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Changes to H-2B Program Beneficial for Carnivals

2/29/2016

By Don Muret

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New legislation tied to H-2B visa holders  --- a program critical for many carnivals across North America --- is a positive move for the industry despite its short-term benefits, according to principals supporting the changes.

In December, President Obama signed into law a government spending bill covering adjustments to seasonal labor guidelines for 2016. For carnivals relying on the H-2B program, the good news is returning international workers from the past three years are exempt from the Department of Labor's cap of 66,000 total workers allowed under the program.

In addition to carnivals, landscaping companies, construction firms and housekeeping services tap into the H-2B program, and the exemption for returning workers provides relief for all of those industries.

Besides the exemption, the law for 2016 defines the season as 10 months long under H-2B provisions compared with nine months under the program's old guidelines. The additional four week period helps carnivals maintain full crews from Mexico and South Africa, two countries supplying the majority of workers for outdoor amusement companies.

Another change to H-2B allows for the use of independent wage surveys commissioned by carnivals and submitted for approval by the Department of Labor. In previous years, the federal government often picked the highest wage available, The Department of Labor still sets the prevailing wage but at a more equitable rate in 2016, said Michael Wood, owner of Wood Entertainment who's worked closely with Washington lobbyists on the issue.

The bad news for carnivals, though, is after the clock strikes midnight on Sept. 30, the end of the federal government's fiscal year, the H-2B law as it stands now goes away and it's back to the drawing board for those fighting for years to protect carnivals against what they feel is a bias against the industry. 

For carnivals, it's a constant battle to find equity in the law.

Over the past 15 to 20 years, as more carnivals use international workers, they've run up against government red tape, delaying entry into the country for seasonal employees, and in some cases, not getting the correct number of workers for for which they petitioned. This year, though, there are at least some guarantees in place through the new law supported by politicians from states such as North Carolina, Virginia, Maryland and Louisiana, where many H-2B visa holders work.

"In the event the Department of  Labor stalls your paperwork, you won't miss the cap with returning workers,"  Wood said.  "But you still have to make your way through the process." 

Wood, who served as 2015 president of the Outdoor Amusement Business Association, the carnival industry's trade group, made seven trips to Capital Hill in Washington to help push for the new H-2B legislation. Wood Entertainment itself uses 40 international workers and 80 percent return on an annual basis.

This year, however, the government is up to its old tricks again, Wood said. As of late February, his international crew was running one month late for arrival compared with previous years. He expects to see them in mid-March. As Wood Entertainment prepared to open for the Florida Strawberry Festival in Plant City, the independent operator was struggling a bit but surviving. The toughest part of being short-staffed is finding people to travel, he said.

"There's a slowdown right now, mostly because the government is [angry]," Wood said. "We caught them asleep at the wheel. They thought there was no way we would get [the legislation] done. But they can still inflict the most amount of pain possible. The Department of Labor likes to show us who's boss."

Wade Shows experienced the same situation during its run of early-season fairs in Florida. The carnival played the South Florida Fair in West Palm Beach without its initial group of 80 international workers after filing the required paperwork well ahead of time, including documents tied to prevailing wages for those working for the show this year. 

The government effectively dragged its feet for approving the wage provision, taking 60 days to respond compared with the typical two-week period, said Wade Shows owner Frank Zaitshik. In the end, the carnival finally got its first group of international workers in late January, one day before teardown in West Palm Beach and four days before the show opened at the Florida State Fair in Tampa.

"In my case, I felt the brunt of it and was hurt the hardest," Zaitshik said. "The Department of Labor has acted like a big bully. But my hat's off to the OABA's executive committee for its tireless efforts in assisting with those provisions. The work is not nearly done though. It's a temporary fix."

Bottom line, this year's version of H-2B is a step in the right direction, says Jim Judkins, owner of JKJ Workforce, a leading recruiter of seasonal labor for carnivals.

"The exemption has done what it's supposed to do," Judkins said. "It increases the number of available slots [for foreign workers]. Critics say it's quadrupling the number of workers coming over the border. What it's doing is rewarding people who follow the law."

Texas-based JKJ Workforce brings 4,000 workers from Mexico every year to the U.S., providing seasonal labor for 90 percent of the shows under the H2B program. All told, JKJ has 170 clients. Judkins' background is in the circus and it was in 1978 when he worked for Carson and Barnes Circus that he started bringing in foreign workers, well before the H-2B program launched.

Judkins eventually started his own circus and used international labor before expanding to carnivals after Ray Cammack Shows and Butler Amusements first asked him to help their businesses find foreign workers to supplement their operations. Since that time, JKJ Workforce has greatly expanded its list of carnival clients.

"I've been working on this issue longer than anybody," he said. "It's common sense legislation. If we can just get rid of the hysteria out there, it will be fine. There are so many misconceptions, but the fact remains for the industry in general, this is life or death for many shows. Some of the smaller, family-owned shows can't operate without it. It allows for a higher quality operation, and you can worry about the right things like booking, running and moving the show."

The big problem for carnivals is the pool of low-skilled Americans is too thin for them to rely on domestic workers to fill midway jobs. In many cases, carnivals can't hire Americans because they can't pass the drug tests and background checks now routinely required by many municipalities. As it stands now, those jobs would not exist if it weren't for internationals occupying those positions and doing quality work, Judkins said.

As a result, the H-2B program is the "best thing that's happened to the industry over the last 40 years," he said.  "It will get better. We need more education about the process and try to take away these misconceptions."

Long term, Zaitshik feels other carnivals using H-2B workers need to pull their weight to help both the OABA and carnivals such as Wade Shows that have contributed financially to fight government bureaucracy.

"We can't do it alone," he said, "Consequently, when we make contributions to litigation and political funds and lobbyists, we do so as individuals, but it's part of a greater effort."



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