Hearings and Business Meetings

SD-366 Energy Committee Hearing Room 02:30 PM

Hon. Victoria Lipnic

Department of Labor

STATEMENT OF
VICTORIA A. LIPNIC
ASSISTANT SECRETARY OF LABOR
EMPLOYMENT STANDARDS ADMINISTRATION
U.S. DEPARTMENT OF LABOR
BEFORE THE
COMMITTEE ON ENERGY AND NATURAL RESOURCES
SUBCOMMITTEE ON PUBLIC LANDS AND FORESTS
U.S. SENATE
March 1, 2006
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 foreign guest workers employed on tree planting and other service contracts (often called “reforestation contracts”) on national forest lands. A complete picture of the Department of Labor’s role with these foreign guest workers involves mentioning two other agencies within the Department – the Occupational Safety and Health Administration and the Employment and Training Administration – and there are representatives from those agencies here today. I am also joined on the panel by Michael Ginley, the Director of the Office of Enforcement Policy of the Wage and Hour Division (WHD), which is part of the Employment Standards Administration within the Department of Labor. Although reforestation work is found in many national forests and the challenges of enforcement in the forestry industry are not confined to one area, our testimony today will focus on our experiences in the national forests of California.
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 Department of Labor. We share a strong commitment with the USDA Forest Service (FS) to find a lasting solution to meeting the historical challenges of protecting these workers.
Before explaining these challenges and detailing our responses I will first describe the:
• Nature of reforestation work in national forests;
• Typical characteristics of reforestation guest workers;
• Federal laws applicable to reforestation in national forests; and
• The different agencies responsible for enforcing these laws.
Nature of Reforestation Work in National Forests
Reforestation work is hard, often dangerous work and involves a significant amount of travel. The duties are physically demanding, the pressure to work quickly is intense, the environment is often cold and wet, and the housing and eating arrangements are sometimes poor.
The average reforestation contract on a unit of the National Forest System (NFS) involves small crews of approximately 15 workers who clear brush and undergrowth and/or plant seedlings on remote tracts of NFS land. The contracts usually last several weeks and require constant movement to new tracts of NFS land. Travel to the contract sites is time consuming and frequently occurs on unimproved roads early or late in the day.
Reforestation contractors are typically small, and could very well be underfinanced businesses. They often struggle to make timely payment of payrolls, as they must wait for FS payment before paying their workers. Many of these contractors are former reforestation workers. The contractors often pay their workers on piece rate, and do not keep the required accurate record of employee hours actually worked.
Characteristics of the Reforestation Guest Workers
Reforestation guest workers are admitted as temporary nonimmigrants under the
H-2B provisions of the Immigration and Nationality Act (INA).
The H-2B workers’ continued presence in this country is entirely dependent on the willingness of the sponsoring employer to continue their employment. If this employment is lost, the workers must leave the country. The reforestation workers are typically dependent on their employer for all transportation and are left to their own devices to secure housing and food. This dependence instills a strong reluctance 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, and are often illiterate in their native language. They are largely ignorant of the application of U.S. wage and hour and safety laws. The workers typically reside in remote locations with little if any access to community or government resources to assist them with work-related problems.
Federal Laws Applicable to Reforestation Work in the National Forests
Federal reforestation contracts are primarily subject to the employee protections offered by a number of statutes within the jurisdiction of DOL. They are:
Fair Labor Standards Act (FLSA)
The FLSA requires the reforestation contractor to:
• Pay no less than the federal minimum wage ($5.15 per hour), free and clear, for all hours actually worked;
• Pay time and one half the workers’ 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 children under 18 years of age in accordance with federal child labor regulations;
• Maintain an accurate record of hours worked and wages paid.
The FLSA does not typically treat time spent traveling to the first work site of the day, or back at the end of the day, as compensable hours of work.
The FLSA requires that wages be paid free and clear. Employees may not be required to pay for the employer’s business expenses -- such as providing tools, equipment or fuel -- to the extent that such payment will reduce the employees’ wages below the minimum wage.
