk about enforcement, and the
Forest Service is sincere in wanting to enforce these labor
laws. And I'm sure the Department of Labor is sincere, but this
problem's been going on for 30 years, so I'm ready for a new
model. So, I don't want this to be one more spasm, I want this
to be the start of a new solution. And I think we're at a
perfect juncture in history to look at a new model for
contracting the work of stewarding the public's lands. The old
model was sort of built on that industrial forestry model, and
you had specialized mobile crews that moved up and down the
landscape. And they did a lot of regeneration harvest, and they
needed a lot of reforestation. Well, that's squeezed down now.
A lot of that work is gone. And all of a sudden, you need a
work force that is multi-skilled. You need a work force that
can do reforestation and thinnings and can go out and do data
surveys and can work with wildlife and can work as a partner to
the Forest Service because the Forest Service on-the-ground
troops are diminishing, and they are going to need those
semiprofessional skills replaced and some of their professional
skills.
We have an opportunity now to engage in a discussion about
if we can create quality jobs that have a career path, that
have longevity, that can keep families healthy, and those
communities healthy, and the Forest Service healthy. I think we
can. I think some of those models were established during the
early years of the Northwest Plan. On the Willamette National
Forest, they packaged their service contract differently. They
put multi-skills into a contract instead of single-skill,
short-duration over a big landscape. They know how to do that.
When they put the training programs and the training curricula
together, those were project-based. They put those together so
that people could work and be trained with these new skills 6
months at a time, a 6-month job for somebody who does this kind
of work. Six months of not having to be laid off is a
tremendous--it's just a tremendous benefit, and it's a gift.
So, they knew how to do that. They figured out how to do that
for those training programs.
I think Senator Bingaman's right. I think we can do this. I
think we can make the change. You need different skills. You
need different kinds of partners with your Forest Service.
Their budgets are going down. And my recommendation is you work
with the enforcement for the short-term. Don't let them take
bids--don't let them accept bids that are more than 20 percent
below their estimate. They know that the worker is paying for
that work if it's going that low. But then package these bids
differently, package this work differently. Create a
professional work force, and we'll have good stewards for the
public land forever. Thank you.
[The prepared statement of Ms. Jungwirth follows:]
Prepared Statement of Lynn Jungwirth, Executive Director, The Watershed
Research and Training Center, Hayfork, CA
Mr. Chairman and Members of the Subcommittee: Thank you for the
opportunity to provide information to your hearing on these public land
workforce issues. I believe these issues are of the utmost importance
to the future of public land management, the future of public land
communities, and the future of the United States Forest Service and
Bureau of Land Management.
I've been asked to comment on two parts of the workforce issues
before you today:
Will the Forest Service response to the Pineros issues, as
presented in the letter from the Chief, be sufficient to
address the problem of exploitation of the workforce?
Will enforcement of the Service Contract Act wage provisions
and the worker safety laws help local workers and contractors
access service contract work on the public lands?
In addition to these two questions, I will also address how the
business relationship between the land management agencies and local
communities could be improved to protect workers from exploitation and
increase local job opportunities.
My organization, the Watershed Research and Training Center, sits
in the small town of Hayfork, California in the middle of the Trinity
National Forest. In 1994 our Center began building local capacity to
help make the shift from a timber driven economy to an economy
accommodating ``ecosystem management'' and the Northwest Plan for the
Recovery of the Northern Spotted Owl. In partnership with the Trinity
National Forest and Shasta Community College, we developed and
implemented a forest-worker training program to ensure that local
workers could compete for jobs related to ecosystem management. Each
graduate of the program earned certification as an Ecosystem Management
Technician. Our training program also focused on providing technical
assistance to workers and contractors interested in starting businesses
focused on providing restoration-service work on public lands. This
required providing training in business planning, financial management,
and learning to navigate the federal bureaucracy related to competing
for service contract work.
The local businesses and workers we have trained and partnered with
over the last decade have performed more than $8 million dollars worth
of work doing forest restoration, fuels reduction, and small diameter
thinning projects on the Trinity National Forest. Of that $8 million
dollars approximately $2.4 million was raised from private
philanthropic sources by my organization. Our efforts over the last
decade to build community and business capacity made it possible for
local enterprises to offer a workforce that is skilled and capable of
providing the needed work to restore healthy forests and maintain
biodiversity, clean water, clean air and fire risk reduction.
The Watershed Center is a non-profit organization and does not
contract with the federal agencies. We perform work through grants and
agreements that usually have cost-share requirements ranging from 20 to
100 percent. Non-profits are not allowed to compete for Forest Service
or Bureau of Land Management service contracts. We are, however, a
worker-based organization, started by forest and sawmill workers who
lost their livelihood when national policy shifted from commodity
production to ecosystem management.
sufficiency of the forest service response to the problem
I applaud the agency's quick response to the public outcry
regarding the treatment of workers. As someone who collaborates and
works closely with the Forest Service, I know there is a sincere desire
to protect workers. However, the remedy proposed by the agency is not
adequate. To simply attach copies of existing laws to contract
documents and a promise that contracts will be broken if contractors
are found to be breaking the law will not change the system that
created this problem in the first place. The response is lacking in two
ways: first, it fails to create a reliable system of accountability;
and second, it does not address the main contributing factors to worker
exploitation, which are low-bid contracting and contract packaging.
In 2001, Celia Headley testified before this Subcommittee on a
related topic. In her testimony she provided an example that so clearly
illustrates the problem with the contracting system, that it bears
repeating:
``The Forest Service puts out a contract for thinning and 18
companies put in bids. Fourteen of the bids are at least 40%
under the government estimate for the work. The Forest Service
awards the contract to the lowest bidder. At this point, one of
several things usually happens. In order to accomplish the work
at such a low price, the contractor can:
1. Demand unreasonable production and unpaid overtime
from the workers;
2. Pay less than the stated contract minimum wage; or
3. Declare only a percentage of the workers on the
books, thereby avoiding worker's compensation,
unemployment, and state and federal tax payments.''
Now, five years after that testimony, we are still in a situation
where no one really knows what happens because the only entities in a
position to monitor these issues are the agencies issuing the
contracts, and they have no visible system in place to monitor wages or
worker's compensation compliance. I have been told several times that
``it is the agency's job to get the biggest bang for the buck for the
American taxpayer,'' and ``it is not our problem if the contractor
chooses to underbid; we have to cut costs per acre,'' and ``we can't
protect these contractors from themselves.''
Congress must address the connections between output-based targets,
demands for financial efficiency, and the creation of a contracting
system that overlooks worker safety and wage issues.
Creating systems for prevention and accountability
The Forest Service should consider responses to the problem that
are proactive and create clear systems of accountability. To prevent
worker exploitation before it occurs, the agency might put into place
the following safeguards:
Disqualify bids that come in appreciably lower than the
government estimate;
Notify contractors that a system of random inspections of
wage and safety conditions will be put in place and make the
system visible;
Package contracts in ways that diminish the need for a
mobile workforce; and,
Provide internal incentives and rewards for structuring
contracts that will help establish forest work as a high-skill
profession and a workforce with a career path.
To create an effective accountability system, the Forest Service
should consider the following steps:
Set a goal of monitoring some percentage of the contracts
awarded, such as no less than 10 percent;
Develop a system for Service Contract Act (SCA) wages that
is similar to Davis-Bacon requirements with certified payroll;
and,
Increase the number of Contracting Officer Representatives
in the field and require them to match daily diary entries to
actual wages paid.
changing the business relationship between the forest service
and local communities
As to whether or not enforcement of wage and safety considerations
will help the local workforce access work I have this response: yes,
and no. Let me explain through an example.
When we started our worker training program for forest and sawmill
workers who lost their jobs, we looked at the kind of work the agency
would need to do on the forest as its direction shifted to ecosystem
management, and then we trained these workers to do it. They learned to
do field work, fuels reduction, forest thinnings, habitat restoration,
road surveys, fish surveys, habitat surveys, GPS, GIS, riparian
protection, road upgrading and decommissioning, culvert replacement,
etc. These skills should have positioned these workers to be
competitive for forest management projects aimed at restoring and
maintaining biodiversity, clean water, clean air and natural processes
across the landscape. We also offered assistance in starting small
contracting businesses.
The first business we helped decided to compete for a reforestation
contract. He had run crews before and had local people who wanted to
work for him. We helped him get his workers compensation insurance and
provided him technical assistance in preparing his offer to the federal
government. He bid $311/per acre. The job went to an out of area
contractor who bid $197/acre. The government estimate was $300. The
contracting officer said he had to take the lowest bid. The next time
this local contractor tried to bid on a local reforestation job he was
told that the work was going to be given to an IDIQ (Indefinite
Delivery, Indefinite Quantity) contract. This occurred even though the
work was being offered under the requirements of a best-value contract
where price is supposed to be only one of several evaluative criteria.
Based on this experience, the business decided that trying to
compete for reforestation contracts was not economically viable and
decided to focus on competing for contracts related to fuels reduction
and thinning. The good news was that the National Fire Plan required
that best-value contracts consider benefits to local communities and
the business was successful in capturing an initial fuels reduction
contract. The bad news was that pressure on the agency to treat as many
acres as possible at the lowest cost led to the agency packaging a
similar contract into a large IDIQ format. This contract format gave a
structural bias to a large, out-of-town company that was somehow able
to bid $300 less per acre then the local contractor. It just so
happened that these two projects were right next to each other. The
local contractor kept a daily diary of both his crew and their crew. If
the IDIQ contractor was paying the SCA wage and the required workers
compensation and unemployment rate, he must have gone broke on that
job. When we inquired about this with the Forest Service, they
explained that maybe the IDIQ contractor lost a little on that job but
made it up with another one and, anyway, it was not their job to police
the contractors.
