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 for a Real Reality Check

 

This will be a very difficult article for many of you to read. I can assure you that it is even more difficult for me to draft. We have been discussing and advocating for changes to improve our labor situation on our respective farms. Many of you have traveled to countless meetings in various locations such as Albany and DC to make your case. The end result is we have kept the debate alive but in truth seen little positive changes. So what do we do? Being from New York State and being a farmer giving up simply does not seem like a choice. We each have faced more setbacks that we have had no control over in the past. Is this setback like bad weather and weak markets? I would argue no. To continue to beat the same drum in the same way may however not be the best usage of our efforts.

America has always had a shortage of farm labor ever since the last Pilgrim stubbed his toes on Plymouth Rock. Non-agriculture occupations have always loomed in a more positive light here. We actually fought a Civil War over this very topic. This  reluctance to change came close to destroying the Union. Time marches forward. Technology offers many changes to our work. In most work sites, technology has made the work less strenuous. The sad truth is that this is not the case in agriculture. Yes we have advanced machines to do many chores but the horse seems to have made out better than the field hands. The horse no longer pulls our farm tools but we still depend on a man to pick our fruit.

As farmers, we have always blindly accepted that the laws of supply and demand would decide the price of a bushel of apples. Yet we seem to not accept these same laws of supply and demand when it comes to our cost for labor. Today we have evolved and made great advances in our operations. New equipment, buildings and in general every advancement to our industry has been accepted and somehow we have found a way to finance this growth. So my question is, why is labor different?

I think it will continue to be the farm business that embraces new technologies that will survive. Supply and demand is very real. It is present in our ability to source the necessary human resources we need to remain world-wide competitive. Every industry has been forced with this similar dilemma. We have seen this in industry, entertainment, pro sports and more. In order to field the best human resources you have to offer the most attractive package. Agriculture is no longer immune to this truth.

I agree that we need a legal system to hire the best human resources necessary to operate in 2017. This may mean we need to source this labor from abroad. Many of the best hockey players and baseball players we watch every day are not US citizens. To remain at that elite level those enterprises have found a way to employ the necessary talent.

We need to accept that we are not the same agriculture of our grandfathers or for that matter our fathers.  We are today “agribusiness” not simply the “family farm” that only hired family members and distant uncles. Times have changed. We have changed. The farms of the future will accept this and make the needed changes to source the most talented team. Yesterday is gone. It will only return in our memory. We need to see the reality that farm labor comes with cost. It is rare and it is talented. If you wish to draw from this limited pool you need to be willing to invest in it.

What is on the Table as of April 1st?

Many of you are curious as to what we have been working on thus far in 2017. I wish to bring each of you up to speed and give you a hint as to what we are watching in the near future.

Albany

The BOD continues to feel that Albany has the greatest chance of impacting your business in 2017 and beyond. As a Board we traveled to Albany to discuss funding and potential labor implications with the elected. As far as funding, I feel we have proven our credibility and have received very positive feedback with the manner in which we requested and used the funds for applied apple research. In the past two years we have received one million dollars to be used for apple research. Yes, these are of course tax payer funds, but I think each of you should look at this as they are using YOUR tax dollars to help your business. They would use YOUR tax dollars on other NY projects if we did not request these funds. I am confident that in 2017 we will once again receive $500,000 to match your contributions to apple research.

Many of you also have berries on your operations and we have also been able to retain similar funding for berry research. I feel that, as a tax payer, you should have some voice in how they direct your tax dollars. The legislature is very impressed that in both cases the growers are not simply requesting funds but actually investing their own funds in the same programs. The matching funds model is very positive.

As soon as the funding/budget is set in Albany they will turn to policy issues. Two areas we are watching very closely are already introduced and have gathered sponsors. The first bill is Senate Bill 2721 introduced by Senators Alcantara (Democrat from Manhattan) and Senator Peralta (Democrat from Queens). In brief summary, this Bill is asking for collective bargaining rights for farm workers, a mandatory 24 hour day of rest, overtime after 8 hours each day and 40 hours each week. There are other terms but these are enough to raise concern. This Bill, if passed, would give farm workers more overtime rights than non-farm workers in NYS.

