In this episode, we visit the Bittner Singer Orchards in western New York.This 400 acre orchard grows delicious stone fruits like cherries, peaches and nectarines. The day we toured, workers were picking regina cherries, whose sweet-tart flavor right off the tree makes them a favorite.Picking delicate fruit quickly and carefully is skilled labor. Most workers are Mexican migrants who join the farm each summer through the federal H-2A guest worker program. This involves considerable time and expense for the farm owner.These seasonal laborers are vital for getting summer fruit from orchard to market. We talk with the Jim Bittner about life on the fruit farm and what it takes to make fruit farming a reality.
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Farm workers are essential to our food supply, but it remains a challenge for many farms
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to handle the rising costs and regulations that come with hiring needed employees.
Hi, I'm Steve Ammerman, New York Farm Bureau's Director of Communications.
Welcome to News Bites.
This past July, we spent a gorgeous Wednesday afternoon among the farm workers at Bittner
Sierra Orchards in Appleton, New York.
The fruit orchard sits on the shores of Lake Ontario, north of the Buffalo area.
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In all, there are about 400 acres of trees growing stone fruit, things like apples, peaches,
and nectarines.
On this day, employees were picking cherries, Regina cherries to be exact.
They grow in bunches, they're large with dark red skins and have a sweet tart interior.
Honestly, eating them right off the tree were some of the best cherries I ever had.
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But it's not easy getting the cherries from the tree to your house.
All starts with someone hand picking them.
These employees are skilled, they work quickly to fill the small baskets that hang from their
hips and then gently fill a larger bin that will go to cold storage, waiting transport
to the processors and fresh fruit markets.
The fruit pickers on Jim Bittner's farm primarily come from Mexico through the federal
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agricultural guest worker program known as H2A.
Jim must go through a very expensive and complicated regulatory process to apply and interview
the workers at a U.S. consulate in Mexico before they're approved to enter the U.S.
for seasonal work only.
He pays their transportation, all of their legal fees, as well as their housing while
they're here in this country.
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This is on top of the federally mandated wage rate known as AWARE, which stands for the
Adverse Effect Wage Rate.
This year, the hourly wage is just short of $17 an hour for New York State.
So now it's time to go to the farm where we spoke about all of this with Jim in hopes
of giving you a better understanding of where your food comes from and the challenges that
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exist.
So Jim, tell me about your farm and the number of employees you have.
Well, we farm about 300 acres of tree fruit, about half of it's apples.
The other half is stone fruits, starting with sweet cherries, tart cherries, plums, prunes,
apricots and peaches.
And then the apples.
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Our season, we like to tell people we are harvesting something starting the 1st of July
till the 1st of November.
Every day we are picking something out here.
So it's a long harvest season for us.
Most of our workers are seasonal.
I do have six full-time year-round people, mechanics, office.
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They'll prune some trees, they'll manage the work during this growing season.
And they do all the pesticide application.
We don't have any seasonal workers apply any pesticides.
All of our pesticide applicators have their own pesticide license, so we don't have to
worry about that issue.
So we'll peak out in September and October is when we have the most workers here.
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It'll be 40 to 45 workers, because apples are our biggest crop.
And they all are picked by hand.
And most of our crops are picked by hand.
The only thing we harvest with machine is tart cherries for cherry juice concentrate.
Everything else here is picked by hand.
Most people don't understand that labor is by far our biggest expense.
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In an average year, 48% of my total expenses for growing fruit is labor.
So that's why labor is such a big deal for a farm like ours.
We'll bring in some H2A workers to help with the seasonal crop load.
We've been in the H2A program for seven years now.
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We started just with a few.
I believe the first contract was eight workers.
And until this year, we were doing a joint contract with another farm that had different
– they also grew tree fruit, but they had a different workload different weeks of the
year.
They had more early apples.
I had more late apples.
We could move workers back and forth.
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When the U.S. Labor Department changed the rules on H2A and said that a joint contract,
the workers have to work on both farms every week, it didn't work for us.
We had to drop that.
The workers aren't too happy about it because we actually are bringing in a few more workers
because we have to cover ourselves.
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And they're working less hours because we can't let them go to the other farm to work
when there's no work on my life.
So that's one of the things that were changed this year that really affected us.
So we've had to drop the joint contract.
I tell everybody it's labor that's the expense for us.
And people don't understand that.
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In terms of the H2A, so you rely on the H2A program.
A majority of our seasonal help is through the H2A program, not all of our seasonal help.
I still have a core group that comes to me every year to work seasonally.
That group has dropped off a couple people every year, so we've had to get more H2A workers
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each year.
But we're still about a third, well let's just say they're resident migrant workers.
Most of them stay here year round anyway.
They just work for us seasonally.
And that was my core group before I got in the H2A program.
The other thing with the H2A program, it's complicated.
It's expensive.
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I hire a consultant that fills out the contract, files the paperwork, does all that sort of
thing because it is so complicated and there's so many booby traps to fall into in doing
this that the average farmer's not going to do it themselves.
What's an example of a booby trap?
Well, for instance, this year, we were going to start, we've been doing a joint contract
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and we filed our joint contract in January and find out that the U.S. Department of Labor
came up with new rules that the joint contract wasn't going to work the way it used to work.
I had a joint contract with a farmer that's only three quarters of a mile from me.
We both grow tree fruit.
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He's just 100% apples.
I need the labor early.
He needs the labor late.
We could move people back and forth if he needed a couple extra people a certain week
or I needed a couple extra people a certain week.
We could move people back and forth within the joint contract.
It worked great.
And then we find out that with the new rules, you can't do that anymore.
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Those workers have to work for each farm every week or can't work more than I believe is
35 hours for one farm in any one week, which to us is crazy.
But we had to quit filing a joint application.
And it was the consultant that found that and warned us about it to just don't even
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submit that application because it's going to get rejected or it's not going to work
the way you think it's going to work.
The consultant advises us on how to handle paperwork.
Make sure you document this.
Make sure you document that.
Give us the roster for referrals.
Make sure you do this and that for the travel expenses.
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You're guiding us to make sure we do everything right.
And the challenge is those rules change all the time or the interpretation of those rules
change all the time.
And as a farmer, you sort of get paranoid that you're not going to follow the rules.
I want to follow the rules.
I want to do everything right.
But I don't trust myself that I'm going to be able to figure this out when I go through
an audit.
