Farmworker Justice Immigration Update 5/27/16

Unprecedented growth in the H-2A program continues as does abuse of workers

The Buzzfeed series on the H-2 programs has highlighted abuses of both guestworkers and domestic workers. Recently Buzzfeed published another great piece, “The Pushovers.” The article sharply criticized the Department of Labor (DOL) for continuing to allow employers to use the H-2A program even where they have been found to violate the program terms, including criminal violations. Central to the article is the H-2A farm labor contractor, Vasquez Citrus & Hauling, which was involved in a bus accident that occurred last year, killing six H-2A workers. The contractor was underinsured in violation of the DOL’s regulations and the driver of the bus did not have a proper license to transport workers. Yet, Vasquez Citrus & Hauling was allowed to bring in more workers this year.

We agree with Buzzfeed that DOL must beef up its enforcement and debarment of bad actors. We continue to advocate for increased and improved enforcement by the DOL, and the resources to do so. One example of the kind of enforcement we need to see more of is a recent investigation by DOL of Red Diamond Farms and its owner. The Department’s Wage and Hour Division (WHD) found violations of H-2A program rules protecting U.S. workers, including by offering H-2A workers more hours and failing to offer domestic workers in corresponding employment the proper H-2A wages, free housing and transportation. DOL also found violations of the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Workers Protection Act and assessed significant civil money penalties totaling $1,488,800 for the violations due, in part, to the employer’s efforts to impede DOL’s investigation by denying the presence of domestic workers and segregating their payrolls from the H-2A workers. DOL’s increased assessment of civil money penalties is key to deterring future misconduct in agriculture, where there is inadequate enforcement and we often see repeat offenders. DOL also stated that it is seeking to debar the employer from the H-2A program. The employer plans to appeal the findings.

It is noteworthy that the DOL listed the grocery stores that buy Red Diamond Farms’ tomatoes. WHD Administrator David Weil has written and advocated for a supply-chain approach to wage and hour enforcement, a policy that he has been implementing at the agency. In agriculture, the need for this approach is evident with high rates of violations on farms where profit margins are small and there is little control over the market prices of fruits and vegetables. Supply chain projects such as the Equitable Food Initiative and the Fair Food Program recognize this dynamic and the power of consumers in efforts to improve conditions on the farm.

In its own defense, the Buzzfeed article notes that DOL states “it has made ‘a serious and sustained effort’ to protect both guest workers and U.S. workers but added that many of those efforts have ‘been under constant attack from powerful industry groups seeking to undermine these protections.’” This is absolutely true. Employer associations that use the H-2 programs are constantly lobbying in Congress and asking their Congressional representatives to write letters to the DOL and meet with senior department staff to discuss “problems with the programs.” In the case of the H-2B program, employer associations have sued the agency repeatedly to strip worker protections from the program. When they have lost, they have gotten Congress to strip protections through the appropriations process.

The most recent set of attacks center around complaints of delays in the processing of H-2 applications. Yet, DOL’s statistics show a timeliness rate of 90% for the H-2A program, with many of the delays actually resulting from deficiencies in the applications. While there may be some truth to some claims of delays, many are largely overblown and must be placed in the broader context of growers’ longstanding demands to undermine the DOL’s much-needed oversight of the H-2A program, where abuse of US and temporary foreign workers is extensive. DOL plays the critically important role of ensuring that employers are recruiting domestic workers at market wages and working conditions.

Despite their complaints about the H-2A program’s costs and bureaucracy, employers reap the benefits of employing these vulnerable workers. U.S. workers often are unwelcome at H-2A employers because they have the freedom to switch jobs and are more likely to challenge unfair or illegal conduct or join a union. For more information, read our factsheet on the H-2A program.

Two Atlanta Journal-Constitution articles provide an example of the media and grower attacks DOL faces. The first article provided a very one-sided critique of DOL’s processing of H-2A applications. In the second article, “Expecting labor help, South Georgia farmers get inspections instead” (May 10) , the author made serious allegations without any evidence that the DOL had investigated farms in retaliation for Georgia growers’ complaints about processing delays in the H-2A agricultural guestworker program. The notion that the slow-moving Federal Labor Department could (or would, see Buzzfeed article above) respond in one week to Georgia growers’ complaints published the previous week is also ludicrous. It may make headlines to demonize federal civil servants who simply seek to enforce the minimum wage and other basic labor protections that are in longstanding laws, but it’s offensive and inappropriate. We and others who assist farmworkers know that violations of the minimum wage and other basic labor protections that do apply to farmworkers are very common.

Despite the H-2A program’s rapid growth, Congress has not increased the DOL’s resources to administer the program and fulfill its obligations to prevent and remedy labor violations. In fact, the Department’s budget for processing applications for labor certification has decreased since 2012. While employers must pay fees to participate in the H-2A program, DOL is not able to keep those fees. The President's FY2017 budget contained recommendations to Congress to allow DOL to retain the H-2A fees, and to appropriate more money to DOL to administer the program.

Ultimately, of course, we urgently need immigration reform. The hundreds of thousands of currently undocumented farmworkers and their family members should be given the opportunity to apply for legal immigration status and citizenship.

Looking to the future, if this country needs immigrant workers to work our fields and ensure a prosperous agricultural sector, they should be offered the opportunity for permanent immigration status and citizenship, and not be limited to a restricted guestworker status. Farmworkers deserve not only to have labor rights that are effectively enforced but also fundamental economic and democratic freedoms.

Victory for blueberry workers in California!

Workers at a blueberry farm, Klein Management Company, in McFarland, California successfully went on strike and voted to unionize, joining the UFW. As detailed in an article by David Bacon, the workers went on strike after their piece rates were lowered. Congratulations to them!

Overtime bill for farmworkers in California

There has been a lot of media attention on DOL’s recent overtime regulations lifting the threshold for overtime, but farmworkers are excluded from overtime under the Fair Labor Standards Act. There is now legislation in California that seeks to address this discrimination against farmworkers. In case you haven’t seen it, check out this great editorial in The Los Angeles Times calling for overtime pay for farmworkers in California.