So it was suggested we train our people for more technical work. We
did. Our crews became very proficient at surveying for the snails,
lichens, and plants required in the survey and manage requirements of
the Northwest Plan. They worked alongside Forest Service biologists on
actual projects. They received the highest accolades for the
professional quality of their work. When they formed a business to bid
on agency contracts for survey and manage work, they were told that the
work had been packaged into an IDIQ contract and gone to a company
based in Canada with an office in the State of Washington who would be
working up and down the West Coast. We called the Canadian-owned
company's office in Washington State and told them we had a trained
crew that knew the local forest and wanted to sub-contract with them.
They said no.
There would be a local workforce to do this work and the need for
H2B workers would diminish if the agency could change its business
relationships with public land communities.
I asked a contractor about the H2B program and how effective it was
at solving the labor shortage. The reply was, ``we don't have a labor
shortage, we have too many workers and too many contractors, and that's
why people work for nothing.''
If the playing field gets leveled in terms of wages and compliance
but the Forest Service continues to package contracts that spread the
work out in a three or four state region, you are going to prevent a
local workforce and forest industry from developing. The practice of
creating multi-state contracts for large quantities of work will
undermine the development of a place-based workforce that can perform
the needed restoration and long-term maintenance necessary, especially
in the frequent fire forests of the West. Losing a place-based, local
workforce has further ramifications on the availability of skilled
workers in fire emergencies and actually drives up the cost of wildfire
suppression.
We know low-bid contracting and IDIQ contracting were built for
efficiency, and we endorse efficiency. We also have seen that
concentrating on efficiency in individual programs can create an
overall inefficiency in the system.
recommendations and conclusions
I would like to provide several recommendations for the Forest
Service as they explore alternatives responses to these issues. These
recommendations are based both on my own experience and on discussions
with community-based forestry partners and the Rural Voices for
Conservation Coalition.
The Forest Service should establish both short-term and long-term
processes for protecting forest workers and creating a system of
offering work on public lands that is effective and efficient at
meeting ecological, social, and economic goals. Evaluating economic
efficiency without consideration of the effectiveness of meeting
ecological and social goals may well drive up overall costs and reduce
the agency's ability to properly care for the resources.
1. We would like the agency to convene, through the National
Partnership Office, a series of meetings with workers,
contractors, rural community organizations, contracting
officers, and other relevant federal staff to develop concrete
ways to implement changes in the procurement system to help
avoid creating an underclass of forest workers and create a
legitimate industry.
2. When a bid comes in 20% lower than the government
estimate, it should be disqualified.
3. Move to a system of ``best-value'' contracting that
includes rewarding contractors who do high quality work, treat
their workers properly, and provide worker training.
4. Contracting officer's representatives and inspectors, who
visit these sites already, should be required to record worker-
days and other information.
5. Explore using a system like the Davis-Bacon certified
payroll to increase compliance.
6. Procurement contracts should be packaged for long duration
employment--multiple months or seasons-and multi-skill sets.
Contracts should provide business and employment for fewer
workers over longer periods of time.
7. Build on existing models from the Pacific Northwest for
worker training and contract packaging.
In closing, I would like to reflect for a moment on quality jobs.
Quality jobs for forest workers are critical to sustaining both healthy
forests and healthy communities. One of the goals of my organization is
to create quality jobs for forest workers who work on public lands. We
believe a quality job in the forest has six characteristics. It should:
1. Pay family-supporting wages and health benefits.
2. Last multiple seasons and years.
3. Have opportunities for advancement.
4. Include a safe and healthy workplace.
5. Provide skill training and reward trained workers.
6. Allow people to work near where they live.
In considering forest workers and quality jobs, wage and safety
issues are only the tip of the iceberg. An overarching issue is that
federal procurement has made these jobs miserable in terms of wages,
working conditions, and continuity of work. Meanwhile, the shrinking
federal budgets for service work on the federal forests have put
greater pressure on the agencies to increase acres treated per dollar.
It is the forest worker who has been squeezed in this process.
Undocumented workers have been exploited and local workers have been
eliminated, unable to compete on this uneven playing field. Service
contracting has become a game and the race is to the bottom.
Thank you for the opportunity to share my perspective and
experience with this important issue.
Senator Craig. Well, thank you. Based on what I know about
what's going on out there on the landscape right now and the
new requirements in the Healthy Forest Act and a lot of things
that we're looking at, your statement fits. Maybe we do need to
look at a new approach or a new paradigm as to how this work
gets done, and it's certainly the character of the U.S. Forest
Service's professional staffs that have changed significantly
over the years in their ability and their understanding. Thank
you.
Cindy Wood, welcome.
STATEMENT OF CINDY WOOD, CHIEF EXECUTIVE OFFICER, WOOD'S FIRE &
EMERGENCY SERVICES, INC., PORTOLA, CALIFORNIA
Ms. Wood. Good afternoon. Thank you for the opportunity to
be here. We've got eight inches of snow up in Portola as of
last night,
Senator Craig. What's your altitude?
Ms. Wood. Pardon?
Senator Craig. What's your altitude?
Ms. Wood. We're at 5,500 feet, so you know it's stepping up
higher.
Senator Craig. Probably getting rain today then, aren't
you?
Ms. Wood. I agree with Lynn's suggestions as far as
contracting changes. I'm going to take bits and pieces of
everything that I've heard here and add on to what I've
developed here. I speak on behalf of NWSA, the National
Wildfire Suppression Association, formed in 1991, representing
200 professional contractors with six chapters throughout the
United States along with affiliate member associations
throughout the United States providing the full complement of
firefighting services, catering and showering units, support
services, heavy equipment and management services for wildfires
and national emergencies such as shuttle recovery, hurricane
cleanup and disaster relief. These are the cross-trained people
that are now starting to integrate into thinning services,
fuels reduction services.
In recent years, the contract fire industry has become an
efficient and increasingly vital resource for providing best-
value services and wildfire suppression and fuels reduction
services in order to stabilize the roller-coaster income of our
industry and to offset the huge costs of training, employee
safety, equipment, uniforms, attrition, insurance, equipment
purchases, maintenance and upgrades, all striving to meet or
exceed specifications set by the agencies they contract with.
Several members of the California Chapter of NWSA have had
the most recent experience with the issues of health and
welfare of foreign guest workers, and in the bigger picture of
things, how the exploitation of these workers has devalued
best-value contracts to ridiculously low levels where we cannot
compete. It affects the local economy of communities that were
to benefit from the fuels reduction work to be done in their
local areas, employment levels and money spent in the form of
rents and groceries. Support is leaving with the foreign guest
workers and the companies that are usually from out of the
area.
The area of service I service is located in the Herger-
Feinstein Quincy Library Group Forest Recovery Act, a project
area in Plumas County. I shared with you in the written
testimony our personal experience. While bidding on projects in
the HFQLG area, the California association members noticed a
major increase of awards to that same forest guest worker
contractor that I had severed relationships with. We started
analyzing costs and then came up with the conclusion something
was just not right. Firestorm, a provider of a 20-person fire
crew in the community of Quincy, opened their books to us over
a 5-year period to do cost comparisons for thinning work.
Bottom line, one man would have to thin three acres a day.
That's an impossibility.
Senator Craig. Yes.
Ms. Wood. More and more work was lost. Firestorm had to
close their Quincy operations this year where they had employed
approximately 240 employees over a sample 5-year period. This
meant a loss of local employment opportunities, loss of local
income, increased local income and money spent within Quincy
for rents, utilities, groceries, et cetera, with a payroll in
excess of $2 million. Over $50,000 in company-paid rent for
office, utilities and miscellaneous expenses will be gone for
this small mountain community. Wood's Fire closed and sold its
Truckee station and reduced overhead expenses in order to
prepare itself to ride through what looks to be a rough road
ahead for us.
Firestorm and Wood's Fire made a power-point presentation
to the Quincy Library Group regarding the trends we were seeing
for a race to the bottom for healthy forest work in late
January this year. The group was aghast, concerned and
apologetic. They had been pressuring the local Plumas National
Forest to get more acres for each dollar. They had no idea of
the repercussions.
Firestorm, Wood's Fire and NorthTree Fire International met
with the Plumas National Forest supervisor. We gleaned a lot of
information from that meeting of the pressures this local
forest supervisor faced with both the local and national
overhead level to get more acres for the dollar at any cost,
even at local small business survival. How is that the best
value? I learned that there is no value to having a local fire
contractor doing work on the forest and available for a quicker
fire response to the forest. It is worth absolutely nothing. It
is not contractually a consideration. I learned that
exploitation of forest guest workers and forest work objectives
is tolerated because of the bottom line: Dollars.
Assumptions are made in the contracting process that once a
company has addressed all the narratives of providing local
communities with jobs and increased moneys spent in the work
areas, that it will happen. This process falls far short in the
actual implementing of such opportunities. There are no
failsafes to assure that any of this is done. Final decisions
on the awards of service contracts are made solely on price.
Since our foreign guest worker company comparison does not meet
muster when everything is laid out, we can only assume that
corners are being cut. The signs are all there when looking at
the track record of this company for labor wage, OSHA, and
workers' compensation violations since the mid-1990's.
If it is happening in our little area, you know it is
happening elsewhere, confirmed by our national membership of
NWSA. Forest agencies are charged with the implementation of
forest work, so naturally, I would assume that violations are
being seen by agency managers, our front line of defense. The
NWSA has outlined solutions and recommendations for your
review. We also have shared this with the Director of
Acquisition Management in a face-to-face meeting recently in
Reno, Nevada, at our national conference. It is still our
concern, from the Forest Service Chief's memo, that a system
for checks and balances still needs to be addressed, both in
the field and in the contracting devices. This is not a new
problem, nor does the solution require changes in laws and
regulation, just implementation, steadfastness to the task and
consistency.
