TABLE OF CONTENTS *

OPENING STATEMENT, CHAIRMAN CASS BALLENGER, SUBCOMMITTEE ON WORKFORCE PROTECTIONS, COMMITTEE ON EDUCATION AND THE WORKFORCE, U.S. HOUSE OF REPRESENTATIVES *

OPENING STATEMENT, MINORITY RANKING MEMBER MAJOR R. OWENS, SUBCOMMITTEE ON WORKFORCE PROTECTIONS, COMMITTEE ON EDUCATION AND THE WORKFORCE, U.S. HOUSE OF REPRESENTATIVES *

STATEMENT OF THE HONORABLE JOSEPH R. PITTS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF PENNSYLVANIA *

STATEMENT OF WILLIAM BURKHOLDER, MEMBER OF THE AMISH COMMUNITY, CENTERVILLE, PENNSYLVANIA *

STATEMENT OF MR. CHRIST BLANK, MEMBER OF THE AMISH COMMUNITY, KINZERS, PENNSYLVANIA *

STATEMENT OF THE HONORABLE CHARLES T. CANADY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF FLORIDA *

STATEMENT OF WALTER KATES, DIRECTOR OF LABOR RELATIONS, FLORIDA FRUIT AND VEGETABLE ASSOCIATION, ORLANDO, FLORIDA, TESTIFYING ON BEHALF OF THE FLORIDA FRUIT AND VEGETABLE ASSOCIATION AND THE NATIONAL COUNCIL OF AGRICULTURAL EMPLOYERS *

STATEMENT OF MR. GUY DONALDSON, PRESIDENT, PENNSYLVANIA FARM BUREAU, CAMP HILL, PENNSYLVANIA, TESTIFYING ON BEHALF OF THE AMERICAN FARM BUREAU FEDERATION *

STATEMENT OF ROBERT WILLIAMS, DIRECTOR, MIGRANT FARMWORKER JUSTICE PROJECT, FLORIDA LEGAL SERVICES, INC. *

STATEMENT OF DINO CERVANTES, PROPRIETOR, CERVANTES ENTERPRISES, LAS CRUCES, NEW MEXICO *

APPENDIX A -- WRITTEN OPENING STATEMENT, CHAIRMAN CASS BALLENGER, SUBCOMMITTEE ON WORKFORCE PROTECTIONS, COMMITTEE ON EDUCATION AND THE WORKFORCE, U.S. HOUSE OF REPRESENTATIVES *

APPENDIX B -- WRITTEN OPENING STATEMENT, MINORITY RANKING MEMBER MAJOR R. OWENS, SUBCOMMITTEE ON WORKFORCE PROTECTIONS, COMMITTEE ON EDUCATION AND THE WORKFORCE, U.S. HOUSE OF REPRESENTATIVES *

THE EFFECT OF THE FAIR LABOR STANDARDS ACT ON AMISH FAMILIES AND H.R. 2038, THE MSPA CLARIFICATION ACT

The subcommittee met, pursuant to notice, at 2:03 p.m., in Room 2175, Rayburn House Office Building, Hon. Cass Ballenger [chairman of the subcommittee] presiding.

Present: Representatives Ballenger, Barrett, Hoekstra, Owens, Miller, and Martinez, Goodling, Souder, and Peterson.

Staff present: Molly M. Salmi, Professional Staff; Gary Visscher, Workforce Policy Counsel; Deborah Samantar, Office Manager/Labor Staff; Mark Rodgers, Workforce Policy Coordinator; Brian Kennedy, Labor Counsel/ Coordinator; Peter Rutledge, Senior Legislative Associate/ Labor; Maria Cuprill, Legislative Associate/Labor; Shannon McNulty, Staff Assistant/Labor.

Chairman Ballenger. A quorum being present, the Subcommittee on Workforce Protections will come to order.

According to rule 12(b) of the committee rules, oral opening statements will be limited to the chairman and the ranking minority member. Therefore, if other members have opening statements, they will be included in the printed hearing record. This will allow us to proceed with the testimony from our witnesses and to help members keep up to their schedules. And, without objection, all members' statements and witnesses' written testimony will be included in the hearing record.

First, I want to welcome all our witnesses here today. We have a number of people who have traveled quite a distance in order to testify today and we appreciate your time and your willingness to appear. I also want to welcome two of our colleagues who will testify: Congressman Pitts, who will appear in the first panel, and Congressman Canady, who will appear in the second panel dealing with the Migrant and Seasonal Agricultural Workers Protection Act issues.

Today's hearing will focus on two issues. The first panel will review the effect on the child labor provisions of the Fair Labor Standards Act on Amish families. The Department of Labor has recently, in recent years, undertaken enforcement efforts within the Amish community which have had an adverse impact on their ability to provide their traditional means of training and employment of the Amish young people. In the Amish community, young people complete their classroom learning at the ages of 14 or 15 and progress to hands-on education and training, working with their families and others to acquire experience and skills in practical areas such as farming, carpentry, and homemaking. It is my understanding that several sawmills in Pennsylvania, Ohio, and Indiana are now facing thousands of dollars in fines for allegedly violating child labor laws by employing workers under the age of 18. Many of these cases are working their way through the appeals process. We will hear more about this from the first panel to testify today, which includes our colleague, Congressman Pitts, and two members of the Amish community, William Burkholder and Christ Blank.

The second panel will focus on H.R. 2038, the MSPA or MSPA Clarification Act. The Migrant and Seasonal Agricultural Worker Protection Act was enacted with bipartisan support 15 years ago. Unfortunately, the Department of Labor, particularly in recent years, has stretched the original intent of the act and in some cases seems to have simply contradicted the law with new interpretations and regulations. A field hearing held in Pennsylvania last June by the Subcommittee on Workforce Protections highlighted a number of the problems and the problem areas under the act and its regulations.

Today's hearing will review many of the same issues and more closely examine the provisions of H.R. 2038, which would clarify the act and improve its administration. For example, the purpose of the limited MSPA reforms enacted during the last Congress was to provide agricultural employers with affordable insurance to cover vehicles used for transporting farm workers. However, regulations issued subsequently by the Department of Labor did not eliminate the problem of unaffordable transportation insurance. As a result, there are fewer safe means of transportation for the workers. This issue and others should be resolved by provisions in H.R. 2038.

In addition to the issue of costly vehicle insurance, there are other unresolved issues involving housing, joint employment, and duplicative government inspections. I look forward to hearing the testimony on MSPA and H.R. 2038 from our colleague Congressman Canady, as well as that of other witnesses on the second panel.

Again, I want to welcome our witnesses and thank you for taking time to appear today to educate the subcommittee on these issues, and I turn to Major Owens for his statement.

WRITTEN OPENING STATEMENT, CHAIRMAN CASS BALLENGER, SUBCOMMITTEE ON WORKFORCE PROTECTIONS, COMMITTEE ON EDUCATION AND THE WORKFORCE, U.S. HOUSE OF REPRESENTATIVES -- SEE APPENDIX A

Mr. Owens. Thank you, Mr. Chairman. While I cannot say that I necessarily share your views, I want to thank my colleagues, Mr. Pitts and Mr. Canady, for putting forth their time and effort to participate in this hearing today. I also want to acknowledge the contribution of Mr. Goodling, the chairman of the full committee. I feel safe in saying that we would not be here today but for his interest. Again, while I cannot promise to

agree with you, I am, nevertheless, very appreciative of the sincerity of your views and the efforts you've undertaken to share them with us.

This hearing covers two unrelated subjects. The first concerns the impact of child labor laws on the old order Amish. I fully understand and appreciate the desire of the Amish to maintain their traditional ways and values. However, I also fully support the purpose and intent of the child labor law to ensure that youth are not employed in hazardous work settings. A sawmill is clearly a hazardous worksite. Occupational fatalities in the lumber and wood products industry exceed the national average about five times. Non-fatal injuries occur at a rate of more than two times the national average. From 1994 until 1996, at a time when the national non-fatal injury rate was declining, the injury rate for the lumber and wood products industry was increasing.

It is also important to remember that the Amish mills and shops are commercial enterprises competing with other non-Amish mills and shops. While I appreciate the concerns that are being raised, I have very strong reservations regarding the employment of any children in hazardous work settings. I am also dubious about imposing one set of labor laws on one group of employers while their competitors operate under a different set of laws.

The second subject of this hearing is H.R. 2038. Historically, migrant and seasonal agricultural workers have been among the most exploited workers in our society. While the Migrant and Seasonal Agricultural Workers Protection Act has brought about significant improvements, the fact remains that these are among the hardest, lowest-paying jobs in the country. Too many migrant and seasonal workers remain victims of gross exploitation and abuse.

A recent article in The New York Times pointed out that over the last two decades, the wages of the Nation's 2 million farm workers have declined by 20 percent or more after accounting for inflation. Tomato workers in Florida only have an average annual income of between $8,000 and $10,000.

An article late last year in The Sacramento Bee told of documented injury rates of 11 percent among men and 8 percent among women among migrant workers. In May last year, three farm labor contractors in Florida pled guilty to smuggling in groups of Latin Americans and forcing them to work off smuggling fees as high as $700. Workers who tried to leave were threatened at gunpoint. Peonage, which used to be a hallmark of the migrant and seasonal agricultural industry, is now uncommon, but it is not yet unheard of.

Other labor law abuses, including sub-minimum wages, unfit housing, and unsafe transportation remain major problems in the industry. Another subcommittee of this committee recently held hearings on sweatshops in the United States. I would remind my colleagues that, overall, conditions of employment for migrant and seasonal agricultural workers in the United States remain more abysmal than those in any other occupation.

I am willing to work with Mr. Canady and any other member to better ensure that farm workers are paid the wages they are owed, a decent house, and are safely transported. I do not claim that AWPA was written on Mount Sinai. If there are ways to ease grower compliance with the law without diminishing the law's protections, I would gladly support that legislation. However, I strongly disagree with Mr. Canady regarding the merits of H.R. 2038. The heart of AWPA is those provisions that establish joint employer status between growers and farm labor contractors. I'm particularly concerned that H.R. 2038 returns us to the discredited and unworkable policy of seeking to protect farm workers through the regulation of farm labor contractors. Growers must be held accountable for the farm labor contractors they employ. The alternative is to return to a market system that invites and encourages the vilest, most blatant exploitation of workers.

Mr. Canady says in his prepared statement that H.R. 2038 does not weaken or do away with the basic protections afforded by AWPA. This is a statement of opinion, not fact, and many disagree with it. It is my view that H.R. 2038 seriously and significantly undermines the protections afforded by AWPA. If H.R. 2038 were enacted, though I question whether it can be, I'm very concerned that instances in which farm workers are cheated out of their lawful wage or housed in unsanitary, unsafe shelters, and are killed on the highways in unsafe vehicles will increase and not diminish.

I thank you, Mr. Chairman.

WRITTEN OPENING STATEMENT, MINORITY RANKING MEMBER MAJOR R. OWENS, SUBCOMMITTEE ON WORKFORCE PROTECTIONS, COMMITTEE ON EDUCATION AND THE WORKFORCE, U.S. HOUSE OF REPRESENTATIVES -- SEE APPENDIX B

Chairman Ballenger. Thank you, Mr. Owens.

Before I introduce our first panel, I'd like to mention that we have some visitors here: Representative Souder from Indiana and Representative Peterson from Pennsylvania. We welcome you, gentlemen.

Now let me introduce the first panel of witnesses. First is Congressman Joseph Pitts from the 16th district in Pennsylvania; second, Mr. William Burkholder from Centerville, Pennsylvania, and third, Mr. Christ Blank of Kinzers, Pennsylvania.

And before the witnesses begin their testimony, I'd like to remind members of the subcommittee that they'll be allowed to question the witnesses after all the members of the panel have testified. In addition, committee rule 2 imposes the five-minute limit on all questions.

With that being said, Congressman Pitts, you may begin your testimony.

Mr. Pitts. Thank you, Mr. Chairman. Mr. Chairman and members of the Workforce Protections Subcommittee, I want to thank you for holding this hearing on an important issue, important to members of the Amish community who reside in over 20 States in this country. I appreciate the opportunity to be with you this afternoon.

