SOMETHING LESS THAN PROSPECTIVE CITIZENS
Borrowed hands -- does the H-2A guest worker visa program make it
easy to exploit farm workers?
By David Bacon
California Lawyer, September 2011
http://www.callawyer.com/story.cfm?eid=917686&evid=1
In the fall of 2006 Irma Luna, a community outreach worker
for California Rural Legal Assistance in Fresno, got a phone call.
Hundreds of farm workers, the caller said, were living in the
Siskiyou County Fairgrounds, and many were being fired and sent back
to Mexico.
To investigate, Luna and CRLA attorneys Alegria Delacruz and
Mike Meuter drove 500 miles north to the tiny town of Tule Lake.
Waiting at the local library they found a hundred angry laborers.
Over 600 people, workers said, had been contracted in Mexico by
Sierra Cascade, a large nursery, to spend six weeks trimming the
roots of strawberry plants. The company owns over a thousand acres
of nursery ranches in northern California and southern Oregon, where
it grows rootstock for berry plants, selling to growers around the
world.
The attorneys took declarations and prepared a suit,
beginning one of the largest litigations in California over the job
rights of contract Mexican guest workers. It became one of the
longest as well. The last payments to workers to settle their claims
were finally made this spring, five years later. The passage of that
much time might not seem extreme to many California lawyers. But to
workers who live from one paycheck to the next, waiting five years to
get paid is more than a delay. It is an indication that the legal
process cannot overcome the vast inequality in power between Mexican
contract workers and their employers.
California's 650,000 farm laborers comprise a third of the
nation's agricultural workforce, but only about 1 percent of those
laborers are here on H-2A visas - a much lower rate than on the East
Coast.
However, numbers don't tell the full story. For more than a
decade pressure for expanding guest worker programs in California
agriculture has been coming from growers and the politicians close to
them. More than half of the state's farm workers are undocumented,
and though their labor is cheap, growers can't always rely on having
it when they need it. And if the prohibition on hiring undocumented
workers were seriously enforced in agriculture - as it has been
increasingly in other industries - most enterprises would not be able
to function.
Every major immigration reform bill proposed over the past
decade, therefore, has called for the expansion of guest worker
programs. In this atmosphere, then, Sierra Cascade became a watershed
case, with farm worker advocates seeking both to enforce the limited
legal protections available to the workers and to highlight the
fundamental structural imbalances built into the H-2A visa system.
One of those workers, Ricardo Valle Daniel, described in a
declaration the way he and many others were hired by the company's
human relations director, Larry Memmot. While still in his hometown
of Nogales, Mexico, Valle said in a declaration, Memmot offered him a
H2A visas and a contract guaranteeing 6-8 weeks of work at $9 an
hour. The company would supply housing and transportation.
The H2A visa program, enacted as part of the federal
Immigration Reform and Control Act of 1986, allows an agricultural
employer to recruit workers outside the U.S. First, however, the
employer must obtain Department of Labor certification that it can't
find local labor to meet its needs, and that hiring foreign workers
won't drive down the wages and working conditions of domestic
laborers. The workers are given H2A visas, but can only work for the
company recruiting them, and only for less than a year. At the end
of the contract they must return to their country of origin. Federal
regulations govern wages, housing and other conditions.
"On or about the night of September 20, 2006," Valle
recounted in the declaration, "Sierra Cascade transported me and
other workers by bus from Nogales to Susanville" in Lassen County.
Nine buses of workers made the trip in about 24 hours. Though the
company had promised to provide them with food for the journey, the
workers were given only water, Valle stated.
In Susanville, more than a thousand miles from the Mexican
border, "we were given documents to fill out and sign. ... In
addition, I was given a new copy of the employment contract," Valle
stated. "There were significant differences between the information
we received in Mexico when we were recruited and the employment
contract we were forced to sign at that time." The big difference
was that the contract specified they'd have to meet production
standards requiring them to process over 1000 plants per hour. "I
was told by Mr. Memmot," Valle said, "that the new provisions were
[due to] clerical errors ... and that I had to sign the documents -
otherwise I would be sent back to Mexico."
