In what is sure to be a rousing committee hearing later today, lawmakers will debate a controversial proposal to create a state system to process federal H-2A visas for temporary agricultural workers. The bill, which has bipartisan support, is meant to help Colorado farmers desperate for legal workers willing to do stoop labor. Rights groups condemn the proposal as a misguided and impractical solution with insufficient worker protections.
Immigrant and worker rights groups, united in their opposition to a proposed farmworker bill, have called on their supporters to pressure Colorado lawmakers for a “no” vote at today’s committee meeting.
“The sponsors had the best of intentions in mind with this legislation,” said Gabriela Flora of the American Friends Service Committee. “But it would only perpetuate a system wrought with problems and exploitation.”
House Bill 1325 calls for obtaining a waiver from the federal government to allow the state to handle steps in the processing of H-2A visas for agricultural workers. The measure has the backing of the state departments of Agriculture and Labor and Employment, as well as support from prominent farmer groups.
The bill’s sponsors, state Rep. Marsha Looper, R-Calhan, and state Senate President Pro Tem Abel Tapia, D-Pueblo, introduced the measure to help Colorado farmers suffering from a shortage of workers. They say the federal H-2A application review system is too backed-up and slow to provide relief.
But opponents counter with data that shows the federal H-2A system to be fairly efficient for the majority of Colorado farmers who apply.
“The fundamental problem with this bill is that it is a solution in search of a problem,” said Erik Nicholson, director of the guest-worker program for the United Farm Workers (UFW) union. “Every issue the proponents have put forward, we have been able to factually refute. We’ve heard stories about long waits, but the statistics just don’t bear that out.”
According to U.S. Department of Labor statistics compiled by UFW, 237 of the 245 petitions submitted by Colorado ranchers and growers for H-2A workers were approved in 2007, a denial rate of only 3 percent. Proponents of the bill claim some growers have had to wait up to 120 days for the federal government to formally approve or deny their H-2A applications. Yet Nicholson points out that there is an existing federal statute to provide expedited review of H-2A applications if the Department of Labor fails to process the application within 45 days.
Rights groups also have concerns about specific provisions in HB 1325, especially one that calls for withholding 20 percent of a worker’s wages until he has returned to his country of origin. Tapia has said the measure is meant to appease immigration hardliners in the legislature who worry about immigrant workers disappearing once they are here.
“Withholding wages is wrong. Under federal and Colorado law, wages are due when they are earned. If not, it is a form of indentured servitude,” said Amber Tafoya, an attorney and policy coordinator for Colorado Immigrant Rights Coalition. “Wages are not a privilege, wages are your right — you work for them, you get them.”
Nicholson calls the 20-percent provision “outrageous” and points out that no other workers in the country are subject to such a withholding. Workers who participated in the infamous Bracero program from the 1940s to 1960s had a percentage of their wages withheld, and Nicholson notes many of those workers have still not recovered the money.
HB 1325 would be paid for through fees to the employers and fines to the workers. This fiscal note raises further alarm among the bill’s opponents, who fear revenue dependent on worker fines would engender a system disinclined to relinquish the remaining 20 percent of owed wages.
“Since the money goes to the Colorado Department of Labor if the worker doesn’t get it, that means there is an incentive to make that process as hard as possible, just from a practical standpoint,” said Tafoya.
Nicholson agrees.
“If you read the text of the bill, there is much more attention on how the state is going to allocate that 20 percent to its own agencies rather than how to make sure that money gets back into the workers’ hands.”
On top of their specific concerns, opponents of HB1325 question the overall workability of the measure. They point out that the bill effectively seeks to create a new legal precedent and is likely to be pre-empted by existing federal law.
“We have repeatedly raised the constitutional and legal issues with the sponsors and supporters of this bill, yet they want to continue forward with it,” Nicholson said. “We are at a loss.”
Tafoya points out that the bill’s sponsors may prefer to ignore pre-emption issues as they try to convince the House State Veterans and Military Affairs Committee to approve the measure later today. But doing so will just mean in the long run more hassle and cost for the state, which will undoubtedly have to answer legal claims if the measure passes.
“You can’t waive statutes, you have to amend statutes. And getting the statute changed to allow the Colorado Department of Labor to take over functions of a federal agency is something no lawyer I have spoken with thinks is possible,” Tafoya said. “As the bill sits now it’s just asking for a lawsuit.”
