Farm Workforce Modernization Act of 2021

Floor Speech

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Mr. SCOTT of Virginia. Madam Speaker, farmworkers toil under difficult and dangerous conditions for long hours and low pay to ensure America has a safe and plentiful food supply.

Because of the scarcity of domestic farm labor, for decades, the agricultural sector has depended largely on the labor of migrant workers. The vast majority of crop workers in the United States were not born here and are undocumented or here on guest visas. Though these workers perform incredibly difficult work under hazardous conditions, they are often unable to seek recourse when their rights are violated. A pathway to citizenship, when accompanied by appropriate oversight measures, could help reduce these dedicated workers' justifiable fear of reprisal for asserting their rights. Farmworkers are integral to our communities and our economy. Creating a pathway to citizenship for these individuals--who work to feed us and our country year after year--as well as their families is both an economic and humanitarian necessity.

I support legalization of vulnerable, undocumented workers and a path to citizenship. However, in exchange for legalization for some undocumented farmworkers, this bill would depress labor standards for H-2A workers. Because weakened labor standards for H-2A workers could adversely impact the domestic workforce, this bill could negatively impact the economic security of all farmworkers.

Wage cuts for many H-2A workers in turn would depress wages for all farmworkers. The adverse effect wage rate (AEWR), which is often the binding wage paid to H-2A workers, is designed to ensure that wages paid to H-2A workers do not depress wages for U.S. farmworkers. This means the AEWR must be high enough to reflect wages paid in the local labor market. This bill would change the way the AEWR is currently calculated over the first ten years to reflect average wages paid to farmworkers in the region according to their specific occupation, rather than the average wage paid to farmworkers across all occupations. However, the bill fails to require the use of data that actually reflects local wage conditions. Additionally, while setting limitations on how much AEWR wages can decrease after an initial one-year freeze, the bill imposes caps on wage increases from year to year, limiting whether AEWR can truly reflect wages paid in the local labor market.

As a result of these changes to the AEWR, the majority of H-2A workers would see their wages actually go down, albeit modestly, while others would see the growth in their wages capped. I have opposed similar efforts proposed by the Trump Administration that would depress wages.

This year, I was pleased to lead House efforts to include an increase to the federal minimum wage in the House-passed American Rescue Plan (H.R. 1319). While those minimum wage provisions did not ultimately survive Senate budget reconciliation rules, I will continue to push for H.R. 603, the Raise the Wage Act, which would gradually raise the federal minimum wage to $15 per hour by 2025. I am confident that in the next ten years, we will enact a meaningful increase in the federal minimum wage, boosting wages for workers across our nation--including farmworkers. However, I am concerned that H.R. 1603, Farm Workforce Modernization Act of 2021, will create artificial barriers to wage growth, or worse, lead to wage cuts, continuing to leave farmworkers relegated to low pay and economic insecurity.

Our country's wage and hour laws are designed to ensure that workers are guaranteed a fair day's pay for a fair day's work. But this right is only as strong as a worker's ability to hold employers accountable, especially in court. Unfortunately, this bill creates obstacles that may delay farmworkers' ability to access their day in court, when they have been victims of wage theft. While I welcome extending coverage of the Migrant and Seasonal Agricultural Worker Protection Act (MSPA) to H-2A workers, adding a mediation requirement to both the MSPA and the Fair Labor Standards Act (FLSA) is problematic. This bill enables employers to impose three months of mandatory mediation when an H-2A worker brings a civil suit under these laws, even if the worker does not consent to the mediation and wants his or her day in court. This undermines the voluntary nature of mediation and provides bad actors with an avenue for delaying or denying wage recovery. This delay could prove significant for farmworkers who may be in this country for a limited amount of time to participate in litigation. This is especially fraught given that, in contrast to MSPA, the FLSA provides for recovery of unpaid wages and liquidated, or double, damages and recovery of attorney's fees, plus costs. This provision may also pull domestic farmworkers or other visa classifications of workers into required mediation where there are collective or class actions, thereby undermining incentives for other workers to join with H-2A workers to seek redress.

Last Congress, I supported the passage of H.R. 1423, the FAIR Act, to ban forced arbitration in many areas, including employment, because it could delay or totally block workers' access to courts. We should promote legislation that protects workers' fundamental right to have their day in court, not delay it.

This bill denies newly legalized farmworkers and their families access to key social safety net programs. Denial of benefits that can promote economic stability, coupled with the bill's wage suppressing provisions, threatens to create a long-term pool of economically vulnerable workers. While most of these individuals do not currently have access to these benefits due to their immigration status, leaving immigrant workers who are granted legal status under this legislation without access to social safety net programs establishes a dangerous precedent that access to health care and other basic necessities can be traded away for a path to legal status.

This legislation weakens the current recruitment and hiring standards for U.S. farmworkers. A reduction in employers' obligations to hire U.S. workers under this bill will undermine one of the core principles of the H-2A program: that H-2A workers should fill in gaps in the farm workforce that U.S. employers are truly unable to fill, rather than merely replacing U.S. workers that employers could attract with reasonable efforts. I raised concerns with similar efforts to modify recruitment standards by the Trump Administration in 2019.

Agricultural work is hazardous, and workers in this sector have few legal health and safety protections. Ensuring that H-2A workers and all farmworkers have safe, healthy working conditions is critical. I am pleased that this bill requires H-2A employers to maintain heat illness prevention plans and requires H-2A employers in the dairy industry to maintain workplace safety plans. However, as presently written, some provisions are ambiguous and would be difficult to enforce; other provisions have weak minimum requirements that would limit their value. As this legislation moves forward, I would urge the inclusions of stronger health and safety standards.

Strong labor protections are vital to protect both H-2A workers, who are vulnerable given their temporary status, and domestic farmworkers, whose employers may be disincentivized to provide employment. This is especially true given that farmworkers have historically been carved out of labor and employment laws, leaving these workers with fewer wage protections and rights to bargain for better working conditions.

While this bill does make some improvements in immigration law, I look forward to supporting a version of this bill that more accurately reflects strong labor standards.

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