It is also the fear of our organization and the
professional contracting sector that local accessible
businesses will be harassed, put under the microscope and
driven out of business with overregulation instead of pursuing
the nomadic foreign guest worker companies that are our
problem. The foreign guest workers are just trying to attain
the American dream just as my great-great-greatgrandparents
did. It needs to stop in a swift and fair manner so that the
history of indentured servitude never repeats itself in our
global community. The professional contracting community wants
to be able to compete on a level playing field for work they
are interested in doing. There is room for all of us. Thank you
for listening to my testimony.
[The prepared statement of Ms. Wood follows:]
Prepared Statement of Cindy Wood, Chief Executive Officer, Wood's Fire
& Emergency Services, Inc.; Director, California Chapter &
Representative of National Wildfire Suppression Association
Mr. Chairman, members of the committee, thank you for the
opportunity to present the following testimony. My name is Cindy Wood
and I am the Chief Executive Officer of Wood's Fire and Emergency
Services, Inc. (Wood's Fire) specializing in wildland firefighting
equipment, personnel, project and prescribed burning services and fuels
reductions services locally and nationally since 1986. My business is
located in the central Sierras of California and Nevada with stations
in Portola and Truckee, CA, Reno, NV, and Prescott, AZ. Wood's Fire is
a California Small Business Administration-certified, woman-owned,
minority, small business.
My testimony is on behalf of the National Wildfire Suppression
Association (NWSA) and the California Chapter of NWSA that have
extensive experience in these issues. The NWSA has been in existence
since 1991 and represents more than 200 contractors with six chapters
throughout the United States. In addition, it has affiliate members
including the Northwest Contract Firefighters Association, the Oregon
Firefighting Contractors Association, the Northern Rockies Wildfire
Contractors Association, and the Western Forest Fire Services
Association.
NWSA's members provide fire crews, engines, water tenders,
showering units, catering units, tree fallers, dozers, and other
resources to help battle wildfires across the United States. NWSA
members have also been used by the Federal Emergency Management Agency
(FEMA) for other national emergencies such as the Shuttle Recovery,
hurricane clean up and other disaster relief.
In recent years, the contract fire industry has become an
efficient, increasingly vital resource to federal, state and local
wildfire suppression officers and public land managers. This is
evidenced in the expansion of national ``Best Value'' engine and crew
contracts, which represent a more formalized relationship between the
government and the fire suppression contractor. A feature of these
contracts is clearly defined standards and inspections.
NWSA's primary goal is to support and assist its members to be
successful in their areas of contracting expertise and provide services
that meet or exceed national standards. Another goal is to achieve
national recognition as a professional organization, or cooperator.
purpose of the hearing
The purpose of today's hearing is to review the role of the Forest
Service and other Federal agencies in protecting the health and welfare
of foreign guest workers carrying out tree planting and other service
contracts on National Forest System lands, and to consider related
Forest Service guidance and contract modifications issued in recent
weeks.
As a regional and national contractor pre-qualified to bid on fuels
reduction projects, I am bidding against, working with and completing
work after companies utilizing foreign guest workers have completed
their assigned tasks. The traces left behind of their nomadic lives are
evident in the forest.
My company and several other local companies and community
businesses within the Herger-Feinstein Quincy Library Group Forest
Recovery Act (HFQLG Act) project area in Plumas County are dealing with
the short and long term effects of the exploitation of foreign guest
worker companies. Money that should have been spent housing and feeding
these guest workers is taken out of the local community. Contract
awards are at ridiculously low prices and we cannot compete with these
nomadic contractors as we comply with all training, insurances, and
federal and state regulations. We have opened dialogue on a local and
national level with the U.S. Forest Service and the Quincy Library
Group to bring the situation of the ``Pineros''--men of the pines--to
light and discuss possible solutions.
historical background
Starting in the 1970's there was a big push by industry and
agencies for education and compliance in the reforestation industry. It
was not until the agencies and industry worked together towards a
solution that there was some success. However, due to the nomadic
nature of many of the non-compliant companies, a large number evaded
the regulatory agencies giving them an incredible competitive advantage
with their pricing schedules. Compliant companies were then subjected
to over-regulation and driven out of business or no longer able to be
competitive.
The effect of the spotted owl has been dramatic on the
reforestation industry resulting in a huge downsizing. Many of the
companies that once did only reforestation are now moving into the
fuels management and fire industries. Along with this transition have
come some of the practices that are now plaguing the industry. Many
established and new compliant companies have hired local workers who
have been displaced by the spotted owl and slowing logging industry.
Many wildland fire services companies began bidding on fuels reduction
and forest services contracts to reduce the attrition and costs of
keeping employees available for fire emergencies. The training and
regulatory costs for this industry is staggering.
In any industry there are companies that abide by the rules, those
who sometimes adhere, and others who evade the rules every chance they
get. The forestry, fuels and fire industry is no exception.
why is this happening?
Agency personnel are not fully trained, equipped or empowered to
recognize, report and respond to the signs of foreign guest worker
exploitation. Direction for checks and balances has not been
implemented.
Language barriers make it impossible to communicate to workers
directly about their conditions.
Lack of enforcement for existing State and Federal labor
regulations and laws is minimal due to mobility and the nomadic nature
of the companies exploiting the foreign work force.
Payroll deductions for the use of tools and even personal safety
equipment to complete the forest work in addition to recruitment or
management fees, mileage and lodging is common. This borders on
indentured servitude.
Contractual verbiage needs to address and initiate compliance tools
within the contract vehicle.
Agencies are pressured to produce results quickly and at the lowest
cost possible, at the sacrifice of American workers and small business.
my experience
I run a well trained, flexible and small local work force that
strives to provide a quality product at a good value to my customers on
federal and non-federal lands. Mediocrity or minimal work performance
is unacceptable by me or my husband who is Chief of Operations. We
employ up to 22 local young men and women with a cadre of very seasoned
managers. We are a niche company that adapts itself to the needs of the
working fire environment in the most modem sense. We are striving to
make a difference in our community by making it Fire Safe with fuels
reduction services and we protect it when fires are a danger.
I can speak of the Pineros/foreign guest worker issues based on
first hand experience. My company, Wood's Fire, once subcontracted to
another company that utilized foreign guest workers to perform project
burn work on the Plumas National Forest. Wood's Fire was subcontracted
to provide the expertise and management for the burn operation.
During the course of the project, my managers witnessed many
instances of practices by the prime contractor that were questionable
at best if not non-compliant with applicable regulations. These
included: unhealthy sleeping conditions for foreign guest workers in
the field when it was freezing or snowing; unacceptable foot attire;
and transport vehicles lacking proper license and other certification
information. Only after my managers brought the sleeping conditions to
the attention of the prime contractor was lodging provided for the
foreign guest workers.
From day to day we had a revolving door such that we did not know
from one day to the next what foreign guest workers would be working.
The project managers and supervisors from the prime contractor's
company stayed the same but the foreign guest workers would change.
Without proper documentation, particularly fire qualifications for who
was working on any given day, it became difficult to ensure safety and
performance. Also, at one point, the prime contractor dismissed the
Burn Boss, one of my managers, from the burn operations. This decision
to reduce the prime contractor's costs put my company in a very
difficult situation because I was ultimately liable for any escape of
the burn operations. This concern was compounded by the fact that the
prime contractor refused to provide proof of workers compensation and
liability insurance after I had already provided my insurance
documents. So my assumption was the prime contractor did not have
proper insurance.
These problems combined with communication and chain-of-command
problems led my company to terminate its work with the prime
contractor. At that time we also notified the appropriate agency
contracting officer representative.
To demonstrate how these practices stifle competition, I've
included the following table:
----------------------------------------------------------------------------------------------------------------
Compliant Contractor Non-Compliant
----------------------- Contractor
Task Acres ----------------------
Unit Total Unit
Price Price Total
----------------------------------------------------------------------------------------------------------------
Thin, lop, scatter...................................... 474 $98.50 $46,689.00 $57.78 $27,387.72
Thin.................................................... 102 354.12 36,120.24 46.00 4,692.00
Thin & pile............................................. 77 442.65 34,084.05 198.00 15,246.00
---------- ------------- ------------
653 116,893.29 47, 325.72
---------- ------------- ------------
Total Difference $69,567.57
------------
Total Difference/Acre $106.54
------------
----------------------------------------------------------------------------------------------------------------
This table shows the difference between actual bids on the Pull
Plug Pre-Commercial Thinning project on the Modoc National Forest. The
``Compliant Contractor'' bids are courtesy of Firestorm Wildland Fire
Suppression, Inc., a local contractor in Quincy and Chico, California.
Firestorm was agreeable to opening its books to demonstrate how hard it
is to compete with non-compliant contractors.
solutions
The National Wildfire Suppression Association believes the issues
surrounding the Pineros do not require any new laws or regulations.
What is required is better utilization of existing contracting
authorities and greater enforcement by the agencies to both address the
needs of foreign guest workers as well as protect local jobs.
More specifically, the vast majority of these types of service
contracts are an Invitation for Bid (IFB) or a Request for Quote (RFQ).
Both of these are awarded based solely on the lowest cost bid.
NWSA would like to see the agencies instead use the Best Value
Request for Proposals (RFP) or Best Value Indefinite Delivery
Indefinite Quantity (IDIQ) contracts for this type of work. The RFP and
IDIQ are both existing contract vehicles and would lend themselves to
the new Stewardship Contracting authority.
