Produce industry braces for impact of 'no-match' rule
Produce industry braces for impact of 'no-match' rule
WASHINGTON -- Next month, the so-called "no-match" regulation designed to crack down on employers who hire illegal workers goes into effect, and the rule is likely to devastate agriculture and other industries already struggling with a weakened labor force.
Starting in mid-September, the Social Security Administration plans to begin sending out 15,000 letters a week under the so-called "no-Match" regulation. If an employer has a significant number of employees without accurate identity information, the administration will send a "no-match" letter. The employer must take steps to rectify the situation within 90 days of receiving the letter or may be found liable.
"There is a right way to react to a 'no-match' letter, which, if followed in good faith, will give the employer a safe harbor against liability, and there's also a wrong way to respond, which is to ignore it," Homeland Security chief Michael Chertoff said at an Aug. 10 press conference. "And the regulation makes clear that if you ignore a 'no-match' letter, you are putting yourself in a position where that fact will be used against you if the time comes to assess liability."
The "no-match" rule is just one of a number of new initiatives announced earlier this month. The Department of Homeland Security plans to increase fines against companies that knowingly hire illegal workers and to expand criminal investigations, institute new border-security measures such as the construction of 370 miles of fencing, and to hire more than 18,000 border- patrol agents.
"The new rule will be catastrophic to agriculture," said Barry Bedwell, president of the California Grape & Tree Fruit League in Fresno. "With an estimated 70-90 percent of our workforce undocumented, this enforcement action has the potential not only to force production out of the United States but [it] could put permanent crops, such as table grapes and tree fruit, totally out of business."
He added, "This action will affect not only seasonal workers who will be fired but also some long-time employees who are productive members of their communities. Because of the rule's timing, citrus may be the first to feel the brunt of the rule since it is harvested in November and December, he said. The only bright spot, said Mr. Bedwell, is that the changes may serve as a catalyst for AgJOBS to move forward.
The legal liability will be a real strain, said Craig Regelbrugge of the American Nursery & Landscape Association, and it will force "a bad set of choices." Employers will be forced to fire workers who don't match up with the SSA database. Some desperate employers and workers may go off the books, he said.
The irony is that the SSA would lose billions of dollars of revenue if that comes to pass, Mr. Regelbrugge added. "It will either hasten a solution or hasten the demise [of businesses]," he said.
John McClung, president of the Texas Produce Association, said the problem is that Congress did not pass comprehensive immigration reform, and that piecemeal reforms "will do more damage than good."
Mr. McClung said that it is unclear how damaging the no-match rule will be overall, but large companies will feel the impact immediately.
"People are still vague about the safe-harbor provisions," Mr. McClung said. For field labor, it may be very damaging, but it is unknown whether long- term seasonal employees who work at the packingsheds would also be caught under the new rule.
Also, it's unclear how the 90-day no-match response time will work in short- term harvest settings, he said. Others have suggested that the new rule would cause a shell game, as illegal workers shuttle from employer to employer before the 90-day time limit expires.
On Aug. 10, administration officials did vow to reform the H-2A and H-2B guest-worker programs, and to beef up border and workplace security. For agricultural workers, the Department of Labor has been directed to review the regulations implementing the H-2A program and to institute changes that will provide farmers with an orderly and timely flow of legal workers, while protecting the rights of laborers.
"During the legislative process, we heard from many people involved, especially farmers and small business owners, that these programs could be made easier to use while protecting the rights of workers," Commerce Secretary Carlos Gutierrez said in a statement. "That's why the Department of Labor will be reviewing ways to make the H-2A Agricultural Seasonal Worker Program more workable, while protecting the rights of workers."
This may sound more promising than it turns out to be, warned Mr. Regelbrugge. The industry has heard similar promises, he said, but only legislation -- such as AgJOBS -- would systematically resolve the labor shortage.
In the meantime, Mr. Chertoff blamed Congress for not passing comprehensive immigration reform and pointed to the current situation as the consequence.
