Employers & Employment, Guest Worker Program, H-2A, Regulations & Compliance

Government Nixes H-2A Reference Requests

From CapitalPress.com, Mitch Lies, 25 Aug 2011.

State agency tells employers not to seek work information on domestic workers

U.S. employers can’t ask for references when seeking domestic workers under the federal H-2A guest worker program, according to a foreign labor specialist with the Oregon Employment Department.

The prohibition puts employers in a bind with workers’ compensation insurance carriers, which request they get references. And it restricts a farm’s ability to gauge the ability and aptitude of workers, said Bill Case, an Albany, Ore., farmer and packer who uses the H-2A program.

“How many businesses hire someone without checking references?” Case asked.

After being featured in a Capital Press article on H-2A, Case was told by the Oregon Employment Department that he couldn’t ask for references. In the article, he mentioned he asked for references, but domestic applicants rarely provided any.

Case earlier this year was informed job postings could not include a requirement that applicants have one month experience at a farm or packinghouse.

“I’m supposed to hire anybody and everybody that applies, I guess,” he said.

The prohibition on asking for references matches the prohibition on requiring experience, said Eric Villegas, foreign labor specialist with the Oregon Employment Department.

Because employers cannot require experience, he said, they have no basis to require a reference.

Employers using H-2A must first seek to fill positions with domestic workers. Only after showing they can’t fill jobs domestically can employers use the guestworker program.

“The goal is to try and find U.S. workers who can and will do U.S. jobs,” Villegas said. “Only if we can’t find U.S. workers will the federal government allow employers to bring foreign workers to do these jobs.”

Advertising job openings in at least three states — an H-2A requirement — costs Case thousands of dollars and consumes countless hours chasing down applicants who cannot or will not do farm and packing jobs.

In the four years he has used H-2A, no domestic worker found through the program has worked for more than two days, Case said.

The program requires Case to pay domestic and foreign workers at least $10.60 an hour.

In 2009, 55,921 workers participated in the federal program, according to the U.S. Department of State, with 52,317 from Mexico. Oregon had 68 participate in the program.

Participation has declined since 2008, when 64,404 H-2A visas were issued overall.

Frank Gasperini, executive vice president of the National Council of Agricultural Employers, said program usage has declined as the program has become more complex and difficult to use.

“The (U.S.) Department of Labor has continued to make this program more difficult and painful to use,” he said.

Source: CapitalPress.com, “Government nixes H-2A reference requests” by Mitch Lies, 25 Aug 2011.

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