Labor Department Ruling Could Mean End to Processed Gulf Seafood

by / Newsroom Ink on March 13, 2015
Crabber Gary Bauer_147l

The Department of Labor (DOL) recently announced it will no longer accept or process requests for H-2B visa prevailing wage determinations or labor certifications, a huge setback for almost every Gulf seafood processor from Florida to Texas. Photo: Ed Lallo/Newsroom Ink

by Ed Lallo/Gulf Seafood News Editor

The Department of Labor (DOL) recently announced it will no longer accept or process requests for H-2B visa prevailing wage determinations or labor certifications, a huge setback for almost every Gulf seafood processor from Florida to Texas.

After a challenge from Florida Rural Legal Services, a non-profit labor rights group, the Northern Florida District Court decision on Perez v. Perez (No. 3:14-cv-682) on March 4th ruled the Department of Labor does not have the authority to issue regulations in the H-2B program, including standards for calculating prevailing wages for seasonal workers. The verdict vacated the Department of Labor‘s 2008 H-2B regulations on the grounds that the department lacks the authority under the Immigration and Nationality Act to issue regulations in the H-2B program.

Crabber Gary Bauer_f

“The H-2B program has been the source of labor for Pontchartrain Blue Crab’s operation for more than 14 years. It has also been a political hot potato for the past several years now,” said Gary Bauer, the owner of the Slidell, LA based processor while sitting on the edge of his docks. Photo: Ed Lallo/Newsroom Ink

Upon the court’s ruling, the DOL stated it can no longer accept or process requests for prevailing wage determinations or applications for labor certification in the H-2B program. The suspension of the processing of H-2B visa paperwork leaves small and seasonal seafood employers across the Gulf of Mexico without a source of legal labor as they enter the busy spring and summer seasons.

“The H-2B program has been the source of labor for Pontchartrain Blue Crab’s operation for more than 14 years. It has also been a political hot potato for the past several years now,” said Gary Bauer, the owner of the Slidell, LA based blue crab processor. “The federal program was designed to provide small businesses with a source of legal immigrant labor and alleviate the shortages of labor these small businesses face year after year.”

The suspension will have devastating economic consequences for seasonal employers, their American workers, businesses that supply goods or services to seasonal businesses and local communities across the country, according to the H-2B Workforce Coalition, an organization dedicated to protecting American workers through a stable and reliable seasonal workforce.

Crabber Gary Bauer_242_l

Gulf seafood such as crawfish tail meat, crab meat, alligator, shucked oysters and peeled shrimp, may no longer be available and the processing plants empty. Photo: Ed Lallo/Newsroom Ink

The Coalition is currently fully assessing the impact, but estimates that about 2,300 employers and 33,000 H-2B workers will be directly affected by the announcement. Economists have estimated that for each H-2B worker, 4.64 American jobs are created and sustained. The Coalition has urged the DOL to immediately resume processing H-2B prevailing wage determinations and labor certifications.

“Members of the Gulf Seafood Institute (GSI) have long been active on the H-2B visa issue because this important program has been plagued with administrative challenges for over a decade” said Margaret Henderson, Executive Director of GSI.  “Unfortunately, American workers simply are unwilling or unavailable to do the most labor intensive jobs in seafood processing and business leaders know that foreign workers in the U.S. temporarily under the H-2B visa program are the only viable solution.”

Setback after Setback

The latest blow to the H-2B program follows other recent devastating H-2B program setbacks. The H-2B cap for the first half of fiscal 2015 was reached on January 26, leaving seafood processors without access to workers.  This cap has had an especially devastating effect on Louisiana crawfish processers, leaving a majority of the 30 processors without a labor force of any kind at the height of their season and with no hope of being able to hire workers until after April 1.

An arbitrary cap limits the number of H-2B employees that can be hired in the United States to 66,000 annually (33,000 for each half of the fiscal year). For several years, returning H-2B workers who had complied with all of their visa requirements were exempt from the cap, but that provision of law expired several years ago, leaving small and seasonal businesses with no relief.

Kim Chauvin beside on of the family fishing boats.

