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[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]

 
    THE PINEROS: REVIEWING THE WELFARE OF WORKERS ON FEDERAL LANDS

=======================================================================

                           OVERSIGHT HEARING

                               before the

                SUBCOMMITTEE ON NATIONAL PARKS, FORESTS
                            AND PUBLIC LANDS

                                 of the

                     COMMITTEE ON NATURAL RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                               __________

                      Tuesday, September 16, 2008

                               __________

                           Serial No. 110-85

                               __________

       Printed for the use of the Committee on Natural Resources

  Available via the World Wide Web: http://www.gpoaccess.gov/congress/
                               index.html
                                   or
         Committee address: http://resourcescommittee.house.gov

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Washington, DC 20402-0001

                     COMMITTEE ON NATURAL RESOURCES

              NICK J. RAHALL, II, West Virginia, Chairman
              DON YOUNG, Alaska, Ranking Republican Member

Dale E. Kildee, Michigan             Jim Saxton, New Jersey
Eni F.H. Faleomavaega, American      Elton Gallegly, California
    Samoa                            John J. Duncan, Jr., Tennessee
Neil Abercrombie, Hawaii             Wayne T. Gilchrest, Maryland
Solomon P. Ortiz, Texas              Chris Cannon, Utah
Frank Pallone, Jr., New Jersey       Thomas G. Tancredo, Colorado
Donna M. Christensen, Virgin         Jeff Flake, Arizona
    Islands                          Stevan Pearce, New Mexico
Grace F. Napolitano, California      Henry E. Brown, Jr., South 
Rush D. Holt, New Jersey                 Carolina
Raul M. Grijalva, Arizona            Luis G. Fortuno, Puerto Rico
Madeleine Z. Bordallo, Guam          Cathy McMorris Rodgers, Washington
Jim Costa, California                Louie Gohmert, Texas
Dan Boren, Oklahoma                  Tom Cole, Oklahoma
John P. Sarbanes, Maryland           Rob Bishop, Utah
George Miller, California            Bill Shuster, Pennsylvania
Edward J. Markey, Massachusetts      Bill Sali, Idaho
Peter A. DeFazio, Oregon             Doug Lamborn, Colorado
Maurice D. Hinchey, New York         Mary Fallin, Oklahoma
Patrick J. Kennedy, Rhode Island     Adrian Smith, Nebraska
Ron Kind, Wisconsin                  Robert J. Wittman, Virginia
Lois Capps, California               Steve Scalise, Louisiana
Jay Inslee, Washington
Mark Udall, Colorado
Joe Baca, California
Hilda L. Solis, California
Stephanie Herseth Sandlin, South 
    Dakota
Heath Shuler, North Carolina

                     James H. Zoia, Chief of Staff
                       Rick Healy, Chief Counsel
            Christopher N. Fluhr, Republican Staff Director
                 Lisa Pittman, Republican Chief Counsel
                                 ------                                

        SUBCOMMITTEE ON NATIONAL PARKS, FORESTS AND PUBLIC LANDS

                  RAUL M. GRIJALVA, Arizona, Chairman
              ROB BISHOP, Utah, Ranking Republican Member

 Dale E. Kildee, Michigan            John J. Duncan, Jr., Tennessee
Neil Abercrombie, Hawaii             Chris Cannon, Utah
Donna M. Christensen, Virgin         Thomas G. Tancredo, Colorado
    Islands                          Jeff Flake, Arizona
Rush D. Holt, New Jersey             Stevan Pearce, New Mexico
Dan Boren, Oklahoma                  Henry E. Brown, Jr., South 
John P. Sarbanes, Maryland               Carolina
Peter A. DeFazio, Oregon             Louie Gohmert, Texas
Maurice D. Hinchey, New York         Tom Cole, Oklahoma
Ron Kind, Wisconsin                  Bill Sali, Idaho
Lois Capps, California               Doug Lamborn, Colorado
Jay Inslee, Washington               Robert J. Wittman, Virginia
Mark Udall, Colorado                 Don Young, Alaska, ex officio
Stephanie Herseth Sandlin, South 
    Dakota
Heath Shuler, North Carolina
Nick J. Rahall, II, West Virginia, 
    ex officio

                                CONTENTS

                              ----------                              
                                                                   Page

Hearing held on Tuesday, September 16, 2008......................     1

Statement of Members:

    Grijalva, Hon. Raul M., a Representative in Congress from the 
      State of Arizona...........................................     1
        Prepared statement of....................................     2

Statement of Witnesses:

    Dale, D. Michael, Executive Director, Northwest Workers' 
      Justice Project............................................    22
        Prepared statement of....................................    24
    Kashdan, Hank, Deputy Chief of Business Operations, Forest 
      Service, U.S. Department of Agriculture....................     3
        Prepared statement of....................................     5
    Moseley, Cassandra, Ph.D., Ecosystem Workforce Program, 
      Institute for a Sustainable Environment, University of 
      Oregon.....................................................    27
        Prepared statement of....................................    29
    Passantino, Alexander J., Acting Administrator, Wage and Hour 
      Division, Employment Standards Administration, U.S. 
      Department of Labor........................................     7
        Prepared statement of....................................    10
    Smith, Denise, Executive Director, Alliance of Forest Workers 
      and Harvesters.............................................    33
        Prepared statement of....................................    35

OVERSIGHT HEARING ON ``THE PINEROS: REVIEWING THE WELFARE OF WORKERS ON 
                            FEDERAL LANDS.''

                              ----------                              

                      Tuesday, September 16, 2008

                     U.S. House of Representatives

        Subcommittee on National Parks, Forests and Public Lands

                     Committee on Natural Resources

                            Washington, D.C.

                              ----------                              

    The Subcommittee met, pursuant to call, at 10:01 a.m. in 
Room 1334, Longworth House Office Building, The Honorable Raul 
M. Grijalva, [Chairman of the Subcommittee] presiding.
    Present: Representatives Grijalva and Lamborn.

 STATEMENT OF THE HONORABLE RAUL M. GRIJALVA, A REPRESENTATIVE 
             IN CONGRESS FROM THE STATE OF ARIZONA

    Mr. Grijalva. Thank you very much. The Subcommittee will 
come to order. The subject of this hearing is ``The Pineros: 
Reviewing the Welfare of Workers on Federal Lands.'' Thank you 
very much, and let me thank the panelists in advance for their 
attendance and for their testimony and also indicate that your 
statements in full will be made part of the record.
    If there is extraneous material as well that you would like 
to leave, that also will be made part of the record. Thank you. 
Today, the Subcommittee will be conducting an oversight hearing 
to review the role of the Forest Service and the Department of 
Labor in protecting the health and welfare of workers in our 
national forest system lands.
    The topic is very important to me and a number of members 
of this Committee. Several of our colleagues asked the former 
chairman of the full committee to conduct an oversight hearing 
on this topic last Congress, but we received no response. I am 
pleased that we are finally taking a look at this important 
topic, and thank you and my colleagues and our witnesses for 
joining us today.
    The name ``pineros'' translates literally to ``men of the 
pines'' and refers generally to workers employed to perform 
important and often dangerous reforestation and thinning work 
in our national forest system lands. In many cases, pineros are 
working in the United States through the H-2B guest worker 
program.
    The series in the Sacramento Bee in 2005 painted an 
alarming picture of the conditions facing pineros while 
performing this important work in our national forests. The 
series found documented employer exploitation, government 
neglect, crowded work vans in which workers died in car 
accidents, and a lack of adequate training, protective gear and 
medical supplies--all this despite the fact that these workers 
are on Federal land fulfilling Federal responsibilities.
    Some have described the work done by pineros as one of the 
most hazardous occupations in the United States and one pinero 
was sadly quoted as saying it was like slavery. The Forest 
Service responded in early 2006 by releasing new contract 
requirements intended to address worker safety.
    Yet, the Forest Service has never released an assessment of 
these efforts, making it difficult to determine what impact, if 
any, these new requirements have had on worker safety. Sadly, 
many have told us that nothing has changed. I look forward to 
receiving detailed information from the Forest Service today on 
the extent of their increased safety inspections, what the 
results of such inspections have been, and what more the agency 
needs to be doing.
    This May, the Department of Labor submitted a report to 
Congress on enforcement efforts of contractors that employ 
pineros. The report found a huge proportion of contractors in 
violation of labor and safety laws. Of the 40 contractors 
investigated, over 80 percent of the contractors were found in 
violation. This is truly alarming.
    My strong concern here is that, rather than a few bad 
apples, we are dealing with a systemic problem. We are eager to 
learn from the Department what steps are being taken to punish 
existing violations and to prevent them from occurring in the 
future. I note the Department of Labor has proposed drastic 
changes to H-2A, temporary foreign agricultural worker program.
    The proposal is to lower the wage rates and remove 
government oversight from the H-2A guest worker program, and 
that raises a number of concerns. Civil rights activist Cesar 
Chavez was once quoted as saying, ``Our lives are dependent, 
for sustenance, on the sweat and sacrifice of campesinos.'' I 
believe the same logic can be applied to pineros.
    Pineros perform crucial work on the national forests, 
planting trees for reforestation and thinning our forests to 
prevent fire. The health of our national forests is dependent 
on the sweat and sacrifice of the pineros. Ultimately, I 
believe we have a responsibility to ensure that pineros are 
treated justly and fairly for the work that they do.
    I look forward to hearing from our witnesses today. I would 
now at this point like to turn to Ranking Member Lamborn for 
any opening statements he may have. Sir?
    [The prepared statement of Mr. Grijalva follows:]

        Statement of The Honorable Raul M. Grijalva, Chairman, 
        Subcommittee on National Parks, Forests and Public Lands

    Today our Subcommittee will be conducting an oversight hearing to 
review the role of the Forest Service and the Department of Labor in 
protecting the health and welfare of workers on National Forest System 
lands.
    This topic is very important to me and a number of Members of this 
Committee. Several of our colleagues asked former Chairman Pombo to 
conduct an oversight hearing on this topic last Congress but received 
no response. I am pleased that we are finally taking a look at this 
important topic, and thank my colleagues and our witnesses for joining 
us today.
    The name ``pineros'' translates literally to ``men of the pines'' 
and refers generally to workers employed to perform important and often 
dangerous reforestation and thinning work on our National Forest System 
lands. In many cases, pineros are working in the United States through 
the H-2B guest worker program.
    A series in the Sacramento Bee in 2005 painted an alarming picture 
of the conditions facing pineros while performing this important work 
on our National Forests. The series found documented employer 
exploitation, government neglect, crowded work vans in which workers 
died in car accidents, and a lack adequate training, protective gear 
and medical supplies. All this, despite the fact that these workers are 
on Federal land fulfilling Federal responsibilities.
    Some have described the work done by pineros as one of the most 
hazardous occupations in the United States. And one pinero was sadly 
quoted as saying, ``it was like slavery.''
    The Forest Service responded in early 2006 by releasing new 
contract requirements intended to address worker safety. Yet, the 
Forest Service has never released an assessment of these efforts, 
making it difficult to determine what impact, if any, these new 
requirements have had on worker safety. Sadly, many have told us that 
nothing has changed. I look forward to receiving detailed information 
from the Forest Service today on the extent of their increased safety 
inspections, what the results of such inspections have been, and what 
more the Agency needs to be doing.
    This May, the Department of Labor submitted a report to Congress on 
enforcement efforts of contractors that employ pineros. That report 
found a huge proportion of contractors in violation of labor and safety 
laws. Of the 40 contractors investigated, over 80 percent of the 
contractors were found in violation. This is alarming. My strong 
concern here is that rather than a few bad apples, we are dealing with 
a systemic problem. We are eager to learn from the Department what 
steps are being taken to punish existing violations and to prevent them 
from occurring in the future.
    I note that the Department of Labor has proposed drastic changes to 
the H-2A temporary foreign agricultural worker program; the proposal to 
lower the wage rates and remove government oversight from the H-2A 
guestworker program raises a number of concerns.
    Civil rights activist Cesar Chavez was once quoted as saying ``Our 
very lives are dependent, for sustenance, on the sweat and sacrifice of 
the campesinos.'' I believe this same logic can be applied to the 
pineros. Pineros perform crucial work on our National Forests, planting 
trees for reforestation and thinning our forests to prevent 
catastrophic fire. The health of our National Forests is dependent on 
the sweat and sacrifice of the pineros. And ultimately, I believe that 
we have a responsibility to ensure that pineros are treated justly and 
fairly for the work they do.
    I look forward to hearing from our witnesses today. I would now 
like to turn to Ranking Member Bishop for any opening statement he may 
have.
                                 ______
                                 
    Mr. Lamborn. Thank you, Mr. Chairman, but I will pass at 
this point. Thank you for having this hearing.
    Mr. Grijalva. Thank you, Sir. Let me begin with our first 
panel. Gentlemen, thank you very much for being here. Mr. Hank 
Kashdan, Deputy Chief of Business Operations, Forest Service. 
Sir, your comments? Thank you.

          STATEMENT OF HANK KASHDAN, DEPUTY CHIEF OF 
              BUSINESS OPERATIONS, FOREST SERVICE

    Mr. Kashdan. I appreciate the opportunity to appear before 
the Subcommittee today to talk about the welfare of forest 
workers on Federal lands. Let me be brief in my opening 
comments that summarize my testimony. Recognizing that the 
subject of this hearing is on those pineros who are 
predominantly here under the H-2B guest worker program, let me 
just mention a little bit of information specific to that H-2B 
program.
    We estimate that we have about 15,000 to 20,000 workers 
here in a given year that are involved as employees of 
contractors working on national forest land. Under direction of 
our former chief, Dale Bosworth, we bring to our contract 
administration of these contracts three key values that we 
administer our contracts under: respectful treatment, safe and 
healthy work conditions, and fair wages and compensation, as 
required in the contract.
    The bottom line of those values is that that is what we 
also expect and how we treat our own employees working for the 
Forest Service. It is a very high calling for us to administer 
with those values.
    With that in mind, our posture relative to contract 
administration is that primary jurisdiction for H-2B workers 
resides with the Department of Homeland Security through its 
citizenship and immigration service and with the Department of 
Labor through employment and training administration, wage and 
hour division and occupational safety and health 
administration.
    As contract administrators, we are usually the first 
interface and first contact with employees of contractors on 
national forest land. Our role is not to replace that role of 
the Department of Labor, state agencies or the Department of 
Homeland Security in the administration of laws within their 
jurisdiction. Our role is coordination with those agencies, 
oversight and reporting based on our observations in 
administering these contracts.
    As an example of that, annually with the Department of 
Homeland Security we provide a list of relocation service 
contracts across the national forest system and we provide the 
Department of Labor with access to our contractor database. 
This exchange of information allows the Department of Labor and 
Department of Homeland Security to prioritize and schedule site 
visits and inspections to ensure oversight of reforestation 
contracts.
    In addition to contract administration we are committed to 
working with interested parties, advocate groups, who operate 
on behalf of Los Pineros. As an example, in January of 2007 we 
participated in a forum at the University of Oregon on working 
conditions for forest workers.
    At that forum, Under Secretary Mark Gray and Director of 
Acquisitions Management Ron Hooper, who is with me today, 
presented changes that we were making in service contracts that 
provided for reporting of suspected violations of worker 
protection laws or immigration laws to other agencies. This 
type of exchange is an important part of our commitment to 
improve working conditions and regulatory compliance.
    Now, specific to contract enforcement, to date there have 
been no debarments associated with any of the issues that I 
mentioned earlier. However, we have reported violations of 
wages, safety, health and H-2B status. We have had some 
undocumented workers apprehended off forest service contracts 
and as recently as the spring of this year we have terminated a 
contract due to the presence of undocumented workers.
    Our director of acquisition management has set specific 
requirements to sample a portion of reforestation contracts 
each year and that requirement is then transferred on from 
regional directors of acquisition management.
    Our contracts have been recently modified to include 
specific requirements that pertain to the Fair Labor Standards 
Act, Migrant and Seasonal Agricultural Worker Protection Act, 
McNamara-O'Hara Service Contract Act, and Occupational Safety 
and Health Administration Act. The determination after our 
reporting these violations rests with the Department of Labor 
and Department of Homeland Security.
    We have also improved our training. The Missoula Technology 
Development Center has developed a comprehensive online 
training module on safety and health for contracting officers, 
representatives and inspectors. I have a copy of that here. 
This module provides the latest health and safety requirements. 
It is available also to advocate groups, contractors and other 
members of the public.
    So in conclusion, Mr. Chairman, the Forest Service will 
continue to work closely with the Department of Labor and the 
Department of Homeland Security, we will continue to dialogue 
with interested groups and we will hold true to some of those 
key values that we stated at the beginning: respectful 
treatment, safe and healthy working conditions, fair wages and 
compensation.
    That concludes my comments, Mr. Chairman. I would be happy 
to answer any questions when you are ready.
    Mr. Grijalva. Thank you very much, Sir.
    [The prepared statement of Mr. Kashdan follows:]

    Statement of Hank Kashdan, Deputy Chief of Business Operations, 
             Forest Service, U.S. Department of Agriculture

