by Stephen Wagner
The 2018 Eastern Winery Exposition, held for three days at the Lancaster County Pennsylvania Convention Center, brought an industry issue into view — migrant labor.
“I work for a company called masLabor, the country’s largest agency,” said Kerry Scott, program manager for the Lovingston, VA-based placement company for temporary H-2A (agriculture) guest workers in the nation. Scott’s company has grown from 600 clients four years ago to 1,000 today and provided 18,000 workers nationwide this year.
The wine industry is a latecomer to using migrant workers. Using his own firm as an example, Scott explained the H-2A process. “Initially, you file with an entity called the State Workforce Agency which is a person, generally a state employee, whose salary is paid by the U.S. Labor Department. That person’s job is to put the state ‘spin’ on the approval of this program. Two weeks later, we apply to USDOL at the Chicago National Processing Center. They will decide if you are eligible to use this program, and define how you can.”
Basically, you are certifying three things: You are an agricultural enterprise; as an ag enterprise, that you are seasonal in nature; and that you are properly offering these jobs to Americans before offering them to foreigners. You have to prove that you tried to hire locally. It takes approximately 120 days to make sure that your application goes through smoothly.
Before you spend a cent, Scott cautioned that you find the workers a place to live at no cost to them. “It’s an easy standard to meet,” said Scott. “When OSHA wrote the standard in 1986, they used military enlisted barracks at the time as their model: wide open bays, rows of bunk beds, bathroom at one end, and a kitchen at the other end…” Parts of motels have been deemed satisfactory, as well as using trailers in a trailer park and moving trailers onto the farm. Even renovating an existing old farmhouse can be suitable. “Most people starting to look at this program find that this is the biggest hurdle for them to clear, so that’s what you want to work on first.”
The employer has responsibility for three types of transportation. The first responsibility is paying for, or reimbursing, the cost of travel from the workers’ point of origin. Ninety percent of the guest workers come from Mexico, with Guatemalans second and Jamaicans (in the Eastern U.S.) coming in third.
“It will cost you about $400 per person, each direction” to bring in your workers, said Scott. “You should reimburse them the inbound $400 as soon as possible after they arrive. We tell most employers that these guys are arriving up here dead broke…you should be prepared to pay them that reimbursement as soon as possible.”
If where the work is being done is more than walking distance from where they are living, accommodations must be made to be able to move them around the farm with some vehicles. Likewise, generally on payday afternoon, you need to take them somewhere where they can buy groceries and take care of their banking. Their sole reason for being here is to send as much of their money back to their families as soon as they earn it. These workers, almost everywhere in the country, are eligible to get state driver’s licenses for the time that they are here. “What you can do,” said Scott, “is get one or more of these guys a driver’s license, give them a clunker to get themselves to the store and back again, and basically keep the driver on the payroll while he’s doing that.”
Scott pointed out workers can be here for 10 months at a time. This is not a requirement. “There is no minimum in the regulations,” Scott noted, “but we feel like six weeks is the minimum amount of work you want to give these guys to make sure that you are getting good people, people who really want to come up here to work. Ten months is the absolute maximum.”
Currently, there are 82 countries that H-2A workers can come from. In some of the business in which masLabor is engaged, First World workers are being brought in, people from New Zealand, Australia, the U.K. and Ireland. “We’re also bringing in a lot of workers from South Africa to do the more skilled agricultural things — custom harvesting, commercial beekeeping, that sort of thing,” said Scott.
Scott points out that one of the beauties of the system is that you get the same workers back year after year. They’re already trained and ready to hit the ground running. If one of them gets ready to retire, there might be a son or grandson ready to step in and learn the ropes. Another one of the advantages is that people can use this program for the entirety of the season, though a lot of masLabor’s customers only get bogged down at harvest time. Generally, as they get bigger, some wind up having two contracts each year — one for a skeleton crew that does everything for the length of the season, and another contract for bringing in workers to help with harvest at the end of the season.
“You need to be giving these guys enough days and enough hours to make it worthwhile for them to come up here,” Scott said. “There may be somebody whose season ends as your season begins. And you can transfer the workers, so they’re getting enough time between the two jobs to make it worth their while. What we commonly see is that in places like Virginia and North Carolina there are tobacco growers and vegetable growers who will finish up just in time for the Christmas tree farms that need these guys, and they’ll transfer from one to the other.”
Wages are set each year for the varied areas of agriculture. The Adverse Affect Wage Rate came about when Congress created the H-2A program. They said the wages that needed to be paid were wages that would not adversely affect the wages of other workers in agriculture and elsewhere in the community. “You will see that the cheapest of the states — Mississippi, Louisiana, Alabama — are paying $10.38 this year. The highest, I believe, is the state of Washington at $13.79,” Scott said.
H-2A workers can never benefit from Social Security or unemployment. There are a few states that still make you pay state unemployment taxes, one of them being New York. “For most people that’s about a 10 percent saving right there,” he added. “So, it might seem artificially high on the face of it — more than minimum wage, in other words — but still from what I’m seeing of agriculture these days it is not too different from what you have to pay people to do the work for you in any case.” Scott said the ingredient that makes this worthwhile is the productivity of the workforce that you’re getting.
“You’re getting a strong work ethic,” Scott stressed. “We’re reaching into deep rural areas in places like Mexico and Guatemala for these workers. We stay away from the cities and border provinces. You’re not getting people who have been up here in an undocumented status wanting to become Americanized. You’re getting salt-of-the-earth, hard-working people who happen to be from another country.”
Contract vineyard labor issues
by Stephen Wagner