NWSA believes that using RFPs and IDIQs will provide the agency
better means to assess the bidder's actual business. Such assessments
may include but not be limited to financial ability, experience, past
performance, technical qualifications, and the ability to provide local
jobs.
One of the purposes of this hearing is to comment on Forest Service
guidance and contract modifications issued in recent weeks. I would
like to offer some very specific comments in this regard.
On November 18, 2005, Forest Service Chief Dale Bosworth sent a
memo to the field regarding ``foreign workers on H2B seasonal work
visas'' and how ``Concerns have arisen about some contractors
exploiting these workers and about the health and safety conditions
they work under.'' The Chief is only hitting a part of the problem.
That is, these concerns are not exclusive to H2B seasonal workers. In
fact, I would submit that this is not where the problem lies. Instead,
the greatest exploitation comes from those contractors that do not
abide by the rules including the H2B rules.
Also in the Chief's memo, he makes three key points: (1) on matters
beyond the responsibility of the Forest Service, e.g. immigration law
or OSHA regulations, that the agency personnel are to ``promptly report
the situation to the appropriate oversight agency and to document the
notification''. (2) on matters within the Forest Service's scope, e.g.
safety equipment, the Chief says ``don't let them work''. and (3)
documented violations must be a factor in evaluating future bids and
awarding future contracts.
I will comment on these three points. First, point (1) above is
simply passing the buck. If the Forest Service representative knows
enough to promptly report the situation, they should also be stopping
all work. Prompt reporting to the appropriate oversight agency does not
ensure prompt investigation by the oversight agency and thus the
contractor is allowed to continue working.
The second point should be a given. If the Forest Service
representative sees a safety violation or something similar, they can
and should immediately stop all work. As the Chief said in his memo,
this is nothing more than just as ``we would [do] with our own
employees.''
We agree entirely with the Chief's third point that documented
violations, whether arising from (1) or (2) above should be a prominent
factor in evaluating future bids and awarding future contracts. We also
feel the only way the Forest Service can do this is to move away from
the IFB and RFQ to the RFP and IDIQ Best Value contract vehicles.
There is one last comment on recent contract modifications I'd like
to make. On January 4, the Director of Acquisition Management sent a
memo to the field with new provisions for service contracts. We have
reviewed these provisions and support adding them to the contracts. It
is our interpretation that these provisions articulate worker safety,
lodging and other existing requirements. By including these in all
service contracts, all parties will be working from the same set of
information. We also believe by including these provisions, the agency
representatives will be better empowered to enforce existing
regulations.
recommendations
``Inspect What You Expect''
Contractually set up a system for checks and balances for Contract
Officer Representative (COR) and contracting office to utilize in their
``tool box''.
1. Notification of Lodging & Food facilities for foreign
guest worker (FGW) companies.
2. Notification of Work Schedule and the Work Area to COR
daily to be able to track and catch non-compliant companies
3. Defined work hours to be negotiated (i.e.: daily start
time, weekend/holiday exemptions)
4. Employee verification to address matters of Homeland
Security, for example:
a. Photo Id
b. Social Security
c. Work Visas
i. *To be carried in the field by FGW company
representative at all times with their copy of contract
specifications. This is mandated in the fire fighting
community, why not in this environment.
5. Changes in project staffing would use same protocol
6. Development of checks and balances in the initial contract
award work place
a. Verification of employee id's, work visas with
existing data bases being implemented now by the Forest
Service with the fire community
b. Employee Disclosures as stated by U.S. Department
of Labor
c. Contractor verification of all insurances, review
of class codes for Workers Comp Insurance
d. Disclosure of I.N.S., D.O.L. suspensions, fines,
resolutions of findings by contractor with cross check
e. Company Ownership disclosure on all contractors
and subcontractors to assure violators are not forming
new companies
7. Agency Law Enforcement Officers (LEO) be cross trained by
I.N.S. or other specific agency to perform spot checks.
8. COR or LEO need to communicate in the language of the FGW
at the project site to conduct interviews or have a bilingual
individual on contract to help with this need. Possible
bilingual ratio to crew workers development
9. Assure all required postings are on the job site
10. Assure all company vehicles are marked with the proper
ID/Company designation as outlined by D.O.L./I.N.S.
in closing
Recently I discussed this situation with my parents and asked them
about my family's experience with migrant labor. Coming from a Mexican
and French heritage with my ancestors legally migrating across the
Mexican Border into Arizona and California in the 1900's as workers in
the agriculture, ranching and mining industries or to escape being
killed during revolutions, they found the information deeply disturbing
and unacceptable. As children, when school was out they went on family
working vacations and picked nuts and apricots and were never subjected
to the conditions that the Pineros and other foreign guest workers
endure now trying to attain the ``American Dream''.
I concur with my parents. These people are being exploited and it
needs to stop in a fair and swift manner. It is my fear and the fear of
private industry that history will repeat itself with the over-
regulation of professional, capable and compliant companies. That the
nomadic contractor practices of the past will slip thru the regulatory
cracks and local small businesses and communities will suffer. We only
want a fair chance to compete. Long term stability for the industry is
the result of better written contracts and enforcement of existing
rules. It will provide a better product to the agencies that are
stewards of our natural resources and better protection to the worker.
Senator Craig. Cindy, thank you.
Michael, you work in areas other than forestry, do you see
similar problems in those areas, and do you see the same
problems with getting the Department of Labor and Homeland
Security to engage in the enforcement that they are expected to
provide?
Mr. Dale. Because most other areas that I work in aren't
way up in the woods, the problems are less complex. Having said
that, the enforcement personnel available to Wage and Hour
Division has fallen pretty consistently through Republican and
Democratic administrations ever since I've been a lawyer to the
point where the capacity to really engage in effective
enforcement is really quite limited.
I'm glad you brought up the question about the Department
of Homeland Security. One of the things that I didn't mention
is something that we should not do in response to this re-
airing of the issues, and that is that the Department of
Homeland Security has its work to do with respect to folks who
are not in the country in a proper status or working here
without worker authorization. Past response in some of the
earlier spasms--I described maybe inaptly.
Senator Craig. We'll let that stand. That's probably
appropriate.
Mr. Dale. Past response has been to enhance collaboration
and reporting of workers found to be in unlawful status or
suspected of being in unlawful status in forestry crews, and
that's counterproductive because what it means is--I mean, it--
think of the situation. If you are here working illegally,
you're still protected by U.S. wage and hour laws and need to
be, or no one's protected because it enhances the race to the
bottom. There you are in the mountains, pretty much subject to
the contractor's whim with respect to not only your job but
your very food and transportation to get home. I've represented
workers that were abandoned in the mountains because of
complaints that they had made about working conditions. Who are
you going to turn to if the word is out that if you go to the
Forest Service guys, if you talk to anybody from the Bureau of
Land Management, the net result is you're going to be deported?
Who are you going to go to? And if we want to drive these
practices farther underground, make people evermore dependent
upon people that are not very nice and would exploit workers,
then the way to do that is make the price of speaking to the
Forest Service be a trip home.
Senator Craig. Well, I think that's appropriately said. My
time is getting limited here, so let me ask just one question
of each of you, if I can. Cassandra, if we converted this
program to one in which the agency had to hire workers, and
that meant not as many of these H-2B workers were utilized,
would that be helpful?
Ms. Moseley. Can I just ask for clarification? Do you mean
hire other workers directly, as in Federal employees?
Senator Craig. That could be an alternative, yes.
Ms. Moseley. Workers who work for the Federal Government
are protected very well. Many of them have union
representation. They have systems of appeal, ombudsmen. They
have benefits. Their laws are not broken very often. And so,
job quality for Federal workers is in a whole different world
from contract forest workers. And so, yes, if we employed
people directly, their job quality would probably improve. Not
everybody wants to work for the Federal Government, so maybe
people would make different choices. To work for the Federal
Government, you have to be a U.S. citizen, so it would not
provide as many opportunities for non-citizens as the contract
work does.
Senator Craig. Lynn, both you and Cassandra have made it a
point to suggest that a conversion to best-value contracting
for this work would be helpful. Why do you think this change
will result in better enforcement of health, safety and wage
laws and regulations?
Ms. Jungwirth. Well, we think that best value can help, but
currently, in the system, best value can have several criteria.
It usually has price, experience, track record, what your
technical proposal looks like, and then that sort of local
benefit criteria.
Typically, in the Forest Service, the weighting is 50
percent or 51 percent or 70 percent price and then minor
percentages for those other things. So, if they use best value,
but the lowest price is always the best value, it won't work.
Best-value contracting that actually has honest criteria and is
weighted properly can help, but if you don't repackage these
into multi-task, multi-skills, across the season, you're going
to run into the same kind of problem. So, it's a systemic
problem. It's the system's problem. It's not just an
enforcement problem. We'd like to encourage you to encourage
the Forest Service to work with all of us at this table to come
up with a way to solve this.
Senator Craig. Thank you, Lynn.
Cindy, what steps have the associations that represent the
companies that participate in these planting and thinning
contracts taken to weed out some of the bad actors that have
been described at this hearing?
Ms. Wood. Well, we do our own order of self policing and
generating enough pressure on a noncompliant company to come to
compliance on a one on one. If they don't do that, then we will
report them. It's a fact of life we can't compete with these
current conditions at all. And we've made suggestions--I mean,
the private sector is an extremely creative entity. And if you
want to catch a noncompliant officer, what better area to ask
than the industry that tries to find all the different
loopholes and creative ways to make money? So, we developed
this toolbox for out in the field that we put into the
narrative, and that's an area to get started with.
