Michael Marsh

Mar 1, 2022
NCAE Column: Bingo, bango here we go with a litany of issues

The regulatory engine that is Washington, D.C., is roaring back to life for agricultural employers.

In July 2019, the Trump administration Department of Labor (DOL) promulgated 489 pages of proposed regulatory changes for the H-2A Temporary Agricultural Worker Program in a massive overhaul. Some of the changes in the Trump Notice of Proposed Rulemaking (NPRM) were farmer and rancher friendly, while others were not.

Working with a team of labor and immigration attorneys who are National Council of Agricultural Employers’ (NCAE) members, the council developed comments supporting the good parts of the NPRM and asked that the offensive ones be removed. We submitted those comments in September 2019 to the agency and waited. And waited. And waited some more.

After 11 months and still no sign of the final rule coming out, and with the presidential election bearing down on the U.S. electorate, NCAE again petitioned the secretary of labor to reform the methodology on the wage part of the NPRM. Our goal with the petition was twofold. First, to achieve wage reform and second to, at last, pry the broader regulation from the jaws of the bureaucracy.

Subsequently, within a few days, something hit the fan!

USDA notified DOL that they were no longer going to publish the Farm Labor Survey (FLS) which is used by DOL to establish the Adverse Effect Wage Rate (AEWR). The USDA was then sued by the United Farm Workers (UFW), seeking to force publication of the FLS. This action was taken even though the beleaguered UFW cannot convince the hardworking beneficiaries of H-2A visas, to fork over a portion of their wages for UFW’s ineffective advocacy. However, the dwindling number of UFW members benefit from the hyperinflationary and disconnected wages generated by the AEWR.

The Trump DOL had to scramble to pull together a new wage proposal that would have frozen the AEWR for two years and utilize an index to adjust wages after two years, attempting to bring some sanity and connection of the AEWR to the market for agricultural wages. UFW sued the DOL over the new regulation.

The union successfully enjoined both the USDA and the DOL with orders from the federal district court in Fresno.

Following certification of 2020 presidential electors, the 722 pages of the rest of the Trump makeover of the H-2A regulation, absent the litigated wage piece, was finally scheduled for publication. Around noon on Inauguration Day, this Trump Rule was withdrawn.

We learned on the final day of NCAE’s Ag Labor Forum in December 2021 that the Biden administration’s version of this regulation should go final very soon.

NCAE Ag Labor Employer Forum
Nearly 300 attendees took part in the National Association of Agricultural Employers Ag Labor Employer Forum Dec. 1-3 in Las Vegas, Nevada. Photo: Gary Pullano

Similarly, the Biden administration’s version of the wage rule was set to go final after going to the White House for approval this fall. Concerned as to what the rule might contain, NCAE asked for and received an EO 12866 meeting with the White House to express our concerns.

See more on labor in the ag industry››

This final rule has now been converted by the Biden DOL into a NPRM. NCAE is developing comments for submission with a team of stakeholders, attorneys and economists.

The regulatory beast, unstated, has provided us with yet more work to do.

An Advance NPRM (ANPRM) from OSHA has been published relative to a new heat regulation to protect workers. This ANPRM is intended to gather information in anticipation of a NPRM on the topic likely to be developed in 2022. NCAE will briefly comment on the ANPRM arguing regulation is unnecessary given the existence in agriculture of heat protocols contained in Injury and Illness Prevention Programs on farms and ranches. Nonetheless, we anticipate this will not thwart regulatory momentum.

And, while we are resting, the House has teed up new Civil Money Penalties in the president’s Build Back Better plan that will increase, in many cases tenfold, existing penalties for violations of OSHA regulations, the Fair Labor Standards Act and the Migrant and Seasonal Ag Worker Protection Act. Members of the committee objected when the chair indicated these were mere “updates” to the penalties but, to no avail. Consequently, NCAE is urging U.S. Senators to strike these unconscionable “updates” from the bill. If changes are necessary, they should go through regular order where stakeholders have an opportunity to weigh in.

It’s going to be a busy 2022!

Happy New Year!

— Michael Marsh, president & CEO, National Council of Agricultural Employers


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