The federal employment laws meant to provide protection for agricultural workers need more enforcement in order to improve the conditions in our fields, according to a new report released today.
The report by Farmworker Justice analyzes the Department of Labor’s (DOL’s) statistics on its enforcement of the minimum wage and other basic labor protections applicable to agricultural workers on farms, ranches, and dairies. Widespread violations of the minimum wage and other wage-hour laws in agriculture harm farmworkers, as well as the many law-abiding businesses suffering competitive disadvantage caused by unscrupulous employers.
In “U.S. Department of Labor Enforcement in Agriculture: More Must Be Done to Protect Farmworkers,” a report based on reviewing 8 years of agency data under two presidents, Farmworker Justice found a mixed record. The number of investigations of agricultural workplaces conducted by the Department of Labor’s Wage and Hour Division remained fairly consistent despite the hiring of additional investigators and a stated commitment to improving compliance on farms. The data revealed increases in the amount of time spent by agency investigators on agricultural workplaces, increases in the number of farmworkers at investigated employers, as well as increases in the amounts of backpay assessed for violations.
“Consumers of fruits and vegetables want to know that farmworkers in the field are treated decently, and law-abiding growers do not want to be undermined by businesses that violate wage-hour laws, but the reality is that there are widespread violations in agriculture. The U.S. Department of Labor plays an important role in deterring and remedying violations of law. The agency has modestly improved the quantity and quality of its enforcement of labor-protective laws, but many employers still view the risk and the financial consequences of getting caught as too small to deter them from violating the law,” said Bruce Goldstein, President of Farmworker Justice, a national advocacy group in Washington, D.C.
The report’s recommendations include:
• Increase the number of investigations per year and ensure that the Department seeks and collects the full measure of back pay, liquidated damages and civil money penalties.
• Continue increasing the Department’s use of important tools in the law, including the authority to ask a federal court to issue a “hot goods injunction” against the sale of goods produced in violation of the minimum wage. It also should continue increasing its use of the “joint employer” concept when farm operators deny that they “employ” any farmworkers on their farm and seek to impose sole responsibility for minimum-wage violations on farm labor contractors.
• Continue to improve collaboration with farmworker groups on the ground. DOL also should improve its education of the public and Congress about the value of its enforcement efforts on farms.
“The bottom line is that because many farmworkers are suffering systematic violations of basic labor standards, Congress should increase funding for enforcement of the wage-hour laws in agriculture. In addition, the Department of Labor should continue to allocate more investigator time to agriculture and continue to increase its use of all the tools that Congress provided to the agency to remedy and deter violations of employment laws,” added Goldstein.
Most people who assist migrant farmworkers agree with David Winkles of the Farm Bureau that Congress should reform the immigration laws (April 20, “S.C. agriculture needs immigration reform”). But we disagree with the specifics in his op-ed.
The current agricultural guest worker program has worked all too well for growers seeking foreign citizens on H-2A visas. The modest labor protections should be stronger, as should their enforcement, to stop displacement of U.S. workers, undermining of wages and abuses of guest workers.
More importantly, Congress should grant a path to immigration status and citizenship to the many experienced farmworkers who are undocumented immigrants.
We couldn’t disagree more with the contention that the Bracero program was “one of the most successful programs of all times” (“Bring on the Guest Workers” by William McGurn, Main Street, March 24). The Bracero program, which began during World War II to provide foreign labor to U.S. farms, ended in 1964 after years of exposés about its labor- and human-rights abuses. While Mexican citizens often were grateful for the job opportunities, the Bracero program exploited the workers’ vulnerability. The guest workers held a restricted, nonimmigrant status with no right to earn immigration status or citizenship. They were tied to particular employers and depended on the employer for the chance for a visa in a following season. Wages stagnated and U.S. citizens and immigrants were displaced in favor of the more controllable foreign workers. While protections against undermining of U.S. workers’ wages and working conditions existed, they weren’t strong enough and they weren’t enforced effectively.
More important, we already have an agricultural guest-worker program and its history reveals that it should not be a model for this nation’s immigration policy. The H-2A temporary foreign agricultural-worker program also began during World War II and has been revised several times, but the program suffers from the same flaws as the Bracero program. The U.S. should not become a nation of guest workers but instead should remain a nation of immigrants who are granted the opportunity to become citizens and enjoy our economic and political freedoms.
Yesterday FJ released our report reviewing US DOL’s enforcement in agriculture (available here). The report “U.S. Department of Labor Enforcement in Agriculture: More Must be Done to Protect Farmworkers,” analyzes 8 years of DOL’s statistics on its enforcement of the minimum wage and other basic labor protections applicable to agricultural workers on farms, ranches, and dairies. The report concludes that despite some recent improvements, more enforcement is necessary in order to improve the conditions in our fields. Consumers of fruits and vegetables want to know that farmworkers in the field are treated decently, and law-abiding growers do not want to be undermined by businesses that violate wage-hour laws, but the reality is that there are widespread violations in agriculture.