After the stop in Susanville, the workers were taken to Tule
Lake and bunked in a warehouse at the fairgrounds, sleeping in a
large room on cots densely packed together. Valle and his wife, Ana
Luisa Salinas de Valle, were among more than 100 workers who slept in
bunk beds in a mixed-gender dormitory. Around six the next morning,
they boarded company buses to the nurseries.
From the beginning, however, they had problems with the
quota. As former factory workers they had no experience cutting the
roots of strawberry plants. "This is not a common job," he explained,
"and it has taken me some time to learn to do it without damaging the
plant. In fact, if I don't do it correctly the cuttings that are
used to credit my piece rate are thrown away by my forelady and I
don't get any credit for them." When Valle and his coworkers
couldn't make the quota, the supervisor threatened to fire them and
send them home.
At the fairgrounds, life was grim. "During the first two
weeks on many occasions we would have a cup of coffee for breakfast,
a small portion of greasy tough meat with rice for lunch, and cereal,
coffee and bread with jelly for dinner," Valle says.
After the workers met with the CRLA lawyers, the food got
better. But in the warehouse couples like Rosa Ignacia Guzman Castro
and her husband were also housed in a barracks-type room where many
men and women were mixed together, despite what she said were
promises of family quarters.
Her first paycheck for two weeks work totaled $1078.12. The
company deducted $130.20 for the food, leaving her with $947.93.
Like the other H2A workers, she didn't take breaks and worked through
her lunch period, trying to make the quota. She put in more than 125
hours -- over 11 hours a day (8 on Saturday) - making her hourly rate
just over $7.50. She wasn't paid time-and-a-half for overtime.
Finally, at the end of her third week, she and 50 others,
including Ana Luisa Salinas de Valle, were fired for not meeting
quota and told to get on a bus to Mexico. "I came with my husband,
and he has not been fired. I do not want to be separated from him, or
to have to travel without him back to Mexico," Guzman recounted
telling the bosses. She was already sick from the cold. "I am
afraid to travel alone in this condition," she worried.
By then she'd already met with Luna and Delacruz, so she knew
the company was supposed to pay her final check immediately if they
fired her. When the foreman wouldn't do so, she and others refused
to get on the bus, and he called the sheriff. "I think if the
sheriff hadn't agreed to talk with our attorneys we would have been
put in jail or sent back without our pay," Guzman said.
To try to address the allegedly substandard housing
conditions, and intervene to prevent more firings, the CRLA lawyers
filed suit in Superior Court for Siskiyou County in Susanville on
October 16, asking for a temporary restraining order. The suit,
filed less than a month after the contract workers had arrived, was
brought under California's Unfair Competition Law (UCL) and asserted
individual causes of action for breach of contract and violations of
California labor laws.
Failure to comply with statutory wage and hour requirements,
the legal assistance lawyers argued, is unfair competition. The suit
listed nine causes of action, all state violations: breach of
contract, failure to pay minimum wage, provide break and meal
periods, or pay wages due on discharge, unlawful wage deductions,
misrepresentation, housing violations, enforcement of penalties and
unlawful competition.
There were also violations of Federal regulations governing
the H2A program, CRLA attorneys believed. The company had failed to
pay the required wage, called the adverse wage rate, which at $9 an
hour is set slightly higher than the minimum wage. It hadn't paid
overtime after 10 hours a day or 60 a week, violating Federal wage
and hour laws. Compensation also has to comply with prevailing
practices, which CRLA litigation director Cynthia Rice believed meant
the quota and piece rate system wasn't legal either. Failure to
disclose the production requirement violated the H2A regulations,
which hold that a written contract must set forth all the terms and
conditions at the time people are hired.
Further, if workers complete half of their contract, the
company has to reimburse transportation to and from the U.S.
worksite, and provide subsistence payments to allow people to eat on
the way. While the fired workers hadn't completed half their
contract, under Arriaga v. Florida Pacific Farms the first weeks'
wages, minus the unreimbursed transportation expense, must total a
wage above the legal minimum. CRLA attorneys believed Sierra Cascade
hadn't met this standard either.
