Coming Up Short: The Search for Labor


The latest business software can take you only so far if you don’t have anyone to trim hedges or dig ponds.

While nearly every employer in every industry struggles with finding and retaining quality employees, green industry business owners in particular have trouble when it comes to hiring. Maybe it’s because our country’s baby boomers are aging, and in the wake of the digital revolution the green industry doesn’t attract young professionals as much as other fields do. Maybe it’s because of comparatively lower wages and a slow winter season. Or maybe it’s because landscaping, when you get right down to it, is hard work. Whatever the reason, ask any employer if he or she is hiring, and the answer is sure to be a definitive yes.

H-2B and beyond

As a result of labor shortages, many employers have turned to the H-2B program, which supplies immigrant workers to American companies for nonagricultural short-term labor. Although immigrant labor can be a gray area, the consensus in the industry seems to be that H-2B is essential to our survival. “H-2B benefits a lot of different people,” says George Hohman, owner of Turfscape in Twinsburg, Ohio. “It benefits H-2B workers who need entry-level jobs, American workers who are able to attain the higher positions created as a result of the entry-level positions being filled and American companies who depend on H-2B workers to grow their businesses.”

However, there are a lot of people who claim that giving jobs to legal immigrants robs American citizens of employment.

But any employer will tell you that it’s not a question of taking jobs away from Americans if there aren’t American workers willing to do the work in the first place. Tom Delaney, director of government affairs for the Professional Landcare Network (PLANET) in Herndon, Virginia, knew a contractor who inadvertently ran a newspaper ad with a misprinted hourly wage. The ad said $30 per hour, when in truth the rate was closer to $16 per hour. But even with the misprint, the contractor still didn’t get any responses.

“If I don’t get any H-2B workers, the irony is that I will actually have to take jobs away from my permanent American workers,” says Maria Candler, president of James River Grounds Management in Glen Allen, Virginia. Candler regularly solicits up to 140 H-2B workers and maintains that without them, she won’t be able to grow her business or fulfill her contractual obligations. “The program is essential to my survival as a small business owner,” she explains.

“It’s not as easy as simply paying higher wages to entice American workers,” adds Mike Leman, president of Singing Hills Landscape in Aurora, Colorado. “If we doubled our hourly wage, our customers wouldn’t be able to afford our services. To a large extent, the market dictates the rate.” Situations where even average or above-average wages don’t net workers are where the H-2B program can help soften the labor shortage.

For hiring immigrant workers, many employers believe that H-2B, while imperfect, is the best solution available because it gives them larger numbers of committed employees who don’t have problems showing up for work or passing drug tests. Candler, Leman and Hohman have all had positive experiences with their H-2B workers.

“We have connections to most of our H-2B workers,” Leman explains. “Once our workers get familiar with the company and our ethics, they will refer friends and family members who are good workers, too.” A high rate of returning workers means less time spent in training each year and eases the transition for new workers.

The increase in labor doesn’t come without additional effort and expense, however. All three employers take extra steps and arrange transportation and housing, provide basic materials and cash advances, help their workers obtain state I.D. cards and/or driver’s licenses. Company manuals, safety materials and meetings are available in both Spanish and English to help with the language barrier.

Using H-2B is costly, but the alternative can be even more expensive, as Leman discovered. “The entire process costs us about $10,000 per year, but the first year that we used the program, we didn't get our workers until July, which cost us about 10% in sales. That year, we lost about $300,000 total,” he says.

In addition to time and money spent, there are a number of hoops through which any prospective H- 2B employer must jump. H-2B requires a considerable amount of pre-planning, as you must forecast your need months in advance. Then, applying for H-2B requires extensive documentation and paperwork to show that your need is temporary and that you have tried to hire all available American workers. You must also make it clear that you intend to hire full time workers and pay typical wages, as well as ask them to perform only normal duties. Wages paid to H-2B workers are set by the Department of Labor at the average prevailing wage to guarantee that the foreign workers will be paid fairly. But even if you do meet all of the conditions, there’s no guarantee that you’ll be approved.

To navigate the difficulties of the application process, most of the companies that use H-2B workers work with agencies that file the paperwork and recruit for them.

Making the H-2B program even more complicated is the limit on the number of workers that are accepted into the program for each fiscal year, October 1 to September 30. The 66,000 cap for the year is split into half for two six-month periods.

Sixty-six thousand workers might seem like a lot, but competing with green industry businesses for workers are beach and ski resorts, hotels, restaurants, retail, construction, etc. In fact, the cap isn’t enough for even the green industry alone.

