The program was designed to ensure a stable and legal workforce, but workers complain of wage theft and abuse, and farmers say it’s unnecessarily bureaucratic.
The program was designed to ensure a stable and legal workforce, but workers complain of wage theft and abuse, and farmers say it’s unnecessarily bureaucratic.
July 16, 2019
When Juan Antonio Lara signed up to work in Washington state’s apple orchards, he had big dreams. He hoped to make enough money working as an agricultural guest worker to build a house in his native El Salvador, so that his wife and four daughters wouldn’t have to live with his in-laws.
The guest worker program—also known as H-2A—allows U.S. farmers to hire foreign workers on a temporary basis when there aren’t enough qualified local workers available. Previously underused, it has tripled in size over the past decade as border security has tightened and the promise for immigration reform has dwindled. Most of the guest workers—known in Spanish as “contratados”—are Mexican men; Lara is one of a small number who hail from Central America.
Although guest workers represent less than 10 percent of the U.S. agricultural labor force, the program’s exponential growth will likely continue, as there is no annual cap on the number of the temporary agricultural visas and most of the applications from growers are approved. As the program has expanded, its inherent problems have become increasingly visible for workers and employers. Both farmworkers and farmers want the program to continue to grow, but want it reformed, though in very different ways.
The Trump administration last year vowed to streamline and simplify H-2A, a move worker advocates say could strip the program’s already-weak labor protections and oversight and lead to even more abuses and lawsuits. On Monday, the U.S. Department of Labor released a long-awaited proposal to update the program. The nearly 500-page document includes changes such as mandating electronic filing of job orders and applications, updating the methodology used to set the guest worker minimum wage, and strengthening the standards applicable to housing. Farmworker advocates say the proposed regulations would be harmful to both domestic workers and guest workers.
When 34-year-old Lara arrived last year for his first nine months at King Fuji Ranch in Mattawa, a small town in central Washington, he was impressed. He and three other men shared a comfortable room with heating, electricity, and warm water—a far cry from the bare-bones worker accommodations in El Salvador. And, according to the contract, he would make at least $14 an hour.
Lara didn’t earn as much as he had hoped, and his room was infested with bedbugs. Still, the dollar stretches a long way in El Salvador. When he returned to his village, Lara paid off debts and bought the property where he planned to build his home. But when he arrived in Mattawa earlier this year for a second season, the bedbugs were still there, and the itching kept Lara up at night. He said the grower pressured him and other workers to meet steep production quotas. In mid-June, Lara and two dozen fellow guest workers went on strike over the labor conditions.
“The local farmworkers said they don’t want to work for this employer. They told us… you are like prisoners. You can’t make much money and you are stuck there,” Lara said in a recent phone call. Representatives of King Fuji Ranch did not respond to multiple requests for comment about Lara’s claims.
The strike at King Fuji Ranch is one of several recent labor stoppages staged by H-2A workers around the country. In addition, workers have filed multiple lawsuits in recent years alleging some H-2A employers exploit them, steal their wages, provide substandard housing, or blackmail them into submission. Worker advocates say the program’s current structure creates a fundamental power imbalance and makes it ripe for abuse because guest workers are bound to a single grower and their livelihoods—their visas, housing, food, and wages—are completely dependent on that employer.
The full scope of the problem isn’t known because workers tend to be silent about abuses and rarely go on strike so as not to lose the coveted jobs, said Edgar Franks, an organizer for the farmworker advocacy organization Community to Community in Washington that assisted the striking workers at King Fuji Ranch.
“People in Mexico are just lining up by the thousands in some communities to come to this program. On its face, it sounds like a good deal. But when you dig deeper, with all the exploitations and abuses, it’s deceiving,” said Franks.
Growers also dislike the program, but for very different reasons. They say it’s onerous, expensive, complex to navigate, and fraught with additional rules and scrutiny.
“We’re just saddled with more regulations and higher wages when we bring in foreign workers,” said Michael Azzano, a second-generation farmer in Omak, Washington who grows 300 acres of organic and conventional apples, pears, and cherries.
Over the past few decades, American farmers have enjoyed abundant access to cheap foreign labor as millions of Mexicans have crossed the southern border illegally. But as border security tightened and the Mexican economy boomed, the number of unauthorized Mexicans coming to the U.S. has slowed to a trickle, evident in the sharp decline in apprehensions on the border. Instead, most people who are apprehended in recent years are women and children fleeing violence in Central America.
