[dropcap]B[/dropcap]ranches are piling up under peach trees in Talbott Farms’ orchards near Palisade this week as 34 newly arrived Mexican and Honduran workers snick and lop their way through the annual pruning chores.
Ideally, this would have begun weeks ago before the trees were loaded with pink blooms. But there were not enough workers to do that job at one of the largest fruit-growing operations in the state.
Approval of applications for the legal foreign workers was delayed. That approval hinges partly on growers first trying to hire local workers, and the Talbotts had placed the required “Help Wanted” ads in newspapers. They asked for workers with three months experience in skills like thinning, picking and packing for $11.37 an hour. But, like in past years, only a handful of local job-seekers responded. None were qualified, or serious about taking the jobs.
Taking jobs, leaving jobs
When the argument is made about jobs that Americans don’t want to do, this is what they mean: In a five-year period at Talbott Farms, only two of the 140 guest workers brought in on H2-A visas did not fulfill their seasonal contracts. Of the 50 locals hired in that time, only two made it through to the end. Most put down their pruners or climbed down from their ladders and quit within a few days, or a few hours.
“This does not come down to a choice between legal workers brought in through the H2-A program and American workers. Your choice is between the H2-A workers and illegal workers,” said Libby Whitley, former lobbyist and U.S. Department of Agriculture employee who now runs a business that helps employers navigate an increasingly Byzantine process.
Foreign workers can legally do agricultural work in the United States through the guest-worker program that grants H-2A visas for specified periods of time. The ever-changing rules governing H2-As are so confounding that the Talbotts this year hired Whitley’s Virginia-based masLabor LLC firm to help make sure all H-2A requirements are met and fines are avoided for missteps. Still, it took months to move applications for the workers through the three agencies that oversee the visa program – The U.S. Department of Labor, the U.S. State Department and Immigration and Customs Enforcement.
With immigration reform floundering, regulations governing farm-worker visas have grown more onerous. In the past five years, measures have been added that are designed to give more protection to foreign workers while also hewing to the politically imperative notion of preserving job opportunities for Americans.
Scrambling and gambling
For growers who opt to use the H2-A program, that double mission means scrambling and gambling their way through the mix of farce and desperation that now marks seasonal hiring.
“Our representatives and senators want to have solemn assurance that we are not taking away American jobs. So we have to go through this charade to prove that is not the case,” said Bruce Talbott.
“It’s ridiculous,” added his brother Charlie Talbott, who is convinced that the Department of Labor acts with hostility towards growers trying to use guest-workers.
On bookkeeper Liz Talbott’s desk, two binders stuffed 8 inches thick with paperwork illustrate the current difficulties for this fourth-generation fruit-growing enterprise. They include applications and proof that the Talbotts are meeting requirements to provide things like housing and transportation and other amenities for the guest workers.
In any business sector, having such a hard time procuring a stable, experienced workforce would be a hindrance. In agriculture, not being able to hire workers on time, or losing workers during key growing cycles, can mean crop loss.
Weather dictates when workers are needed, and growers can’t always predict that. They must apply for the H2-A workers at least 120 days in advance, a problem in a year when the fruit crops are blooming at least two weeks early.
The Department of Labor states on its website that it tries to avoid delays in approving guest workers. But it is a government bureaucracy.
Worker-advocacy groups like Farmworker Justice and the Southern Poverty Law Center are adamant about maintaining all the rules of that bureaucracy because some employers have taken advantage of, and victimized, workers.
The Talbotts say they have tried to follow all the regulations to the letter, and to treat their workers well. But they have paid fines in the past for overlooking changes in the regulations. Examples of fine-drawing citations include letting an H2-A employee fill in on driving a tractor if tractor-driving wasn’t included in the job description, not having drinking water at the proper temperature, and not paying for transportation from a foreign consulate where workers are approved for the visas without paying for mileage from their homes.
The latter was one of the many changes the Talbotts said they were not aware of until they were cited.
A more urban and obese reality
Bruce Talbott, who serves as secretary of the Colorado Fruit and Vegetable Growers Association, said the failure of Congress to create a less onerous guest-worker program is having a negative affect beyond the orchards and vineyards of Palisade. The lack of workers and the delay in being able to hire foreign workers, is more often dictating what crops are grown around Colorado. Some growers have had to back off on growing labor-intensive but popular vegetables and opted for crops like corn and alfalfa that don’t require as many workers.
Whitley said lack of a reasonable guest-worker program has driven down the overall export numbers for American crops that require more hand labor. The farm labor-force segment has been weakened by an aging, more obese and more urban population.
“The attitude of the Department of Labor is grounded in the 1950s when there were thousands and thousands of American workers who would like to do these jobs,” Whitley said. “That isn’t the case anymore.”
Photo by Nancy Lofholm.
While I appreciate the grower’s frustration, many of the issues cited seems to be a lack of proper guidance from the agents these growers hire to complete the paperwork process for them. Seems to me like they’d prefer to hire these workers, who have no legal right to quit and work somewhere else if they so desire (perhaps the reason they have such a low attrition rate, they are essentially indentured to this employer) rather than raise wages as every other industry does in free market societies when seeking to provide a incentive to find sufficient workers. Secondly, implying the process is increasingly byzantine is simply disingenuous. While some small aspects of the program may be misunderstood to begin with, the foundation of H-2A has been in place since 1986….almost three decades. There has been very little in the way of changes since that time. While Mrs. Whitley seems to imply that the growers only choices are H-2A or illegal workers, this completely disregards the principals of free market capitalism. Similarly, none of these growers would like to see the enforcement actions which would level the playing field and actually enforce immigration law in the US, rather they simply skirt the law and continue to hire and illegal workforce. The author states that “in the last five years” regulations have been added making the program more onerous without stating which ones? I’ve done this for a decade, and I can’t think of one regulation which has made the process more onerous for growers, on the contrary, Mrs. Whitley’s very organization has worked to increase the requirements for US workers to qualify to do these jobs. In fact many of these experience requirements have been added in the past 5 years across the nation in my eyes to discourage US workers from applying for these positions. Who needs 3 months experience to pick a tomato when the grower is required to give several days training anyway? In regards to predicting the weather and what a growers start date would be, again, the author has left out a significant aspect of the program which allows growers to modify their date of need on the contract as long as it’s 10 days in advance of the date of need. If the weather changes, change your date of need….simple as that. Ignorance of the law isn’t an excuse for refusing to comply with it, and these growers pay agents like MASH2A significant amounts of money ($1,000’s of dollars per worker often) and to be fair, in my experience MASH2A is one of the few agents who actually advocate for the growers they represent. In regards to paying transportation for workers, it comes down to a violation of FLSA (essentially if workers are paying their transport they are potentially earning less than minimum wage, a violation of FLSA). This wasn’t a change in any regulation; it was as a result of a court case where a worker sued. I could go on and on….and I understand Mrs. Whitley’s enthusiasm to change the law as it would strengthen her business model and allow the growers to hire an indentured workforce who cannot seek alternative employment and has no escape from whatever working conditions they encounter which is why these agencies NEED to enforce the law in regards to this program. If the employer seeks to have workers drive a tractor as a term and condition of the employment, they simply need to state that on their clearance order. You can’t advertise a waitress position and hire someone then expect them to be a stripper so why would this be any different? In the future, if you’re going to report on this issue, it may be best to have more than one perspective.