    Mr. Chairman and Members of the Subcommittee thank you for the 
opportunity to testify before you today on the Forest Service's role in 
ensuring the health and safety of Los Pineros as they carry out service 
contract work on National Forest System lands. The Forest Service is 
committed to the safety and health of visitors and workers in national 
forests and grasslands. We have and will continue to act quickly to 
address problems that may arise in the area of worker or visitor safety 
and health.
    Reforestation contractors employ both U.S. workers and workers 
approved to enter the U.S. under certain Temporary Worker Programs. Los 
Pineros or ``men of the pines'' is a term used typically to refer to 
reforestation workers who are in the United States under the H-2B 
Temporary Work Visa. There is a limit of 66,000 individuals per year 
who may enter the United States to work under this visa. Estimates for 
H-2B forestry workers range between 15,000 and 20,000. In contrast, the 
H-2A Temporary Work Visa is a separate category of temporary work visa 
specifically for agricultural workers. Forest Service reforestation 
contractors do not employ H-2A guest workers.
    The primary jurisdiction and oversight for the H-2B Temporary Guest 
Worker Program is with the Department of Homeland Security (DHS) 
through its Citizenship and Immigration Services (USCIS). The 
Department of Labor (DoL) Employment and Training Administration (ETA), 
Wage and Hour Division (WHD), and Occupational Health and Safety 
Administration (OSHA), as well state agencies, also have roles in 
providing workplace protections for these workers. The Forest Service 
is involved when workers are employed by contracting firms performing 
service contract work on lands within the jurisdiction of the Forest 
Service whether such workers are H-2B temporary workers or U.S. 
workers.
    Contractors, including reforestation contractors, must obtain a 
certification from the DoL declaring that qualified U.S. workers are 
not available for this type of work. The contracting firms must 
stipulate that the employment of temporary workers under the H-2B visas 
will neither adversely affect the wages nor the working conditions of 
similarly employed U.S. workers. Once the DoL has granted the 
contractor certification, the contractor then can petition the DHS for 
approval to employ guest workers.
    Similar to U. S citizens, foreign guest workers are covered by a 
number of worker protection laws. Employers are required to pay at 
least prevailing wages for the labor in the area of the intended 
employment and to provide a safety and healthy workplace for their 
employees. H-2B workers may file complaints with local DoL WHD and OSHA 
to seek redress for complaints that they may file under worker 
protection laws.
Forest Service Responsibilities and Actions Taken
    Since the March 2006 hearing before the Senate Committee on Energy 
and Natural Resources, Subcommittee on Public Lands and Forests, the 
Forest Service has played an increasing role in ensuring the health, 
safety and fair compensation for Los Pineros. For foreign reforestation 
guest workers employed by service contractors to perform specified 
contractual work on National Forest System lands, the Forest Service is 
the agency with the most direct contact and contractual oversight. The 
day-to-day business practices of the Forest Service include mutual 
respect, fair compensation, and worker health and safety. These are our 
core values. We have taken, and continue to take, action to strengthen 
our agency role in ensuring work place compliance with Federal laws for 
this work activity. However, we are not replacing the role of the DoL, 
state agencies or DHS in the administration of laws within their 
respective jurisdictions.
    The Forest Service and its employees who are involved with 
reforestation service contracts have received training to identify and 
report suspected violations and to take immediate action when imminent 
threats to health and safety exist. To this extent, the Forest Service 
has issued stop work orders and has reported suspected violations of 
applicable labor and safety laws to DoL or state agencies. Suspected 
violations of H-2B visa status are reported to DHS.
    Since the March 2006 Senate hearing, the Forest Service Director of 
Acquisition Management (AQM) and the Director of Enforcement Policy, 
WHD, and the Deputy Director Enforcement Program, OSHA, have met 
repeatedly to coordinate the management and oversight of reforestation 
contracts for the National Forest System. These meetings have enhanced 
relationships and understanding of program oversight and awareness. 
Annually, DHS will receive a list of reforestation service contracts 
across the National Forest System and we have provided DoL with access 
to our contractor database. This access and list allows the DoL and DHS 
to prioritize and schedule site visits and inspections to ensure 
oversight of the reforestation contractors.
    On January 31, 2007, the Department of Agriculture accepted an 
invitation from the Institute for a Sustainable Environment--Ecosystem 
Workforce Program at the University of Oregon to participate in a 
``Forum on Working Conditions for Forest Workers.'' U.S. Department of 
Agriculture Under Secretary for Natural Resources and the Environment 
Mark Rey and Ronald Hooper, Forest Service Director of Acquisition 
Management, presented the changes in the service contracts that the 
Forest Service had implemented and the reporting of suspected 
violations of worker protection laws or immigration laws to other 
appropriate agencies. The USDA and FS involvement at the forum 
sponsored by the University of Oregon demonstrates our commitment to 
improve the working conditions and regulation compliance for 
reforestation and other service contract employees working in National 
Forest System lands, through our improved service contract provisions.
    Currently, the Forest Service has increased the rigor and scope of 
contract inspection and monitoring to include all Forest Service 
employees visiting a project site. Our reporting suspected violations 
to other agencies has involved alleged violations in wages and 
benefits, safety and health and H-2B Visa status. All suspected 
violations of contract provisions have been reported to DoL since 2006. 
In addition, through routine enforcement patrols, the DHS Immigration 
and Customs Enforcement (ICE) has apprehended undocumented workers in 
the employ of a reforestation contractor. Confirmed violations are 
documented in a Forest Service database for consideration in future 
contract awards to the violating firm. However, to date, there have 
been no Forest Service recommendations to DoL for contractor debarment. 
In all cases, the Forest Service monitors to verify that the contractor 
has taken corrective actions.
    Accountability is paramount in our management of reforestation 
service contracts. Internal control plans and reviews have been 
developed and implemented for monitoring reforestation contracts to 
ensure that there is agency compliance with DoL and DHS laws and 
regulations, and that violations, investigations and dispositions of 
complaints are tracked and recorded. Forest Service contracting 
officers, contracting officer's representatives and contract inspectors 
are now trained to recognize problems, potential violations, and are 
empowered to immediately address the situation by requiring corrective 
action or issuing stop work orders. Service contracts prepared and 
offered by the Forest Service now contain specific provisions that 
fully describe the requirements of the Fair Labor Standards Act (FLSA), 
Migrant and Seasonal Agricultural Worker Protection Act (MPSA), 
McNamara-O'Hara Service Contract Act (SCA), and Occupational Safety and 
Health Act (OSH Act) standards as well as visa status requirements. 
Forest Service contract administrators are encouraged to observe, 
document and report to DoL and DHS suspected violations of applicable 
contract provisions that address workers compensation, safety, and 
health, as well as visa status. The determination of a violation 
relative to any of the applicable Federal laws resides with DoL and 
DHS. The Forest Service has established a contractor database where 
violations of Federal law, as determined by DoL and DHS, are recorded. 
This establishes a contractor history based on specific contract 
provisions. If violations are sufficiently serious, or there is a 
robust history of violations, then this is a factor in determining 
future awards.
    The Missoula Technology Development Center (MTDC) has developed a 
comprehensive on-line training module titled Safety & Health Training 
for Contracting Officer's Representatives and Inspectors. This module 
provides the latest health and safety requirements as prescribed by 
OSHA regulations at 29 CFR 1910 (General Industry) and 1926 
(Construction) and is available for self-study for Forest Service 
employees involved in service contract oversight and monitoring. The 
program design is for either self-study or classroom type training and 
is available to the public, including contractors and advocates for 
workers rights. However, it is incumbent upon the service contracting 
firms to fulfill the requirement to understand and to train 
reforestation employees in the OSHA Regulations at 29 CFR 1910 and 
1926.
    The field and regional organizations of DoL and DHS provide 
training and compliance assistance, and current information, at yearly 
service contracting seminars for Forest Service employees who will 
prepare, award and administer the contracts. These seminars, while not 
contractor training sessions, do include private sector forestry 
service firms who are contemplating on bidding and securing a service 
contract, as well as for Forest Service employees.
    The National Director of AQM requires the regional AQM directors 
for the Forest Service, to sample a percentage of reforestation 
contracts each year. The directors are ensuring that the direction of 
the Forest Service Chief is followed with respect to the reporting of 
suspected violations to DoL and DHS. This reporting is accomplished 
through established procedures and the points of contact in the 
respective agencies. The directors are responsible for ensuring that 
the remedy for confirmed violations is implemented. This is 
accomplished through a formal letter from the DoL and a formal 
acknowledgement of that letter of notification from the Forest Service.
Conclusion
    Since the 2006 hearing, the Forest Service has reported to DoL 
suspected violations of provisions relative to the FLSA, MPSA, SCA, and 
OSHA standards, and reported to DHS suspected violations of H-2B Visa 
status. The Departments have investigated the Forest Service reports 
and provided findings of their investigations according to their 
procedure to the contractors and the Forest Service. Contractors, upon 
receiving the findings, have implemented corrective actions to ensure 
that violations are addressed and practices or behaviors modified. We 
can report that there have been no injuries to contract workers or 
deaths to contract workers on reforestation contracts, nor are we aware 
of any visa violations.
    The Department of Agriculture and the Forest Service are committed 
to the health and safety for all visitors and workers in the National 
Forest System. That includes foreign guest workers. We will continue to 
closely coordinate with the oversight agencies in DoL and DHS who are 
responsible for administering this program to ensure foreign guest 
workers will have employment where their personal health and safety is 
ensured by both their employer and the Federal government.
    This concludes my statement, I would be happy to answer any 
questions that you may have.
                                 ______
                                 
    Mr. Grijalva. Let me now turn to Mr. Alex Passantino, 
Acting Administrator, Wage & Hour Division, U.S. Department of 
Labor. Welcome, Sir. I look forward to your testimony.

STATEMENT OF ALEXANDER PASSANTINO, ACTING ADMINISTRATOR, WAGE & 
            HOUR DIVISION, U.S. DEPARTMENT OF LABOR

    Mr. Passantino. Thank you. Mr. Chairman, distinguished 
members of the Subcommittee, thank you for the opportunity to 
testify about the Department of Labor's role in protecting 
workers employed on tree planting and other service contracts. 
As the acting Administrator of the Employment Standards 
Administration's Wage & Hour Division, I represent one of 
several agencies with a role in protecting these workers.
    The Department's role also includes two other agencies, the 
Occupational Safety and Health Administration and the 
Employment and Training Administration. Representatives from 
each of those agencies join me here today. As my written 
testimony explains in more detail, the challenges of ensuring 
that the employment of workers on reforestation contracts 
complies with applicable legal protections are not new to 
Department of Labor.
    On March 1, 2006, the Senate Committee on Energy and 
Natural Resources, Subcommittee on Public Lands and Forests, 
held a hearing on the roles of the various agencies in 
protecting foreign guest workers employed on tree planting and 
other service contracts on national forest system lands. As was 
explained during that hearing, reforestation investigations 
present our investigators with a host of challenges not 
commonly encountered in typical industries.
    The work tends to occur in remote, sometimes extremely 
remote, locations. The contracts are generally of short 
duration and the workers are constantly on the move from work 
site to work site. As the work tends to be performed at hard to 
find locations and for only brief periods communication with 
the workers when first encountered is essential.
    In addition, as you mentioned, many of the workers are 
working in the United States pursuant to the H-2B provisions of 
the Immigration and Nationality Act. These H-2B reforestation 
workers typically do not speak English and generally reside in 
remote locations with little, if any, access to community or 
government resources to assist them with work related problems.
    As a result of these challenges, communication among the 
involved agencies is key to ensuring appropriate enforcement. 
As indicated at the March 2006 hearing, a number of measures 
have been put in place to improve the flow of information 
between Wage & Hour, OSHA and the Forest Service in an effort 
to improve working conditions.
    As an initial matter, the Department of Labor has provided 
training to Forest Service contracting officers regarding the 
laws enforced by Department of Labor. Such training is critical 
to identifying and thus remedying potential labor law 
violations, particularly given the breadth of the issues 
covered by Department of Labor laws.
    Among the laws enforced by the Department are those that 
provide for the payment of minimum wage and overtime that 
require certain covered farm labor contractors to comply with 
Federal and state safety and health housing standards, require 
farm labor contractors to ensure that certain vehicles are 
operated properly, driven by properly licensed drivers and meet 
applicable Federal and state safety standards.
    Our laws also require farm labor contractors to obtain a 
certificate of registration from the Department, require 
Federal reforestation contractors to pay the prevailing wage 
and fringe benefits determined by the Department, require 
sanitary and adequately supplied toilets, an adequate and 
readily accessible supply of cool, potable drinking water and 
adequate and sanitary hand washing facilities.
    Our laws also require that employers assess the workplace, 
determine what hazards are present, what personal protective 
equipment is required to protect against those hazards and 
ensure that the use of such equipment takes place, and training 
employees in safe work practices. Of course, our efforts on 
behalf of reforestation workers have not been limited to 
education of the Forest Service.
    We have designated regional points of contact for the three 
organizations to facilitate communication, the Department 
created a one page, red flag checklist for Forest Service 
personnel to use as a guide to identify potential violations, 
the Forest Service has allowed the Department to access their 
contract database in order to facilitate our strategic 
planning, the Forest Service has agreed to check the MPSA 
registration status and investigation history of any contractor 
who wins a reforestation contract, and the Wage & Hour Division 
has developed fact sheets and reforestation workers rights 
cards which summarize the basic provisions of our Federal laws.
    We have also held discussions with a number of advocacy 
groups. I, too, attended the field hearing in Eugene, Oregon, 
and have met personally with representatives of several of the 
groups here in Washington. As a result of our enhanced 
coordination and focus, since the March 2006 hearing the Wage & 
Hour Division has completed 62 investigations involving 56 
reforestation contractors.
    We have six additional investigations underway. Forty-one 
of the investigations disclosed violations of MPSA. The most 
frequent violation was failure to disclose the terms and 
conditions of employment, followed by failure to provide a 
proper wage statement, failure to make and keep records and 
failure to pay the wages owed when due.
    Housing, safety and health violations were found in 10 
investigations and transportation safety violations were 
uncovered in eight. We assessed over $85,000 in civil money 
penalties and initiated action to revoke the farm labor 
contractor certificate of registration of one reforestation 
contractor.
    Since March 2006, the Federal OSHA and state plan agencies 
have conducted 189 inspections of the forestry service's 
industry and those inspections have resulted in the issuance of 
546 violations. For the upcoming fiscal year, Wage & Hour plans 
to continue to conduct target investigations in the 
reforestation industry, planning 80 such investigations in 
Fiscal Year 2009.
    We will continue to provide farm labor contractor 
registration and investigation history to the Forest Service 
when requested. The agencies will continue to share information 
at all levels, but particularly at the regional levels where 
exchanging information provides the most meaning and assuring 
that workers are protected.
    We have achieved significant results for workers and will 
continue to do so. We have developed multiple strategies, 
including direct enforcement compliance assistance and 
partnerships to address the challenges faced in protecting 
these workers. We look forward to continuing to improve and 
build upon our relationship with the Forest Service.
    The Department is committed to maintaining an effective 
enforcement present in the reforestation industry, both on 
private and public land.
    Mr. Chairman, this concludes my prepared remarks. I will be 
happy to answer any questions that you or the members of the 
Committee may have. Thank you.
    Mr. Grijalva. Thank you very much. We appreciate your 
testimony.
    [The prepared statement of Mr. Passantino follows:]

 Statement of Alexander J. Passantino, Acting Administrator, Wage and 
Hour Division, Employment Standards Administration, U.S. Department of 
                                 Labor