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When you get in the H-2A program, you learn real quick, you're going to get it audited
every two or three years.
You will get an audit.
And you're nervous as heck about it.
And people say, well, what do you got to be nervous about?
You're doing everything right.
Well, there's always a question in the back of your head.
Are we doing everything the way the inspector is going to interpret the rules?
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I get involved in national calls on H-2A and you find out different inspectors interpret
the rules differently in different parts of the country.
Wage and Hour doesn't want to admit that, but it's true.
And so it's challenging.
It's confusing and it's scary.
And most farmers want to hold somebody's hand to work their way through it.
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That consultant charges us a fee, but I don't think I have a choice.
We do it because I just don't want to get in trouble.
I want to make sure I'm doing everything I'm supposed to do by the letter of the law.
I had a fruit grower once tell me that despite it being scary, expensive, cumbersome, it's
still allowed him to sleep at night knowing he had a crew here that he could depend on.
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Do you feel the same way?
Yes, I do.
When they take surveys about labor, they ask us, what's the labor availability?
I say, we have plenty of labor available to us through the H-2A program.
But the real question is, what's the cost and how cumbersome is the program?
And two different questions.
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So I can get all the help I want through the H-2A program.
I know the people are going to be here.
Although this year has become a challenge getting interviews through the consulate,
my second group that came up was delayed.
They were here 10 days later than I was shooting for just because we couldn't get appointments
at the Monterey consulate.
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Apparently, State Department decided to open up more interview sites in Mexico.
Now you can go to two more different consulates for interviews.
But instead of just hiring more people and staffing those consulates, they move people
from Monterey, which is where we were all going.
So now Monterey was backed up.
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So we were 10 days late.
And they weren't here for my first cherries.
This year, I lost 20% of my early cherries because they rain cracked.
They should have been picked before the rain.
But we just didn't have enough people because the eight workers that I had coming were delayed
10 days.
But there's nothing I can do about that.
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So yeah, I can sleep well.
Once they're here, we're always concerned.
Are they going to make it through the consulate?
If anybody's going to get rejected?
I had a worker that was rejected this most recent time, which is ironic because he was
here the year before.
But apparently, they found something in his record that he did not get his visa.
Now I'm going through the effort of getting someone to fill his spot.
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I got to schedule another appointment.
I got to pay another $250 fee.
So I said, it's a cumbersome program.
But we don't have a choice.
If we want to get these crops picked, we have to be in the H2A program.
All of our H2A workers that we have here are referrals from other workers who are here.
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We don't let somebody in Mexico recruit workers for us.
We don't just put out an ad.
Everybody is a referral from someone who's here, which is great because that person who
referred them feels a little bit responsible.
And that person shows up.
And if that person is not a good worker, they get on their case about it.
So I won't call it a vetting process because I don't interview them.
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But they're all come as recommendations from current workers.
And it's usually the workers that have been here for a long time.
So if you go out and my orators are talking to them, you find out half of them are related
to somebody else or come from the same village.
They all know each other.
It's almost like it's one big family.
But they're all referrals.
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When I first started the H2A, the first year I had a recruiter in Mexico.
And they sent me names and resumes for some workers.
And a couple of them had been in H2A workers in the United States before, worked in Washington
or California.
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So I called the former employer.
I said, well, what's with this guy?
He says, well, if he was good, I would have had him come back.
So it tells me right away, you got to be careful because it's a big investment to bring this
person up here.
You're paying all these fees.
You're paying travel to come up here.
You're paying for the visa, the interview at the consulate.
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I'm paying the person at the consulate that gets them the motel room and sets up the appointment.
As all these costs, I've got sunk into this person.
I can't have a dud.
So we're very careful about who we bring up.
I just don't take anyone.
I take referrals from people who are here.
And the people who are here, they want good people to be here with them.
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They don't want a slacker.
So that's how we've...
So I learned right away, I refuse to allow someone in Mexico or wherever to recruit workers.
So there's a lot of talk about reforming H2A.
And you hear it bantered around in Washington quite a bit.
We have a number of needs.
If you could change the H2A program, how would you make it better or what change would be
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most beneficial to your farm and to New York agriculture?
There's a lot of things they could do different.
Why is it that you have a contract that's approved one year and next year the exact
same contract is submitted and they find flaws with it?
It doesn't make any sense to me.
If it was okay last year, it should be okay this year.
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Getting appointments at the consulates for workers should be a whole lot easier than
it is.
The other thing is, quite frankly, is the cost.
The AWAR keeps going up.
We don't know what our wage rate's gonna be this year till the beginning of the year,
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which makes it difficult to plan.
And as a tree fruit grower, where I'm making projections three, four, five years out, it's
a nightmare when 48% of my cost is labor and I'm not sure what it's gonna cost me one,
two, three years out for that labor.
So it's the uncertainty of the AWAR.
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We've seen it go up very rapidly the last few years.
I gotta believe it's gonna continue.
We all scratch our head wondering how that magic box works, where they come up with this
AWAR, because it's supposed to be an adverse effect wage and we can't figure out who's
the adverse effect against, because there aren't people out there to want these jobs.
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People don't realize that these workers that we're getting are from rural areas, the countries
they come from.
Mine happen to come from Mexico.
We have other farmers in the area that are dependent on Jamaica.
But all these guys that are here working for me are from farms.
They're farm guys.
They understand working outside, they understand working in nature, taking care of a crop.
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They're great and they want to, most of them want to go home and farm.
That's what they would like to do, make enough money to buy a plot of land and they want
to farm.
So that's the type of person that works on a farm, is someone who's been, who came from
an agricultural background, at least a rural background.
If you're gonna start into the H-2A program on your farm, a couple things, it takes a
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lot of planning.
You got to submit the contract 60 days before you need the workers.
So it's not all of a sudden I got a crop and oh my, I'm sure to hell.
You're in trouble, you're already done.
So it takes planning.
I would talk to other growers in your neighborhood that are in the H-2A program and how they're
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navigating the program.
All the contracts are online.
You can go look at your neighbors, if you know your neighbors using H-2A, you can go
look up their contract and see what the contract says.
And you can copy it.
Don't be surprised if it gets rejected, because again, a lot of this doesn't make sense.
They can accept one and not another, who knows why.
But at least it's somewhere to start.
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And I would not tackle it on my own the first year.
If after that you think you can handle it okay, I don't think I can handle it.
It's one thing we've just contracted out with somebody to do it and it's not cheap.
