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Organizers Speak Out As Employers Investigations Hit Record Lows

Above photo: Members of WeCount, an organization of outdoor workers demanding workplace protections against extreme heat, chant before a news conference, Tuesday, July 18, 2023, at the Stephen P. Clark Government Center in Miami. Wilfredo Lee, AP.

In the face of lax enforcement by Biden’s Labor Department, labor organizations have stepped up to protect farmworkers.

Sixty years after Cesar Chavez and Dolores Huerta founded the National Farm Workers Association, agricultural workers—especially migrants—continue to be subjected to widespread abuses, including wage theft and dangerous working conditions, due to lax enforcement of labor regulations, concerted efforts by employers to skirt the rules that are in place and a political-economic system that favors employers. Despite these challenges, labor organizations have helped farmworkers stand up for themselves and together with other workers, with some success.

Although migrants working temporary and seasonal jobs on farms are legally protected by the Department of Labor’s Wage and Hour Division (WHD) under the H-2A visa program, legal protection does not necessarily translate into workplace protections, especially absent a union presence.

“Farmworkers are obviously tremendously vulnerable to all manners of exploitation,” says Elizabeth Strater, director of strategic campaigns with the United Farm Workers (UFW). “They’re working in geographic isolation. They’re more likely to be migrants. They’re more likely to be undocumented.” She adds that farmworkers are often housed on the private property of an employer, and that isolation severely limits their ability to reach out to advocates or file complaints themselves.

An August 2023 report by the Economic Policy Institute highlights the economic exploitation endured by agricultural employees and the lack of federal investigations into pervasive violations. Agricultural investigations by the WHD have declined by more than 60% since 2000, and they have continued to plummet during the Biden administration, falling even further behind the record-low levels during the Trump administration.

The EPI report emphasizes that “severe understaffing” at WHD allows farm employers to avoid investigations despite rampant violations, a point confirmed by two WHD spokespersons who asked to remain anonymous. With only 810 investigators on staff at the time of the EPI study, and WHD responsible for enforcing labor standards across the 11 million establishments and 165 million workers in the U.S., the agency investigates less than 1% of farm employers each year.

When the WHD does investigate, investigators find wage and hour violations 70% of the time. While large agribusinesses with fleets of accountants and lawyers can subvert the fragile system of protections in place, small farm employers also account for widespread abuses, some of which may be attributed to a lack of knowledge of how to comply with competing laws and requirements.

According to the EPI report, violations of the H-2A visa program account for nearly three-quarters of all back wages owed to agricultural workers and civil money penalties (CMPs) assessed to farm employers under Biden’s administration. The CMPs are additional fines assessed to employers by the WHD to deter wage and hour law violations.

One significant culprit contributing to H-2A violations and the abuse of agricultural workers is the farm labor contractor (FLC). FLCs, according to the EPI report, are “nonfarm employers that act as staffing firms for farm employers,” and these contractors “account for the highest share of wage and hour violations in agriculture and roughly half of all violations in the two biggest farm states, California and Florida.”

According to a WHD spokesperson, the number of FLCs participating in the H-2A program has increased substantially in recent years, and they can influence the types of violations the Department of Labor uncovers and the amount of time it takes to conclude cases. The EPI report underscored the need to focus enforcement on employers most likely to run afoul of hour and wage laws—namely, those who hire via the H-2A program, as well as the FLCs.

The UFW’s Strater explains that recruiters often find workers from indigenous communities in Mexico and Central America. “Once the workers are inside the country, the employer—which is often [a FLC]—has almost total control over these workers’ lives, [including] their housing, their access to food and transportation, their access to medical care, even their access to drinking water,” she says.

“The only way [FLCs] can survive is by cheating the people,” says Baldemar Velasquez, president and founder of the Farm Labor Organizing Committee (FLOC), a labor union affiliated with the AFL-CIO that represents farmworkers in the Midwest and North Carolina.

“Those are your violators… [E]ven if you nail them—and we’ve sued several of them—they’re usually networks of families, so the business just changes names and [is] given over to another family member,” Velasquez says. “They’re very elusive. They don’t have any fixed assets that you can hang on to. This is a huge enforcement issue. And the only way you’re going to solve that problem is not allow independent farm labor contracts to recruit foreign workers.”

Velasquez says that farmers who own and cultivate the land should be the only employers who can bring in guest workers. At present, FLC-hired workers cannot raise concerns with the owner of the land.

Shortly after the EPI published its report, the Department of Labor (DOL) proposed new rules that could improve protections for agricultural workers, who have long been excluded from protections afforded other workers under the National Labor Relations Act. The proposed changes are intended to help prevent employers with a history of workplace violations from receiving new temporary workers and protect workers from employers who misclassify H-2A employees as non-agricultural employees.

DOL also proposed a rule that would prohibit employers from retaliating against workers who file labor-related complaints or testify in labor proceedings. It also would protect efforts to form, join or aid a labor organization and afford workers the right to picket or participate in a secondary boycott.

If the proposal becomes law, employers would be required to allow H-2A workers to invite or accept guests in worker housing and permit labor organizations some access to that housing too. That rule change proposal could nullify a June 2021 decision by the brazenly partisan Supreme Court that overturned a California law on the books for nearly half a century permitting union organizers to speak with farm employees on private land outside of working hours.

