This is not meant as legal advice. You should have an attorney that you trust ready to assist if ICE or other federal agencies show up at your place of business. 

To download the document, click here.

The Republican-controlled House has demonstrated a greater willingness to use the Congressional Review Act (CRA) as a means of challenging rules they oppose. This was evident in their successful passage of a resolution opposing the Biden administration's Waters of the United States (WOTUS) rule, which Biden later vetoed. Since CRA resolutions only require a simple majority in the House and Senate, filibustering is not a concern, increasing the chances of the resolution being presented to the President. This could be particularly significant as some rural Democrats may be inclined to support the resolution to address growers' concerns in their district, as was the case with the WOTUS rule.

We encourage all PLNA members to contact their Senators and Representative and express their support for the AEWR rule CRA resolution of disapproval. It will only take a few moments to send an email from this link.

The visas should be available once DHS publishes notice in the Federal Register, expect in mid-April. Workers could be in the U.S. by mi- May, if all goes well.

The returning worker visas will probably be distributed via a lottery among those employers who have made application.

The green industry must reach out to the Biden Administration to pressure the Department of Homeland Security (DHS) and the Department of Labor (DOL) to release the supplemental visas for the second half of the fiscal year.

The landscape industry is facing one of its most critical labor shortages and needs DHS/DOL to authorize the additional supplemental visas for the upcoming season starting April 1st.

In January, the Department of Labor announced that it received 136,555 H-2B visa worker requests for the April 1st second half cap start date. That is more than four times the cap itself (33,000).

U.S. Customs and Immigration Service (USCIS) announced on March 1, 2022, that it has received enough petitions to meet the congressionally mandated H-2B cap for the second half of the FY 2022. Without the supplemental visas, no more H-2B visas can be issued for FY 2022.

The industry must convince DHS/DOL to announce the release of supplemental visas as early as April 1^st for the spring-summer season.

Click here to send an email to DHS and DOL urging them to release the supplemental visas now!

AmericanHort and the National Association of Landscape Professionals (NALP) have been successful at getting discretionary language in both the House and Senate Department of Homeland Security (DHS) appropriations bills to enable the Administration to release additional H-2B visas. Without this language, there will be no supplemental cap for the second half of this year.

Conversations with Congress continue to swirl around getting a returning worker exception into the spending bill, which while a long shot, would be a significant win.

Regardless, AmericanHort and NALP need you to act right now. The deal on the FY 2022 spending package will come together n the next day and as they continue to talk with champions in both chambers, they need you and 10 of your colleagues to send a message now.

Timing is critical here.  Send a message to your Members of Congress today asking them to act immediately to address H-2B cap relief.

Click Here to Make Your Voice Heard

H-2B Cap Hit

The cap on H-2B visas for the second half of the year has been officially hit.  USCIS announced on March 1, 2022, that it has received enough petitions to meet the congressionally mandated H-2B cap for the second half of the fiscal year FY 2022.

February 25, 2022 was the final receipt date for new cap-subject H-2B worker petitions requesting an employment start date on or after April 1, 2022, and before Oct. 1, 2022.In January, the Department of Labor announced that it received 136,555 H-2B visa worker requests for the April 1st second-half cap start date. That is more than four times the cap itself (33,000).

This was inevitable and AmericanHort and NALP met with DHS to urge the prompt release of 44,000 additional visas. Fortunately, the process to do that is currently underway.In addition, Reps Cuellar, Harris, Joyce, Pingree, Keating, and Chabot are circulating a letter in the House (similar to the Senate letter 2 weeks ago) that is asking DHS and DOL to act swiftly. 

Washington, D.C. - Most H-2A visa users are bracing for hefty 2022 wage increases. Though the new wages won’t be official until published in the Federal Register later this month by the Department of Labor (DOL), we know what to expect, since the USDA’s Farm Labor Survey (FLS) results are out.  The regional gross average wages that become the H-2A Adverse Effect Wage Rates (AEWRs) are derived from this survey. The AEWR is typically the applicable minimum wage that must be paid to H-2A workers and U.S. workers in “corresponding employment” who are performing any job tasks in common.

Growers in Delaware, Maryland, New Jersey, and Pennsylvania will take the biggest hit, with a 9.6 percent increase. California’s AEWR will increase over 8 percent; Arizona, New Mexico, North Carolina, and Virginia will go up in excess of 7 percent; and Kentucky, Tennessee, and West Virginia will see an increase of 6.7 percent. The national average increase is above 6%. We summarize the rates here. 

