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Executive Order Brings New Level of Ag Labor Uncertainty

March 29, 2017

Originally published by Michigan Farm News on March 15, 2017; republished with permission.

Employers should prepare for immigration enforcement impact.

President Trump signed executive orders on interior immigration enforcement and border security. Many provisions in the orders are subject to budget support such as building the southern border wall and 15,000 more immigration officers. 

Other provisions are restating immigration enforcement laws and priorities and allowing collaboration with local law enforcement, creating inconsistent enforcement activities sometimes from county to county. Therefore, the orders do not create an immediate substantive impact, but have created substantial uncertainty whether seasonal agricultural labor will be available to harvest crops.

Current enforcement strategies have focused on individual arrests and deportation processes with the involvement of employers limited to requests for individual I-9s and cooperation in making employees available to arresting officers. 

We have not seen plans for employer raids, but farms should develop or review plans to manage raids including designating managers to communicate with officers and contact attorneys as needed. Employers should also be prepared for worksite Form I-9 compliance audits and the potential for mandatory E-Verify. The audits and E-Verify will disclose the unauthorized status of many agricultural workers resulting in potential liability and worker unavailability. 

Farmers should complete a Form I-9 self-audit to assure accurate and full completion for all current employees. 

To the extent errors or incomplete I-9s are discovered, employees should correct Section 1 issues and employer should correct Section 2 issues and all changes should be initialed and dated. 

As seasonal workers are hired, Section 1 of Form I-9s must be completed on the first day of employment and documents presented and Section 2 completed by the third day of employment. 

Form I-9 compliance will prevent employer liability for unauthorized workers if the farmer confirms documents presented are reasonably valid and relate to the employee.  However, farms may not continue to employ workers found unauthorized during an I-9 audit, which is the larger concern for high-labor-need specialty crop farms.

For now, President Trump has not revoked Deferred Action for Childhood Arrivals (DACA) which provides temporary work authorization for qualifying 15 to 30 year-olds. 

While some agricultural workers have used that program, many workers in the U.S. do not qualify and have no other path to work authorization. The only immigration program currently available to agricultural employers is the H-2A program, which is complex and makes employers targets for government and worker enforcement actions. Farmers should assess labor needs and implement recruitment or H-2A plans early to secure necessary seasonal workers.

Farm labor contractor businesses are increasing due to the demand and uncertainty. Farms should complete detailed due-diligence to assess farm labor contractor options because joint liability will most likely apply making the farm responsible for the contractor’s operations. 

Specifically, farms should assess employment law compliance, availability and quality of workers and cost. 

If the contractor is using H-2A workers, the farm would need to have been included in the contractor’s H-2A application, and all workers completing jobs listed in the H-2A contract on the farm will be entitled to H-2A wages and benefits. 

Farms should also coordinate carefully with contractors to avoid potential discrimination issues if separate work crews are operating on the same farm. A combined work crew is preferred both to assure consistent compliance and to build an effective harvest team. 

For more details and resources, please subscribe to Agricultural Employment Compliance Guide created through a partnership of Michigan Farm Bureau, Great Lakes Ag Labor Services and Varnum.

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