    Mr. Chairman and Distinguished Members of the Subcommittee:
    Thank you for the opportunity to appear before you today as a 
member of this panel. You have invited us to testify on the role of the 
Department of Labor (DOL) in protecting workers, and in particular 
foreign guest workers, employed on tree planting and other service 
contracts (often called ``reforestation contracts'') on National Forest 
System Lands. The workers engaged in this work are typically referred 
to as ``pineros''--men of the pines.
    As the Acting Administrator of the Employment Standards 
Administration's Wage and Hour Division (WHD), I represent one of 
several federal agencies that have a role with respect to these foreign 
guest workers. A complete picture of the DOL's role involves mentioning 
two other agencies within the Department--the Occupational Safety and 
Health Administration (OSHA) and the Employment and Training 
Administration (ETA). There are representatives from those agencies 
here with me today.
    The challenges of ensuring that the employment of workers on 
reforestation contracts complies with applicable legal protections are 
many, but they are not new to the DOL. On March 1, 2006, Assistant 
Secretary for Employment Standards, Victoria A. Lipnic, testified along 
with Mark Rey, Under Secretary for Natural Resources and Environment, 
USDA, before the Senate Committee on Energy and Natural Resources' 
Subcommittee on Public Lands and Forests on the roles of the 
departments in protecting foreign guest workers employed on tree 
planting and other service contracts on National Forest System lands.
    In May 2008, the Department provided a report to the House and 
Senate Committees on Appropriations that identified DOL's enforcement 
activities pertaining to those contractors that employ pineros and who 
have violated Federal employment and/or safety standards. Since the 
March 2006 hearing, the WHD, OSHA, and the U.S. Forest Service (USFS) 
have worked closely together, and have established protocols for the 
exchange of information necessary to ensure that the workers engaged on 
USFS reforestation contracts are protected.
    My testimony today will address the following:
      In general terms, the worker protections enforced by WHD 
and OSHA that are applicable to the employment of pineros engaged in 
reforestation and other land management work;
      A general discussion of issues concerning reforestation 
workers who are H-2B temporary non-immigrants under the Immigration and 
Nationality Act, and the roles of the Department of Homeland Security 
(DHS) and the DOL ETA Office of Foreign Labor Certification (OFLC);
      The cooperative efforts among WHD, OSHA, and USFS to 
improve levels of compliance with labor laws on USFS reforestation 
contracts; and
      WHD and OSHA enforcement experience in reforestation 
since the March 2006, hearing before the U.S. Senate Committee on 
Energy and Natural Resources, Subcommittee on Public Lands and Forests.
    Overview of Department of Labor Laws and Programs Applicable to 
                         Reforestation Workers
Wage And Hour Division Enforcement Responsibilities:
    WHD administers and enforces the following laws that may pertain to 
reforestation workers including pineros:
Fair Labor Standards Act (FLSA)
    Generally, the FLSA applies to any employee who engages in 
interstate commerce or the production of goods for interstate commerce, 
or all employees of an enterprise which engages in interstate commerce 
or the production of goods for interstate commerce and grosses $500,000 
or more per year.
    The FLSA (29 U.S.C. Sec. Sec. 201 et seq.) requires covered 
reforestation contractors to:
      Pay nonexempt workers no less than the Federal minimum 
wage (currently $6.55 per hour, rising to $7.25 on July 24, 2009);
      Pay nonexempt workers time and one-half a worker's 
regular rate of pay for all hours actually worked over 40 in a seven-
day work week;
      Limit the occupations and hours of employment for 
employees under 18 years of age in accordance with Federal youth 
employment regulations; and
      Maintain for each worker an accurate record of hours 
worked and wages paid.
Migrant and Seasonal Agricultural Worker Protection Act (MSPA)
    The MSPA applies to any person who solicits, recruits, hires, 
employs, furnishes, or transports any migrant or seasonal agricultural 
worker. The MSPA applies to reforestation workers engaged in 
predominately manual work (e.g., tree-planting, brush-clearing, pre-
commercial thinning, forest fire-fighting) if they otherwise meet the 
definition of a migrant or seasonal agricultural worker.
    The MSPA (29 U.S.C. Sec. Sec. 1801 et seq.) requires that covered 
contractors:
      Pay workers their wages when due and give workers 
itemized written statements of earnings for each pay period, including 
any amount deducted and the reason for the deduction;
      Comply with Federal and State safety and health housing 
standards, such as OSHA's Temporary Labor Camps standard, if the 
contractor owns or controls a facility or real property used for 
housing the reforestation workers. A written statement of the terms and 
conditions of occupancy must be posted at the housing site in a 
location where it can be seen or must otherwise be given to the 
workers;
      Ensure that vehicles used or caused to be used to 
transport the reforestation workers are properly insured, properly 
operated, driven by properly licensed drivers, and meet the applicable 
Federal and State safety standards;
      Inform the workers in writing about the terms and 
conditions of employment, including the work to be performed, wages to 
be paid, period of employment, and whether State workers' compensation 
or State unemployment insurance will be provided;
      Obtain a certificate of registration from DOL to operate 
as a farm labor contractor. In addition, specific authorization must be 
obtained for all housing provided (if owned or controlled by the farm 
labor contractor), each vehicle used to transport the reforestation 
workers, and each driver of each vehicle used to transport the 
reforestation workers. The contractors must carry proof of this 
registration and show it to workers and any other person with whom they 
deal as contractors;
      Display a poster that sets forth the rights and 
protections of the workers in a location where it can be seen at the 
job site; and
      Keep complete and accurate payroll records for all 
workers.
The McNamara-O'Hara Service Contract Act (SCA) and the Contract Work 
        Hours and Safety Standards Act (CWHSSA)
    The SCA (41 U.S.C. Sec. Sec. 351-358) applies to Federal contracts 
for services in excess of $2,500, including reforestation contracts 
entered into by USFS. CWHSSA (40 U.S.C. Sec. Sec. 327-333) applies to 
Federal service contracts in excess of $100,000. SCA requires 
reforestation contractors to:
      Pay the reforestation workers the wages and fringe 
benefits determined by DOL to be prevailing in the locality for the 
class of service worker being employed; and
      Notify the reforestation workers of the SCA prevailing 
wage and fringe benefit requirements applicable to their work.
    The reforestation contractors may not require the workers to pay 
for the employers' business expenses, such as tools, equipment, or 
fuel, to the extent that such payments will reduce the employees' wages 
below the applicable SCA prevailing wage.
    The CWHSSA requires an overtime payment of time and one-half the 
basic wage rate to workers on contracts subject to its provisions.
Occupational Safety and Health Act (OSH Act)--Field Sanitation Standard
    OSHA administers the Occupational Safety and Health (OSH) Act (29 
U.S.C. Sec. Sec. 651 et seq.). Safety and health conditions in most 
private industries are regulated by OSHA or the States through an OSHA-
approved State plan. By Secretary's Order 5-96 dated December 27, 1996, 
the authority for enforcing OSHA's Field Sanitation standard was re-
delegated to WHD in all States in which Federal OSHA generally has 
authority, and in certain State-plan States.
    With respect to reforestation, it is the policy of both OSHA and 
WHD that the field sanitation requirements apply to hand-labor 
operations in this industry (with 11 or more employees) without regard 
to whether the work is performed on private or public land. ``Hand 
labor'' includes hand-cultivation, hand-weeding, hand-planting, and 
hand-harvesting of vegetables, nuts, fruits, seedlings, or other crops, 
as well as the packing of produce in the field into containers. Except 
for hand-labor reforestation work, the term ``hand labor'' does not 
include forestry operations such as logging.
    Therefore, covered reforestation contractors are required to 
provide:
      Sanitary and adequately-supplied toilets in proper ratio 
for crew size, and located within 1/4-mile walk of each employee's 
place of work in the field;
      An adequate and readily accessible supply of cool, 
potable drinking water; and
      Adequate and sanitary hand-washing facilities located in 
close proximity to toilet facilities.
    Further, employers must notify each employee of the location of 
sanitation facilities and the importance of their use to minimize the 
hazards of heat-related illness and communicable disease. In addition, 
employers must provide sanitation facilities at no cost to employees 
and allow each employee reasonable use of the facilities during the 
workday.
Occupational Safety and Health Administration Enforcement 
        Responsibilities:
    As previously noted, the OSH Act is administered by OSHA. OSHA has 
standards that apply broadly across all industries, but has also 
promulgated standards that are applicable to specific industries and 
activities, such as logging operations, which are applicable to certain 
reforestation operations.
    Several OSHA standards apply to reforestation work. For example, 
OSHA standards require that:
      Employers assess the workplace and determine what hazards 
are present, and what personal protective equipment is required to 
protect against those hazards (e.g., protective eyewear, protective 
footwear, head protection, cut-resistant leg protection when using 
chainsaws), and ensure the use of such equipment;
      Employers train employees in safe work practices when 
performing pre-commercial forest thinning operations, such as felling 
trees (e.g., use undercuts and back cuts, determine a clear retreat 
path), and ensure that such procedures are followed;
      Machines and vehicles are maintained in serviceable 
condition, inspected at the start of each work shift, and equipped with 
seat belts;
      First aid kits are present at each worksite where trees 
are planted or cut, at each active landing, and on each employee 
transport vehicle;
      Flammable liquids are handled and stored properly; and
      Employees are trained with regard to the hazards of the 
chemicals with which they work, and that Material Safety Data Sheets 
(MSDS) for those chemicals are available.
Whistleblower Statutes
    In addition to administering workplace safety and health standards, 
OSHA is also responsible for the administration of a number of 
whistleblower statutes, including Section 11(c) of the OSH Act. Section 
11(c) prohibits reprisals against employees who exercise their rights 
under the OSH Act. The administration of Section 11(c) is thus integral 
to OSHA's core mission.
           Immigration Issues Related to Reforestation Work:
Characteristics of Reforestation Guest Workers
    In 2007, reforestation contractors made application for more than 
20,000 forestry and tree planter guest workers to be admitted as 
temporary nonimmigrants under the H-2B provisions of the Immigration 
and Nationality Act (INA).
    The H-2B workers' presence in this country is dependent on the 
willingness of the sponsoring employer to continue their employment. 
When this employment ends, the workers must leave the country. 
Therefore some reforestation workers may be reluctant to complain to 
DOL--or any other agency--about mistreatment or underpayment of wages 
by their employer.
    The H-2B reforestation workers typically do not speak English. The 
workers typically reside in remote locations with little if any access 
to community or government resources to assist them with work-related 
problems.
Immigration and Nationality Act (INA)--Relevant Visa Category H-2B
    DHS regulations implementing the Immigration and Nationality Act (8 
U.S.C. Sec. Sec. 1101 et seq.) require employers filing petitions for 
H-2B non-immigrant workers with the U.S. Citizenship and Immigration 
Services (USCIS) to include a labor certification from the Secretary of 
Labor that qualified U.S. workers could not be found to fill the job 
and that the non-immigrant workers' employment will not adversely 
affect the wages and working conditions of similarly employed U.S. 
workers. In the case of reforestation activities, employers must file 
an application for labor certification with the State Workforce Agency 
(SWA) serving the area of intended employment.
    In each case, the SWA follows guidance from DOL to determine the 
prevailing wage rate for the occupation listed, to supervise and to 
guide the employer's recruitment of U.S. workers, and to ensure 
completion of other requirements of the H-2B program. The SWA forwards 
completed applications to DOL's ETA, which reviews the record in its 
entirety, including documentation from the state and the employer, to 
determine whether and when to issue a certification. The employer then 
uses ETA's certification in support of its petition with USCIS for 
guest workers.
    The INA provides DHS with authority to impose certain sanctions 
when sponsoring employers have committed a substantial failure to meet 
any of the conditions of the H-2B petition or made a willful 
misrepresentation of a material fact in a petition. The INA does not 
provide DOL the authority to generally enforce elements of the H-2B 
program, including the wage rate identified on the employer's 
attestation for the H-2B workers. DOL may only enforce the payment of a 
specified wage rate if it is required under one of the laws for which 
DOL has enforcement authority, e.g., FLSA, SCA, or MSPA.
    A Notice of Propose Rulemaking was published on May 22, 2008, in 
which ETA and WHD jointly proposed to modernize the procedures for the 
issuance of labor certifications issued in connection with H-2B non-
immigrants, including procedures to enforce compliance with 
attestations made by sponsoring employers. As noted, the Congress has 
vested DHS with the statutory authority to enforce the H-2B program 
requirements and the DOL possesses no independent authority for such 
enforcement. Consequently, the proposed rule describes potential H-2B 
enforcement procedures DOL can institute upon the delegation of 
enforcement authority from DHS and the implementation of corresponding 
regulations.
                   Cooperative Efforts among Agencies
    As indicated in Assistant Secretary Lipnic's March 2006 testimony 
before the Senate Subcommittee, a number of measures have been put into 
place, both before and subsequent to the hearing, to improve the flow 
of information between WHD, OSHA, and USFS in an effort to improve 
working conditions on reforestation contracts on public lands. As was 
explained at that hearing, WHD enforces the law through two means--
directed enforcement activity and complaint-based investigations. A 
substantial amount of analysis goes into planning WHD's directed 
enforcement work. The preparation of the annual operational plan begins 
during the year before the start of the operational fiscal year, and 
the resource commitment is determined as far in advance as possible. 
Given the remote nature of the work in reforestation, the sooner WHD is 
aware of contracts that will be let by USFS, the better it can target 
its reforestation enforcement activities.
      WHD, OSHA, and USFS have designated regional points of 
contact for the three organizations to facilitate communication and for 
the USFS to use in a rapid response referral system in case of 
potential violations.
      USFS has included stronger contract provisions that 
provide for a minimum level of contractor safety awareness and that 
enhance the agency's ability to shut down a project or fire a 
contractor.
      WHD and OSHA created a one-page ``Red Flag'' checklist 
for USFS personnel to use as a guide to identify potential violations 
of fundamental wage, safety, and health requirements that USFS can 
address under its contract authority or by making a referral to WHD 
and/or OSHA, as appropriate.
      Region X OSHA provided several sessions of basic safety 
and health training to USFS contracting officers in their northwest 
regions to enable contracting officers to better know what to include 
in their labor contracts and what to monitor. If a contractor was not 
living up to safety and/or health agreements in the contract, and if 
USFS could not get the needed correction, USFS would notify OSHA for 
initiation of an enforcement inspection.
      USFS provided the means for OSHA and WHD to access USFS 
contract information in order to facilitate strategic planning for 
investigations.
      USFS has agreed to check the MSPA registration status and 
investigation history of any contractor who wins a reforestation 
contract by contacting the WHD Regional Office with jurisdiction over 
the place of performance of the contract. WHD created a form to 
facilitate responses to these requests.
      In FY 2007, the WHD received and responded to 66 requests 
from USFS for information on the registration status and investigation 
history of contractors being awarded contracts. Currently there is one 
SCA investigation pending that was referred to WHD from USFS.
      WHD developed Fact Sheet #63, which summarizes the basic 
provisions of the Federal laws administered and enforced by the WHD 
that apply to reforestation workers. This Fact Sheet is available in 
English and Spanish on WHD's Web site at http://www.dol.gov/esa/whd/
regs/compliance/whdfs63.pdf and http://www.dol.gov/esa/whd/regs/
compliance/whdfs63spanish.pdf.
      WHD prepared English and Spanish Reforestation Workers' 
Rights cards that explain the fundamental provisions of the applicable 
laws to reforestation workers. These wallet-sized cards can be accessed 
from WHD's Web site and/or ordered by other agencies or outside 
organizations using the Quick Finder for Employees' Rights Cards on the 
WHD homepage at http://www.dol.gov/esa/whd/mspa/index.htm or directly 
at: http://www.dol.gov/esa/whd/FLSAEmployeeCard/ReforestEnglish.pdf and 
http://www.dol.gov/esa/whd/FLSAEmployeeCard/ReforestSpanish.pdf.
    Also, ten education and outreach events were held during FY 2007, 
many of them put on jointly by the WHD, OSHA, and USFS. At four of 
these events, WHD provided training on investigations to USFS staff. 
WHD has also created a training package for use in training USFS 
personnel, reforestation contractors, and others.
                         Community Involvement
    Dialogues have also been held with organizations such as the Forest 
Resource Association, Sustainable Northwest, the Ecosystem Workforce 
Program of the University of Oregon, and the Alliance of Forest Workers 
and Harvesters to allow them to share their concerns regarding 
enforcement and the conditions affecting reforestation workers. 
Meetings have taken place in Washington, D.C. in 2007 and 2008, and a 
field hearing/listening session took place at the University of Oregon 
in Eugene in January, 2007.
                         Enforcement Experience
WHD Enforcement:
    Since the March 2006 hearing, WHD has completed 62 investigations 
involving 56 reforestation contractors, and there are 6 investigations 
underway. Collectively, the 56 contractors investigated employed over 
1,866 workers on site. The discussion below details the findings to 
date. (These figures are for all forest landownership, which includes, 
USFS, Bureau of Land Management, other Federal, State and private 
industry.)
    The WHD seeks compliance through a combination of enforcement and 
compliance assistance. The WHD conducts investigations of employers 
based on either the receipt of a complaint alleging violations or by 
scheduling of directed (WHD-initiated) investigations. We receive very 
few complaints concerning reforestation workers and most of our 
enforcement activities are directed investigations based on planning 
that occurs in our Regional and District offices.
    For the upcoming fiscal year, WHD plans to continue to conduct 
targeted investigations in the reforestation industry. WHD has 
designated enforcement officials in each of its regions to ensure 
effective enforcement and continued coordination with other agencies, 
and will continue to fully utilize information from the USFS contractor 
database to identify contractors for investigation. WHD will also 
continue to provide FLC registration and investigation history to USFS 
when requested. The agencies will continue to share information at all 
levels, but particularly at the regional levels where exchanging 
information provides the most meaning in assuring that workers are 
protected.
MSPA Investigations
    Forty-one of the completed reforestation contractor investigations 
disclosed violations of the MSPA. The most frequently encountered 
violation was failure to disclose the terms and conditions of 
employment, followed by failure to provide a proper wage statement, 
failure to make and keep records, and failure to pay the wages owed 
when due. Housing safety and health violations were found in 10 
investigations, and transportation safety violations were uncovered in 
eight cases. As a consequence of the violations, over $85,400 in civil 
money penalties were assessed. In addition, WHD initiated action to 
revoke the farm labor contractor certificate of registration of one 
reforestation contractor for violating requirements of the MSPA. The 
matter is currently pending before an Administrative Law Judge (ALJ).
FLSA Investigations
    Seventeen of the employers investigated were found to have violated 
requirements of the FLSA. Two were found to have violated the Act's 
minimum wage requirements, 12 violated the overtime requirements, and 
10 violated the Act's record-keeping requirements. A total of over 
$173,250 in back-wages was found due to 490 workers.
SCA Investigations
    Nineteen of the investigated employers were performing work on 
public land under contracts with the Federal government. Of the 19 
employers investigated, 12 were found to have violated requirements of 
the SCA. Six employers were in violation of the SCA prevailing wage 
requirements and seven were in violation of the fringe benefit 
requirements. In addition, four were found to have violated the 
overtime requirements of CWHSSA. A total of over $222,810 was found due 
to over 160 workers as a consequence of these violations.
Litigation
    In December 2006, DOL's Regional Office of the Solicitor in Seattle 
resolved outstanding issues stemming from a 2004 investigation of 
Gonzalez Forestry of Centralia, Washington, by obtaining a default 
judgment against the firm. The 2004 investigation disclosed SCA, 
CWHSSA, and MSPA violations on pre-commercial thinning contracts that 
the firm had with the USFS in the Tongass National Forest in Alaska. 
The firm paid $15,336 in CWHSSA overtime back wages and an additional 
$7,756 in SCA minimum wages. The judgment orders a three-year debarment 
under the SCA for both Arturo Gonzalez and his wife, Angelia.
    On March 23, 2007, an ALJ issued a favorable decision and order in 
an SCA debarment matter stemming from a 2004 investigation of 
reforestation contractor Progressive Environmental, LLC, and two of its 
principals, Bruce Campbell and Randy Humbert. The ALJ ruled that as a 
consequence of the violations of the required wage and fringe benefit 
requirements and the failure to keep adequate records, the firm, Mr. 
Campbell, and Mr. Humbert should be barred from receiving Federal 
contracts for a period of three years.
OSHA Enforcement:
OSH Safety and Health Investigations:
    Since March 1, 2006, both Federal OSHA and the State plan agencies 
have conducted 189 inspections (including 57 Federal inspections and 
132 State plan inspections) in the forestry services industry (Standard 
Industrial Classification (SIC) 0851). It is not possible to determine 
precisely how many of these inspections were of reforestation 
contractors, as that is only one of several activities that fall within 
SIC 0851. However, a fair number of these 189 inspections likely can be 
attributed to reforestation activities. Of these 189 inspections, 115 
were programmed inspections, that is, inspections that were initiated 
by a strategic program rather than in response to a fatality, accident, 
complaint, or referral. The remaining 74 inspections were conducted 
pursuant to such responses.
    The 189 inspections resulted in the issuance of 546 violations of 
OSHA standards. These violations identified serious hazards related to 
personal protective equipment, tree felling procedures, chemical hazard 
communication, fire extinguishers, powered industrial trucks, machine 
guarding, and electrical hazards, just to name a few.
    A large amount of reforestation activity occurs in the northwestern 
states. OSHA's Seattle Regional office, which comprises Idaho, 
Washington, Oregon, and Alaska, receives email notifications from the 
USFS officials on contract awards for the states within that Region. 
Notifications for work in the state plan states are forwarded to 
designated points of contact in the OSHA departments. Notifications for 
contracts in Idaho are sent to the Boise Area Director (AD). The AD 
makes the determination whether or not to conduct an inspection under a 
Silviculture 1 Local Emphasis Program (LEP), which was 
developed in 2006.
---------------------------------------------------------------------------
    \1\ ``Silviculture'' is a branch of forestry dealing with the 
development and care of forests. Silviculture operations include, but 
are not limited to reseeding, tree planting, tree thinning, tree 
pruning and brush clearing.
---------------------------------------------------------------------------
Litigation
    There have been no ALJ or Occupational Safety and Health Review 
Commission decisions related to reforestation contractors since March 
1, 2006.
                               Conclusion
    Experience has shown that reforestation investigations present our 
investigators with a host of challenges above and beyond those commonly 
encountered in typical industries. The work tends to occur in remote, 
sometimes extremely remote, locations. The contracts are generally of 
short duration, and the workers are constantly on the move from 
worksite-to-worksite. As the work tends to be performed at hard to find 
locations and for only brief periods, communication with the workers 
when first encountered is essential.
    As discussed above, we have developed multiple strategies to 
address the challenges faced in protecting these workers. DOL is 
committed to maintaining an effective enforcement presence in the 
reforestation industry--both on private and public land.
                                 ______
                                 
