With labor topping the list of concerns in the industry for several years running, immigration and the visiting worker program are also coming to the forefront of worries for contractors.
Immigration and customs enforcement arrests increased overall by 30 percent last year compared to 2016, with a total of 143,470 arrests, according to the last fiscal year’s ICE Enforcement and Removal Operations Report. And just last month, the U.S. Department of Labor launched an initiative to educate and investigate businesses using the H-2B program.
With the increased scrutiny, it can be nerve-wracking for those who rely on the H-2B program and temporary workers.
“I think it’s fair to say that employers are pretty frustrated,” says Craig Regelbrugge, senior vice president of advocacy and research at AmericanHort. “The employers who are trying to use these programs feel they’re doing everything that the law allows them to do to ensure that they have a legal workforce and yet the government is making it harder, not easier, to do that.”
And 50 percent of the H-2B visas allocated each year are used by the landscape industry, Regelbrugge says, noting that’s only 5 percent of all landscape industry employment.
H-2B or not to be?
According to Lawn & Landscape’s State of the Industry research, 76 percent of contractors haven’t used the H-2B program at all in the past three years. Five percent have increased their use in the past three years and only 1 percent is using it less.
Those who use it generally agree that it’s a tough system to navigate, and an expensive one, too.
“It’s not an ideal situation but it seems like there’s no other option,” says Michael Sommers, owner of Sunset Lawn and Landscape in Texas, of the H-2B program. Sommers says he’s tried everything from advertising early, raising wages, offering health care and giving referral incentives, but he still can’t find enough workers.
Sommers says demand is high enough that he could grow his business if he could find reliable domestic workers, but he doesn’t want to hurt his reputation by taking on work he can’t complete.
“I got burned doing that last year,” he says. “I’d hire someone and then after a week or so, they’d just disappear and I’d never hear from them again. It’s embarrassing to have to call a customer and let them know I’ll be late that week to mow their lawn or put down fertilizer because I just don’t have the guys.”
His other option was to go out and try to make up the work himself, but between running three crews of two, handling the back-office work and caring for a new baby at home, he was getting burned out.
Both Sommers and Brett Jackson, owner of Jackson’s Lawn Care outside of Miami, Florida, say they’re staying away from an illegal workforce, even though they suspect that others around them are doing it.
“I see them out there, picking up guys at Home Depot or just grabbing some guys off the street for the day,” Jackson says. “I’m spending my time trying to make sure the guys I can find are actually legal. I don’t know what you’d do if ICE showed up and half of your crews don’t even have their paperwork. It’s not worth getting shut down over.”
While Sommers is navigating the H-2B program as best he can, Jackson has opted out. He says the expense, plus the time and effort, isn’t worth it.
“I hear people complain about it all the time, and I’ve looked into it,” he says. “It just isn’t worth all the work, especially for something that’s not a guaranteed fix.”
He instead chooses to focus on hiring U.S. citizens and keeping the employees he has for now.
Increasing scrutiny, audits and raids can put a contractor on edge when it comes to hiring. To make sure you’re staying legal, Regelbrugge recommends starting by making sure your I-9 process is being implemented properly. You have to walk the line between being too lenient and too zealous, he says.
“On the one hand, you must be diligently and consistently applying the requirements of the law and on the other hand, if you are being overly aggressive in that process, you might face claims of discrimination in your hiring practices so you can do too much,” he says.
Once that’s set, it’s time to look at what he calls “what if” components.
Get your legal defenses lined up in the event of a audit or a raid. And, in case something does go wrong, think about what you’ll do to fill in for missing workers. “Have you identified potential labor contractor resources or temporary help resources?” he says. “There’s no silver bullet, but how prepared are you for the possibility of a labor interruption and what would you do?”
The last piece is a dealing with the blow to your reputation in the event of a raid. “Do you simply want to leave it to homeland security to define what’s happening through their press releases or do you want to engage actively in managing your own reputation?” Regelbrugge says.
In late September, the House was looking at a new way to handle H-2B requests. An amendment was adopted on a voice vote to establish a returning worker exemption and allocate visas on a semi-annual basis rather than twice a year. There’s also an effort to weight the visas so that if there are 10 percent fewer visas than the market calls for, all take a 10 percent cut instead of someone getting shut out.
“The equity effort right now in the system is win-lose,” Regelbrugge says. “It’s like playing the lottery and somebody wins and somebody else loses, and it’s all or nothing.”