Unless blocked by federal courts or congressional action, President Obama’s executive actions on immigration will take effect in 2016, causing agricultural employers to face potential legal issues and an increased labor shortage. The executive actions allow certain individuals to quality for deferred deportation action and for employment authorization. Agricultural workers must present work authorization documents at hiring, but based on Immigration and Customs Enforcement (ICE) status records, between 50 and 70 percent of the documents presented are false. The potential legal issues will require agricultural employers to devote vigilant attention to employment regulations while coping with a likely increased labor shortage.

Provisions of primary concern

Two provisions of the executive actions that may apply to falsely documented workers could have impacts for agricultural employers, according to Jason Resnick, vice president and general counsel for the Western Growers Association. Western Growers represents about 2,500 members in Arizona and California who provide approximately half of the nation’s fresh fruits and vegetables and a third of the organic produce.

Jason Resnick, vice president and general counsel for the Western Growers AssociationPHOTO BY WESTERN GROWERS

The first provision of concern relates to people under the age of 16 who were brought to the United States by Jan. 1, 2010. The second applies to parents of U.S. citizens or lawful permanent residents born before Nov. 20, 2015. U.S. Citizenship and Immigration Services are set to begin accepting applications in June 2015.

Effects on labor availability

While the number of people affected is not certain, the United Farm Workers union estimates that about 250,000 farm workers, with about half of those from California, will be eligible for deferred deportation and temporary work authorization. Aside the union’s estimation, the number of those eligible who will apply is anybody’s guess.

“Some analysts believe that interest in applying will be tempered by the fact that ICE agents are focusing on recent border-crossers, those crossing since January 1, 2014, and convicted criminals and suspected terrorists,” Resnick said. Others may be concerned about a future Congress reversing the action and deporting them.

“We absolutely have to have a guest worker program in 2015,” said Manuel Cunha, president of Nisei Farmers League that represents about 1,000 members in California, Oregon and Provo, Utah.

Thousands of workers left agriculture following passage of the Immigration and Border Control Act of 1986. While no accurate figures can be projected on the number of workers who may leave agriculture this time around, Cunha stated, “Over the last five years, we’ve had an increase in the age group 20-32 coming into agricultural employment. This age group will be affected by the executive actions and we estimate about 50,000 people may leave agriculture.”

Legal impacts for employers

Resnick stated, “Continued employment of someone whom the employer knows to be unauthorized exposes the employer to liability under federal immigration laws. Learning that an employee is applying for deferred action could put the employer at risk of having constructive knowledge that an employee is not work authorized. Western Growers is seeking further guidance from government agencies to ensure that employers are not exposed to legal risk while employees await employment authorization.”

Resnick emphasized that employers must be aware that unless and until guidance is issued, continuing to employ a worker known to have applied for deferred deportation and work authorization is illegal.

A concern exists for employers who have dishonesty policies stating that employees will be disciplined or fired if they have lied at the time of employment. Even if an employee has a valid Employment Authorization Document (EAD), the employee may have violated the employer’s dishonesty policy in some other statement. Employers must apply dishonesty policies consistently, and if they do not treat employees equally, they may be charged with discrimination.

Agricultural workers harvest cantaloupes in Los Banos, Calif.

“There is no safe harbor that allows employers to treat deferred action beneficiaries differently from other employees who violate company rules,” Resnick noted.

Employers must update employment records if an employee presents a new EAD. Employers should complete a new Form I-9 with the new information and attach it to the old I-9.

“Employers should also attach a memo explaining that the new I-9 and change of information are due to the employee informing the employer and providing proof of work authorization under the president’s Executive Actions. Failure to do so may result in an expensive I-9 paperwork violation. Employers must also update tax and other reporting information for the employee,” Resnick said.

Questions may arise about rehiring an employee terminated due to an ICE audit. “If an employer has had to terminate an employee resulting from an ICE audit, that employer cannot rehire the employee whose application for deferred action is in pending status. Once the employee receives a work authorization document, there should be nothing prohibiting the employer from rehiring that work-authorized individual,” Resnick stated.

The executive actions create an interagency working group to identify policies and procedures that protect workers from exploitation and violations of worker rights.

“Employers should be vigilant in auditing Form I-9s and in reviewing policies and practices to ensure that they are compliant with immigration, employment and labor standards in anticipation of a government audit,” Resnick noted.

Manuel Cunha, second from left, discusses agricultural need for immigration reform with Deputy Secretary Alejandro Mayorkas, Department of Homeland Security, fourth from left. Also pictured are Fresno County Sheriff Margaret Mims, on left, and Homeland Security staff.PHOTO BYNISEI FARMERS LEAGUE

Issues in seasonal labor shortage

Cunha believes that the executive actions will lead to increasing worker shortages, particularly because of the 20-32 age group that will be affected, adding to the already existing shortage. California, with its vast fruit and vegetable fields, tree fruit and wine grape production and extensive processing facilities, far outdistances other states in the need for seasonal workers. He emphasized that there is no labor market from which to draw additional agricultural workers. Although unemployment is a major issue, employers have little success in obtaining seasonal agricultural workers from the unemployed pool.

Cunha cited experiences in an unsuccessful effort to obtain additional agricultural employees in 1998 following the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, known as a welfare-to-work program. Nisei Farmers League coordinated efforts with community colleges, Fresno State College and numerous agencies and organizations to work with the California Employment Development Department in training eligible people for jobs in agriculture. Despite having a pool of 536 people trained through the program, only three people accepted agricultural jobs, and the longest time spent in the field was one day.

Cunha said, “At that time, pay for agricultural workers was $15 an hour. The Employment Development Department informed us they would not be training agriculture or seasonal workers in the future because the work was too hard.”

Several factors are contributing to the labor shortage including increased border control to combat illegal immigration. Beyond that, an increase in education and other opportunities exists in Mexico, keeping some potential workers in their home country. In addition to the 20-34 age group affected, Cunha cited the departure of some older workers from the fields.

“We have people now getting into their 60s who have lived here 25-30 years, including tractor operators, irrigation workers and other well trained people.”

He noted that some of these workers are leaving or will be leaving the labor pool.

“These older workers who are trained and have worked hard for so long are completely left out of the president’s executive actions,” Cunha noted. Even if smaller numbers of seasonal workers may leave agriculture, but the effects will be felt because the number of seasonal agricultural workers is now smaller than following the 1986 legislation.

Mechanization and seasonal labor

University researchers and equipment manufacturers are increasingly developing technology and mechanization that are being implemented in agriculture. Despite increased technology and mechanization, agricultural workers remain a vital need of the agricultural industry. Resnick said, “Certain jobs always require human dexterity and knowing which color and size produce to pick.”