And it's set up for bigger farms than us, because usually it's per contract, not per
worker.
So here I got a contract with 10 people on it.
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I'm paying the same fees as a person that's got a contract with 100 workers on it.
The other thing you got to understand about New York State and H-2A, if you look at the
H-2A program, about half of the workers that are brought in this country work for farm
labor contractors, not directly for a farmer.
Farm labor contractors are rare in New York State.
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We have a few of them, because New York State has done everything they possibly can to make
the life of a farm labor contractor difficult.
And where it's really hurting is the small guys.
The small guys that could just, you know, they only need four people for two weeks.
The easiest thing would be to call up a farm labor contractor, he sends those workers and
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everything's taken care of.
But New York has made that so difficult that we don't have that.
But 50% of the H-2A workers that come to the United States work for farm labor contractors
and are rare in New York State.
And most people don't understand that.
When we go to meetings about H-2A, national meetings, it's predominantly farm labor contractors
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that are there.
We're in a little different world than them.
And we're out on our own.
If you're a farm labor contractor, you not only have an attorney on retainer, you probably
have an attorney on staff.
And that's how those operations run.
But New York, we don't have that option.
Rarely, rarely, rarely do you find somebody that comes from a city that works on a farm
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and wants to do it, enjoys the work, likes doing that.
We spoke to one of your employees earlier and asked him about, you know, how is it when
it gets hot when you're working out here?
And he goes, it's much hotter in Mexico than it is here.
He goes, it's actually when we get here, we're cold in April and May, but still it can get
warm.
So, you know, that's another discussion, particularly as we're seeing in other parts of the country
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where they're battling just extreme, brutal heat.
Luckily, we don't have that kind of heat here in New York.
But when it comes to that, what do you do for your men and women on those hot days?
First of all, we're right on Lake Ontario.
Lake Ontario is cool.
The bottom of Lake Ontario is below sea level.
The water never gets very warm here.
So we rarely, we go the whole summers and never hit 90 degrees here.
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You gotta understand where we're located.
What we have had hot spell.
So we'll go and we'll start earlier in the morning, knock off at two o'clock, call it
a day.
When they, you know, the heat of the day is two to four usually.
So hopefully plan our work schedule so we can, don't have to work in the heat of the
day.
And that, and the guys, they appreciate that and it works out for us.
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I have two ice machines on the farm for, to make cube ice that the guys know that they
take their coolers to fill them up there.
Ones at the labor camp, ones at the office.
And so everybody's got ice water and they're welcome to go back and fill up as many times
as they want and all day long, they're fill up big coolers.
And they do.
It's just, you know, and it's just common sense.
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It's tough when government wants to regulate how to handle heat stress because it's all
common sense.
And when the rules and regulations come down, they're usually not made with common sense.
But it's being flexible with the work schedule, listening to workers, they decide it's too
hot, it's too hot.
And you know, I work out there, my family works out there, we know it.
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It's no problem.
We'll just knock off for the day.
And they have no trouble saying, okay, tomorrow morning is okay if we started 530.
So yeah, let's do that.
And get most of the work done in the morning.
You need to have a few more workers to cover all that.
And that's what we plan for some of that.
But it's not a big deal for us because we usually don't get that warm.
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They provide shade, they have the bus that they can go into for the break to also cool
off.
And we also noticed that you have portable toilets in the fields as well for your employees
to use, obviously, in case they need it.
Well, it's required as far as the worker protection standard.
We have to have water and toilet facilities, hand washing facilities.
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So we have a couple portable Johnny on the spots that are on trailers, and they're hooked
up the back of an RTV and they drive around to wherever we're working.
We can't have them in the orchard for food safety reasons, they got to be on outside
of the orchard.
But we do that.
It's just common sense.
And we tell the workers make sure it's there.
If it's not there, call me.
Everybody has my cell phone number.
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They'll text me and say, you know, where's the Johnny on the spot?
And I say, oh, I'll go get it.
No problem.
Or one of them will just grab it.
We're not, you know, our farms aren't spread out.
They're not miles apart.
So they can just move it around.
It's not a big deal.
But it's nice that it's on the edge of the orchard that they're working in.
So nobody has to go very far.
And it's there all the time.
Now another thing that maybe federal lawmakers may not understand is the nature of the wage
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rates here in New York State.
The overtime threshold, that's going to be lowering very soon at the starting next year,
eventually getting down to 40 hours.
We have a lot more labor mandates in New York compared to our surrounding states.
Canada's not very far from where we are right now.
How difficult does all of those things stack up, make it, that are stacking up, make it
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for you and your farm to compete?
Well, I've got, for instance, sweet cherries we're picking today.
I got to compete against Michigan.
They don't have overtime.
I compete against Michigan in the peach market.
They don't have overtime.
Right now our threshold is 60 hours.
So our farm policy is no one's allowed to work more than 60 hours unless they clear
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it with me and I cleared for a specific person doing a specific job.
For instance, we had two weeks ago, I allowed some workers to work extra hours because we
had some sweet cherries we had to get off.
But if it's not a real, let's say, emergency or time sensitive thing, we don't let anybody
work more than 60 hours.
Next year the threshold goes to 54 hours, 56 hours, excuse me, in New York State.
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Supposedly we're going to have a tax credit in place to help us with that.
We'll see how that works.
But tentatively I'm going to say we're not going to go over the threshold if at all possible.
And that's just the way we handle it.
We also have another quirk in New York State where if anybody works a seventh day, they
automatically get time and a half, even though they didn't work many hours each day.
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And so our policy is nobody works seven days in a work week unless it's cleared with me
personally again for a specific person to do a specific job.
Sometimes there's some spraying that needs to be done or something special, but we rarely
pay any overtime on this farm because it's too expensive.
When you take our A-WAR is $16.95 right now and you put time and a half on that, it's
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pretty expensive.
The other thing the overtime has done is pretty much wiped out piece rate payments.
The workers love piece rate because the harder they work, the more money they made.
And we had workers who made half again or twice as much as other workers.
They get paid by how much they pick in the time frame.
And so much a bushel, so much a box.
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But if you do that now in New York State, you got to adjust the overtime.
You got to calculate the overtime for that person every week.
So if they're making $20 an hour because they're getting paid piece rate, their overtime rate
is $30.
And for that week, every week you got to recalculate it for that person.
And it just turns into a bookkeeping nightmare.