The California Landscape Contractors Association (CLCA) in Sacramento, California, estimates that the nation’s economy actually requires the services of hundreds of thousands of immigrant workers per year. Moreover, the caps are reached earlier and earlier every year, sometimes filling up as early as a month before the deadline. This leaves all of the latecomers (and some who are simply denied) out in the cold. But it doesn’t help to apply early, either. By law, landscape contractors and other seasonal employers can apply for workers only 120 days before the labor is slated to begin.

To create a little more flexibility, in 2005 the government began allowing for returning worker exemptions. There was a need to somehow accommodate more workers without raising or eliminating the cap. So the exemption was devised to free workers who had previously participated in the program from being counted as part of the cap. However, it was never made permanent, leading to major headaches for professional associations trying to retain it into final legislation.

It seemed that the exemption was on its way to gaining permanency in mid-October of 2007, when the Senate passed a version of the fiscal 2008 Commerce, Justice and Science (CJS) appropriations bill that contained a provision to extend the exemption through September 30, 2008. Earlier last year, the House had passed its CJS bill without the H-2B provision, but the Senate’s vote gave the industry hope as the bill was sent to conference to work out the differences.

In late December, however, the H-2B returning worker exemption portion of the omnibus bill failed, which leaves the green industry, the biggest user of the program, short as much as 100,000 workers, starting in the spring. And the second cap was met just days after the start of 2008. Perhaps the only relief may come from the fact that U.S. Citizenship and Immigration Services (USCIS) will continue to process petitions filed to extend the stays of current H-2B workers in the U.S., change the terms of employment for current H-2B workers or allow current H-2B workers to add or change employers.

Hohman says that the loss of the H-2B returning worker exemption, in particular, will have a ripple effect on the economy, affecting not only the green industry but its customers and related industries as well. “The impact on the economy will mean something to politicians,” he thinks.

However, Candler feels that one of the reasons H-2B is held back is because for many legislators, the labor shortage is tied to a much larger, trickier issue: immigration reform. She maintains that H-2B is a “separate small business issue,” not a means for people to immigrate to the U.S. “I work very hard to make sure that I’m doing the right thing and hiring workers legally. My competitor, on the other hand, may be cutting corners and hiring illegally. I don’t want to be penalized for doing the right thing.”

Unfortunately, efforts to pass a permanent solution failed in 2006 and 2007. For now, comprehensive reform efforts are largely being shelved until 2009 or 2010. Because 2008 is an election year, CLCA feels that until the new Congress is established, it won’t be willing to tackle tough issues. In the interim, however, CLCA is trying to form an employer immigration reform coalition in California and lobby against anti-immigrant bills in the California state legislature. It also joined the no-match lawsuit that successfully rallied for a preliminary injunction against the no-match regulation. The regulation threatened penalties for employers who demonstrated what the Department of Homeland Security calls “constructive knowledge” of unauthorized unemployment. The injunction was important to prevent mass layoffs in the industry, CLCA believed, and to prevent adding to the number of unlicensed contractors or creating more problems for other employers.

What you can do

The struggle between the industry’s needs and legislative red tape rages on. But one thing that everyone in the green industry can do to make a difference, notes Rohlfes, is join and/or support comprehensive reform coalitions and communicate with representatives in Congress about H-2B and the need for comprehensive immigration reform.

Rohlfes explains, “It’s estimated that for every one letter that argues for immigration reform, there’s anywhere from nine to 1,500 letters against it. We talked with a lot of people in Washington who said that they don’t hear from businesses on these issues. However, surveys show that most people support comprehensive reform. There’s just a more vocal, albeit smaller, group against it.”

To simplify the process of tracking down state representatives, many landscape contractors’ associations distribute contact information. And to make it easier and quicker to speak with representatives, PLANET (which is also a member of the EWIC) has on its website, www.landcarenetwork .org, an H-2B toolkit that provides form letters, scripts and other resources.

Delaney agrees, greater activism among green industry professionals is needed. “Legislators listen to constituents, not lobbyists. People in this industry need to be engaged and active. It does make a difference. Even a form letter is better than nothing.” Although the results won’t be immediate, supporting legislative efforts is a real step towards alleviating the shortage.

Rohlfes adds, “Those of us working for comprehensive immigration reform know that when the issue is finally addressed, we’ll have to make some compromises. Still, it’s the right thing to do for the country.” And for the green industry as well.