If the Employment Security Department (ESD) hoped a panel studying H-2A visas would support their request for additional enforcement money, their final report will disappoint them. 

The panel created to explore the potential need for a state-only H-2A administration fee convened a couple of weeks ago to vote on the final report for the governor’s office, more than one month late.

The draft final report is a head-scratcher for anyone interested in opportunities for agricultural workers and their employers. In the first versions of SB5438, the bill designed to change enforcement of H-2A visas in Washington state, the ESD asked for additional funds to administer the H-2A program in Washington state. The passed bill established the committee instead.

The panel has been meeting either in person or remotely since August of last year. The purpose of the panel is to clarify the role of the ESD in the H-2A temporary agricultural program. The committee is comprised of four representatives of the farmworker community and four representatives of the agricultural employer community and includes non-voting members from the ESD and the departments of Labor & Industries, Health, and Agriculture.

The panel’s report has some glaring problems and does not yet clarify why the ESD needs additional funds to operate the H-2A program beyond the $29,322,898 in federal funding it already receives. Among the issues highlighted in the report are a lack of expense tracking by the ESD.

For example, on page 27 of the draft report, the ESD notes they do not track the difference in costs in administering the H-2A and H-2B programs, nor can they provide an estimate of their budget shortfall. It reads, “ESD intends to evaluate the existing charging structure to determine how to more accurately track and report costs associated with H-2A activities.” 

If the ESD identified the need for additional funds, how did the department do that? Even if there was no firm budget shortfall to point to in 2019, why did the ESD staff tasked with H-2A administration not work to identify that shortfall during the course of 2020 and report it to the committee?

A budget crisis is something that should be easily identified. Furthermore, the H-2A program is not an inexpensive program for agricultural employers. It is estimated that H-2A applications cost $1,500 per worker, before they are hired. Even a modest increase of that cost, has the potential to shift the employment landscape in our state. 

In addition to not being able to put a dollar amount on their need, the ESD claims they are mandated to conduct an annual prevailing wage survey – asking employees at various farms around the state about their wage rates to then report to the U.S. Department of Labor. Employment security staff have been asked to produce the mandate for the committee to review but have not done so. The ESD staff provided a list of several mandates regarding administration of the H-2A program and its wage structure after a public records request was submitted.

Among the details in ET Handbook No. 385, it notes state agencies are tasked with conducting an annual wage survey to inform the Adverse Effect Wage Rate (AEWR) setting for the following year. It has been noted by members of the H-2A panel that several states do not provide wage data to the federal government, yet they receive more grant funding than Washington state does. 

If the ESD wants to collect wage data, there are certainly less expensive ways to do it. According to the report, the annual wage survey costs approximately $600,000, which includes in-person interviews of employers and employees. The guidance also notes that surveys can be conducted via phone or mail, if need be, and approximately 90 percent of the data collected should be from employers with the remaining 10 percent coming from employees.

In the era of social distancing, the ESD could simply request that agricultural employers report their payroll output for the year and the number of employees they had and then do the math. To get a representative sample of all farms and ranches in Washington state, the ESD would need approximately 2,200 responses. That response number would be significantly decreased if only farms and ranches with employees were surveyed.

There is also a large discrepancy between the number of H-2A workers the ESD uses to justify the expense and the total from the panel’s report. According to the final report draft, there were “approximately 18,178 workers in Washington as of September 15, 2020,” a far cry from the more than 30,000 workers ESD claimed to be in charge of tracking in 2020. 

The ESD could solve several questions regarding the H-2A program with one action: tracking all workers in and out of the state. Not only would ESD then have a better picture of the actual H-2A workforce in Washington, they would also know how many people walked off the job to become illegal immigrants, how many decided to end their contracts early and why, and an exact number to justify their need for additional funds.

The report does not justify the request for additional funding because it fails to identify where the loss of dollars is coming from. If the ESD wants to begin charging H-2A employers an additional fee for use of the program, the department needs to clearly outline why that funding is necessary and where the additional funds will be applied. The H-2A program is vital to the employees who are hired through it and the employers who need those employees to continue the business of food production. Until the ESD has specific evidence to show it’s need, the report should close the book on the conversation.