Is there any relief in sight? The only sure way to relief is federal legislation. Provisions of the House-passed Farm Workforce Modernization Act (FWMA) would freeze the AEWR for one year, then limit annual AEWR increases to 3.25% for most states. For 2022, only six states (AL, FL, GA, ID, MT, SC, and WY) will see increases below that cap, meaning that if the FWMA provisions were law, nearly every state would get some needed relief. AmericanHort and coalition allies continue to press Senate negotiators to develop and pass their version of the FWMA.

Meanwhile, further regulatory changes to the AEWR are in the works, but these changes will not be helpful for growers. On December 1, DOL published a proposed rule that would further modify the AEWR methodology by requiring specific prevailing wages for certain job duties, such as truck-driving/hauling and on-farm construction. Such wages, sourced from the Bureau of Labor Statistics’ Occupational Employment Statistics database, may be significantly higher than the traditional AEWRs. If DOL proceeds as proposed, inclusion of such specialized tasks in an H-2A job order would result in the highest applicable wage being required for all workers employed pursuant to the job order, and any US workers in corresponding employment. 

AmericanHort and other ag leaders and legal experts huddled at a recent agricultural labor forum to begin assessing how to best challenge the proposal. We also discussed growing concerns over DOL questioning seasonality and in some cases denying applications for H-2A temporary labor certification over this issue.

Bayer, the parent company of Monsanto, recently announced that it would pull Roundup and other glyphosate products from lawn & garden markets beginning in 2023, replacing glyphosate with other active ingredients. Bayer is also expected to appeal this recent ruling to the Supreme Court.

WASHINGTON, D.C. – U.S. Reps. Henry Cuellar (D-TX), Dave Joyce (R-OH) William Keating (D-MA), Chellie Pingree (D-ME), Steve Chabot (R-OH), and Andy Harris (R-MD) introduced the bipartisan “H-2B Returning Worker Exception Act of 2021” on June 15. The bill would do the following:

• Permanently exempt from the 66,000 annual H-2B cap workers who have been admitted to work in the United States on an H-2B visa during one of the past three fiscal years;
• Require the Departments of Labor (DOL), Homeland Security (DHS), and State to create a single online filing portal that would eliminate the need to express mail paper documents,
• Require DOL to maintain an online jobs registry;
• Include some program integrity measures and increase the maximum penalties that could be levied against employers who willingly and repeatedly violate the program’s requirements.

PLNA and AmericanHort urges all of our members and partners to take the time to reach out to their representatives to express support for this legislation. We are working toward a Senate companion bill.

To take action now, click here: http://takeaction.americanhort.org/landing-pages/h2bvisas.

The 22,000 visas are divided into two allocations, as follows:

• 16,000 visas limited to returning workers, regardless of country of nationality, in other words, those workers who were issued H-2B visas or held H-2B status in fiscal years 2018, 2019, or 2020; and
• 6,000 visas initially reserved for nationals of the Northern Triangle countries (Guatemala, El Salvador, and Honduras) as attested by the petitioner (regardless of whether such nationals are returning workers). However, if all 6,000 visas reserved for nationals of the Northern Triangle countries are not allocated by July 8, 2021, USCIS will announce by July 23, 2021, on its website, that such unused Northern Triangle country visas will be made available to employers regardless of the beneficiary’s country of nationality, subject to the returning worker limitation.

  To qualify for the FY 2021 supplemental cap, eligible landscape contractors must:

• Meet all existing H-2B eligibility requirements, including obtaining an approved temporary labor certification (TLC) from DOL before filing the Form I-129, Petition for Nonimmigrant Worker, with USCIS;
• Submit an attestation affirming, under penalty of perjury, that the employer will likely suffer irreparable harm if it cannot employ the requested H-2B workers, and that it is seeking to employ returning workers only, unless the H-2B worker is a Northern Triangle national and counted towards the 6,000 cap (during such time as when the Northern Triangle cap reservation allocation is applicable); and
• Agree to comply with all applicable labor and employment laws, including health and safety laws pertaining to COVID-19, as well as any rights to time off or paid time off to obtain COVID-19 vaccinations, and notify the workers in a language understood by the worker, as necessary or reasonable, of equal access of nonimmigrants to COVID-19 vaccines and vaccination distribution sites.

   

• No later than 1 business day after filing the petition, place a new job order with the relevant State Workforce Agency (SWA) for at least 15 calendar days;
• Contact the nearest American Job Center serving the geographic area where work will commence and request staff assistance in recruiting qualified U.S. workers;
• Contact the employer’s former U.S. workers, including those the employer furloughed or laid off beginning on January 1, 2019, and until the date the H-2B petition is filed, disclose the terms of the job order and solicit their return to the job;
• Provide written notification of the job opportunity to the bargaining representative for the employer’s employees in the occupation and area of employment, or post notice of the job opportunity at the anticipated worksite if there is no bargaining representative; and
• Hire any qualified U.S. worker who applies or is referred for the job opportunity until the later of either (1) the date on which the last H-2B worker departs for the place of employment, or (2) 30 days after the last date of the SWA job order posting.

