The H-2A Program:

Protections for U.S. Farmworkers

PEMD-89-3: Published: Oct 21, 1988. Publicly Released: Oct 21, 1988.

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In response to a congressional request, GAO reviewed the: (1) wage and nonwage protection that the Department of Labor's (DOL) regulations afford U.S. farmworkers under the H-2A Program, which allows for the admission of foreign agricultural workers; and (2) quality of the Department of Agriculture (USDA) surveys DOL used to set minimum wages and to certify a shortage of U.S. workers.

GAO found that: (1) USDA never measured the precision of the annual hourly wage rate estimates that DOL used to set statewide minimum wages; (2) there may be unacceptably large error margins for at least three regions of the country; (3) the USDA surveys measured a general farm wage that was lower than the average U.S. wage for workers employed in the same crop activities as H-2A workers; and (4) the technical quality of the 15 wage surveys conducted during 1987 varied because of the inconsistent counting of undocumented workers, low response rates, unsystematically compiled employer lists, analytical miscalculations, inadequate survey quality indicators, poor interview schedule quality, and inadequate monitoring. GAO also found that: (1) since DOL determined the prevailing wage only with regard to the most common unit of payment, differing payment units could result in inaccuracies; (2) wage minimums based solely on prevailing wages would not grant relevant protections because the presence of foreign workers would depress the prevailing wages; (3) DOL set an adverse-effect wage rate as a minimum wage to offset wage depression and generally indexed it to a large-scale wage survey; and (4) because the legislative mandate was so broad, DOL could interpret adverse effect in several ways. In addition, GAO found that: (1) DOL practices provided weak protection for U.S. workers; (2) some growers preferred foreign workers because they could recruit more selectively; (3) DOL referred few U.S. workers at the wages and working conditions offered; and (4) government welfare and unemployment benefits were not a critical factor, since the potentially employable among those collecting the benefits constituted only a small part of the needed labor force.

Recommendations for Executive Action

  1. Status: Closed - Not Implemented

    Comments: USDA is testing a new summary system which will provide estimates of error margins in its wage survey data, to be completed by November 1991. DOL published proposed changes to the prevailing wage survey handbook and forms in the October 24, 1989 Federal Register, but all formal changes to the survey handbook were postponed. Some additional training has been provided to states to improve surveys.

    Recommendation: To ensure that the wage minimums set by DOL to protect U.S. workers from the adverse effects of the H-2A program are reasonably accurate, the Secretary of Labor should: (1) negotiate with USDA to provide routine analysis of error margins surrounding the wage estimates on which statewide minimum hourly wage rates are based and improve the survey as necessary to maintain reasonably small margins of error around such estimates; (2) provide greater oversight and guidance to the state agencies conducting the prevailing wage surveys, including revising the survey handbook and forms to improve consistency of procedures and ability to monitor quality of implementation; and (3) consider converting units of payment to a common base to ensure that prevailing wage findings are calculated on the largest possible number of workers surveyed.

    Agency Affected: Department of Labor

  2. Status: Closed - Not Implemented

    Comments: Proposed informal changes in the prevailing wage surveys were critized in 1990 by Congress and outside groups as unduly favorable to growers. DOL agreed to publish them for comment, but has not done so. Key technical staff have retired and legal staff are occupied with mandated regulations for other immigration law changes. No action is planned in the near future.

    Recommendation: To improve the prevailing wage surveys, the Secretary of Labor should: (1) provide guidance on handling discrepancies, since the handbook directs interviewers to verify employer-supplied information with employee-supplied data; (2) remove the present cells for average hourly earnings, based on combining information from several interviewed workers, unless required for other than verification of employer data, and supplement interview records with forms that record individual wage information from workers and any calculations performed by the interviewer; (3) revise the survey summary form to better alert Employment and Training Administration (ETA) regional and national offices of problems that reduce the quality of the survey; (4) confer with state officials about the problems affecting quality for particular surveys and, if necessary, provide or facilitate training or technical aid; and (5) be especially watchful that mail surveys are adequate and, if not, provide guidance on ways to increase response rates or, alternatively, require other methods of data collection.

    Agency Affected: Department of Labor

  3. Status: Closed - Not Implemented

    Comments: DOL completed ten crop-area studies selectively monitoring referred workers' accounts in 1989-1990 and decided no general problem existed that required any change in procedures. The complaint process remains available for any U.S. worker who believes employers have not acted fairly.

    Recommendation: The Secretary of Labor should improve worker protections under the current law by finding means to incorporate referred workers' accounts of reasons for not being hired or being fired.

    Agency Affected: Department of Labor


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