There is also a new program that the Forest Service is
implementing in the fire sector that is called ETIS. It is the
Equipment and Training Inventory System. And within that
automated system is a way to have the contracting office input
information about noncompliant or exemplary reviews about the
work that a contractor does. I would suggest something like
that be implemented within these new contracting vehicles.
Senator Craig. Well, thank you all very much. We are
certainly going to stay tuned to this. And as I say, we may, in
the course of the year, see a whole new set of standards or
principles out there embodied in this new immigration law that
will impact these kinds of programs from the title on down, if
you will. And so, I think that's going to behoove us from the
implementation of a new law itself, if we get there, to the
breakdown as to category and specifics, monitor these
approaches very closely, and you out there on the ground with
the eyes and ears, you have will be very helpful to us in doing
that. So, we thank you very much, and we're glad you came, and
the committee will stand adjourned.
[Whereupon, at 3:53 p.m., the hearing was adjourned.]
[The following statement was received for the record:]
Renewable Resources,
A Division of Renewable Forestry Services, Inc.,
Barnesville, GA, March 6, 2006.
Hon. Jeff Bingaman,
Ranking Member, Committee on Energy and Natural Resources, U.S. Senate,
Washington, DC.
Dear Senator: My company was the first to get H2B visas back in
1996. This was only after I spent over one hundred thousand dollars in
three years pushing the U.S. Department of Labor to grant the labor
certification (form ETA-750) and then INS to approve the petition (form
I-129) from which the visas are issued.
On Tuesday, March 2nd your committee held a hearing regarding
abuses within the H2B visa system. have vast experience in this
industry and would like to clarify some points as well as make some
critical recommendations for the new immigration bill currently being
debated. I started planting trees in the Rocky's when was 18; the year
was 1977, before the invasion of undocumented labor from Latin America.
Tree planting and related environmental rims have been my soul source
of income for my entire adult life.
Yes, the forest industry, because it is a subculture within America
and is generally isolated due to the remote rural location of the
worksites continues to be an avenue of abuse. Much of the present day
abuse is by Mexican crew leaders and Mexican contractors against their
own people. In some segments there is almost a rite of passage.
Therefore your strongest solution to end this abuse is to simply
mandate that industrial tree farmers as well as the U.S. Forest Service
are simply joint employers of this workforce. It took 20 years--20
years, Senator--to get the U.S. Forest Service to require and verify
proof of Workers Compensation Insurance among its contractors. I don't
know of any other population with in our society that has suffered this
blatant discrimination and abuse in modern times. It is this historical
abuse that demands such an aggressive definition of employment, Without
it abuses will continue as the Department of Labor and Homeland
Security's Immigration Services lacks the in-house workforce to police
the industry.
1. Forest Service districts that are found to violate the law
should pay penalties and remediation out of their district
budgets. If Congress enacted such a bold step where the
district's money was at risk if abuses occur the abuses could
stop immediately.
2. If you multiple to million undocumented workers $8.00 an
hour 40 hours per week FICA tax 15.6% 52 weeks a year you
generate $25.9 billion. You can see that we as a Nation are
losing tax revenue that could completely fund the retiring Baby
Boomers Social Security Trust Fund; resolving this critical
issue of fulfilling the retirement needs of our aging
Americans. As a Nation We do not know what the actual FICA loss
is but assume that this figure is 50% accurate it's a lot of
money and Mexico is no longer the impoverished third world
country it was twenty-five years ago when this situation first
got started.
3. The question of amnesty should be answered with an
affirmative, it worked back in 1984 in the Food Security Act
and legalized a work force that kept America competitive and
gave both small and big business the productive legal labor it
needed. A reasonable fee should be charged, such as $500.00 for
filing the paper work and another $500.00 upon approval, but
rather than granting a Resident Mien status, issue a new H2B
visa. Make this visa a special visa to note that the individual
was in the U.S. when the visa was issued, for example H2B-US1,
and make the visa good for two years, Then put a very simple
stipulation on it, that if a holder of this visa class is
arrested and convicted of a felony they are then deported and
banned from entering the U.S. for a decade. the same punishment
should apply for habitual DUI and drug offenders.
4. Another point that needs to be clarified is what an H2B
visa entitles a person to. An area of current misunderstanding
centers on disability insurance. Regardless of what the law
says, the social Security administration will not grant SSI to
an H2B worker who becomes disabled while residing legally in
the U.S. If the disability is thru no fault of the employer, no
workers comp coverage is available and some situations are
difficult to determine. When this occurs the fundamentals of
our Nation should afford this worker's disability coverage,
have enclosed a video tape profiling the story of Benjamin
Mendez who was one of the first Mexicans to ever receive an H2B
visa. A very honorable hard working family man who was struck
down by a flu germ his body could not defend itself against. He
now resides in Mexico, blind with two dysfunctional kidneys and
is dependant upon family charity and support from my wife and
I. Benjamin's only daughter Maria was later smuggled into the
U.S. to work illegally in a factory to help support her mother
and father by family members working in a meat processing
plant. While in the U.S. she married and had two children who
are legally U.S. citizens yet Maria remains an illegal alien to
this date.
This situation and many similar to it are the results of our
dysfunctional immigration policies, and an everyday reality creating
unhealthy social situations that will only hurt our great Nation as
time moves forward. Please make sane reform a top issue!
In closing, I am submitting this letter and ask that it be
submitted into the Congressional Record as additional testimony on the
hearing that was held on March 1st, 2006, which was organized by
Senator Jeff Bingaman. This information was requested by Senator Staff
Member Scott Miller.
Towards a more perfect Union,
I am Sincerely Yours,
David M. Ellis,
President.
APPENDIX
Responses to Additional Questions
----------
Responses of Cindy Wood to Questions From Senator Bingaman
Question 1. As I understand it, the Department of Labor certifies
that there is a shortage of available labor in a given area before H2B
visas are issued to an employer wishing to work in that area. However,
the H2B contractors reportedly compete with local contractors for
Forest Service reforestation projects, which seems to call into
question the Department's determination that there was a shortage of
labor. Do you have any insight into how the Department of Labor's
process for certifying a shortage of available labor falls short? Do
you have any suggestions on how it can be improved?
Answer. The issue is not so much local contractors competing with
the H2B contractors for Forest Service reforestation contracts.
Instead, it is the local contractors competing with those contractors
that use undocumented workers. The latter group of contractors is not
using the H2B program. Illegal alien issue along with abuses in the H2B
program makes it difficult to compete in the market place.
Having said that, some H2B companies set up business in small rural
towns where there is not a labor force. Idaho has their share of H2B
companies who use small Idaho towns as fronts. Once the H2B contractors
obtain visa's for their work force they are not monitored and then move
workers into larger towns jobs following awarded contracts all across
the country and are no longer confined to the labor shortage area that
the visa's were issued for.
Many of us in the west are in Hub Zones, areas that SBA has
designated with higher unemployment rates, therefore are not lacking in
a labor force. We could employ more full time employees rather than lay
them off after the Wildfire season has passed, if we could augment with
forestry work. There are many good contractors that have a lack of work
for their good employees.
The H2B workers use this program as a means to enter the country
and then stay after they have finished their job or their visa expires.
These workers begin working illegally for other contractors that then
abuse them by working and paying them ``under the table'' as a
``favor'' or under the fear of being turned in to immigration.
Suggestions:
The Department of Labor needs to follow up on the intent of the
companies that use the small rural communities as a front.
Tracking system: Are work visa's bar coded to facilitate tracking
much the same as FedEx or Rental Car Industries use, to track how a
worker is being utilized? Long range benefits could track
inconsistencies with visas, reduce paperwork, reduce abuse of one visa
being utilized by many workers etc.
EATIS: List authorized H2B workers attached per contract award with
special number attached to each documented or H2B worker. This would
help track for example: training, annual refreshers, proper insurances,
company information, company officers or owners and contract
performance.
**Tracking systems are only as good as the agencies that put them
in place, oversee them and maintain oversight. All should be accessible
to the agencies that need to check that accurate information is being
inputted i.e.: proper social security & visas numbers. These should
also be integrated with the ORCA/CCR databases already in place.
Centralized or linked databases will make oversight less time consuming
for contracting and enforcement offices.
Receipt of jobs announcement: copy of advertisement, date and by
what means--via internet, newspaper, magazine, trade show, bulletin
board; where it was flown, for how long and for what type of job.
Continued efforts toward compliance of Job Clearance Order/Worker
Contracts disclosures.
In addition, the U.S. Forest Service should be required to put
hiring locals in their best value contacts. Put a high value for
awarding contracts to local entities. Public Law 106-291 has a
requirement for hiring locals.
Question 2. Similarly, the Department of Labor makes a
determination of the prevailing wage in a given area. However, in many
instances, that wage reportedly falls short of what is fair or
adequate. Do you have any insight into how the Department of Labor's
process for determining a prevailing wage falls short? Do you have any
suggestions on how it can be improved?
Answer. The Department of Labor sends out wage surveys to companies
in the industry. The Department should solicit a broader group to get
accurate wage information and they should do it more frequently. For
example, I have been informed by NWSA members, one contractor, has been
solicited by the Department only twice in 27 years.
One current requirement that helps address this problem is the
certified payroll and daily work schedules. Though this is time
consuming to the contractor, it is a necessary step to help address
this issue. This does not stop the abuse of paying workers cash, paying
workers 6 hours on the time card and certified payroll but work them 9
in order to avoid paying the prevailing wage. DOL and the agencies need
to work hand in hand to enforce the laws and rules that are currently
in place.