However, CRLA filed suit in Superior Court, alleging
violations of state statutes, rather than in Federal court under the
H2A regulations. By doing so, it sought to avoid a basic problem in
enforcing labor standards for H2A workers. "There's no private cause
of action that can enforce the Federal regulations governing their
employment," Rice explains. "The law doesn't recognize the right of
H2A workers to go to Federal court." Workers can file a complaint
with the Department of Labor, but the process is very slow, and under
the Bush administration, the outcome seemed uncertain.
CRLA attorneys sought action that would change the conditions
while workers were still in the U.S., especially to stop the firings.
They argued that California's Unfair Competition Law (UCL) in
particular gave them standing to request a TRO in Superior Court.
Sierra Cascade had failed to pay the H-2A program's required "adverse
effect wage rate," and by maintaining illegal conditions, CRLA
argued, Sierra Cascade was able to unfairly lower costs and therefore
unfairly compete with other employers who obeyed the law. "That
allowed us to ask for immediate injunctive relief," Rice says.
Attorneys for the defendant didn't respond to requests for
comment. The company's answer to the complaint, filed by Merrill F.
Storms Jr. of Piper US LLP, admitted some basic facts, including that
"the Tule Lake Fairgrounds facility consisted of barracks/dorm-style
housing with cots and bunk beds," but denied all allegations of
illegal conditions. In addition, it put forward forty-nine
affirmative defenses, including the unconstitutionality of the
California Unfair Business Practices Act.
Instead of litigating these issues in Siskiyou County,
however, Storms removed the case to Federal court, arguing that "the
court has original jurisdiction under 28 U.S.C. 13331" and that "it
is a civil action founded, in part, on claims arising under 8 U.S.C
1101 et seq. (Federal Agricultural Guest Worker Program)." As for
undercutting other employers, the company asserted, "Plaintiffs'
attempt to use California's Unfair Competition Law as an 'end run'
around the Secretary of Labor's jurisdiction over the H-2A Program
must be rejected." It maintained in court filings that it complied
with state labor laws; that production quotas are necessary to the
operations of its business and consistent with industry standards;
and that it voluntarily provided fired workers with bus
transportation back to Nogales.
Four days later on October 20, Federal Judge Garland Burrell
granted a partial TRO, seven days before the employment period in the
remaining workers' H2A contracts was due to end. Burrell ordered the
company to comply with basic standards on bed spacing, heat in the
bathrooms and meals. He accepted CRLA's arguments that food should
meet the standard of the Child Nutrition Act.
He declined, however, to find that the production standards
were illegal, and therefore that the company should not fire workers
for failing to meet them. CRLA argued that the quota requirement
hadn't been disclosed when the workers were hired, and only included
in a contract they were required to sign once they were a thousand
miles north of the border. "At that point they had to sign because
they were already in the country and had to work," Rice charged. The
company denied it had misled workers, and fiercely defended both the
standards, and its right to fire workers and return them to Mexico if
they couldn't meet them.
Sierra Cascade CEO Steve Fortin argued in a declaration, "If
there are no production standards, Sierra Cascade is concerned that a
substantial number of workers, particularly the H2A workers who have
indicated a dislike for the trimming work, will simply produce little
or nothing and draw their $9 per hour pay plus free housing." In
another declaration Larry Memmot, Sierra Cascade's HR director,
added, "since the start of the [company's] H2A program, approximately
170 H2A workers have voluntarily resigned. In addition approximately
100 workers have been terminated for failure to meet a production
quota."
The root cutting work ended soon after the Federal order was
granted, and the workers returned to Mexico. Finally, on January 24,
2007, the CRLA legal team won a victory when Judge Burrell accepted
their argument that although some conditions were governed by Federal
regulations, the allegations in the complaint turned on state rather
than Federal law. In particular, although violating Federal H2A
regulations might constitute unfair competition, giving the Federal
court jurisdiction, violations of California worker protection
statutes was an alternative legal theory. "Defendant has not shown
why Plaintiffs' [Unfair Competition Law] claim is not supported by an
'alternative and independent' state law theory," Burrell decided, and
therefore remanded the case back to Siskiyou County.