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So the workers don't like it, but piece rates completely gone on this farm.
It's just too complicated and just too difficult to calculate every week.
And if we pay a bonus of any kind, that's got to be calculated into the overtime.
And it just, we're just not going there.
We do some things on our farm just because we don't want to get into complicated calculations.
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We don't want to get into scrutiny of regulators in an audit.
So we just say, we're not going there.
Another thing we don't go, we don't do, we don't employ anybody that's not 16 years old.
Even though a 15 year old could be out here picking cherries from the ground.
It's just a nightmare because the first thing the inspector comes in is going to want to
quiz that person and say, you sure you didn't touch a piece of equipment?
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You didn't go anywhere near the chainsaw.
You weren't helping the guy with the chainsaw.
We just don't want it.
So we just say, okay, if you're not 16, you can't be on this farm.
And then I usually hire a few high school kids that are 16, 17, 18, but they're usually
not picking, they're doing odd jobs, picking up rocks, training trees, doing a little pruning,
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touch up work on trees, things like that.
We don't have children working on our farm.
It's just, it's a nightmare to justify to the regulator.
So we don't even want to go there.
We just make it a policy.
If you're not 16, don't even ask me to work on this farm.
Even though I'd like to give kids an opportunity, the rules and regulations are just too difficult
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to deal with.
We're just not going there.
It almost sounds like you need an attorney just to deal with New York state paper mandates
as well.
So you do, you need a, you certainly need an attorney on retainer if you're in the H2A
program.
Because when you have an audit and they start picking apart things, did you make the three
quarter guarantee?
Yeah, we made the three quarter guarantee.
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Our guys work almost every, all the hours they can possibly work, but still you got
to prove it.
So you got to have all this paperwork and they want to go through every single employee.
When they find something you want to, you want to get an attorney involved and make
sure that the inspector is interpreting the rules correctly.
Because a lot of those rules are open to interpretation.
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Three quarter guarantee, they are guaranteed to work three quarters of the hour specified
in the contract.
That is correct.
So if, and they're getting more difficult on that.
For instance, now when you're getting an audit and you advertise the job, say it was going
to average 48 hours a week or 55 hours a week and say the average worker worked five more
than that.
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The inspector will say, no, if you would have put that in the contract, maybe you would
have gotten more applicants come for this job.
You didn't describe the job correctly.
Well, I'll ask, well, how close have I got to be?
Well, we don't really know, but we think you ought to be close.
There's no number.
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It's things like that.
You just, so we're, every year we're looking at our contracts and saying, well, did I put
the hours in right?
Or for instance, I'll put in there a half a day on Saturdays.
Well, we'll go for four or five weeks in a row where we work a full day on Saturday.
Am I in violation of the contract?
Some inspectors would say yes.
Common sense says no, but when you get your inspected, there's not a whole lot of common
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sense.
And as a part of the H2A program, your housing is inspected as well.
Correct.
In New York state, our housing was inspected anyway.
If you have seasonal employers, employees housed on your farm until a couple of years
ago, if you had five or more seasonal employees, you had to be inspected anyway.
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A couple of years ago, they changed the law in New York state.
Now if we have one seasonal worker, your housing has to be inspected.
So we were being inspected anyway.
Luckily, luckily for us in New York state, there's a memorandum of understanding between
New York and the feds that the New York state health inspection satisfies the housing inspection
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for H2A.
Because there are some differences.
In some areas, they're stricter.
In some areas, they interpret things different ways.
But we can't follow multiple laws.
So the agreement is we follow the New York state, what's referred to as the part 15 health
code.
And when you look at it, it's all just common sense.
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I mean, is it safe?
Is it clean?
You don't have...you have sound, you know, the bedding, the cooking facilities, laundry
facilities, smoke alarms, first aid kits, cooking area, all this stuff.
It's all common sense.
We follow it.
We always...we would have anyway.
And you just renovate it.
We even have to...you have to take good care of the housing.
(28:53):
If you want to attract good workers and you want them to respect the housing, it's got
to be decent.
Yeah, we spent a lot of money this past year renovating a house that we had that was quite
frankly getting run down.
I spent $30,000 in that house this year, redoing the bathroom, redoing a kitchen.
It only houses eight people, but you have to have good housing.
(29:16):
And so we did that.
And you know, you have to instill on the workers to take care of it.
One of the challenges with the workers is getting them to tell you when there's something
wrong.
They don't like to complain.
They don't like to be a burden.
But you know, if there's a leak, something's leaking, please tell me before it floods the
place or if you don't have hot water, call me.
(29:36):
I don't care if it's 10 o'clock at night.
Give me a call.
We'll get it taken care of.
You have to have that open communications with them.
And I've got some good workers and there's a few that'll...they'll come and tell me,
hey, you know, there's this situation or that situation.
We just go, good to take care of.
Well, I think what it brings me maybe as we start to close here is communication is important
(29:56):
with your workers and also it's clear that you value them, you respect them, you appreciate
them because your business wouldn't be here if it wasn't for them as well.
We'd be dead in the water without good labor, labor that cares.
For instance, I say I'm paying these workers by the hour.
They could be goofing off.
They could be doing a sloppy job picking these cherries.
(30:17):
They don't.
They're conscientious.
They care about what they're doing.
If somebody's goofing off, they'll get on their case themselves.
They're a very good bunch.
They're conscientious.
They understand agriculture.
They want to do a good job.
And we've got a great relationship.
And some of these workers you see in this field have been out here for over 20 years
(30:38):
working on this farm.
And they come back year after year even though they could go elsewhere, but they do come
back because they enjoy working here and we've got a good relationship.
Thanks Jim for being so candid about the farm worker process.
So it's not easy making sure there are enough employees to harvest the food that we need
in this country.
New York Farm Bureau has long been advocating for reasonable immigration reform that will
(30:59):
streamline the process and also make it easier for migrant workers who are already in this
country working year round on farms.
For without them, a question about food security quickly becomes an issue of national security.
Well that's it for this edition of News Bites.
Make sure to give us a positive review wherever you listen to this podcast.
I'd like to thank Seth Moser Katz for his recording and editing of this edition of News
(31:21):
Bites.
Until next time, please thank a farmer and a farm worker for all that they do.
Farm workers are essential to our food supply, but it remains a challenge for many farms
(00:08):
to handle the rising costs and regulations that come with hiring needed employees.
Hi, I'm Steve Ammerman, New York Farm Bureau's Director of Communications.