Raising wage determinations for the specific work will not solve
the problem. It will just give further advantage to companies who pay
under the table; skew hours, or otherwise circumvents the system. The
companies who are above board will put those rates in their costs and
the companies that pay under the table will have a further competitive
advantage. In addition, high wage determinations cause moral problems
for long-term employees who see beginners starting at high wages.
Unless there is strict enforcement and monitoring with field personnel
and paper trails, raising wages will have the opposite effect of the
desired result.
The Department of Labor will have trouble controlling wage abuse
unless they hire undercover agents to go into the companies. History
has shown the Department will just audit companies who have legitimate
business sites.
Many companies in this industry do not know all the items they must
comply with. The education process can be painful and costly but well
worth the effort. Pressure from educated companies to comply with
regulations with non-compliant companies is sometimes all that is
needed, however knowledgeable COR's that can recognize warning signs of
non-compliant companies will be extremely important. COR's will need a
support system to be able to report issues to the regulating agency ie:
e-mail or phone number in a timely basis and be empowered to stop work
if the situation requires it. Head counts & unannounced visits should
be implemented at odd hours. Implement the help of federal agency
L.E.O.'s to back up the COR.
Question 3. The Forest Service contract clauses issued on January
4, 2006, require contractors to train their employees in the safe
operation and use of equipment, but it doesn't appear that there are
any standards or certifications to ensure that all the workers are
appropriately trained. Should the agencies develop a uniform training
and certification program so the Forest Service can verify that
appropriate training has been provided and so the contractors know what
is expected of them? I note that the Forest Service already does this
in the context of wildland fire fighting and that British Columbia
reportedly has instituted training and certification of its
reforestation crews.
Answer. We already do more wildfire training than Canada. You can
have all the rules you want but without enforcement the ones who cheat
get the competitive advantage. That is how these companies have
proliferated over the years. Creating new regulations simply
exacerbates this problem.
Workers Compensation and OSHA already requires us to do training on
all types of work we do. Certainly OSHA could be part of the compliance
monitoring. However, like the other regulatory agencies OSHA also goes
the path of least resistance and audits or inspects those companies
with legitimate business locations. Adding more regulation to combat
abuses is not necessarily the answer and could actual increase the
problem. Rather, enforcement of existing laws, along with a
collaboration effort with overseeing agencies. Combined with an
aggressive education program to the industry we feel that industry
would respond in a positive way. Failure to respond immediately to the
situation will result in many legitimate businesses going out of
business, which hurts the taxpayer, all the workers and the agencies
trying to manage our forests.
______
Responses of Cassandra Moseley to Questions From Senator Bingaman
Question 1. As I understand it, the Department of Labor certifies
that there is a shortage of available labor in a given area before H2B
visas are issued to an employer wishing to work in that area. However,
the H2B contractors reportedly compete with local contractors for
Forest Service reforestation projects, which seems to call into
question the Department's determination that there was a shortage of
labor. Do you have any insight into how the Department of Labor's
process for certifying a shortage of available labor falls short? Do
you have any suggestions on how it can be improved?
Answer. As I understand it, when a contractor would like to hire
H2-B workers, they must place an advertisement in the newspaper where
the work will start. They do not have to advertise in the communities
near national forests or private lands where they will work
subsequently. Thus, contractors can acquire visas for H2-B workers
based on a lack of availability workers in the location where their
work season starts. Subsequently, they can move H2-B visa holders to
work on contracts far from those initial locations, even if there would
be an abundance of workers in those locations. Unless the workers in
those subsequent locations happen to read the newspaper in initial
location, they have no way of knowing about the availability of those
jobs. Contractors should be required to advertise more broadly,
including in the locations where they expect to work throughout the
work season, not just where they begin working.
The pre-certification job advertising requirements are inadequate
in another way as well. Contractors are only required to advertise for
short periods of time and in a limited manner. Consequently, even in
starting locations where there would be adequate workers, these workers
may not hear about the jobs or have time to apply. The advertising
requirements should be expanded to ensure that available workers learn
about the job opportunities and have time to apply.
In addition, contractors can request H2-B workers before they
actually have contracts in place. This means that they may be bringing
workers to the United States for jobs that may not materialize. When
these jobs do not appear or when there are gaps in employment, H2-B
workers may end up needing to take jobs outside of the provisions of
their visa.
Question 2. Similarly, the Department of Labor makes a
determination of the prevailing wage in a given area. However, in many
instances, that wage reportedly falls short of what is fair or
adequate. Do you have any insight into how the Department of Labor's
process for determining a prevailing wage falls short? Do you have any
suggestions on how it can be improved?
Answer. In the case of forestry services and fire suppression, the
federal government is seeking to replace government jobs with contract
jobs. Consequently, prevailing wage should be no less than the wage
that workers would have been paid had they been working for the
government directly.
Despite the fact that contractors move across the country to work,
wage determinations can vary considerably from place to place. For
example, the wage set for thinning in the Southwest is about $3/hour
less than in the Pacific Northwest. Wage determinations should be
revised upward in places where wages are out of line with the higher-
wage parts of the country. The wage that a federal worker would have
been paid should be a minimum standard for the prevailing wage across
the country.
In addition, the prevailing wage should rise at least as fast as
the rate of inflation. This has not been the case over the past decade
or more.
The Department of Labor (DOL) periodically falls behind in it wage
determinations. DOL did not change wage determinations in the Pacific
Northwest in forestry services for several years. Nationwide, fire-
related wage determinations had been out of line with what state and
federal wildland fire fighters were being paid.
Finally, the ``health and welfare'' determination should be
examined to determine if it is sufficient to cover the costs of
purchasing health care for a worker and his or her family, given the
rapid rise of health insurance costs. This number needs better pegged
to rising health insurance costs so that workers would have sufficient
funds to purchase health insurance for their families.
Question 3. The Forest Service contract clauses issued on January
4, 2006, require contractors to train their employees in the safe
operation and use of equipment, but it doesn't appear that there are
any standards or certifications to ensure that all the workers are
appropriately trained. Should the agencies develop a uniform training
and certification program so the Forest Service can verify that
appropriate training has been provided and so the contractors know what
is expected of them? I note that the Forest Service already does this
in the context of wildland fire fighting and that British Columbia
reportedly has instituted training and certification of its
reforestation crews.
Answer. It would be a good idea to create certification and
standards for safety training. Whenever forest workers are using
chainsaws, they face significant risks from chainsaw injuries and
falling limbs and trees. Safety training should also include training
to reduce long-term injuries such as hearing loss associated with
chainsaw use without hearing protection and repetitive motion back
injuries associated with tree planting.
Although I agree that safety standards and certifications for
training are a good idea, safety training is not the only type of
training is needed if we are to have with high quality restoration
performed and high quality jobs for forest workers. When community-
based forestry groups advocate for training, they envision training
that is holistic and comprehensive. Workers not only need to know how
to work safely in the woods, but they also need to understand basic
ecological principles, how to make decisions that result in ecological
improvements, and be able to perform a wide variety of activities and
tasks. Required training on safe work practices and protection would be
a good start towards this larger term goal.
______
Responses of Lynn Jungwirth to Questions From Senator Bingaman
Question 1. As I understand it, the Department of Labor certifies
that there is a shortage of available labor in a given area before H2B
visas are issued to an employer wishing to work in that area. However,
the H2B contractors reportedly compete with local contractors for
Forest Service reforestation projects, which seems to call into
question the Department's determination that there was a shortage of
labor. Do you have any insight into how the Department of Labor's
process for certifying a shortage of available labor falls short? Do
you have any suggestions on how it can be improved?
Answer. They appear to be asking to verify a shortage instead of
affirming existing supply. The Forest Service could verify existing
supply by looking at the number of responses to their bid
solicitations, then they could trigger an H2B request if their needs
are not met. The local ngos we work with usually do a labor and
workforce survey for their local National Forests, this helps
contracting officers know how to package their solicitations for local
businesses if they choose to.
Question 2. Similarly, the Department of Labor makes a
determination of the prevailing wage in a given area. However, in many
instances, that wage reportedly falls short of what is fair or
adequate. Do you have any insight into how the Department of Labor's
process for determining a prevailing wage falls short? Do you have any
suggestions on how it can be improved?
Answer. They need to look across the state borders because the
people who do the work in Oregon, for instance, are also doing the work
in California, the Department should compare state rates from time to
time because the market area is clearly the same.
Question 3. The Forest Service contract clauses issued on January
4, 2006, require contractors to train their employees in the safe
operation and use of equipment, but it doesn't appear that there are
any standards or certifications to ensure that all the workers are
appropriately trained. Should the agencies develop a uniform training
and certification program so the Forest Service can verify that
appropriate training has been provided and so the contractors know what
is expected of them? I note that the Forest Service already does this
in the context of wildland fire fighting and that British Columbia
reportedly has instituted training and certification of its
reforestation crews.
Answer. We developed an Ecosystem Workforce Training Program,
certificated through the local community college in conjunction with
the Forest Service and contractors and jointly funded with DOL job
training dollars. This program created multi-skilled workers. It was
our attempt to create a high skilled, high wage work force that could
live and work locally. We found this did not work because of the way
the agency packaged the work for large, mobile, single skilled crews.
This curricula is developed and has been used
In several counties in California and Oregon. Be very careful how
you structure this certified training, it has to be bi-lingual and
accessible and preferably would be for multiple skill sets. Otherwise
you just further institutionalize keeping workers in dead-end jobs with
no options for growth. However, certified training is dangerous (look
at the red card forgery issues in fire suppression) so we need to find
a way to keep this honest. March 8, 2006
______
Responses of Elaine Chao to Questions From Senator Craig
Question 1. The Chief and Director of Acquisition Management, Ron
Hooper, sent out memos to the field on the issues we are addressed at
the March 1st hearing. The Chief's November 18th, 2005 memo said,
amongst other things, ``I expect expertise and immediate action.
