Since Washington, D.C., Won’t Oversee Its Guest Worker Programs, Washington State Will

David Bacon

Dorian Lopez, an H2A guest worker from Mexico, lives in barracks in central Washington.

On Wednesday morning, June 12, 21 guest workers at the King Fuji Ranch in Mattawa, Washington, didn’t file into the company orchards as usual, to thin apples. Instead, they stood with arms folded outside their bunkhouses, on strike and demanding to talk with company managers.

According to one striker, Sergio Martinez, “we’re all working as fast as we can, but the company always wants more. When we can’t make the production they’re demanding, they threaten us, telling us that if we don’t produce they won’t let us come back to work next year. We want to speak with the company, so we’re not working until they talk with us.”

Martinez and his friends have joined a labor upsurge among both H-2A guest workers and Washington’s existing immigrant farm labor workforce, which has forced its state legislature to take action to protect both. New York state has just acted to increase the labor rights of farmworkers as well. Meanwhile, California, while it’s made important advances, has yet to enact similar legislation.

Martinez voiced a complaint common among H-2A guest workers. Pressure to work harder and faster is permitted by the U.S. Department of Labor—indeed, often written into the certifications that allow growers to import workers. The job order approved by the Labor Department for King Fuji Ranch, for instance, lists the first reason why a worker can be fired: “malingers or otherwise refuses without justified cause to perform as directed the work for which the worker was recruited and hired.” If a worker’s productivity doesn’t improve after “coaching,” then “the Worker may be terminated.”

“Coaching” at King Fuji, according to Martinez, means “they threaten to send us back to Mexico.” Another worker, who preferred not to give his name, explained that “they give you three tickets [warnings], and then you get fired. They put you on the blacklist so you can’t come back next year. Workers who were fired last year aren’t here this year.”

The contracts under which workers come to the United States in the H-2A agricultural guest worker visa program allow employers to set production quotas. They can fire workers for any reason, and fired workers can no longer stay in the country. In effect, getting fired for low productivity makes a worker subject to deportation. Employers and their recruiters are allowed to maintain lists of workers who are eligible for rehire, and of those who are not—in effect, a blacklist.

The impact of this power imbalance has produced a long train of complaints of abuse. That not only led to the King Fuji workers’ strike and others like it, but also convinced the Washington state legislature to pass a new law that seeks to enforce greater protections for workers.

In February, a group of workers at the King Fuji Ranch first contacted the new union for farmworkers in Washington state, Familias Unidas por la Justicia. Union president Ramon Torres and Edgar Franks, an organizer for the farmworker advocacy organization Community2Community, went to Mattawa to talk with them.

Franks says the workers were scared, but upset over their working conditions. “It was freezing and they couldn’t feel their feet or hands,” he said. “Some workers had pains in their arms and hands, but were afraid to go to the doctor because they might get written up, and with three written warnings they’d be fired.” The company required them to thin between 12 and 15 sections per day, which workers said was an impossible demand.

Workers listed other complaints as well. They had to pay for their own work gear, including $60 for work boots. They didn’t get paid rest breaks. Both are violations of the regulations governing the H-2A program. Franks and Torres were told that when workers were hired they signed an eight-page contract in English, a language they neither read nor spoke.

The two organizers explained labor rights to the workers, and agreed to stay in touch. In May, workers called Torres and Franks, asking them to come help organize a work stoppage. “They told us,” Torres recalled, “that managers had begun giving them grades like in school—A, B, C, D, and F—according to how much they produced. Workers in the F category would be sent back to Mexico, and wouldn’t be hired again next year. A lot of people were frightened by this threat, but 20 decided to act.”

“We even have bedbugs, and now they want to grade us on how clean our barracks are,” Martinez fumed. “At work, some of the foremen shout at us, and accuse us of not working well or fast enough. And when we do work fast, they cut the piece rate they’re paying us so we can’t earn as much.”