Kim Chauvin, a Dulac, LA shrimp processor who tried to get H2B workers, but whose efforts lay dead in the water and will be without H-2B workers this year. Photo: LSN

“I was told by the person dealing with H-2B’s that to get guest workers the process starts seven to eight months ahead of time,” said Kim Chauvin, a Dulac, LA shrimp processor who tried to get H2B workers, but whose efforts lay dead in the water. “I was given an explanation of all of the hurdles one has to leap over, as well as the cost of paying thousands of dollars. After doing all the paperwork and paying the fees, the final blow was that I wasn’t guaranteed I could get workers. To sum it up, I will be without H-2B workers this year.”

In December the Labor Department announced that employers may no longer use wage surveys to calculate appropriate wage levels for seasonal workers in their local geographic area. In many cases, these surveys allow employers to establish a more accurate representation of local wage rates than those provided by the DOL’s Occupational Employment Statistics database. Further DOL announced its intention to apply supplemental wage determinations retroactively to employers long after their workers have departed for the season, ignoring a ruling of the Department’s own administrative law judges.

The H-2B Coalition says that seasonal businesses rely on the H-2B program to fill temporary vacancies in seafood harvesting and processing, as well as horse training, hospitality and amusement parks, forestry, landscaping, golf courses, circuses, carnivals, food concessionaires, construction, swimming pool maintenance, stone quarries and other industries. By filling temporary jobs, H-2B workers keep these businesses open, but also contribute to the creation of additional year-round jobs for American workers.

Margaret-Henderson

“GSI has been preparing talking points, drafting letters and calling Congress with great urgency asking for our delegation to compel the DOL and the Department of Homeland Security to resume activity on this critical program,” said GSI executive director Margaret Henderson. Photo: Ed Lallo/Newsroom Ink

“GSI has been preparing talking points, drafting letters and calling Congress with great urgency asking for our delegation to compel the DOL and the Department of Homeland Security to resume activity on this critical program. We’ve gotten a lot of traction on the Hill but more is certainly required to move the needle on this current challenge”, said Henderson.

“This unfortunate recent decision by the Department of Labor is extremely disruptive to any small business that depends on this source of labor,” said Bauer.

Bauer says the United States Citizenship and Immigration Services (USCIS), a second federal agency involved in the permitting of H-2B applicants, has followed suit and also suspended processing all H-2B applications. He feels that, plain and simple, seafood in Louisiana will not get processed, and much will either go un-harvested or go to waste due to diminished processing capacities

Gulf seafood such as crawfish tail meat, crab meat, alligator, shucked oysters and peeled shrimp, may no longer be available and  customers loyal to Gulf brands may be forced to turn to seafood from outside the Gulf region. For many businesses this could be the final nail in the coffin.

“The negative economic impact to my small business, and many others like mine it in the Gulf, will be devastating. In the seafood business, it is essential we receive our labor at the start of the season. Each day lost processing is lost forever and your business can never recoup lost days production and profit,” he explained. “This could be a blow from which we can never recover!”

Gulf

Gulf Seafood Institute founding member Frank Randol, a Lafayette seafood processor, explained that this is not just a Gulf seafood crisis, “the entire country’s H-2B user community is in panic mode while figuring out if there are any solutions available.” Photo: GSI

Gulf Seafood Institute founding member Frank Randol, a Lafayette seafood processor, explained that this is not just a Gulf seafood crisis, “the entire country’s H-2B user community is in panic mode while figuring out if there are any solutions available, he said.   “There is no legislative vehicle to get a quick fix on this.  We tried to get this fixed on the Homeland Security Appropriations Bills. We are really discouraged on how this will play out for seafood, not only in the Gulf, but also across the nation. Now we have to get the Secretaries of Labor and Homeland Security to reverse course in the next couple of weeks.”

The negative economic impact caused by the inability to process seafood would be felt throughout the Gulf, according to Bauer. Not only would this negative impact affect the processors and commercial fishermen but the peripheral supporting businesses as well; the boat builders, the trap makers, the fuel docks and engine repairmen.

“The Gulf is famous for its abundant premium quality seafood. It is steeped in the fishing traditions: crawfishing, oystering, crabbing and shrimping.  It is unimaginable that the Department of Labor would jeopardize the very base of these traditions by allowing our source of labor to be stripped away, for no logical reason at all,” he said.

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About the Author

About the Author: Ed Lallo is the former editor of Gulf Seafood News and CEO of Newsroom Ink, an online brand journalism agency. .

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