Good Fruit Grower

January 2012

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Despite the need for more workers, Fazio said he can't always recommend that a grower use the H-2A program. "I don't like to recommend it unless people are really serious about following all the rules and regulations," he said. "If they don't have good HR (human resource) proce- dures in place, this is not a program for them. H-2A is not for sissies." Employers often encounter difficulties following the rules, but those who do decide to use the program should be considered heroes, not criminals, he said, because 99 percent of West Coast agriculture employers just hire workers who are already in the United States, probably illegally. "It's not their fault," he added. "But we have this work force that's a national embar- rassment because 70 percent of the workers are not eligible to be here." Fazio said people who are using the H-2A program include both small and large grow- ers. Most stick with it once they use it, although some dropped out in recent years when new regulations made it more difficult and expensive to use. Some have been able to recruit the same guest-workers to return year after year and depend on them. But as larger companies, such as Gebbers Farms in Brewster, Washington, and McDougall and Sons in Wenatchee, Washington, ramp up their H-2A participation, he foresees it leading to difficulties in the industry. "You're going to create two classes—which we're trying not to have—a class of people who are hiring legal workers and a class of people who are hiring illegal workers, and then we'll have battles between farmers," he predicted. • H-2A program requirements T he federal H-2A foreign guest-worker program allows employers who are short of workers to bring people into the United States to do seasonal agricultural work. The program's many requirements include the following: • Recruitment Employers must demonstrate that there are insufficient U.S. workers to do the work by attempting to recruit U.S. workers. Employers must hire any qualified and eligible U.S. worker who applies for the job until 50 percent of the work contract has elapsed. Employers must offer U.S. workers the same terms and working conditions as the foreign workers. • Wages The hourly pay rate must be at least as high as the applicable Adverse Effect Wage Rate, state or federal minimum wage, or prevailing wage rate, the agreed-upon collective bargaining rate, whichever is higher. Workers paid by piece rate must earn at least as much as the hourly rate. • Housing The employer must provide free housing to all foreign workers and other workers who can't reasonably return to their homes the same day. Housing must meet Occupational Safety and Health Administration standards. • Meals The employer must either provide three meals a day for workers, at no more than a specified cost, or provide a kitchen where workers can make their own meals. • Transportation The employer must pay transportation and subsistence from the worker's home to the workplace for either foreign or U.S. workers. If the worker paid for these expenses, the costs must be reimbursed after the worker has completed at least half the contract period. The employer must provide free transportation between the housing and workplace. On completion of the contract, the employer must pay transportation and subsistence back home. • Other requirements The employer must provide tools, supplies, and equipment at no charge. Employers must not hold or confiscate workers' passports or other immigration documents and must not receive payment of any kind from workers for anything relating to obtaining the H-2A labor certification. The employer must provide workers' compensation insurance at no charge.* * The Washington Farm Labor Association disputes this. Director Dan Fazio says H-2A regulations state that employers should follow state laws regarding workers' compensation and Washington requires that workers pay 25 percent of the premium, but some H-2A employers who have been audited by the Wage and Hour Division were told they needed to pay the entire amount. For more information, check the Web site www.dol.gov/whd/ag/ ag_h-2a.htm. SOURCE: U.S. Department of Labor, Wage and Hour Division Fact Sheet www.goodfruit.com GOOD FRUIT GROWER JANUARY 1, 2012 29

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