As you know, the Amish people are a very committed, hard-working community which does not contribute to the social ills of our society. The religious heritage of the Amish demands hard work, responsibility, and respect from their youth. Further, they do not accept any assistance from any government programs. Mr. Chairman, I am extremely concerned that recent actions taken by the Department of Labor have threatened the lifestyle of this respected community and I would like to give you a brief overview of the problem for the Amish.

The Amish wish to have their youth work in vocational settings after completion of Amish school, which is equal to our eighth grade. The Amish view this work as part of their schooling, since they often accompany a parent or other relative or adult to a job and learn a vocation. The Amish often refer to this as learning by doing. Unfortunately, Amish-owned businesses, particularly sawmills, recently received costly fines for having their youth under the age of 18 work in their businesses. This has received attention at both the local and national level.

I, along with Representatives Mark Souder, John Peterson, Phil English, and others, have attempted over the last 18 months to work with the Department of Labor to find an administrative solution, so that the Amish youth can remain in their community and begin their professional training. Several Members of Congress with Amish constituents met with Department of Labor officials twice last year in an attempt to find a solution to this problem. Further, report language was included in the Fiscal Year 1998 Labor HHS appropriations bill urging the Department of Labor to continue its negotiations with Members who have Amish constituencies and to come to a compromise by the end of 1997. I have brought copies of this report language and copies of our correspondence with the Department of Labor to insert for the record.

[The information follows:]

REPORT LANGUAGE INCLUDED IN THE FISCAL YEAR 1998 LABOR HHS APPROPRIATIONS BILL AND CORRESPONDENCE WITH THE DEPARTMENT OF LABOR CONCERNING NEGOTIONS WITH MEMBERS WITH AMISH CONSTITUENCIES -- SEE APPENDIX C

Unfortunately Mr. Chairman, we received two negative responses from the Department of Labor. The first was sent on October 28 in response to a letter from members dated August 7, 1997. In that letter, John Frasier of the Wage and Hour Division stated that the Department of Labor could do nothing to solve this issue and explained he was unable to act based upon current legislative language. In a letter to Secretary Alexis Herman, dated December 22, Congressmen Souder, Peterson, and English and I protested this rationale and noted that the unique situation of the Amish merits special attention by the Department of Labor. Further, we called upon her to give the members administrative or legislative options that are available to allow the Amish to work in supervised settings.

The Amish who, as I said, live in at least 20 States across this country, have a unique situation since they complete their formal schooling after the eighth grade. Accordingly, I believe the Department of Labor has the responsibility to evaluate the Amish in that light. It was my hope that the Department of Labor could alleviate the problems that have been created for the Amish. Unfortunately, we just received a response yesterday, April 20, from Deputy Secretary Catherine Higgins, who again stated that current legislative language prohibits the Department of Labor from coming to a solution for this problem.

Mr. Chairman, I'm committed to working with the Amish to find a solution to this problem and am hopeful that the Subcommittee on Workforce Protections will join you and the other members to see that Amish youth can again work in supervised settings. Further, Mr. Chairman, I respectfully request that the record reflect the desire of Members involved in this issue to have more timely responses from the Department of Labor. I find unacceptable the Department taking three and four months to respond to simple requests from Members of Congress.

Mr. Chairman, many communities like Lancaster County, Pennsylvania, in my district, greatly appreciate the heritage and work ethic of the Amish. We wish to keep them as a part of our communities. However, if the Amish continue to face barriers from the State and Federal Government, they will be driven out of our communities and their strong heritage will be undermined by governmental interference.

In conclusion, you may hear from some self-proclaimed child advocates who oppose allowing Amish children to preserve their family and cultural heritage. I would ask them and all members here today a simple question: Is it more dangerous to work in a sawmill 150 feet away from a saw, sweeping dust and stacking lumber, than it is to have a Federal bureaucrat destroy the ability for a Christian community to teach their children in a way that is culturally appropriate? Are the Department of Labor and its child advocates protecting children or a political agenda with this type of regulatory action?

Thank you for inviting me to join you for this hearing today. I'll be happy to answer questions, and I'm sure that Mr. Blank and Mr. Burkholder, who joined us today, can give you specific details regarding this issue. Thank you, Mr. Chairman.

[The statement of Mr. Pitts follows:]

WRITTEN STATEMENT OF THE HONORABLE JOSEPH R. PITTS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF PENNSYLVANIA -- SEE APPENDIX D

Chairman Ballenger. Thank you. Mr. Burkholder, you may begin your testimony.

Mr. Burkholder. Mr. Chairman and committee members, thank you for the opportunity to present to you our concerns regarding well-intended child labor laws and the adverse impact some of these laws are now having in our Amish communities and on our way of life. As I am sure you are aware, children in our community finish classroom schools in the eighth grade, learning the essentials of reading, writing, and arithmetic. While this learning is an important part of shaping their lives, preparing them for adulthood, their success with our way of life requires other skills as well. Many of our adult occupations require learning by doing. Despite living in a technological world, we have limited ourselves by choice to occupations that leave time for our faith in God and for our families: Farming, carpentry, wood and metal shops, sawmills, harness making, furniture making are some of the ways I'm sure you recognize we earn our living. These are occupations that reinforce self-reliance within our group of community as well as the work ethic.

While many of your own children might have a computer at an early age to begin acquiring the skills needed to thrive in a modern, fast-paced world, our society requires faith and tradition to keep itself together to continue to thrive in a modern world. Again, this tradition is one of our faith in God.

I believe in the importance of our family, of self-reliance within our group, and in hard work. These beliefs and lessons are shared. We share them with our children, even at a very young age. They learn by our example and by doing.

We recognize that child labor laws were made and needed to correct abuse in the past. These laws still help ensure that children are not forced into unsafe, exploitative labors. We hope you recognize that we pursue the same goal as you regarding the safety of our children.

In 1971, the Supreme Court, by its decision in Yoder versus Board of Education, recognized the intent and purpose for us to educate our children in our own schools. Graduates from our Amish schools are most often eager to prove themselves as hard workers. They turn to farm, shop, or mill owners like myself to earn an income, to get started on their farm or other business on their own. This is a cycle that has repeated itself successfully throughout the history of our community in the United States.

Despite rising land costs, property taxes, income tax, school taxes, start-up costs for business, buildings, equipment, and machinery, our young people overcome many obstacles to start off on their own in our community. Besides a commitment to hard work to achieve their goals, they also must rely on their families and business owners like myself to help them get started.

Thank you.

[The statement of Mr. Burkholder follows:]

WRITTEN STATEMENT OF MR. WILLIAM BURKHOLDER, MEMBER OF THE AMISH COMMUNITY, CENTERVILLE, PENNSYLVANIA -- SEE APPENDIX E

Chairman Ballenger. Thank you.

Mr. Blank, you may begin your testimony.

Mr. Blank. Mr. Chairman and committee members, it is with appreciation of Older Amish that we come before your committee today. We wish to thank you for the opportunity to bring some of our concerns before you. As chairman of the Older Amish Steering Committee National, I am speaking here today on behalf of the many Older Amish and Mennonite communities throughout the United States.

In recent years, we have received more and more complaints of Amish and Mennonite businesses being fined for allowing boys under age 18 to work in their place of businesses. Our concern is the infringement of these child labor laws on our way of life. As many of you undoubtedly know, the Amish way of life and religious beliefs prohibit formal education beyond the eighth grade level. Typically, the Amish youth leave the school at the end of eighth grade, but their education does not stop there. Instead, they begin to observe in earnest the knowledge and skills needed to earn a livelihood and support a family. Upon completion of the eighth term, eight terms of elementary school, many Amish children are enrolled in an informal vocational class of learning by doing under parent and church supervision to further prepare them to enter into the adult workplace.

This informal vocational class was recognized by a United States Supreme Court ruling in Wisconsin versus Yoder as a legal alternative to compulsory school attendance rules. At age 14, an Amish boy or girl is considered to be ready for a full course of training, a training that requires learning by doing. This adolescent period is of utmost importance to our religious status. We must not tolerate idleness during these adolescent years. Therefore, we see a dire need that our youth learn a trade or remain occupied, preferably under the supervision of a parent or church member.

It is a longstanding Amish belief and tradition to instill good work ethics in our children at a young age and to start training a child at a fairly young age to become a self-supporting, respectful, law-abiding citizen. Train up a child in the way he should go and when he is old he will not depart from it. That's Proverbs 22:6. We strongly believe the ages 14 through 17 to be a very tender, receptive age in which to instill these longstanding Amish values and work ethics in our children. We believe forced idleness in this age to be detrimental to our longstanding Amish way of raising our children and teaching them to become good, productive citizens. Keeping young hands busy also keeps them out of mischief.

We recognize that historically the child labor laws have been more lenient on farm laborers, especially a family farm. For many years, our livelihood was based largely on agriculture and for many people this is still true. However, due to many reasons beyond our control, the trend is forcing more and more of our youth to learn other trades. We try to encourage an occupation for such youth as learning by doing by working at a place where his father or a member of the church is available to supervise him.

We have many Amish who owned or operated sawmills among our communities. Our youth are well-qualified and capable of providing hand labor in stacking and sorting lumber as it comes away from the saws. This sorting and stacking operation usually occurs some distance from the saws themselves. However, under present regulations, no one under age 18 is allowed to work in a sawmill building.

We have in the audience several owners or sawmill operators that have been investigated and fined for allowing boys under age 18 to work in the various situations described above. None of these owners were aware that they were in violation of the child labor laws until the investigator showed up. They were told to send the boys home and warned that if he, the investigator, comes back in several weeks and finds the boys back on the premises, he will shut down the whole operation. These threats caused a great concern in our area, especially among the Amish, but also among our Amish neighbors. They received no warning before they were fined, even though the owners indicated that they would comply with the order after the investigation was complete.

We also have a lot of small woodworking shops and there are many occupations that are capable of performing. However, more and more of our sawmill--smaller woodworking shops are also finding themselves in violation of the child labor laws because of the power tools that are needed to be efficient. Under the present regulations, even the owner's own boy could not work until age 16 in that manufacturing operation or age 18 in any occupation where a Secretary of Labor shall declare hazardous.

There seems to be a lot of governmental interest in finding ways to better prepare today's youth to enter today's workforce. Many States are drafting school-work acts. It seems coincidental that, at the same time, these Amish youth are fined for pursuing a system which has proven success in preparing our youth for adulthood and to be respectful, self-supporting citizens.

In Wisconsin versus Yoder, Dr. Donald Erickson testified that the Amish system of learning by doing was the ideal system for education in terms of preparing Amish children for life as adults in the Amish community. He further stated that many public educators would be elated if their programs were as successful in preparing our students for productive community life as the Amish system seems to be.

We realize that the object of the child labor laws is to protect the children. We also share your concerns in this and appreciate what your object is. As an illustration of concern, one of our large communities, they have set up an Amish safety committee. The purpose of the committee is to work with the Amish business to help make our people more aware of good safety practices that need to be instilled in our workplaces. And some other Amish communities are also showing interest in setting up similar communities.

We as Amish desire to be self-supporting group, taking care of our own need and our own people in our own way without depending on the government for assistance. We very much appreciate the very many privileges that we have been granted over the years. It is our deepest desire to continue to be a self-supporting group and not to be a burden on society.

We ask and plead of you men of authority to find some reasonable solution to the current problem and concern that we bring before you today. We wish you many blessings and the guidance from above in performing your many very important duties as elected officials of our country. May the Lord bless you. Thank you.

[The statement of Mr. Blank follows:]

WRITTEN STATEMENT OF MR. CHRIST BLANK, MEMBER OF THE AMISH COMMUNITY, KINZERS, PENNSYLVANIA -- SEE APPENDIX F

Chairman Ballenger. Thank you, Mr. Blank.

We'll now begin with questions for the panel, and I'd like to remind the members that committee rule 2 imposes a five-minute limit on your questions.

Chairman Ballenger. Mr. Pitts, in your mind, how should this problem be solved? Do you think the Department of Labor is willing to continue to meet with you regarding this, and what steps should we take next?

Mr. Pitts. We've been working with the Department of Labor on this issue for a year and a half. As I mentioned, we have not been successful in getting any kind of proposed administrative solution. I had hoped when we first began to meet with the administration officials, when we wrote them letters, and had meetings with the Amish from as far as Indiana who came in last year and appealed to them, that there might be an administrative solution and a change in regulations. Evidently, according to the answer of the letters that I've given you today, the administration feels that there is no administrative solution; at least they say their interpretation of the regulations or the statute prohibits one.