    Mr. Grijalva. Let me, for both gentlemen, we will hear a 
resounding theme in the next panel that work conditions are 
virtually the same as they were in 2006. Given that, how do you 
respond to that and what is your reaction to that? Both.
    Mr. Kashdan. Well, Mr. Chairman, let me start by saying 
that our key emphasis is to have the resources available to 
conduct inspections continuously, routinely and to look for 
signs of violations that occur relative to the requirements of 
the contract, and when we see those, we report those. Our 
challenge is to make sure that we devote the limited resources 
we have to conducting those inspections.
    That is one of the key priorities we have. So when we see 
them, we are reporting them. We feel that we have fairly good 
compliance with our contractors.
    Mr. Passantino. Mr. Chairman, our goal is to leverage our 
resources in the best way possible, and we do that in a variety 
of ways. As I mentioned, I guess the most important tool we 
have is investigations. We have targeted investigations in the 
reforestation industry around the country. We plan to do 
another 80 of them in Fiscal Year 2009.
    In addition to the investigations, we conduct compliance 
assistance sessions with contractors, contracting officers. We 
view our relationship with the Forest Service as an opportunity 
to leverage those resources even further. You know, we can't 
train Forest Service contracting officers to be Wage & Hour 
investigators or OSHA compliance officers but we can help them 
identify the issues to refer to us, and that is what we have 
been trying to do.
    So the more bodies that we have out there, the better we 
are able to determine whether there are violations taking 
place. In addition, when significant cases take place we issue 
press releases on those and hope that those press releases get 
picked up in the local press to make contractors aware that we 
are there and we are enforcing the law.
    Mr. Grijalva. Thank you. Mr. Kashdan, going back to the 
comment you just made, I note you in your testimony make a 
number of claims about rigorous inspection, monitoring, yet, 
you report no specific numbers. Have you documented your 
changed oversight in inspection efforts?
    Mr. Kashdan. Let me just be candid. In my preparing for 
this hearing and reviewing some of the previous commitments 
made to the questions for the record from prior hearings, I 
acknowledge that there are areas we have not done some of the 
things we should, such as a violations database that we would 
independently maintain.
    We do report violations, we do confer with the Department 
of Labor in terms of making decisions about awards, we do seek 
the appropriate certifications, and, more importantly, we do 
document our on site inspections with the contractors. I think 
it is what is most important is that we maintain the priority 
toward those inspections.
    So I would say that we have not done some of the things we 
said we would do with violations and I would like to maybe 
rather than actually pursue a standalone database see how we 
might enhance our statistical reporting with the Department of 
Labor.
    Mr. Grijalva. If I may, Sir. That statistical reporting, 
that I am assuming would include how many inspections have been 
done yearly, any stop work orders that the Forest Service might 
have issued, how many violations have been reported to the 
Department of Labor or referred to the Department of Labor. Is 
that the kind of statistics you are talking about?
    Mr. Kashdan. Yes. I would say, Mr. Chairman, that those 
data sets, and maybe even additional ones as specific as the 
type of violations that we uncovered, we are documenting those 
in site visits and they do go into the contract files. Our 
breakdown has been in terms of what goes from the contract file 
into a database.
    Mr. Grijalva. Yes. If I may, if you would on those three 
specific points, the stop orders, the number of violations 
reported to the Department of Labor, the number of inspections, 
if that could be treated as a request from the Committee to get 
some of those specific things back to us in writing, very much 
appreciate it.
    The other complaint about the Forest Service policy of 
awarding contracts to the lowest bidder, that it favors those 
employers that are going to skirt some of the safety 
protections that you have been talking about. They don't have a 
terribly high standard of treatment for their workers. How do 
you address this problem?
    You have the issue of the low bid, but you also have the 
issue that these are the areas where the violations are also 
the highest, many instances.
    Mr. Kashdan. Well, let me clarify. All of our contracting 
now is based on a best value basis. We do bring into account 
other factors. That includes other bidders that may have also 
been on the contract. That is not to say that the individual 
decision maker on awarding a contract doesn't have to balance 
the aspect of the contract bid and the expectation to produce a 
certain amount of targets against what is best value.
    So in the case of our awards, we come back to on site 
monitoring and on site reporting of any violations that we see. 
Again, we instruct all of our contract inspectors to carry 
those core values of respect, safe and healthy working 
conditions and a fair wage compensation to their on site 
inspections.
    Mr. Grijalva. Yes. I appreciate those core values, but my 
questions are how do you assure that those core values are 
being respected, and how do you document and quantify that 
those core values are being respected and taken into account by 
the contractor?
    Mr. Kashdan. Well, Mr. Chairman, basically we have a set of 
reviews that we conduct in any given year. For example, out of 
the Washington office we have conducted six program reviews of 
the agency within the agency on the administration of contracts 
that look at various aspects of frequency of inspection, 
quality of inspection, reporting of violations.
    Those reviews are then carried forward by regional 
directors to deal directly with the contracting officer. So our 
key aspects are through our review and analysis procedure in 
terms of contracting procedures.
    Mr. Grijalva. Yes, on that point. There will be a later 
panelist that will testify of 10 Forest Service thinning 
contractors, most expressed skepticism that anything had 
changed and only one thought the Forest Service had increased 
inspections. How do you respond to that?
    Mr. Kashdan. Mr. Chairman, let me take the latter part 
first, the aspect of being able to increase inspections. I 
would have to say, and I think as one of the later witnesses, 
Ms. Moseley, will note that there have been a variety of 
factors affecting the Forest Service's ability to put 
additional inspectors on the ground.
    The most notable is the current aspect of our fire 
suppression funding which basically is taking a tremendous 
amount of our regular program funding and diverting it toward 
our wildfire suppression activities.
    That has really hampered our ability to maintain 
inspections, much less increase, and that is some of our issue, 
is that in looking at administration, our key is to keep as 
much on site inspection as possible, possibly even at the 
expense of quality of recordkeeping and that kind of thing.
    Mr. Grijalva. Yes. One other one, Sir, and then since 
nobody is clamoring to take my time, I am going to continue. 
Also, I note in your testimony, Mr. Kashdan, that there have 
been no Forest Service, and correct me if I am wrong, 
recommendations for contractor debarment. Just outline for me 
and the record, what would it take for a contractor to be 
debarred?
    Mr. Kashdan. Well, there have been no recommendations to 
debar. As I also noted, we have reported safety violations 
principally. In that area of contract violations, the ultimate 
decision to debar is going to be made in consultation with the 
Department of Labor. So in our consultation we haven't hit the 
point yet where it has been necessary to take a debarment 
action. Now, I did also note that we have terminated a 
contract.
    Mr. Grijalva. OK, but is there a criteria where Contractor 
B would be debarred as a consequence of a list of things? Is 
that available?
    Mr. Kashdan. Well, again, we would have to talk with 
Department of Labor and Department of Homeland Security about 
criteria for debarment relative to safety and health 
violations, and so I think any action to debar would be 
something we would do in consultation with Department of Labor 
and Department of Homeland Security.
    Mr. Grijalva. So between the three agencies there is 
potentially some criteria that as a consequence of the 
consultations would emerge that this Contractor B would be 
debarred? Please?
    Mr. Passantino. I guess there are a couple of things that 
we would look at. First, under the Service Contract Act for 
violations of the Service Contract Act. That is a debarable 
offense where we can make a recommendation that gets reported 
to GSA and they go on the debarred list for GSA.
    There is also the opportunity under MPSA for us to put 
people on what is called the ineligible contractor list. You 
would look at the severity of the violation, you would look at 
the history, the willfulness of the violation and those sorts 
of things to determine whether to put someone on the ineligible 
contractor list, and then on the other side, for violations of 
the Service Contract Act, whether to recommend debarment. I am 
sorry.
    Mr. Grijalva. So past pattern, past record would be an 
important element in that process?
    Mr. Passantino. You look at the prior history of the 
employer.
    Mr. Grijalva. Yes. And for both of you gentlemen, part of 
the discussion, well, I guess part of what you were hinting at, 
is the issue of resources within the administration and the 
inspection of the contractors. Has your agency or the 
administration requested more funding for this area since the 
Sacramento Bee in 2005 article?
    Mr. Kashdan. On the Forest Service's behalf, our program 
budget requests have been, as I stated, dramatically restrained 
by our need to cover our wildland fire suppression and wildland 
fire readiness funding. So essentially, if you look at a budget 
pie, the amount that we have been requesting for fire 
suppression is taking up probably about half of that pie now as 
compared to what it was 10 to 12 years ago which would have 
been a sliver like this.
    That differential is what is not going to these type of 
activities. So our requests have predominantly focused on fire 
suppression and we are trying as best we can to hold our own in 
the other areas.
    Mr. Grijalva. You are aware that there is legislation 
pending now or in the very near future to create a revenue 
stream for the fire suppression activities so we are not 
robbing Peter to pay Paul. As a consequence of that, would 
there be efforts on your behalf to increase the resource 
allocation for this part of----
    Mr. Kashdan. Well, let me actually clarify, Mr. Grijalva. I 
appreciate you asking that. I think you are referring to the 
Flame Act. Let me use this as the pie. The Committee version of 
the Flame Act would have dealt with that differential, the 
House passed version would not. It would not have changed that 
circumstance. So I think that is an important thing to clarify 
in terms of the additional resources associated with making 
additional requests.
    Mr. Grijalva. OK. Thank you. If I may, for the Department 
of Labor, Sir, in testimony before the Senate in 2006, 
Assistant Secretary Victoria Lim stated that there was an 
agency plan to investigate 50 percent of the contractors this 
season.
    However, according to the Federal procurement data system, 
since that hearing there were approximately 486 contractors, 
yet your data shows investing only 19 contractors performing 
work on public land. This is about four percent from my 
calculation of the contractors, nowhere near the 50 percent the 
agency committed to. What happened?
    Mr. Passantino. Sorry. I didn't recall the 50 percent 
figure and we are checking on that. We have stepped up our 
resources in this issue, we have conducted additional 
investigations from where we were in 2006, and we again plan to 
do an additional 90 investigations in the reforestation 
industry in Fiscal Year 2009, so I am not entirely sure what 
the Assistant Secretary was discussing specifically in her 
testimony and we will take a look at that, but, you know, we 
are increasing our efforts in the area in the industry.
    Mr. Grijalva. We would like you to submit that in writing 
to the Committee in response to that question, the 50 percent 
issue.
    Mr. Passantino. Sure.
    Mr. Grijalva. Let me follow up. There is a few questions 
about the enforcement experience documented in your May 2008 
report to Congress. Your report found, and you have mentioned 
this I think in part of your testimony, 63 percent of 
contractor working on Federal lands violated the Service 
Contract Act. Furthermore, 189 inspections produced 546 OSHA 
violations. You consider these numbers to be high?
    Mr. Passantino. I am not certain about the OSHA numbers. I 
am not part of OSHA. I don't know what they consider that to 
be. The 189 inspections were due to work and general Forest 
Service industry classification. They can't determine how many 
of them were in the reforestation sector so I am not sure on 
what the answer is on OSHA.
    With respect to the Service Contract Act, you know, we 
found 16 in violation, 12 violated the Service Contract Act, 
which requires the payment of fringe benefits in addition to 
the prevailing wage. You know, inexperienced Service Contract 
Act contractors may not be fully familiar with the fringe 
benefit portion of that.
    The other four were found to have violated overtime 
requirements of the Contract Work Hours and Safety Standards 
Act. Sixty percent, you know, obviously we would like to have a 
better compliance rate than that, but I don't view it as 
especially high.
    Mr. Grijalva. Some of the workers have died as a 
consequence in car accidents. Has the Department considered 
mandating to the contractors vehicle identification, safety 
belts, those kinds of safety requirements as part of the 
contract?
    Mr. Passantino. Well, the Department of Labor isn't 
involved in the actual contract, but with respect to the 
transportation, we enforce all Federal and state safety 
requirements, so if a state requires seat belts, then that is 
part of complying with MPSA.
    Now, Wage & Hour investigators don't have the ability to 
pull a van over but if we are conducting an investigation and 
inspection of a van of any transportation, any vehicle that is 
used to transport these workers, we will do an inspection to 
make sure that it complies with all applicable safety 
standards.
    Mr. Grijalva. And those would be?
    Mr. Passantino. There are Federal requirements, but also 
the state requirements. So if a state requires the use of seat 
belts, then that is part of complying with MPSA for that state.
    Mr. Grijalva. Has the Department of Labor considered 
issuing a regulation on seat belts?
    Mr. Passantino. We have not looked at opening up the MPSA 
regulations but it is something that the agency probably ought 
to take a look at. It has been a while since anyone has looked 
at the MPSA regulations.
    Mr. Grijalva. Thank you. Let me if I may, continuing with 
there seems to be a great deal of violations of workers' rights 
under the H-2A guest worker program and the H-2B program, but 
the Wage & Hour Division have been unable to keep up with the 
enforcement activities. The administration and much discussion 
seems to want to have hundreds of thousands of H-2A guest 
workers soon as part of the workforce in this nation.
    What resources in general would you need to ensure that H-
2A program requirements are enforced so that these workers, we 
are talking about the Pineros now but there is an ever 
increasing discussion of a huge expansion of this program, so 
that workers are protected and those employers that follow the 
law are not undermined? What kind of resources are you going to 
need to keep up with that discussion about adding hundreds and 
thousands of workers to those two programs?
    Mr. Passantino. I guess the first thing is, just to be 
clear, the Pineros are not under the H-2A program, they are 
under the H-2B program. The Department of Labor does not have 
enforcement authority at this time under the H-2B program. That 
resides with the Department of Homeland Security. So we don't 
enforce any of the wage provisions for H-2B, although we do 
enforce all of the other applicable Federal laws for H-2B 
workers.
    Under the H-2A program, the President's budget request for 
the past several budgets has requested additional investigative 
resources. We don't have investigators who do H-2A 
investigations and different investigators who do FLSA 
investigations. All of our investigators are responsible for 
all of our laws. So when we request additional resources, we 
are requesting additional resources for the agency as a whole, 
and that has a result of increasing resources in particular 
areas.
    Mr. Grijalva. Yes. And if I may now, if your colleague, Mr. 
Carlson, if you could comment? I have a followup question on 
that, and just your name and title. Thank you, Sir.
    Mr. Carlson. Thank you. It is William Carlson, Bill 
Carlson. I am the Administrator of the Office of Foreign Labor 
Certification within the Employment and Training 
Administration.
    Mr. Grijalva. It is a general question, Sir. Not that 
general, but the administration has recently been proposing 
major changes in H-2A program. Some of those changes which are 
disturbing to me is cutting wage rates, removing the housing 
requirement, reducing recruitment of U.S. farm workers, 
minimizing government oversight over the program.
    It appears to me that the purpose is to encourage the use 
of H-2A program to bring in cheap labor legally rather than 
bring in cheap labor illegally. But doesn't the H-2A statute 
specifically require that H-2A employers offer job terms that 
will not undermine the wages of legal U.S. workers?
    Mr. Carlson. That is a statutory responsibility of the 
Secretary of Labor under the INA that our office enforces 
across all the employment-based programs we administer. So we 
are looking for employers for their recruitment reports, 
whether it is a Pineros where we reduce the number of workers 
requested by employers in agriculture, the number of workers 
that were referred to jobs.
    Mr. Grijalva. Appreciate that. I don't have any other 
questions, I don't think anyone else does, so I appreciate your 
time and your testimony. Those particular questions that will 
be submitted in writing, very much appreciate it as soon as 
that can be returned back to the Committee. Thank you very much 
for your time.
    Mr. Passantino. Thank you.
    Mr. Kashdan. Thank you, Mr. Chairman.
    Mr. Grijalva. Let me invite the next panel up, please. 
Thank you very much, and welcome. Looking forward to the 
testimony. Let me begin with Mr. Michael Dale, Executive 
Director, Northwest Workers' Justice Project. Welcome, Sir.