While DOL’s enforcement is central to addressing and deterring these violations, our broken immigration system is another key factor. As we have pointed out, without immigration status, many farmworkers are too fearful of deportation to step forward to enforce their labor rights. In the majority undocumented farm labor force, this has had a devastating impact on farmworkers’ wages and working conditions as well as the level of workplace violations. Our new report shows that DOL found violations in almost 70% of the investigations taking place over an eight-year period during the Obama Administration. Immigration reform that provides a path to citizenship is key to stabilizing the farm labor force and improving wages and working conditions for farmworkers. President Obama’s November 20, 2014 administrative actions are an important step forward and could reach roughly 700,000 farmworkers and spouses, providing them with both work authorization and protection from deportation. A recent piece from the Center for American Progress in honor of May Day highlights the benefits that President Obama’s administrative relief would bring to farmworkers.
As you all know, unfortunately, the Texas v. US litigation has continued to delay implementation of these administrative relief programs with the district court’s February 16 injunction still in place. Following the oral arguments on the government’s emergency motion to stay the injunction held on April 17, we are still awaiting a ruling from the 5th Circuit. The US government’s appeal of the injunction is also still pending in the 5th Circuit and oral arguments have been tentatively scheduled for the beginning of July. As you can see, litigation – the “wheels of justice”—often move slowly and can sometimes be a tool for the unjust as well. FJ and other legal experts remain confident in the legality of the President’s actions and continue to defend his actions and plan for a favorable resolution of the case and successful implementation of the DAPA and expanded DACA programs.
Congress: Anti-immigrant sentiment continues to be on display in Congress. On Wednesday, the House Judiciary Committee held a hearing on birthright citizenship and whether it is the right policy for America. For those of you familiar with the Constitutional amendments, you will recall that the notion of birthright citizenship derives from the 14th Amendment, which was passed at the end of the Civil War to ensure that all of those born into slavery would be entitled to citizenship. Two Congressional members, Representative Steve King (R-IA - the vehemently anti-immigrant member infamous for his “cantaloupe” calves comment about DACA youth) and Sen. David Vitter (R-LA) have introduced bills to end birthright citizenship. While these bills are not likely to go anywhere, it is extremely troubling that this issue is even receiving serious consideration as the subject of a House hearing. The hearing also suggests that the House is not yet done pandering to its extreme anti-immigrant members.
Along with this theme of extremism and failure to heed public consensus for sensible reform, the House also seems to be intent this Congress on continuing its failed history of pursuing one-sided guestworker reform legislation. On April 15, several members of New York’s congressional delegation, led by Rep. Gibson (R-NY), reintroduced the failed “Family Farm Relief Act of 2015,” HR 1805. The bill proposes to expand the H-2A guestworker program and remove oversight and protections instead of addressing the need to legalize the current experienced workforce. The bill would expand the H-2A program to include year-round livestock workers, including those at dairy operations. This expansion would not include any opportunity for the current experienced work force to obtain immigration status and does not seek to address the rampant abuse in the program. The bill would also transfer the H-2A temporary foreign agricultural worker program from the DOL to the USDA despite the fact that the USDA has no experience running any such programs. Finally, the bill would strip existing recruitment protections for US workers applying for these and other agricultural jobs, resulting in tremendous job loss for US workers across the industry. FJ will prepare and share an analysis of the legislation in the upcoming weeks as we continue to educate members of Congress about why guestworker-only proposals will fail agriculture and this nation. On these points and the need for comprehensive immigration reform, FJ’s president Bruce Goldstein published two recent Letters to the Editor in the Wall Street Journal and the South Carolina Greenville Online.
New regulations in H-2A range worker and H-2B programs: On the issue of guestworker programs, the Department of Labor has issued two recent notices relevant to agriculture: H-2A sheep/goat herder and open range livestock workers and H-2B comprehensive and wage regulations. On April 15, 2015, in response to a court order, the Department of Labor published a notice of proposed rule making for sheepherders, goatherders and range livestock workers. The proposed rules are welcome and long overdue, but must be strengthened. Range workers have long been excluded from many of the limited but important H-2A program protections. Due to the politically powerful ranching lobby, there have been longstanding “special procedures” for herder and range livestock H-2A workers. Under the DOL proposed regulations, wages would be strengthened and there are other improvements as well, such as greater clarity about the tools and supplies employers must provide free of charge. However, the proposed regulations must be strengthened. For example, while the wage requirement in most states -- $750 a month—would increase by more than double, the increase phases in too slowly, does not adequately compensate range workers for all of the hours they work while on call 24/7, and does not ensure workers have access to their earnings. Further, there is need to strengthen the range housing requirements for basic necessities such as heating and food storage. We urge you to weigh in for greater protections for sheepherders and will share model comments and/or a sign-on letter by May 11.
Also this week, the DOL and DHS jointly issued interim final H-2B regulations following years of litigation over the H-2B program. The rules were effective immediately and will be finalized following a 60-day comment period. The H-2B comprehensive rules, which are very similar to the 2012 rules, are a victory for US and H-2B workers. The rules would ensure greater protections for H-2B workers during recruitment abroad and on the job, as well as greater protection for US workers who are interested in the positions. Centro de los Derechos del Migrante has indicated concern, however, that the wage rule may lead to lowered wages due a loophole allowing industry wage surveys. More information will be shared as it is available.
On November 20th, 2014 President Obama announced his plans for executive action on immigration. We applaud the President’s action, which includes a deferred action program that provides relief from deportation and work authorization for millions of undocumented individuals, including hundreds of thousands of farmworkers and their family members.
Immigration is a critically important issue for farmworkers. Learn about current legislation proposals impacting farmworkers.
Learn about the history of guestworker programs, H-2A program for temporary agricultural work, and the H-2B visa program.