December 28, 2018


Adele Gagliardi
Administrator, Office of Policy Development and Research
U. S. Department of Labor
200 Constitution Avenue NW
Room N-5641
Washington, DC 20210


RE: Modernizing Recruitment Requirements for the Temporary Employment of H-2A Foreign Workers in the United States (Docket #ETA-2018-0002)


Dear Ms. Gagliardi:


Pennsylvania Farm Bureau (PFB) wishes to offer its comments on the proposed rulemaking, “Modernizing Recruitment Requirements for the Temporary Employment of H-2A Foreign Workers in the United States
(Docket #ETA-2018-0002).” PFB is a general farm organization, made up of more than 62,000 members. Since 1950, PFB has provided support, advocacy and informational and professional services for Pennsylvania agriculture and farm families. These comments are submitted to the above-referenced docket in response to the Employment and Training Administration’s (ETA) recent proposal that would revise recruitment requirements of agricultural employers seeking to use the H-2A program.


PFB appreciates any effort undertaken by ETA and the Department of Labor to improve the H-2A program.  Farmers who have experience with the program underscore that improvements can and should be made to make the program more accessible, less bureaucratic, and less costly for producers while protecting the rights of U.S. workers, and we support efforts designed to accomplish those goals.


The notice states that the “Department also solicits comments on whether, instead of eliminating print newspaper advertisements, it should instead offer electronic advertisements as an alternative means of satisfying the existing requirements in section 655.151.”  PFB strongly recommends the Department adopt this approach, instead of finalizing the rule as proposed. 


The proposal under consideration is ostensibly designed to “modernize” the recruitment obligations of employers, noting that this change “will be a more effective and efficient means of disseminating information about job openings to U.S. workers.”  Subsequently in the notice, in estimating “the cost savings to employers that would result from the proposed rule,” the Department speculates that “removing the requirement to advertise in a print newspaper would result in a cost savings equal to the cost of complying with the current regulation.”  According to the notice, “the Department determined that the average cost of placing the newspaper advertisements required by section 655.15 is $672 (or $336 for each advertisement).”


PFB does not believe the Department has adequately or accurately evaluated the situation facing workers and employers in reaching its conclusion about this proposal.  Consequently, we believe it would be well-advised to adopt the option to retain the print advertisement recruitment tool and to permit employers the option of satisfying their legal obligations either through print advertisements or online advertising.  The Department notes that it “is basing this proposal on several considerations.”  We respond to those considerations in our comments below.


First, the Department asserts that “Available data indicates that farmworkers in the United States very rarely, if ever, learn about job opportunities or obtain employment through print newsprint newspaper advertisements.” While we do not dispute this assertion, we believe this characterization incompletely reflects the supporting information cited by the Department.  That report explicitly states that “[n]early two-thirds of workers reported that they found their current job via references from friends or relatives (64%).”  This assertion reflects the experience of our growers, who typically say that word-of-mouth is a common method among farmworkers for finding work.  Thus, while newspaper print advertising is not a principal source of information, we do not believe the inference can be drawn that online advertising would fill this gap.


Second, the Department states that “Available data also suggests that U.S. workers are now much more likely to turn to the internet to search for work than classified advertisements in print newspapers.” We also do not disagree with the assertion that online advertising is more common, but we do not believe, however, that this general trend alone justifies the regulatory change proposed by the Department.  It needs to be qualified because the reports cited by the Department do not focus on the dynamics and characteristics of agricultural labor or the special needs of the farm economy.  For example, one of the reports mentioned by the Department explicitly notes that “urban and suburban residents are more likely to [engage in online job-seeking behaviors] than those living in rural areas; and Americans with higher levels of income and educational attainment are more likely to do so than those with lower income and education levels.”  Thus, at least one report cited by the Department itself states that the use of online advertising is less common to rural areas, and farm workers than it is in the general population.  General studies citing job-seeking behaviors that do not reflect rural and farm worker realities should be used with caution and not be used as a rationale for changing H-2A regulations.


Finally, the Department avers that “Electronic advertisements offer employers a less expensive, more convenient means of broadly disseminating information about their job opportunities to potential U.S. workers.” While technically correct, this observation is incomplete and does not completely capture potential costs to employers.  While the placement cost of the job posting might be less online than in print, the overall costs for employers might well be greater even while protections for U.S. workers remain unchanged. As an example, we are aware of one agricultural employer who posted a position on an internet site and, over two or three days, received hundreds of applications; these applicants, many of whom did not meet the requisite experience requirement, nevertheless claimed to be experienced.  The submission of unqualified resumes was facilitated by the website.  In such a scenario, the Department would most likely require an employer to contact ALL job applicants, keeping a record of such contacts in case of audit.  The proposal by the Department does not consider in any manner the potential increased costs to employers in such situations.  On those grounds, the Department proposal does not appear accurately to reflect the true cost to employers. 


We agree that U.S. workers should receive priority in consideration and hiring for these positions.  It is generally the experience of our producer members, however, that the overwhelming number of domestic workers who present themselves for these jobs last only a short time and abandon employment for a variety of reasons.  Imposing costs and obligations on employers without protecting the rights of U.S. workers would be short-sighted, would impose unnecessary costs on growers and would do nothing to help either employers or workers.


Given the preceding, we recommend that in its final rule, the Department should allow employers the option of using either online or newsprint advertisements as a way of fulfilling the positive recruitment requirement. Alternatively, the Department should retain the transition provision it is proposing (i.e., which permits  employers to use either online or print advertisements) but not include a termination date (i.e., applications with a start date of need prior to October 1, 2019 as proposed) and adopt a method to examine and evaluate how well it is functioning.  Only after such an evaluation should the Department consider mandating online advertising OR print advertisements.  Additionally, should the Department opt to eliminate print advertisements, it should only do so after publishing the results of its evaluation and engaging in a notice-and-comment process that affords employers the ability to comment on the Department’s approach.


We appreciate this opportunity to comment for the record and urge the Department to modify its proposal as we have described in the above comments.


Sincerely,
Grant Gulibon
Director, Regulatory Affairs