Migrant & Seasonal Agricultural Worker Protection Act (MSPA)
The MSPA requires the labor contractor to:
• Pay workers their wages when due, and give workers itemized, written statements of earnings for each pay period, including any amount deducted and the reasons for the deduction.
• Comply with federal and State safety and health housing standards when 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 where it can be seen or be given to the workers.
• Assure that vehicles they use or cause to be used to transport the reforestation workers are properly insured, operated by licensed drivers, and meet 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, the 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 (FLC). In addition, specific authorization must be obtained for all housing provided (if owned or controlled) and 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 where it can be seen at the job site which sets forth the rights and protections of the workers.
• Keep complete and accurate payroll records for all workers.
An FLC’s registration status with DOL can be verified by calling the WHD’s toll free number 1-866-4USWAGE (1-866-487-9243).
MSPA posters are available by either calling the toll free number or by visiting the WHD home page http://www.dol.gov/esa/whd/ and scrolling to the Quick Finder for Printed Publications.
The Service Contract Act (SCA)
The SCA applies to contracts for reforestation services in excess of $2,500 with the FS. It requires the reforestation contractors to:
• Pay the reforestation workers the SCA prevailing wages and fringe benefits determined by DOL to be prevailing in the locality for the class of service worker being employed;
• Notify the reforestation workers of the prevailing wage and fringe benefit requirements applicable to their work.
The reforestation workers must be paid the SCA required prevailing wages and fringe benefits free and clear. The contractors may not require the workers to pay for the employers’ business expenses -- such as providing tools, equipment or fuel -- to the extent that such payment will reduce the employees’ wages below the applicable SCA prevailing wage.
Occupational Safety & Health Act (OSH Act)
The OSH Act is administered by the Department’s Occupational Safety and Health Administration (OSHA). Safety and health conditions in most private industries are regulated by OSHA or the States through an OSHA-approved State plan. Nearly every employee in the nation comes under OSHA's authority with some exceptions such as miners, some transportation workers, certain public employees (except in some State Plan States), and the self-employed. In addition to the requirements to comply with the regulations and safety and health standards prescribed under the OSH Act, employers subject to the Act have a general duty requirement to provide work and a workplace free from recognized, serious hazards.
OSHA's mission is to help promote and assure workplace safety and health and reduce workplace fatalities, injuries and illnesses. OSHA, along with its State partners, achieves its mission through workplace enforcement of applicable laws, standards, and regulations, inspections, consultation services, compliance assistance, outreach, education, cooperative programs, and issuance of standards and guidance.
The Occupational Safety and Health Act encourages States to administer their own occupational safety and health programs under State plans approved by the Secretary. States with approved plans (referred to as “State plan States”) operate under the authority of State law and are responsible for occupational safety and health protection in that State. State plan States adopt standards at least as effective as Federal OSHA’s, enforce
these standards in a manner similar to Federal OSHA, provide on-site consultation services and conduct outreach and compliance assistance.
Twenty-two States have received Secretarial approval to administer their own occupational safety and health program which covers most private sector employment in their States as well as State and local government employees. (Four additional States cover only public sector employees through their State plans.) California administers an approved State plan and the California Department of Industrial Relations is the agency responsible for addressing the work place safety and health issues of the guest workers employed on tree planting and other service contracts on the national forest lands in California.
Field Sanitation
The OSH Act field sanitation standards establish minimum standards for field sanitation in covered agricultural settings. Covered employers are required to provide:
• toilets;
• potable drinking water;
• and hand-washing facilities.
Further, employers must provide each employee reasonable use of the above.
Authority for enforcing these field sanitation standards has been delegated to WHD in all States where Federal OSHA generally has authority, and in certain State plan States.
Immigration and Nationality Act (INA) Relevant Visa Category: H-2B
Department of Homeland Security regulations implementing the INA require employers filing petitions for H-2B non-immigrant workers with the United States Citizenship and Immigration Services (USCIS) to include a labor certification from the Secretary of Labor that qualified United States workers could not be found to fill the job. In the case of reforestation activities, employers must file an application for labor certification with the State Workforce Agency serving the geographic area. A contractor planting or thinning trees in a California forest, for example, would file with the local office of the California Employment Development Department between 60 and 120 days before the work is scheduled to begin.