I would hope that the administration would provide the committee with some other alternative regulation. For instance, we proposed a solution that would designate activities, such as sweeping sawdust or stacking lumber, as being an eligible job. We don't want children to be operating saws. We proposed putting a line 50 feet away from the saw or 150 feet away? Their response was that the young Amish would still be in the workplace and they would be still be subjected to noise and dust.

To me, that's not quite realistic. These are children who are learning a job and vocation after finishing Amish school. By age 18 they are self-sufficient. I would hope there might be a regulation. But, if not, I think we have to look at maybe a statute or maybe some new regulation promulgated by the Congress.

Chairman Ballenger. I'm just curious, and I don't know who to ask this question of, but how many Amish communities are there in the United States and how many young people would we be talking about?

Mr. Pitts. I'd like Christ Blank to respond.

Mr. Blank. I would just be sort of guessing at numbers, but we have, probably about 50,000-60,000 Amish church members and, as far as the children in the age group 14 through 18, I would say 10,000 to 20,000. I didn't do any research on that, so this is just sort of a ballpark figure.

Chairman Ballenger. I was just trying to see how large the Labor Department might consider the problem to be.

Mr. Pitts. Yes, Mr. Chairman, I might mention that the Department of Labor said that farming is exempted. So a child 10 years old can drive a mule team. In fact, recently I was visiting an Amish constituent on route in my district. And here comes galloping down this highway a team of mules with a disk behind it, and cars were scattering every which way. And they just ran; they knew where home was. They ran right by me in the driveway up to the barn and stopped. And we looked out in the field and there is a little boy, maybe 10 years old, and waving that everything is okay. Farming is totally exempt, but if they are in a carpentry shop or near a power tool, they're fined. There needs to be some logic in the way we approach it.

Chairman Ballenger. Let me ask you, as far as farming is concerned, do you reap the wheat with a scythe or do you have machinery to do that? I've seen pictures and all kinds of descriptions of how you operate. I'm just curious.

Mr. Burkholder. Machinery. Yes, with machinery.

Chairman Ballenger. Having put up some wheat once upon a time in the middle of the summer, I don't think I've ever seen a dusty, dirtier job than reaping and baling hay and stuff. And the administration is griping about the dust in the carpentry shops, and so forth?

Mr. Pitts. It might be pulled by horses or mules but--

Chairman Ballenger. It's still machinery.

Mr. Pitts. It would be machinery. It could be gas-powered.

Mr. Blank. With the wheat harvest that you mention, we have what we call a binder which cuts the wheat, puts it in bundles, and then we shock it. That's what we get most of our boys to do. They shock the wheat and help load it on the widest bundles, and then it's taken into the thrash machine. Of course, at the thrash machine, the older folks take care of the work there, but that is a dusty job.

Chairman Ballenger. Right. I can remember it. And that's the reason I took up something simple like politics.

Mr. Pitts. If you would come to my district, you could see these farms are the most beautiful and productive farms in the United States. I mean, you don't find wheat growing alongside the road there. They are beautiful, manicured, and very productive.

Chairman Ballenger. Right. Major Owens.

Mr. Owens. Mr. Pitts, can we assume that all of the basic questions regarding church and State have already been settled, that it's established that the Old Amish do fall under the labor laws and that we have to work within the context that somebody somewhere has established the fact that they do fall under the labor laws? Is that then something we can make--

Mr. Pitts. Well, the Supreme Court has ruled in a couple of cases regarding their Amish school, that they're entitled to send their children to their own schools up through eighth grade. Now, they also have an agreement that agrees with regulations, which I believe the courts have ruled on, that is similar to a vocational program that our Department of Education supervised. And they're under adult supervision from age 14 to 18. They keep a file and they have so much supervised time. Basically, it is like an apprenticeship program that's approved and that the courts have ruled on.

Mr. Owens. But would the non-farming activities fall under Federal labor laws?

Mr. Pitts. I can't cite court opinion, but I think that's true. Christ, maybe you can help me.

Mr. Blank. The Department of Labor itself makes the difference between agriculture. Their regulations are much more lenient on agriculture than they are on the non-agricultural business regulations. And what's happening over the last number of years is something that's beyond our control, so to speak. With the high price and dwindling supply of our farmland, more and more of our people are being forced to start small businesses at home in keeping with our tradition of working with the family. And this is where they're running into problems with the child labor because of the various power tools and electrical appliances.

Mr. Owens. In your personal lives, you don't use electrical appliances, automobiles, and those kinds of things?

Mr. Blank. Not electrical automobiles, no.

Mr. Owens. But it is my understanding, however, as matter of economic necessity, you do have to use power equipment in sawmills and woodworking shops. In effect, in order to remain competitive, you have to make that kind of adjustment, is that correct?

Mr. Blank. That's correct, yes.

Mr. Owens. Is it also true that, if there was not power equipment in the sawmills or the woodshops, you would not have a conflict with the child labor laws?

Mr. Blank. That's correct.

Mr. Owens. If you were doing everything without the power?

Mr. Blank. In the past, that might have been more or less true, but as time goes on, we need to use some power tools like saws and shapers and things like that, to be competitive and efficient. But, basically, most of the children work in those shops, but they don't necessarily operate these saws or sharpeners and things like that. But just the fact that they're working in a manufacturing occupation, the child labor laws prohibit working in that occupation before they're age 16, even though the father may own this business. Under the agriculture regulations, if a child is working for their parents on a farm owned by the parents, they're totally exempt from the child labor regulations. If something like that could be placed into effect here, I think it would be a big help to our community. They could work with their parents or someone who stands in the place of the parents. This would be a big help to us.

Mr. Owens. Isn't it a bit unfair that you shouldn't generally be subject to the same rules regarding the use of equipment as your competitors? If you were not subject to the same rules, wouldn't it be unfair to your competitors?

Mr. Blank. I didn't catch that question.

Mr. Owens. The rules applying to the workplace in terms of safety, with respect to the equipment in these sawmills, and the child labor laws with respect to the fact that you're using power equipment, if that applies to your competitors, shouldn't it apply to you also if you're in a competitive situation?

Mr. Blank. We're asking for understanding here today, we're not asking for a special exception just because we're Amish. But we're asking for some understanding of our way of life, and we're asking for some understanding so that we can be allowed to continue to raise our children in our time-proven way, which has proven to be very successful over the years in preparing our children for adulthood.

There's a lot of government agency concern out there for how we can better prepare our children for the workforce. And evidence of that, there are States that are proposing these school-to-work acts. And still, we're being fined for pursuing something that has been proven successful over the years in the Amish community.

Mr. Owens. The Department of Labor has reiterated its offer to work with the Amish community and the Members of Congress to provide compliance education and outreach to employers and help identify safe and legal employment opportunities for the Amish youth. What steps have you taken to try to identify safe employment opportunities for your youth, and are you willing to work with the Department of Labor towards that end? Did I hear from Mr. Pitts that you felt you'd exhausted all possibilities there?

Mr. Pitts. Well, the--

Mr. Owens. Is there some room for the Department of Labor to be helpful?

Mr. Pitts. The letter from the Department of Labor shows that it has not been helpful. Their letters basically state that the law prohibits them from having any administrative solution. We hoped that they would work with us, but, as I mentioned, I got a letter yesterday, after four months, which said no. So, if you can encourage the Department to work with us, I think there could be an administrative solution.

Mr. Owens. Well, they've indicated that they're willing to work further. Thank you very much, Mr. Chairman.

Mr. Souder. Mr. Chairman? Mr. Chairman?

Chairman Ballenger. Mr. Souder.

Mr. Souder. May I make a brief clarification? I think that there was an inaccurate statement made.

Chairman Ballenger. I was going to call on you next anyhow.

Mr. Souder. Okay.

Chairman Ballenger. Thank you. Mr. Souder.

Mr. Souder. Thank you. I appreciate the opportunity to be part of the subcommittee here today.

I wanted to make a clarification that the issue here wasn't really power equipment. I believe the witness didn't fully understand the question. Electrical equipment is banned by most of the sub-communities although individual bishops can make decisions in areas, but power equipment is used in agriculture and in that if it's gasoline-generated or non-electrical. And so power equipment can be used in agriculture or in a factory, but the electrical power is the differential. Now I'm not saying that there are no Amish anywhere who don't use electricity, but that would be a very localized decision, and not necessarily fined.

The issue really isn't power equipment; it's the type of power equipment. Because I appreciated this opportunity, I want to say upfront, that had I wanted to testify and had we received in a timely fashion this Department of Labor statement that came yesterday after a request of December 22, I would have asked for additional time myself.

I'm in a little bit of an unusual situation. My great-grandfather was Amish and was one of the first Amish settlers in the State of Indiana in 1846. My great-grandfather left at 18. Not everybody who is Amish stays Amish. But I have many relatives who still are.

My district has approximately somewhere in excess of 20,000 Amish in it, roughly the third, seventh, and tenth largest settlements in the United States. Roughly 300 of them vote. It's not really a political matter because these are a peace-loving people who came to America in the Anabaptist tradition to escape government regulation and persecution, so they could practice their religion and their faith without obstruction of government.

I want to say for the record, that I find this to be a well-written, well-intentioned report from the Department of Labor, but one that begs the fundamental question which is, how can you possibly function in our society with the intense land prices and still maintain your religious freedom, a freedom that threatens no one around them? And we have clear laws for when it does. For example, they did not like the changes in Grade A milk standards, but there needed to be changes because it threatened other people. There are regulations on the water discharge from their places. When there's clearly something in the Amish community that has an impact on their neighbors, the government has every right to step in.

If in fact there were clear cases of extraordinary injury rates in the Amish community in child labor, you could argue that perhaps religious liberties need to be weighed for child labor. But they appear to be using national figures, and have not established that there's any higher risk in this community than in the rest of the nation. Therefore, by restricting the religious liberty of this group of people who, when they subdivide the farms between their children, in effect, have no option with which they can support their farms anymore. They aren't making enough income with which to buy additional land in most of the areas that they live in. That is why, when I was just in South America, I saw many Amish moving to Brazil or other places where they can find land at an affordable rate.

Their main alternative, in my community, in Pennsylvania and in Holmes County, Ohio, is woodworking. Woodworking is a historic byproduct of agriculture that can be done as a local industry. I would like to ask the witnesses here today, if we shut down woodworking and your young people don't have that as an option, is there any real choice for them and for the families who need their income other than to go to work for the English in rather traditional places or to, in fact, be forced into the public school system? Do you really see options other than woodworking and agriculture for your young people?

Mr. Blank. I would say that there are not too many other options at the present time.

Mr. Souder. Selling to tourists is the other option. Selling to tourists, who come in to look at you, is what you're left with. You become a museum piece if we deprive your people of the ability to work in agriculture and woodworking. All you would be able to do is make things for tourists, but that is a sad commentary on religious freedom.

Mr. Blank. A lot of our people are depending on woodworking for a livelihood. In our community and in other communities that have these cabinet shops, we have a lot of lawn furniture, storage barn manufacturers in Lancaster County, and these storage barns and lawn furniture get distributed all over the eastern part of the country. So we were just talking the other day that, if the lawn furniture business and the storage barn business all of a sudden disappeared, we would have a lot of our people who would be out of work.

And I'm sure we would have the same problems that a lot of other people would have, too, if our children would not be able to work. They would get into mischief and get unruly. We like to keep them occupied, busy, and if they're busy and occupied, there's a lot less chance of them getting into other mischief and things like that. We're not perfect, but we try to raise our children as good as we know how and are capable of.

Mr. Souder. Mr. Chairman, if I could just say one more thing, and I appreciate your flexibility. And that is I want to thank them for their willingness to come forth. It is a challenge to their fundamental faith to even speak out on these type of issues, and I'm very pleased that they've come forth, because there's only so much we can do without hearing from them directly. But I myself know that this entangles you in the world more than you would like to be, and I appreciate your willingness to come forth.

Mr. Blank. Thank you.

Chairman Ballenger. Thank you. Mr. Martinez.

