Brownback-Chambliss Guestworker Proposal Criticized

March 15, 2006

Reject Chambliss Agricultural Guestworker Proposal

Which Senator Brownback Circulated to Judiciary Committee

The Farmworker Justice Fund, a national advocacy and education organization for migrant and seasonal farmworkers, urges you to oppose Senator Saxby Chambliss’s bill, the “Agricultural Employment and Workforce Protection Act of 2005,” S. 2087. Sen. Brownback has circulated this bill on behalf of Sen. Chambliss to Judiciary Committee members.

This bill is a one-sided, anti-worker proposal to revise the H-2A agricultural guestworker program by reducing governmental oversight, allowing agricultural employers to displace U.S. workers, and subjecting guestworkers and U.S. workers to substandard wages and working conditions with no meaningful ability to enforce their rights. It includes an unworkable “report to deport” guestworker program with few worker protections and no realistic path to permanent legal immigration status for the majority of hard-working, experienced farmworkers who lack immigration status. Sen. Chambliss’s bill is similar to the amendment that the Senate defeated 77-21 on April 19, 2005 (SA 432 to HR 1268).

The Chambliss bill is one-sided in that it contains many of the grower-favorable compromises conceded by farmworker advocates in the AgJOBS legislation, but none of the beneficial changes for farmworkers that are part of that same compromise. For example, Chambliss’ bill would change the H-2A program from a labor certification to a labor attestation program. While the AgJOBS compromise also would switch H-2A to a labor attestation program, farmworker advocates agreed to this withdrawal of labor protections and government oversight in exchange for important changes favorable to guestworkers and U.S. workers. For example, AgJOBS would grant H-2A guestworkers the right to enforce their employment contracts in federal court.

The Chambliss bill would slash the H-2A program’s already inadequate wage rates by abolishing the longstanding “adverse effect wage rate” of the H-2A program. The AEWR was created under the Bracero guestworker program as a necessary protection against the depression in prevailing wages that results from guestworker programs (wage rates often stagnate because the guestworkers have little ability to demand higher wages). Instead, a special “prevailing wage” would apply that could be determined by the employers’ own prevailing wage survey. Sen. Chambliss himself described the effect of the wage provisions as a loss in wages for U.S. and foreign farmworkers at H-2A program employers of roughly $3.00 per hour!!

The Chambliss bill also would reduce the travel-expense reimbursements to which workers are entitled. For many years, H-2A program employers have had to reimburse workers for their in-bound transportation costs after one-half of the season has elapsed and then pay for their travel home if they complete the season. The Chambliss bill would require only that employers pay for travel costs to and from the place from which the worker was approved to enter the U.S., which could be a U.S. consulate hundreds of miles from the worker’s home. In addition, this bill seeks to overrule a U.S. Court of Appeals decision in Arriaga v. Florida Pacific Farms, regarding the Fair Labor Standards Act. It would essentially allow H-2A employers to reduce the workers’ wages below the federal minimum wage by imposing on the workers the obligation to absorb visa, transportation and other costs related to entering the U.S.

For the few remaining protections available to farmworkers, this bill would limit judicial relief for aggrieved workers, rendering many workers ineligible for representation and leaving them without means to protect their rights. For example, the bill would prohibit Legal Services Corporation (LSC)’s legal aid programs from representing an H-2A guestworker for violation of his/her rights once the worker is outside the country. Since H-2A workers only remain in the US for a few months to a few weeks, this effectively means that there can be no representation of H-2A workers whose rights are violated. The bill would also limit the ability of legal aid lawyers to communicate with workers by prohibiting them from entering upon the property of employers unless they have pre-arranged appointment with a specific worker. In the few instances where legal representation is possible, the legal aid attorneys, unlike any other attorney, would be required to submit a request for mediation before filing a lawsuit for a worker. Mediation is supposed to be voluntary.

The proposed “blue card” program is unfair and unworkable. The bill would enable employers to apply for a 2-year nonrenewable guestworker visa for their current qualifying undocumented agricultural employees. Employers would not use it because they would have to pay a steep $3000 fee for each worker. Likewise, workers would avoid it because the program would require them to leave the country after only 2 years and there would be few labor protections.

The AgJOBS compromise (S.359) is a realistic and fair solution to the immigration crisis in agriculture. Please help provide a solution to the immigration crisis in agriculture by opposing the Chambliss amendment if it is offered in the Judiciary Committee and by bringing AgJOBS to a successful vote in the full Senate.