PLANET Members Urge Congress to Retain, Make H-2B More Industry Friendly

Landscape companies face three difficult challenges when recruiting new employees:

1. Finding good, qualified local workers willing to accept manual seasonal labor jobs.

2. Verifying a potential employee’s legal status. Hiring legal, documented workers is a priority for everyone, but often is difficult because there is a fine line between authenticating the paperwork for identification and being too aggressive in the procedure, which can lead to discrimination charges.

3. Having access to a reliable electronic verification program that is not overly burdensome, particularly for small businesses.

The I-9 Employment Eligibility Verification Process is on that all employers must adhere to. Under this process, employers must attest, under penalty of perjury, that to the best of their knowledge, the employee they are attempting to hire is eligible to work in the United States; that they have examined the documents presented by the employee; and that the documents appear to be the employee’s genuine property. Yet, despite following the I-9 process, employers still may unknowingly hire an immigrant worker who has false documents that look legitimate.

If a company hires an employee who turns out to have fake documents, it costs that company money, impedes its ability to operate, and damages its reputation. In addition, the I-9 Anti-Discrimination Provisions make it difficult for employers to aggressively pursue genuine documents for fear they will violate the law. The notice states: "It is illegal to discriminate against work-eligible individuals. Employers cannot specify which document(s) they will accept from an employee. In addition, refusal to hire an individual because of a future expiration date may constitute illegal discrimination."

PLANET recognizes that the use of the electronic eligibility verification system (E-verify) could help employers address the legal status of potential employees. However, it is important to ensure that employers can use this system efficiently, with assurances of its accuracy and without additional costs and wasted time. Any electronic verification program must not be overly burdensome for small businesses. (Sometimes a Social Security number will match the name, but it is still not the person actually applying for the job.)

PLANET supports legislation that provides an acceptable mechanism for legalizing improperly documented workers or legislation that gives employers access to a steady workforce of full-time temporary workers along the lines of the new "W" visa program included in S.744, the "Border Security, Economic Opportunity, and Immigration Modernization Act," which recently passed the United States Senate. However, we believe that Congress should increase the number of visas for these new temporary workers and ensure the formula for adjusting those numbers meets future economic demands. We also support some agreed-upon system that provides a mechanism whereby existing workers in jobs within our industry (some with many years of service) with I-9 documents that may not be verifiable be able to become properly documented to remain in those jobs.

While employers face challenges in confirming the work eligibility of some employees, an even larger challenge lies in the fact that in many cases few or no legal workers actually apply for seasonal jobs because of the temporary nature and physical demands of the work.

For these reasons, many landscape companies rely on the existing H-2B program as their source of documented, seasonal, visa-holding nonimmigrant workers who fit their seasonal labor needs. This program, however, is very complicated, costly and time-consuming for employers.

Unfortunately, the final DOL program regulations threaten the viability of the H-2B program. On March 21, 2013, a Pennsylvania Federal District Court judge invalidated a provision of the 2008 H-2B regulations that outlines how prevailing wages are to be set using Bureau of Labor Statistics data and gave the DOL 30 days to come into compliance. In response to the court order and after a temporary suspension of H-2B application processing, on April 24, 2013, the Departments of Homeland Security (DHS) and the DOL issued a joint Interim Final Rule that became effective immediately and is subjecting landscape companies to a $3.27 average wage increase, close to a 40 percent increase in wages. The new rule is similar to the wage scheme that the DOL attempted to impose in a 2011 regulation. Under the law, the DOL is prohibited from implementing its burdensome 2011 wage rule through Sept. 30, 2013.

In addition to the anticipated labor costs and increases, many seasonal businesses faced economic losses because they did not have the workers needed to serve their customers because of a temporary suspension of program processing from March 22 until April 24. Further, for many landscape companies whose H-2B workers have been in the United States since the spring, the DOL required these employers to begin paying the higher wages midseason.

Employers had no way of knowing such massive labor costs would arise so suddenly and could not have budgeted for such an abrupt change. In addition, many landscape companies operate on long-term contracts and cannot pass along these unexpected, higher labor costs to their customers.

PLANET encourages Congress to include a fair and equitable process for calculating H-2B wages in the final immigration reform legislation. PLANET supports the wage methodology in the legislative text of S.744.

A second DOL rule, published in the Feb. 21, 2012, Federal Register would make the H-2B program even more expensive and complicated to use. This rule has not taken effect because a federal judge in the Northern District of Florida issued a preliminary injunction preventing the Department from implementing the rule.

Finally, the H-2B program has an arbitrary cap on the number of H-2B workers allowed to work in the U.S. each fiscal year. As the economy recovers, the program’s congressionally mandated cap of 66,000 (33,000 for the first half of the fiscal year and 33,000 for the second half of the year) is inadequate to meet the seasonal needs of landscapers and other seasonal employers. PLANET urges Congress to reinstate the expired provision of law that exempts H-2B from returning workers from the annual cap or to use some other market-based mechanism to ensure that the employers have access to the seasonal workers they need during good economic times. We are grateful that S.744 reinstates the returning worker exemption, but believe it should be made permanent, rather than sun-setting after five years. Further, the H-2B program is already very costly and the legislation imposes some additional new fees of H-2B employers.

PLANET looks forward to working with Congress to pass meaningful comprehensive immigration reform legislation that addresses the needs of the landscape industry and other seasonal employers. S.744 addresses many important issues for our industry, and we hope that the House, as it moves immigration reform legislation, makes improvements to the bill.