Petitioners filing H-2B petitions under the FY 2021 supplemental cap must retain documentation of compliance with the attestation requirements for 3 years from the date the TLC was approved and must provide the documents and records upon the request of DHS or DOL, as well as fully cooperate with any compliance reviews such as audits. Both DHS and DOL intend to conduct a significant number of post-adjudication audits to ascertain compliance with the attestation requirements of this temporary federal rule.

For a copy of the complete rule, click here.

The bill has three main sections or titles:

Title I - Earned Status for Certified Agricultural Workers

This title establishes a program for agricultural workers in the United States to get right with the law and earn legal status through continued agricultural employment and contribution to the U.S. agricultural economy.

Title II.  Improving the H-2A Program

This bill would improve the H-2A visa program to work for all of agriculture.

• It would reduce the time and cost for growers who utilize the program, so they have access to a legal source of labor when they need it.
• It modernizes and applies caps to out-of-control wage growth in the Adverse Effect Wage Rate (AEWR).
• It streamlines the processing of H-2A petitions so growers can get farmworkers when they need them.
• It pilots a portable H-2A visa program to allow employers and farmworkers to respond more dynamically to labor needs.

Title III.  Mandatory E-Verify for the Agricultural Sector

This title would establish a mandatory, nationwide E-Verify system for all agricultural employment. The bill would improve E-Verify for the whole country, but the system would be made mandatory only for the agricultural sector, with a structured phase-in and guaranteed due process for authorized workers who are incorrectly rejected by the system. This phase-in will ensure that agricultural employers are not inadvertently harmed while the new systems the bill puts into place are being developed.

A synopsis of the bill can be downloaded here. The full text of the bill can be downloaded here.

Call Senators Casey and Toomey

Please contact Senators Casey and Toomey and tell them you support the Farm Worker Modernization Act, H.R. 1603. Call the main switchboard (202) 224-3121 and ask to speak to your Senators.

Things could get a little tricky in the interstate realm. The Federal Motor Carrier Safety Administration (FMCSA) decision to include horticulture in the agricultural commodity definition (which allows drivers to use the ag exemption for determining hours-of-service) was only finalized in December. Word travels slowly, and many enforcement officials may not be aware of the change.  We can’t stress enough how important it is to have a copy of the regulations in trucks in case there is a problem.

Washington, D.C. – Rep. Zoe Lofgren (D-CA) announced that it was her intention reintroduce and to bring the Farm Workforce Modernization Act (FWMA) directly to the House floor for a vote before April 1. The FWMA was passed last session by the U.S. House of Representatives with a bipartisan vote of 260-165, but stalled in the Senate.

The bill has three main sections or titles:

Title I - Earned Status for Certified Agricultural Workers

This title establishes a program for agricultural workers in the United States to get right with the law and earn legal status through continued agricultural employment and contribution to the U.S. agricultural economy.

Title II.  Improving the H-2A Program

This bill would improve the H-2A visa program to work for all of agriculture.

• It would reduce the time and cost for growers who utilize the program, so they have access to a legal source of labor when they need it.
• It modernizes and applies caps to out-of-control wage growth in the Adverse Effect Wage Rate (AEWR).
• It streamlines the processing of H-2A petitions so growers can get farmworkers when they need them.
• It pilots a portable H-2A visa program to allow employers and farmworkers to respond more dynamically to labor needs.

Title III.  Mandatory E-Verify for the Agricultural Sector

This title would establish a mandatory, nationwide E-Verify system for all agricultural employment. 

The bill would improve E-Verify for the whole country, but the system would be made mandatory only for the agricultural sector, with a structured phase-in and guaranteed due process for authorized workers who are incorrectly rejected by the system. This phase-in will ensure that agricultural employers are not inadvertently harmed while the new systems the bill puts into place are being developed.

A synopsis of the bill can be downloaded here. The full text of the bill can be downloaded here.

For Loftgren’s plan to work there could be no changes to the bill as it was passed by the House in 2019. Any attempt to change the bill could upset the delicate bipartisan agreement reached on the prior bill. The new bill has not yet been introduced.

What You Can Do

For this to succeed, advocates for the FWMA must take the following actions:

1. Touch base with House Republicans who supported the bill last Congress, to urge their support if the same bill is brought forward. Voting yes last time were Representatives Fitzpatrick, Smucker and Thompson.
2. Reach out to your Democratic representative to urge them to voice their support to House leadership for a FWMA vote on the bill that passed last time.