Simultaneously, some domestic farmworkers—about half of whom lack legal immigration status—have left agriculture for better opportunities in other industries, are afraid to work without documents or have retired all together. As a result, farmers have been competing for a shrinking pool of workers by raising wages and offering benefits and bonuses; some have had to leave crops rotting in the fields, switch to other crops, or invest in more automation for their operation.
Many growers are now turning to H-2A guest worker visas to ensure a stable labor force. Recruiters drive to remote Mexican villages, and contact potential workers via Facebook and WhatsApp. In recent years, the program has swelled by nearly 200 percent, from about 82,000 certified workers nationwide in 2008 to 242,000 in 2018, according to the Office of Foreign Labor Certification at the U.S. Department of Labor. During the first two quarters of 2019, nearly 124,000 workers have already been certified.
The guest worker program is chiefly favored by growers of labor-intensive specialty crops, or fruits, nuts, and vegetables, because they require large numbers of seasonal workers. More than half of the guest workers end up in just five states—Georgia, Florida, Washington, North Carolina, and California—where specialty crops abound. Berry growers are the top employers using H-2A, followed by apple and melon farms.
In Washington, where H-2A use increased by about 30 percent over the past year, the nonprofit Washington Farm Labor Association (WAFLA) has been aggressively pushing the program by helping growers cut through the red tape and apply for workers. In 2018, the association became the second largest guest worker employer in the nation; it now brings about 70 percent of the state’s H-2A workers to the U.S. It also works with growers in Oregon, Idaho, and California, and assists larger companies on a consulting basis with the application process.
For many guest workers, who often come from poor rural areas, the H-2A program is a boon. Lara said he struggles to make ends meet back home, fishing, farming and taking on many odd jobs in Nombre de Jesús, his village in a mountainous region of El Salvador. On rare occasions, he’s made up to $60 per day in his home country, but mostly he brings home just a few dollars a day.
“In my country, there is so much poverty and no work,” said Lara. “I wanted to find an opportunity to improve my life; I wanted to have hope.”
His opportunity to work in the U.S. may soon be cut short, however, because he has struggled to meet the productivity quotas imposed by King Fuji Ranch, which currently hosts 200 guest workers. According to the contract, workers are to be paid per hour, but his bosses expect them to complete a certain amount of thinning and pruning done quickly. “We are expected to do piece rate work [which typically has its own pay structure], but get paid hourly wages,” he said.
King Fuji Ranch managers grade workers’ performance using letter grades; a company manager has told workers that those who received a C, D, or F won’t be invited back, Lara said. He received an F, according to his evaluation slip and said two-thirds of his crew did not meet the quota.
The workers went on strike, he said, because they felt it was a form of blacklisting. The strike resulted in King Fuji Ranch management verbally promising workers there would be no reprisals for organizing the protest and that the company would review its disciplinary process, Lara said. Farm manager Nathan Cortez did not respond to Civil Eats’ requests for comment, but asked that WAFLA’s director Dan Fazio respond.
Fazio said H-2A regulations don’t allow for productivity quotas, though they do permit performance requirements consistent with industry standards. He said the evaluation system at King Fuji Ranch is “excellent.”
“Approximately 10 percent of the workers received evaluations indicating that improvement was needed if they wanted to be eligible for rehire,” Fazio wrote in an email. “Of course they were upset because they want to work at King Fuji Ranch for a long time to come.”
Worker advocates say problems like those at King Fuji Ranch—and other much more grave problems—are why guest worker programs should be phased out all together. They point to the bracero program, which during World War II brought millions of Mexican guest workers to toil in American fields; it was halted two decades later due to worker mistreatment and described as “legalized slavery” by the U.S. Department of Labor officer who headed it. Though the current H-2A program provides various protections and oversight, multiple reports have outlined serious worker abuses and mistreatment.
“Our view is that the H-2A program is inherently unfair to workers. It denies them economic freedom and democratic rights,” said Bruce Goldstein, president of Farmworker Justice, a national nonprofit that advocates for agricultural workers at the judicial and policy levels. Those workers are vulnerable to abuse because they can earn so much more money through H-2A than they can back home. And since they are not at-will employees, they cannot “vote with their feet,” said Goldstein. If they are fired, they must leave the country immediately.
“If they want to come back for another season, they have to keep the employer happy,” Goldstein said.
That dependency exacerbates issues ranging from labor disputes like the one at King Fuji Ranch, to wage violations and substandard housing conditions, to major safety or heat violations.
