Labor Pains: H-2B


With Washington, D.C., consumed with partisan one-upsmanship and tit-for-tat political bickering, some issues seemingly get pushed to the back burner, left adrift as government agencies and courts hash out how they should be handled, largely out of public view. One of these is H-2B, the temporary migrant worker program that some landscape companies have long turned to for a dependable source of labor. In recent years it’s seemingly becoming less and less dependable.

“We’re hoping that it can still be fixed to be a viable program,” says Tom Delaney, director of government affairs for the National Association of Landscape Professionals (NALP). But that hope has been quashed several times in recent months as moves by several government agencies and related judicial rulings have left real questions as to whether the H-2B program will continue to exist in a way that makes it usable by landscape companies.

Much of the concern by those in the green industry (and others using H-2B) has to do with two issues: new wage rules and new program rules. The first topic has to do with “wage determinations,” mandatory pay rates set by the government to be used by companies participating in the program. The Department of Labor had sought new wage rules, but NALP and others joined forces to secure a federal judicial injunction against such changes.

But there was legal action taken by the other side, as well, notably by an anti-H-2B advocacy group that believed the rates being used were too low.

“They went to a judge and he told the Department of Labor that they needed to change it. That’s when, instead of addressing exactly what the judge told them to do, they went in and created a whole new wage scale where the per-hour rate went way up,” says Delaney. “And soon after that they tried to implement a whole new program rule, which changed the entire way the H-2B program worked and, again, made it unusable.

“The Department of Labor was trying to make it like the H-2A [a similar but even more complex temporary worker program for the agriculture industry], so that companies really wouldn’t use it. Their intentions were to try to scrap the H-2B program so that it was so cumbersome that very few would use it.”

In response, NALP went to court and eventually secured an injunction against the new program rules taking effect.

“We were really the only ones dealing with the new program rules. Everything else was all about the wage rules,” says Delaney. Both areas are critical to ensuring that H-2B is a usable program, he emphasizes. Accordingly, NALP worked to halt the new wage rules by getting Congress to include language in government spending bills that eliminated funding for implementation of these changes for the remainder of the fiscal year (Sept. 30).

“We thought everything was just fine, but that same anti-H-2B group went to another judge, who told the Department of Labor that they were violating the requirements of the original order by using the older [2008] wage determinations,” explains Delaney. “He gave them 30 days to do fix the situation. So there was still an opportunity to use other wage requirements.”

There was also a ruling by a federal appeals court judge that the Department of Labor didn’t even have the authority to implement any of the wage or program rules they were pushing through.

More complications

As confusing as the conflicting court rulings were, things went from bad to worse in early April when the U.S. Customs and Immigration Services (USCIS), worried about violating the judicial ruling related to the wage rule, halted their work with the H-2B program.

“So [companies seeking employees] who had already gotten through the Department of Labor requirements and were ready to move on to work with the USCIS, which happens just before they go to the State Department, found that they had stopped processing,” says Delaney.

The situation become even less promising in late April, when the Department of Labor, this time jointly with the Department of Homeland Security, issued its “Interim Final Rule,” the details of which Delaney describes as radical.

“They told companies that they need to start paying at a new wage level … that’s still several dollars more than what companies already have H-2B workers here have being paid,” he notes. “Companies are getting letters telling them that this rate is retroactive, and that no new applications will be processed unless they are at that wage amount.”

That poses a significant challenge to companies who already have maintenance contracts in place at pre-determined prices but who could now see their labor costs rise dramatically, Delaney points out.

This means further legal action is likely and will take weeks or months to produce any result.

Delaney says that the government agencies overseeing the program are doing things that the labor union side like, but landscape industry doesn’t like.

As these developments occurred in April and May, many green industry companies participating in the program already had their workers for the year, but some were still waiting with uncertainty. Other industries were not so fortunate. And even for those companies who had workers for this year, the political and legal wrangling has led to serious concern that the labor costs they had planned for could rise.