As directed by the courts, USDA has published the new Farm Labor Survey from which the “Adverse Effect Wage Rates” (AEWRs) are derived. On Tuesday, February 23, the Department of Labor published those wages in the Federal Register. The new wages take effect immediately.

To reflect a bit on the new numbers, first, every state sees an increase this year.  The Delta region (Arkansas, Louisiana, Mississippi) sees the smallest one, just $0.05, for an $11.88 AEWR.  California takes the biggest hit, with a $1.28 increase, to $16.05. The national average increase is $0.63, to $14.62. The nation’s highest AEWR is in Washington and Oregon, at $16.34. Pennsylvania is at $14.05.

The court has not yet determined whether to require back pay at the beginning of the year or even at December 23, the date the court enjoined the rule.

Federal legislative reform is again the only realistic route to addressing the extremely high-cost structure of the H-2A program. AmericanHort is a leader in the federal legislative reform effort. Hope springs eternal.

• Farm workers – any non-citizen farm worker that has worked at least 2,300 hours or 400 workdays in agriculture during the preceding five-year period can apply for permanent residency and then citizenship.
• DREAMers – any non-citizen that was brought to the U.S. as a minor and has satisfied one of several requirements including: ( H.S./GED diploma, higher institution diploma, military services, 3-year gainful employment) may apply for permanent residency and then citizenship.
• Temporary Protected Status – any non-citizen that has been granted Temporary Protection Status and has been in the U.S. continuously since January 1, 2017 can apply for permanent residency and then citizenship.
• Others – any non-citizen can apply for “lawful prospective status” if in the country prior to January 2021 and after 5 years he/she can apply for permanent residency and after two more years citizenship.

Bill Requires Overtime for Ag Workers

The bill would also eliminate the federal Fair Labor Standards Act agricultural exemption from overtime and require overtime payments to farm workers. In addition, it would require the Departments of Homeland Security (DHS) and Labor to establish a commission involving labor, employer, and civil rights organizations to help improve the employment verification process and provide additional U visas for workers who are victims of labor violations. While the bill is fairly comprehensive, it lacks and meaningful reforms to the H-2A and H-2B visa programs.

Bill Unlikely to Move in Present Form

Republicans generally object to the bill, and its viability in its current form is extremely doubtful. Speaker Pelosi has suggested that perhaps the legislation should be taken up by Congress in pieces, potentially setting up early March votes on measures such as the Dream Act, and the Farm Workforce Modernization Act, which was endorsed by hundreds of organizations including AmericanHort when it passed the House in December 2019.

It’s important to know what to do if you suspect unauthorized activity, and actions you can take to deter it.

1.            Stay Alert: be especially watchful of your mail, emails, and lender communications. If anything seems suspicious, or you receive an official notice regarding EIDL and you did not apply for it, report it immediately.

2.            Notify Lenders: inform your lender (whether you participated in the EIDL program or not) so that they are aware of potentially fraudulent loans. Should the lender identify liens that shouldn’t have been filed, the owner will need to report the fraudulent loan to the SBA.

3.            Be Proactive: in addition to notifying lenders of your loan program status mentioned above, business owners should closely monitor personal credit reports. We recommend putting a hold/freeze on your credit to help monitor any authorized activity.

4.            Report Immediately: with the uptick in fraudulent activity, it’s important to report your case immediately to SBA to start an investigation and address the business fraud.

SBA Customer Service Center: 1 (800) 659-2955

Though this has happened at times in the past, and AmericanHort has successfully pushed back, the current situation is concerning. Greenhouse and warmer-climate nursery applications seem to be most in the crosshairs.

What to do in the face of these challenges? H-2A agents such as másLabor, which participated in a recent AmericanHort webinar on visa programs, are advising horticultural employers against making changes to their established dates of need and keeping each application as consistent as possible with prior years' applications.

Further, horticultural employers are advised that H-2A applications should include a clear and detailed statement justifying temporary or seasonal need and providing supporting evidence to substantiate such need.

WASHINGTON, D.C. - On Friday October 6, 2020,  the U.S. Department of Labor (DOL) and Department of Agriculture (USDA) officials announced new rules on H-2A Adverse Effect Wage Rates (AEWR).  The details are in the attached pre-publication copy of the rule, and the attached FAQ.  A few toplines, as we understand the rule, are as follows:

• For job classifications encompassed within the “field and livestock workers, combined” category (the significant majority of workers), the DOL has concluded that the FY2020 AEWRs are sufficient to be extended through FY2022 (essentially, a two-year freeze) followed by the first Employment Cost Index (ECI)-based adjustment to that wage. 

• After that time, for those classifications, the AEWRs will be annually adjusted based on the annual change in the Employment Cost Index-Wages & Salaries, a broad statistical measure of the cost of labor in the overall economy.  The ECI over time has tended to increase annually in the 2.5 to 3 percent range.  For the fiscal year that just ended September 30, the ECI increased 2.5%. 

