H-2B UNDER SEIGE
By Craig Regelbrugge, ANLA Vice President for Government Relations
Sometimes in our work representing the nursery, greenhouse, landscape, and garden retail industry, it is important to understand the real, or hidden, agendas that confront us. Sometimes, the agendas are not even hidden! This is the case with the series of administrative assaults the U.S. Department of Labor (DOL) has launched against the H-2 programs. Practically speaking, these temporary and seasonal worker programs – H-2A for agriculture, H-2B for non-agricultural industries like landscaping – are the only safety nets available to such employers when they cannot fill seasonal manual labor jobs with willing and committed American workers. Yet, the DOL has taken regulatory long knives to the safety nets.
In the case of H-2B, a new rule mandating a new wage methodology was set to take effect last October 1. Seemingly based on the Lake Wobegon premise that everyone should be above average, the rule would have forced H-2B wage increases commonly reaching 40 to 70% over the prevailing wages the program already mandates. The rule created enough blowback that the DOL delayed it for 60 days, then Congress stepped in and delayed it until October 1, 2012. Litigation is also pending. But that threat still looms as the clock ticks and the calendar pages flip.
Now, the DOL is publishing another final rule that basically rewrites the H-2B program. The rule is scheduled to be published in the Federal Register on February 21, with an effective date of April 23, 2012. It makes sweeping changes to most other aspects of the program – how an employer proves they have a seasonal need, how they must advertise, recruit, reimburse expenses, and more.
Throughout the final rule, DOL suggests that the proposed changes are necessary due to widespread program abuse. DOL says much of the abuse stems from the attestation process that was established by the Bush Administration in a 2008 H-2B program modernization. The evidence is thin, with only a handful of well-documented cases of program abuse. In such cases, employers should be held accountable. But why destroy such a program on the basis of limited violations? Why put the whole class into detention because two kids are shooting spitballs at each other?
Which brings me to the question of hidden or not so hidden agendas. In a recent conference in New York, a union official revealed the end game. They view the new H-2B structure as the bottom line they will insist on in any broader immigration reform bill that includes more work visas. Never mind that seasonal needs are uniquely challenging to fill, because most Americans are not seeking seasonal and manual labor jobs. Never mind that the program is capped at 66,000 visas annually, which is roughly three drops in the labor market bucket for the myriad industries that use the program. Never mind that adequate seasonal labor helps to ensure continued full-time employment for thousands of American workers in industries with seasonal labor needs. The unions are viewing H-2B as a proxy for a larger immigration fight, some day. They are working overtime to reshape it while they have a President who won't buck them.
The sad truth is revealing itself. You see, many unions are as fundamentally anti-immigrant as the restrictionists on the far right. They just go about their work more quietly. Which ups the ante for our industry and many others as we consider options for challenging this latest threat. But we cannot do it, and will not succeed, without the industry's vigorous backing.
For more on the new rule, here are two links. Click here for a preliminary ANLA summary. The second is an old rule/new rule comparison chart from the DOL, so take it with the appropriate grains of salt. Click here to view the DOL chart.