In each case, the State agency follows guidance from DOL to determine the appropriate wage rate for the occupation listed, supervise and guide the employer’s recruitment of U.S. workers, and ensure completion of other requirements of the H-2B program. The State forwards completed applications to the DOL Employment and Training Administration (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 no authority to the DOL to enforce the wage rate identified for the
H-2B workers. The INA was amended by the Save Our Small and Seasonal Businesses Act of 2005, which, among other things, provided the Secretary of the Department of Homeland Security 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 such petition. 8 U.S.C. 1184(c)(14)(A).
Department of Labor Agencies and their Enforcement Roles
Occupational Safety and Health Administration (OSHA)
Federal OSHA and its State plan partners are responsible for enforcing OSHA standards and providing compliance assistance and training to reforestation employers. Enforcement programs of both Federal OSHA and State agencies include planned inspections as well as unplanned inspections that are conducted in response to employee complaints, accidents, fatalities, and catastrophes. Planned inspections target serious workplace hazards or dangerous industries. Unplanned inspections are typically in response to an employee complaint, a referral from another government agency, or a fatality or catastrophe in the workplace. The nature of reforestation work and those typically performing it makes conducting either type of inspection difficult. Employees engaged in this work rarely complain to OSHA for a variety of reasons. Additionally, work is not performed at fixed workplaces and the length of a job is relatively short. Therefore, locating these employers is often difficult.
The safety and health issues facing these workers depend on the task they are performing. For example, employees performing brush clearing operations are exposed to cuts and contusions from both the material they are removing, such as branch whip-back, and the equipment they are using. This necessitates the use of appropriate personal protective equipment, such as eye and face protection, hand protection, and appropriate footwear. Employees performing tree thinning are exposed to cut hazards created by chain saw use, overhead hazards from falling objects, such as felled trees and branches, and slips and falls from working on uneven terrain. These conditions also require adequate personal protective equipment, such as leg protection, head and face protection, and appropriate footwear. When performing these tasks it is critical that employees follow safe work practices. Employees who work in remote reforestation sites must have first aid available in the event of injury.
Federal OSHA works closely with its State Plan partners to develop effective strategies to address the safety and health issues of guest workers. It is important to involve the States in developing those plans to ensure that enforcement, training and assistance is coordinated among the various federal agencies and the States since a significant number of the identified national forests are in State Plan States. OSHA’s State plan partners are well-positioned to address the conditions faced by reforestation workers. For example, California OSHA has recently participated with Federal and State Wage and Hour officials and the FS to present a series of three training sessions for FS contracting
officers and forest service contractors. Oregon has promulgated a standard which specifically applies to forestry activities in addition to logging. Finally, many States have developed effective outreach materials designed for non-English speaking workers.
In summary, this is a complex problem for OSHA and the affected State Plan States. The solutions require effective coordination and cooperation between the OSHA partners and with the WHD and the FS.
Employment and Training Administration (ETA)
Under the H-2B visa program, ETA is responsible for review of H-2B labor certification requests. DOL oversight of worksite enforcement is provided by WHD and OSHA.
Employment Standards Administration, Wage and Hour Division (WHD)
The WHD is the enforcement agency responsible for ensuring compliance with the minimum wage and overtime requirements of the FLSA; the wage, registration disclosure, housing and transportation requirements of MSPA; the OSHA field sanitation standards in non-State plan States; and the prevailing wage and fringe benefit requirements of the SCA. The WHD seeks compliance with these requirements through a combination of enforcement and compliance assistance. There are some unique problems associated with enforcement regarding reforestation contractors. But first, let me explain the enforcement process generally, and some of the statute-specific differences.
WHD Enforcement Process
The WHD conducts investigations of employers on two bases:
• Receipt of a complaint alleging violations;
• Directed investigations where there is no complaint but the potential for violations is high due to the nature of the work, the vulnerability of the workers, or the industry.
