January 2022 - 26

AG LABOR REVIEW
Bingo, bango here we go with a litany of issues
MICHAEL MARSH
President & CEO
National Council of
Agricultural Employers
Michael@ncaeonline.org
the rule might contain, NCAE asked
for and received an EO 12866 meeting
with the White House to express our
concerns.
This final rule has now been converted
The regulatory engine that is
Washington, D.C., is roaring back to life
for agricultural employers.
In July 2019, the Trump
administration Department of Labor
(DOL) promulgated 489 pages of
proposed regulatory changes for the
H-2A Temporary Agricultural Worker
Program in a massive overhaul. Some
of the changes in the Trump Notice of
Proposed Rulemaking (NPRM) were
farmer and rancher friendly, while
others were not.
Working with a team of labor and
immigration attorneys who are National
Council of Agricultural Employers'
(NCAE) members, the council
developed comments supporting the
good parts of the NPRM and asked
that the offensive ones be removed. We
submitted those comments in September
2019 to the agency and waited. And
waited. And waited some more.
After 11 months and still no sign
of the final rule coming out, and with
the presidential election bearing down
on the U.S. electorate, NCAE again
petitioned the secretary of labor to
reform the methodology on the wage
part of the NPRM. Our goal with the
petition was twofold. First, to achieve
wage reform and second to, at last, pry
the broader regulation from the jaws of
the bureaucracy.
Subsequently, within a few days,
something hit the fan!
USDA notified DOL that they were no
by the Biden DOL into a NPRM. NCAE
is developing comments for submission
with a team of stakeholders, attorneys
and economists.
The regulatory beast, unstated, has
provided us with yet more work to do.
An Advance NPRM (ANPRM) from
Nearly 300 attendees took part in the National Association of Agricultural Employers Ag
Labor Employer Forum Dec. 1-3 in Las Vegas, Nevada. Photo: Gary Pullano
longer going to publish the Farm Labor
Survey (FLS) which is used by DOL to
establish the Adverse Effect Wage Rate
(AEWR). The USDA was then sued
by the United Farm Workers (UFW),
seeking to force publication of the FLS.
This action was taken even though the
beleaguered UFW cannot convince the
hardworking beneficiaries of H-2A visas,
to fork over a portion of their wages for
UFW's ineffective advocacy. However,
the dwindling number of UFW members
benefit from the hyperinflationary and
disconnected wages generated by the
AEWR.
The Trump DOL had to scramble to
pull together a new wage proposal that
would have frozen the AEWR for two
years and utilize an index to adjust wages
after two years, attempting to bring some
sanity and connection of the AEWR to
the market for agricultural wages. UFW
sued the DOL over the new regulation.
The union successfully enjoined both
the USDA and the DOL with orders
from the federal district court in Fresno.
Following certification of 2020
presidential electors, the 722 pages of
the rest of the Trump makeover of the
H-2A regulation, absent the litigated
wage piece, was finally scheduled
for publication. Around noon on
Inauguration Day, this Trump Rule was
withdrawn.
We learned on the final day of NCAE's
Ag Labor Forum in December 2021 that
the Biden administration's version of this
regulation should go final very soon.
Similarly, the Biden administration's
version of the wage rule was set to go
final after going to the White House for
approval this fall. Concerned as to what
OSHA has been published relative to a
new heat regulation to protect workers.
This ANPRM is intended to gather
information in anticipation of a NPRM
on the topic likely to be developed
in 2022. NCAE will briefly comment
on the ANPRM arguing regulation
is unnecessary given the existence in
agriculture of heat protocols contained
in Injury and Illness Prevention
Programs on farms and ranches.
Nonetheless, we anticipate this will not
thwart regulatory momentum.
And, while we are resting, the House
has teed up new Civil Money Penalties
in the president's Build Back Better
plan that will increase, in many cases
tenfold, existing penalties for violations
of OSHA regulations, the Fair Labor
Standards Act and the Migrant and
Seasonal Ag Worker Protection Act.
Members of the committee objected
when the chair indicated these were
mere " updates " to the penalties but,
to no avail. Consequently, NCAE is
urging U.S. Senators to strike these
unconscionable " updates " from the
bill. If changes are necessary, they
should go through regular order where
stakeholders have an opportunity to
weigh in.
It's going to be a busy 2022!
Happy New Year! FGN
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January 2022

Table of Contents for the Digital Edition of January 2022
