Don Campbell/The Herald-Palladium via AP
Worker fills machine at Leitz Farms in Sodus, Michigan, which participates in the H-2A temporary agricultural worker program, September 2017.
Earlier this month, Senator Bernie Sanders put forth an ambitious immigration reform plan that would inject a much-needed dose of justice into the system. If implemented, undocumented and other vulnerable farmworkers who pick the crops and raise the animals that feed 320 million Americans (and millions more around the world) would be among the biggest beneficiaries. Sanders’s plan would provide secure residency and a path to citizenship for undocumented immigrants and extend basic legal rights long denied to agricultural workers.
Fairness for the unappreciated millions who put food on our tables requires a systematic reconstruction of labor markets in the food industry. The Sanders plan is a key component of this reconstruction—one that should be paired with taming employers who too often exploit this vulnerable labor force. All workers in the United States, regardless of whether they were born in Kansas City or Cusco, should enjoy secure residency and have the same labor and employment rights. Importantly, employers should have to compete for their services by raising wages and benefits and improving working conditions, instead of organizing cartels to hold down wages. This radical rebalancing of power is critical for building a just food economy.
Industrial food production in the United States has long relied on an oppressed, disenfranchised, and underpaid workforce. Farmworkers still do not have the right to unionize under the National Labor Relations Act, and are not entitled to minimum wage and overtime protections under the Fair Labor Standards Act. Sanders, in his plan, correctly condemned the existing carveouts as “racist exclusions.” They date from the New Deal, when progressives in the federal government reached pernicious compromises with Southern segregationists and agricultural employers seeking to maintain racial hierarchies and an exploitable workforce.
Today, food and agriculture employers take advantage of a cruel, two-tiered labor pool. Comparatively privileged citizens and permanent residents have secure status and full labor and employment rights, while vulnerable guest workers, refugees, and undocumented immigrants exist at the periphery. This marginalized fringe has few legal protections and a precarious tie to their new home, making them highly exploitable.
Without the same legal protections, many workers across the food chain fear speaking out about abuse on the job and hazardous conditions. For guest and undocumented workers, the threat of retaliation is severe. Highlighting workplace abuses and risks can mean termination and deportation to a potentially unsafe country of origin, an especially serious risk under the Trump administration. Some immigration activists believe that this summer’s ICE raids on a Mississippi poultry plant were instigated by the employer in retaliation for a recently-settled sexual harassment suit.
Guest worker programs, such as H-2A, further rob domestic and immigrant workers of bargaining power. Designed to address seasonal domestic labor shortages, the H-2A program has increasingly become a major source of agricultural labor instead of an option of last resort. The program has some safeguards to prevent employers from undercutting domestic and immigrant workers with temporary guest workers, but they are not effective. The program allows employers to offer appallingly low wages, sometimes below the federal minimum wage. H-2A workers are also tied to their employer, and therefore cannot search for new jobs once in the United States.
To compound these labor market rules, food-chain employers have formed cartels to avoid competing for H-2A workers, and one court has ruled that they can legally do so.
In 2015, a group of Peruvian guest workers alleged that sheep ranchers came together under two associations, the Western Range Association and Mountain Plains Agricultural Service, to fix wages across the industry. The associations hired over 90 percent of all shepherds in the United States and offered the same lowest possible legal wage for all openings in a state, driving down wages to as little as $4.50 per hour in some places. Shepherd guest workers may work upwards of 12 hours a day, seven days a week. One survey of Colorado shepherds from 2010 found that over 70 percent did not have a single day off, nor access to a functioning toilet, nor permission to socialize. (Full disclosure: The Open Markets Institute filed an amicus brief in support of their case).
In July, a federal court of appeals ruled that, although the shepherds had shown that ranchers delegated collective wage-setting authority to the two associations, they had failed to present a smoking gun “agreement” of a rancher conspiracy. In doing so, the court in effect neutered the long-standing antitrust ban on collusion among competitors. Under the court’s decision, rival corporations—whether employers or pharmaceutical companies—can create a special association to set wages and prices and collude with impunity.
Employer cartels are troublingly common across food and agricultural labor markets. In early September, slaughterhouse workers filed a lawsuit accusing dominant poultry corporations of suppressing their wages through a decade-long conspiracy. Since 2009, a cabal of poultry executives have allegedly conspired in secret every year at a Florida resort to hold down pay and benefits across the industry. The conspirators enforced their cartel through a detailed industry data-sharing service called AgriStats, as well as by having plant managers at competing firms share wage information to avoid competition over workers.
The solutions are clear, but would represent a major break from the status quo, guaranteeing dignity and security to workers and curtailing the power of employers. First, lawmakers need to ensure that food and agricultural workers have the same rights that other workers do. Rather than maintain or expand programs like H-2A that generate a captive and vulnerable foreign workforce, Congress and other federal policymakers should scale back guest-worker programs. They should ensure that all immigrants arriving in the United States have a path to citizenship and enjoy the same labor and employment rights as their American counterparts on day one in the country.
Congress should also repeal legislative exemptions that deprive farmworkers of basic labor and employment protections. All farmworkers should have the right to unionize under the National Labor Relations Act and be entitled to minimum wages and overtime pay per the Fair Labor Standards Act.
Furthermore, policing the power of employers is critical. Employers in the food system, just like employers in other sectors, should not be permitted to collude against workers with impunity, through a business association or otherwise. Food-chain employers who collude should face the full force of worker lawsuits for damages and government prosecution. Under this administration, however, antitrust enforcers at the Department of Justice have shown little interest in combating corporate abuse (and far more in targeting interests perceived as hostile to Trump’s agenda).
Cracking down on predatory corporate behavior and agribusiness monopolies, more broadly, would also target the powerful buyers that so often squeeze agricultural employers. Under pressure from dominant buyers, these employers, in turn, slash wages for their workers, trickling down the abuse of power. Reducing the oppressive buyer power of massive retailers, like Walmart, and dominant meat processors, like Tyson, would help return a larger share of the food dollar to producers, and, by extension, their workers.
An overwhelmingly disenfranchised immigrant workforce and corporate collusion and concentration define work in food and agriculture today. A radical reconstruction of these labor markets is essential. In agriculture and elsewhere, allowing workers to live in freedom from fear and attacking abusive employers must be core principles of a just labor agenda.
