Judiciary HomepageSUMMARY OF TESTIMONY OF
BRUCE GOLDSTEIN
CO-EXECUTIVE DIRECTOR, FARMWORKER JUSTICE FUND, INC.
1111 19th Street, N.W. Suite 1000
Washington, D.C. 20036
before the
SUBCOMMITTEE ON IMMIGRATION AND CLAIMS
JUDICIARY COMMITTEE
HOUSE OF REPRESENTATIVES
SEPTEMEBER 24, 1997
My name is Bruce Goldstein. I am co-executive director of the Farmworker Justice Fund, Inc., an advocacy group in Washington, D.C. for migrant and seasonal farmworkers. Thank you, Mr. Chairman, for the opportunity to testify about H.R. 2377.
Major agribusiness organizations are lobbying for radical changes in agricultural guestworker policy to allow employers to hire large numbers of unneeded temporary foreign workers under substandard wages and working conditions, with minimal government oversight.
No valid justification exists for a new agricultural guestworker program.
There is no actual or impending shortage of farm labor in the United States. We have not yet overcome the effects of granting immigration status to 1.1 million farmworkers under the 1986 immigration law. There is double-digit unemployment in many farm labor supply areas, including in Texas, Florida, and California. Washington State government reported that low wages in agriculture were partly due to a plentiful labor supply.
If there develops a tightening of the labor market in agriculture, agribusiness should respond by competing for workers: improving wages, conditions and recruitment techniques. Farmworkers' real wages have not even kept pace with inflation. Conditions have not improved. Rampant violation of labor rights is occurring. Agricultural employers have not adopted recommendations by government commissions on ways to stabilize the labor force.
Agribusiness has perpetuated a low-wage, high turnover strategy made possible by using farm labor contractors to increase their employment of vulnerable undocumented workers. A new guestworker program would create additional unauthorized migration.
There would be no farm labor shortage even in the unlikely event that the INS enforcement on the border and in the interior were to remove many undocumented farmworkers.
Moreover, the H-2A guestworker program -- which has been manipulated for many years for the benefit of growers -- continues to serve as a safety valve if shortages were to develop.
Its protections should be strengthened, not abandoned. Labor laws should be enforced more vigorously to allow law-abiding employers to remain competitive.
Agribusiness seeks a legislative exemption from the economic laws of competition at the expense of the poorest of the working poor. Congress should reject the industry's request.
WRITTEN TESTIMONY OF
BRUCE GOLDSTEIN
CO-EXECUTIVE DIRECTOR, FARMWORKER JUSTICE FUND, INC.
1111 19th Street, N.W. Suite 1000
Washington, D.C. 20036
before the
SUBCOMMITTEE ON IMMIGRATION AND CLAIMS
JUDICIARY COMMITTEE
HOUSE OF REPRESENTATIVES
SEPTEMEBER 24, 1997
My name is Bruce Goldstein. I am co-executive director of the Farmworker Justice Fund, Inc., an advocacy group in Washington, D.C. for migrant and seasonal farmworkers. Thank you, Mr. Chairman, for the opportunity to testify about H.R. 2377.
Introduction
Major agribusiness organizations have been lobbying Congress for radical changes to the H-2A temporary foreign agricultural worker program. Pending proposals in the House (H.R. 2377) and Senate (S. 169) would enable agricultural employers to bring in large numbers of temporary foreign workers with minimal government oversight. Standards for wages, housing and working conditions that exist in the current law would be substantially lowered or eliminated. No valid justification exists for a new agricultural guestworker program.
The agricultural employer groups variously claim that there is an actual or imminent shortage of citizens and authorized immigrants willing to do farm work. Contending that a majority of farmworkers are unauthorized immigrants, and that increased enforcement by the Immigration and Naturalization Service will reduce the farm labor force, the employers claim that they will lose much of their labor force. Agribusiness organizations also claim that the current H-2A agricultural guestworker program is too bureaucratic, slow and subject to litigation.
Farmworker advocates, supported by numerous government and academic studies, argue that there is no actual or impending shortage of farm labor in the United States. Rather, there is double-digit unemployment in farm labor supply counties. There would be no labor shortage even in the unlikely event that the INS enforcement on the border and in the interior were to remove many undocumented farmworkers. Moreover, the H-2A guestworker program - which has been manipulated for many years for the benefit of growers - continues to serve as a safety valve if shortages were to develop.