Welcome to News Bites.
This past July, we spent a gorgeous Wednesday afternoon among the farm workers at Bittner
Sierra Orchards in Appleton, New York.
The fruit orchard sits on the shores of Lake Ontario, north of the Buffalo area.
(00:31):
In all, there are about 400 acres of trees growing stone fruit, things like apples, peaches,
and nectarines.
On this day, employees were picking cherries, Regina cherries to be exact.
They grow in bunches, they're large with dark red skins and have a sweet tart interior.
Honestly, eating them right off the tree were some of the best cherries I ever had.
(00:53):
But it's not easy getting the cherries from the tree to your house.
All starts with someone hand picking them.
These employees are skilled, they work quickly to fill the small baskets that hang from their
hips and then gently fill a larger bin that will go to cold storage, waiting transport
to the processors and fresh fruit markets.
The fruit pickers on Jim Bittner's farm primarily come from Mexico through the federal
(01:16):
agricultural guest worker program known as H2A.
Jim must go through a very expensive and complicated regulatory process to apply and interview
the workers at a U.S. consulate in Mexico before they're approved to enter the U.S.
for seasonal work only.
He pays their transportation, all of their legal fees, as well as their housing while
they're here in this country.
(01:37):
This is on top of the federally mandated wage rate known as AWARE, which stands for the
Adverse Effect Wage Rate.
This year, the hourly wage is just short of $17 an hour for New York State.
So now it's time to go to the farm where we spoke about all of this with Jim in hopes
of giving you a better understanding of where your food comes from and the challenges that
(01:58):
exist.
So Jim, tell me about your farm and the number of employees you have.
Well, we farm about 300 acres of tree fruit, about half of it's apples.
The other half is stone fruits, starting with sweet cherries, tart cherries, plums, prunes,
apricots and peaches.
And then the apples.
(02:18):
Our season, we like to tell people we are harvesting something starting the 1st of July
till the 1st of November.
Every day we are picking something out here.
So it's a long harvest season for us.
Most of our workers are seasonal.
I do have six full-time year-round people, mechanics, office.
(02:39):
They'll prune some trees, they'll manage the work during this growing season.
And they do all the pesticide application.
We don't have any seasonal workers apply any pesticides.
All of our pesticide applicators have their own pesticide license, so we don't have to
worry about that issue.
So we'll peak out in September and October is when we have the most workers here.
(03:02):
It'll be 40 to 45 workers, because apples are our biggest crop.
And they all are picked by hand.
And most of our crops are picked by hand.
The only thing we harvest with machine is tart cherries for cherry juice concentrate.
Everything else here is picked by hand.
Most people don't understand that labor is by far our biggest expense.
(03:24):
In an average year, 48% of my total expenses for growing fruit is labor.
So that's why labor is such a big deal for a farm like ours.
We'll bring in some H2A workers to help with the seasonal crop load.
We've been in the H2A program for seven years now.
(03:46):
We started just with a few.
I believe the first contract was eight workers.
And until this year, we were doing a joint contract with another farm that had different
– they also grew tree fruit, but they had a different workload different weeks of the
year.
They had more early apples.
I had more late apples.
We could move workers back and forth.
(04:08):
When the U.S. Labor Department changed the rules on H2A and said that a joint contract,
the workers have to work on both farms every week, it didn't work for us.
We had to drop that.
The workers aren't too happy about it because we actually are bringing in a few more workers
because we have to cover ourselves.
(04:29):
And they're working less hours because we can't let them go to the other farm to work
when there's no work on my life.
So that's one of the things that were changed this year that really affected us.
So we've had to drop the joint contract.
I tell everybody it's labor that's the expense for us.
And people don't understand that.
(04:49):
In terms of the H2A, so you rely on the H2A program.
A majority of our seasonal help is through the H2A program, not all of our seasonal help.
I still have a core group that comes to me every year to work seasonally.
That group has dropped off a couple people every year, so we've had to get more H2A workers
(05:11):
each year.
But we're still about a third, well let's just say they're resident migrant workers.
Most of them stay here year round anyway.
They just work for us seasonally.
And that was my core group before I got in the H2A program.
The other thing with the H2A program, it's complicated.
It's expensive.
(05:33):
I hire a consultant that fills out the contract, files the paperwork, does all that sort of
thing because it is so complicated and there's so many booby traps to fall into in doing
this that the average farmer's not going to do it themselves.
What's an example of a booby trap?
Well, for instance, this year, we were going to start, we've been doing a joint contract
(05:56):
and we filed our joint contract in January and find out that the U.S. Department of Labor
came up with new rules that the joint contract wasn't going to work the way it used to work.
I had a joint contract with a farmer that's only three quarters of a mile from me.
We both grow tree fruit.
(06:17):
He's just 100% apples.
I need the labor early.
He needs the labor late.
We could move people back and forth if he needed a couple extra people a certain week
or I needed a couple extra people a certain week.
We could move people back and forth within the joint contract.
It worked great.
And then we find out that with the new rules, you can't do that anymore.
(06:38):
Those workers have to work for each farm every week or can't work more than I believe is
35 hours for one farm in any one week, which to us is crazy.
But we had to quit filing a joint application.
And it was the consultant that found that and warned us about it to just don't even
(06:59):
submit that application because it's going to get rejected or it's not going to work
the way you think it's going to work.
The consultant advises us on how to handle paperwork.
Make sure you document this.
Make sure you document that.
Give us the roster for referrals.
Make sure you do this and that for the travel expenses.
(07:19):
You're guiding us to make sure we do everything right.
And the challenge is those rules change all the time or the interpretation of those rules
change all the time.
And as a farmer, you sort of get paranoid that you're not going to follow the rules.
I want to follow the rules.
I want to do everything right.
But I don't trust myself that I'm going to be able to figure this out when I go through
an audit.
(07:40):
When you get in the H-2A program, you learn real quick, you're going to get it audited
every two or three years.
You will get an audit.
And you're nervous as heck about it.
And people say, well, what do you got to be nervous about?
You're doing everything right.
Well, there's always a question in the back of your head.
Are we doing everything the way the inspector is going to interpret the rules?
(08:03):
I get involved in national calls on H-2A and you find out different inspectors interpret
the rules differently in different parts of the country.
Wage and Hour doesn't want to admit that, but it's true.
And so it's challenging.
It's confusing and it's scary.