One of the most grievous parts of the new wage rule that came out of the Department of Labor had to do with pay being equal for everyone on a given job, argues Delaney.

Pay ruling nonsense

“When a crew is out there and the crew leader in charge does any of the work that the crew does, then they should be paid what he is paid,” he explains. “That doesn’t make any sense. Even the owner of the company might get out there and do some work for time to time, so the workers would be expected to make what the owner is making.”

Another egregious part of the new rules would threaten both employers and workers involved with the H-2B program. Most companies taking part in the program hire an agent to handle the cumbersome processing involved and/or to help recruit workers, so there are expenses incurred even before the workers arrive. The rule put for by the Department of Labor would have made such an investment risky for companies looking for workers, says Delaney.

“Even after you’ve paid an agent to process everything for you, the rule stated that if an American wants that job within a certain number of days, even if that American is on the other side of the country, you have to pay their way there and give them the job,” he explains. “Part of the problem to begin with is that companies can’t find people who want these jobs even locally.”

Not to mention the lack of fairness to the foreign workers who had already been promised jobs. “In many cases, they have been coming to these landscape companies for years and know the customers and know the jobs. They’re like family in some cases, with how long they’ve been coming and what good workers they are,” Delaney adds.

Delaney says the consensus among those supportive of a workable H-2B program is that labor unions are behind the changes that the Department of Labor unnecessarily made to the program.

“They are trying to kill the program. They’re saying that they’re doing this to protect American workers’ jobs and that the H-2B program is just cheap labor for companies. The fact of the matter is that the companies can’t pay different workers different amounts. If a company has American workers on the job as well, they’re paying them the same amount. And many of the workers coming through H-2B have been coming for years, so they’re not being paid starting wages, anyhow.”

Overall, fewer green industry companies are using the H-2B program, Delaney states, noting the decline can be attributed to the slow economy, as well as all uncertainty and turmoil within the program.

“It’s hard to run a business when you don’t have a dependable workforce, or a source of a dependable workforce.” That’s forced some companies to downsize, or to pass on bidding jobs where additional workers might be needed, because they can’t find them, he says.

“What many companies have told us is that they have had to add an HR department, or at least hire someone whose almost full-time job is interviewing people, hiring people, firing them and then starting all over again. They’re having to go through hundreds to find 10 or 20 people.”

Another complicating factor is the push in Congress for comprehensive immigration reform. “While that comprehensive approach is not supposed to effect the 10-months-or-less seasonal and temporary programs, some [NALP] members, depending on their location, might want workers for longer than that, for 12 months. They take the 10 months because that’s all they can get,” Delaney observes.

Comprehensive reform stalled

Those companies have a heightened interest in the comprehensive immigration effort, but are concerned about how a national guest worker program may work, he notes. Perhaps it will be structured in a way similar to H-2B. “So they’re looking at how it will be determined when the needs are there, based on unemployment figures; how many workers could come; what the wage rates would be; and what occupations could come,” states Delaney.

“When you have such problems and controversy with an existing program, it could effect how the comprehensive program goes. While we’ve told people that while the comprehensive immigration work shouldn’t be replacing the H-2B program, the two still influence each other.”

Included in the immigration reform proposed by a bi-partisan group of eight U.S. senators is a new “W-visa” program for low-skilled workers.

“Under the program, spouses and minor children of these workers would be allowed to accompany them to the United States and would also be given work authorization for the same period as the W-visa holder,” NALP summarized for members in its initial review of the legislation. “Employers would need to register with the Department of Homeland Security and provide an estimated number of W-visa workers they would need.”

Delaney says that the wording includes some workable provisions of H-2B, though he’s concerned among other things about the limited time frame included for return worker exemptions.

“So it’s not totally acceptable the way it is now, but they will be having hearings on it and there will be some changes,” he notes. Like all things in Washington, uncertainty is the name of the game.