August 2008 Big Grower

The Big Picture By Craig J. Regelbrugge

The issues of labor and immigration have been on the minds of leading growers for years. Now, the illegal immigration debate is mainstream and red hot. It is difficult to pick up a newspaper or turn on the evening news or talk radio without hearing about immigration. Yet the national debate is hardly an enlightened one based on facts. Rather, it is a debate fueled by tremendous misinformation and strong emotion.

Perhaps no other issue confronting growers carries such risk and uncertainty. Indeed, if the chapters being written now end poorly, we are likely to see growers scale back or even quit production. Many more will outsource or offshore aspects of their operations. After all, other countries that have the labor power would welcome the investment. And if the quest for meaningful immigration reform doesn't end well, more than a few unlucky growers, or their managers, may ultimately face steep fines or even jail time.

With that backdrop, it is vital for owners and managers to understand the legal issues facing green industry businesses. But before going there, a bit of stage-setting on workforce demographics and the situation on the ground will put things in the proper context.

Snapshot of U.S. Grower Labor Situation

Government statistics show that there are roughly 2.5 million hired crop farm workers each year in the United States. About 900,000 of those work less than 25 days, though, meaning that 1.6 million workers are "serious" farm workers. While most are working with fruit and vegetable crops, many are employed in the nursery and greenhouse sector.

As far back as 1998, 52 percent of farm workers admitted in government surveys that they lacked proper work authorization. That number has steadily grown since the late 1980s. Current estimates suggest that at least 70 percent of farm workers are improperly documented. This is not just a fruit and vegetable agriculture problem; a recent immigration audit of a large floriculture operation in northern California resulted in the loss of more than half the workforce, almost 300 workers.

Much of the agricultural labor force is transient. Each year, one out of six farm workers is doing the work for the first time, and 99 percent of these workers lack proper immigration status. Stated differently, there is virtually no domestic applicant pool for agricultural jobs. Because the total labor force need has changed little over two decades, this means that for every worker who starts, another leaves the field for jobs in sectors like construction and hospitality.

But some do stay. Many who stay in the sector have developed special skills, been promoted up the ranks and now hold key foreman, supervisor and year-round positions. This is especially true of the dairy, nursery and greenhouse industries. Some of these workers are today or tomorrow's managers and, someday, even owners. Retaining these essential workers in a legal status is an inescapably important part of any immigration reform for agriculture.

We as an industry must step up to the challenge of seeing the labor force solution as multifaceted. The answer won't be found in assuming that a limitless stream of immigrant workers will meet all needs. Sensible immigration reform must be coupled with an ongoing commitment to building true careers in the industry, as well as redoubling efforts toward mechanization and automation and other productivity-enhancing technologies.

Current Legal Framework

Since 1986, employers have been held accountable to a paper-based employment eligibility system. In other words, at the time of hiring, an employer must ask the prospective employee to furnish any of the documents or combinations of documents approved on the I-9 form. If the applicant provides documents that appear genuine, the employer must accept them at face value. An employer must avoid requesting a specific document, or asking some employees for more or different documents. To question or be picky about documents can lead to discrimination claims.

Through the years, many employers have received letters — typically from the Social Security Administration or IRS — indicating that one or more names and numbers on their tax filing do not properly correspond to records in the Social Security database. Mismatches sometimes result from clerical or other errors, yet they often result from the use of false Social Security cards or other documentation. Much confusion has stemmed from these letters. Some employers have simply chosen to ignore them. Others have hastily fired employees subject to a mismatch. Neither approach is advised.

Conservative legal advisers encour-age companies to maintain a consistent approach. Let employees know at the time of hire, through a mechanism such as a policy manual, that they are responsible for furnishing information needed for the company to meet its obligations under the law, such as tax filing. When you receive a mismatch, inform affected employees that there may be a problem with their records, and suggest that they contact the Social Security Administration to correct any mistakes and notify you of any corrections. Document your actions. However, if a second letter is received, conservative advisers suggest that the employer should require the employee to correct the problem in a reasonable time period, such as 60 or 90 days. If they fail to do so, you have grounds to terminate their employment.

Anecdotal evidence suggests that many employers are not following through on no-match letters, simply because the letters themselves don't require a specific action, and employers don't want to lose key employees. Also, a mishandling of no-match letters can lead to claims of discrimination. On the other hand, a court may conclude, in the face of a pattern of mismatch letters, that an employer had constructive knowledge that an employee was not authorized to work in the United States.