Wage cutting and work pressure are both hallmarks of the H-2A program. Companies using this labor-contracting scheme must apply to the U.S. Department of Labor, specifying the living conditions and the wages workers will receive. Each year, the federal government sets, state by state, an Adverse Effect Wage Rate—the wage that growers must pay H-2A workers. It is set at a level that supposedly won’t undermine the wages of local workers, but it’s usually just slightly above the minimum wage. In 2019, the AEWR wage in Washington increased to $15.03 from $14.12 in 2018. Washington’s minimum wage went to $12.00 this year, and will go to $13.50 next year.

On January 8, however, the day before the new H-2A wages were to go into effect, the National Council of Agricultural Employers, a national lobbying organization for U.S. growers, filed suit against the U.S. Department of Labor to roll back pay to 2018 levels. Michael Marsh, NCAE president and CEO, said the increases were “unsustainable,” and would cost growers “hundreds of millions of dollars.” The suit was dismissed in March, but, Marsh said, “we clearly understand the devastating consequences to farm and ranch families of a mandatory wage rate unconstrained by market forces and we had to act.”

The impact of market forces on farmworker wages has been devastating, and affects far more than H-2A migrants. According to the Department of Labor’s National Agricultural Workers Survey, there are about 2.5 million farmworkers in the United States. About three-quarters were born outside the country, and half are undocumented. Farmworker Justice, a Washington, D.C., farmworker advocacy coalition, says the average family’s yearly income is between $17,500 and $19,999. A quarter of all farmworker families earned below the federal poverty line of $19,790.

David Bacon

Juan Infante thins fruit on red delicious apple trees, so that the remaining apples will grow to a large size.

Last year, growers were certified to bring in 242,762 H-2A workers—a tenth of the total agricultural workforce, and a number that is rising rapidly. Holding down their wages would save growers a lot of money, and in effect cap wage increases for farmworkers as a whole. In Washington state, growers and H-2A contractors have therefore made other efforts to roll back wages, in addition to the NCAE suit.

Last year, at the instigation of the Washington [state] Farm Labor Association (WAFLA), one of the U.S.’s largest H-2A labor contractors, Washington state’s Employment Security Department and the U.S. Department of Labor agreed to remove an AEWR piece-rate minimum for picking apples, the state’s largest harvest. Ending the piece-rate guarantee effectively lowered the harvest wage by as much as a third. The King Fuji workers have been contracted to work in the coming picking season, and are affected by this agreement.

WAFLA has a long relationship with the contractor that recruits the King Fuji workers in Mexico, CSI Visa Processing, which boasts on its website that it is the largest single recruiter of H-2A workers from Mexico, with ten offices across the country. The company was originally called Manpower of the Americas, and was created to bring workers from Mexico for what is today the largest H-2A employer: the North Carolina Growers Association.

CSI has become a recruitment behemoth, today supplying workers far beyond North Carolina. Its website boasts that “CSI processed over 30,000 H2 workers in 2017.” A CSI handout for employers says, “CSI has designed a system that is able to move thousands of workers through a very complicated U.S. Government program.” For H-2A workers, staying on the good side of the recruiter is critical, since they depend on it to return to work in the U.S. in subsequent years.

Workers recruited through CSI must sign a form in which they acknowledge that their employer can fire them for inadequate performance, in which case they will have to return to Mexico. “The boss must report me to the authorities,” it warns, “which can obviously affect my ability to return to the U.S. legally in the future.”

It is not an empty threat. Until it signed a union contract with the Farm Labor Organizing Committee, the North Carolina Growers Association and Manpower (as CSI was then called) maintained an “Ineligible for Rehire Report” with hundreds of names. The agreement with the FLOC is designed to prevent the use of a blacklist, but only applies to the Growers Association.