And most farmers want to hold somebody's hand to work their way through it.
(08:25):
That consultant charges us a fee, but I don't think I have a choice.
We do it because I just don't want to get in trouble.
I want to make sure I'm doing everything I'm supposed to do by the letter of the law.
I had a fruit grower once tell me that despite it being scary, expensive, cumbersome, it's
still allowed him to sleep at night knowing he had a crew here that he could depend on.
(08:46):
Do you feel the same way?
Yes, I do.
When they take surveys about labor, they ask us, what's the labor availability?
I say, we have plenty of labor available to us through the H-2A program.
But the real question is, what's the cost and how cumbersome is the program?
And two different questions.
(09:06):
So I can get all the help I want through the H-2A program.
I know the people are going to be here.
Although this year has become a challenge getting interviews through the consulate,
my second group that came up was delayed.
They were here 10 days later than I was shooting for just because we couldn't get appointments
at the Monterey consulate.
(09:27):
Apparently, State Department decided to open up more interview sites in Mexico.
Now you can go to two more different consulates for interviews.
But instead of just hiring more people and staffing those consulates, they move people
from Monterey, which is where we were all going.
So now Monterey was backed up.
(09:47):
So we were 10 days late.
And they weren't here for my first cherries.
This year, I lost 20% of my early cherries because they rain cracked.
They should have been picked before the rain.
But we just didn't have enough people because the eight workers that I had coming were delayed
10 days.
But there's nothing I can do about that.
(10:08):
So yeah, I can sleep well.
Once they're here, we're always concerned.
Are they going to make it through the consulate?
If anybody's going to get rejected?
I had a worker that was rejected this most recent time, which is ironic because he was
here the year before.
But apparently, they found something in his record that he did not get his visa.
Now I'm going through the effort of getting someone to fill his spot.
(10:31):
I got to schedule another appointment.
I got to pay another $250 fee.
So I said, it's a cumbersome program.
But we don't have a choice.
If we want to get these crops picked, we have to be in the H2A program.
All of our H2A workers that we have here are referrals from other workers who are here.
(10:55):
We don't let somebody in Mexico recruit workers for us.
We don't just put out an ad.
Everybody is a referral from someone who's here, which is great because that person who
referred them feels a little bit responsible.
And that person shows up.
And if that person is not a good worker, they get on their case about it.
So I won't call it a vetting process because I don't interview them.
(11:17):
But they're all come as recommendations from current workers.
And it's usually the workers that have been here for a long time.
So if you go out and my orators are talking to them, you find out half of them are related
to somebody else or come from the same village.
They all know each other.
It's almost like it's one big family.
But they're all referrals.
(11:37):
When I first started the H2A, the first year I had a recruiter in Mexico.
And they sent me names and resumes for some workers.
And a couple of them had been in H2A workers in the United States before, worked in Washington
or California.
(11:57):
So I called the former employer.
I said, well, what's with this guy?
He says, well, if he was good, I would have had him come back.
So it tells me right away, you got to be careful because it's a big investment to bring this
person up here.
You're paying all these fees.
You're paying travel to come up here.
You're paying for the visa, the interview at the consulate.
(12:20):
I'm paying the person at the consulate that gets them the motel room and sets up the appointment.
As all these costs, I've got sunk into this person.
I can't have a dud.
So we're very careful about who we bring up.
I just don't take anyone.
I take referrals from people who are here.
And the people who are here, they want good people to be here with them.
(12:44):
They don't want a slacker.
So that's how we've...
So I learned right away, I refuse to allow someone in Mexico or wherever to recruit workers.
So there's a lot of talk about reforming H2A.
And you hear it bantered around in Washington quite a bit.
We have a number of needs.
If you could change the H2A program, how would you make it better or what change would be
(13:08):
most beneficial to your farm and to New York agriculture?
There's a lot of things they could do different.
Why is it that you have a contract that's approved one year and next year the exact
same contract is submitted and they find flaws with it?
It doesn't make any sense to me.
If it was okay last year, it should be okay this year.
(13:32):
Getting appointments at the consulates for workers should be a whole lot easier than
it is.
The other thing is, quite frankly, is the cost.
The AWAR keeps going up.
We don't know what our wage rate's gonna be this year till the beginning of the year,
(13:52):
which makes it difficult to plan.
And as a tree fruit grower, where I'm making projections three, four, five years out, it's
a nightmare when 48% of my cost is labor and I'm not sure what it's gonna cost me one,
two, three years out for that labor.
So it's the uncertainty of the AWAR.
(14:14):
We've seen it go up very rapidly the last few years.
I gotta believe it's gonna continue.
We all scratch our head wondering how that magic box works, where they come up with this
AWAR, because it's supposed to be an adverse effect wage and we can't figure out who's
the adverse effect against, because there aren't people out there to want these jobs.
(14:38):
People don't realize that these workers that we're getting are from rural areas, the countries
they come from.
Mine happen to come from Mexico.
We have other farmers in the area that are dependent on Jamaica.
But all these guys that are here working for me are from farms.
They're farm guys.
They understand working outside, they understand working in nature, taking care of a crop.
(15:02):
They're great and they want to, most of them want to go home and farm.
That's what they would like to do, make enough money to buy a plot of land and they want
to farm.
So that's the type of person that works on a farm, is someone who's been, who came from
an agricultural background, at least a rural background.
If you're gonna start into the H-2A program on your farm, a couple things, it takes a
(15:24):
lot of planning.
You got to submit the contract 60 days before you need the workers.
So it's not all of a sudden I got a crop and oh my, I'm sure to hell.
You're in trouble, you're already done.
So it takes planning.
I would talk to other growers in your neighborhood that are in the H-2A program and how they're
(15:44):
navigating the program.
All the contracts are online.
You can go look at your neighbors, if you know your neighbors using H-2A, you can go
look up their contract and see what the contract says.
And you can copy it.
Don't be surprised if it gets rejected, because again, a lot of this doesn't make sense.
They can accept one and not another, who knows why.
But at least it's somewhere to start.
(16:05):
And I would not tackle it on my own the first year.
If after that you think you can handle it okay, I don't think I can handle it.
It's one thing we've just contracted out with somebody to do it and it's not cheap.
And it's set up for bigger farms than us, because usually it's per contract, not per
worker.
So here I got a contract with 10 people on it.
(16:25):
I'm paying the same fees as a person that's got a contract with 100 workers on it.
