Senate Republicans and Democrats are inching closer to a deal on an immigration bill that farmers say if passed could help reduce food prices in part by helping them hire more workers.
This measure, known as the Farm Workforce Modernization Act, is focused mainly on updating the food production workforce, a system some call outdated and that has led to higher food prices especially for dairy, meat and vegetables.
It would do this by allowing more farmers — like dairy and pork producers — to hire temporary workers year-round. Currently, year-round employers cannot use that worker visa program, known as the H-2A temporary agricultural program used by seasonal employers. It would also satisfy some goals for labor rights advocates by providing a pathway to legalization for workers who show a dedicated history of farm work.
But Senate negotiators writing the bill are stuck on a little-known provision centered on those H-2A workers: whether they should be allowed to sue their employers if they believe labor laws have been broken.
That provision's biggest foe is the American Farm Bureau Federation. The Farm Bureau, often known for its more conservative stances, has long been the agriculture lobbying giant in Washington.
The bill received large GOP support in the House, where it passed twice. And members are anxious for their Senate counterparts to finally finish writing and introduce a bill. The split within the GOP over agriculture labor reform, led by Farm Bureau influence, threatens the prospects of a final deal as time runs out.
Republicans on the Hill are accusing each other of not understanding the urgency of the bill, or even what it could do.
"It's sitting over on the Senate side waiting to move over there because there are people creating misperceptions about what the bill does," said California's Doug LaMalfa at a GOP-led press conference hosted by the American Business Immigrant Coalition on the bill last week. "Do people want to eat in this country or not?"
What is MSPA?
For over a year now, the top Senate negotiators on the bill – Democrat Michael Bennet of Colorado and Republican Mike Crapo of Idaho – have struggled to nail down a compromise for a handful of provisions. They've made progress, but the biggest hurdle is the lawsuit provision. It proposes to expand employee protections known as the Migrant and Seasonal Agriculture Workers Protections Act.
That's one of the many laws establishing labor protections for farmworkers under the Labor Department, and it regulates the contracting, payment, record keeping, housing, transportation and other working conditions of farmworkers in the U.S.
Proponents of the immigration bill argue many of these laws are already broader and wider reaching than MSPA requirements, or in many cases even the same. The biggest difference: the possibility of workers filing lawsuits against their employers.
Unlike other farm labor laws, MSPA allows workers who believe an employer has violated a portion of the law to file a lawsuit in a federal district court. And unlike other laws, MSPA has specifically excluded H-2A visa workers — something the bill is looking to change.
And there are more H-2A workers than ever before.
Farmers and ranchers are able to resource the H-2A visa program if they need workers to perform seasonal or temporary agricultural labor so long as they can prove that they were not able to hire a domestic worker, among other requirements.
Demand for the visas has been steadily on the rise as producers face labor shortages, even before the pandemic. Although H-2A visa workers still make up about 11% of the overall ag workforce, the Labor Department noted the number of visas has more than tripled since 2012.
Where is the divide?
The lawsuit provision isn't new – it was included in the House version of the bill years ago by Democrats who wanted to increase labor protections for farmworkers. Labor advocates say the law helps protect workers from being shorted on wages and placed in unsafe housing and transportation by requiring record keeping. This and the ability to file a lawsuit, said Reyna Lopez, does not differ from how employee rights work in other sectors.
"[We] really need these very basic documentations, very basic standards, very basic housing standards and licenses when people are driving and proof of their transportation when they're driving," Lopez said. "This is the bare minimum we're asking from our employers when we're doing a lot to make sure that this economy continues."
Advocates say that with the increased number of visa workers, it is even more important to ensure all workers that do the same job have the same protections.
But the Farm Bureau and other employer groups argue the bill could potentially result in frivolous lawsuits costing producers, who are already operating on slim margins, thousands of dollars.
"That's an area where our policy is extremely clear. We do not support the inclusion of H-2A under MSPA in this manner," said Allison Crittenden, the bureau's director of government affairs. "So we want to make sure that folks can be out farming and not dealing with frivolous lawsuits that could result from this."
Producers, however, are generally split. And the lines seem to fall based on where they live.
Those in the Southeastern region of the U.S., including North and South Carolina and Georgia, who may have more employers who solely rely on H-2A workers and have never dealt with MSPA before, have reservations.
"Our farmers, they love their workers and they're not opposed to a legalization program," said Lee Wicker, deputy director of the North Carolina Growers Association, the top employer for H-2A workers last year, but he added there is concern the law could be utilized by unions looking to organize or help employees retaliate against employers.
Proponents of the bill argue the Farm Bureau is siding more with Southeastern growers, as opposed to those who may be willing to compromise. The New York and Utah state Farm Bureaus, who also happen to have a larger dairy industry, favor the legislation.
"It's very digestible. It's a good sound bite. And I think the legacy H-2A users in North and South Carolina, Georgia have done a very good job of messaging," said a Senate staffer familiar with negotiations. "The American Farm Bureau has embraced the concerns echoed by those growers down there. If we can get the American Farm Bureau to a place where they're neutral, that would be huge."
But many producers don't oppose the expansion of MSPA. Some say they already hire both domestic and visa workers, meaning they are already used to following the law.
"Honestly, there's a lot of ambivalence towards the issue here in the West. You don't hear it discussed in our circles as much as what you do in the Southeast," said Rick Naerebout, CEO of the Idaho Dairymen's Association, who noted most dairies have at least one domestic worker and are therefore already subject to MSPA. "In terms of employees litigating issues with employers, that's largely a non-issue."
The sentiment even exists among traditional growers in the Southeast. Charles Wingard, a vegetable farmer in South Carolina, told NPR that he uses a blend of H-2A and domestic workers and has never had an issue with MSPA, nor does he have an issue with the expansion.
"It goes back to if you treat your workers good and do right for them and by them. ...You shouldn't have any problems with them," Wingard said.
Mike Gempler, executive director of the Washington Growers League, said many growers in the state are already subject to MSPA. Yet, his organization still supports the bill despite seeing the labor law as a "confrontational" option to resolving conflict.
"It's compromise," he said. "I think what we have to do is make it work and make sure people are treated right and have protection. That's more important to have the H-2A program and have a good H-2A program that we can use that's affordable rather than hold out for keeping MSPA out of it."
Getting to 60 votes
As of last week, Senate negotiators have reached tentative deals on a few provisions that had been holding them up – proposals that they say would help save employers money amid rising costs. For example, they agreed to freeze H-2A wages at current levels for the next year, and they are nearing a deal that would allow year-around employers to hire more workers than what the House proposed.
But skepticism over the American Farm Bureau Federation's refusal to support expansion is the biggest hurdle.
Crapo is not willing to put his name on a bill unless there is buy-in from a significant number of Republicans and unlocking support, or at least neutrality, from the Southeast is crucial, according to sources familiar with negotiations.
But the Farm Bureau still maintains a stronghold and time is running out: production costs are only increasing and the November midterms are getting closer.
Crittenden told NPR that the Farm Bureau is waiting to see the final bill before endorsing or opposing the effort and although it didn't support the House version, it didn't actively campaign against it either.
Although the proposal is GOP-backed, minority leader Kevin McCarthy has said he won't put any immigration-related bills on the floor if the House flips following the November elections. Newhouse told reporters that even in a GOP-led House he would push to bring the bill back to the House floor for a vote if it is sent back with changes from the Senate and others are prepared to support him.
"I am living proof that you can actually go out and talk about immigration and win an election," said Idaho GOP Rep. Mike Simpson during the press conference. "It's not as toxic as some people think...We need immigration reform, this is one part of it: ag immigration reform."
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