• For certain job classifications outside of the “field and livestock workers, combined” category (such as construction- and trucking-related, and perhaps supervisors), wages will be determined from the BLS Occupational Employment Statistics database. 

• In those cases where a worker’s job description crosses lines among the categories outside of the broad “field and livestock” category, the highest applicable wage will be assigned.More detail in the attached. 

The big unknowns moving forward include:  Will there be litigation? How efficacious will that litigation be? What will the results of the election mean for the future fate and implementation of the rule? And of course, will Congress step in and do something different?

PLNA Joins Wide Group of Partners

PLNA joined a wide range of groups in opposition to PACTPA, including AmericanHort, who rely on the availability of safe and effective pesticides in diverse settings to produce America’s food and specialty crops, fiber, and biofuel and to protect our public health and infrastructure.

FIFRA is a Strong Regulatory Program

FIFRA has been amended by Congress on several occasions to strengthen the regulatory standard for safety – most recently by the Food Quality Protection Act that added specific protections for infants and children among other things.  FIFRA provides for federal regulation of pesticide distribution, sale, and use and establishes stringent safety standards and oversight. 

All Pesticides Must be Registered Under FIFRA

All pesticides distributed or sold in the United States must be registered by the U.S. Environmental Protection Agency (EPA), and then reregistered every fifteen years.  EPA rigorously reviews scientific and health data for all pesticide products before they are made available for sale and use, and the data must show products work as intended on their target pest and can be used safely.  Label restrictions and instructions are designed to ensure a product is used effectively and safely in a manner that mitigates any identified risks.

FIFRA Requires Consideration of Economic, Social, and Environmental Benefits and Risks

FIFRA already requires EPA to consider economic, social, and environmental benefits and risks, and FQPA requires special considerations for risks to infants and children, when determining if a product can be registered. While reregistration is required to occur at least every fifteen years, it can and often does occur more frequently. 

EPA can initiate a review if scientific data becomes available that questions the safety of a product.  For example, some of the organophosphate products specifically mentioned in H.R. 7940 and S. 4406 have undergone multiple EPA risk assessments since 1996. 

PACTPA Would Gut Decades of Scientific Progress

The PACTPA legislation as introduced would gut decades of federal regulation and scientific progress, undermining the work of EPA’s career scientists in the evaluation of pesticide safety and oversight of pesticide registration and use.  The bills would jeopardize the continued availability and innovation of pesticide products by imposing an unscientific and unbalanced process that could unnecessarily remove pest control options from those who need them to safely grow crops, protect homes and infrastructure, control pathogens and disease vectors, and maintain green spaces such as parks and golf courses.

PLNA Remains Committed to Pesticide Safety

Pesticide manufacturers, pesticide users, and the public all have an interest in ensuring that the pesticide regulatory process imposes stringent regulatory controls on pesticide use based on the principles of sound science, transparency, and broad stakeholder engagement.  PLNA remains committed to protecting human health and the environment while maintaining America’s important food, fiber, and biofuel production and protecting its public health and infrastructure. 

Please Call Your Legislators

Members are urged to call their US. Senators and members of Congress expressing opposition to the PACTPA bills, H.R. 7940 and S. 4406.

Paraquat is commonly sold under the trade name Gramoxone. This product is classified as a Restricted Use Pesticide with the Danger/Poison signal word because of its high level of acute toxicity to humans. The ingestion of this product can be fatal, even in small doses and there is no antidote. Paraquat can also be fatal if inhaled as well as being corrosive to the skin and eyes.

In recent years several fatalities, including children, have been attributed to paraquat. Some of those deaths were the result of individuals drinking paraquat that was illegally stored in beverage containers. To prevent future fatalities along with reducing the exposure to individuals using paraquat, the EPA has taken action that now requires:

·  Restricting the use of paraquat to certified applicators only. Individuals working under the direct supervision of a certified applicator will no longer be able to apply paraquat.

·  A new closed-system on non-bulk paraquat containers so the product can be directly transferred into the application equipment.

·  Applicators to complete a mandatory training program on paraquat use every 3 years when using products with the new label requirements. (Note – Training will not be required for using older products where the label does not list these requirements.)

·  New supplemental warning materials.

·  Label changes that highlight toxicity issues and incorporate statements about use only by a certified applicator and completing an EPA approved training before using.

As of September 30, 2018, manufacturers can no longer release paraquat products into the marketplace without the amended label; however, those products currently in the marketplace can still be sold or used by individuals according to the existing container label until supplies are exhausted.