WHD investigators will identify themselves and present official credentials at the opening of an investigation. They will explain the investigation process and the types of records required during the review.
A typical investigation consists of the following steps:
• Examination of records to determine which laws or exemptions apply. These records include, for example, those showing the employer’s annual dollar volume of business transactions, involvement in interstate commerce, MSPA registration status and work on government contracts. Information from an employer’s records will not be revealed to unauthorized persons.
• Examination of payroll and time records, examination of employer-provided housing and transportation (MSPA) and taking notes or making transcriptions or photocopies essential to the investigation.
• Interviews with certain employees in private. The purpose of these interviews is to verify the employer’s payroll and time records, to substantiate housing and/or transportation violations, to identify workers’ particular duties in sufficient detail to decide which exemptions apply, if any, and to confirm that minors are legally employed. Confidential interviews are normally conducted on the employer’s premises. In some instances, present and former employees may be interviewed away from the worksite to protect confidentiality and WHD takes aggressive action to correct any employer retribution under the anti-discrimination protections of FLSA Section 15(a)(3).
• When all the fact-finding steps have been completed, the investigator will ask to meet with the employer and/or a representative of the firm who has authority to reach decisions and commit the employer to corrective actions if violations have occurred. If back wages are owed to employees because of minimum/prevailing wage or overtime violations, the investigator will request payment of back wages due; if housing and/or transportation violations have occurred, the investigator will note the violations and, depending on the severity of the violations, will seek appropriate corrective action.
FLSA Enforcement
Although the WHD makes every effort to resolve the issue of compliance and payment of back wages at an administrative level, the FLSA also provides for the following enforcement actions:
• An employee may file suit to recover back wages, and an equal amount in liquidated damages, plus attorney’s fees and court costs.
• The Secretary of Labor may file suit on behalf of employees for back wages and an equal amount in liquidated damages.
• The Secretary may obtain a court injunction to restrain any person from violating the law, including unlawfully withholding proper minimum wage and overtime pay.
• Civil money penalties may be assessed for child labor violations and for repeat and/or willful violations of FLSA minimum wage or overtime requirements; employers who have willfully violated the law may face criminal penalties, including fines and imprisonment.
• Employees who have filed complaints or provided information during an investigation are protected under the law. They may not be discriminated against or discharged for having done so. If they are, they may file suit or the Secretary of Labor may file suit on their behalf for relief, including reinstatement to their jobs and payment of wages lost plus monetary damages.
MSPA Enforcement
MSPA provides for the assessment of civil money penalties, revocation of the contractor’s certificate (including authorization to house, transport or drive), criminal sanctions, fines and imprisonment.
MSPA Transportation Enforcement
Enforcement of MSPA transportation requirements is a critical element of WHD reforestation investigations, helping to prevent recurrence of recent horrific accidents involving the transportation of migrant workers. The enforcement of MSPA transportation requirements begins with the application for a Farm Labor Contractor (FLC) or Farm Labor Contractor Employee (FLCE) Certificate of Registration. On the application form, the applicant must indicate whether transportation will be provided to the workers and provide a Vehicle Identification and Mechanical Inspection Report for each vehicle to be used. The forms used for the vehicle inspection require identifying information on the person and establishment/garage making the inspection and the form must be “properly completed and signed, certifying that the vehicle meets” the applicable MSPA vehicle safety requirements.
In addition, evidence of compliance with the insurance requirements and financial responsibility requirements of MSPA must be submitted. MPSA requires not less than $100,000 per seat in insurance coverage (maximum $5,000,000 per vehicle) or worker’s compensation coverage along with a $50,000 property damage policy or a vehicle liability certificate of coverage showing that passenger hazard is included.
Further, any FLC or FLCE who drives a vehicle transporting workers must be listed on the application and provide driver license information and a copy of his or her driver’s license. The application package must include a Doctor’s Certificate form completed by a licensed doctor that indicates the applicant meets minimum physical requirements to drive a motor vehicle.
An approved FLC or FLCE Certificate of Registration indicates if the contractor is authorized to drive. It will list each authorized vehicle by make, model and partial VIN (vehicle identification number); the number of authorized seats (as provided on the application); and the date the certificate expires.
