DRAFT (Written Record) FOR CONSIDERATION BY MR. KEITH ATKINSON---for
October 4, 2007

Good morning Mr. Chairman, Ranking Member Goodlatte, and Other Members
of the Committee:

My name is Keith Atkinson. Along with my wife and four children, two of
whom are in college, two to enter college soon, I own and operate a
family farm in Southside Virginia. Were it not for the H-2A guest worker
program, broken, costly, and perilously litigation-prone as it is, we
would be unable to farm at all.

I also serve as President of the Virginia Agricultural Growers
Association (VAGA), an association of Southside Virginia family farmers
formed nearly 30 years ago to share the expenses of completing legally
required procedures to obtain temporary foreign workers. In our rural
areas, we already could not locate enough U.S. workers---local workers
or Americans from other areas---who were willing to work during our peak
periods when we could not handle the intense labor needs of our farms
with our families and a handful of year-round employees.

When George Vanderbilt decided to build the grandest home ever built in
America---The Biltmore---he needed guest workers from abroad. When
Franklin Roosevelt learned there were not enough able workers left in
America to produce the food we needed to feed our people at home and
troops during World War II, he started what has become the critically
needed, but very cumbersome, very burdensome guest worker program that
today is known as the H-2A Program. I doubt either could have envisioned
the quagmire that American agriculture and small family farms face with
the red tape required in today's H-2A Program.

We still need a guest worker program for agriculture, and I therefore
urge the passage of the Temporary Agricultural Labor Reform Act of 2007,
H.R. Bill 1792, sponsored by Congressman Goodlatte and others whose
efforts are much appreciated.

Once a farmer goes out of business, our experience is that our local and
national economies and our agricultural production capability have lost
that farm capacity forever. Compared with 1998 when our Association had
579 farm members, today we have fewer than 1/2---just 270 farms. One of
the most frequently cited reasons our region's farmers go out of
business is that they simply cannot continue under the burdens of the
current H-2A Program---among them the substantially higher hourly wage
rates we must pay than prevail in our rural areas, even for skilled
year-round jobs. For example, in my locale, skilled, year-round welders
make \$10.00 an hour, whereas I must pay \$9.02. (Incidentally, this
amount is more than ten (10) times the wage rate these H-2A workers
could earn in Mexico.) Moreover, I know one day next February or March,
the Department of Labor (DOL) will publish an immediately applicable new
minimum wage---what's called an adverse effect wage rate or AEWR---that
may be substantially higher. My farm's AEWR minimum wage went from
\$8.51 to \$9.02 effective February 21, 2007, whereas the Fair Labor
Standards Act (FLSA) minimum wage for the rest of America went from
\$5.15 to \$5.85 in July---that's a difference of \$3.17 an hour.

I know you will understand the effect of percentage wage increases over
time. The AEWR base and methodology for increases were established years
ago. Over time, as the AEWR has been increased simply based on
percentage increases in overall agricultural pay, the DOLLAR difference
between actual prevailing wages and the AEWR has increased
substantially. Just one of the important improvements H.R. 1792 makes is
to tie H-2A wage rates to actual prevailing wage rates in similar jobs.

On top of these wages, we also must provide free worker housing and
utilities, bedding, and kitchen equipment, free transportation to and
from work every day and to the grocery store, and many other employment
benefits that no other American employers are required by law to provide
their employees.

Besides these terms and conditions that come from regulations adopted by
the United States Department of Labor, there are additional obligations
that Courts have imposed that we believe are not required under the
FLSA. One such requirement is that at the time workers are paid their
wages for their first week of employment, they must be reimbursed their
incoming transportation costs from their homes in Mexico, to the extent
those costs would otherwise cut into the workers' FLSA minimum wages for
the hours they worked that first week. This requirement has been imposed
even though the H-2A regulations expressly provide that such expenses
are not owed unless and until workers complete 1/2 of the period they
have agreed to work for an employer. This so-called
[Arriaga]{.underline} requirement, named for the case holding that such
an FLSA requirement exists, has not generally been applied yet outside
agriculture or even outside the temporary worker program, but there is
no principled reason---no applicable exemption or special clause---to
treat agriculture or the temporary worker program differently under the
FLSA. I am puzzled as to why farm operations are held to different
standards than our own government is held under its official personnel
policies.

You may be interested to know that despite Congressional adoption of the
FLSA requirements to employees of the Congress, the current Internet
advertisements for applicants for jobs with the United States House of
Representatives plainly state:

"Transportation and all related travel expenses associated with the
interview and hiring process must be paid by the applicant. **Moving and
related relocation expenses are not available."** See
<http://www.house.gov/cao-hr/welcome.shtml> (copy attached).

Indeed, the Federal Office of Personnel Management authorizes agencies
of the United States government to offer relocation payment assistance
to employees *only* in limited circumstances. When such payments *are*
authorized, they are designated as a bonus, not as part of the regular
wage. These extra payments to defray relocation expenses are not owed as
a right under the FLSA at the same time an employee's wages are paid for
the first workweek but only after the employee has entered "into a
written service agreement to complete a period of employment with the
agency, not longer than 4 years." See 5 U.S.C. § 5753 (c)(1) and § 5753
generally and 5 C.F.R. Parts 572 and 575. See also, www.usajobs.gov.

