Michael Marsh

Nov 4, 2019
NCAE Column: Bureaucracy around ag labor policy is frustrating

One of the things that frustrates many Americans is the bureaucracy that exists in the federal government. I share that frustration and I’ll provide just a couple of my frustrations related to agricultural labor in this article.

Yesterday morning I wrapped up draft comments on a Notice of Proposed Rulemaking published by the Department of Labor (DOL). The process to get to yesterday morning was laborious, but necessary.

Early in the Trump administration, members of the National Council of Agricultural Employers (NCAE) met at the White House with other agricultural colleagues. The question was asked of them as to what was the most pressing issue facing America’s farmers and ranchers? Was the most pressing issue air quality, water quality, trade, commodity prices, taxes, health care, the farm bill, access to credit, or was it something else?

Resoundingly, the new administration heard from the farmers and ranchers assembled, that their most pressing issue was access to a stable, legal and reliable workforce. The other issues are all important too but, the issue keeping most people up at night was labor.

Concerns were expressed as to whether if they were to plant their crop, would there be someone to help them harvest it? They told the new administration that although they advertised widely (at significant expense), the few domestic workers who showed up and applied for the jobs didn’t really seem all that interested in temporary seasonal employment. And, those who did accept the job that was offered, either didn’t make it through the first day of work or were mysteriously injured on the job and needed to file for worker’s compensation.

Exceedingly few of the domestic workers hired, remained in the job for the duration of the contract period. These early abandonments of the jobs created additional challenges for the farm operators, as it left them short of an adequate labor supply to harvest the crop.

Having heard the concerns, the administration in May 2018, issued a press release signed by four members of the Cabinet pledging to reform the H-2A temporary agricultural worker visa program. This was very welcome news to ag employers frustrated by their inability to find domestic workers to do the job.

Finally, on July 26, 2019, new proposed regulations were published in the Federal Register outlining the administration’s efforts to streamline and modernize the H-2A program. The proposed rule stretched for 489 pages. The draft comments from NCAE on this proposed rule were the ones I wrapped up yesterday morning.

RELATED: Farm Workforce Modernization Act introduced

It’s troubling to think that bureaucracies charged with delivering the message, “I’m with the government and I’m here to help,” would take more than 14 months to deliver on a promise made in May 2018. Perhaps I’ve been working with farmers and ranchers too long because, in my experience most things needing to get done, needed to get done by yesterday. Fourteen months certainly isn’t yesterday.


Recently, the DOL has been turning down applications for temporary H-2A ag labor job orders. Due to the national shortage of truckers available to haul just about anything from here to there (thank Amazon), farmers have needed to look outside the country for help filling these positions.

The troubling part of these denied applications is curious to say the least. There appears to be a disconnect between the interpretation of what harvesting a crop means in bureaucratese, and the reality on the farm.

I’ll pose a question to you and we’ll see if you arrive at the same answer as the government.

Is the harvest of an apple complete when the apple is picked from the tree?

The cases I am referring to at DOL involve H-2A farm labor contractors who have been hired by a farmer to move the crop out of the field to the packing shed, the processing facility, the sugar mill or the cotton gin. According to the department, if the farmer or the farmer’s employees haul the crop out of the field, that’s part of the harvest and is considered agricultural labor or services.

However, if the farm labor contractor the farmer has hired hauls the same crop out of the same field, that work does not qualify as agricultural labor or services and is not treated as part of the harvest.

Think about that. Isn’t that a head scratcher? In all my years doing tax returns for farmers and ranchers, I would never have guessed that I was doing was wrong, by expensing the costs of harvesting a crop performed on a farm by a farm labor contractor, as agricultural labor or services.

And you know what? I wasn’t wrong.


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

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