"As of July 2, more than 1,400 immigration bills had been submitted by state lawmakers, and since January, 170 of those bills have become laws," he said. "Without reform, we will also see many of our agricultural products coming from overseas. And without reform, small businesses and farmers are going to go out of business. This issue is not going to go away; Congress needs to act."
Starting in mid-September, the Social Security Administration plans to begin sending out 15,000 letters a week under the so-called "no-Match" regulation. If an employer has a significant number of employees without accurate identity information, the administration will send a "no-match" letter. The employer must take steps to rectify the situation within 90 days of receiving the letter or may be found liable.
"There is a right way to react to a 'no-match' letter, which, if followed in good faith, will give the employer a safe harbor against liability, and there's also a wrong way to respond, which is to ignore it," Homeland Security chief Michael Chertoff said at an Aug. 10 press conference. "And the regulation makes clear that if you ignore a 'no-match' letter, you are putting yourself in a position where that fact will be used against you if the time comes to assess liability."
The "no-match" rule is just one of a number of new initiatives announced earlier this month. The Department of Homeland Security plans to increase fines against companies that knowingly hire illegal workers and to expand criminal investigations, institute new border-security measures such as the construction of 370 miles of fencing, and to hire more than 18,000 border- patrol agents.
"The new rule will be catastrophic to agriculture," said Barry Bedwell, president of the California Grape & Tree Fruit League in Fresno. "With an estimated 70-90 percent of our workforce undocumented, this enforcement action has the potential not only to force production out of the United States but [it] could put permanent crops, such as table grapes and tree fruit, totally out of business."
He added, "This action will affect not only seasonal workers who will be fired but also some long-time employees who are productive members of their communities. Because of the rule's timing, citrus may be the first to feel the brunt of the rule since it is harvested in November and December, he said. The only bright spot, said Mr. Bedwell, is that the changes may serve as a catalyst for AgJOBS to move forward.
The legal liability will be a real strain, said Craig Regelbrugge of the American Nursery & Landscape Association, and it will force "a bad set of choices." Employers will be forced to fire workers who don't match up with the SSA database. Some desperate employers and workers may go off the books, he said.
The irony is that the SSA would lose billions of dollars of revenue if that comes to pass, Mr. Regelbrugge added. "It will either hasten a solution or hasten the demise [of businesses]," he said.
John McClung, president of the Texas Produce Association, said the problem is that Congress did not pass comprehensive immigration reform, and that piecemeal reforms "will do more damage than good."
Mr. McClung said that it is unclear how damaging the no-match rule will be overall, but large companies will feel the impact immediately.
"People are still vague about the safe-harbor provisions," Mr. McClung said. For field labor, it may be very damaging, but it is unknown whether long- term seasonal employees who work at the packingsheds would also be caught under the new rule.
Also, it's unclear how the 90-day no-match response time will work in short- term harvest settings, he said. Others have suggested that the new rule would cause a shell game, as illegal workers shuttle from employer to employer before the 90-day time limit expires.
On Aug. 10, administration officials did vow to reform the H-2A and H-2B guest-worker programs, and to beef up border and workplace security. For agricultural workers, the Department of Labor has been directed to review the regulations implementing the H-2A program and to institute changes that will provide farmers with an orderly and timely flow of legal workers, while protecting the rights of laborers.
"During the legislative process, we heard from many people involved, especially farmers and small business owners, that these programs could be made easier to use while protecting the rights of workers," Commerce Secretary Carlos Gutierrez said in a statement. "That's why the Department of Labor will be reviewing ways to make the H-2A Agricultural Seasonal Worker Program more workable, while protecting the rights of workers."
This may sound more promising than it turns out to be, warned Mr. Regelbrugge. The industry has heard similar promises, he said, but only legislation -- such as AgJOBS -- would systematically resolve the labor shortage.
In the meantime, Mr. Chertoff blamed Congress for not passing comprehensive immigration reform and pointed to the current situation as the consequence.
"As of July 2, more than 1,400 immigration bills had been submitted by state lawmakers, and since January, 170 of those bills have become laws," he said. "Without reform, we will also see many of our agricultural products coming from overseas. And without reform, small businesses and farmers are going to go out of business. This issue is not going to go away; Congress needs to act."
