Be Careful What You Wish For

In the last two issues of the Fruit Grower News the cover page has lead titles of “Labor Pains” and “Helping Hands.” In each month, the number one topic of concern is not over production but who will harvest this production. As the borders to the south become less porous and the birth rates in nations below the Rio Grande approach those equal to our own we are seeing less help appearing at our farms from north to south. Reality is hitting home that to meet the human resource needs of agriculture there is one route, H2A.

Many of the farms here in NYS have a long history of usage of this program. Many more are feeling the shortages and looking for the first time at a program they vowed openly to avoid. Their perception is correct about the shortages. In 2011 when we had 77,260 H2A workers in this country. In 2016 that number rose to 165,741. This works out to a 215% increase in 5 years. Everyone feels that 2017 will be higher still.  Companies are moving to this program simply because they have no certainty under the traditional models that they can fill their needs.

I think an important reality for those of you in the fruit business is that only 6% of this number will be picking apples. That means almost every type of agriculture, from every geographic region, will be drawing on this program. It is actually amazing that the current USDA staffs have been able to keep up as well as they have, given the many federal freezes on hiring of new employees.

I have heard for decades farmers complain about the program. Is it perfect? Is it at times too slow? Does it cost you more than your traditional hiring?  The answers to each of these questions is yes of course. I contend that until we find a collective national voice to give us the necessary guest worker system that we best try to work within this model. Imagine if those politicians we have been complaining to for decades about this program decided to drop it? Be careful what you wish for.

Time To Act

Most of you will not read what I am about to write for a month or more. That is not that important except for the fact it will be approaching Spring and the time to make very definite plans on your source of labor for 2017 is approaching. The status of labor supply under the Trump Presidency remains uncertain at best. As a producer in New York we must decide if we are entering the race against Mother Nature to produce a new crop before the realities of winter in New York end our growing season. We are not California and blessed with a very long, extended season of growing opportunities. We get one shot each year to produce one crop.

Paul Baker

If you have any intentions of entering the H2A program for the first time I would contend that the hour of decision is upon you. Very quickly the time needed to prepare for this will have come and past by you. Unfortunately, we do not have an “overnight” order plan for you to participate in. Each operation is unique. Each farm must assess the risk it is taking in this quest to source the needed labor for their operations success.

For this discussion, let us not consider what may happen in Albany before their legislative session ends in June. Today lets you and I play “immigration roulette.”  If you are going to remain static and continue as in the past you need to be aware of the risks you are assuming. How confident is your belief that come that critical hour you will have the necessary hands needed to harvest that singular crop in 2017?

I receive, on average, at least one call a day from a producer telling me of his issues with ICE or Border Patrol. This is up over previous years. Most calls have a repeating story line. It goes like this:  One or more of your employees were stopped for some legal reason, speeding, license violation, whatever. They were not taken while at your place of business. In many cases the story is the same. These are people who have worked with you for multiple years. They have families and you count on them. However, when their records are checked against an E-Verify microscope they are revealed to be holding improper identification. If later released and you are made aware of this truth the burden falls upon you. It is a felony for your employee to present false documents for employment. If you continue to employ this worker, you are waiving your immunity and now you will face a very stiff fine, perhaps even being charged with a felony yourself. I see a rise in this type of intervention. Until we have a new policy of record we will see a renewed surveillance of people as to their legality. This becomes a virtual “northern wall.”

You can have your workforce checked for status today. If you feel certain they are legal I would consider doing this. My caution to you is be prepared to accept the results. You may find that long standing key employees that have been with you for years have no legal status. Your larger harvest crews may be cut in half. The reality is if you do have them checked you will most likely scare 100% of them away.  Those found to be holding bad paper will no longer be able to work for you.  If they do, you place your business in definite financial risks. You have no legal excuse for employing these employees.

Many people may feel I am advocating for the H2A program. I am not. I am advocating that you protect your own interests with logic and not emotion. Every one of us who has employed people on our operations has a respect and loyalty to them. We count on them as do they upon you. The sad truth is that the law does not have a statute of forgiveness for being here illegally. I doubt any nation has one. Each year the economic reality is we basically play “immigration roulette” with our help when we do not know their true legal status. If they fail this test then you may be leaving your entire year’s work out in the fields. Most farms cannot afford such a reality. So you have to ask yourself, as Dirty Harry said in the movie, “Do you feel lucky?”

Paul Baker NYSHS Executive Director 3568 Saunders Settlement Rd., Sanborn, NY 14132 FAX: (716) 219-4089  |  Cell: (716) 807-6827 E-Mail: pbaker.hort@roadrunner.com