        STATEMENT OF MICHAEL DALE, EXECUTIVE DIRECTOR, 
               NORTHWEST WORKERS' JUSTICE PROJECT

    Mr. Dale. Thank you, Mr. Chair, and the many distinguished 
members of the Committee. My name is Michael Dale, I am the 
Director of the Northwest Worker Justice Project, which is a 
nonprofit law firm that provides legal representation to low 
wage workers in the northwest. I have been involved with this 
issue for almost 30 years now, more than 30 years.
    Formerly, I was the director of the migrant program in 
Oregon Legal Services and a good part of what we did was 
represent reforestation workers in the northwest. I wouldn't 
want our criticisms of the efforts of the agencies who just 
testified to send the message that we don't think that what 
they are doing is important and that we don't appreciate the 
efforts they have made.
    Such as it has been, we do think that sustained, careful 
attention on these issues by these agencies will make a 
difference over the long run. I am not sure how much difference 
it has made yet, you will hear some of my colleagues testify 
about that, but notwithstanding, I think that sustained effort 
will make a difference, but it will take that.
    These are intractable problems. It will take sustained 
efforts. I would just point out that the pattern has been there 
is an expose, a scurry of activity and then it sort of falls 
off the front pages and off the agenda of the land management 
and enforcement agencies. This has been sort of the pattern 
that we have seen in the past and my testimony outlines that a 
bit more.
    We just hope that there will be continued focus on this, 
and we congratulate the Committee for holding this hearing in 
that regard. I want to focus on two or three things in the time 
that I have available. The primary one is I fear that we are 
about to take a giant step backwards and that is with these new 
H-2B regulations that are being proposed.
    These are regulations that will fundamentally change the 
structure of that program, and because of its importance in 
reforestation, change the nature of reforestation work.
    There are more detailed criticisms that could be offered 
but I would just simply say that it turns the system from one 
in which an employer has to prove to the Department of Labor 
that it has recruited U.S. workers and there are no workers 
available to one in which the employer merely has to attest 
that they have done all these things and the visas are issued 
and then if anyone is caught, a violation will be, you know, 
sort of after the cow is out of the barn, the workers involved 
will not have a remedy.
    This is a significant negative change. It also will 
eliminate the role of the states in administration of the 
program. Actually, the state workforce agencies in some states 
have really provided about the only oversight that we have 
actually seen effectively in the program and eliminating that 
role is ill-advised.
    Finally, there is this question that Mr. Passantino 
referred to about the authority of the Department of Labor. We 
actually think that the Department of Labor has enforcement 
authority now. In comments we made to the Department of Labor 
in the regs we outlined that in more detail. If the Committee 
is interested, I could submit that afterwards for the record.
    Leaving that question aside, we are proposing to change the 
regulations and change the enforcement mechanism on the basis 
that an agreement will be worked out between the Department of 
Homeland Security and the Department of Labor, but that 
agreement hasn't been worked out yet. It seems premature, and I 
think that we would be better served by holding off and going 
back to basics and reworking those proposed regulations.
    The final thing I would like to talk about has to do with 
enforcement of the Fair Labor Standards Act, and particularly, 
enforcement of a provision that is recognized by the Eleventh 
Circuit in the case called Arriaga.
    In the Arriaga case, basically what they said is that if 
you charge people fees in order to get a job and the fees are 
for the benefit of the employer really, that when the employer 
starts, in order for the minimum wage to actually be the 
minimum wage, you have to reimburse them for those fees.
    One of the significant problems that forestry workers have 
is the huge fees that they pay to get into the country and then 
that holds them in indentured servitude in the country because 
they have to have some way to repay the debt that they have 
incurred. If those debts were paid off in the beginning when 
people first came here, it would make a big difference.
    The Eleventh Circuit, and now four District Court cases in 
three different circuits, have all held that this principle, 
annunciated by the Eleventh Circuit in Arriaga, that you have 
to pay people and reimburse them for these fees, they have all 
come down the same way. Yet, inexplicably, the Department of 
Labor does not take this position in its enforcement and does 
not enforce the Arriaga principle. This would make a huge 
difference.
    I see my time is up so I will be happy to respond to any 
questions you may have.
    Mr. Grijalva. Thank you, Sir.
    [The prepared statement of Mr. Dale follows:]

           Statement of D. Michael Dale, Executive Director, 
                   Northwest Workers' Justice Project

    Mr. Chair, members of the Subcommittee. Thank you for the 
opportunity to speak with you today concerning the protection of 
reforestation workers on public lands. I spent twenty-five years as a 
migrant legal services lawyer, and directed the Oregon migrant program 
for most of that time. A key aspect of our work concerned the 
exploitation and abuse of workers on our national forests and BLM 
lands. Since its inception in 2003, the Northwest Workers' Justice 
Project has been providing legal assistance to reforestation workers in 
Oregon, Idaho and elsewhere who have been struggling to enforce their 
right to decent conditions and fair pay.
    Although some progress has been made, I must say that, overall, the 
treatment of workers who replant, thin and maintain national forests 
has been shameful. I have represented workers who were not paid the 
required Service Contract Act rate, did not get paid overtime, were 
unlawfully charged exorbitant fees for recruitment, transportation, 
housing, food, and even for the chain saws needed for their work and 
the gasoline for the saws, or were not paid at all. My clients have 
slept in the cold of winter in the mountains in equipment trailers, or 
under a plastic tarp. Some were abandoned in the mountains without food 
or transportation by their employer. Saddest of all, I have represented 
the families of workers who died in vehicle accidents on icy mountain 
roads in unsafe vehicles.
    Since an award-winning investigative report in the Sacramento Bee 
focused attention on these problems two years ago, the Forest Service, 
to its credit, has taken some initiatives to tighten oversight of the 
treatment of reforestation workers working on national forests. These 
steps may have been helpful, to the extent that those policy directives 
have been carried out on the ground. However, anecdotally, we continue 
to hear of poor and unsafe working conditions, underpayment of wages 
and unsafe housing and transportation practices. The history of several 
similar past initiatives teaches us that continued, sustained attention 
will be necessary to make significant improvements in the treatment of 
workers in the woods.
    Every few years there have been similar public exposes. In 1980 the 
Salem Statesman-Journal ran a series describing the exploitation and 
abuse of reforestation workers on public lands. In response, the House 
Subcommittee on Forests of the Committee on Agriculture held hearings 
in May of 1980 that brought to light the plight of pineros ``living in 
an environment of slavery...held in remote mountain workplaces under 
threat of violence...or desertion.'' The Subcommittee heard of false 
representation about working conditions, improper wage payment, 
improper deductions from wages, and poor living conditions. Witnesses 
called upon the Forest Service and the Department of Labor to make 
regular inspections of wage records and living and working conditions, 
to require that written disclosure of terms be given to the workers, 
and to streamline procedures for collecting unpaid wages. The Forest 
Service and the Bureau of Land Management committed to require payment 
bonds, assure proper licensing of contractors, and to improve 
interagency cooperation and communication in order to remedy the 
situation.
    In the early 1990s, there was a segment on Prime Time Live 
revealing nearly the same problems. The land management agencies again 
promised significant improvements in monitoring and communications. On 
September 10, 2002, 14 H-2B forestry workers were killed when the van 
in which their employer was transporting them to work toppled off a 
bridge in Maine. Again, there was an inquiry, and promises of reform.
    Each of these episodes has inevitably been followed by a flurry of 
activity, with renewed statements of intent to do better. However, as 
the focus of public attention faded, so, sadly, did the focus of 
enforcement activity. The primary challenge facing the land management 
agencies at this point is to sustain and intensify the efforts to make 
decent treatment of workers as much a part of quality contractor 
performance as is the physical completion of contracted tasks. Anything 
less is likely to result in falling back into the pattern that we have 
experienced in the past.
    Before making concrete recommendations, I would like to acknowledge 
some of the significant improvements that have occurred since the last 
examination of this issue by the Senate Subcommittee on Public Lands 
and Forests in March of 2006.
    A very important improvement achieved by Congress at the end of 
last year was modification of the rider on the Legal Services 
Corporation appropriation to permit programs funded by LSC to represent 
H-2B workers who were admitted for reforestation work. Already, we are 
beginning to see the effective representation of H-2B workers by legal 
services offices. It will take several years to rebuild the experience, 
expertise and outreach capacities that have atrophied since this type 
of representation was prohibited in 1996. Nonetheless, this change of 
law represents the best hope of achieving sustained enforcement 
attention with respect to the problems of reforestation workers on 
public lands.
    We have begun seeing some evidence of the efforts of the Forest 
Service. The clear statement of enforcement priority coming from the 
highest levels of management has been helpful in creating a different 
organizational culture with respect to these issues, although continued 
reinforcement of this policy will be needed. Likewise, incorporation of 
changes to the contracting procedures is no doubt helping to raise 
awareness of labor standards throughout the industry.
    This oversight hearing, itself, is evidence of the intent of 
Congress not to let the issue of fair treatment of workers on the 
national lands to once again fall into the shadows.
    These steps alone are unlikely to be sufficient however. In this 
light, I propose the following:
The Secretary of Labor should issue a regulation requiring seat belts 
        and identification for vehicles transporting forestry workers 
        and other migrant and seasonal agricultural workers.
    Motor vehicle accidents are the number one cause of fatal injuries 
among agricultural workers. These accidents have a common theme--they 
frequently involve exhausted drivers in overloaded, unsafe vans driving 
over long distances on foggy, icy, or windy mountain roads. In eight of 
the fourteen accidents reported in the Sacramento Bee series, ``The 
Pineros,'' five or more workers lost their lives in a single accident.
    Under the Migrant and Seasonal Agricultural Worker Protection Act, 
the Secretary of Labor is authorized to issue regulations to improve 
the safe transportation of migrant and seasonal agricultural workers. 
29 U.S.C. Sec. 1841. (The Migrant and Seasonal Agricultural Worker 
Protection Act protects reforestation workers.) The act authorizes the 
Secretary to make reasonable regulations, considering the numbers of 
workers transported, the distance over which they are transported, the 
type of vehicle involved and the type of roads over which they are 
transported. In order to protect the health, safety and lives of these 
workers, the secretary should amend these regulations.
    Currently, federal law requires that vehicles meet a number of 
specific safety measures, including that there be a seat for each 
passenger. Nonetheless, these regulations do not require seat belts. 
Many forestry workers are killed in transportation accidents because 
they are ejected from the vehicle due to the lack of seat belts. A 
particularly tragic accident involving 13 workers in California led the 
legislature in that state to pass a law in 1999 requiring seat belts. 
Under the California program, all vehicles used to transport farm 
workers are required to be labeled that they are ``Farm Labor'' 
vehicles so that the State Highway Patrol can specifically inspect them 
for compliance with the seat belt and other safety provisions.
    The Secretary's regulations also leave a simple escape route for 
employers seeking to abdicate responsibility for the vans in which 
their workers are transported, by providing that transportation which 
is not ``specifically directed or requested'' by an agricultural 
employer is exempt. The California state ``raitero'' (driver) law is 
more specific in that it covers any vehicle used to transport workers 
``to render personal services in connection with the production of any 
farm products to, for, or under the direction of a third person.''
    In testimony to the Senate Public Lands and Forests Subcommittee in 
2006, we recommended that the Secretary of Labor utilize her authority 
to issue a regulation under the Migrant and Seasonal Agricultural 
Worker Protection Act, requiring that: 1) vehicles used to transport 
forestry and other migrant and seasonal agricultural workers be 
equipped with a seat belt for each passenger; and 2) be identified on 
the outside of the vehicle as a ``Agricultural Labor'' vehicle. No 
action has been taken in this respect; perhaps it will take more 
spectacular tragedies with significant loss of life to achieve this 
minimal standard.
The DOL should ensure that the H-2B program is used as intended--only 
        when there is a shortage of U.S. workers.
    Many of the employers who contract for work on the national forests 
use the H-2B program to bring temporary foreign laborers into the 
United States to do reforestation work. The H-2B program is abused in 
forestry in a number of ways that should be addressed by DOL. The 
program is supposed to be used to provide a way to obtain needed 
workers for existing jobs where an employer can't find U.S. workers 
available at a time and place needed for a specific job. Many forestry 
contractors, though, apply for H-2B workers before they know what 
contracts they will have. The workers are recruited and brought here on 
speculation that contracts will be awarded. Then, it may turn out that 
expected work is not available. This leads to underemployment of the 
workers, and commonly, to use of the workers in other jobs which pay 
less than the forestry wage and which are not authorized work. Since 
forestry jobs are covered by the Migrant and Seasonal Agricultural 
Protection Act, forestry contractors are required to give recruited 
workers a disclosure statement describing the particular work and pay 
arrangements they are offering. H-2B procedures require contractors to 
attempt to recruit U.S. workers for the work for which foreign workers 
are sought prior to admission of the visa workers. DOL could require 
that forestry contractors supply a copy of their recruitment disclosure 
statement detailing promised work with their H-2B application to help 
ensure that the contractor actually has a specific need for workers.
DOL should adopt regulations imposing H-2A-like standards in the H-2B 
        program.
    DOL could take some additional steps to strengthen enforcement. 
When the H-2B program was created, DOL was supposed to develop 
regulations modeled after the H-2A regulations. This was never really 
done, and the result is a lack of standards for H-2B workers. DOL 
should fulfill this obligation now. For the most part, the H-2A 
regulations should be the model, with consideration for the special 
aspects of forestry. However, forestry workers should not be 
encompassed within the H-2A program, as this would destroy the 
protections that they have under the Migrant and Seasonal Workers 
Protection Act.
    However, rather than strengthening its regulation of the H-2B 
program, the Employment Training Administration of the Department of 
Labor has instead proposed regulations that would significantly weaken 
the meager regulatory provisions. Instead of requiring employers to 
demonstrate that they have attempted to recruit U.S. workers and found 
them to be unavailable by obtaining a certification from the Department 
of Labor of a need for foreign workers, the proposed regulations would 
merely require that the employer attest that it has not been able to 
find available U.S. workers. This will lead to further abuse of the 
program, and a loss of job opportunities to U.S. workers. Under the 
current program, the principal gatekeepers for assuring eligibility to 
obtain H-2B workers have been the state employment services, at least 
in some states. The proposed regulations would federalize the 
application process, and virtually eliminate any role for the state 
agencies in administering the program. These proposed rules, and 
similar misguided proposals to gut protection of H-2A workers, should 
not be adopted by the Department.
DOL should enforce the Arriaga decision requiring that workers be 
        reimbursed for fees they paid to obtain their H-2B visa.
    A major source of the vulnerability of H-2B temporary foreign 
laborers stems from the huge recruitment fee they often pay in home 
countries in order to secure a job in the United States. These fees, 
sometimes amounting to thousands of dollars, are often paid with 
borrowed money secured by whatever of value the worker or his family 
has. If, on arriving in the United States, the job turns out to be very 
different than was represented, workers face a difficult dilemma. They 
can't lawfully quit and move to another job in the United States, as 
this violates their visa status. On the other hand, if they quit and 
return home, they have no way to repay the debt incurred for the 
recruitment fee.
    U.S. federal courts have recognized that, under the Fair Labor 
Standards Act, employers must pay travel, visa, and passport expenses 
of H-2 temporary workers to the extent that they push a temporary 
foreign worker's wages unlawfully below the minimum wage. Beginning in 
2002, the Eleventh Circuit held in Arriaga v. Florida Pac. Farms, 305 
F.3d 1228, 1232 (11th Cir. 2002) that travel, visa, and immigration 
expenses are costs that H-2A workers have incurred primarily for the 
employer's benefit and that the employer must reimburse workers for 
these expenses. The Eleventh Circuit urged ``[n]onimmigrant alien 
workers employed pursuant to this program are not coming from 
commutable distances; their employment necessitates that one-time 
transportation costs be paid by [the employer].'' Id. at 1242. 
Moreover, the Court noted, by participating in the temporary foreign 
worker program, the employers ``created the need for [] visa costs, 
which are not the type of expense they are permitted to pass on to the 
[workers].'' Id. at 1244. Under Arriaga, H-2A employers must therefore 
reimburse workers at the beginning of their employment to the extent 
that such expenses reduce net wages for the first work week below the 
minimum wage. Id. at 1241.
    The Eleventh Circuit's reasoning has resonated among federal courts 
across the country. In 2004, the Eastern District of North Carolina 
agreed with the Arriaga analysis in De Luna-Guerrero v. N.C. Grower's 
Ass'n, 338 F.Supp.2d 649, 665 (E.D.N.C. 2004). In Recinos-Recinos v. 
Express Forestry, Inc., No. Civ.A. 05-1355, 2006 WL 197030 (E.D. La. 
2006) the Eastern District of Louisiana found that ``[t]he rationale 
employed by the Arriaga court is applicable to the H-2B program 
[because] Arriaga is an FLSA case which does not hinge on any 
differences between the 
H-2A and the H-2B guestworker programs.'' Accord, Castellanos-Contreras 
v. Decatur Hotels, LLC., 488 F.Supp.2d 565, 571-72 (E.D. La. 2007); 
Rivera v. Brickman, No. 05-1518, 2008 WL 81570, at *4 (E.D. Pa. 2008); 
Rosales v. Hispanic Employee Leasing Program, LLC, No. 1:06-CV-877, 
2008 WL 363479, at *1 (W.D. Mich. 2008).
    Nonetheless, the Department of Labor does not generally follow the 
Arriaga decision in its enforcement activities with respect to forestry 
workers on public lands. It should do so.
DOL and the forestry agencies should hold repeat offenders responsible 
        for their actions.
    Both DOL and the forestry agencies need to be willing to take 
strong action against repeat offenders of labor standards. At one time, 
the Forest Service agreed to subject contract bids that were 
significantly below the agency's estimate to special scrutiny to assure 
that the lowest bidder is a responsible one. It is unclear if they 
still do this, but blatant abusers of workers are awarded contracts 
year after year. They should be debarred by the DOL, and should not be 
viewed as being capable of performing the contract by the contracting 
agencies. One of the contractors in the Pinero series who had been sued 
for holding workers in peonage was still defended by a Forest Service 
official as being a great contractor because he produced quality 
results for the Forest Service.
    Further, the Forest Service and BLM need to take steps to change 
the culture of those agencies so that contract officers know that 
enforcing the service contract's labor protections is just as important 
as getting the work done. Training, evaluation and promotion should 
take this factor into equal consideration, and the agencies' 
expectations in this regard must be clearly and consistently 
communicated. The steps taken by the Forest Service are a good 
beginning, but the obligation of agency line staff to follow through 
must be reinforced over time.
    Thank you for your consideration of these comments.
                                 ______
                                 
