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Business, Labor Working Toward Guest Worker Reforms
 

By Roy Maurer  3/8/2013
 
 

The consensus between business and labor—deeply divided for years over what to do about low-skilled temporary workers—will be crucial to the success of any comprehensive immigration reform, stakeholders agreed.

The often adversarial AFL-CIO and the U.S. Chamber of Commerce recently announced “shared principles” outlining certain areas of agreement on critical issues, such as redefining what constitutes a guest worker and revamping the method to determine how many guest workers should be allowed into the country.

The principles, announced Feb. 21, 2013, include agreement on the need for a way to let businesses more easily hire foreign workers when Americans aren’t available to fill jobs. The groups envision a new, more efficient worker visa program based on the fluctuations of the market.

They also tentatively agreed on the creation of a new federal bureau tasked with informing Congress and the public about labor market needs and shortages. This addresses a key demand from labor for a more transparent and data-driven process about businesses’ needs for workers.

The gap between business and labor in the past over guest workers helped sink the last attempt at reforming the nation’s immigration laws, in 2007.

“The fact that business and labor can come together to negotiate in good faith over contentious issues should be a signal to Congress and the American people that support for immigration reform is widespread and growing and is important to our economy and our society,” the organizations said in a joint statement.

Guest Worker Program Is Key

The business community views creating a program to bring in low-skilled laborers as a vital component of any new immigration plan.

“Under current law there are very few programs that allow employers to recruit immigrant workers, even when employers are not finding qualified and available U.S. workers,” said Randy Johnson, the Chamber’s senior vice president of labor, immigration and employee benefits. 

“The key is a new, less-skilled worker visa category, which employers can use after they’ve demonstrated that American workers are not available,” he told SHRM Online. “A mistake of the 1986 [Immigration Reform and Control] Act was that it did not provide for legal immigration at all skill levels, which would allow employers to fill the vacancies that they encounter after trying to recruit U.S. workers.” Johnson explained that legal programs went unfilled and became attractive to immigrants, who came illegally to fill them. “Adequate temporary worker programs will allow these jobs to be filled legally by immigrants, thus eliminating the job magnet that led to illegal immigration,” he said.

Organized labor has been skeptical about guest worker programs in the past, arguing that the programs depress wages and undermine worker protections. A “data-driven system” that determines whether there are domestic labor shortages is a better solution for future immigrant worker flow than a national guest worker program, said AFL-CIO President Richard Trumka during a Feb. 7, 2013, news teleconference. Guest worker programs do not reflect America’s democratic values and create a “second class of workers unable to exercise even the most fundamental rights,” Trumka argued.

Maria Elena Durazo, the chairwoman of the AFL-CIO’s immigration committee, said during the teleconference that “guest workers have no rights and no voice and no possibility of ever becoming legalized. If they protest about wages or unsafe conditions, they risk getting deported.”

One More Labor Bureau

The AFL-CIO has long advocated for the creation of a permanent, independent executive-branch commission to assess labor market conditions and make recommendations to Congress and the president for adjusting employment-based immigration levels. This panel would use economic, industry and regional data, like unemployment rates, to determine how many guest workers should be allowed into the country annually. The number of guest workers permitted could increase when America’s unemployment rate was low and then shrink when the rate was high.

Ross Eisenbrey, vice president of the Economic Policy Institute, long a proponent of such a commission, told listeners during a Feb. 25, 2013, press teleconference that “the idea we’ve been promoting together for many years on a commission or bureau of experts that would help determine the future flows of immigrant and nonimmigrant workers is now at the heart of the comprehensive immigration reform debate on Capitol Hill.” Because of the high-profile agreement by the U.S. Chamber of Commerce and the AFL-CIO, Eisenbrey said he had no doubt that this principle would be included in a comprehensive immigration reform package.

Still, sources told SHRM Online that despite a public agreement, business and labor have not completely signed off on the prospect of a government research bureau that would identify future labor shortages.

One reason could be that it was tried once before. In 1990, Congress commissioned the Department of Labor to set up a three-year experiment that would determine labor shortages or surpluses in up to 10 defined occupational classifications in the U.S.