Contract Administrators must be able to recognize health and safety
violations . . . When these situations occur they must take action [and
not] let them work. ``Mr. Hooper's January 4th, 2005 memo said:
``Please ensure that these provisions are included in all service
contracts,'' . . . ``Finally, please ensure that all service contract
files include a written statement to the effect that the Contracting
Officer, the Contracting Officer's Representative, or the contract
Inspector has reviewed the requirements of these provisions with the
contractor and has conducted at least one inspection of existing and
new service contracts to ensure compliance with these provisions when
applicable.''
Please provide a work plan for each region that will ensure the
inspections called for in Mr. Hooper's letter are accomplished.
Answer. In the preface to your questions, you reference the
November 18, 2005 letter from the Forest Service (FS) Chief Dale
Bosworth and a related January 4, 2006 memorandum from the FS Director
of Acquisition Management, Ronald E. Hooper. The Chief's letter
directed the FS Contract Administrators to recognize health and safety
violations and to take action when such situations occur. Mr. Hooper's
memorandum directs FS Contracting Officers to include health and safety
provisions in service contracts, to include a written statement in the
file that the requirements of these provisions have been reviewed with
the contractor, and to conduct at least one inspection of the existing
and new service contracts to ensure compliance of these provisions. The
November 18, 2005 and January 4, 2006 communications were internal FS
directives and do not involve Department of Labor personnel. Therefore,
the Department of Labor has referred this questions to the FS, which
will respond under a separate cover.
Question 2. What steps will you take to check that the Contracting
Officers and Inspectors have complied with the direction in Mr.
Hooper's January 4th, 2005 memo? Please provide for the Committee
documentation of the accomplishments as of the end of June and the end
of the fiscal year.
Answer. As discussed in our response to the first question, this
question concerns internal FS policies and practices. Accordingly, the
Department of Labor has referred this question to the FS for response
under a separate cover.
Question 3. In the event an inspector, Contracting Officer's
Representative, or Contracting Officer fails to enforce the worker
health and safety provisions of a contract, what personnel actions will
be taken against them? What steps will you take against your Line
officers in the District, Forests, or Regional Offices in which the
violations occur?
Answer. As discussed in our response to the first question, this
question concerns internal FS personnel policies and operating
procedures. Accordingly, the Department of Labor has referred this
question to the FS for response under a separate cover.
Question 4. The Forest Service has a significant amount of
experience with best value contracts through the Stewardship
Contracting; would we get better performance and better enforcement of
health and safety and other labor laws if we shifted all Service
Contracts to a ``best value'' contract process?
Answer. As discussed in our response to the first question, this
question concerns internal FS operating procedures and expertise.
Accordingly, the Department of Labor has referred this question to the
FS for response under a separate cover.
Question 5. What specific steps has the Forest Service taken with
the Department of Labor and Homeland Security to ensure you have
authority to utilize and access their databases prior to awarding
contracts?
Answer. The Department of Labor has provided the FS with the links
to information posted on-line regarding Occupational Safety and Health
Administration inspection history and the Migrant & Seasonal
Agricultural Worker Protection Act (MSPA) ineligible farm labor
contractor list maintained by the Wage and Hour Division (WHD) of the
Employment Standards Administration. In addition, the WHD and the FS
have established procedures for communication between local offices,
which allows the WHD the ability to provide the FS with the
registration status of farm labor contractors and information on closed
investigations.
Responses of Elaine Chao to Questions From Senator Bingaman
Question 1. The Forest Service contracts require contractors to
comply with the Department of Labor's vehicle safety standards, but, as
I understand it, those standards do not require seatbelts and they do
not address transportation of equipment, for example. Is the Department
planning to improve those regulations?
Answer. The applicable vehicle safety standards referenced are part
of MSPA that is enforced by the WHD. MSPA applies to migrant or
seasonal agricultural workers employed in predominantly manual forestry
activities, including but not limited to, tree planting, brush
clearing, precommercial tree thinning and forest firefighting per the
9th Circuit Court of Appeals (Bresgal v. Brock, 833 F.2d 763). The MSPA
regulations at 29 CFR 500.104(1) and at 29 CFR 500.105(b)(3)(vi)(D)
require that seating be securely fastened to the floor. The MSPA
regulations contain no specific standard requiring the provision of
seat belts for the transportation of workers as mandatory seat belt
usage is addressed by state law.
MSPA general vehicle safety obligations at 29 CFR 500.100(a)
require the farm labor contractor (or agricultural employer or
agricultural association) which uses or causes a vehicle to be used to
transport MSPA-covered workers ensure that such a vehicle conforms not
only to safety standards prescribed by the Secretary but also ``with
other applicable Federal and State safety standards.''
Our research regarding seat belt usage required by states shows
that forty-nine states and the District of Columbia have mandatory
safety belt laws and in most states, these laws cover front-seat
occupants only. Seat belt laws in eighteen jurisdictions cover all rear
seat occupants.
A Wage Hour Advisory Memorandum (enclosed)* providing guidance on
MSPA vehicle safety reiterated the statutory and regulatory language
that vehicles must conform with other applicable Federal and State
safety standards, such as State seatbelt law. Therefore, we believe
that existing regulations provide authority to enforce current state
laws regarding seat belt usage.
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* Retained in subcommittee files.
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In regard to the second part of the question, the above guidance
also addressed MSPA-covered vehicles when towing trailers, a common
means for such contractors to move equipment. Further, the existing
regulations at 29 CFR 500.105(b)(2)(vii) require any load to be
adequately secured, which includes equipment being carried inside the
vehicle. In addition, as noted above, we believe our existing
regulations provide authority to enforce any current applicable Federal
or state laws that provide safety requirements for the transportation
of equipment.
Question 2. The Forest Service typically has multiple bidders on
reforestation projects. Can you explain how it can happen that the
Department of Labor certifies that there is a shortage of available
labor for purposes of the H2B program in a given area when the H2B
contractor later competes with numerous local businesses for contracts
in that same area?
Answer. As with other employers seeking to hire foreign workers
under the H-2B temporary visa program, employers performing
reforestation activities who request a labor certification from the
Department of Labor must first test whether there are U.S. workers
qualified and available to fill those positions. At the initial stage
of the H-2B labor certification process, the state workforce agency in
the area of intended employment supervises employer recruitment of U.S.
workers. The Department of Labor's Employment and Training
Administration (ETA) reviews each labor certification application
forwarded by the state to ensure that the record supports an employer's
decision not to hire U.S. workers applying for positions covered by the
application. If the record supports the employer's decision then ETA
certifies that there is a shortage of available labor in the relevant
geographic area to fill the vacancies at the time the employer is
hiring.
Labor availability is determined based on the number of qualified
individuals who apply for the specific positions advertised by an
employer.\1\ For example, an employer may advertise for ten (10)
positions for tree thinners or planters. Two qualified U.S. workers may
apply for those positions, leaving eight (8) positions unfilled. Once
it is determined that qualified U.S. workers are unavailable, ETA
certifies that there is a legitimate need to fill these eight job
openings with foreign workers.
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\1\ 20 CFR 655.3(a)-(b) (general H-2B recruitment requirement),
and Employment and Training Administration, General Administration
Letter No. 01-95 (outlining procedures for state processing and, in
Section V, Federal determination of availability). While the WHD does
investigate reforestation contractors, it does so under other
applicable statutes, such as MSPA, the Fair Labor Standards Act, and/or
the Service Contract Act.
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Reasons for unavailable qualified U.S. workers include, but are not
limited to: 1) there are no qualified U.S. workers available in the
occupation in the area of intended employment; 2) all qualified U.S.
workers in the occupation in the area of intended employment already
are employed by the other companies; and 3) the sponsoring employer
(the one completing the application for labor certification) already
employs U.S. workers in the occupation in the area of intended
employment, but needs additional workers to fill vacancies.
Question 3 Many observers have suggested that the Department issue
regulations providing H2A-like protections for H2B forestry workers.
Why hasn't the Department issued such regulations, and is it
considering doing so at this point?
Answer. The Department of Labor has no direct enforcement authority
of the H-2B provisions. However, the Immigration and Nationality Act,
as amended by the Save Our Small and Seasonal Businesses Act of 2005,
provides the Department of Homeland Security with authority to impose
sanctions on employers, including civil money penalties and debarment
from the program, for certain types of violations of the H-2B petition
attestations. In addition, the Department of Labor's ETA issued a
proposed rule last year to change the procedures for issuance of H-2B
visas and to provide for post-adjudication audits of attestions.
While the WHD does investigate reforestation contractors, it does
so under other applicable statutes, such as MSPA, the Fair Labor
Standards Act, and/or the Service Contract Act.
______
Responses of Mike Johanns to Questions From Senator Craig
Question 1. Please provide the Committee with a detailed plan for
enforcing the direction from the Chief and Ron Hooper on this issue.
Answer. The requirements to include the specific contract clauses
will be monitored through our established internal control audits of
the field units which are conducted in accordance with each Region's
Internal Control Plan. The results are documented and reviewed during
Washington Office audits of the Regions. This area will receive special
emphasis during these audits. We will update the committee on these
results as these audits proceed.
Question 2. Please develop an analysis of the cost of hiring H2B
workers during the planting and thinning seasons to perform the
planting and thinning work currently accomplished through your service
contract program. Assume the crews will work in a manner similar to how
the fire crews work and assume that we would like to accomplish similar
amounts of work as are currently being accomplished through your
service contracts.