Mr. Martinez. Thank you, Mr. Chairman. A lot of the information we have in our packet is concerning the national rates of injuries in sawmills, that they are particularly

more hazardous than other kinds of endeavors. Do you have any information, just as it pertains to your Amish sawmills, on what the accident rate is?

Mr. Burkholder. No, I've been in that sawmill business now for about 18 years and I know of only one that has been killed.

Mr. Martinez. That one Amish worker was killed, was that a minor? Was that a teenager or was that an adult?

Mr. Burkholder. No, he wasn't a teenager. No.

Mr. Martinez. He was an adult. When you have the young people, 14, 15, 16, and 17, up to 18, working in these sawmills, how much supervision do they get there? Is there somebody constantly with them, supervising them?

Mr. Burkholder. We have people working right with them and it's a challenge. I have one boy that is 14 years old working. He was piling on a green chain and he just loved to pile that lumber. And that's all he did was pile the lumber. He pulled the lumber off and made piles. Then the Labor Department came in and said that he can't work on the green chain. But there's nothing else there except when they need to trim a board, they lay them aside and then one of the others will trim the board off and you'll have to put them on the right pile. And he just begged me. He asked me, When can I come back to work? Every time I see him, he asks me, When can I come back to work? And I say, You can't come back to work until you're old enough.

Mr. Martinez. You know, when I was just--

Mr. Burkholder. I mean, they do it so easy and they love the work. And we have other adults working right alongside of them and there's no reason that they have to even touch or even get close to any saw or anything that is dangerous.

Mr. Martinez. My staff person just handed me a sheet that has some duties of the young people that is permitted now. It says 14-or 15-year-olds are limited to working only in offices of the sawmill as long as such work does not entail entering the sawmill building. I think that's a little restrictive. Then it says 16-and 17-year-olds may participate in certain work on the drive chain, the dry kiln, and the lumberyard. Is that right?

Mr. Burkholder. Yes, not even 16-and 17-year-olds. They won't--

Mr. Martinez. They're not--they won't let them?

Mr. Burkholder. No, they said they can't.

Mr. Martinez. Well look, let me tell you where I come from. I grew up in a different time probably. I was raised during the Depression. Not a lot of people remember the Depression. But in our families and neighborhoods, oftentimes because things were so tough, young people went to work. I was working at KCD Manor, working on a power tool--it was a stamping machine--when I was 14 years old and it never hurt me. Of course, I understand that there has to be some precautions taken to protect the young people and that's why I asked if they're closely supervised, if there is an adult present. If there were a regulation that were to be passed that an adult had to be with that young person at all times, would that create a hardship for the mill?

Mr. Burkholder. No, no, it wouldn't.

Mr. Martinez. And so that you would have a responsible adult that would be able to make sure that anything you did was safe?

Mr. Burkholder. We'd have someone work alongside of them. We could have someone work alongside of them at all times, yes.

Mr. Martinez. Yes, when I was 16 years old, I was working in Bulard Tank and Welding chipping wells and I managed to become a spot welder there. So I started work at a very early age and by 18 I joined the Marine Corps. And 18 years old they thought I was old enough to fight and could take my life in my hands by joining the service and going overseas. But, I don't know, sometimes I think we try to be too overly protective of people and it really doesn't do them a great deal of justice.

I would say that at 14, 15 years old it would depend, too, on how mature the young people were because some mature faster than others do. Do you try to adjust the jobs that these people are assigned according to their ability to be responsible?

Mr. Burkholder. Yes, in my pallet shop we have a lot of lumber. It's short pieces of boards, and so on, that come off of a machine and there's no way that they can get caught or hurt or anything. It comes out either a belt or a chain or rolls and all they have to do is grab the piece of board and stack it up. And then I had them sweep floors and when the stack of lumber got bumped or tipped over, I had them pick it up, straighten it up, so we could store it in the proper place. And we had no problems. Now the Labor Department says they cannot even be in the building.

Mr. Martinez. In the building.

Mr. Burkholder. Not even in the building.

Mr. Martinez. I would think they've got to be able to make some kind of rules in order to protect the youth that are working there, such as, as I say, making it a mandatory thing that an adult was constantly with that young person to protect that young person; and that there ought to be some accommodation given that your lifestyle is much different from a lot of other places. And I don't believe the idea that if you set some rules in place that are restrictive for your young workers that that would be setting a precedent for anybody else across the country in other areas. It's definitely different.

Thank you, Mr. Chairman.

Chairman Ballenger. Mr. Peterson.

Mr. Peterson. Yes, I'd kind of like to follow up on the thoughts of Representative Martinez. Representative Pitts, if my memory is correct, and I attended all the hearings and I've been a part of all the letters and I don't know about you, but I've been disappointed with the Department's slow response. And it seemed to me like they took as long as they could to say no to something they could have said no to quickly. In fact, I'm not so sure they didn't say no indirectly the day we met with them. I wasn't real hopeful when I came out of the last meeting. Do you agree with that?

Mr. Pitts. Yes. I mean, we've been working on this for a year and a half and finally yesterday we get a no letter. I was hoping, like the gentleman, Mr. Martinez, said, that they could come up with some little innovative regulation to make sure that the children are protected. They're under adult supervision; that's their intent. They would not do anything to jeopardize the safety of their children.

Mr. Peterson. If Representative Martinez were still here, I wish he could hear this. The other point is that when we discuss this in more detail, they were not working next to or close to saws or power equipment; they were down the line a little ways. And these are very limited mechanized sawmills which you have, I mean, they're not high-tech. I have high-tech sawmills in my district in which everything moves fast and they are dangerous, a lot more dangerous than your mill. But the bulk of work that the young Amish did was handling the lumber. Is that correct?

Mr. Burkholder. Yes, yes.

Mr. Peterson. Whether it was piling it, moving it from a cart onto a drying area or loading it or bundling it to be sold, it was pretty much the manual labor involved in the processing of the wood.

Mr. Burkholder. Yes, in my grading shed, what they do is bring the lumber in. It's completely separate from the sawmill. They bring it in, set it on rolls, and they push it in. The grader grades the lumber and it goes real slow down on a chain. There's no way to get caught or anything. And as they mark it and as it goes down the chain, they grab the board and pile.

Mr. Peterson. If it was grade one, two, or three, they put it in that pile, right?

Mr. Burkholder. Right.

Mr. Peterson. And that was disallowed also?

Mr. Burkholder. Yes. They won't allow--

Mr. Peterson. That was in a separate building from the sawmill itself?

Mr. Burkholder. That's a completely separate building.

Mr. Peterson. Well, I guess this is our problem. I have a fair number of Amish in my district. I don't have the number that Mr. Souder has or Joe has, but I have some and I've been close friends with many of them. I've actually even hired some of them to do some carpentry work for me and I understand their way of life and respect it very much. But it seems to me that what you just described of taking lumber off of a slow-moving platform--

Mr. Burkholder. Chain.

Mr. Peterson. Slow moving chain after it's been graded and putting it into the appropriate stack, is far less dangerous than most agricultural things which are allowed. And it seems to me, and I must speak directly to the Department, this is a resolvable issue, in my view. We can protect children and resolve this issue if the Department will take the time to go out and look at this operation and what we do out there.

Like Mr. Martinez did, I did tasks at the age of 12 and 13 that are far more dangerous than this. I did it with my father. We used to cut all of our firewood with one of those circular saws with no protection. No, I wouldn't recommend it for my children, but, we did do it. We never got hurt, and that was a piece of wood that could catch and could pull you in or throw you out either way, fortunately. But times were tough then; you did what was needed to keep warm and to have food. And I did a lot more dangerous tasks as a youngster than you're talking about because we were poor.

But I guess I would hope that we could get a more timely approach to this problem from the Department. As for the regulation that if a building contains a circular saw, then young Amish are not allowed in there at all, I think that if some sort of a retaining wall was put up, it would protect anything. There ought to be some allowances made and some rules drafted that could protect young people and allow you to use them as you do; it's certainly no more dangerous than agriculture and we could work it out. Because the record doesn't prove that it's wrong. Your safety record I think speaks for itself.

Chairman Ballenger. Mr. Miller.

Mr. Miller. Thank you, Mr. Chairman and thank you to the witnesses.

What is the safety record? Do you know what the safety record is of the mill?

Mr. Pitts. Mr. Burkholder might have mentioned when you were away. He's been working in the industry for 18 years. He knows of one man who was killed.

Mr. Miller. But do we know that that's in--

Mr. Pitts. Amish. I'm talking about Amish.

Mr. Miller. Amish, yes, but do we know that that's inclusive. I mean, would there be other injuries?

Mr. Burkholder. Yes, yes, there have been other injuries, but nothing so serious that someone might have lost a finger or they got their hand in a belt. In fact, I did, and I just turned around and swung my hand and I took the guards all off and walked away. I swung my hand around and I caught that little finger and took the end of that finger off. I mean, it was so quick. And I had the guards off and walked away from it and not realizing what I was doing. That was just four years ago.

Mr. Miller. But what's the safety record? What's their safety record with respect to children who work in these facilities?

Mr. Burkholder. Well, we don't want any of the children around the machinery. I don't ask them to work around the machinery.

Mr. Miller. You were discussing the mills with the gentleman from Pennsylvania. With respect to the woodworking shops, what kind of jobs do young people do there?

Mr. Burkholder. They help put the cabinets together. Glue chairs. Sweep because you have to keep it clean. You have to, if you do any painting or varnishing or anything. And a lot of the work that they do is to hold the product while you're putting it together.

Mr. Miller. Are they working in proximity to dangerous machinery?

Mr. Burkholder. No, they don't. The machinery is there, but we try to keep our line shafts covered. If we have any line shafts or any guards, this is something that we really stress.

Mr. Miller. Do the young people operate the machinery?

Mr. Burkholder. No, we do not allow the young people to operate the machinery.

Mr. Miller. When would they be allowed to operate the machinery?

Mr. Burkholder. Well, normally when they get up to 16 years of age or 18. We don't like to have them operate anything themselves under 16 years of age.

Mr. Miller. Let me ask you a question on the discussion of an exemption in reading. Unfortunately, the Department of Labor's not here to answer questions, so we're sort of hearing one side of the operation here. But in looking at the letter, I guess, it was sent at one point. When you try and put together an exemption, of course, the exemption's got to sort of fit the circumstance. If you said, you know, the children could work on a sorting line, it would be okay working on a sorting line in a lumber mill--well, we all know that there's completely different sized lumber mills. Some are heavy industrial lumber mills and some are two-person shops, you know, trying to do the best they can.

And here's different kinds of sorting. In a plywood mill, you could be very busy, very fast, and very dangerous in trying to sort and grade pieces that go into the cores of plywood and separate those. Stocking in many mills puts you right around all kinds of forklifts and machinery that's moving and, again, it's fairly--somewhat faster line than you're talking about. Maybe initially the grading line is slow, but then once it's graded and separate in the big mill out where I live out in the West, you can move a lot of board feed in a short period of time.

So you've talked about, so far, about businesses that are family-owned where children are working with their family. Is that criteria broad enough for you, that there'd be children--are there children who work in businesses that are not family-owned?

Mr. Blank. Well, what I would hope that we could come together with here is something to help the small family businesses. We have in our area a lot of family business that are

mom-and-pop operations, so to speak. The children work with the parents, but under the present regulations, this is illegal. And then--

Mr. Miller. Well, I understand that, but the theory there, like farming, is that the parents have an interest in the well being of their children. And so you could say, let's trust the parents. Okay? That'd be fair. But then the question goes, is the child working for a stranger?

Mr. Blank. Well, we would hope that our children could continue to work for members of the same church. They would work under the supervision of the church member. Something like that might work, I guess. I would want the agriculture regulations to say that if the child works under the parent or someone standing in the place of the parent, it would be exempt from the child labor regulations. If something like that could be put in place for the business, I think that would pretty well cover our situations.

Mr. Miller. In your situation with your mill -- if I might, Mr. Chairman, just a minute here -- you indicated that your grading line and stacking line are separate from where the cuts are made.

Mr. Burkholder. Yes.

Mr. Miller. Is that, again, is that typical of all these mills?

