VOICES: Flawed study seeks to justify discrimination against U.S. workers

By Lori Johnson, NC Policy Watch

If there is a dominant myth in the debate over America's treatment of the men and women who harvest our food, it is that U.S. workers won't take these jobs. A recent study by a researcher named Michael Clemens at the Center for Global Development (CGD), a Washington, DC think tank, and released by the Rupert Murdoch backed Partnership for a New American Economy makes just such a claim.

The study, which was picked up by media outlets around the country, concludes erroneously that unemployed Americans aren't taking farmworker jobs and therefore don't require much in the way of legal protections.

Unfortunately, the study's conclusions are demonstrably false and based on faulty information.

Set in North Carolina, the study outright ignores the existence of virtually all the U.S. workers doing farm work in North Carolina. The North Carolina Division of Employment Security (DES) alone reported approximately 9,300 U.S. workers referred to farm jobs in North Carolina during Program Year 2010-2011. The study accounts for only 74.

The central flaw in Clemens' analysis is that it is limited to farms that bring in foreign labor through the federal H-2A visa program and further to farm jobs controlled by the North Carolina Growers' Association (NCGA), a labor broker that charges farms to bring in foreign H-2A labor. NCGA may be the state's largest H-2A employer, but received only one-fifth of job service H-2A referrals last year. Since the NCGA makes money by providing foreign labor, it has every incentive to downplay the availability of domestic labor.

Clemens then compounds his error by falsely presuming that the lack of U.S. workers on H-2A farms is due to worker choice. He even claims that there is "extensive coordination" between NCGA and the state Job Service agency, which is supposed to help connect unemployed workers to jobs.

The reality is some Job Service officials are loathe to refer U.S. farmworkers to H-2A positions, which require much more paperwork. Recently, when an American brought three H-2A job orders to a local Job Service agent, the agent threw the orders in the trash. When another U.S. citizen sought tobacco work, the Job Services official told her "I don’t do H-2A, it's too complicated." Other examples of this kind of treatment abound. Indeed, the CGD study is based on a time period when Job Service offices were operating under a 2007 federal directive not to make H-2A referrals.

Most U.S. workers don't even know these jobs exist. Several Job Service offices don't even post NCGA jobs in the county of actual employment. Instead, the "master job orders," with information on jobs throughout the state, are posted in Moore County where NCGA’s headquarters is located. This means that a man walking into Job Service office who conducts a search for work in his home county doesn't even see the available NCGA positions.

The study presumes higher turnover is the worker's fault. With many tactics in the playbook of how to get rid of the Americans, perhaps turnover was the goal. LANC has represented U.S. workers who claimed that the H-2A workforce was given preferential treatment.

Why not welcome Americans? Well, for starters, a labor broker's entire business model depends on Americans not being available. Each American worker hired means reduced profit.

In addition, foreign H-2A workers are exempt from certain core federal worker protection laws and cannot lawfully work anywhere but the farm to which they are assigned.

Perhaps most importantly, though, is the fact that foreign workers are less likely to complain if not paid or treated properly because they fear losing their visa. Add to this the fact that the H-2A program also allows growers to custom pick a workforce that is male and young and unburdened by local family responsibilities and it's no wonder U.S. workers face such discrimination.

As noted, the study claims there is justification for further reducing protections for U.S. workers. The study concludes that the availability U.S. labor won't respond to increased wages or improved working conditions. But of course this "logic" flies in the face of basic market rules. In any other industry, aside from fully utilizing job services, the solution would be better wages and working conditions.

The truth is there are many workers -- both U.S. citizens and authorized aliens -- that need and want agricultural jobs. And should immigration reform proposals currently before Congress pass, there will be many more legal workers.

The existence of foreign labor and the need to protect U.S. workers are not mutually exclusive. Let's hope the public isn't fooled by this ill-conceived and badly flawed effort to cloak discrimination against American workers.

Lori Johnson is an attorney at the Farmworker Unit of Legal Aid of North Carolina.