EEOC Settlement Highlights Discrimination against US Workers in H-2A Program

A recent settlement between the EEOC and a Georgia grower demonstrates the rampant discrimination against US workers in the H-2A agricultural guestworker program. The Georgia grower, Hamilton Growers, Inc.,aka Southern Valley Fruit and Vegetable, Inc.,agreed to pay $500,000 to the farmworkers and to implement non-discriminatory hiring and employment measures to ensure that US workers are hired and retained. Georgia Legal Services intervened in the case on behalf of 40 workers to bring claims under the Fair Labor Standards Act and the Agricultural Worker Protection Act. Georgia Legal Services and the EEOC collaborated in reaching the settlement agreement with Hamilton Growers.

In the case, the EEOC alleged that the “company unlawfully engaged in a pattern or practice of discrimination against American workers by firing virtually all American workers while retaining workers from Mexico” for several years. The EEOC also charged that at least 16 African-American workers were unlawfully fired on the basis of race and/or national origin, citing race-based comments by a manager; and that American workers were discriminated against when they were assigned “to pick vegetables in fields that had already been picked by foreign workers, which resulted in Americans earning less pay” and being subjected to “delayed starting times and early stop times, or denied the opportunity to work at all.”

This settlement highlights the need for improving the existing worker protections in the H-2A program, which are required to ensure that the H-2A program does not adversely impact the wages and working conditions of US workers or displace those workers. As this case demonstrates, despite claims that US workers are not interested in farm work, hundreds of thousands of Americans work in agriculture, and many workers interested in working for H-2A employers are turned away or otherwise treated unfavorably in the workplace. H-2A workers are often valued over US workers because they are dependent on their employer for their visa, making them willing to work to the limits of human capacity and tolerate poor workplace conditions for fear of being sent home. This dependency is exacerbated because many H-2A workers typically arrive heavily indebted due to travel costs and recruitment fees and must pay that debt even if their job ends prematurely. Employers may also prefer H-2A workers for a number of other reasons, including that the H-2A employer does not pay Social Security or Unemployment Tax on the guestworkers’ wages, but must do so on the U.S. workers’ wages; H-2A workers are excluded from the principal federal employment law for farmworkers, the Migrant and Seasonal Agricultural Worker Protection Act; and while recruiting in foreign countries, employers can select workers based on age and gender, which is illegal inside the United States.

Current one-sided proposals to change the H-2A program or create an entirely new guestworker program would weaken and eliminate critically important protections for both US workers and guestworkers.