Trump’s proposed H-2A rules would harm, not help, U.S. farm workers and reduce protections for both domestic and foreign field laborers




Donald Trump’s proposed changes in rules governing the H-2A agricultural guest worker program would make it easier to deny jobs to U.S. domestic farm workers so employers can hire more temporary foreign field laborers and pay them less. It would depress pay for domestic workers and reduce existing protections for both domestic and foreign workers. The federal government indicates more than half of farm workers are U.S. citizens or legal permanent residents; the proposed changes would negatively impact most of these farm workers. 

The following highlights harmful changes in 489 pages of complex regulations announced by the Trump administration’s Department of Labor based in part on an analysis from Farmworker Justice:

• U.S. domestic farm workers would suffer under Trump’s proposed rules:

—Domestic workers would lose their right to take a job held by an H-2A guest worker until halfway through the season.

—Domestic workers would be denied the right to apply for jobs before they begin because employers could stage staggered entries—chances to start multiple jobs during different times of the year—using one H-2A application. They would thus avoid having to try to recruit domestic workers for each seasonal job before it starts throughout the year by filing separate applications.

—Farm labor contractors could string together a series of jobs covering different and unrelated crops and farms, thereby discouraging U.S. workers from applying.

—Employers could make major changes in job terms that both domestic and foreign workers rely upon in mid-season, making it harder and less likely for U.S. workers to apply for them.

• The Trump proposal would mean some long-distance transportation costs employers must now cover from H-2A workers’ residences in their home countries to their jobs in the U.S. would be shifted from employers to workers. Based on numbers provided in the proposal, that could cost H-2A workers about $320 a year, a lot of money for low-wage laborers.

• Despite recent news stories revealing miserable housing for H-2A workers, the proposed Trump rules would let employers self-inspect and claim even the most deplorable conditions are adequate.

• Many H-2A workers and the U.S. domestic workers who frequently labor alongside them would endure reduced pay since the Trump administration proposes to base wage rates upon surveys of farm labor contractors’ employees who earn less than workers hired directly by growers.  Basing a wage rate for all workers principally on a survey of lower-paid workers is an obviously flawed way to determine wage rates.

• Trump wants to expand the H-2A program to include two categories of non-agricultural workers who would lose their protections under a U.S. law letting them sue in federal court if they are cheated out of their pay or endure other grievances. H-2A workers have no such right.

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 Discriminating against U.S. domestic farm workers: The Trump administration alleges its H-2A rules changes would protect American workers. The existing H-2A program, which has expanded rapidly in recent years, has been fraught with abuses and failures. Trump’s proposal would further transform the U.S. farm labor workforce more quickly into a labor pool of foreign disenfranchised peons in several ways:

50 percent rule: For decades the existing H-2A program was supposed to protect U.S. domestic farm workers’ job rights against discrimination by growers or farm labor contractors who frequently prefer to import workers from poor countries. One key protection has been the 50 percent rule that lets U.S. workers take over a job held by an H-2A foreign worker up to halfway through a season that can last many months. The Trump plan would instead only allow domestic workers to claim the job during the first 30 days after it starts. Trump’s proposal would help employers deny U.S. farm workers jobs in favor of H-2A guest workers. A U.S. congressional study revealed the 50 percent rule is a valuable safeguard for domestic workers and is not costly for employers.

Staggered entries: This would make it much more difficult for domestic workers to compete for jobs and make the jobs they are offered much less desirable. Under present law, employers seeking different numbers of H-2A workers for various types of jobs must file separate applications for each job. Fewer workers are employed in pruning season while many times more employees are needed during harvests. Filing separate applications for each period of work gives U.S. workers opportunities to apply for jobs at each step, and employers must advertise so domestic workers can have first pick at the positions.

Trump’s proposed rules would allow staggered entries—chances to begin multiple jobs occurring at different times of the year—to be covered under one H-2A application. So employers would not have to attempt to recruit U.S. domestic workers for each seasonal job beginning at different times throughout the year. For example, there are many families where one parent, chooses to work only during the summer harvest so he or she can be with the children when school starts. The Trump rules permitting staggered entries mean a domestic worker would no longer be able to work only during the summer harvest, but would rather have to labor on the same farm much of the year.

Farm labor contractors could under the Trump rules string together a series of jobs covering different and unrelated crops and farms, staggering them so the jobs could be less desirable for domestic workers.

Changing job terms: The proposed Labor Department rules would allow mid-season changes in job terms. Say California grape harvesting jobs start in March and last until August. But in mid-March, the labor contractor requires workers to move to a different crop. Then, a few months later workers might be required perhaps to do construction on an agricultural farm. Both U.S. and foreign workers need to know what the jobs are before applying for or accepting work.

 Shifting transportation costs from employers to workers—For decades, H-2A employers have been required to pay the long-distance travel costs of workers from their residences in their home countries to their jobs in the U.S. Trump’s proposed changes would shift transportation costs from employers to workers. Under the new rules, employers would only pay transportation costs for H-2A workers to and from the U.S. consulate or embassy rather than from their homes. Based on numbers provided in the proposal, during the first 10 years workers would lose an average of at least $80 million a year—or about $320 per worker given the 250,000 H-2A workers presently employed. That’s a lot of money for workers from poor nations. This is in addition to recruitment fees—an illegal but common practice—many H-2A workers must already pay.

 Employers could self-inspect miserable housing conditions: Despite press reports exposing miserable and substandard housing, Trump’s new rules would mean inspection of housing employers must supply would not have to be regularly inspected by a government agency. Growers are supposed to provide adequate housing for H-2A workers, but there are many abuses. For example, a routine inspection of an Arizona farm exposed H-2A workers housed in old former school buses and windowless trailers without air conditioning in 100-plus-degree weather. The grower had nine shower stalls inside a small cargo container, but there was no functioning sewage system so wastewater accumulated underneath the container. The electrical cord used to light the showers was exposed to standing water, posing risk of electrocution.

The proposed rules would release growers from what is termed “unnecessary and burdensome regulations” by letting them self-inspect their own housing under certain circumstances.

 Changes to wage rates—The Trump Labor Department proposal would set the pay for H-2A workers by using surveys of farm labor contractor employees, among the lowest-paid farm workers, instead of growers who directly hire their employees and usually pay them more. Solely relying on surveys of labor contractor workers would skew the survey results downward. This could depress pay for both H-2A workers and the U.S. domestic workers who often labor alongside them or at neighboring farms.

 Expanding H-2A program to other workers: Trump’s administration wants to add two other categories of workers not considered agricultural—reforestation and pine straw employees—into the H-2A program. Since H-2A agricultural workers are not protected under the federal Migrant and Seasonal Agricultural Worker Protection Act, the reforestation and pine straw workers would lose that law’s protections—namely the right to sue in federal court if they are aggrieved, such when they are cheated out of their wages.

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Moreover, like so many other Trump policies, his H-2A proposed rule changes are also about self-dealing and self-enrichment. H-2A workers toil in Trump’s Virginia vineyards. He would personally gain from changing the rules so he can hire more foreign guest workers more cheaply and make it harder for domestic farm workers to get those jobs. Because their visas only let them labor at Trump vineyards, the right of H-2A workers to remain in this country is totally at Trump’s mercy —simply for complaining about abuse or mistreatment.