Friday, September 16, 2011

ANLA Testifies Before Congress on Failed Worker Program Hearing Underscores Lack of Legal Worker Options for Farm, Seasonal Employers

Washington, D.C.— Joe Bailey, of Bailey Nurseries, St. Paul, MN, testified on September 13 before the House Education and Workforce Subcommittee on Worker Protections. His testimony, presented on behalf of the American Nursery & Landscape Association, briefed Congress on the labor situation confronting U.S. specialty crop agriculture and the nursery industry just as the House Judiciary Committee is taking up a bill that would make the federal E-Verify program mandatory for all employers.

Bailey described how his 106 year-old nursery has survived through the worker shortages of World War II, immigration audits and a raid, attempts to use H-2A, and E-Verify. He described in detail how with the unresponsive H-2A program, workers often failed to show up when needed for a highly seasonal business where six spring weeks are crucial. He also explained extensive efforts in 2011 to recruit American workers for seasonal jobs. The nursery needed 500 seasonal workers, yet was only able to hire 350, many of whom didn’t stay through the season.

Bailey wasn’t the only hearing witness critical of H-2A, and the Department of Labor’s (DOL) hostile administration of the program. Libby Whitley Fulton, who runs a private Virginia company that assists employers in using the program, described the startling results of an
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extensive research project commissioned by the National Council of Agricultural Employers.  Even though H-2A only supplies between three and five percent of U.S. farms’ labor needs, users reported losses totaling $320 million due to failures and limitations of the program. Grower appeals of arbitrary DOL denials have skyrocketed from a long-term annual average of 18, to nearly 450 in 2010. When challenged, DOL lost 90 percent of these appeals. A summary of the research can be found at

Education and Workforce Committee chairman John Kline (R-MN) states, as he questioned DOL’s official witness, “You are having a worse than chilling…a freezing effect,” on those trying to use the program to ensure a legal workforce. Kline went on to say that DOL’s administration of the program is not only hurting H-2A workers, but also their American counterparts. In Bailey’s case, a seasonal workforce of 900 supports 500 full-time, year-round American jobs that will disappear if seasonal labor needs are unmet. 

The hearing came just as House Judiciary Committee chairman Lamar Smith (R-TX) announced that his committee will take up his E-Verify legislation on September 15. He also plans to take up H.R.2847, legislation that would make some improvements to H-2A. However, producer groups including the Agriculture Coalition for Immigration Reform believe that improvements to H-2A will be woefully inadequate to meet their labor needs if E-Verify screens out 50 to 70 percent of experienced agricultural workers. “Even a vastly improved H-2A cannot bridge the chasm between the current legal workforce, and the workforce needed to keep American-produced food on American tables,” said Craig Regelbrugge, ACIR national co-chairman. Offshoring of production, jobs, and economic activity to foreign countries will result, he added. 

Rep. Dan Lungren (R-CA) plans to offer an alternative approach, H.R.2895, or the Legal Agricultural Workforce Act. It would create a new agricultural worker visa program that is considerably more flexible and market-based than the flawed and outdated H-2A model. “If a company like ours, one of the largest and most sophisticated in our industry, cannot make H-2A work, something is very wrong,” said Bailey. “Agriculture needs a legal labor safety net program that actually works.”  Bailey’s full written testimony can be viewed at 

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