A federal heat standard that would give breaks to farmworkers so they can cool down when temperatures reach “heightened levels” is among recommendations for Congress advanced by a bipartisan working group of House Agriculture Committee members tasked with examining ways to address ag’s labor shortage.
The Agricultural Labor Working Group also recommended flexibility in implementation of the Adverse Effect Wage Rate set by the Labor Department, and a cap on wages under the H-2A program in line with the Farm Workforce Modernization Act that passed the House, but not the Senate, in the previous Congress.
“America’s agriculture industry depends on the availability of a reliable workforce,” Ag Committee Chairman Glenn “GT” Thompson, R-Pa., and the committee's top Democrat, David Scott of Georgia, said in a joint statement. “However, as we have traveled the country, listening to farmers, ranchers, workers, and producers, it’s become abundantly clear that a lack of reliable labor is one of the industry’s greatest challenges.”
The Occupational Safety and Health Administration has been working to develop a proposed heat standard, but it's unclear when an official proposal might appear.
"Increasing temperatures and increased incidence and intensity of heat waves are causing farmworkers to confront significant heat-related injuries that have led to health risks, labor losses, and sometimes death," the ALWG report says.
The recommendation was among 15 that the bipartisan group adopted unanimously.
On wage flexibility, the report says, “Current law requires employees to be paid at the highest wage rate available for the duties performed for an entire day of work,” and urges Congress to provide “a de minimis exemption for work performed that is ancillary to the worker’s main contracted job responsibility or responsibilities.” The exemption would apply when a worker spends 25% or less time performing the higher-paying job.
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Another major recommendation from the report: Allowing year-round industries access to the H-2A program. “One thing that has become clear is the need for dairy producers, meat processors, sugar processors, forestry, ranchers, and others to have access to a steady and legal workforce,” the report says.
Other recommendations that received unanimous support from the working group, which was chaired by Reps. Rick Crawford, R-Ark., and Don Davis, D-N.C., are:
- Creating a single portal for filing H-2A applications.
- Allowing H-2A employers to apply for staggered worker entry.
- Streamlining recruiting and hiring processes for H-2A by, for example, “permanently waiving the in-person interview requirement for returning H-2A workers.”
- Expediting review of delayed H-2A worker applications.
- Requiring the Department of Labor to consult with USDA and allow it “to provide written comments prior to publishing a rule or a notice of proposed rulemaking that makes any changes or updates to the H-2A program.”
- Requiring the Government Accountability Office to do reports on H-2A program integrity and worker protections and enforcement.
- Requiring GAO to report on changes brought about in the H-2A program by COVID-19: “The ALWG recommends that Congress require the GAO to study and report to Congress the effect of changes made to the H-2A process justified by the COVID-19 pandemic on the compliance burden of applicants, timelines of government approvals, and worker safety and fair employment.”
- Eliminating mid-contract wage adjustments.
- Codifying special procedures that are currently in regulation.
- Granting year-round industries access to the H-2A program.
Six recommendations had majority support. The group decided it would not say who supported or did not support each of those recommendations “in order to preserve the bipartisan nature of this group and the report.”
Those recommendations include creation of a pilot program that would allow workers to stay three straight years at a single site or location, with no seasonality requirement. Another would give the Labor Secretary authority to waive the AEWR requirement for farms with gross farm cash income of less than $350,000.
Other recommendations with majority support call for a “permanent solution to [AEWR] increases” and for reform of the Labor Department’s wage calculation, by prohibiting it from using USDA’s Farm Labor Survey. Two others would allow joint employment of H-2A workers and seek to reduce housing costs in the program.
“Congress should authorize $1 billion to rehabilitate housing that is aging out of the USDA incentive program, thus reopening eligibility for rental assistance and preserving housing stock for farm workers,” the report says.
Other members of the working group besides Crawford and Davis were Republicans Lori Chavez-DeRemer of Oregon, Monica De La Cruz of Texas, Doug LaMalfa of California, Nicholas Langworthy of New York, David Rouzer of North Carolina and Derrick Van Orden of Wisconsin; and Democrats Yadira Caraveo of Colorado, Salud Carbajal of California, Jim Costa of California, Jasmine Crockett of Texas, Darren Soto of Florida and Gabe Vasquez of New Mexico. Thompson and David Scott were ex officio members.
The International Fresh Produce Association, in a statement, said it "welcomes" the report. The organization said it agrees with the report's suggestion that the Adverse Effect Wage Rate be frozen through 2025, as well as "the Working Group's unanimous conclusion that workers should be paid accurately for what they do."
"Many of these recommendations are part of the Supporting Farm Operations Act, which, if given the chance, IFPA believes could pass today and provide immediate meaningful relief to food and farm producers across the nation," the statement says.
American Farm Bureau Federation President Zippy Duvall, in a statement, also applauded the report, which he said "delivers important bipartisan solutions for America's struggling agricultural labor force."
“I am grateful to committee leaders for making this a priority when they could have looked the other way," Duvall wrote. "That’s what leadership is all about and I hope this work is followed by action. America’s farmers and ranchers are counting on Congress to address this issue before more farms go under.”
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