Mr. Burkholder. Most of them do that or they'll stack it and they'll grade their lumber outside. In others, as it comes off the mill, off the back end of the edger, all they do is just stack the lumber. That's all. They don't have--

Mr. Miller. But are they using--I mean--

Mr. Burkholder. They don't have--

Mr. Miller. But now we're back in and we're around the piece of machinery.

Mr. Burkholder. Around the mill, yes.

Mr. Miller. Okay, so--

Mr. Burkholder. Right, there's--

Mr. Miller. To draw these lines sounds easy, but you can see the problem. You know, many years ago we did an exemption for children picking strawberries in the Pacific Northwest, on the theory that it was basically almost a cultural activity where they were supervised by their parents in the field after school, and there was an exemption, but it was a very narrow exemption. It only applied to one area in the entire United States because that was something that was unique to that particular region. The broader the exemption, obviously, the more problems you're going to have.

I assume also there are some cases where you've got State laws regulating the presence of children around hazardous machinery. If I read the informational files correctly, in some cases there are State prohibitions also, are there not? Do you know whether that's the case or not?

Mr. Burkholder. Well, I don't know of any of them.

Mr. Blank. Well, the State laws usually pretty well follow the Federal. I think that in our State it especially follows the Federal. But we have had very little problems with the State coming in and investigating our businesses.

Mr. Miller. That doesn't mean that the law may not--

[Laughter.]

I won't push the argument at this stage--

Mr. Blank. What we would have hoped could have happened originally was that we'd have some type of administrative solution without stirring the bucket, so to speak. We realize that, if we go for legislation, it's possible that there might be a broader exemption allowed than what maybe we were looking for. But since the administration turned us down, we had no alternative but to pursue it one step further.

Mr. Miller. Thank you.

Chairman Ballenger. Mr. Goodling.

Mr. Goodling. First of all, I want to make sure that everybody understands that family in Amish country means the entire Amish community. If all families would show the same love and concern and protective instincts as the Amish family and community does, we'd solve 95 percent of our problems in this country. After what I saw in New York City, where every violation in every law that has ever been written is committed in those sweatshops and nothing is done about it; I can't imagine that the Labor Department has any time to be looking at Amish farms. I don't understand how the Labor Department has that kind of time to be out there doing this, and yet doesn't seem to have any time to deal with the worst situation that I've ever seen in my life in New York City. So I would hope that they would spend a little more time in New York City and a little less time in the Amish farms and orchards in the 19th congressional district and in other areas. I think there's full-time employment for them right up there in New York City, and I suppose Los Angeles and San Francisco likewise.

So I would hope we could come up with some kind of solution. We're already interfering with the religious rights and customs of the Amish people. We make it impossible for them to buy their farms for the next generation as they always have done in the past. That's why we're losing so many from our particular area. So I would hope common sense would all of a sudden crop up in the Department of Labor. I guess that's not asking too much.

And, again, I encourage them to find a solution. I just had an editorial written against me because they said I was anti-labor because of my attack on the sweatshops. It is unbelievable. They are represented by labor. So I'm anti-labor, anti-State government, anti-Federal Government, and anti-local government, because all of them, apparently, are turning their backs on something 100 times more serious than what we're talking about today.

Mr. Souder. Will the gentleman yield for your remaining time?

Mr. Goodling. I'll be happy to yield to the gentleman.

Mr. Souder. I wanted to put one clarification into the record because I think it is a valid point that Mr. Miller's raised. We often work with a category and then it expands. One advantage to this category is that in order to be a part of it, you have to agree to ride around in a horse and buggy and not have TVs, telephones, or electricity. You have to dress in black, wear a beard once you get married, and join a particular group of people. Now, I think that there is a legitimate question here. If we make exemptions, I think that we all agree that there's going to need to be some clarification. And generally the way the Amish community works is, once you get the clarification from the government, you sit down and you talk about it together. And if it's 16, or if it's 18, they want to follow the laws. They're not out to violate the laws. What we need to do is that if it is decided that there needs to be a safety device in front of a machine, we work that through.

But the principle here is that the idle time is the devil's workshop. And they want maximum work for their young people and for their adults. Therefore, if it isn't possible to be done in woodcrafting, it has to be done in other business. You want to figure out how to have the safest possible environment for your children, but to have them working hard, so they're not getting out in the problems of the rest of society.

So it's a possibility that we could get into other areas and have to make clarifications. But what won't change is the category of people that we're talking about. And it's not like volunteers are breaking down your doors to get into your society unless

they have a true religious commitment to get in, because it requires a tremendous amount of sacrifice. I yield back.

Mr. Pitts. Mr. Chairman, I might also mention these kids are not the ones that are getting into drugs and committing crimes and getting pregnant and going on welfare. These are not the kids that we're concerned about with many of our social programs, and I think we need to take that in consideration. They're trying to preserve a way of life. They've been living this way for hundreds of years. I'd like them to stay in our district, in our country, rather than be forced to leave.

Chairman Ballenger. Let me thank everybody for attending today. Thanks to the witnesses for taking the time to testify before the subcommittee and educate us, basically, for those of us that live in areas of the country where the Amish are not well known. I personally think you all lead an exemplary life, and I wish I could say that the children in my area of the South and the Southeast lived as well as your children do. Now, let me say thank you again for being here.

And, if I may, I'll call the witnesses from the next panel. If you all would come forward and be seated at the table, we'll proceed with the consideration of H.R. 2038, the MSPA Clarification Act or MSPA.

I'd like to welcome our witnesses today, including our colleague, Congressman Charles Canady. He's from the 12th district of Florida. He's also the major sponsor of H.R. 2038.

Our second witness will be Mr. Walter Kates from Florida Fruit and Vegetable Association, also appearing on behalf of the National Council of the Agricultural Employers.

And I'll turn now to the chairman of the full committee for the introduction of our next witness. Mr. Goodling.

Mr. Goodling. I'd be happy to introduce first of all, Mr. Guy Donaldson. Guy is the president of the Pennsylvania Farm Bureau. He resides in Gettysburg and has been a fruit grower all of his working life. He and his wife have a partnership with their two sons and a daughter in Adams County, employing about 50 people in growing and packing operations. It's getting close to that period of the year that they dread, when all of a sudden there are thousands of trees to be harvested and people from Wage and Hour and who knows where else are running all over their property.

I very much appreciate his interest in the area. I know he'll provide an important perspective, that of a small family farmer, on the issues of the Migrant and Seasonal Agricultural Worker Protection Act.

I always have to laugh at those who somehow or other believe that we have employees in the United States that could just go into the employment office and they would come out. Keep them out of the orchard because you'd have to sell apples and peaches at 10 times the price, because they'd manage to pick a bushel or two an hour and they managed to bruise every one they picked. I'm a fruit grower, too, so I know all about this, but I'm happy to introduce Guy.

Chairman Ballenger. Thank you, sir.

Our next witness is Mr. Robert Williams, director of Migrant Farmworker Justice Project, Florida Legal Services, and our final witness is Mr. Dino Cervantes, the proprietor of Cervantes Enterprises in New Mexico.

Congressman Canady, you may begin.

Mr. Canady. Thank you, Mr. Chairman, I appreciate your holding this hearing to discuss H.R. 2038, the MSPA Clarification Act of 1998, which I introduced last June. Mr. Chairman, America's farming community plays a vital role in the prosperity of our Nation. Our growers are facing tremendous challenges as the world economy changes, changes in international competition, environmental stewardship and providing for the nutritional needs of the planet's growing population.

Given all these pressures, farmers should not have to contend with governmental agencies that overstep appropriate regulatory boundaries set by Congress. Unfortunately, this is precisely what is now happening under the Migrant and Seasonal Agricultural Worker Protection Act. Agriculture is a labor-intensive industry, particularly during the planting and harvesting seasons. This is especially true for specialty crops such as citrus, vegetables, apples, and peaches, which are grown in many different regions of the country. Temporary and migrant workers help fulfill the need for labor in harvesting and otherwise providing for these crops.

Congress, through MSPA and other initiatives, created national standards to ensure safe working conditions for these workers and entrusted enforcement of these laws and regulations, for the most part, to the Department of Labor. Now let me say that I think that there has been a compelling case made for Federal involvement. There had been significant abuses that needed to be addressed, and that's what MSPA was created to accomplish. No one is denying the need for reasonable migrant worker protections.

However, I am convinced that current Federal policies, as they are being implemented, are placing an unfair burden upon the employer. For instance, last year the Department of Labor issued a new interpretation of the joint employer rule found in MSPA. The new regulation is written so broadly that virtually any grower can be classified as a joint employer for liability purposes. This is in spite of several court rulings that struck down the Department's attempts to interpret the joint employer rule in such a fashion.

Because the new guidelines would apply to MSPA alone, only farmers would be subjected to them. Such a policy is selectively punitive and unfair. This action, combined with overlapping housing regulations, Department initiatives to classify year-round employees as seasonal workers, onerous Federal transportation insurance requirements, and other policies, have contributed to an adversarial relationship between growers and the government.

H.R. 2038 seeks to ease this situation by making a number of corrections to MSPA. The bill would, among other changes, prevent the Department of Labor from classifying farm worker car-poolers as joint employers and year-end employees as seasonal workers; streamline worker housing regulations, and require Federal investigators to confer with growers prior to entering the worksite.

I want to emphasize one point, Mr. Chairman. This bill does not weaken or do away with the basic protections afforded to migrant workers under MSPA. It merely seeks to provide a reasonable relationship between growers and the government, returning to the original intent of Congress under MSPA.

I'm very pleased today to have with me to testify three distinguished representatives of the agricultural community: Mr. Walter Kates of the Florida Fruit and Vegetable Association; Guy Donaldson of the Pennsylvania Farm Bureau, and Dino Cervantes, a farmer from New Mexico. These gentlemen have worked for many years with growers, labor groups, and the government to help ensure a safe and productive farm workplace. They will be discussing in greater detail the various provisions of H.R. 2038.

Mr. Chairman, again I wanted to thank you for conducting this hearing and giving me the opportunity to testify. I apologize, I'm not going to be able to stay. I'm missing a meeting in the Judiciary Committee, which I'm to attend now. But I commend this bill to your consideration. I think it addresses a number of very real problems that exist. We can correct these problems while maintaining appropriate protections for migrant workers. I think it's important that we maintain those protections, but we need to carry out this regulation in a way that is sensitive to the realities of the workplace and uses a little common sense. And, unfortunately, in some of the interpretations that have been forthcoming that we're trying to correct here, there's been an absence of common sense. Thank you very much.

[The statement of Mr. Canady follows:]

WRITTEN STATEMENT OF THE HONORABLE CHARLES T. CANADY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF FLORIDA -- SEE APPENDIX G

Chairman Ballenger. Well, we thank you kindly and know you've got another commitment, and so we appreciate your introducing the bill and also your willingness to speak on it, and we forgive you and you may leave.

[Laughter.]

Mr. Canady. Thank you.

Chairman Ballenger. And so we'll now go to Mr. Kates. You may begin.

Mr. Kates. Thank you, Mr. Chairman. My name is Walter Kates, and I am the director of labor relations with the Florida Fruit and Vegetable Association. The Florida Fruit and Vegetable Association is a non-profit agricultural association representing growers, handlers, and shippers of vegetables, citrus, sugar cane, and tropical commodities grown in Florida. The Florida Fruit and Vegetable Association is a member of the National Council of Agricultural Employers, which is based in Washington, D.C., and represents growers and agricultural organizations on agricultural, labor, and employment issues. I am testifying today on behalf of both organizations in strong support of H.R. 2038, the MSPA Clarification Act of 1997, introduced by Mr. Canady of Florida.

Mr. Chairman, I'd like to emphasize the fact that neither we nor the bill seek to weaken or lessen any of the worker protections presently afforded farm workers under the Migrant and Seasonal Agricultural Worker Protection Act. For the most part, what the bill attempts to do is merely clarify some of the original provisions within the act, which are now being interpreted by the Department of Labor in a manner never intended by its original sponsors in 1982.

Situations corrected by the bill, which have been misinterpreted by the Department of Labor, include the family business exemption, whereby the Department has ruled that a grower loses the exemption if his workers work for another grower on their off days or if the employees are obtained by the way of referral from existing employees; the Department's elimination of the carpool exemption if the worker-driver receives more money from his fellow workers than the cost to operate the vehicle; the Department's refusal to meet with the growers either before or after an investigation to explain the reason or the results of the investigation; the duplication and sometimes triplication of housing inspections; the Department's interpretation that a farmworker employed by a grower year-round is still a seasonal worker and thus covered by MSPA; and, lastly, the Department's strict liability standard used to determine joint employment.