During an investigation of an FLC, the WHD investigator will determine if the FLC is involved with transporting the workers – the regulatory language looks to one who uses or causes a vehicle to be used. If the FLC is found to be using or causing a vehicle to be used, the investigator will check if the contractor is properly registered, is authorized to use the specific vehicle, and has the proper insurance in place.
In addition, the WHD investigator will document by observation and interviews the number of workers being transported, the identity of the vehicle (make, model, and VIN) and the driver (and whether the driver is properly licensed and carrying the Doctor’s Certificate), current license tag, and whether the vehicle possesses a current State vehicle inspection sticker (if required in the State in which the vehicle is registered). The investigator will also perform a visual inspection of the vehicle – looking for whether headlights are broken or missing; whether seating is broken, missing, or inadequate; whether windows are broken, missing or boarded up; whether tires are badly worn or defective; or whether windshields are cracked, broken or missing.
Any serious violations posing imminent danger to the occupant are brought to the attention of the FLC and immediate correction is sought. WHD investigators do not have authority to stop vehicles and do not have authority to require a labor contractor to cease using a vehicle. In such circumstances, the WHD investigator would need to enlist the cooperation of the appropriate State or local authority, such as the highway patrol. WHD investigators are trained to contact the appropriate authorities to ensure the safety of the workers.
In addition to seeking correction of the safety violations, WHD can assess civil monetary penalties and, if warranted, seek to revoke the labor contractor’s certificate of registration.
SCA Enforcement
When the WHD identifies monetary violations of the SCA, Federal contract funds may be withheld by the contracting agency to insure payment of SCA back wages. Employers who violate the SCA may also lose their Federal contracts and be declared ineligible for future contracts for a specified period (debarment). The WHD has debarred 13 reforestation contractors in the last decade.
Representative Wage and Hour Activities in the Pacific Northwest
As I mentioned at the outset, the issues associated with enforcement of the worker protections for the temporary guest workers doing reforestation work are not new to the DOL, although some of the issues associated with enforcement are unique. For example, securing timely correction of significant reforestation safety, transportation and housing violations is only possible if DOL investigators are present when and where the workers are employed, housed and transported; further, special language skills are critical to securing evidence of the violations from the workers. Transportation enforcement raises particularly unique issues, given the limited authority vested in WHD investigators to intervene when unsafe transportation is found. Cooperation with State and local law enforcement officials, as is effectively done in California with the California Highway Patrol, is one means of resolving this issue.
WHD offices in California and the Northwest have consistently worked with their counterparts in the FS in an effort to protect reforestation workers. For example, in February 2005, the WHD Sacramento District Office provided labor law training to 40 FS contracting officers representing the 17 national forests in California. The Seattle District Office regularly works with the FS offices in Idaho, Montana and Washington to ensure compliance with labor laws, and has effectively secured debarment of serious violators under the SCA. The Portland District Office has participated for several years in quarterly interagency “Farmer Forest” meetings with the federal and State Forest Service, the Oregon Bureau of Labor and Industry, and Oregon OSHA to facilitate joint efforts in achieving compliance.
Compliance Assistance
The DOL educates employers on compliance responsibilities in addition to taking independent enforcement actions. This approach is based on the long-held agency belief that the vast majority of employers want to comply with worker protections laws, but many do not know all of the legal requirements. The best preventative approach for these employers is clear, pertinent, readily-available guidance in multiple media. DOL is constantly working to provide guidance to employers via the telephone (toll free numbers), internet, and hard copies. This guidance includes an interactive, Web-based tool, called elaws Advisors, which provides around-the-clock assistance on the application of many DOL laws. Active outreach programs also include numerous speeches, seminars and training sessions provided to employer groups and industry associations.
The DOL also seeks to educate employees of their rights under federal laws in the language they understand, to provide tools that will help them protect their rights and to give the information needed to involve the agency in correcting violations.
Finally, the DOL actively seeks partnerships with worker advocacy groups, industry associations, agencies at all levels of government, and other entities that will help us educate employers and employees on achieving compliance with wage and hour laws.