Once the case was back in state court, CRLA and the company
began settlement negotiations. A year and a half later, in October
2008, CRLA and Sierra Cascade reached agreement.
The final settlement revolved around three issues. One other
H2A regulation guarantees that workers will be paid at least three
quarters of the hours promised under their contract. California
Labor Code section 226.7 says workers must be paid an hour's wages
for each missed break period. And Labor Code section 203 requires an
employer to pay workers 30 days pay if it terminates their employment
without paying their wages immediately. The total settlement
included $59,000 for unpaid wages and rest periods, $57,000 for the
guaranteed number of hours under the contract, and $210,000 in
penalties and damages.
The company was required in the future to pay travel time
from housing to the workplace, to disclose all contract provisions in
Spanish in Mexico, to reimburse transportation expenses from Mexico
to the U.S. worksite, and to provide legal housing, heat, toilet and
laundry facilities, meals, and meal and rest periods.
CRLA attorneys hoped the Sierra Cascade settlement would
accomplish two things: spreading word among H-2A workers in Mexico
that their labor rights in the U.S. are enforceable, and putting
California growers on notice that those rights must be respected.
"We've seen in other states that H-2A programs have been accompanied
by serious labor and housing violations, and the displacement of
local U.S. workers," says the CRLA's Rice. "We believe that
litigation to vigorously enforce labor standards can help keep that
from happening in California."
While the settlement ended the suit, it began a second phase
for CRLA and the workers that lasted much longer than the litigation
itself. It took a two-and-a-half-year effort to track the workers
down and ensure they received their share of the settlement.
Long before agreement was reached with the company, the
workers were back in Mexico. To ensure that plaintiffs knew what was
happening with their case, and were able to agree on the terms of the
settlement, Luna set up a communications network among them. While
52 were named in the suit, the company gave the lawyers a list of 242
people entitled make claims under the terms of the settlement, either
because they were owed reimbursement for travel, or because they
hadn't been paid for three-quarters of the hours promised in their
contract.
"We generally knew where the plaintiffs were, but for most
workers, the company listed an address in Susanville. Since we knew
they were actually living in Mexico, we had to look for them," she
remembers. "So I compared the names, and found people in the same
family. I went over the list with the plaintiffs by phone, and they
knew where others were."
Most workers came from Sonora and Chihuahua, but others from
more remote states, including Zacatecas and Guanajuato. Luna
realized that there was already a network used by the recruiters in
small towns. When she called someone saying she was looking for "the
guys who went to California," word spread through that network. "In
Casas Grandes, Chihuahua, for instance, we found one person who
helped us find the others," Luna says. "In each place workers had
been recruited, we found a contact. People would go to that person's
house, and sign the papers we needed."
The hunt began in October 2008, and workers had until October
2010, to make a claim. "We never did find everyone," Luna says.
"There were still about 40 we couldn't locate when the time expired."
CRLA staff went to Nogales, where they held a press conference on the
border, hoping that news of the settlement in the Mexican press would
encourage more workers to claim their part.
Slowly, she began to collect signatures on forms authorizing
payment, turning them over to the company. Beginning in May of 2009,
Sierra Cascade began issuing checks, deposited first in CRLA's trust
account. But getting money to claimants themselves turned out to be
complicated. Workers in Mexico couldn't cash CRLA checks. The
wire-transfer companies used by workers to send wages home couldn't
handle the large sums and many individuals involved.
Finally CRLA asked the Center for Migrant Rights in Zacatecas
(Rice sits on its board of directors) to distribute the money to each
person. The center is one of several organizations in the U.S. and
Mexico that have started programs to ensure that guest workers
receive settlements for violations of rights and wage standards, and
Rice sits on its board. CDM opened an office in Zacatecas because of
that state's role in encouraging its residents to enroll in guest
worker programs. With over 50% of Zacatecans abroad, remittances
are the state's largest source of income.
