[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
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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
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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.]