And yet, H-2A workers are increasingly speaking out about the abuses. And the results have been noteworthy.
After a 28-year-old H-2A worker died in 2017 during the blueberry harvest at Sarbanand Farms, owned by California-based Munger Bros., fellow workers staged a protest over the farm’s working conditions. They were fired for insubordination and returned to Mexico, but, last January, they sued their H-2A employer; the lawsuit was certified as a class action and is still pending. (State officials found the farm wasn’t at fault in the death of the worker, but fined it nearly $150,000 for other violations.)
Last year, dozens of guest workers at Crystal View Raspberry Farms and others from an apple orchard operated by Larson Fruit also went on strike. They were protesting production quotas, wage issues, verbal abuse, and other problems. Because some of the striking workers did not get rehired for another season, a lawsuit was filed on their behalf. It claims they were blacklisted despite a settlement agreement.
H-2A workers can also be victims of human trafficking, according to the anti-human-trafficking group Polaris Project, which last year released a report on trafficking in temporary work visa programs. It showed that the category with the most reported trafficking cases—over 300—was the H-2A program. The cases were reported to the National Human Trafficking Hotline.
The report details the mechanisms of fraud, coercion, and control during the recruitment and employment of guest workers. They often pay steep recruitment fees (though such fees are technically prohibited), which land them in debt and assures they will keep working even when the conditions are unsafe and they aren’t paid the promised wages. According to the report, the use of quotas in agriculture was also common, where “victims were mandated to produce or complete an often unattainable amount of work-related products or tasks, or face often serious repercussions.”
Another concerning trend is third party labor contractors being approved as employers of guest workers, Goldstein said, giving a legal shield to farm owners. In 2018, for example, a guest worker died of heat stroke after harvesting tomatoes at a Georgia farm. The labor contractor, his H-2A employer, was fined by the U.S. Occupational Safety and Health Administration (OSHA) and barred from the H-2A program, but the farm owner faced no consequences.
And it’s not just foreign workers who suffer the consequences of farms’ increased dependence on the H-2A program. Last year, the U.S. Department of Labor filed suit against Sakuma Brothers Farms, a Washington berry farm, for giving preferential treatment to guest workers and discriminating against U.S. workers. (The displaced local workers eventually were rehired and formed a new union called Familias Unidas por la Justicia.)
Instead of seeking to expand H-2A, employers should do more for domestic workers, Goldstein said. “This is a capitalist economy, and employers should be doing what’s necessary to attract and retain farmworkers,” he said, including raising wages and offering benefits, as well as pushing Congress to give undocumented farmworkers and their families a chance to get green cards and U.S. citizenship. In January, Democratic lawmakers re-introduced “Blue Card” legislation, which they say would give agricultural workers a path to citizenship and provide a more stable workforce for growers.
Farmers, who say there simply aren’t enough domestic workers, are trying to secure a stable, legal workforce through H-2A despite the fact that they, too, dislike the program. There are too many government agencies involved, and the costs are exorbitant, they say. And scrutiny from the government, unions, legal aid, and outreach workers is excessive.
“It’s basically an unworkable program,” Fazio, WAFLA’s director, told Civil Eats.
Despite its drawbacks, the program is slowly turning a mostly undocumented workforce into a legal one, Fazio said. Washington state employs about 97,000 ag workers. Last year, nearly 25,000 H-2A workers were certified to work in the state, and the state’s Employment Security Department predicts the number will be more than 30,000 in 2019. About 250 agriculture employers apply for H-2A workers through WAFLA, Fazio said.
According to Fazio, growers, long criticized for employing unauthorized workers, are caught between a rock and a hard place. They are now criticized by worker advocates and the general public for using the guest worker program, he said. “The farmers are spending lots of time and money to do the right thing and they’re being persecuted,” Fazio said. “We don’t have anything against undocumented workers. But if a farmer hires them and ICE does an inspection, then the farmer is trouble.”
However, employers’ use of H-2A seems to be chiefly tied to labor shortages and other motives and less to fears of Immigration and Customs Enforcement (ICE) audits, since growers readily hired unauthorized workers when they are available.
