From January 1-3, 2021, the Department of Labor (DOL) received a total of 5,377 H-2B applications requesting more than 96,500 worker positions. The number of workers requested is nearly three times more than the 33,000 mandated cap for the second half of fiscal year 2021. The DOL has completed a randomization process where applications are randomly numbered and sorted and then certified. This process was initiated in October of 2019 to allocate H-2B visas more fairly.
President Trump extended the suspension of non-immigrant labor to March 31, 2021. The original order was set to expire at the end of 2020. This extension will not impact the allocation of H-2B visas since the first-half visa cap was hit in November, and visas allocated during the second part of the fiscal year have a worker start date of April 1 or later. However, FRA is working with the H-2B Workforce Coalition to go on record opposing the extension of the order.
This week, FRA sent out a survey to employers of H-2B forestry workers to assess how well the national exception guidance to the suspension of non-immigrant workers assisted them in getting the workforce they needed to plant trees. Although we are early in the collection process, it’s good to be reassured that FRA’s efforts to include H-2B forestry workers as a national interest benefitted employers. A couple of comments we received are below.
“We appreciate the FRA and the efforts that they have made! We would be completely out of business without them. We are just beginning to get workers approved in Guatemala. It is late, but not completely shut down. The process continues to be a struggle in Guatemala.”
“We will get all the work done, it will just cost more due to increased hours/days. There needs to be a permanent solution, and hopefully one that is not directly tied to immigration reform.”
Logger Relief Status
In the last Issue Update, FRA reported that the final spending bill included financial relief provisions for timber harvesting and timber harvesting businesses negatively impacted by the COVID-19 pandemic. Since that time, FRA has received numerous inquiries on how logging businesses can apply under this new program. FRA has been in communication with the U.S. Department of Agriculture (USDA) regarding the timing of when and how logging businesses can apply. The USDA is currently reviewing the authorities they were provided in the omnibus in response to COVID-19. FRA will continue to provide our members with information on how to apply for this program when it becomes available.
Independent Contractor Status Rule
This week, the DOL announced a final rule clarifying the standard for determining employee versus independent contractor status under the Fair Labor Standards Act (FLSA). The final rule includes the following:
- Reaffirms an “economic reality” test to determine whether an individual is in business for him or herself (independent contractor) or is economically dependent on a potential employer for work (FLSA employee).
- Identifies and explains two “core factors” that will prevail in determining whether a worker is economically dependent on someone else’s business or is in business for him or herself:
- The nature and degree of control over the work.
- The worker’s opportunity for profit or loss based on initiative and/or investment.
- Identifies three other factors that may serve as additional guideposts in the analysis, particularly when the two core factors do not point to the same classification. The factors are:
- The amount of skill required for the work.
- The degree of permanence of the working relationship between the worker and the potential employer.
- Whether the work is part of an integrated unit of production.
- The actual practice of the worker and the potential employer is more relevant than what may be contractually or theoretically possible.
Independent contractor status is an issue that FRA has engaged in for many years as part of a coalition with other sectors that utilize contractors. FRA participated in a DOL conference call when the rule was unveiled. Staff indicated that 1,800 comments were filed on this proposal and that the bulk of the comments was from individuals ranging from Uber drivers to freelance journalists to repairmen and translators. They went on to add that the group of commenters self-identifying as independent contractors supported the rule by a margin of 20 to 1.
The rule is slated to take effect 60 days after publication on the Federal Register, on March 8, 2021. Its fate, however, is unclear under the Biden Administration. As always, we will keep you apprised of developments.
The outcome of the two runoff elections on January 5 for the U.S. Senate seats in Georgia have resulted in a change in control of the U.S. Senate. Senator Chuck Schumer (D-NY) will take over as Senate Majority leader when Democratic Senators –elect Raphael Warnock and Jon Ossoff take their seats in the upper chamber.
As FRA noted in our post-election analysis in November and our webinar on December 3, this development forces a number of changes on key committees for our policy agenda.
On the key Senate Energy and Natural Resources Committee, Senator Joe Manchin (D-WV) will take the chair. West Virginia is a state where FRA has a considerable footprint, and we have a good relationship with the Senator and his team.
Likewise, Senator Debbie Stabenow (D-MI) will take over the gavel of the Senate Agriculture, Nutrition and Forestry Committee. As writing the next Farm Bill may begin as early as late 2021, this is a priority committee for us, and Senator Stabenow has been a long-time champion of forestry and the forest products sector.
Two other notable changes are Senator Ron Wyden (D-OR) chairing the all-powerful Senate Finance Committee, which handles all tax and trade policy in the upper chamber. The FRA team has long-standing relationships with Senator Wyden’s Finance Committee staff, and we have a considerable footprint in Oregon, so we are optimistic going forward working with Chairman Wyden. Finally, Senator Tom Carper (D-DE) will chair the Senate Environment and Public Works Committee (EPW). This panel takes the lead on all environmental and transportation policy issues, so it is obviously critical for us. Senator Carper has been a challenge on a number of these issues, but we look forward to engaging with him and his team early in 2021.