    Mr. Grijalva. Ms. Cassandra Moseley, Ecosystem Workforce 
Program, University of Oregon. Welcome.

 STATEMENT OF CASSANDRA MOSELEY, ECOSYSTEM WORKFORCE PROGRAM, 
                      UNIVERSITY OF OREGON

    Ms. Moseley. Thank you. I am happy to be here, and thanks 
for the opportunity to speak today. I, like Michael, want to 
say that we really have heard some impressive changes from the 
Forest Service and the Department of Labor over the last couple 
of years. I think the question is are they really having an 
impact on the ground yet?
    So what I wanted to do today is to offer some reflections 
about the impacts of these efforts and to suggest some further 
action because in fact what you will hear and what you have 
seen already in my written testimony is that the impact on the 
ground has been we haven't gone far enough as the contractors.
    So in anticipation of this hearing we recently asked 10 
Forest Service thinning contractors from Oregon, Washington and 
California about the issue of enforcement. Ten is clearly too 
many, if I put on my science hat, to draw any firm conclusions, 
but I think that nevertheless there are some interesting 
results from these interviews.
    Nine of the 10 contractors were aware that the Forest 
Service and Department of Labor had said that they were going 
to step up enforcement efforts; however, only one had said that 
they had actually seen Forest Service increasing inspections, 
and only one other believed that the Department of Labor had 
substantially increased enforcement efforts, although 
interestingly, several had been notified by the Department of 
Labor that they might in fact come talk to their workers.
    Many of them didn't know whether that had actually 
occurred. Going into these interviews we thought that if 
contractors believed that there were a lot of increased risks 
from investigation contract prices might be going up to reflect 
the increased labor costs that they may be facing. None of the 
contractors we spoke with however believed that labor law 
enforcement was affecting bid prices yet, which suggests a lack 
of some sort of systemic change.
    Given what we heard earlier, the question is why aren't we 
seeing a sort of systemic impact yet? I think the answer lies 
in some of the reporting that we heard earlier. I am working 
here now from the May 2008 Department of Labor report. In that 
report, if you do the math, the agency found about 80 percent 
of the contractors they investigated in violation of MPSA, 
about 40 percent in violation of the Fair Labor Standards Act.
    Among the Forest Service Contractors, two-thirds of 
Department of Labor investigations found the violations of the 
Service Contract Act. In my mind, that seems like a very high 
percentage. So given the frequency of these violations I was 
surprised to see that we haven't seen any shift in market 
prices.
    I think the challenge lies in the small number of 
investigations they have undertaken. At the time of the May 
report they had investigated only 40 contractors and only 15 of 
those had been on national forests.
    Like you said earlier, if you do the math, that is less 
than five percent of Forest Service thinning and tree planting 
contractors, and, as far as I can tell, none of the over 100 
Bureau of Land Management contractors that were awarded 
contracts since the Senate hearing in 2006. In this context, it 
seems like it is still pretty unlikely that you would get 
caught, and so it is maybe not so surprising that prices 
haven't changed.
    Another area that was identified as a challenge in the 2006 
Senate hearing was the pressure created by output oriented 
targets that award national forests that lower unit costs. The 
Forest Service has adopted some new performance measures but 
those have mostly been by a physical rather than socioeconomic 
and so we haven't seen a lot of shift in that area.
    As Mr. Kashdan said earlier, the forest budget situation 
has deteriorated significantly with fire suppression swallowing 
an ever increasing proportion of a shrinking pie. This places 
further pressure to the agency to lower costs rather than to 
focus attention on job quality.
    Improving working conditions is a difficult task, and let 
me just offer some recommendations. First, I think the 
Department of Labor and the Forest Service need to continue to 
ramp up their inspection. For the Department of Labor, I would 
really like to see them partner much more and develop a 
partnership like they have with the Forest Service but with the 
Bureau of Land Management.
    Because the Bureau of Land Management manages a lot of the 
same lands using the same kinds of contractors, I would like to 
see the Forest Service much more visible in the field so that 
contractors realize that there is a real risk and that the 
staff readily identifies safety and wage and hour violations to 
the Department of Labor. This needs to be ramped up.
    Finally, let me say that Congress and OMB really should 
bring to a halt the Forest Service's downsizing and 
outsourcing. Constant budget cutting, personnel reduction and 
reorganization is destroying the agency's capacity to undertake 
land management, appropriately oversee contracts and focus on 
job quality.
    In my few seconds here at the end let me close with a quote 
that former Pacific Northwest Regional Forester Linda Goodman 
sent to her staff after she attended the worker forum at the 
University of Oregon in January of 2007. She wrote, ``I am 
deeply moved by the forest workers who gave their personal 
testimony.''
    ``From their heart, they told tales of being forced to 
sleep eight to a room, not being paid for work completed, the 
lack of any treatment of injuries and the indignities of being 
called names and verbal humiliation. As I sat there listening 
to their emotional pleas to make things right, I realized that 
this is all of our responsibility. It is our duty to ensure a 
safe and healthy workplace for all.''
    ``We wouldn't treat our employers so poorly, and we cannot 
afford to let our contracted workforce be treated cruelly and 
inhumanely.'' Thank you for your time.
    Mr. Grijalva. Thank you very much.
    [The prepared statement of Ms. Moseley follows:]

  Statement of Cassandra Moseley, Ph.D., Ecosystem Workforce Program, 
     Institute for a Sustainable Environment, University of Oregon

    Mr. Chairman and Members of the Subcommittee:
    Thank you for the opportunity to testify before you today. I am 
pleased to be able to contribute to this timely issue. The working 
conditions in our nation's forests affect not only the lives of workers 
and their families, but also the viability of small rural businesses 
and the integrity of forest ecosystems.
    Today's hearing is particularly important because it offers an 
opportunity to examine the progress we are making towards improving the 
working conditions of forest workers. Through this hearing, we can hope 
to learn more about how conditions may be changing, identify remaining 
problems, and explore solutions to the challenges of creating high 
quality jobs for forest workers and economic opportunities for public 
land communities.
    I am on the faculty of the University of Oregon, where I direct the 
Ecosystem Workforce Program in the Institute for a Sustainable 
Environment. Founded in 1994, the Ecosystem Workforce Program seeks to 
build ecological health, economic vitality, and democratic governance 
in rural forest communities in the American West. The Ecosystem 
Workforce Program supports these interconnected issues with applied 
research and policy education related to community-based forestry and 
federal forest management.
    Over the past seven years, I have undertaken a number of studies 
about whether Forest Service and Bureau of Land Management (BLM) 
restoration contracting creates rural community benefit and about the 
working conditions of federal contract forest workers. As part of these 
studies, my collaborators and I have interviewed forest workers and 
contractors and analyzed federal contracting and state employment data. 
We have examined these issues in general terms, as well as under 
specific programs including the National Fire Plan, the Northwest 
Forest Plan, and stewardship contracting.
    Although I appreciate the opportunity to share my research, 
ideally, you would be hearing directly from forest workers about 
current conditions. But, for many workers, the stakes are just too 
high. Workers who might consider coming would certainly lose pay for 
their time away from their all-too-short work season. They would likely 
be fired if they spoke out against their employer and, perhaps, 
blackballed from the industry entirely. Only citizens or legal 
permanent resident could even consider coming; guest workers and 
undocumented workers would risk deportation. Even at the forum about 
working conditions held in Eugene in early 2007, which I will discuss 
later, one worker who had signed up to speak, crossed his name off of 
the list when he realized that his boss was in the audience.
    I cannot begin to speak for either workers or contractors. 
Nevertheless, I can share some of the trends I have observed over the 
few years that might help shed some light on the challenging issue of 
creating quality jobs in the woods. In my testimony today, I will 
provide information related to the problem of working conditions for 
forest workers, offer my observations about how things may be changing, 
and finally suggest recommendations about how we might make further 
progress.
A Forest Restoration Workforce
    Our nation's forests and watersheds have significant restoration 
and maintenance needs, including decaying forest roads, degraded stream 
and forest habitat, and overstocked stands in need of thinning to 
reduce wildfire risk and restore fire-adapted ecosystems. These needs 
present an opportunity to create green jobs--high-skill, high-quality 
jobs that benefit rural communities, small businesses, forest workers, 
and the environment. While there are many ways to think about job 
quality, in this context, we should think about a high-quality job as 
one that includes, (1) wages high enough support family, (2) respectful 
treatment, (3) a safe and healthy workplace, (4) stable, durable 
employment, (5) the ability to work close to home, and (6) skill 
standards and structured on-the-job training.
Contract Forest Work and Workers
    Forest restoration work involves a wide variety of tasks, from 
maintaining forest roads, restoring streams to create fish habitat, and 
collecting native grass seed, to planting trees after logging or 
wildfires, and thinning overstocked stands to improve habitat and 
reduce fire hazard. The primary way that restoration work is performed 
on national forest and other federal forest lands is through service 
contracts and, increasingly, stewardship contracts. The federal 
government awards restoration contracts to businesses that, in turn, 
hire workers to undertake restoration and maintenance activities. Some 
of these contractors employ workers directly, while others use labor 
subcontractors or temporary agencies. 1
    At issue today are forest workers who perform labor intensive 
activities such as planting trees, thinning overstocked stands, piling 
brush, and fighting fires. According to the Federal Procurement Data 
System, between January 1, 2006 and August 31, 2008, the Forest Service 
obligated $133,517,404 to approximately 365 contractors for contract 
tree planting and thinning nationwide. The Bureau of Land Management 
obligated $34,308,956 to about approximately 121 contractors. Workers 
performing these labor-intensive jobs come from a variety of ethnic 
backgrounds. Often, they are Hispanic and to a lesser extent, European 
American, Native American, and African American. Forest workers may be 
U.S. citizens, noncitizens with resident alien papers, H2-B guest 
workers, and those without permission to work. In the Southeastern 
U.S., contractors seem to make more use of H2-B workers, whereas 
contractors in the Pacific Northwest appear to rely more heavily on 
undocumented workers. 2
Working Conditions
    In 2005, Tom Knudson of the Sacramento Bee wrote a series about 
poor working conditions of contract forest workers working on federal 
lands. His series mirrored two earlier series, one in the Sacramento 
Bee in 1993 and the other in the Salem (Oregon) Statesman Journal in 
1980. 3 As a result of the 2005 Bee series, the Forest 
Service and the Department of Labor developed new strategies and 
commitments to increase enforcement existing labor and contract laws 
designed to protect workers. In 2006, the U.S. Senate held a hearing on 
the working conditions of forest workers. At the hearing, 
representatives of nongovernmental organizations reported poor working 
conditions, the challenges of creating rural community benefit from 
forest management contracting, and the difficulties that contractors 
who treat their workers well have in competing in the federal 
contracting market.
    Those who testified, including myself, also identified a number of 
dynamics that lead to poor working conditions. They included:
      A lack of labor and contract law enforcement,
      Targets, performance measures, and budget allocation 
processes that reward national forests that accomplish work at the 
lowest cost,
      A culture of low bid contracting and below cost awards 
that create hypercompetitive contracting markets, and
      Unequal treatment for undocumented workers, which makes 
these workers vulnerable to exploitation and lowers jobs quality for 
all workers in the sector.
    Over the past three decades, these pressures have created a system 
that rewards contractors who cut corners to offer the lowest prices. 
When contracts involve significant physical labor, contractors' options 
for cutting costs lie primarily in increasing the speed at which people 
work and reducing wages. Strategies for cutting costs have included not 
paying overtime, paying below the required minimum wage, and paying 
some people under the table to reduce worker compensation and tax 
costs. At first blush, low-price contracting appears to save the 
government money. In reality, however, it costs the American taxpayer 
when poor quality work has to be redone, when taxes are underpaid, and 
when poorly paid workers have to apply for food stamps and other public 
assistance or seek medical care in emergency rooms without insurance.
Efforts to Improve Conditions
Increasing Enforcement
    Over the past several years, efforts to improve working conditions 
have been primarily focused around increasing enforcement of labor 
laws. The Forest Service and the Department of Labor have coordinated 
enforcement efforts including creating a shared databases that notifies 
the Department of Labor whenever the Forest Service awards a contract 
that involved migrant or seasonal labor. Let me offer a few comments 
about what I understand to be the effects of these efforts.
    In January 2007, after the first field season with the new 
enforcement efforts in place, the Forest Service, Department of Labor, 
and a number of nongovernmental organizations held a forum at the 
University of Oregon. The Forest Service and the Department of Labor 
reported their progress in enforcement. Workers and contractors, 
however, described ongoing challenges rather than significant 
improvements.
    Former Pacific Northwest Regional Forester Linda Goodman attended 
the forum, and sent an email in February to her staff, sharing what she 
heard and her reactions:
        ...I was deeply moved by the forest workers who gave personal 
        testimony about the working conditions they often face while 
        under employment of Forest Service contractors. From their 
        heart, they told tales of being forced to sleep eight to a 
        room, not being paid for work completed, the lack of any 
        treatment to injuries, drinking out of streams as no other 
        water was provided to them, and the indignities of being called 
        names and verbal humiliation. As I sat there listening to their 
        emotional pleas to make things right, I realized this is all of 
        our responsibility.