For growers of specialty crops, labor can account for up to 70 percent of production costs, Fazio said. Guest workers, in particular, are costly. And they’re paid the favorable Adverse Effect Wage Rate—or between $11 and $15 an hour, depending on the state—so as not to drag down domestic farmworker wages. Washington and Oregon topped of the scale at $15.03 per hour this year. Washington’s minimum wage is $12, and $16 in Seattle. Agricultural employers went to court to roll back an increase in the minimum guest worker wage to last year’s levels, but a judge let the increase stand. (Agricultural employers, however, are exempt from payroll and unemployment taxes on H-2A workers.)
“When we have high guaranteed wages, it puts extreme pressure on the employers, who put pressure on the supervisors, who put pressure on the workers, because they are trying to produce a crop profitably,” Fazio said.
Because production costs are so much higher in the U.S., making the fruit more expensive than imports, local and export markets for specialty crops have shrunk. Many farmers are no longer profitable, or are barely breaking even. “We’re saddled with exponentially increasing costs. It’s really stifling and it’ll be the death of farms our size,” said Azzano, the Washington grower. He said he often wonders whether it makes financial sense to pick his fruit because the market dictates the price. “I work all year to produce a product and I have no clue what the value is,” he said. “I’m already harvesting this year’s crop when I haven’t gotten paid for last year’s.”
Azzano has brought about two dozen H-2A workers to his orchards each season over the past four years, he said, because he needed guaranteed labor. “There wasn’t a year where we ran out of workers,” he said, “but the writing was on the wall.” He has been happy with the workers, but not so much with the program itself. The Department of Labor has fined him twice, he said, over violations such as missing a rearview mirror in the van in which he transports workers.
More serious labor violations have also occurred on some farms, WAFLA’s Fazio said. The organization provides complaint boxes for the guest workers and posts a third-party discrimination hotline workers can call. The location of employer-provided worker housing is public, and advocates and lawyers regularly visit the workers.
Growers and groups like WAFLA say they’d like to rid H-2A of the higher costs and bureaucratic hurdles. They want to pay guest workers the state minimum wage (the same rate other farmers pay domestic farmworkers). And they’d prefer the workers pay for their own housing, food, and transportation. If workers took on all these costs and didn’t have guaranteed wages, Fazio said, working for multiple employers would be feasible.
It seems that growers will soon get some relief if the proposed rules rolled out by the U.S. Department of Labor on Monday go into effect. In particular, the agency proposes to revise how it calculates the Adverse Effect Wage Rate, which growers so dislike because it tends to be higher than the state minimum wage.
The Department currently sets that wage for all H-2A jobs by averaging the annual hourly gross wage for field and livestock workers in a given state. Instead, the new proposal would set the wage for particular agricultural occupations, which would mean that many H-2A workers will get paid less. Some H-2A workers employed as supervisors or in other higher-wage ag jobs would get paid more—but most guest workers aren’t brought in to fill higher-paid jobs.
Other changes that the Department of Labor proposed on Monday would also benefit growers: The new rules would allow authorities to inspect and certify employer-provided housing for a period of up to 24 months, meaning the same inspection could serve multiple H-2A applications. The rules would shorten the period during which growers have to hire domestic workers after the guest workers have arrived, which means some U.S. workers could lose out on job opportunities. They would only require that employers pay for workers’ transportation from the U.S. consulate or embassy where the workers obtain their visa, instead of from workers’ homes. And they would allow employers to stagger the arrival of their guest workers to accommodate changing weather and production conditions.
The proposed rules would reduce labor protections for both domestic workers and guest workers, according to Goldstein of Farmworker Justice, including shifting program costs “from employers onto the backs of H-2A workers” and “sharply reducing” the obligation to recruit U.S. workers. “The Trump Administration’s proposal would make it easier for farmers to bring in temporary foreign workers under substandard wages and working conditions,” Goldstein said in a statement.
It’s unclear whether the proposal contains any significant guest worker protections, which worker advocates say are badly needed. In May, Washington state took the lead when its legislators passed a bill that provides more oversight for the H-2A program. The law, which goes into effect at the end of July, creates the Office of Agricultural and Seasonal Workforce Services to assist workers and growers. It also will create an advisory committee made up of farmworker and grower representatives to review policy issues related to H-2A.
It may be too little, too late for Juan Antonio Lara, whose failing grade could mean he won’t be invited back to King Fuji Ranch. Since there are no other U.S. recruiters or employers looking for workers in El Salvador, his career as a guest worker may be over. For now, he says, he won’t be able to afford to build his family a home after all.
Top photo: Guest workers striking at King Fuji Ranch. (Photo credit: Edgar Franks)
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