September 30, 2020 will be the last date on which manufacturers can sell or distribute paraquat products that do not comply with the new closed system requirements for containers. The EPA has made provisions for the continued use of handheld and backpack equipment along with some research exemptions. More information on the new paraquat dichloride training requirements can be found on the EPA’s website and in this document from Penn State Extension.

The landscape contracting industry has one of the highest proportions of unauthorized foreign workers in its workforce at 21% in 2014, according to the Pew Research Center. With the strong economy and low unemployment, many landscape contractors are struggling to find enough employees to do the work they have booked, and may not be as careful as they should be in checking worker documents. This makes landscape contracting a prime target for administration enforcement efforts.

When ICE Comes Calling

An Immigration and Customs Enforcement (ICE) visit to your nursery or landscape contracting business can lead to disruption of your business, loss of your workforce and perhaps civil and criminal penalties for you as an employer. Here is what you can do to minimize your exposure should ICE come knocking at your door.

Before ICE Knocks

Form I-9

·  Be sure that you are using the latest version of the I-9 for new employees. You should be using an I-9 with “Form I-9 07/17/17 N” printed in the lower left-hand corner of each page of the form.

o   This new I-9 must be completed for all new hires starting September 18, 2017.

o   It is not necessary to complete a new I-9 using this form for existing employees with a prior version I-9 on file, except for existing employees whose work authorization is expiring and must be renewed.

o   The storage and retention rules for I-9’s remain the same.

o   You may download the new I-9 form by clicking here. You may also find additional information about completing I-9’s by going to the Department of Homeland Security (DHS) website.

·   Do not keep your I-9 files with your regular employee personnel files. Keep your I-9’s in an orderly file with documentation in another office or room where ICE agents can get to them without disrupting the normal flow of work and where they are unlikely to encounter employees or customers.

·   Have a plan if ICE comes to your business and share it with employees. ICE raids are becoming more frequent in our industry. Employees should understand this and react calmly and politely if they encounter ICE agents. Employees should not run or abruptly leave the premises if ICE shows up.

·   Share information with your employees about their rights should ICE appear at your business.

·   Conduct a self-audit of your I-9 files to be sure they are up-to-date. Better you discover any discrepancies and fix them rather than ICE.

o   Inform your employees that you are conducting the audit and explain why.

o   If you are a small landscape contractor your self-audit should involve all employees to avoid charges of discrimination. Do this at least annually.

o   If you have a larger business where doing an all employee audit would be too burdensome, put in place a written audit plan that uses a non-discriminatory way of selecting groups of files to review, with the goal to get through all the files in a set period. For example, audit those employees with surnames starting with A-M, then in six months doing N-Z. Do not audit only those employee I-9’s with surnames you consider to be Hispanic or use any other ethnic or racial criteria.

·   Find an attorney you trust who knows immigration law and who can be at your place of business or give you advice over the phone if ICE shows up.

No-Match Letters

This spring, the Social Security Administration (SSA) resumed sending out so-called “no-match” letters to employers. The Obama administration suspended sending these letters in 2012. These letters identify employees whose social security numbers provided at the time of employment do not match the data held by SSA.

In these letters, the SSA suggests that employers use a website to verify the information. However, this is not a requirement and not advised. Employers must only check the information provided by the SSA against W-2 and W-4 information and report any errors.

If you get a no-match letter, take the following steps: 

·   Check the reported no-match information with your employee’s personnel records.

·   If the discrepancy cannot be resolved, for example, a typographical error, legal name change, etc., inform the employee of the letter and ask the employee to confirm his or her name and social security number.

·   If the discrepancy still exists, advise the employee, in writing, to contact the SSA to correct and/or update his or her SSA records. Give the employee a reasonable period to resolve it.

·   Submit corrections to the SSA.

·   If the employee does not respond or act to resolve the issue, contact your legal counsel to discuss next steps.

·   Document in writing each step that you have taken to resolve the discrepancy.

·   Most of all, do not ignore a no-match letter. If you do not respond in a proactive way to the no-match letter(s), ICE could use this as evidence of your knowingly employing a person without legal work authorization.

When ICE Knocks

·   There are three ways that ICE might initiate an I-9 review:

o   By issuing a Notice of Inspection (NOI) that compels the production of certain specified documents, that may include I-9’s, supporting documentation and other business documents, such as articles of incorporation. You have three days to produce the requested documents.

o   ICE may show up at your door asking you to voluntarily submit to an inspection. You may agree or not.

o   ICE agents may have a search warrant and that warrant will specify what they are seeking. Ask to see the warrant and read it carefully so that you provide access only to those items specified on the warrant. This is one reason you want to separate the I-9‘s from the regular employee personnel files. Also, check the warrant to make sure that the address is correct. ICE may have walked into your business by mistake.