Challenges
Although there is an ongoing relationship on a regional level between the Department of Labor and the Forest Service, DOL agencies and the FS continue to work to reinvigorate the process by which we identify and overcome challenges to ensuring protection of guest workers employed in our national forests. These challenges and our current and planned solutions are:
Challenge: Educating reforestation contractors, who are largely ignorant of their responsibilities for compliance when they are awarded reforestation contracts.
Solution: The FS, WHD, and the California occupational safety and health program (Cal-OSHA) have worked to develop a multi-prong approach to educating contractors before contract work begins. For example, WHD provided training for FS contractors in California in 2000. Planning began again in FY 2005 for a renewed effort as part of a WHD reforestation initiative for implementation prior to the beginning of the 2006 planting season. This training was offered to all contractors who were awarded 2006 contracts in central and northern California national forests. The training seminars were sponsored by the FS, the WHD, Cal-OSHA and the California Highway Patrol and held in January, 2006. The majority of contractors attended the seminars, in no small part because they were advised of the enforcement agency plans to investigate approximately 50% of the contractors this season.
The WHD and Cal-OSHA trained FS contracting officers in California in January, 2006. This training, which is being considered as a template for future training sessions in national forests across the country, provided contracting officers with the knowledge needed to educate contractors on site.
Reforestation contractors are provided with a complete package of WHD guidance to facilitate their compliance with worker protection laws.
Challenge: Finding reforestation workers while they are working on the reforestation contracts is critical to identifying and correcting violations, given the short duration of the contracts; the remote, constantly changing work sites; the temporary residence of the workers in this country; the typically poor/nonexistent recordkeeping practices of the contractors; and the need to personally inspect/document safety, housing and transportation violations when they occur.
Solution: The FS is providing the WHD and Cal-OSHA with the identity of contractors who have been awarded reforestation contracts, the approximate start date and location of the contract, and contact information on the FS staff responsible for each contract.
Challenge: Educating employees on their rights and how to contact the appropriate agencies, despite significant trust, language and literacy barriers, to correct violations.
Solution: The WHD is developing “worker rights cards” specific to reforestation employment in English and Spanish; working with various entities to distribute these cards and facilitate the filing of timely complaints; has initiated plans with the Department of State to provide these cards to workers upon approval of their non-immigrant visa; and is pursuing a Spanish language Public Service Announcement and other methods to reach reforestation workers.
The WHD, Cal-OSHA and the Forest Service will share the multilingual capabilities of each agency to better communicate with reforestation workers.
Challenge: Lack of complaints from reforestation workers requires an effective targeting program that will facilitate effective enforcement.
Solution: Establishing an effective investigation targeting program, such as is being done in California later this year when targeted investigations will be scheduled of approximately 50% of the reforestation contractors.
Using the list of future contracts provided to DOL by the FS, along with prior WHD and FS experience with the contractors, to target investigations for maximum effectiveness.
Provide training to FS Contracting Officers (as was done earlier this year in California), in identifying minor safety/health and wage/hour issues which can be corrected on-the-spot, and those more serious issues that must be referred to the WHD or Cal-OSHA for resolution. On-the-spot correction of minor labor law violations by contracting officers, as established in recently expanded FS contract language and field instructions, will significantly increase compliance with these laws. This new initiative will be covered in more detail in the FS testimony.
Challenge: Improve timely communication between the FS, Cal-OSHA and the WHD to insure effective interventions.
Solution: The FS, Cal-OSHA and the WHD are sharing updated nation-wide contact lists of appropriate agency contacts, encouraging regular, local/regional meetings when appropriate, and have established a national level working group to periodically coordinate and implement joint efforts to protect reforestation workers.
The dedicated men and women in the field who are charged with enforcing U.S. worker protection laws understand the challenges and difficulties of their assignment. On a national level, we are committed to working together and in the field we will work with any entities willing to help meet the enforcement challenges we have discussed today.
Mr. Chairman, this concludes my prepared statement. We would be pleased to answer any questions that the Subcommittee may have.