Even with CDM's help, it was hard to determine sometimes
whether the person claiming the money was who they said they were.
Finally CRLA and CDM developed a unique code for each person. At the
bank where CDM deposited money, claimants had to have the code and
show their "voting credential," an identification document workers
already had before they came to the U.S. to work.
"It was very complicated and difficult," Luna concluded.
Despite Sierra Cascade's six-figure payout in the case, the
company has continued to use the H-2A program; on the
California/Oregon border, there's not much in the way of a permanent
farm labor force. In 2009 Sierra Cascade obtained 742 H-2A visas.
Last October it was certified for 310 guest workers. Department of
Homeland Security records indicate that this year Sierra Cascade has
applied for at least 45 H-2A visa workers to be housed in a dormitory
and barracks at Susanville, and another 55 at Tule Lake. According to
its application, the nursery company still holds workers to a
production quota.
Legal action by CRLA and others has not slowed the
recruitment of H2A workers. The number of visas issued for guest
workers increased rapidly just before the recession hit: The
Department of Homeland Security certified 87,316 H-2A visas in 2007
and almost twice that number in 2008 for a peak of 173,103. Then the
number dwindled with the economy, falling to 149,763 in 2009.
California H-2A employment followed a similar, if less pronounced,
course. According to the DHS, 7,422 workers were admitted to
California under the H-2A program in 2007 and 8,889 the next year,
but the total dropped to 5,018 in 2009.
Unlike the East Coast - where the guest worker program's
popularity surged in the 1990s after it was established in 1986 -
California has a century-old tradition of immigrant labor in its
fields. Employers here still hire great numbers of undocumented
workers. "It's likely that over 70 percent of farm workers in America
lack proper work authorization and immigration status," according to
Craig J. Regelbrugge of the American Nursery and Landscape
Association. Because H-2A workers' wages are set slightly higher than
the federal minimum wage, hiring through that program has been less
attractive to growers, who generally pay undocumented workers the
minimum wage - and sometimes less.
But that calculation has started to change. From 2007 to 2009
the state ranked among the top five in applications for H-2A visas,
twice ranking second only to Arizona. As immigration enforcement
efforts increase, so does the appeal of foreign contract labor
programs. The current administration has placed much more emphasis
on workplace immigration enforcement, including the E-Verify
electronic database and audits of the I-9 immigration status forms
each worker fills out at the time of hiring.
Meanwhile, political campaigns in other states to enact
criminal sanctions against undocumented workers have stemmed the
supply of agricultural labor. This year Alabama became the fifth
state to adopt such criminal sanctions, following Arizona, Utah,
Indiana, and Georgia. In June a federal court granted a temporary
injunction in a constitutional challenge to the Georgia law - but not
before the state agriculture commissioner reported that farmers would
need the help of more than 11,000 additional workers to harvest this
year's crops.
All of these pressures have increased growers' interest in
the H-2A program. In April, U.S. Rep. Elton Gallegly (R-Ventura),
chairman of the House immigration policy and enforcement
subcommittee, held a hearing on the H-2A program intended to "plant
the seed for needed reform" - essentially a reinstatement of the Bush
administration policies.
There have been recruitment programs in U.S. agriculture
going back over a century. The largest was the bracero program,
established in 1942 during World War 2, and ended in 1964. At its
height in the late 1950s, between 432,491 and 445,197 Mexican
workers were brought into U.S. fields every year, and sent home after
the harvest was over.
The bracero program was halted when the U.S. Congress, under
pressure from Chicano civil rights leaders Ernesto Galarza, Cesar
Chavez, Bert Corona and others, repealed Public Law 78. They
contended that farm workers would be unable to organize unions so
long as strikers could be easily replaced by braceros. And in fact,
the grape strike that led to the organization of the United Farm
Workers Union began in 1965, the year after the bracero program ended.
