Farm labor issues continue to frustrate producers across the country.

Among the chief complaints are federal visa programs that have proven too cumbersome and slow to keep up with the demands of cropping seasons. Add to that state laws passed to curtail illegal immigration that have instead had the unintended consequence of shortfalls in farm work crew numbers.

Now, the Department of Labor (DOL) is set to release new proposed rules for child labor. Long in the works, the new rules have reportedly been approved by the White House.

Farm Press spoke with Frank Gasperini, executive vice president of the National Council of Agricultural Employers (NCAE), about visa program tweaks, whether the new child labor laws will impact family farms and why the labor situation is so dire. Among his comments:

On the DOL updating child labor laws and how that could affect children working on farms…

“We’re not sure what will happen, but recent reports are that the White House has agreed to allow proposed new rules to be issued.

“That will come in the form of a notice of proposed rule-making, not a finalized rule, yet. By law, that notice requires the DOL to seek public comment for a reasonable amount of time.  Normally, there is at least a 30-day public comment period. I’ve been told this one may be open for 60 days.

“Also, (organizations like NCAE) that want to comment normally look at the proposed rule and, if it’s very complex, one of the first things we’ll ask for is an extension of the comment period: ‘Look, this is really complicated. We want to comment fully and can’t do it in the short time you’ve offered.’

“In the past, DOL hasn’t been as forthcoming in issuing such extensions as some other agencies. But in some case they have allowed extensions so we’ll probably ask.”

On the Obama administration having been tight-lipped about the proposed changes…

“They’ve kept a very tight lock on what the proposed rules say. I’ve been told – but have not confirmed – that it does not remove the exemption for farm family children.

“Our best guess is that DOL will raise the age levels on some specific jobs they consider more hazardous than others. We also won’t be surprised if they place more limitations on works hours.

“That’s what is in place in Europe. The EU standard, with a few exceptions, makes it pretty difficult for anyone under 15 years of age – even the farm owner’s kids – to work on a farm.”

Why that may not matter…

“We just had some legal research done for one of our members. That was to clarify whether, or not, it makes any difference if their family farm is an LLC versus a sole proprietorship.

“According to most lawyers, it does make a difference. If your family farm is an LLC, the child doesn’t work for the parents solely. That’s a bit scary and into a gray area. Actually, some of the lawyers said it isn’t gray at all – that it’s very clear the child is like any other that steps on the farm to work without exemptions.  

“That’s a concern because a huge percentage of family farms are now set up as an LLC.”

Is there a legal work-around there? Will your group be looking into that?

“We will. However, this LLC issue is separate from the new rules (set to be released by the DOL).

“I had a member say ‘Man, we want to be very sure that if our granddaughter comes to work on the family farm it won’t be a problem.’

“Well, their farm is an LLC and the lawyers said ‘you can try to skirt around that. But if it ever went to court, they’ll likely find the child is working for the LLC, not directly for the parent.’

“A lot of our members with LLCs don’t allow their kids work until they’re 12 or 14, depending on the job.”

Visa programs

On the federal farm worker visa programs and the fallout of migrant worker laws recently passed in several states…

“The H2A program is very important. Obviously, with mandatory E-Verify more people want to look at it.

“But the H2A program only brings in about 60,000 workers every year. Actually, it was less than 60,000 people last year.

“If we implement mandatory E-Verify across the nation, even if only 50 percent of our (migrant) workforce turns to be falsely documented – and we think it’s closer to 70 or 80 percent – we’d lose over 500,000 workers. Consider that.

“H2A may be a great program. However, it’s supplying 60,000 workers a year, it’s difficult to use, difficult to get everything done in a timely fashion. It’s difficult for farmers to be assured they’ll have workers where and when they need them.

“If it’s hard to bring in 60,000 workers annually now, why would anyone believe the pipeline can be made big enough, fast enough? That system is going to serve American agriculture and bring in almost 500,000 people almost overnight?”

On legislators’ claims…

“A lot of politicians and congressional staffers say ‘don’t worry. We’ll ramp up and do it.’

“That doesn’t pass the red-face test. That’s why I like what (Louisiana Agriculture Commissioner) Mike Strain has been saying with regard to this.

“The current proposal for a new H2 program – a tweaked-up H2A that (Texas) Rep. Lamar Smith’s staff has floated – starts out handicapped. That’s because it suggests capping the number of workers at 500,000. Our experience is that once a cap is suggested it is sniped at and the proposed number usually shrinks if legislation progresses.”

On the future of farm labor…

“We see this horrendous ag labor shortage getting worse. We’re currently seeing less immigration from Mexico because their economy is stabilizing and aging and their birth rate is dropping. So, where will farm workers come from in a decade?

“More recently, there have been some workers that come in from other areas of the world. Some of the big harvesting crews that start in Texas and move up to the Midwest and into Canada are composed of South Africans or Australians.  

“I’m sometimes asked about farm workers coming in via J-1, or student, visas. Generally, that works well only for relatively small growers – like some organic growers. If you need someone to pick crops for 10 hours, that’s not likely to appeal to someone on an educational visa. They’ll sign up for a small organic farm with lots of mixed crops with (the aim of taking the gained knowledge) back home. That’s worked out well for some of those U.S. producers – but not for bigger operations.  

“But producers are being forced to consider all kinds of farm labor alternatives, including convicts. And using convicts can be problematic because some large grocery chains have prohibitions against using prison labor.”