        It is our duty to ensure a healthy and safe workplace for all--
        we wouldn't treat our employees so poorly, and we cannot afford 
        to let our contracted workforce be treated cruelly and 
        inhumanely. If you come across such behavior, report it to both 
        a line officer and a contracting officer. I have no tolerance 
        for anyone being treated disrespectfully.
    In anticipation of today's hearing, I worked with a student at the 
University of Oregon to conduct a small series of telephone interviews 
with contractors from Oregon, Washington, and California. Ultimately, 
we asked ten Forest Service thinning contractors whether they knew 
about the new enforcement efforts and whether these efforts had 
impacted bid prices. Clearly, these interviews are too few to draw any 
firm conclusions. However, these conversations suggest some trends. 
First, nine of the ten contractors we interviewed were at least vaguely 
aware that the Forest Service and Department of Labor intended to step 
up enforcement. Although many of the contractors had received 
notification about increased Forest Service inspections or the 
possibility of DOL staff coming to talk to their workers, several 
expressed skepticism that anything had really changed. Only one thought 
that the Forest Service had increased inspections. Only one other 
believed that the DOL had substantial increased enforcement efforts. As 
a result, this contractor had taken steps to ensure that his company 
was compiling with all of the laws. Taken together, the interviewees 
seemed to suggest more change in DOL actions than in Forest Service 
actions.
    We also asked contractors whether bid prices had increased as a 
byproduct of increased enforcement efforts. We hypothesized that if 
contractors believed that they were at risk from investigation, they 
might increase prices to ensure that they were covering all of their 
labor costs. This might lead to an overall increase in market prices. 
None of the contractors we spoke with believed that labor law 
enforcement was affecting bid prices. They either reported declining 
bid prices or increases in prices due to increasing fuel costs.
    Taken in sum, then, it does appear that contractors have generally 
heard that the agencies planned to increase efforts and some of 
experienced this increase enforcement. But this enforcement has not 
created a systemic impact. The question is why. If we bring together 
the contractor interviews with the Department of Labor's May 2008 
report to Congress, we can begin to piece together a likely explanation 
for the limited impact that the DOL and Forest Service seem to be 
having.
    Before doing so, it is worth noting that I do not know of any 
Forest Service report documenting their efforts beyond what is 
identified in the May 2008 DOL report.
    However, according to the May 2008 report, the Department of Labor 
found 80 percent of the contractors they investigated were in violation 
the Migrant and Seasonal Agricultural Worker Protection Act and 40 
percent in violation of the Fair Labor Standards act. Similarly, OSHA 
found over 500 hundred of safety violations across 168 inspections. 
This suggests that safety and labor law violations are, in fact, 
rampant. Among Forest Service contractors, two-thirds of those they 
investigated were found to be in violation of the Service Contract Act.
    Given the frequency of labor law violations and the likely costs to 
contractors from fixing these violations, we might be surprised to find 
that market prices do not seem to be increasing. However, the 
Department of Labor investigated only 40 contractors nationwide. Over 
half of the contractors were working on private land, while only 15 
were working on national forests and apparently none on Bureau of Land 
Management or other public lands. During this same period, the Forest 
Service contracted with more than 300 contractors to perform thinning 
and tree planting contracts nationwide. The DOL investigated fewer than 
5 percent of Forest Service thinning and tree planting contractors 
since January 2006 and none of the over 100 BLM contractors.
    Although the Department of Labor has likely conducted more 
investigations in this sector than it has historically, the agency has 
only investigated a small percentage of contractors. With a small 
number of investigations, the likelihood of being caught or even 
knowing another firm who has been caught is small. In this context, it 
makes sense that contractors are reporting no change in the contracting 
market prices.
    Given the high percentage of violations, it appears that there is a 
lot more work to be done in the area of enforcement alone. We probably 
also need to see increased publicity of the fact that the DOL is 
actually catching violators, so contractors know that there are risks 
to continuing to violate labor and safety laws.
Increasing Community Benefit and Reducing Low Bid Contracting
    In addition to lack of labor and contract law enforcement, other 
issues identified at the 2006 Senate hearing included below cost awards 
and lack of consideration of community benefit when considering the 
best value to the government. In late 2006, the Forest Service asked me 
to conduct a review of whether the Forest Service was considering 
community benefit in their awards of thinning contracts in New Mexico, 
and whether there was a pattern of contracts awarded well below the 
government estimate for the work. I found that, in New Mexico, the 
Forest Service was more likely to award contracts below the government 
estimate than above it. However, it was difficult to tell if the Forest 
Service was awarding contracts well below cost, because the agency 
frequently did not document the ways in which they were calculating the 
government estimate for how much the work should cost to complete.
    I also found that the Forest Service had not been considering 
community benefit outside of stewardship contracting in New Mexico. 
After the study was complete, however, the Forest Service acquisition 
management director issued field guidance to consider community benefit 
when awarding fire hazard reduction and watershed restoration 
contracts. I do not know of any further evaluation of whether the 
agency is more frequently considering local benefit as a result of this 
field guidance.
Changing Performance Measures
    A third challenged identified at the 2006 Senate hearing was 
pressure created by output-oriented targets that reward national 
forests that can lower unit costs. Since 2005, the Forest Service had 
adopted a series of new performance measures in an effort to move 
beyond a singular focus on outputs such as volume harvested or acres 
treated. However, these performance measures have largely focused on 
biophysical outcomes rather than associated social and economic 
impacts. Moreover, the Forest Service budget situation has only 
deteriorated further, with fire suppression swallowing an ever-
increasing proportion of a shrinking pie. This dynamic places further 
pressure on the agency to focus on low cost and consumed Forest Service 
staff time with constant reorganizations and downsizing, rather than 
focus on the task of land management, including the conditions of work.
Recommendations
    The Department of Labor should be commended for their increased 
focus on this sector. Their efforts have revealed the huge problems and 
have begun to address them. Improving working conditions is difficult 
task, and we cannot hope to solve a three-decade old problem overnight. 
Despite progress towards improving labor law and safety enforcement, 
there is additional work to be done if we are to build high quality 
jobs in the woods. There are several opportunities to make additional 
progress.
    1.  The Department of Labor and the Forest Service should further 
increase their inspection and investigation efforts. These inspection 
efforts should include a significant focus on thinning in addition to 
reforestation. The Forest Service is spending a lot of their budget on 
thinning, and labor law and safety violations are common in this area.
    2.  The Department of Labor should expand its enforcement efforts 
across multiple landowner types. Accordingly, it should work with the 
BLM to create a contract notification system and other information 
sharing techniques and increase its review of BLM contractors.
    3.  Congress and the Office and Management and Budget should bring 
to a halt the Forest Service's downsizing and outsourcing, which are 
destroying the agency's capacity to undertake land management, 
appropriately oversee contracts, and focus on job quality.
    4.  The Forest Service, in particular, but also the BLM, and 
Department of Labor should increase the visibility of their efforts by 
regularly publishing information about how they enforce labor laws, and 
the impacts of those efforts.
    5.  The Forest Service and BLM need to create performance measures 
that measure progress towards improving the quality of business and 
employment opportunities for public lands communities and workers.
    6.  As Congress considers additional funding and legislation to 
support green job development, whether for climate change, alternative 
energy development, or landscape restoration, it is critical that it 
support high quality green jobs. Green job development should not only 
be targeted at urban dwellers but also rural workers and businesses. 
Rural public lands communities and landscapes need high quality green 
jobs that stimulate the local economy and restore forests and 
watersheds.
Conclusions
    The challenge of creating quality jobs among labor-intensive forest 
workers has plagued the industry for decades. There are some dynamics 
that seem to be improving--particularly increasing labor law and safety 
enforcement--but the few contractors we spoke to over the past several 
weeks have not seen systemic change. There are others dynamics such as 
unequal treatment for undocumented workers, budget constraints, 
targets, and a culture of low cost contracting which have received 
little attention. Making forest restoration jobs safe and profitable 
will require sustained attention of Congress, the federal land 
management agencies, the Department of Labor, and labor and community 
organizations.
    Thank you for the opportunity to comment on the difficult 
challenges facing the federal land management agencies, forest workers, 
and rural communities in creating quality jobs restoring our nations' 
forests.
Endnotes
1 Brinda Sarathy, ``The Latinization of Forest Management 
        Work in Southern Oregon: A Case from the Rogue Valley,'' 
        Journal of Forestry 104, no. 7 (2006).
2 Brinda Sarathy and Vanessa Casanova, ``Guest Workers or 
        Unauthorized Immigrants? The Case of Forest Workers in the 
        United States,'' Policy Sciences 41, no. 2 (2008).
3 Chris Bowman and Maria Campopesco, ``Shame in the Forest: 
        U.S. Hires Undocumented Workers,'' Sacramento Bee, June 8 1993, 
        Phil Manzano and Michael Walden, ``Labor Exploitation Grows 
        with Reforestation Industry'' Statesman Journal, October 12 
        1980.
                                 ______
                                 
    Mr. Grijalva. Ms. Denise Smith, Executive Director, 
Alliance of Forest Workers and Harvesters. Welcome.

  STATEMENT OF DENISE SMITH, EXECUTIVE DIRECTOR, ALLIANCE OF 
                 FOREST WORKERS AND HARVESTERS

    Ms. Smith. Thank you very much, Chairman Grijalva and 
Subcommittee staffers, for holding this hearing and for giving 
attention to this important issue. I appreciate that these 
issues are on your minds as concern for the welfare of workers 
on public lands grows. I am Denise Smith, the Executive 
Director of the Alliance of Forest Workers and Harvesters.
    The Alliance is a multicultural grass roots organization 
promoting social, environmental and economic justice in the 
Pacific West. Our membership includes contract workers who work 
doing restoration, reforestation, firefighting and other 
forestry activities, both on public lands and private lands.
    In 2001, Celia Headley, AFWH member, testified before the 
Senate on worker conditions. In 2005, Tom Knudson of the 
Sacramento Bee wrote a series of articles called the Pineros 
which highlighted forest worker abuse on public lands. Also, 
the Senate held hearings on forest worker conditions after that 
which the Alliance provided written testimony for.
    Following that, the chief of the Forest Service issued a 
letter to contracting officers to monitor and report workplace 
violations. This was important because up until then more 
attention was given to specifications on management treatment 
and little to no attention was given to worker conditions.
    Enforcement of labor laws was said to be the responsibility 
of the Department of Labor and not the Forest Service. It makes 
sense that the Forest Service and the Bureau of Land Management 
monitor the workers' conditions because every contract on 
public lands has the contracting officer visit the site during 
the contract, yet, it has been two years since the letter was 
issued, and sadly, workers tell us really there have not been 
changes in their working conditions.
    This past summer the Alliance did a study that showed 
workplace violations continue despite the Forest Service 
recordkeeping showing otherwise. The Forest Service said they 
were going to inspect 100 percent of all service contracts, 
yet, the Forest Service database shows only eight violations in 
the two years and none were health and safety violations.
    Meanwhile, Department of Labor, OSHA, inspected 189 times 
and found 546 violations over the same two years. Last year 
Alliance of Forest Workers and Harvesters member Cecilia 
Headley also was allowed to observe two Forest Service and 
Department of Labor inspections on public lands.
    While it is clear that the contracting officer and the 
Department of Labor investigators did a good job looking at 
wages, health and safety, we also learned that once the 
inspections were completed they were filed in each contractor's 
individual files if no violations were found which can only be 
accessed at the district or where the contract files are kept.
    The Alliance recommends that the Forest Service and 
Department of Labor keep better records of inspection and 
violations and provide better updates in a central database 
with accurate information and reporting that Congress and 
others can access. We also recommend the Bureau of Land 
Management and the Department of Homeland Security be required 
to do the same.
    Yet, the problems go deeper. Unfortunately, with pressure 
for public land managers to do more with less and the common 
practice of awarding contracts to the lowest bidder, we see 
that it is bad for the workers and bad for the land.
    Contractors are forced to cut costs by not maintaining safe 
vehicles, often paying less than service contract wages, they 
push workers harder and harder with no breaks and they do not 
provide health and safety training and often don't even supply 
safety gear. The workers are pushed to exhaustion and accidents 
become more frequent.
    The Alliance recommends instead of using price as the main 
criteria in awarding contracts, consider qualities such as the 
capacity of the workforce to do the quality work and the safety 
record of the contractor. It should also set an example of 
abusive contractors and have them debarred and not let them 
gain access to contracts on public lands. We want to see that.
    All Alliance members, the workers tell us that forestry is 
not an unskilled job. Everything in forestry requires skill. 
Yet, forestry workers fall under the category of H-2B and 
companies can bring them in under that. H-2A workers currently 
have more protections than H-2B workers. H-2B forestry workers 
continue to be abused and marginalized on public lands.
    We recommend Congress support reform to the H-2B program 
which will better protect workers. In closing, I would like to 
thank this Committee for allowing me to testify at this hearing 
on behalf of the people whose hands touch the land and who are 
most affected by the policies that the government creates and 
enforces.
    I speak about not just workers rights, I speak about human 
rights as well. Thank you.
    Mr. Grijalva. Thank you very much.
    [The prepared statement of Ms. Smith follows:]

            Statement of Denise Smith, Executive Director, 
               Alliance of Forest Workers and Harvesters

