Link to original article in the Yakima Herald-Republic

Link to the article in the Columbian

by Jasper Kenzo Sundeen

Proposed federal changes to the foreign guestworker program are drawing mixed reactions among worker advocates and employers in Washington state. 

The H-2A program has grown in size and is now a staple of the agricultural economy in Washington and in Yakima County, where thousands of farmworkers come every year to work on orchards and fields. It allows agricultural employers to hire foreign workers seasonally when there is a low supply of domestic workers.

The federal departments of labor and homeland security have proposed changes to increase workers' protection and their flexibility when moving between or going to jobs.

In documents, federal regulators also said the changes are intended to make the program easier and more efficient for employers. Employers and contractors that help them coordinate H-2A worker hiring and employment aren't so sure, said Enrique Gastelum. He is the chief executive officer at Wafla, a Washington-based nonprofit labor contractor that helps connect farmers with workers.

“This is a massive rewrite of H-2A rules,” he said.

Workers and labor advocates in Washington have been calling for changes to the program for years, and they welcome efforts to protect workers. The changes allow increased regulation from local agencies and more contact between H-2A workers and labor advocates.

Employers said more flexibility for workers and employers is good, but they are concerned about the consequences they could face for violations and the scope of the rules.

A glance at the rules

Each federal agency is proposing separate changes.

The U.S. Department of Labor is trying to simplify the application process, its rules say, by consolidating the process online. It expands who can be involved, allowing federal, state and local standards to be applied to H-2A housing. Worker pay is determined by a survey on agricultural wages and state agencies, universities and colleges could be allowed to administer those surveys, a step that could provide more accurate wage data.

The changes also allow multiple employers to jointly apply for H-2A workers. They increase accountability for employers, attorneys, recruiters and other agents who violate the rules.

The DOL and Department of Homeland Security rules both try to extend accountability to businesses or corporations that succeed those that may have been caught violating rules, to prevent them from returning to the H-2A program with a new name or a change in ownership. The DHS rules have mandatory denial of applications in some cases, and bans that can last years.

There are new consequences for employers that tack on extra fees. There's culpability for violations of federal, state or local labor laws, including past violations if they are serious enough.

DHS rules seek greater worker flexibility by instituting whistleblower protections; longer grace periods before, between and during H-2A jobs; and opening H-2A employment up to all foreign countries, not just a limited list.

Those longer grace periods have been one of the most supported proposals by employer and labor advocates alike.

Workers would have a 10-day grace period before the H-2A contract starts to enter the country, giving employers more flexibility around the beginning of harvest or other work. Workers would also get up to 60 days after completing an H-2A contract to stay in the country and find another H-2A position or travel home.

Another update would allow greater communication between H-2A workers and labor advocates. It expands workers' ability to organize, invite guests like labor advocates to worker housing and have representatives present at disciplinary meetings. Labor organizations can request workers' contact information.

Advocates react

Reactions are mixed across the board, though those representing employers have called the proposed rules an overreach. Labor organizations remain cautiously optimistic.

United Farm Workers, a union that represents agricultural laborers across the country, has welcomed efforts to update the rules.

“We are hopeful that these proposed rules indicate a real commitment by the Biden administration to begin empowering farm workers on H-2A visas to stand up to employer retaliation, unsafe working conditions, and illegal recruitment practices,” said UFW President Teresa Romero in a September press release regarding the DOL proposal.

In its news release, UFW noted the employment of H-2A workers at Ostrom Mushroom Farms in Sunnyside, where a lawsuit from the Washington Attorney General said domestic workers were fired and replaced by foreign workers. The DOL fined Ostrom $130,000 in a separate investigation for violating H-2A rules.

In a later press release discussing the DHS rules, the UFW said there is more work to be done but called these proposals a foundation for further efforts.

Gastelum said there are aspects of the rules, specifically the increased grace periods, that Wafla supports, but otherwise, the proposed rules go too far.

“They are shotgun regulating an entire nation of farming communities,” he said. “We believe this is an overreach.”

Gastelum added that there was a variety of concerns Wafla had with the new rules, but the broad nature of the proposals and the effect they could have on all farmers was one of the biggest. He endorsed catching violations but called such incidents isolated.

“This broadens the scope and lowers the level for things employers can get in trouble for,” Gastelum said.

The H-2A process can be complicated, and employers often contract with numerous application, transportation and recruitment companies to hire workers. Wafla is one of those organizations, and has around 300 contracts  where it helps facilitate H-2A work in the U.S. Gastelum is concerned that the proposed rules will enforce consequences that ripple across the industry.

“We have one issue at one farm and if Wafla is held liable, that could affect the 300 or so other employers Wafla works with,” he said.

Edgar Franks, political director for independent farmworker union Familias Unidas por la Justicia (FUJ), said workers have reached out to FUJ when things aren't going well.

“A lot of our contact with H-2A workers is when they’re in crisis mode,” he said.

FUJ began working with H-2A workers in 2017 after allegations emerged against a Washington employer, Franks said, and since then the union has engaged with H-2A workers across the state.

Franks noted other controversies in the H-2A program in Central Washington. 

FUJ favors better protections for H-2A workers, Franks said, including those for whistleblowers, worker wages and H-2A workers between jobs. Ultimately, though, FUJ has not supported the program as it is and has called for greater freedom and flexibility for farmworkers. The rules don’t change that, Franks said.

“We still want workers to be treated the best way they can be treated,” Franks said. “I don’t think they can make this palatable because, at the end of the day, it’s still the H-2A program.”

This is not the first attempt to reform or change the H-2A program. U.S. Rep. Dan Newhouse, a Republican who represents Central Washington, proposed the Farm Workforce Modernization Act to reform the program. The proposals were not passed in the U.S. Senate.

There are reservations about these proposals among both agricultural employers and workers.

Organizations like FUJ and UFW are calling for steps beyond what’s proposed. UFW called for increased protections in its press release. Franks said employers should put greater effort into hiring domestic workers.

Gastelum said the rules came out during the fall, when many Washington employers were in the middle of harvesting crops. He called for more time to review and comment on the rules.

The comment period ended in November.