·   Be sure that you have someone in the office, at all times, trained to respond to an ICE raid. All employees should know who that person is and to direct any questions from ICE agents to that person. That person should have a call list ready to notify your attorney and other company management, as soon as ICE shows up.

·   Educate employees to calmly go about their business if ICE agents show up.

ICE inspections and raids are, unfortunately, becoming more commonplace in our industry. By doing some preparation and having a plan, you can minimize the disruption to your business, potential loss of employees from your workforce, and fines.

Representing Pennsylvania were Stephen Mostardi owner of Mostardi’s Garden Center, Susan McCoy of Garden Media Group, John Collins, President of Nursery Supplies and Gregg Robertson, government relations consultant for the Pennsylvania Landscape & Nursery Association (PLNA). Alan Jones of Manor View Farm in Maryland joined the group for a meeting with Congressman Scott Perry. Alan lives in Pennsylvania.

The group met with the following members of the Pennsylvania Congressional delegation and/or their staff:

• Senator Bob Casey
• Senator Pat Toomey
• Congressman Glenn (GT) Thompson
• Congressman Scott Perry*
• Congressman Dwight Evans*
• Congressman Pat Meehan
• Congressman Lloyd Smucker*
• Congressman Charlie Dent
• Congressman Bill Shuster
• Congressman Mike Kelly
  *meeting with member

The group discussed the following issues with members of the Pennsylvania Congressional delegation:

Labor Shortages

Worsening labor shortages are plaguing our industry, especially our nursery and greenhouse growers, and landscape companies. Lack of sufficient workers is inhibiting business growth at a time when market conditions would otherwise support growth. The whole horticulture industry supply chain is being harmed.

For our grower employers, a legislative solution that works should address four needs:

• Improve or replace the H-2A visa program to reduce employer burdens and streamline the process.

• Enable experienced agricultural workers to attain legal presence and agricultural work authorization through a mechanism separate from the H-2A or replacement visa program.

• Establish a new, flexible visa option that allows workers to move “at will” among registered employers;

• Streamline the employer’s role in ensuring a legally authorized workforce. If E-Verify is made mandatory, it should be done only after these other reforms are achieved. And, E-Verify should replace the cumbersome I-9 process.

For landscape employers, seasonal worker relief is urgently needed. PLNA and AmericanHort support:

•  Immediate cap and regulatory relief through the Fiscal 2018 appropriations process;

• Permanent H-2B reform legislation to address burdensome regulatory requirements, legal uncertainties, and the arbitrary visa cap.

• PLNA and AmericanHort support reforms proposed in the S.792, the Save our Small and Seasonal Businesses Act, and H.R.2004, the Strengthen Employment and Seasonal Opportunities Now (SEASON) Act.

Federal Tax Reform

• Firms in our industry overwhelmingly utilize cash accounting when calculating their tax liabilities. It is an essential element of our industry’s success and taking that tool away from these businesses would have a devastating effect on our growth and sustainability. It could make it difficult to get a loan on an unforeseen tax bill which resulted from a tax policy change and would routinely force firms in our industry to pay taxes on income they haven’t yet received.

• Our industry is heavily reliant on credit financing, both to fund the day-to-day operation of our businesses, but also for expansion and modernization projects. Firms in our industry simply don’t have access to equity financing, so depriving our businesses of the ability to deduct interest expenses would significantly harm my bottom line. We strongly oppose elimination of interest expensing in the tax code.

• Given the increase in land values in recent years, the Estate Tax disproportionately hurts those in the agricultural community as average tax liability is $3.4 million per taxable estate. What’s more, the tax accounted for only 0.6% of all federal revenue in 2015, a drop in the bucket.

• PLNA and AmericanHort strongly support current rules allowing a step-up in the basis of inherited property when it passes to a new owner. Otherwise landowners could be faced with massive capital gains tax assessments when they go to sell an inherited asset.

Research and Innovation

Research and innovation are fundamental to the success and future growth of the horticulture industry. The industry invests in research and innovation through our foundations, such as the Horticultural Research Institute. Federal partnerships are key as well, and are justified by the industry’s economic and jobs contributions as well as the economic, environmental, and human health benefits provided by managed landscapes and “green infrastructure.”

• PLNA and AmericanHort sought support for enhancing the Floriculture and Nursery Research Initiative, a unique partnership involving USDA’s Agricultural Research Service, land grant universities, and the horticulture industry. FNRI is part of the USDA-ARS base budget. The House Appropriations Committee has proposed increasing FNRI by $500,000. We support this increase.

• We also supported three Farm Bill-funded programs that drive innovation in horticulture and other specialty crop industries:

• Specialty Crop Research Initiative, SCRI. (Request an increase of $25 million annually in this program).