Both FFEA and NCAE were parties to the negotiations in 1982 which created MSPA and can verify that the recent interpretations by the Department of Labor on these issues are completely contrary to the intent of the parties who negotiated the act and Congress, which passed the final consensus bill.

While we have given several examples of the Department's overly expansive interpretation of the act, one of the more obvious illustrations of the Department's effort to go beyond the intent of the act is the area commonly referred to as joint employment. Under MSPA, Congress intended that the term ``employ'' or ``employment'' be defined by reference to the Fair Labor Standards Act and means to suffer or permit to work, which includes the FLSA principle of joint employment. The term ``joint employment'' simply means a condition in which the worker is the employee of two or more persons simultaneously.

The effect of the joint employment relationship is to make those to be joint employers equally responsible for MSPA violations. As a consequence, in agriculture, a grower who employs a farm-labor contractor and is determined to be a joint employer with the contractor may be responsible for MSPA violations committed by the labor contractor, even though the grower had no knowledge of the contractor's actions. Under MSPA, by regulation promulgated by the Department of Labor, the Department has gone far beyond the FLSA definitions of what constitutes joint employment in agriculture and, instead, has created a strict liability standard for growers who utilize the services of farm-labor contractors.

In 1983, the Department of Labor promulgated its regulations implementing MSPA, as a part of the rule defined joint employment in the same manner as it is defined under FLSA, which was the reference Congress instructed the Department to follow. Under the adopted rule, the Department listed the following five factors to determine whether or not the grower was a joint employer along with the contractor: No. 1, nature and degree of control of the workers; No. 2, the degree of direct or indirect supervision of work; No. 3, the power to determine the pay rates or the methods of payment of the workers; No. 4, the right to directly or indirectly hire, fire, or modify the employment conditions of the workers; and, lastly, the preparation of payroll and payment of wages. According to the rule, disputes arising over joint employment, the Department and the courts would apply the five factors to determine whether or not a joint employment exists.

On March 12, 1997, the Department of Labor issued a new rule regarding what constitutes joint employment under MSPA. Under the new rule, it is now nearly impossible for growers to avoid joint liability when they use the services of a farm-labor contractor. The joint employment rule is an effort by the Department to achieve, through its regulatory authority, a broadened joint liability rule that circumvents its failure to enact a strict liability standard as part of MSPA when it was originally passed by Congress.

The new rule replaces the Department's five factors with eight new criteria for determining the existence of a joint employment relationship. In each instance, new factors replace or expand the old criteria.

To give you an idea of how broad the new factors are, the following is a summary of each of the factors: No. 1, whether the employer has the power, either alone or through control of the farm-labor contractor to direct, control, or supervise the workers; No. 2, whether the employer can hire, fire, or modify the employment conditions; No. 3, whether the employer supplies housing, transportation, tools, and equipment required for the job; No. 4, the degree of permanency and durationship of the relationship between the parties; No. 5, the extent to which the services rendered by the worker are repetitive, route tasks requiring skills which require a relatively little training; No. 6, whether the work performed is an integral part of the overall business operation of the employer; No. 7, whether the work is performed on the employer's property; and, lastly, No. 8, whether the responsibilities performed by the employer are the type normally performed by an employer such as maintaining payroll records, preparing and/or issuing pay records, paying FICA taxes, providing workers' compensation insurance, or providing field sanitation facilities.

The application of these factors ensures that every grower who uses a farm-labor contractor will be a joint employer of the workers. By virtue of this regulation, the Department reversed 14 years of regulatory and judicial interpretations that clarified the standard for determination of joint employment. Mr. Chairman, this has created a serious problem for growers. Not only are they treated differently than any other employer when determining whether or not a joint employment relationship exists, they are also held to a standard which practically guarantees a joint employment relationship and, thus, liability for violations not committed by or even with the knowledge of the grower.

As noted earlier, the joint employment concept in MSPA was borrowed from FLSA, which is also interpreted and enforced by the Department of Labor. Yet, the Department has not revised the FLSA rule, on joint employment with respect to all other employers, but instead, has arbitrarily imposed an earlier strict liability standard on agricultural throughout MSPA, that other employers do not suffer. Mr. Chairman, enactment of section 7 of H.R. 2039 is extremely important in correcting the Department of Labor's unwarranted expansion of the joint employment concept within the agricultural community. Passage of this bill will merely require the Department to employ the original joint employment rule which was enacted shortly after MSPA was passed in 1982 and conforms with the principles used in FLSA to determine joint employment.

In conclusion, Mr. Chairman, we appreciate the opportunity to appear before you and your committee today to present the views of NCAE and FFVA on this extremely important bill. Hopefully, based on our testimony today, and testimony of the other witnesses who should appear before you to explain other problems associated with the interpretations of MSPA, the Congress would agree to bring MSPA back to its original intent by passing this bill.

Thank you, Mr. Chairman.

WRITTEN STATEMENT OF MR. WALTER KATES, DIRECTOR OF LABOR RELATIONS, FLORIDA FRUIT AND VEGETABLE ASSOCIATION, ORLANDO, FLORIDA, TESTIFYING ON BEHALF OF THE FLORIDA FRUIT AND VEGETABLE ASSOCIATION AND THE NATIONAL COUNCIL OF AGRICULTURAL EMPLOYERS -- SEE APPENDIX H

Chairman Ballenger. Thank you. Mr. Donaldson, you may give your presentation.

Mr. Donaldson. Mr. Chairman, members of the Workforce Protection Subcommittee, I am Guy Donaldson and I appreciate the kind introduction Chairman Goodling gave.

I serve as president of the Pennsylvania Farm Bureau and I am a fruit grower near Gettysburg in Adams County, Pennsylvania, and we employ fifty people in our growing/packing operations. I'm here today to represent the American Farm Bureau Federation, of which Pennsylvania Farm Bureau is a member. AFBF is the Nation's largest general farm organization, representing farmers and ranchers engaged in virtually every type of agriculture production.

I am here today to offer the support of the American Farm Bureau Federation for H.R.2038 by Representative Canady. Representative Canady's bill provides important clarifications of requirements imposed on farm employers by MSPA.

Mr. Chairman, the various provisions of MSPA impose many specific and technical requirements for farmers and farm labor contractors with respect to migrant seasonal employment. MSPA's requirements range from the information to be provided to recruited workers to the types of vehicles and drivers that may be used to transport workers, to how a worker may be housed and how many square feet of living space each worker must be provided, to what charges may be assessed against workers for housing and transportation, and what information must be provided to workers in order to assess charges.

Unfortunately, creative interpretations by regulators and litigators over the years have distorted Congress' intent with regard to MSPA and have brought further confusion to the many requirements that farm employers must meet. H.R.2038 is intended to restore MSPA and its implementing regulations to the intent of MSPA's original drafters. The bill will clarify troublesome MSPA regulations and considerably ease the anxiety that many farm families feel when they employ others to plant, cultivate, and harvest their crops.

Section 5 of 2038 will provide a 10-day grace period to allow farmers to correct MSPA violations. The net effect of this change will be to give farmers a 10-day window to correct the problem before the Department of Labor may levy a fine or a private attorney may file a suit under MSPA's private right of action.

It is important to note that the grace period would not be unlimited in scope. A farmer will get one bite of the apple, if you will permit me to use a fruit-related analogy. You get one chance, and one chance only, to get it right before the enforcers can throw the book at you. The grace period will help employers understand how the technical provisions of MSPA and MSPA regulations apply to their particular farm operations and will enhance overall compliance with MSPA, which is the bottom-line goal of every law.

Section 2 of 2038 clarifies MSPA's small family farm exemption from regulation, by making it clear that the exemption would still apply to farm families who may seek State job service to recruit workers and farm families who hire workers who learn of available jobs through word of mouth from other workers. However, recent interpretations have been made to label farm families as farm labor contractors. And incidentally, I am a registered crew leader in the State of Pennsylvania. When they have sought to help, a State job servicer asked workers to inform other people they know of the farm families' willingness to hire additional employees.

Section 4 of 2038 would make it a legal requirement for enforcing agents to confer with the farmer or landowner prior to entering a worksite and to provide the owner information regarding the nature of the investigation being performed, and the results of that investigation. This provision is consistent with the Department of Labor's Field Operations Manual.

Section 6 of 2038 will treat farm workers like reasonable adults, by giving them some responsibility for the conditions of their housing. However, it is difficult for all housing standards to be met at all times during the busy times that workers are living in their housing accommodations. Even though the workers, through action or neglect, may have caused the condition, the growers are responsible and are cited by DOL for unswept floors when brooms are provided, or unemptied trashcans, when dumpsters are provided nearby. Section 6 would exempt farmers for conditions which, for all reasonable purposes, are within the control of the housed workers and beyond the control of the farmer.

Section 9 of 2038 would clarify who should be protected under MSPA as a migrant and seasonal worker. Clearly, MSPA was intended to recognize that migrant and seasonal farm workers require special protection because of their unique status. MSPA should recognize that permanent, year-around employees are fundamentally different from migrant and seasonal workers and should not treat permanent employees on the same basis as MSPA covered employees.

Section 7 of 2038 would make other important clarifications of the law. In March of 1996, the Department of Labor, by regulation, changed the ground rules in a way that essentially makes every employer, who uses a farm labor contractor to supply agricultural labor, liable for MSPA violations committed by the contractor as a joint employer. The Department's excuse for this overly broad interpretation is that the contractors are often difficult to find and have few assets to satisfy claims of agreed farm workers. This is a round-about way of saying that the Department wishes to have access to a farmer's assets, the deepest pocket in the relationship between farmer, contractor and worker, to satisfy claims. Section 7 would make it clear that the standard for determining joint employment in other industries, the standard contained in the Fair Labor Standards Act, would also apply to farmers in determining joint employment under MSPA.

These and other changes identified in my written statement will make reasonable and sensible clarifications of MSPA. For these reasons, the Farm Bureau supports H.R. 2038 and will work for its passage.

I'd be happy to answer any questions at the conclusion.

[The statement of Mr. Donaldson follows:]

WRITTEN STATEMENT OF MR. GUY DONALDSON, PRESIDENT, PENNSYLVANIA FARM BUREAU, CAMP HILL, PENNSYLVANIA, TESTIFYING ON BEHALF OF THE AMERICAN FARM BUREAU FEDERATION -- SEE APPENDIX I

Chairman Ballenger. Thank you. Mr. Williams.

Mr. Williams. I'm Robert Williams with Florida Legal Services. Mr. Chairman, I want to make two points today.

First, there is no evidence that the Agriculture Worker Protection Act is being over-enforced by the U.S. Department of Labor. To the contrary, the evidence is clear that DOL's current enforcement efforts are totally inadequate, given the rampant violations of the act that can be found in every area of the country. The Department of Labor's own statistics show the wage and hour investigations, under MSPA, decreased from about 5,000 in 1988 to approximately 2,000 last year. The suggestion that the Department should direct its enforcement efforts at labor contractors and try to encourage compliance to education and cooperation ignores the causes for the abysmal failure of the Farm Labor Contractor Registration Act and the reason that Congress replaced it with MSPA.

It is impossible to regulate the farm labor market by policing an ever-shifting pool of thousands of marginal operators, who, more often than not, are judgment-proof. Let me repeat that: it is impossible to regulate the farm labor market by focusing on farm labor contractors. Our experience with the Farm Labor Contractor Registration Act showed that beyond any doubt.

Education, or what used to be called voluntary compliance, is not the answer either. The contractors all know that they're supposed to pay the social security taxes to IRS. They know they're supposed to have the vehicle insurance before they transport workers. They, and the growers they work for, know they are supposed to pay the minimum wage. It is not a question of the contractors being unaware of their obligations, but the lack of ineffective enforcement, that has led to the wholesale violation of the Act.