I submit to you that these stated---written---policies of the House of
Representatives are in compliance with the FLSA and with the employment
policies of the vast majority of American employers who, like the House
of Representatives, have no legal obligation to reimburse any relocation
travel expenses.

In numerous judicial proceedings under the predecessor H-2 Program, the
Courts ruled that DOL could not require farmers to advance guest H-2
workers the costs of transportation from their homes to their U.S.
employers but could only enforce an existing requirement that farmers
reimburse relocation expenses once workers had worked 50% of the period
they had agreed to work. Growers had shown the Courts data that
demonstrate what we are experiencing---too many workers collect
transportation reimbursement and disappear, thereby adding to the ranks
of illegal workers. I will be glad to provide the case decisions, and if
you study these cases, you will see that nobody ever argued that the
FLSA requires first paycheck transportation reimbursement to avoid a
minimum wage violation.

H.R. 1792 also corrects this [Arriaga]{.underline} problem.

This matter is of critical importance to all employers. Growers have
been attempting to obtain an authoritative Opinion Letter from the
Administrator of DOL's Wage and Hour Division on the transportation
reimbursement and related issues since 1992. We understand there have
been other such requests in the last 15 years. A detailed analysis of
the issues and law and a renewed request was submitted since last year.
Besides favorable action on H.R. 1792, we also ask that this Committee
use its good offices to encourage the Administrator to complete any
necessary "clearance review" process on these issues that may include
consultation with the Office of the Solicitor of Labor and issue an
Opinion. Even if there are internal delays outside the Office of the
Administrator, at some point the Administrator should fulfill the
interpretative responsibility resident in that Office under statute and
issue a formal Opinion. Without fulfillment of the Administrator's
responsibility and passage of H.R. 1792, which recognizes that jobs
equally benefit workers and employers, our government---including the
Congress---growers, and in fact all employers are in jeopardy of a court
ruling that their policies of not paying employees' relocation expenses
are unlawful.

In addition to urging adoption of H.R. 1792, I respectfully urge that
this Committee restate its intent to retain a key requirement of the
existing H-2A program: that the Department of Labor *must* consult with
the United States Department of Agriculture and the United States
Attorney General before issuing regulations to implement the H-2A
Program. See Section 301(e) of Pub.L. 99-603, as amended, Pub.L.
100-525, Section 2(l)(4), October 24, 1988, 102 Stat. 2612. Meaningful
consultation, of course, requires more than a delivered copy of what
will be published in the Federal Register the next day; meaningful
consultation requires a willingness to explain why a provision or change
is necessary or desirable and to consider alternatives, among many other
points.

We also ask that this Committee express its concerns about the failure
of the DOL to fulfill applicable statutory mandates. First, it must
consult with the USDA and the Attorney General. Second, in accordance
with the Administrative Procedure Act, it must and publish proposed new
regulations and material changes in interpretations of old regulations
in the Federal Register if it moves forward with what its representative
announced to Florida farmers last week would be new requirements in a
number of areas under the H-2A Program.

Just one example is that in the future, DOL will take the position that
a farmer has waived his right to enforce a minimum production work
standard if it allows a worker who has not met the standard, but who is
trying hard and getting better, to continue working.

Another example: DOL will take the position that a friend or retiree who
is willing to help out in an H-2A certified job one day a week or a few
hours on Saturday must be treated as a full-time worker in all respects:
that means that he and I would have to pretend that I had offered him
work so many hours a day every day and that he had declined those hours;
I would have to keep meticulous records of hours of work offered above
and up to the guaranteed workday and undertake many other obligations as
though he were a full-time worker OR ELSE, DOL will take the position
that I owe that part-time---when he wants to or is willing to
work---friend wages for 3/4 of the work hours I have guaranteed H-2A and
U.S. workers I have hired to work full-time for the season.

There is simply not time to explain in detail the very complex rules we
already operate under that no other employers must meet. H.R. 1792
addresses some of these unnecessary rules that are unfair. Still, all of
the work of the Congress can be subverted by such new interpretations
and new rules as we understand were just announced last week in Florida.
While those of us who had friends who were at the meeting may be able to
learn what our friends heard and can tell us, that's just no way to
announce public policy.

As small farmers we cannot afford lawyers to help us resist---we are
virtually defenseless against---every non-meritorious lawsuit and
Wage-Hour claim and every unfair, even unlawful, change in
interpretation by a Department of Labor official who may not know how
particular rules have been interpreted and applied---in many cases for
decades. We therefore must turn to our elected representatives for help.

The question that the Committee needs to ask and the decision it needs
to make is whether or not we are going to have labor intense, production
agriculture in America in the future. If we are to be able to do so, we
need passage of H.R. 1792 as a step in the right direction. If not, then
the Committee needs to tell us so we small farmers can look for other
work and hope that we will be able to afford and find safe, imported
food.

There is another important part of H.R. 1792 that I believe would
contribute to good immigration policy. About 75% of the workers our
Association's members employ have been coming here for 10 years or more
and returning home to Mexico every year. They are not part of an illegal
workforce. These workers use the money they earn here to build homes in
Mexico and to educate their children.

Finally, even to achieve these high objectives, if these workers weren't
being treated fairly in connection with their work, no reasonable person
could think they would be coming here 10 and more years. A better H-2A
Program is important to all of these workers as well as to farmers like
me, who need it to be able to continue farming, as well as to our
communities and our nation. Thank you very much for your attention.