“When the Labor Department proposed its initial list, however, all hell broke out,” recalled Angelo Paparelli, a partner in the business immigration practice group of Seyfarth Shaw, based in Los Angeles and New York City. “Labor and business disagreed vociferously over whether the right shortage or surplus occupations had been identified. Unable to take the heat, DOL quickly retreated and, since that time, has maintained that it lacks the data to determine shortage occupations.”

Paparelli agrees with the idea of developing a national labor data system, “as long as political influence and hackery [are] kept out of the equation and algorithms digesting state- and employer-fed job openings, and hiring data are allowed to produce up-to-the-minute reports of shortage occupations.”

Farmers, Farmworkers Cooperating to Replace H-2A

The Chamber-AFL-CIO talks aren’t the only business-labor negotiations that have recently borne fruit. Progress has also been made around one of the most vexing sectors of the economy: agriculture.

At a Feb. 26, 2013, hearing of the House Judiciary Committee’s Subcommittee on Immigration and Border Security, representatives of industry and labor groups testified that they have been cooperating on solutions to the problems they see in the current H-2A agricultural guest worker program.

Representatives from the American Farm Bureau Federation, an agricultural employer group, and the United Farm Workers agreed that the H-2A agricultural guest worker program needs to be replaced and that a revamped guest worker program would have to provide legalization, if not citizenship, for illegal immigrants who are in the country working in the agriculture industry.

An H-2A visa allows foreigners into the country to perform temporary or seasonal agricultural work. The vast majority of farmworkers in the United States—as much as 70 percent of the farm labor force, according to employers—are illegal immigrants. 

Rep. Bob Goodlatte, R-Va., chairman of the full Judiciary Committee, said the current H-2A program is “costly, time-consuming and flawed” and the labor certification process is too slow. The congressman said employers are burdened by a process that “forces them to expend a great deal of time and money each season in order to prove to the federal government what nearly everybody already knows is the case: that legal, dependable farm labor is very hard to find.”

Employers are forced to pay an artificially inflated wage rate—higher than the prevailing wage in their region—and provide housing and daily transportation for their workers at their own expense, Goodlatte pointed out. “Even worse, as a result of complying with these H-2A regulations, H-2A farms almost always find themselves at a competitive disadvantage in the marketplace.”

But they do it, he noted, “because they know that, realistically, most of the available labor is illegal and they don’t want to break the law.”

Proposed Changes to the H-2A Program

The expanded use of E-Verify by state governments and the potential enactment of mandatory E-Verify in any reform legislation are one of the motivating concerns for farmers, said Bob Stallman, president of the American Farm Bureau Federation, in testimony to the subcommittee.

Because of the high percentage of illegal workers in agriculture, “farmers know that once E-Verify is required, their ability to retain and replace workers will be severely jeopardized without a workable guest worker program,” he said.

The Farm Bureau envisions an H-2A replacement program, to be run by the U.S. Department of Agriculture, which Stallman said would allow employers the “stability of a contract or the flexibility of portability, depending on their business needs.”

In addition, he said the program would not be restricted by seasonality requirements. Rather, an agricultural employer who demonstrates year-round needs could hire workers under contract to fit those needs, he explained. To account for the extended length of need, contract workers could remain in the country for up to three years, with a commitment to return to their home country for 30 days during that period. Short-term workers would be granted work authorization for 11 months. Employers would be subject to a domestic recruitment requirement, but it would be less onerous and easier to navigate than the current one. Employers also would be required to pay a reasonable agreed-upon wage that reflects market conditions.

Legalization Short-Term Solution

To provide short-term stability and an orderly, effective transition to a new guest worker program, Stallman testified that it is imperative that congressional legislation include provisions permitting current agricultural workers to obtain work authorization.

He said a work authorization could last for five years, during which individuals could also work in nonagricultural sectors. After those five years, he said, “workers could access immigration channels to adjust to a permanent status or continue to work in agriculture.”

Goodlatte said an agricultural guest worker program could be a first step in finding common ground on the larger guest worker issue.

“Addressing the complex labor issues of the relatively small agriculture sector can help us understand how we can build our broader immigration laws and enforcement mechanisms in order to enhance the U.S. economy and make our immigration laws more efficient and fair for all involved,” he said.

Roy Maurer is an online editor/manager for SHRM.

Follow him at @SHRMRoy

Related Articles:

Senate Republicans Stress Enforcement Before Comprehensive Immigration Reform, SHRM Online Global HR, February 2013

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