To replace the old contract labor system, Congress
established family preference criteria for issuing residence visas
("green cards"). In 1986, however, the Immigration Reform and Control
Act moved immigration policy back in the other direction, by setting
up the H2A program to supply workers to growers.. At the same time,
IRCA provided visas for about 1.6 million undocumented people then
living in the U.S., and an additional 1 million undocumented farm
workers. It also required employers to verify the immigration
status of all hires, and penalized them if they employed undocumented
people. Since then, other guest worker programs have been
established for other industries and employer groups.
Democrats in Congress, including Sen. Dianne Feinstein and
Rep. Howard L. Berman, have long championed AgJOBS, a plan to
legalize limited numbers of undocumented workers in agriculture in
exchange for relaxing requirements on the guest worker program. The
bill would lower the adverse wage rate to its 2008 level, permit a
housing allowance for workers in lieu of actual housing, and give
workers a private right of action in federal court to enforce
contractual provisions. The measure failed to become law in the last
Congress but was included in the Comprehensive Immigration Reform Act
of 2011 (S-1258), introduced in June by Sen. Robert Menendez (D-NJ).
Other proposals go in a different direction. The Dignity
Campaign, for instance, calls for increased protections for H2A and
other guest workers. But it would also end the programs altogether
after five years. Neither that proposal, however, nor any other
that would abolish the H2A program, has so far been introduced in
Congress.
Over the past decade, CRLA attorneys have used legal action
or the threat of it to win settlements for H2A workers employed by
other growers as well. It sued Ralph de Leon, a labor contractor in
Ventura, in 2002, and Harry Singh, a San Diego grower, in 2004. Both
were early users of the H2A program in California. In 2008, it filed
suit in Sacramento for workers brought from Colima, Mexico by
Salvador Gonzalez, Farm Labor Contractor, with promises of work for
$100 a day. That case is pending.
CRLA is far from alone in challenging conditions for H2A
workers. In May the Southern Poverty Law Center won a $2 million
summary judgment for 1500 workers harvesting tomatoes for Candy
Brand, a grower in Bradley County, Arkansas. Like CRLA, the SPLC
cited the Arriaga decision to enforce legal wages and reimbursement
of travel and visa expenses.
Among the biggest doubters that legal efforts can be
effective at enforcing H-2A regulations, however, are the attorneys
who file such lawsuits. Cynthia Rice points to the isolation of the
workers, corruption in the recruitment system, and the temporary
nature of their presence in the U.S. as root causes of vulnerability.
"Our agricultural industry is sustained by cross border labor -- we
have to acknowledge that," she says. "But these workers have only a
quasi-legal status, controlled by growers."
In 2007 the Southern Poverty Law Center's report, "Close to
Slavery", said the program was structurally flawed because workers
"are bound to the employers who 'import' them. If guest workers
complain about abuses, they face deportation, blacklisting or other
retaliation." Regulations to protect workers "exist mainly on paper.
Government enforcement ... is almost non-existent."
H2A wages have been especially controversial. The adverse
effect wage rate rule says they must be set high enough that they
don't depress wages of farm workers in the surrounding community. At
the end of the Bush administration, the methodology for calculating
this wage was changed, resulting in a $1-2 wage cut for H2A workers.
The administration also challenged the Arriaga decision, arguing that
it was "wrongly decided." In March 2010, Labor Secretary Hilda Solis
reinstated the old wage methodology and withdrew the challenge to
Arriaga. Her rule requires employers to document efforts to recruit
local workers, and to provide workers with contracts before they
leave for the U.S.
"Some improvement is possible with changes in the regs,"
argues Mary Bauer, SPLC's legal director. She suggests raising wages
and policing recruitment. "But the structure of the program is the
real problem," she says. "Workers need a visa that's not dependent
on employment. They should come with a visa that lets them shop
their labor around, like any other worker."
Both Rice and Bauer argue against immigration reform
proposals based on guest worker programs. "How we bring human beings
into the economy is a fundamental question of policy and morality,"
Bauer concludes. "Will they be prospective citizens, or something
less? Programs for disposable people are convenient for some, but
they're not my vision of what our world should look like."
--
__________________________________
David Bacon, Photographs and Stories
http://dbacon.igc.org
__________________________________
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