The second Bill is introduced by Senator Little (Republican from Plattsburgh). She is asking the State to stop charging H2A employers to pay unemployment insurance on these workers. It is impossible for any H2A worker to ever be eligible to collect. NYS is the only State to make this charge. The Bill is gaining some sponsors but needs more to gain a vote in the Senate. Many feel it will not get to a vote before the previously mentioned bill is discussed. Some may use this as a bargaining chip to help gain passage of the Farm Labor Bill.

I encourage each of you to weigh in on each of these Bills and voice your opinion to your elected representatives. Both Bills have been similarly introduced in the Assembly. It is in the Senate that we have an opportunity to block or support legislation.

Washington, DC

Administrations seem to come and go here in DC. What remains is a failure to act on the entire Guest Worker reforms/Immigration issues. I have made repeated trips, thus far, to DC and will most likely be back again in 2017. Politically, it is generally agreed that if we are to see real change here it will be in 2017. Failure to move on this will cause great concern moving into the next Congressional election in two years.

As of the drafting of this report, the Secretary of Agriculture has yet to be confirmed. Until this post is settled, it holds an uncertain direction for the Department of Agriculture.

Day by day it seems the discussions around our farm labor issues remains uncertain. Most all Democrats are holding that there will be no deal for agriculture alone. If change is on the horizon it must embrace every industry. The House seems to be less set in the direction it will pursue. What they all say is that until Health Care and Tax reform are addressed there is not enough energy to address immigration reform. Congressman Goodlatte (Republican-Virginia) is working on a fix for agriculture. We will continue to monitor and watch the house to see which way they will move, if at all.

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

 

Winter of Many Changes

By Paul Baker, NYSHS Executive Director

For many of you, this winter will be very demanding. The stress of unprecedented low rainfall and less than exciting returns has left many of you frustrated. In my experience, I have found such years the ones that demand you to be at your very best. When the markets are at their most demanding it is time to tighten your management skills.

Labor last year was, in my observation, at its most stressed level. I do not know one single operation that reported having to turn away labor. The exact opposite was the case. If operations were not in the H2A program then each morning they were waiting for the arrival of a very uncertain workforce. Workers were in high demand and they took full advantage of the opportunity. Shortages at key times in harvest were a huge reason why many apples were picked too late. The low resulting pressures have led to low returns this winter.

Farms of all types are looking at H2A for the first time. This is happening across the nation. Washington, California, Georgia, Michigan and Florida, the largest user of this system are increasing the usage of this program. It will be interesting to see if the bottle neck in Chicago will be staffed to handle this increase. If you are intending to use this program, you need to begin today and take full advantage of the time you are allowed to complete the multiple steps. Expect delays as Chicago simply does not have the manpower to make this a quick and easy turn around.

If this were not enough for you to be concerned about you need not look any further than to your state capital in Albany, NY. Earlier in the month my board (NYSHS) was in Albany and we learned of a bill S=2721 introduced by a freshman Senator from Manhattan. Senator Alcantara has introduced the most demanding bill in my memory for reform of farm Labor in New York State. This bill has all of the previous requests for collective bargaining, days of rest and more. In the past years such bills have reached out for overtime after 10 hours per day and after 60 hours per week for farm employees. This bill is asking for overtime after 8 hours each day and 40 hours per week. Needless to say this would be the most aggressive farm labor program in US history if passed by the State.

In talking with the Governor’s office they say “do not be too worried about this.” I find such a bill quite a worry and one we need to gear up to confront. We must present reasons why such a bill would do enormous long term damage to not only the farming industry but the entire Up State economy.

I went into Senator Alcantara’s office to discuss this bill. I met with her chief of staff. I asked what was the underlying reason for her pressing his bill? The answer was that she had heard that there were many Spanish workers in Up State New York that were not being treated and paid fairly. She herself is of Spanish origin so this was her way of reaching out to protect them. I asked if she has actually ever had a discussion with any of these workers. The answer was she had not personally ever met or talked to any. This type of emotional agenda is extremely dangerous. If passed, I need not explain what it would do to your operations and employees.

I leave you with the reality that despite low returns each of you must discover how to do a better job in 2017. If labor is tight this may be the year to remove marginal orchards. You must be creative in managing and sourcing your employee recruitment. Many of you have wished to remain politically silent.  I suggest that with the new Trump administration and what potentially could come out of Albany you simply must voice your concerns. To not do so is to offer power to those who do not have the most understanding of your operations.