The Occupational Safety and Health Administration (OSHA) standards also apply to agricultural labor. OSHA allows states to administer their own workplace health and safety plans. Although those state plans are supposed to meet federal standards, they do not always receive plaudits from labor advocates. The Service Employees International Union recently asked OSHA to revoke its approval of South Carolina’s plan, for example, arguing the state program fails to adequately protect workers.

Since complaints from workers or advocates are often what trigger investigations by OSHA and to some extent by the WHD and other federal and state agencies, the vulnerable status of many farmworkers can result in fewer complaints, fewer investigations and ongoing, unchecked violations. Douglas Parker, the assistant secretary of Labor for Occupational Safety and Health, acknowledged that, despite higher fatality rates, the complaint rate for agricultural workers is appreciably lower than it is in other industries.

While OSHA has recommendations for preventing heat-related health hazards on the job, Parker and others recognize those are not sufficient to protect people employed in the agricultural sector. The agency is now working on establishing a rule regarding extreme heat.

But as Strater points out, this involves issuing an advanced public notice of rulemaking to let people know about the intent to change labor law and then allotting time for input from a plethora of businesses—a process she said takes nine years on average to reach completion.

Although his union has not been able to negotiate collective bargaining agreements with the staffing firms, FLOC’s Velasquez can point to some success from organizing, which he sees as an effective way of negotiating agreements to protect farmworkers in the H-2A program.

“The master contract we have in North Carolina covers 675 farms, from the mountains to the coast,” he says, “and last year, we processed over 1600 complaints from workers because they can complain without fear of retaliation; they’re protected from that. We’ve cleaned up the abuses on those farms.”

His union has also negotiated portability for workers. If a hurricane destroys the crops on one farm, those farmworkers aren’t left without a job because they can transfer to another farm that needs workers.

Strater points out that employer outsourcing, like what’s done through FLCs, harms working people beyond the agricultural sphere. “That’s something farmworkers have in common with a lot of low-wage workers,” she says. “When you have the subcontractors, it’s a race to the bottom.”

This commonplace “fractured employment model,” says Strater, is another way that large employers impede organizing. Yet, other organizers see this divide-and-conquer strategy as a potential source of cross-sector solidarity.

Last September, UFW president Teresa Romero and other union members showed up at Phoenix Sky Harbor International Airport to support cabin cleaners, baggage handlers and other service workers. Echoing conditions and concerns that have catalyzed farmworker organizing, an American Airlines flight attendant and member of the Association of Professional Flight Attendants said airport workers have had to endure excessive heat without clean water access on the job and many are not paid a living wage.

“If union farm employers can figure out how to keep workers safe from heat while working outdoors in rugged, remote locations, there is absolutely no reason corporations making billions can’t keep their workers safe at the airport,” Romero said prior to the rally.

Strater says UFW organizers correspond regularly with climate justice advocates and they collaborate to address dangerous conditions driven by heat waves as the climate continues to warm.

The UFW also collaborates with organizations focused on issues related to immigration and important to immigrant populations.

“I would say we spend at least as much time in conversation with immigrant justice groups as we do with labor justice groups,” she says, stressing that immigration status issues cannot be separated from farmworker labor issues.

Despite the struggles faced by agricultural workers due to inadequate legal protections and the woefully insufficient investigations cited in the EPI report, Velasquez and Strater see cause for some optimism.

Velasquez highlights the effectiveness of a methodical, grassroots campaign geared toward establishing a legally-binding framework that allows workers to hold an employer’s “feet to the fire.” FLOC organizers try to bring together a “cadre of people,” he says, helping them build protections around the conditions they face. The union focuses on immigrant populations living in rural areas with families working in agriculture that provide a permanent population base year-round, which is not always the case with transient migrant workers.

“The concept of community organizing, what we call a ‘community union,’ is very effective,” he says, adding that FLOC has helped individuals in immigrant communities establish agreements with local authorities so that those found without documentation do not get deported or reported to federal authorities.

Velasquez says FLOC provides support to unions representing workers in processing facilities and other areas outside FLOC’s jurisdiction, and his union has received assistance from them. FLOC has also helped the Teamsters and the United Food and Commercial Workers (UFCW) with organizing, he says.

Currently, the UFCW represents agricultural workers in California and in New York in conjunction with RWDSU, the Retail, Wholesale and Department Store Union.

“We believe a lot in solidarity, labor solidarity,” Velasquez says. “And because we’re [a] rural organization, we’ve been able to help other unions organize workers [outside] our jurisdiction because they’re Spanish speaking—they’re immigrants, they’re migrants.”

Beyond the work of the UFW and FLOC, Strater praises a “policy powerhouse” union for agricultural employees based in Oregon—Pineros Y Campesinos Unidos del Noroeste (PCUN). PCUN, which was founded by farmworkers in 1985, works to empower farmworkers and working Latinx families. One of the union’s major achievements came in 1998 when it negotiated Oregon’s first farmworker collective bargaining agreement.

Says Strater: “They really punch above their weight.”

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