H2-A Visa Program Offers Vintners Legal Options (Update)

The July-August 2017 issue of Grapevine included an article by me about the H-2A Guestworker Visa program and how it might be used as a source of labor for vintners. In this update I’m going to talk about a couple of specific additional ways H-2A can help vintners, especially vintners who feel they are too small to support an H-2A workforce of their own.

The first concept I want to talk about is H-2A Joint Employer Contracts. In this model, two or more employers can file jointly on a single H-2A contract. This allows them to share the up-front costs, share housing AND share workers.
The single most important caveat is that you need to know that any other vintner you choose to file together with has to be as careful, ethical and businesslike as you are. When you enter into a joint employer relationship you become responsible for each other’s actions.

From a Technical Perspective, Here are some of the Things You Need to Know:

Employers need to be able to file with a common job description. The work done in each of the vineyards does not have to be exactly the same, but the job description on the application needs to cover all the tasks which might be done in each of the member vineyards. A experienced H-2A agent will help turn your list of tasks into the job description language the Department of Labor is expecting to see and will be willing to certify.

The application needs to have start and end dates which work for every participating employer, as the workers will likely arrive together and will need to finish work at close to the same time. The total length of the contract needs to be at least six weeks and not more than ten months long.

Each employer on the contract has to know how many and which workers will be “his”. Employers may pool the workers from time to time, but each grower will have workers assigned to his vineyard for most of the term of the contract. Bear in mind that these will be highly motivated and productive workers who will be looking to work lots of hours. Employers are better off hiring fewer workers and giving them lots of hours than hiring too many workers and not being able to keep them busy.

When we as an agent help create a joint employer contract, we ask each employer to complete our application form. We then combine those applications into one filing with the US Department of Labor (USDOL). Like all H-2A filings, housing must be furnished, as well as transportation from the housing to the places where the work will be accomplished. In addition, the employers will be collectively responsible for getting the workers to somewhere where they can buy groceries, do their banking, etc.

Speaking of banking; each employer is responsible for paying wages for any hours done in their service during a pay period. If work is done on more than one employer’s farm during the week, the employee will get a paycheck from each employer.

Typically, the upfront costs for an H-2A contract run $4000 or more. By filing jointly, employers can reduce this significantly. Typically, there will be one basic application fee of approximately $4000, but each additional employer added to the contract can be added for less than $1000. The participants in the contract can determine between or among them how to share the total cost. Some just divide it equally. Sometimes they prorate the cost based on the number of workers nominally assigned to each grower. The visas and associated costs will be the same as on a single employer contract, generally about $440 per worker.

As mentioned earlier, H-2A employers must provide housing to H-2A workers at no cost to the workers. Joint employers can share housing. Like the fees, the joint employers can decide among themselves how to divide these costs, typically on a per-bed basis. Remember that the available number of beds determines the number of visas which can be applied for and that the housing will need to be inspected and approved about 45 days before the workers are expected to arrive.

Joint employer relationships work best when employers have some flexibility in their labor needs. If everyone’s crop will ripen at the same time, and must be harvested TODAY, it will be hard to share the workers, i.e. when everyone needs every worker at the same time. In our experience, wine grape growers have more flexibility than growers of some more time-sensitive crops, like apples being picked for color.

Not everyone is good with “paperwork” and the H-2A program’s paperwork has to be perfect. Any grower thinking about filing jointly with one or more other growers has to decide which person or persons can be counted on to keep things straight and respond accurately and timely to the requirements of the program. Agents, like MAS, will expect to deal with some one point of contact on all matters related to the contract and that person will be representing the interests of all the participating growers.

Joint employer H-2A contracts CAN solve a lot of problems for small growers, especially as pertain to the costs associated with the program. Much of the time, you will have your usual cadre of good hard working employees. If you believe you can be responsive when your neighbor asks for additional help, and if you believe your neighbor can as well, then a Joint Employer H-2A contract may be a very good way to get that extra bit of help you both need to survive and even thrive.

The Other alternative,
the Farm Labor Contractor.

Many of you probably already rely on crews of workers furnished and led by an outside employer, often referred to as a “crew leader”. He pays the workers and you, the grower, pay him. Traditionally, these employees have been hired locally. More and more we are hearing that these Farm Labor Contractors/crew leaders are having difficulty hiring enough people locally to fill their crews. Many are having to become H-2A FLC’s and themselves hiring foreign workers to fill out the crews they eventually bring to your vineyard. We have also helped start-up Farm Labor Contractors, working in a number of agricultural sectors, including viticulture, hire H-2A workers from the very beginning. These businesses spring up in areas where there are clusters of growers who need occasional help, but not enough help to justify the cost of opening an H-2A job order of their own, and perhaps not enough help to justify participating in a Joint Employer contract.

As the grower, you may only need to know how to reach one or more of these entities so that you can obtain their services. On the other hand, we have had a few growers approach us in hopes of procuring H-2A workers who they would use in their own vineyards AND offer their services to other growers as well. Where you might see this route taken would be in places where the workers would need to move far enough from worksite to worksite that they would need to stay in a series of different accommodations and not a fixed-site. H-2A Farm Labor Contractors can file an itinerary and perform their work over large areas. The presumption with Joint Employer contracts is that the workers are returning to their worker housing every night.

It is also true that larger Farm Labor Contractors, also called harvesting companies, may work in a variety of crops, and in large geographical areas. This is common in the western states.

Becoming a Farm Labor Contractor does not add significantly to the cost of H-2A, but it does take a lot of additional time and paperwork. There is significant documentation required of the employer in his own right, but also a significant amount of additional paperwork required on any employees who participate in recruiting, hiring, housing, transporting, soliciting or employing farm workers to register them as Farm Labor Contractor Employees (FLCEs). This includes special fingerprint cards. Vehicles used to transport farm workers must be registered and inspected and can be operated only by certified FLCE’s. Each driver must have a doctor’s certification. The FLC must have vehicle liability insurance, workers’ compensation insurance and hold a surety bond to cover the wages due the employees.

Whether the FLC is H-2A or traditional crew leader, the grower who employs him shares the responsibility of making sure the workers are paid correctly and otherwise treated properly. Growers need to protect themselves with an appropriate level of “due diligence” and reputable FLC’s/crew leaders should have no problem showing you that everything is on the up and up.

Also bear in mind that single-employer and joint employer contracts can result in workers arriving in 90-120 days. FLC contracts will add a good 30 days to that timeline, assuming everything goes smoothly.

As our economy improves, the availability of local farm labor diminishes. The one viable, legal alternative is the H-2A program. It is available to individual, fixed-site growers (as I wrote about last year) and this is the most common usage. As I have discussed briefly here, there are alternative uses of the H-2A program for vintners who don’t believe they can justify the use of the program for their exclusive use. Growers can reach out to me by phone or e-mail at their convenience for more detailed information about any of these options.