The other thing you got to understand about New York State and H-2A, if you look at the
H-2A program, about half of the workers that are brought in this country work for farm
labor contractors, not directly for a farmer.
Farm labor contractors are rare in New York State.
(16:48):
We have a few of them, because New York State has done everything they possibly can to make
the life of a farm labor contractor difficult.
And where it's really hurting is the small guys.
The small guys that could just, you know, they only need four people for two weeks.
The easiest thing would be to call up a farm labor contractor, he sends those workers and
(17:08):
everything's taken care of.
But New York has made that so difficult that we don't have that.
But 50% of the H-2A workers that come to the United States work for farm labor contractors
and are rare in New York State.
And most people don't understand that.
When we go to meetings about H-2A, national meetings, it's predominantly farm labor contractors
(17:32):
that are there.
We're in a little different world than them.
And we're out on our own.
If you're a farm labor contractor, you not only have an attorney on retainer, you probably
have an attorney on staff.
And that's how those operations run.
But New York, we don't have that option.
Rarely, rarely, rarely do you find somebody that comes from a city that works on a farm
(17:58):
and wants to do it, enjoys the work, likes doing that.
We spoke to one of your employees earlier and asked him about, you know, how is it when
it gets hot when you're working out here?
And he goes, it's much hotter in Mexico than it is here.
He goes, it's actually when we get here, we're cold in April and May, but still it can get
warm.
So, you know, that's another discussion, particularly as we're seeing in other parts of the country
(18:22):
where they're battling just extreme, brutal heat.
Luckily, we don't have that kind of heat here in New York.
But when it comes to that, what do you do for your men and women on those hot days?
First of all, we're right on Lake Ontario.
Lake Ontario is cool.
The bottom of Lake Ontario is below sea level.
The water never gets very warm here.
So we rarely, we go the whole summers and never hit 90 degrees here.
(18:44):
You gotta understand where we're located.
What we have had hot spell.
So we'll go and we'll start earlier in the morning, knock off at two o'clock, call it
a day.
When they, you know, the heat of the day is two to four usually.
So hopefully plan our work schedule so we can, don't have to work in the heat of the
day.
And that, and the guys, they appreciate that and it works out for us.
(19:07):
I have two ice machines on the farm for, to make cube ice that the guys know that they
take their coolers to fill them up there.
Ones at the labor camp, ones at the office.
And so everybody's got ice water and they're welcome to go back and fill up as many times
as they want and all day long, they're fill up big coolers.
And they do.
It's just, you know, and it's just common sense.
(19:28):
It's tough when government wants to regulate how to handle heat stress because it's all
common sense.
And when the rules and regulations come down, they're usually not made with common sense.
But it's being flexible with the work schedule, listening to workers, they decide it's too
hot, it's too hot.
And you know, I work out there, my family works out there, we know it.
(19:51):
It's no problem.
We'll just knock off for the day.
And they have no trouble saying, okay, tomorrow morning is okay if we started 530.
So yeah, let's do that.
And get most of the work done in the morning.
You need to have a few more workers to cover all that.
And that's what we plan for some of that.
But it's not a big deal for us because we usually don't get that warm.
(20:11):
They provide shade, they have the bus that they can go into for the break to also cool
off.
And we also noticed that you have portable toilets in the fields as well for your employees
to use, obviously, in case they need it.
Well, it's required as far as the worker protection standard.
We have to have water and toilet facilities, hand washing facilities.
(20:34):
So we have a couple portable Johnny on the spots that are on trailers, and they're hooked
up the back of an RTV and they drive around to wherever we're working.
We can't have them in the orchard for food safety reasons, they got to be on outside
of the orchard.
But we do that.
It's just common sense.
And we tell the workers make sure it's there.
If it's not there, call me.
Everybody has my cell phone number.
(20:55):
They'll text me and say, you know, where's the Johnny on the spot?
And I say, oh, I'll go get it.
No problem.
Or one of them will just grab it.
We're not, you know, our farms aren't spread out.
They're not miles apart.
So they can just move it around.
It's not a big deal.
But it's nice that it's on the edge of the orchard that they're working in.
So nobody has to go very far.
And it's there all the time.
Now another thing that maybe federal lawmakers may not understand is the nature of the wage
(21:19):
rates here in New York State.
The overtime threshold, that's going to be lowering very soon at the starting next year,
eventually getting down to 40 hours.
We have a lot more labor mandates in New York compared to our surrounding states.
Canada's not very far from where we are right now.
How difficult does all of those things stack up, make it, that are stacking up, make it
(21:40):
for you and your farm to compete?
Well, I've got, for instance, sweet cherries we're picking today.
I got to compete against Michigan.
They don't have overtime.
I compete against Michigan in the peach market.
They don't have overtime.
Right now our threshold is 60 hours.
So our farm policy is no one's allowed to work more than 60 hours unless they clear
(22:02):
it with me and I cleared for a specific person doing a specific job.
For instance, we had two weeks ago, I allowed some workers to work extra hours because we
had some sweet cherries we had to get off.
But if it's not a real, let's say, emergency or time sensitive thing, we don't let anybody
work more than 60 hours.
Next year the threshold goes to 54 hours, 56 hours, excuse me, in New York State.
(22:27):
Supposedly we're going to have a tax credit in place to help us with that.
We'll see how that works.
But tentatively I'm going to say we're not going to go over the threshold if at all possible.
And that's just the way we handle it.
We also have another quirk in New York State where if anybody works a seventh day, they
automatically get time and a half, even though they didn't work many hours each day.
(22:50):
And so our policy is nobody works seven days in a work week unless it's cleared with me
personally again for a specific person to do a specific job.
Sometimes there's some spraying that needs to be done or something special, but we rarely
pay any overtime on this farm because it's too expensive.
When you take our A-WAR is $16.95 right now and you put time and a half on that, it's
(23:17):
pretty expensive.
The other thing the overtime has done is pretty much wiped out piece rate payments.
The workers love piece rate because the harder they work, the more money they made.
And we had workers who made half again or twice as much as other workers.
They get paid by how much they pick in the time frame.
And so much a bushel, so much a box.
(23:39):
But if you do that now in New York State, you got to adjust the overtime.
You got to calculate the overtime for that person every week.
So if they're making $20 an hour because they're getting paid piece rate, their overtime rate
is $30.
And for that week, every week you got to recalculate it for that person.
And it just turns into a bookkeeping nightmare.