Answer. This is a very complex issue. We presently don't have the
data necessary to perform the requested analysis. However, we will be
studying reforestation activities under the OMB Circular A-76 process
in the Fiscal Year 2008. This process establishes Federal policy
regarding the performance of commercial activities. The purpose of this
process is to set forth the procedures for determining whether
commercial activities should be performed under contract with
commercial sources or in-house using Government facilities and
personnel.
Question 3. Given the extraordinary unemployment costs the Forest
Service is now paying for fire fighters (after the fire season is
over), is there any reason that the agency couldn't use the fire crews
to accomplish some of this planting and thinning work?
Answer. Fire crews are typically seasonal or contract crews and the
Agency trend is to increase the use of contract crews. For example,
this year we have in place national fire engine and crew contracts.
These crews are not available except for fire crew contract duties.
Fire season and reforestation work occur at the same time of year,
therefore the seasonal fire crews would likely not be available for
reforestation work. Also, it would be inefficient and costly to move
fire crews around the country to conduct reforestation activities.
Responses of Mike Johanns to Questions From Senator Bingaman
Question 1. On August 12, 1993, Chief Robertson issued a memorandum
with an attached action plan addressing ``Labor and Immigration Policy
on Labor Intensive Contracts. ``Much of the Forest Service's recent
response to this issue is a reiteration of the 1993 memo and action
plan.
Is Chief Robertson's memo and attached action plan still in effect,
and, fnot, when and why was it withdrawn or superseded?
Answer. Chief Robertson's 1993 memo primarily addressed the legal
status of these workers. Once this issue appeared to be addressed, and
was not a reoccurring problem, the agency addressed other priorities
and events.
Question 2. Can you explain what plan the Forest Service has to
ensure that Chief Bosworth's directives are not ignored a few years
from now?
Answer. The Forest Service has established an ongoing working
relationship with the Department of Labor, mandatory contract clauses,
mandatory training for contract officers, and a process to monitor
compliance. The Chief and Director of Acquisition Management, Ron
Hooper, sent letters to the field outlining their expectations
regarding the health and safety of contract workers and contract
administration.
Question 3. The contract clauses issued on January 4, 2006, require
contractors to train their employees in the safe operation and use of
equipment, but it doesn't appear that there are any standards or
certifications to ensure that all the workers are appropriately
trained.
Should the agencies develop a uniform training and certification
program so the Forest Service can verb that appropriate training has
been provided and so the contractors know what is expected of them? I
note that the Forest Service already does this in the context of
wildland fire fighting and that British Columbia reportedly has
instituted training and certification of its reforestation crews.
Answer. We do not believe training and certification is necessary
for this type of contracted work. As with other contract work, the
solution lies in monitoring, enforcing, and reporting potential
violations to the appropriate agencies. These are the areas we are now
emphasizing.
Question 4. In his testimony, Mr. Rey referred to the development
of new performance measures to help evaluate employees' performance in
addressing the issues discussed at this hearing. Please explain what
measures have been implemented or are being considered and how they
will be used to encourage performance.
Answer. Contracting Officers' and Contract Administrators'
performance evaluations will include compliance with the Chief's
November letter and Mr. Hooper's January letter. This includes not only
their activities directly related to contract administration but also
their relationship and communications with the Department of Labor
representatives.
Question 5. What percentage of Forest Service hazardous fuel
reduction and reforestation projects in recent years are contracted to
local businesses and NGOs?
Answer. The Forest Service has contracted the analysis because the
data is not centralized. We will provide the information in late
summer.
Question 6. What percentage of Forest Service hazardous fuel
reduction and reforestation projects in recent years have been carried
out under IDIQ contracts?
Answer. Approximately 75 percent of fuel reduction and
reforestation work in recent years has been carried out under IDIQ type
contracts.
Question 7. In recent years, what percentage of Forest Service
hazardous fuel reduction and reforestation projects utilizing best-
value contracting authority were awarded to the lowest qualified bid?
Answer. Forest Service policy is that all hazardous fuel reduction
and reforestation contracts be awarded on a best-value basis. Based on
annual reviews of field units it is reasonably accurate to say that 100
percent of these contracts are awarded on a best-value basis. On
occasion even a best-value decision results in award to the lowest
priced offer.
Question 8. Does the Forest Service need any additional authority
to expand the current role that best value contacting plays in ensuring
that contractors perform high quality restoration, that contractors
that treat workers poorly or have a history of labor and safety
violations are disfavored, and that contractors that provide structured
training for their employees and create local benefit for public lands
communities are rewarded?
Answer. No additional authority is required to accomplish these
goals.
Question 9. The Forest Service developed a database in the 1990s to
track contractors with repeat violations of labor and safety laws. Why
was that database discontinued?
Answer. The database referenced was not a FS database but rather
one that Health and Human Services developed and operated. The FS has
created a database which will track potential violations of Department
of Labor regulations. We will use that information as part of the
responsibility determination during the award process for future
contracts.
Question 10. Does the Forest Service have a process in place to
make sure that a contractor is not using H2B workers in places not
listed on the relevant itinerary that the Department of Labor approves?
Answer. As part of the award process, the contractor must provide
written verification that he is authorized by the Department of Labor
to hire H2B workers. This authorization would indicate the specific
location in which the H2B workers could be employed and this would have
to be consistent with the location of the project.
Question 11. The Forest Service contracts require contractors to
comply with the Department of Labor's vehicle safety standards, but
those standards do not require seatbelts and they do not address
transportation of the equipment, for example. Absent improvements in
the Department of Labor's regulations, shouldn't the Forest Service
require contractors to meet specific vehicle safety and transportation
standards that address the unique risks involved in transporting crews
for reforestation and restoration projects?
Answer. The Forest Service has the authority to include these
vehicle safety requirements in the technical specifications of the
contract. Our new contract provisions do precisely what the Committee
suggested by this question.
Question 12a. The witnesses included in their testimony a number of
recommendations to address the problems addressed in the hearings,
which are paraphrased below. Please respond to each recommendation,
including whether you support the recommendation or have specific
concerns with it.
The agency should convene, through the National Partnership Office,
a series of meetings with workers, contractors, rural community
organizations, contracting officers, and other relevant federal staff
to develop concrete ways to implement changes in the procurement system
to help avoid creating an underclass of forest workers and create a
legitimate industry.
Answer. The FS convened an oversight group for this purpose on
March 22, 2006 and is in the process of developing membership of
working groups, procedures, and goals and objectives. We will continue
to implement this suggestion.
Question 12b. The Forest Service should automatically disqualify
bids that are 20% or lower than its estimate.
Answer. The GAO has clearly established that the FS cannot
arbitrarily establish some percent below which award will not be made.
We will however ensure that all minimum Service Contract Act (SCA),
Occupational Safety and Health Act (OSHA), and Migrant and Seasonal
Agricultural Worker Protection Act (MSPA) requirements can be complied
with at the price offered as a minimum.
Question 12c. Contracting officer's representatives and inspectors
should be required to record worker-days and hours.
Answer. It would not be feasible or appropriate for contracting
officer's representatives or inspectors to record worker-days and hours
at each worksite given the dispersion and remoteness of the sites.
Establishing this requirement would unnecessarily duplicate a current
SCA requirement applicable to the contractor. Moreover, MSPA requires
contractors to provide payroll records to the Forest Service.
Question 12d. The agency should explore using a system like the
Davis-Bacon certified payroll to increase compliance.
Answer. The SCA requires contractors to keep the same payroll
records as Davis-Bacon. Moreover, MSPA requires contractors to provide
payroll records to the Forest Service.
Question 12e. Procurement contracts should be packaged for long
duration employment--multiple months or seasons and multi-skill sets.
Contracts should provide business and employment for fewer workers over
longer periods of time.
Answer. The oversight group established in March will be looking at
ways to implement this recommendation.
Question 12f. There should be Notification of Lodging & Food
facilities for foreign guest worker companies.
Answer. This is accomplished during the pre-work meeting.
Question 12g. There should be Notification of Work Schedule and the
Work Area to COR daily to be able to track and catch non-compliant
companies.
Answser. This is accomplished during the pre-work meeting.
Question 12h. Defined work hours should be negotiated with the
Forest Service CO or COR (i.e.: daily start time, weekend/holiday
exemptions).
Answer. This is accomplished during the pre-work meeting.
Question 12i. The agency should verb employee identification and
work visas with existing databases that are being implemented by the
Forest Service for its wildfire suppression program.
Answer. The Department of Homeland Security and, to a lesser
extent, the Department of Labor each has responsibilities related to
employers verifying that employees are eligible to work in the US. The
FS database tracks violations. The Agency works with the other agencies
to ensure contractors are certified to utilize H2B workers. The FS fire
databases do not track work visa status of contracted employees.
Question 12j. The agency should verify that contractors have
appropriate insurance coverage.
Answer. This is accomplished during the pre-work meeting.
Question 12k. Agency Law Enforcement Officers should be cross-
trained by DHS and DOL to perform spot checks.
Answer. DOL is working with FS to make informational materials and
training on OSHA and WHD requirements available to FS contracting
officers.
Question 12l. The Department of Labor, Forest Service, and
BLMshould create a joint task force to report to Congress on the
agencies' efforts to address the problems discussed at the hearing.
Answer. The Forest Service and DOL are working together closely in
areas of training, monitoring and inspection, and referrals for
enforcement.
Question 12m. The agency should create an ombudsman who can
investigate concerns of workers, contractors, citizens, and agency
staff about labor and safety violations.
Answer. Rather than create another role and process we feel we now
adequately have addressed violations of labor laws and safety
requirements.