• Section 10007 - Plant Pest and Disease Management and Disaster Prevention Program which includes the National Clean Plant Network. (Request continued funding at $75 million in 2019 – 2021, and modest increase to $82.5 million in 2022 and thereafter).

• Specialty Crop Block Grant program (request continued funding).

The Pennsylvania team agreed that we are making progress, albeit slowly. Many now see the real labor shortage we are facing in our industry and were sympathetic to our positions on tax reform.

Republicans continue to hold their 13-5 seat advantage over Democrats in the Pennsylvania Congressional delegation. With Senator Toomey’s (R-Lehigh) victory over challenger Katie McGinty (D-Montgomery), Pennsylvania continues to be represented in the Senate by a Republican and a Democrat, Robert Casey (D-Lackawanna).

Time will tell if this Republican alignment of the federal power structure will result in breaking the Washington gridlock. There remain deep divisions among more traditional Republicans and those that supported Donald Trump. In addition, the Republican advantage in the Senate is just 51 seats, short of the 60 seats required for a filibuster-proof majority.

And as we learned in Pennsylvania, having one party in control of both houses of the legislature and the chief executive office is no guarantee of legislative success. Governor Corbett (R-Allegheny) found it frustratingly difficult to get many of his legislative priorities enacted into law with a Republican-controlled legislature.

Meanwhile, in Pennsylvania

In Pennsylvania, Republicans tightened their hold on both the state House and Senate, with the Senate now holding a veto-proof 34-16 majority. Considering this result, Governor Wolf (D-York) sounded a conciliatory tone in his assessment of the election results, stating his hope to “continue working with Republicans who already held historic majorities to make Pennsylvania stronger.”

On the other hand, Democrats bucked the Republican wave and won all three of the state-wide row offices: Treasurer Joe Torsella, Auditor General Eugene DePasquale and Attorney General Josh Shapiro.

Using the administration’s effective date of December 1, 2016 for the regulations, the Overtime Reform and Enhancement Act cuts the DOL planned increase of the overtime threshold from $47,476 annually ($913 per week) in the regulations to $35,984 ($692 per week). After the initial increase in 2016, the bill will initiate a reasonable three-year phase-in until the DOL’s salary threshold of $47,476 ($913 per week) is met.

The annual increases under the bill are:

· December 1, 2016 -- $35,984 ($692 per week)

· December 1, 2017 -- $39,780 ($765 per week)

· December 1, 2018 -- $43,628 ($839 per week)

· December 1, 2019 -- $47,476 ($913 per week)

The bill also eliminates the automatic three-year increase to the salary threshold established under the new rule. The bill recognizes that future administrations can and should update the overtime rules, as they are required to under the Fair Labor Standards Act, but limits the ability of the DOL to update the rules on autopilot. This will allow stakeholders to comment on proposed changes and require the DOL to ensure the rules are working as intended.

Click here for a copy of the letter.

The PLNA team was accompanied by AmericanHort staff and landscape contractors from Maryland and Delaware.

The team met with Senator Toomey’s staff, Congressman Dent’s staff, Congressman Perry’s staff as well as several Congressmen and Senators from Maryland and Delaware. The legislators held out some hope that the H-2B fixes could be renewed, but underscored the difficulty of doing so in an election year.

Long-Sought Reforms

The provisions that will expire this fall include many of the H2B reforms that the green industry had been seeking for the past several years, plus some more urgent reforms needed in light of the recently issued H-2B regulations. The provisions include:

• Exempts H-2B returning workers from the 66,000 annual cap;

• Addresses H-2B wages and allow the use of private wage surveys, which were not allowed under the 2015 final H-2B wage rule;

• Clearly defines seasonal as 10 months, as opposed to the 9 months in the new interim final H-2B comprehensive rule;

• Prevents DOL from implementing the provisions of the interim final rule (IFR) related to corresponding employment and the three-quarters guarantee; and

• Prevents DOL from implementing the new burdensome DOL enforcement scheme in the IFR related to audits and Certifying Officer (CO) assisted recruitment.

But even with the returning worked exemption, the H-2B cap was hit in March, leaving many landscape contractors unable to get the workers they desperately needed to start the spring season.

Running out the Clock?

The short time frame in which these reforms have life has led to foot-dragging on the part of the U.S. Department of Labor (DOL) and Department of Homeland Security (DHS) in implementing the new provisions. They are trying to run out the clock until September 30. Processing delays, which in a normal year are widespread, this year have been the worst anyone has experienced.

Let Your Voice Be Heard

The goal of these visits was to crank up the pressure on Congress to extend permanently the reforms they passed last December and turn up the heat on the DOL and DHS to implement them in good faith.

This will not happen easily. We need your help! Please go to the AmericanHort website and let your voice be heard!