    Mr. Chairman and Members of the Subcommittee:
    Thank you for the opportunity to testify before you today. We at 
the Alliance of Forest Workers and Harvesters sincerely appreciate the 
ongoing attention the subcommittee is devoting to the health, safety, 
travel and working conditions to which workers are subject while 
working on public lands. We feel that addressing these conditions is 
crucial to the stewardship of public lands because, after all, it is 
workers' hands that touch the land. Taking action on these conditions 
is also crucial to the role of the United States as a world leader in 
justice, fairness and human rights.
    The Alliance of Forest Workers and Harvesters (Alliance) is a 
multicultural, grassroots organization promoting social, environmental, 
and economic justice in the Pacific West. Our membership includes 
contract workers who implement land management activities on the ground 
through reforestation, restoration, fuels reduction, timber stand 
improvement, fire fighting, and other forestry activities. Many of our 
members have been working on public lands for a number of years, in 
some cases decades, and bring a wealth of experience and insight.
    We have provided testimony to congressional committees before. On 
March 29, 2001. Alliance member Celia Headley testified to the Senate 
Subcommittee on Forests and Public Land Management at an oversight 
hearing on the National Fire Plan. On March 1, 2006 I provided written 
testimony to the Subcommittee on Public Lands and Forests, Senate 
Energy and Natural Resources Committee Oversight Hearing on Guest 
Workers on Public Lands and Forest Service Guidance. While some 
improvements have been made, I regret to report that much of what we 
said in 2001 and 2006 remains problematic today.
Poor U.S. Forest Service Records and Continued Workforce Abuse
    After Tom Knudson published the Pineros articles in the Sacramento 
Bee in November of 2005, then U.S. Forest Service Chief Dale Bosworth 
gave three specific directions to the agency's contract administrators: 
1) to report possible violations of immigration law, OSHA regulations, 
and wage and benefit laws administered by the Department of Labor to 
the appropriate oversight agency; 2) to forbid contracted employees to 
work if they do not have appropriate safety apparel or equipment; and 
3) to consider documented violations in evaluations of future bids for 
work on national forests.
    Since then, the U.S. Forest Service (USFS) has taken a few steps to 
improve its oversight of health and safety conditions under its 
contracts. It has added provisions for compliance with the Fair Labor 
Standards Act (FLSA), the Migrant Seasonal Agricultural Worker 
Protection Act (MSPA), the Service Contract Act (SCA), and the 
Occupational Safety and Health Act (OSHA) into service contracts. It 
has invited Department of Labor (DOL) Wage and Hour Division employees 
to participate in training sessions during USFS contractor trainings, 
and it has begun providing DOL Wage and Hour Division state-level 
offices with information on all contracts being performed on national 
forest lands. While we applaud these new practices, they are only 
first, small steps. Much more needs to be done.
    In June, the Alliance began studying the oversight of service 
contracts the responsible federal agencies, particularly the USFS, 
practice on public lands. We searched the online databases of contract 
inspections of the DOL's Wage and Hour Division, OSHA, the USFS and the 
General Services administration. We contacted personnel at DOL WHD, 
Cal/OSHA, and the USFS to inquire about data that was not available 
online, and we conducted interviews with a few key agency employees. We 
also approached the Bureau of Land Management, but officials there did 
not respond to our many requests for information.
    We found that the records of inspections the agencies keep differ 
wildly, and are not coordinated. Forest Service officials claim that 
100% of all contracts are now inspected, but they can provide no 
records of these inspections. Alliance member Celia Headley experienced 
the lack of organization of records first hand when she accompanied 
U.S. Forest Service and DOL inspectors on two site inspections in 
October of 2007. The Forest Service inspectors wrote reports and filed 
them in the contract files in the local ranger district office. There 
is no central database for compiling information on inspection results. 
This means that the data agency officials need to determine what is 
happening out in the woods is in thousands of files across hundreds of 
ranger districts.
    In addition, Forest Service inspections seem to miss important 
details. For the period from 2006 to 2008, Forest Service records show 
only 8 workplace violations. None of these are violations of safety 
regulations. Rather, most of them involve catering, construction, and 
immigration infractions. Two were for wage violations. In contrast, 
OSHA's online database reveals 174 violations in 256 inspections during 
this same time period. The most common safety violations included 
missing required fist aid kit equipment such as stretchers and 
blankets, no provision of written driving directions to the worksite 
for all employees, employees lacking current first aid training, 
missing hazardous chemical information, failure to provide safety and 
health programs, and lack of personal protective equipment.
    The Department of Labor's report to Congress in May of 2008 shows 
even more violations of OSHA standards than the number reported online. 
The report states that 518 violations were issued for ``serious hazards 
related to personal protective equipment, tree felling procedures, 
chemical hazard communication, fire extinguishers, powered industrial 
trucks, machine guarding, and electrical hazards, just to name a few.'' 
The report also furnishes results of the 44 Wage and Hour Division 
inspections conducted since the March 2006, Senate hearings. Thirty-two 
of the employers investigated had violated MSPA, 16 had violated FLSA 
and 10 (out of the 15 that held contracts for work on public lands) had 
violated SCA.
    Our conversations with forest workers parallel the findings in 
official reports and online databases. Alliance members tell us that 
they have not seen any significant improvements in working conditions 
during the past two years. The ``crummies'' (vans for transporting 
workers) are not safer, the pressure to work faster has not lightened, 
water and lunch breaks are often denied and there are no new safety 
measures in place. In short, work conditions are still the same.
    In summary available evidence clearly reveals that violations are 
rampant. Yet U.S. Forest Service records show very few.
Policies and Practices that Lead to Abuse of Workers
    The problems go deeper than inadequate inspections and enforcement 
of applicable laws, however. The root causes of the problem lie in 
standard U.S. Forest Service practices, as well as in the H2-B Guest 
Worker Program.
Need For Best Value Contracting
    The common Forest Service practices of awarding contracts to the 
lowest bidder and pressuring contractors to complete jobs within a 
certain timeframe also create conditions conducive to worker abuse. 
Contractors who underbid inevitably cut corners. This means deferring 
maintenance on vans used to transport workers, paying less than the 
contract minimum wage, declaring only a smaller number of workers on 
the books than are actually employed to avoid worker's compensation, 
unemployment and other tax payments, withholding pay altogether, and 
other such cost-cutting measures. In addition, unrealistic expectations 
about the time needed to complete a job lead to driving workers to the 
point of exhaustion. These are the conditions under which accidents 
occur.
    Low bid contracting is not only bad for workers; it is bad for the 
land. Work performed under these contracts is often of poor quality, 
and needs to be redone. Thus, in trying to save money in the short run, 
the government spends more money in the long run.
H2-B Guest Worker Program
    H2-B and undocumented workers continue to be the most marginalized 
and exploited. Unlike H2-A visas, H2-B visas currently do not provide 
protections to workers. This, together with the conditions under which 
many H2-B visa holders arrive in the United States (with house and 
truck deeds held by recruiters, in debt for paying ``coyotes'' to get 
them to the U.S. border, not being informed of their rights, working in 
remote areas with little access to, and information about, other 
opportunities), makes the workers vulnerable to abuse because they do 
not have recourse to legal protections, and live in fear of losing 
their jobs. This means that U.S. immigration policy contributes 
directly to the creation of a workforce that has no power for 
collective bargaining. This drives wages down, and creates working 
conditions which American workers will not tolerate.
    We fear that the recent proposed changes to the H2-B guest worker 
program will only exacerbate the problem. These changes weaken the wage 
certification process, weaken accountability in the labor recruitment 
process, and are vague in their specifications of the process for 
auditing employers. In addition, they fail to address worker abuse and 
unsafe work conditions.
Recommendations
    As remedies to the current situation we recommend the following:
A) Monitoring and Enforcement
    1)  Increase Forest Service and Bureau of Land Management 
monitoring of service contracts on public lands, and assure reporting 
of results to the Department of Labor Wage and Hour Division and OSHA.
    2)  Follow through with enforcement of the relevant laws when 
violations are found.
B) Record Keeping and Reporting
    1)  Improve accountability of the agencies by creating a central 
database for recording the results of inspections and make this 
database easily accessible to the public. This database should include 
the date of every inspection conducted, the name of the contractor 
inspected, where the inspection took place, what questions were asked, 
and what was found.
    2)  Create a reporting system for the agencies to report regularly 
to the Secretaries and to Congress.
C) Advance Best Value Criteria
    1)  Strengthen the use of best value contracting for work on public 
lands. Rather than using price (i.e. low bid) as the main criterion in 
awarding contracts, consider other qualities of the bid, such as the 
capacity of the workforce to do quality work and the safety record of 
the contractor.
    2)  Increase personnel and training for procurement so that agency 
officials are able to meet land stewardship and community well being 
objectives.
D) Reform H2-B Guest Worker Program
    1)  Reform the H2-B guest worker program so that it includes safety 
protections for workers.
                                 ______
                                 
    Mr. Grijalva. Just, if I may, you brought it up, Ms. 
Moseley, in your testimony, the Bureau of Land Management was 
not invited to testify today because they told the Subcommittee 
they do not employ these workers. In your experience or any of 
the panelists experience, is that accurate statement?
    Ms. Moseley. I do not think that is an accurate statement, 
at least in Oregon. The Bureau of Land Management and the 
Forest Service manage adjacent lands in the State of Oregon. 
They employ some of the same contractors. I went to the Federal 
Procurement Data Service.
    Excuse me, they changed their name, the Federal Procurement 
Data Center, I believe it is called, which is an online site of 
all the Federal contracts issued, and I looked at the Bureau of 
Land Management thinning and tree planting contracts and I 
found about $35 million worth of tree planting and thinning 
contracts over the last couple of years.
    Those are the kinds of contracts we would expect to see 
migrant and seasonal workers on. I think given the fire hazard 
reduction program that the Bureau of Land Management is 
undergoing, I think it is incredibly unlikely that they are not 
employing migrant, seasonal workers.
    Mr. Grijalva. Anyone else?
    Mr. Dale. I would concur based on 30 years of experience. 
We have represented probably as many Bureau of Land Management 
contract workers as Forest Service workers in the State of 
Oregon.
    Ms. Smith. I guess I would add that for us, the Alliance, 
the workers, it is not just about H-2B workers, it is about all 
workers. That these health and safety violations, these 
violations are happening to all workers, not just H-2B workers.
    Mr. Grijalva. I think also beginning with Mr. Dale, but you 
mentioned the H-2A and the proposed regulations that are being 
talked about in the administration are being proposed by the 
administration. You mentioned how misguided these would be and 
should not be adopted. I would like to offer you or any of the 
other panelists additional comments that you might have on that 
specific topic, the regulations that are being proposed.
    Mr. Dale. The fundamental problem with the regulations 
starts with an analysis of whether the Department of Labor has 
power to enforce protections and proceeds from the notion that 
they do not, although they might get some limited grant of 
authority if they someday work out an agreement with the 
Department of Homeland Security.
    In fact, all of the protections that are now accepted as 
part of the H-2A program were developed by the Department of 
Labor under almost precisely the same arrangement with respect 
to grant of authority from what was then the Immigration and 
Naturalization Service.
    That included, you know, the 50 percent rule that U.S. 
workers would be hired through 50 percent of the contract 
period, it includes providing free housing, reimbursing for 
travel expenses, all of those things that are part of the H-2A 
program.
    Now our part of the statute were originally developed by 
regulation by the Department of Labor under precisely the same 
sort of delegation of authority that exists to the Department 
of Labor now so that rather than adopting regulations that 
provide some affirmative protections, instead these regulations 
sort of want to sweep the problem out the door by saying we are 
no longer going to try to see whether an employer qualifies to 
get workers, we are going to ask them to attest that they do 
and if we find out afterwards that they didn't based upon 
inspection, then we are going to really, really be mean to 
them.
    Meanwhile, the workers are abused, U.S. workers don't get 
the jobs to which they are entitled and there is really not any 
way to unscramble that omelet. There may be some way to punish 
the contract. I frankly doubt that that happens just because of 
the enforcement history that we have seen in the past. So it is 
a big step backwards.
    The other thing that I mentioned in passing in my comments 
is that the agencies that seem to be genuinely concerned about 
following the program strictures, at least to which they exist 
in trying to protect U.S. workers and so forth, have been state 
workforce agencies at least in some states where they have 
taken that mission to heart.
    They are the key contact point for employers and actually 
help the employers do what they are supposed to do. Their role 
in the administration of the program is completely eliminated 
except for one thing. The one thing was they would be required 
to do I-9 checks on any workers they sent to an H-2B job and to 
do an I-9 certification.
    Now, under the Immigration Reform and Control Act of 1986, 
this was a power that they were given, but they were also given 
the option of whether to do it or not do it. Most state 
agencies feel that it is a tremendous administrative burden and 
that, in fact, it will discourage valid U.S. worker job 
referrals to be referred out on those H-2B jobs. So that is a 
problem.
    There are other problems. One of the reasons that more U.S. 
workers aren't found is recruitment under the H-2B program 
happens way, way before the date of need. In temporary work, 
you know, you don't necessarily know what you are going to be 
doing in the 120 days, or whether you will be available or not, 
or whether that is a good job for you.
    The effect of the regulations actually would be to make the 
recruitment even earlier than it is currently. So for all kinds 
of reasons we recommend that these regulations just sort of be 
thrown out and let us start all over again. We do need the 
development of regulations in the H-2B area.
    I mean, one of the problems that we have is that when the 
H-2B program was created after the Immigration Reform and 
Control Act, the Department of Labor was supposed to develop 
the regulations and didn't do it.
    So we do need the development of regulations, but we need 
them to be developed in the spirit of the law, which is: 1] you 
protect U.S. wages and working conditions; and 2] you treat 
workers that are brought here to do the work of America in a 
way that is decent and fair. We need regulations that are 
developed in that light.
    If the Committee is interested, I will forward, there were 
regulation comments that were developed by a group of 
organizations like ours.
    Mr. Grijalva. That would be made part of the record. Thank 
you. Ms. Smith, you mentioned, I brought it up as well in some 
of the questions, the low bid contracting. What suggestions do 
you have to address this problem, either for the Forest 
Service?
    Ms. Smith. Well, in the past you used to be able to go 
online and see how many people bid on which contract and so 
then you could see what the prices were and what things were 
going for, and that doesn't happen anymore. So that would be 
one suggestion, to make it available so that people can see 
what is actually going on out there.
    Another suggestion would be that the price of the 
contract--I mean, I know the Forest Service testified earlier 
that they don't go with low bid anymore, but we are just not 
seeing that, so perhaps some follow-up from the Forest Service, 
a report to Congress showing what it is that they have changed 
that makes it so that they can prove that low bid isn't 
happening anymore.
    You know, the workers are out there, they need the 
training, they are out there doing this really hard work, and 
that needs to be a part of the value of what happens. You want 
to add anything, Cass?
    Mr. Grijalva. Let me just ask a general question. The 
follow-up to this hearing will be to look at relief, to look at 
some safeguards legislatively as we go forward. I wanted to ask 
the panel your thoughts on that process as we move forward. 
Legislative relief or initiatives that you feel would begin to 
deal with the question that is before us today and, as someone 
said, a responsibility we all have to these workers. It is open 
to anyone.
    Mr. Dale. Mr. Chairman, one of the things that I would 
suggest is that the Fair Labor Standards Act be made explicit 
that the conclusion of the Eleventh Circuit and other Federal 
Courts that when folks are required to pay hundreds or 
sometimes thousands of dollars in order to get a job in terms 
of visa fees, and travel costs, and that sort of thing, that 
those costs are to be reimbursed at the beginning.
    One might also look at the protections that H-2A workers 
are offered that are now part of the legislation. Forestry is a 
little different. I am not sure that every one is appropriate, 
but looking at that, it would be a guide to what would be 
effective.
    Some control of foreign recruiters and clear responsibility 
of those who use foreign recruiters, I mean, because they are 
beyond the reach enforcement-wise of U.S. law. Some 
responsibility for those who use foreign recruiters for the 
representations that they have made would be helpful.
    Mr. Grijalva. Any other?
    Mr. Dale. Representative Miller actually has a bill that 
addresses much of that.
    Ms. Moseley. I guess I was really struck reading the 
Department of Labor May 2008 report with its level of detail 
and specificity. I realize that they had in there 
appropriations language of their committee. The committee that 
provided their appropriations language had put that in there to 
request as an explicit report. I thought that was a helpful 
move. Maybe the Forest Service could use some nudging in that 
direction as well.
    In the area of best value contracting, I think that it has 
been helpful--like the Forest Service testified, the Forest 
Service does use formally the function of best value 
contracting in their everyday business practices but they have 
a lot of opportunity to weigh a variety of price and nonprice 
factors as they need to for the particular context in which 
they are operating.
    They need flexibility in that, but I think there may be 
some opportunities to work on the language that they have had 
in their appropriations annually about the opportunity to 
consider a benefit to the local community when they are 
awarding those contracts. Maybe that needs to become more 
permanent or it needs some maybe increased visibility in their 
law.
    I think given the success with the agencies having the 
stewardship contracting, I think there is an opportunity in 
that arena to encourage that sort of contract mechanism which 
seems to be building a lot of collaboration and a lot of 
opportunities, both to create local benefit and to get 
restoration work done. Those are the three things that occur to 
me right now.
    Mr. Grijalva. Thank you.
    Ms. Smith. I guess I would add that, like I said, forestry 
workers consider their work to be skilled labor, and so to have 
them be considered H-2B workers without protections doesn't 
make sense to them. Because the injuries that happen out there 
in the woods--it is just really dangerous out there and so it 
is really important perhaps that we look at how we classify 
forestry work.
    Then another piece would be government accountability. 
Letting us really see. I mean, for years, since 2001, they have 
been saying things are going to change, things are going to 
change, we are stepped up enforcement, and yet, the workers are 
saying we are not seeing any changes out here. So I don't think 
it is just up to the Department of Labor and the Forest 
Service, I think it is also up to the Bureau of Land Management 
and Department of Homeland Security.
    It would be great that we could follow what changes are 
happening, what they really see is happening on the ground and 
be able to hold them accountable for what is going on.
    Mr. Dale. Mr. Chair, if I might have another bite at the 
apple. You sit here and think about, other ideas come to mind. 
One of the problems that we have in enforcement here is that to 
the extent you rely on inspection, it is always going to be 
sort of spotty and that what you really need is the ability of 
workers to enforce their own rights.
    Now, the Congress took a significant step forward in the 
appropriations for Legal Services Corporation in winter for the 
first time since 1996 permitting--Legal Services Corporation 
funded Legal Services Organization to represent H-2B workers. 
However, there are other problems that exist. Just a few: An H-
2B worker who leaves his work after a few days is out of status 
and illegally in the country.
    Yet, oftentimes it takes longer than that to resolve any 
legal claims that they may have. If they go back home, it is 
extraordinarily difficult, and becoming more difficult all the 
time, to get somebody back into the country to be able to 
testify at a legal proceeding or to give their deposition and 
so forth.
    I think a productive area for legislation would be 
examining the problems of this transnational administration of 
justice to make it easier for these workers to enforce their 
own rights.
    Mr. Grijalva. Thank you. Let me thank the panelists before 
I wrap up and adjourn. This issue, I said at the beginning that 
it is a great concern, and to some extent, personal. My dad 
came to this country as a bracero. Having grown up hearing 
those stories and what he had to go through, part of the shared 
responsibility is to try to prevent that from happening to 
other people.
    There is resource issues here that the agency brought up 
that I think are important, have to be dealt with. If progress 
is being made it is not as rapidly as many of us would want, 
but there is an effort going on there and it is being hindered 
by the lack of resource and attention. That is obviously 
something that needs to be addressed.
    I think the interagency cooperation, and communication and 
agreements, the Forest Service, Department of Labor, Homeland 
Security, Bureau of Land Management, those need to be 
strengthened I believe because we can't continue to pass the 
buck in responsibility about who is doing what part when we are 
dealing with the same group of workers.
    As we build on Mr. Miller's legislation, I want to thank 
you for your input, and you are welcome to continue to provide 
us with that input as we go forward. This is an important 
issue. It is not only about our public lands, but I don't think 
any of us regardless of political affiliation wants to in this 
nation create a subclass, second class group of workers that 
work in this nation.
    We are entitled to protections and this is what this 
hearing was about. I appreciate very much your time. The 
meeting is adjourned.
    [Whereupon, at 11:17 a.m., the Subcommittee was adjourned.]

                                 
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