We also know what works. Where growers have stepped forward and assumed the responsibilities of being the employer, we have seen a dramatic reduction in the most egregious violations, and consequently, improvement in working conditions, particularly with respect to social security, unemployment taxes, and worker's compensation. These employers still use crew leaders, but usually establish company policies to ensure their compliance with the act. While some enlightened companies have made this change on their own, often litigation brought by legal services or DOL enforcement has been the impetus for change.

The bill that we have before us today would turn the clock back by destroying the employer concept, which is the heart of MSPA, and return us to the failed, unfortunate strategies of the Farm Labor Contractor Registration Act. I think the consequences would be particularly serious for the thousands of farm workers who live and work in Congressman Canady's district.

Even today, there is very little enforcement of MSPA in the 12th congressional district by either Legal Services or the Department of Labor. Twenty years ago, however, peonage was widespread in Hogue, Hardy, and Highland Counties. Notorious labor contractors, such as Willy Warren, Wardel Williams, and the Wilson brothers, operated with impunity. The Farm Labor Contractor Registration Act did not end this abuse. It only came to a gradual end after the passage of MSPA, when the growers knew that they might be ultimately held responsible for their crew leaders' actions. If this bill were to pass, I think we could see those tragic conditions returned once more to central Florida.

The second point I would like to make today is that, contrary to the arguments of my grower friends from Florida, DOL has not expanded its interpretation of the joint employer concept beyond the statutory mandate. Instead, it is the Canady bill, which would make a radical change in the joint employment principle.

The general framework for establishing whether an employment relationship exists under the Fair Labor Standards Act was established many years ago in the landmark case of Rutherford Food Corporation v. McComb. The Supreme Court held that where the work is done, in its essence, follows the usual path of an employer. Putting an independent contractor label does not remove the worker from the protection of the act. The Rutherford case was specifically endorsed by Congress when it extended the Fair Labor Standards Act to farm workers in 1966, and again, when the MSPA was enacted in 1983.

You will not find the five factors listed in the Canady bill anywhere in the Rutherford decision. The Court specifically rejected the idea that the employment relationship could be determined based on isolated factors, in favor of evaluating the circumstances of the whole activity. Indeed, if one applied the test contained in the proposed legislation to the facts in Rutherford, that case would have come out differently.

The proposed legislation does not merely codify DOL's own contemporaneous interpretation of the joint employment concept in 1983, as has been stated by Mr. Kates. DOL's 1983 regulations specifically made clear that the factors to be considered in determining joint employer status were not limited to the five factors listed in the Canady bill. Alluding to consideration of the five factors indicative of control, the Canady bill would narrow the definition of employment even beyond the master-servant relationship as described by common-law agency doctrine. Thus, we would go from what Senator Hugo Black, in 1937, described as the broadest definition of employee in any law, to the narrowest definition of employee in any Federal statute. It is simply not true to claim this legislation is just a clarification that would take AWPA back to what was intended when it was enacted.

Mr. Chairman, I appreciate the opportunity to appear before you today to offer the other side of the story. On behalf of the 1 million migrant and seasonal farmworkers who work in America's fields and groves, the real-world consequences of this legislation would continue to deny America's poorest workers the protections of the law that this Congress has enacted for their protection and benefit. These are not technicalities, but basic rights, such as social security, unemployment compensation, worker's

compensation, and the minimum wage. I urge you to reject this unwarranted and ill-conceived legislation.

[The statement of Mr. Williams follows:]

WRITTEN STATEMENT OF ROBERT WILLIAMS, DIRECTOR, MIGRANT FARMWORKER JUSTICE PROJECT, FLORIDA LEGAL SERVICES, INC. -- SEE APPENDIX J

Chairman Ballenger. Mr. Cervantes.

Mr. Cervantes. Mr. Chairman, and members of the committee, my name is Dino Cervantes and I operate Cervantes Enterprises, a family-owned farming operation in Las Cruces, New Mexico. Cervantes Enterprises currently grows chili peppers on about 1,200 acres of land in the upper Rio Grande Valley of New Mexico. We also own a small processing facility, of which we process our products into a Louisiana-style hot sauce concentrate. We employ approximately 350 employees during the peak harvest season and about 28 employees year around. I'm also a member of the New Mexico Farm and Livestock Bureau, and I serve as the chairman of the Labor Advisory Committee of American Farm Bureau Federation.

At Cervantes Enterprises, we take great care looking out for the best interest of our employees. Like many operations engaged in the production of perishable, agricultural commodities, we often pay our workers on a piece-rate basis during the harvest season, and, in fact, pay up to approximately 50 percent of our total input cost to our harvest labor. Unfortunately, the MSPA required record-keeping necessary to ensure all our employees working on a piece rate, are paid the Federal minimum wage for each hour worked, for each hour that they work, can be very difficult.

In order to be as fair as possible, we at Cervantes Enterprises have spent up to $10,000 to implement a computerized work monitoring system that records hours worked, by serving as a punch clock when the workers come in and also when they leave. It also records each bucket of peppers as they are dumped into the assembly bin, ensuring that they receive full credit for all the work they do, and the system compares their total piece-rate compensation to the hours they've worked, allowing us to immediately identify workers who will have to be paid extra to make up to the minimum wage, in the rare event that this happens. In a situation like this, both our interests and those of the workers are served by a capital investment that will eliminate human error.

While we are proud of our relationship with our agricultural workforce, I must to tell you that my neighbors and I had run-ins with the Department of Labor as well, and certain or various provisions of the Migrant Seasonal Worker Protection Act, for myself and many of our growers in our area who rely on a commuter labor force, rather than a labor force for whom we provide housing, the provisions of MSPA's governing transportation can be particularly problematic. This is a problem that section 7 of H.R. 2038 seeks to address.

Our transportation problems stem from the Department of Labor's interpretation of what constitutes carpooling, which is exempt from being considered farm labor contracting activity, and what constitutes an illegal farm labor contracting activity, unlicensed transportation, which is regulated by MSPA. Often the workers who harvest our crops in and around the Mesilla Valley gather in El Paso and come up to the valley to work for the day and return home to El Paso at night. This is commonly referred to in the industry as day-haul workers. In the Mesilla Valley it is quite common for an individual who the growers do not know or have any business relationship with to provide transportation for a fee from El Paso. The individuals who drive the workers are often referred to as ``ride-teros,'' and have, at times been construed by the Department of Labor as persons performing illegal farm laboring contracting activities.

MSPA specifies that any individual providing farm worker transportation in return for any kind of consideration is performing a farm labor contracting activity, as defined by MSPA. The difficulty arises when the Department attempts to allege that a grower is somehow responsible for this illicit farm labor contracting activity. MSPA requires that farmers refrain from doing business with an unlicensed individual performing farm labor contractor activity. As I said before, my neighbors and I have no relationship with these ride-teros, business or otherwise. And yet, the Department thinks that I somehow have the ability to regulate this activity or prevent it. I can assure you that I do not.

Similar problems have surfaced in California. In that State, farmers' organizations have made a special effort to move former welfare recipients into available jobs in agriculture. The hope is to reduce the need to rely on farm workers to fill jobs on California farms. But former welfare recipients often do not have their own transportation and would have to rely on for-fee transportation. In light of the Department's treatment of such transportation arrangements where a fee is involved, this would not be practical and will frustrate efforts to place American workers in jobs in California.

At the same time, the Department has also been over-interpreting the carpooling provisions of MSPA in other ways that make no sense. In some instances, the Department has claimed that a farm worker is, in fact, a licensed farm labor contractor. This occurs when one worker drives several others, as would any of us in a similar situation. The non-driving workers give the driving worker money to curb his vehicle operation costs. The Department asserts that, in an instance where money is given to the driver, the money that is given to the driver exceeds the actual cost of providing transportation to each worker, the driving worker is actually a licensed farm labor contractor. Further, the Department has asserted that the farmer is employing a licensed farm labor contractor, in violation of the law, if the driving farm worker is an employee of the farmer. While this interpretation may be technically correct, reading the statute in its implementing regulations, it is an interpretation that fails in the face of common sense and cannot have been the intent of the authors of MSPA when it was originally drafted.

Remarkably, the Department has proposed that farm workers should be able to account for precisely the amount paid to them by their fellow workers and the miles driven, and keep careful records to illustrate that the compensation they receive from their fellow workers does not exceed the actual cost. The Department says that they will consider the cost to be .33 per mile. This is obviously silly. None of us would so carefully account for such small amounts of money in this manner, and it's absurd to suggest that farm workers should be forced to do likewise.

Section 7 of H.R. 2038 proposes to deal with the problem by making a simple change to MSPA. Farm employers would be exempt from liability when they have no knowledge of payments among farm workers for transportation ad the workers voluntarily enter into carpooling arrangements. The change will create an opportunity for individuals employed in agriculture to behave as people in employed in their industry to do as other industries do, making mutual transportation arrangements. The current statute and its interpretation, are an example of regulation intended to be beneficial, that has, in fact, turned out to be harmful, making transportation to jobs more difficult for farm workers to provide for themselves. Because current law virtually requires farmers to discourage carpooling. This makes no sense and should be changed.

I appreciate your time and attention and I welcome the opportunity to answer any of your questions.

[The statement of Mr. Cervantes follows:]

WRITTEN STATEMENT OF DINO CERVANTES, PROPRIETOR, CERVANTES ENTERPRISES, LAS CRUCES, NEW MEXICO -- SEE APPENDIX K

Chairman Ballenger. Thank you, Mr. Cervantes.

I'd like to ask you gentlemen about the transportation. We had a big debate about this several years ago. I think they called it the ``Adam Fruit Legislation''. I thought we had completely straightened this out. I run a manufacturing plant back in North Carolina and I know I have people that haul other people to work every day. And I just wonder, are they covered in the same sort of situation as your people who haul their farm workers? In other words, the basic idea, the regulations, the mileage, and everything else, I know they don't keep records like that, hauling people into a manufacturing plant in North Carolina. Where did this all come up from? I thought we had somewhat worked this out.

Mr. Cervantes. Mr. Chairman, the Adams Fruit case dealt more so with workmen's compensation insurance than it did with the actual transportation costs that were involved. So, we really didn't solve anything as far as that goes, when the regulation was drafted. From the research that I've done, the committee was very aware of the differences between the contracting activity and the carpooling arrangement. And the intention of the committee, when they drafted the legislation, was not to interfere with any type of carpooling whatsoever. The difficulty is for the Department of Labor. And I do understand some of their difficulties. Their difficulty is trying to determine what is carpooling and what is not, unless they are at the point of actual pick-up. In our area, most of employees assemble at a point of pick-up. In our case, it's close to the border of

Mexico. Different ``ride-teros'' go and pick up employees and drive around the valley, until they find a location where they can harvest peppers.

The problem is that the Department of Labor has put the impetus on the farmer to determine if that is illegal or not legal activity. Unless we're at the point of assembly, we can't really determine that, either. So, to answer your question, I understand the Department of Labor's difficulty in doing it, and there's no real simple answer to it. But by trying to push the responsibility back to the farmer, I don't think we're necessarily resolving anything, either.

Chairman Ballenger. Let me just ask a general question. Mr. Williams suggested in his testimony that, at least in Florida, things have not improved much in the farm labor contracting business, and that, basically, farm labor contractors are disregarding the law, keeping separate sets of books, and so on. Do the rest of you agree that this description is typical of a farm labor contract and that such a description is accurate as far as Pennsylvania and other areas that you're speaking of?

Mr. Kates. Mr. Chairman, speaking for Florida, I can certainly say that that's the exception rather than the rule. I won't deny that we have some bad apples in the industry, like we have in all industries, but that is certainly not the majority of the case.

Mr. Donaldson. I think that's true in Pennsylvania. We don't have the labor contractors there we want to have, because I think the bad ones have been sorted out.

Mr. Williams. Just as a first hit at how many violations are out there, I think you only have to look at the number of farm labor contractors who are not authorized to transport workers in the United States to know that the act is being disregarded on a massive level. We talk a lot about getting this insurance. Only about 10 percent of the farm labor contractors in the United States are authorized to transport, and we all know from our experience that most farm labor contractors are involved in transporting. Similarly, the percentage of farm labor contractors who are authorized to house migrant workers is tiny. It's like in the southeastern region, where we have 5,000 contractors, it's only about 150 who are authorized to house. We all know that many farm labor contractors are involved in housing workers. Again, I think that's a simple indication of the level of non-compliance.

