Given that this is a presidential election year, we understand that significant attention will be focused on campaigns. But let’s put electoral politics aside for a few minutes and address the legislative and regulatory topics that require close consideration, if not action.
Craig Regelbrugge, AmericanHort’s senior vice president for industry advocacy and research, has guided the industry for more than 25 years with his tireless research and keen analysis of Capitol Hill. We’ve asked him for some insight on what to expect this year, so that we can make sure those issues of importance to the green industry don’t get lost in the din of campaign ads.
What, if anything, is happening on the immigration reform front? Will definitive action be taken this year? Will reform be shelved – again – until after the elections?
No one is expecting positive action in Congress on immigration until there is a new occupant at 1600 Pennsylvania Ave. The House would have to lead the parade, and while Speaker Paul Ryan has a long and positive record on the issue, it seems that even Republicans who support reform (yes, there still are some!) do not believe that the current environment is conducive to getting good legislation enacted.
So meanwhile, we’re keeping a watchful eye on the legislative process for enforcement-only threats. AmericanHort is also engaged in full defense of the existing seasonal worker visa programs (H-2A and H-2B) in the legislative, regulatory and legal arenas. Everyone is complaining about labor shortages, and horticulture businesses are going to need to use every tool in the toolbox to retain workers, recruit new ones, and reduce overall labor need. Finally, things could get really interesting if the Supreme Court takes up the legal challenge to President Obama’s executive actions in time for a June decision.
Other than immigration, what labor / HR action should we watch?
Several things to watch: One, the Labor Department is expected to finalize changes to the “white collar” exemption from overtime. The change is likely sometime in mid- to late-2016. The primary changes will be to basically double the minimum salary threshold for the exemption, and possibly to annually index it going forward. While this does not affect the agricultural overtime exemption, it will have an impact on garden retailers and landscape companies.
Also, for growers, there’s EPA’s revised Worker Protection Standard. However, the changes will not actually take effect until the 2017 growing season.
Along with our colleagues in the general business community, our blood pressure is high and rising with anti-employer actions emanating from an activist National Labor Relations Board. A rewrite of the Board’s joint employment standard, and the so-called unionization “ambush elections” rule, are two examples. But while Congress may support corrective actions, the President’s veto pen is full and at the ready.
With a change of administration pending, what should employers anticipate regarding health care?
Rarely if ever does Congress get “big legislation” right the first time. Certainly that’s true with the Affordable Care Act. The path toward even limited fixes is a rocky one, though, for the simple reason that Republicans aren’t so interested in minor fixes, and Democrats are mostly afraid to open the law up. A test case is the “Simplifying Technical Aspects Regarding Seasonality,” or STARS Act. It is a modest but helpful bill that would streamline conflicting treatment of seasonal workers under the law.
Looking longer term, it’s hard to say. As the months pass, the law we’ve got becomes further entrenched. We’ll be watching to see if Paul Ryan can nudge his fellow House Republicans beyond calls to repeal the ACA, to a point where they actually articulate how they would replace it.
Can you explain what business owners need to know about the status of H-2A and H-2B programs?
It’s a good news, bad news situation. On one hand, these programs (H-2A for agricultural, H-2B for seasonal jobs outside agriculture) are a critical labor safety net for many horticulture businesses intent on ensuring that they have a legal workforce. They are a win-win; few American workers seek seasonal employment, yet H-2 workers perform critical functions that support American workers’ jobs both in and upstream and downstream of our industry. For their part, the foreign workers have a crucial economic lifeline, and the ability to come and go legally and safely.
The bad news is that the Department of Labor and its primary constituencies, worker advocates and unions, have been doing all they can to throw sand in the gears. In this particular debate, the worker advocates are joined by the anti-immigrant groups, who serve up populist rhetoric about protecting American workers from job competition. Finally, to use H-2A or H-2B pretty much means you will be on the Labor Department’s priority list for wage and hour audits. All this means that those who rely on the programs need to be smart about knowing the rules, paying attention to compliance, and working with reputable recruiters and agents.
H-2A does not have a cap on the number of visas that may be issued, but the program is strained to meet demand. H-2B has a statutory visa cap of 66,000 split into two semi-annual installments. Last year, the cap was hit quickly and many employers were shut out. This year is only likely to get worse. AmericanHort is supporting reform legislation, and the Senate’s version even has bipartisan support. But the path forward in an election year is going to be tough.
What other small business concerns may be addressed this year?
On a rare positive note, Congress actually enacted a multi-year transportation funding bill. As it is implemented, this will be good for our industry in that it will create jobs and demand, and transportation is critical for commerce. And, we beat back a hostile amendment that would have prohibited federal transportation dollars for being used for “vegetative enhancements,” aka landscaping. (What were they thinking, anyway!?)
Will there be any specific environmental issues addressed before the elections? (Pollinators, water, energy … ?)
There is a big push on to move legislation that will bring at least a measure of relief in the face of the serious drought in California and the West. Otherwise, on water, the big issue – the fate of EPA’s and the Army Corps of Engineers’ Waters of the US regulation – is probably going to be decided in the courts.
On pollinators, we’re not expecting legislation one way or the other. But, EPA is proceeding with special pollinator-specific data reviews for the neonicotinoids, and eventually 76 other insecticides, fungicides and herbicides. The first of those assessments, on imidacloprid, is scheduled to be finished late in 2016. Horticulture has a huge stake in this; while many growers produce plants without systemic insecticides, the neonics are among the least risky and most effective tools in the toolbox. They also have critical quarantine or regulatory uses, and are important in resistance management.
The pollinator issue also means opportunity. There will be a big push next year to achieve the goals of the Million Pollinator Garden Challenge. AmericanHort, along with the National Wildlife Federation and six other groups, is actively working to make this exciting program a success. It’s also a great way to get the next generation interested and involved in horticulture through “planting with purpose.”
In a nutshell, what’s the most pressing issue on The Hill?
Well, for the nation, we’ve got some big gnarly issues that sooner or later require Congressional attention. Tax and immigration reform are two good examples. Yet, the growing polarization and distrust make these kinds of issues tough to approach. If and when they are, the challenge will be working to ensure that what comes out of the legislative sausage-making does good, not harm, for horticulture businesses.
The biggest risk is that industry business people who are frustrated simply opt out. I say this because by its very nature, our political system is competitive. Virtually every decision, whether by Congress or an agency, yields winners and losers. If you’re not even engaged on the field, how can you expect to win?
Cover Photo: AmericanHort