Farmers work to mesh state, U.S. labor regulations


Issue Date: February 21, 2018
By Kevin Hecteman

As the immigration debate continues in Washington and Sacramento, agricultural employers find themselves walking a legal tightrope between the two capitals.

"It's a different world between the federal and the state," said Peter Nissen, a vineyard manager and farm labor contractor based in Napa County. "Hopefully, we can be in compliance with both of them without tripping up."

Jay Mahil, who runs Creekside Farming Co. in Madera, said farmers want to be sure to comply with both federal and state law.

"We're kind of caught in a conundrum, not knowing—we listen to state, we listen to federal," said Mahil, who serves as president of the Madera County Farm Bureau. "I think right now, people are just trying to be right in the middle of it."

A new California law, called the Immigrant Worker Protection Act or Assembly Bill 450, which took effect Jan. 1, states that employers cannot allow immigration-enforcement agents into nonpublic areas of the workplace without a judicial warrant. The state law says employers cannot allow federal immigration agents to access employee records without a warrant or a subpoena, and cannot reverify the eligibility of a current employee to work in the U.S. at a time or in a manner not required by federal law.

If immigration authorities inspect I-9 employment-eligibility forms, the law gives employers 72 hours to notify affected employees of that fact.

Penalties for running afoul of these provisions start at $2,000 to $5,000 for a first offense, going up to $5,000 to $10,000 for subsequent violations.

Last week, amid reports of federal Immigration and Customs Enforcement activity around the state, California Attorney General Xavier Becerra sent out an advisory to all private and public employers regarding their obligations under the new state law.

It's yet one more thing for employers to keep track of, Nissen said.

"We're under the microscope anyway, so hopefully we stay up to speed on all the changes in law requirements," he said.

Nissen said the most important thing is that if an enforcement officer approaches a farm supervisor, "hopefully you've made that attempt to make people aware of the fact that anybody who wants to inspect us, you call your supervisor in the main office right away. You want to make sure you're in compliance, whether it's ICE or anybody else."

That's especially true with AB 450, he added, noting that Farm Bureau and other agricultural organizations have been getting the word out.

The new law forbids employers from reverifying the employment eligibility status of current employees "except as otherwise required by federal law."

"It's tough," Mahil said. "I think if you're prepared, I think you're going to be better off than somebody being unprepared."

For the moment, Mahil said, he has enough employees available, as all the wintertime work has been done. His farm grows winegrapes, almonds, pistachios and walnuts, with mandarin trees being planted this spring.

He said he expects to start feeling the crunch in April or May.

"That's about the time frame that cherries are starting to be picked, peaches are growing, and we need labor for training purposes for trees. That's when you kind of start being shorthanded," Mahil said.

He's dealt with that in part by changing crops.

"We've gone to more nut crops, just because they're a little easier than some of the vines we used to have," Mahil said. "We had some Thompsons before, which are really labor-intensive winegrapes."

Mahil made clear that mechanization does not eliminate the need for people to get the work done.

"That's kind of a frustrating thing," Mahil said. "Everybody says, 'Well, we can mechanize.' But mechanization still takes manpower. You still have to have somebody operating that equipment."

Meanwhile, another attempt at an immigration deal failed to move out of the U.S. Senate last week.

Mahil said he thinks the Trump administration is serious about having a long-term immigration solution, but noted the need for a workable program for agriculture.

"If nothing gets done, we just keep working at it," he said. "That's the frustrating thing. Everybody wants to have some type of immigration bill, but nobody wants to come up with a scenario of how to fix the problem."

To help highlight the issue, the California Farm Bureau Federation is putting together a social-media campaign called "Working to Feed US," in which California farmers and ranchers tell their stories about the importance of a reliable workforce to bring crops to market.

CFBF Federal Policy Manager Josh Rolph said the campaign aims at "sending out a message connecting the shortage of agricultural workers to the consumer's food. This is just the beginning of a longer-term effort to give our members some more tools to get out that message."

For more information about the Working to Feed US effort, see ca.farm/feedUS.

(Kevin Hecteman is an assistant editor of Ag Alert. He may be reached at khecteman@cfbf.com.)

Permission for use is granted, however, credit must be made to the California Farm Bureau Federation when reprinting this item.