CSI still maintains lists of workers eligible for rehire, and of workers who are not. Its website warns workers, “CSI shares candidate [worker] records with companies to select whomever they see fit.” Roxana Macias, CSI’s Director of Compliance, says,“Once CSI has recruited a worker to different employers who do not request the worker back for legitimate reasons (two strike rule), CSI will not actively seek another opportunity for that worker.” Macias worked for Washington state’s Employment Security Department for two years before getting the job at CSI.

 

LOCAL RESIDENT farmworkers accuse growers of using the H-2A program to replace them. Columbia Legal Services sued WAFLA, CSI, and a large Washington state winery, Mercer Canyons in 2013 in one celebrated case. According to Garrett Benton, a viticulturalist and manager of the company’s grape department, when Mercer Canyons brought in WAFLA, “it left very little work for the local farmworkers.”

The rules governing the H-2A program require an employer to advertise the jobs among local residents before it can be certified. Local workers have to be offered jobs at the same pay the company plans to offer H-2A workers. Benton said many of Mercer Canyons’ longtime local workers were told there was no work available, or were referred to jobs paying just $9.88 per hour, while H-2A workers were being hired at $12 an hour. The company even reduced the hours of those local workers it did hire in order to get them to quit.

“Working conditions got so bad for the local workers that they eventually went on strike on May 1, 2013,” Benton said. “They felt strongly that they were being given harder, less desirable work for less pay. Mercer Canyons was doing everything it could to discourage local farmworkers from gaining employment.” The suit was settled in 2017, and Mercer Canyons agreed to pay workers $545,000 plus attorneys’ fees.

Washington state has given public farmworker housing subsidies to WAFLA and other growers who use the funds for H-2A housing. State Department of Commerce surveys show that 10 percent of farmworkers who are Washington residents, however, were living outdoors in a car or in a tent, and 20 percent were living in garages, shacks, or “in places not intended to serve as bedrooms.” The department refused to bar growers from using the program to house H-2A workers.

 

CASES LIKE THESE were among those that convinced Washington state legislators to pass a bill that promises greater protections for both H-2A workers and resident farmworkers. In March, the Senate voted up SB 5438, and the House of Representatives passed it unanimously in April. The bill will enable the state employment department to charge growers $500 per application to apply for H-2A workers, and $75 for each worker brought in. The funds will be used to set up an office tasked with monitoring labor, housing, and health and safety requirements for farms using the H-2A visa program, as well as prioritizing outreach to domestic farmworkers prior to H-2A recruitment.

In the last several years, the state Employment Security Department had stopped conducting a survey of farmworker unemployment, which previously provided guidance on the number of local workers available. The bill would fund such studies, and the investigation of complaints by both H-2A and local laborers.

David Bacon

These barracks, belonging to the Green Acres company, keep the company's contract H2A workers behind a barbed wire fence.

In a hearing the House conducted while considering the legislation, Representative Debra Lekanoff, the first Native American woman to serve in Washington’s state legislature, said that H-2A workers contributed $5000 each to Washington’s economy, but that the federal government was dumping the cost of enforcing the program’s minimal protections onto the state. “Though this bill is not what we hoped for,” she said, “it is where we are today.”

So far, Washington state’s bill is unique. Although H-2A recruitment is taking off in other states—in the last year increasing by 38 percent in Georgia, 30 percent in Michigan, 24 percent in Arizona and California, and 20 percent in Florida—no other state is introducing its own legislation either to protect those workers or to ensure the program doesn’t undermine the local workforce.

In fact, in Washington, D.C., things seem to be moving in the opposite direction. Representative Chris Collins (R-NY) last month introduced the “Helping Labor Personnel on Farms Act,” H.R. 2801. It would basically end the temporary nature of H-2A employment, allowing growers to recruit and use workers year-round for two consecutive years. Afterward, workers would have to go home, with no way to gain permanent status or citizenship. (The bill has just four co-sponsors.)

According to Farmworker Justice, “too many politicians and employers view agricultural workers as disposable inputs. Immigration status should not be a mere tool for conveniently acquiring or disposing of farmworkers. Legislators need to think about the real-life impact of these policies on farmworkers and their families.”