The Bush administration has efforts under way to formalize employer response to no-match letters by requiring a set of prescribed steps that must be taken to rectify a no-match.

Employers who follow the guidance would have a "safe harbor" from claims that they knowingly employed unauthorized workers. Employers who fail to follow these steps in a 93-day window could be considered to have "constructive knowledge" of an employee's unauthorized status, and put themselves in a position of legal vulnerability. The rules are held up by a court injunction, but could reemerge this year.

Complicating the situation are emerging mandates to use the E-Verify (formerly Basic Pilot) system for electronically verifying the work eligibility of new hires based on information in federal databases. The program is currently voluntary, and only a small fraction of U.S. employers have enrolled. However, pending federal legislation seeks to make E-Verify mandatory. While the fate of such legislation is uncertain, the current administration has also proposed making E-Verify mandatory for all companies who are primary contractors with the federal government, as well as subcontractors who are providing services to primary contractors.

Further complicating matters are the states' actions. A number of states have reacted to Congressional failure to reform the nation's immigration laws by taking matters into their own hands. State legislatures including Arizona, Oklahoma, Mississippi and South Carolina have passed laws that require use of E-Verify or other heightened obligations on employers. While the pressures confronting these states in the wake of the federal government's failures are understandable, the result will be a patchwork quilt of hostile, anti-employer mandates that render some states unwelcome places for immigrants — and businesses that rely on immigrant labor.

Prospects for Meaningful Immigration Reform

Agriculture — the nursery and greenhouse industry included — is in the best of places and the worst of places: Best because agriculture has made its case to Congress; worst because the reliance on immigrant labor is huge, and the enforcement-only juggernaut will hit growers faster and harder than most other employers.

Despite the "dumbed-down" debate on immigration (thanks, Lou Dobbs, for leading the race to the bottom), most Americans still grasp that their kids aren't aspiring to do the tough work in tough conditions on the farm, whether the crop is fruit or foliage plants, tobacco or petunias. Many lawmakers have begun to realize that failure to deal with the agricultural labor situation will hasten the offshoring of our production to countries such as China or Mexico.

Yet with the demographics discussed earlier, no other industry faces risks like agriculture. Is reform possible, now or in the near future? The only way reform will happen is if it is bipartisan, and brings together "odd-bedfellows" coalitions of business and labor and immigrant-rights groups. That has been true for the past 10 years, and it will be even truer in 2009 with an assuredly more Democratic Senate, and a likely more Democratic House of Representatives.

Fortunately, we've got a front-row seat. The American Nursery & Landscape Association (ANLA) led the negotiation of the historic AgJOBS bill, which overhauls the existing H-2A agricultural guest worker program to make it more useable and reliable, and provides an opportunity for trusted and experienced workers who lack proper status to earn it through hard work and commitment. More recently, ANLA was instrumental in negotiating a short-term solution known as the Emergency Agriculture Relief Act (EARA).

EARA is "AgJOBS lite." It has the basic features of AgJOBS (H-2A reform and legal status for trusted and experienced workers) but it is a five-year, temporary program. The temporary nature assures supporters of comprehensive immigration reform that we'll be part of the coalition pushing the next Congress to get it done.

Achieving anything in the short term is long odds, yet try we must. We are working side-by-side with Sen. Dianne Feinstein (D-Calif.) and other champions of AgJOBS and EARA to seize any moment or window of possibility. If none presents itself, our industry will have no choice but to hunker down and do our level best to survive until a new president and Congress are willing to face reality. Our approach is sound, and business owners from coast to coast, border to border, need to be on board and pushing with all they've got. We need reform — the sooner, the better.

SIDEBAR

A Group Effort

How can you help? For starters, don't expect your associations to do this alone. Your elected Senators and Representatives need to hear from you how important this is. Meet with them or their staffs locally. Visit www.anla.org/lighthouse or www.saveusfarms.org for the latest alerts and sample letters. It takes just five minutes to send a customized letter to your elected representatives.

Finally, take the time to educate and mobilize your coworkers, fellow business owners, suppliers, neighbors and friends on the need for sensible reform. The anti-immigrant groups are drowning out the supporters of sensible reform. When Sen. Feinstein successfully attached the EARA to an appropriations bill in May, one Senate office reported over 1,000 calls in angry opposition — and only nine calls in support. It's up to each of you to get involved and shape the outcome of this years-long battle, while there is still time.