(24:02):
So the workers don't like it, but piece rates completely gone on this farm.
It's just too complicated and just too difficult to calculate every week.
And if we pay a bonus of any kind, that's got to be calculated into the overtime.
And it just, we're just not going there.
We do some things on our farm just because we don't want to get into complicated calculations.
(24:27):
We don't want to get into scrutiny of regulators in an audit.
So we just say, we're not going there.
Another thing we don't go, we don't do, we don't employ anybody that's not 16 years old.
Even though a 15 year old could be out here picking cherries from the ground.
It's just a nightmare because the first thing the inspector comes in is going to want to
quiz that person and say, you sure you didn't touch a piece of equipment?
(24:49):
You didn't go anywhere near the chainsaw.
You weren't helping the guy with the chainsaw.
We just don't want it.
So we just say, okay, if you're not 16, you can't be on this farm.
And then I usually hire a few high school kids that are 16, 17, 18, but they're usually
not picking, they're doing odd jobs, picking up rocks, training trees, doing a little pruning,
(25:12):
touch up work on trees, things like that.
We don't have children working on our farm.
It's just, it's a nightmare to justify to the regulator.
So we don't even want to go there.
We just make it a policy.
If you're not 16, don't even ask me to work on this farm.
Even though I'd like to give kids an opportunity, the rules and regulations are just too difficult
(25:36):
to deal with.
We're just not going there.
It almost sounds like you need an attorney just to deal with New York state paper mandates
as well.
So you do, you need a, you certainly need an attorney on retainer if you're in the H2A
program.
Because when you have an audit and they start picking apart things, did you make the three
quarter guarantee?
Yeah, we made the three quarter guarantee.
(25:57):
Our guys work almost every, all the hours they can possibly work, but still you got
to prove it.
So you got to have all this paperwork and they want to go through every single employee.
When they find something you want to, you want to get an attorney involved and make
sure that the inspector is interpreting the rules correctly.
Because a lot of those rules are open to interpretation.
(26:20):
Three quarter guarantee, they are guaranteed to work three quarters of the hour specified
in the contract.
That is correct.
So if, and they're getting more difficult on that.
For instance, now when you're getting an audit and you advertise the job, say it was going
to average 48 hours a week or 55 hours a week and say the average worker worked five more
than that.
(26:41):
The inspector will say, no, if you would have put that in the contract, maybe you would
have gotten more applicants come for this job.
You didn't describe the job correctly.
Well, I'll ask, well, how close have I got to be?
Well, we don't really know, but we think you ought to be close.
There's no number.
(27:02):
It's things like that.
You just, so we're, every year we're looking at our contracts and saying, well, did I put
the hours in right?
Or for instance, I'll put in there a half a day on Saturdays.
Well, we'll go for four or five weeks in a row where we work a full day on Saturday.
Am I in violation of the contract?
Some inspectors would say yes.
Common sense says no, but when you get your inspected, there's not a whole lot of common
(27:25):
sense.
And as a part of the H2A program, your housing is inspected as well.
Correct.
In New York state, our housing was inspected anyway.
If you have seasonal employers, employees housed on your farm until a couple of years
ago, if you had five or more seasonal employees, you had to be inspected anyway.
(27:45):
A couple of years ago, they changed the law in New York state.
Now if we have one seasonal worker, your housing has to be inspected.
So we were being inspected anyway.
Luckily, luckily for us in New York state, there's a memorandum of understanding between
New York and the feds that the New York state health inspection satisfies the housing inspection
(28:09):
for H2A.
Because there are some differences.
In some areas, they're stricter.
In some areas, they interpret things different ways.
But we can't follow multiple laws.
So the agreement is we follow the New York state, what's referred to as the part 15 health
code.
And when you look at it, it's all just common sense.
(28:31):
I mean, is it safe?
Is it clean?
You don't have...you have sound, you know, the bedding, the cooking facilities, laundry
facilities, smoke alarms, first aid kits, cooking area, all this stuff.
It's all common sense.
We follow it.
We always...we would have anyway.
And you just renovate it.
We even have to...you have to take good care of the housing.
(28:53):
If you want to attract good workers and you want them to respect the housing, it's got
to be decent.
Yeah, we spent a lot of money this past year renovating a house that we had that was quite
frankly getting run down.
I spent $30,000 in that house this year, redoing the bathroom, redoing a kitchen.
It only houses eight people, but you have to have good housing.
(29:16):
And so we did that.
And you know, you have to instill on the workers to take care of it.
One of the challenges with the workers is getting them to tell you when there's something
wrong.
They don't like to complain.
They don't like to be a burden.
But you know, if there's a leak, something's leaking, please tell me before it floods the
place or if you don't have hot water, call me.
(29:36):
I don't care if it's 10 o'clock at night.
Give me a call.
We'll get it taken care of.
You have to have that open communications with them.
And I've got some good workers and there's a few that'll...they'll come and tell me,
hey, you know, there's this situation or that situation.
We just go, good to take care of.
Well, I think what it brings me maybe as we start to close here is communication is important
(29:56):
with your workers and also it's clear that you value them, you respect them, you appreciate
them because your business wouldn't be here if it wasn't for them as well.
We'd be dead in the water without good labor, labor that cares.
For instance, I say I'm paying these workers by the hour.
They could be goofing off.
They could be doing a sloppy job picking these cherries.
(30:17):
They don't.
They're conscientious.
They care about what they're doing.
If somebody's goofing off, they'll get on their case themselves.
They're a very good bunch.
They're conscientious.
They understand agriculture.
They want to do a good job.
And we've got a great relationship.
And some of these workers you see in this field have been out here for over 20 years
(30:38):
working on this farm.
And they come back year after year even though they could go elsewhere, but they do come
back because they enjoy working here and we've got a good relationship.
Thanks Jim for being so candid about the farm worker process.
So it's not easy making sure there are enough employees to harvest the food that we need
in this country.
New York Farm Bureau has long been advocating for reasonable immigration reform that will
(30:59):
streamline the process and also make it easier for migrant workers who are already in this
country working year round on farms.
For without them, a question about food security quickly becomes an issue of national security.
Well that's it for this edition of News Bites.
Make sure to give us a positive review wherever you listen to this podcast.
I'd like to thank Seth Moser Katz for his recording and editing of this edition of News
(31:21):
Bites.
Until next time, please thank a farmer and a farm worker for all that they do.
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