Farmworker Justice and many farmworker unions support the “blue card,” the central provision of the federal Agricultural Worker Program Act of 2019. This House bill, authored by California Democrat Zoe Lofgren, would allow undocumented farmworkers in the U.S., an estimated half of the agricultural workforce, to apply for resident status with an eventual path to citizenship.

 

WHILE NEW YORK STATE isn’t one of the top users of the H-2A program, and hasn’t passed a law like Washington’s, its legislature did take an enormous step on June 19. It passed a bill that will set up a process for farmworkers to win union recognition through a “card check,” a process much easier and more favorable to workers than the NLRB-style election procedure. Furthermore, the proposed law includes a process for the mediation and arbitration of first contracts once workers win recognition. And for the first time, New York farmworkers will qualify for overtime pay after 60 hours or a seventh consecutive day of work, as well as disability and worker compensation.

California farmworkers won mandatory mediation of first-time contracts in 2002, and then tried to get card check recognition unsuccessfully some years later. The New York law’s contract arbitration procedure is patterned after California’s. California farmworkers won the same overtime rights as other workers two years ago. Farmworkers in Hawaii also have overtime and the right to organize unions under state law.

Nevertheless, California does lag behind New York in getting card check recognition and behind Washington in protections for H-2A workers and resident farmworkers affected by the program. And California has by far the largest agricultural workforce in the country.

It’s not hard to understand why a state like Washington would have to compensate for the lack of action by the U.S. Department of Labor in protecting H-2A workers from abuse, and protecting local farmworkers from being displaced by the program. Look at who’s president.

But why is Washington state the only state that has taken this action?

Chiefly because Rosalinda Guillen and Community2Community (C2C) have been fighting for the guest workers for many years. The state’s new law doesn’t end that fight. That can only be done by Congress, as it did at the height of the civil rights era in 1964, when by repealing Public Law 78, it ended the bracero program.

Guillen, the daughter of a farmworker family, was an organizer for the United Farm Workers in California in the late 1990s, and later became the union’s representative in Sacramento when Dolores Huerta retired. Since returning to Washington state, she and her allies have prodded the state legislature to look into the impact of H-2A’s growth. Her allies have included Columbia Legal Services and the Northwest Justice Project, groups that advocated for both displaced local residents and guest workers themselves. C2C also won the support of the state AFL-CIO, after resident farmworkers went on strike (in part because of concern over possible replacement by H-2A workers) in 2013 and formed the farmworker union Familias Unidas por la Justicia.

In the last two years, Familias Unidas por la Justicia has been called upon numerous times by H-2A workers who’ve taken job action at Sarbanand Farms, Larson FruitCrystal View Raspberry Farm, and others. At the same time, Familias Unidas defends resident farmworkers impacted by the program. Before the explosive growth of the H-2A program, a large part of Washington’s farm labor force consisted of people who live in California and come north for work during the harvest season. “Who do growers think was harvesting their fruit all those years before H-2A?” asks Ramon Torres, Familias Unidas president.

H-2A workers in Washington now actually outnumber those in California, and make up a quarter of Washington’s whole farm labor workforce. California hasn’t seen H-2A worker strikes like those in Washington, in part because the supportive environment hasn’t been created there. In Sacramento, there are no organizations trying to highlight the danger of displacement of local workers by H-2A workers, as C2C has done in Washington.

Nevertheless, California is beginning to see housing problems related to H-2A, and corruption among the contractors. California Rural Legal Assistance has had several big H-2A cases, yet there’s been little media attention and no public outcry over the treatment of these workers.

Democrats have supermajorities in both chambers of the California legislature, and last November won congressional seats in the heart of Big Ag: the San Joaquin Valley. The governor, Gavin Newsom, is a San Francisco liberal. Yet you’d be hard pressed to find a California legislator who even knows what an H-2A worker is.

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