It's the same situation with almost any provision of the act. For example, providing disclosures to workers; if disclosures were provided, wouldn't I have seen one sometime during the last 20 years? Wouldn't one farm worker have come into my office with a disclosure statement? It's never happened. In 20 years, no farm worker has ever come to talk to me who had been given a disclosure statement by a labor contractor. The compliance with this act is the exception.

Chairman Ballenger. Mr. Miller. I mean, Major Owens. Excuse me.

Mr. Owens. Mr. Williams, Congressman Canady stated that the Labor Department's new regulation regarding the single employer is written so broadly that virtually any grower may be classified as a joint employer, and that the regulation overturns court rulings, regarding the definition of joint employer. Do you agree with Mr. Canady's views?

Mr. Williams. No.

Mr. Owens. What would be the regulation's impact on growers?

Mr. Williams. I think the one thing that's been lost a little bit in this debate is that everybody has focused so much on this regulation by the Department of Labor. As the law stands, the courts ultimately decide who is an employer under the Fair Labor Standards Act, and they can look at the Department's regulation. They can look at the Department's task. But they're free to use a set of whatever factors they think is appropriate. And over the years, courts have used short lists and long lists. There are two recent cases that found a joint employer relationship. The Long and Scott case didn't find a joint employer relationship. But in all these cases there are different factual circumstances. There are always going to be differences in the facts, and there are always going to be closed cases. So I don't think there's been any change in the overall law of joint employer in the last 20 years.

Mr. Owens. Overall, would you say that over the past few years there's been a change in the level of AFLA enforcement by the Department of Labor?

Mr. Williams. Well, yes. There's a lot less.

Mr. Owens. A lot less of it?

Mr. Williams. A lot less enforcement. In fact, the heyday of AFLA enforcement appears to have been during the Reagan administration, not this administration.

Mr. Owens. I think you're being political.

[Laughter.]

That's interesting news. What do the other panelists think? Has the enforcement changed, in your opinion, Mr. Kates?

Mr. Kates. I think it has stayed pretty steady. Several years ago the Department appointed some specialists known as Farm Labor Specialists; the Department of Labor Wage and Hour folks did, and I think in Florida we have about four or five of them within the State. And they pretty much maintain their presence in the field. Obviously,

it's not to the extent some people would maybe like, but I think it's pretty much same amount of force.

Mr. Donaldson. Wage and Hour every year comes in, checks our books to make sure that everything is right, both State and Federal.

Mr. Owens. So, it's remained the same, you said?

Mr. Donaldson. I wouldn't say that it's any different.

Mr. Cervantes. Major Owens, if I could, I would like to make a point that the Department of Labor last year came in and spent three days with us, three complete days, two different agents, checking our books and time out in the field. So, I think, if that means anything, it is showing some concern on their part.

Besides that, they just held a one-day conference on educating farm labor contractors in Las Cruces, and the number of contractors that showed up was 48. This was last Thursday. The biggest comment that I heard was that, for the first time, there was education being done in regards to MSPA, rather than just licensing somebody, when they came into the office.

Mr. Owens. Would you say wages and working conditions have changed for migrant workers over the last decade, Mr. Cervantes?

Mr. Cervantes. Absolutely.

Major Owens. Which direction?

Mr. Cervantes. Well, they've gone up. According to the USA Today report in 1996, the minimum wage has gone up, for the wages of farm labor contractors had been over six dollars. I don't remember the figure that they used, but it had gone up over the period of time that they had studied.

Mr. Owens. Mr. Williams, do you say it's gone up?

Mr. Williams. Well, I'll put it this way: in 1977, in Immokalee, Florida, it was .40 a bucket to pick tomatoes. It's been .40, ever since. During that time period, workers have lost half their purchasing power. Last year, some of the growers in Immokalee implemented a new system which paid workers the minimum wage plus a dime a bucket, which is an actual wage cut for the more productive workers.

Mr. Owens. That's the day and a dime.

Mr. Williams. Right. It's a little bit difficult, because it may increase wages a little bit for lesser-productive workers. But for workers who pick more than 18 buckets an hour, it's a decrease in their wage compared with the .40-a-bucket system. So, basically, we've seen that in every crop in Florida, real wages have stagnated, and in some cases declined. We've seen actual declines in the piece rate paid for citrus, for example, in some areas of the State. The workers are being paid less now than they were being paid 20 years ago. And 20 years ago their circumstances were not so good. So, I would say, overall, we've seen a decline. We've also seen nationwide an increase in the use of farm labor contractors.

Mr. Owens. Is this what precipitated the tomato workers' strike in Immokalee, Florida?

Mr. Williams. Yes, I think that's right. I think that the level of wages has reached the point where people can't support their families on what they are earning in the fields.

Mr. Owens. Thank you.

Chairman Ballenger. Mr. Goodling had some people in his office, so he left a statement, which says that all he asks is "that the enforcement people use common sense.'' Last year, one of his growers was fined because his employees put soiled toilet paper in the trash basket, rather than in the commode, as is their practice. Another was fined because the screen doors were propped open, because the employees don't use screen doors at home. The third got a reduced fine, and this, he applauds, because ``the enforcer used common sense.''

I'd like to say that, where I come from, my biggest agricultural crop is Christmas trees in the mountains of North Carolina. And the labor there is, I guess, H2-A. People from Mexico, they come up in March and they work in the Christmas tree area, all the way up through about the first or second week in December, and then they go back home. And the housing there is good. I mean, they have bought motels to keep their people in. They've built dormitories for them, and so forth. And the strangest thing of all is when labor comes. Somehow they time this stuff. The Labor inspectors come up there after the people have gone to work, so they can inspect the location. In this one particular area, an employee got a large fine because there were dirty dishes in the sink. Now, this was because these employees decided to go to work without washing the dishes, which I would think would be their fault. But it's not. If they are penalized, they put the penalty on the individual that brought these people from Mexico.

These folks come back year, after year, after year. This is different from maybe contract workers in Florida. But the general feeling is that these are probably the best workers you can find. They are well paid. I don't know exactly what they get paid, but they sell their Christmas trees all over the country. And so, I'll turn it back over to Mr. Miller.

Mr. Miller. Thank you, Mr. Chairman.

Mr. Cervantes, how do people get to work in your fields?

Mr. Cervantes. The majority of them come in their own cars. They're day-haul employees. And being so close to the border and El Paso, which is a big population area in our location, they typically bring their own cars up. They make arrangements themselves. Sometimes they go to the assembly point and pick up people. Most of them use cars with three or four people and they come to the fields.

Mr. Miller. But, then, there are people who do it for a profit, too?

Mr. Cervantes. I don't know if they're doing it for profit. There is an exchange of money or an exchange of lunch. There are carpool arrangements where one drives on Monday, the other drives on Tuesday, the other drives on Wednesday. It's very similar to what we do in normal society, in normal industries.

Mr. Miller. In California, there are people who go around and pick up people at assembly points for money, where they basically run unauthorized, unlicensed bus services. They take workers out to the farms; they drop you off at the different farms, depending upon the labor requirement; and they pick the workers up in the evening.

Mr. Cervantes. I don't disagree that this happens. The difficulty is in trying to determine who actually initiated the purpose of that transportation. If the farmer told somebody to go pick up 10 employees at the assembly point, then you probably have a violation. If you have 10 workers driving around and deciding to stop at your field, neither the farmer nor the primary contractor initiated that.

Mr. Miller. I appreciate that, but, I've sat at 4 o'clock in the morning in Fresno and various parts of the Central Valley watching people get picked up. Nobody said anything to anybody, but the former would sure happen, where the workers were there at 6 o'clock in the morning, ready to go to work.

Mr. Cervantes. I'm not going to deny there were--

Mr. Miller. So there's a benefit that flows here. Now, whether or not you know this or not, you expect enough workers to show up each day during your harvest, to get that harvest done.

Mr. Cervantes. Absolutely.

Mr. Miller. So, if the workers didn't have enough automobiles to get there, you'd go out and have to get them, rather than let the harvest get delayed. So, there's a service being provided.

Mr. Cervantes. Well, yes, there is a service being provided.

Mr. Miller. Right. Right.

Mr. Cervantes. That's not the question. The question is who is directing the service?

Mr. Miller. Well, but that goes to the question of role of the employer? Again, the reason we have these very strict transportation regulations is that we have, unfortunately, farm workers spread all over the highway, because they were being ferried about in unsafe vehicles, and people were being killed in rather substantial numbers. And one of the arguments over the negotiations in Adams Fruit was exactly this question - who would you impute this arrangement to.

There are a lot of farmers who claim that they never contracted with anybody for the transportation of any employees, but they always get 15 employees they need to be there every morning. In some cases, they are the same employees. It isn't an ad hoc thing. So a service is being provided, but the farmer says, ``I didn't have anything to do with it.''

Mr. Cervantes. Well, I guess I can understand your point, Mr. Miller, but my point is that when there's a national carpooling arrangement, when there's four people coming--

Mr. Miller. I don't have a lot of problems with that. But, I think there's something else going on here besides carpooling, and there's a distinction between those services.

Mr. Cervantes. The problem is trying to give the Department of Labor a way to determine which is which. Now, if there's a van that shows up with 10 people, or a pick-up with a camper on it that's got 10 people on back of it, an old crickety van or old pick-up truck, that's not what we're asking for. But when the driver drives his vehicle with four people in it, and those people pay him $2 to drive, I don't necessarily think that's unreasonable, either.

Mr. Miller. Mr. Williams.

Mr. Williams. I sort of agree. We don't see the ride-tero operation as much in Florida perhaps as they do elsewhere. What we see a lot of is the situation of the crew leader coming to a person who has a van and saying, ``Hey, you bring your people to work; I'll pay you the gas and I'll give you the job.'' You can be the little field foreman or field walker job, or little supervisory job. We see a lot of that going on and it's difficult to sort out after the fact. But those people are contracting. They are exposing people to the risk on the highway. In Florida, vehicle accidents are the leading cause of deaths, occupational deaths, among farm workers. And we have about 15 farm workers a year killed in accidents.

Mr. Miller. And that's not unusual in Arizona. That's not unusual in California. You can understand there's a reason this provision is in the law. We have slaughtered a huge number of farm workers on the highways out West. And there are a lot of people who, with a wink and a nod, had a contractual arrangement to get those workers there, but never wanted to be held liable for the quality of that transportation.

Carpooling is fine. We all understand that and that's what workers are doing all over the country. But then, when somebody is providing the transportation service, and you may be the beneficiary of that, it raises a question about your obligation at that point. You can say, ``Well, I didn't know that.'' But you still are the beneficiary of having people delivered to your premises when you would otherwise have to go get them, because you've got a limited time in which to harvest crops.

Mr. Cervantes. I understand that, and what we're asking in H.R. 2038 is not to necessarily throw out the Department of Labor's jurisdiction over the vans and buses, and so on. But, in our case, we had an instance in 1994, where the Department of Labor brought up the sheriff and the State police, had car stoppages on all three major thoroughfares from El Paso to Las Cruces, and stopped every car to check to see if they were illegal contracting. That isn't necessarily good for the industry either. And so somewhere we have to draw the line as to where they can, what they can do. The Department of Labor in our area has their interpretation of it. If there's any money exchanged whatsoever, it is an illegal farm labor contracting activity. Whether it's 2 people, 5 people, 10 people, 20 people, there will be no exchange of money involved, whatsoever. I certainly don't think that this is good for the industry and this was not the intention of the MSPA law when it was originally written.

Mr. Miller. As Mr. Ballenger knows, this provision was hard fought for a period of three or four years of negotiating. This is how the law stands, and there's a reason for this law in terms of practices that are all too common. And it's a little bit like the previous situation where the exemption moves beyond the targeted group. Where in other parts of the country with different practices, all of sudden we find ourselves back in the position of putting some individuals in very serious jeopardy with respect to transportation to and from the fields. And that's certainly my concern.

Thank you.

Chairman Ballenger. Let me once again, thank everybody. I know some of you didn't

feel that you got enough questions in, but I'd really like to thank you for coming. And if there's no further business, the meeting is adjourned.

[Whereupon, at 4:14 p.m., the subcommittee adjourned subject to the call of the Chair.]