In any event, the issue is not a labor shortage; the issue is the level of wages and working conditions. Other industries that actually are facing a tighter labor market are responding by improving their job offers and their workplaces. Agribusiness, despite its years of predicting labor shortages, has not acted like an industry facing a labor shortage. Farmworkers' wages have
not kept pace with inflation. Conditions have not improved. Agricultural employers have not adopted recommendations by government commissions on ways to stabilize the labor force.
Rather, agribusiness has perpetuated a low-wage, high turnover strategy made possible by increasing employment of vulnerable undocumented workers. Now the industry wants legislation that would guarantee a constant flow of non-immigrant workers at inadequate wages and working conditions.
Agribusiness seeks a legislative exemption from the economic law of supply and demand at the expense of the poorest of the working poor. Congress should reject the industry's request.
A Brief Historical Background
The longstanding "plight" of migrant and seasonal farmworkers is associated with America's history of granting agricultural employers access to foreign workers, including slaves, contract laborers, newly-arrived immigrants and vulnerable undocumented workers. In California's large-scale agriculture, employers secured access to significant pools of foreign workers beginning in the mid-1800's. Chinese workers were eventually followed by Japanese, Filipino, and Mexican citizens, among others. At the turn of this century, Italian contract laborers worked in agriculture in the eastern United States under the padrone system. See Cletus E. Daniel, Bitter Harvest: A History of California Farmworkers, 1870-1941 (Univ. of Calif. Press 1981), ch. 2; Cindy Hahamovitch, The Fruits of Their Labor: Atlantic Coast Farmworkers and the Making of Migrant Poverty, 1870-1945 (Univ. of North Carolina Press 1997), ch. 2.
During the Great Depression's internal migration of native-born whites, made famous in John Steinbeck's Grapes of Wrath (1939), some observers thought that the farm labor force would stabilize and conditions would improve:
. . . "Okies" and "Texicans" were not another minority alien racial group (although they were treated as such) but American citizens familiar with the usages of democracy. With the arrival of the dust-bowl refugees a day of reckoning approaches for the California farm industrialists. The jig, in other words, is about up.
Carey McWilliams, Factories in the Fields: The Story of Migratory Farm Labor in California (1939) at 306; Daniel, at 283. Such optimism proved unfounded.
The guestworker system known as "the bracero program" began during World War II as a government-to-government agreement between Mexico and the United States. It was extended several times through congressional action until it ended in 1964 amid great controversy. The program was focused on California and states in the Southwest and Northwest. Between 4 and 5 million Mexican citizens were admitted on temporary visas as seasonal workers during the 22 years the program remained in place; at the peak, about 400,000 workers per year entered the country or had their status adjusted.
A large undocumented migration accompanied the guestworker program, leading to the massive enforcement effort in the mid-1950's known as "Operation Wetback." U.S. Commission on Agricultural Workers, Report of the Commission on Agricultural Workers (1992) at 17-19; Ernesto Galarza, Merchants of Labor: The Bracero Story (McNally & Loftin 1964), ch. 7.
Background on the H-2A Program
The present H-2A temporary foreign agricultural worker program originated in 1943. The United States Sugar Corporation gained government permission to employ Caribbean workers on temporary visas to hand-cut Florida sugar cane. This program later became know as the "H-2 program" after its subsection in the Immigration and Nationality Act of 1952. The H-2 program remained only a fraction of the size of the bracero program and stayed focused in sugar cane and east coast apples. Report of Commission of Agricultural Workers at 19-20; Alec Wilkinson, Big Sugar (Knopf 1989).
The Immigration Reform and Control Act of 1986 ("IRCA"), Public Law 99-603, amended the Immigration and Nationality Act to separate the agricultural and non-agricultural temporary foreign worker provisions into the H-2A and H-2B programs; to streamline the program's procedures for the benefit of employers; and to codify labor protections that the Department of Labor had issued as regulations. 8 U.S.C. §§ 1101(a)(15)(H)(ii)(A), 1184, 1188; 20 CFR Part 655 (Dept. of Labor regulations); 8 CFR § 214.2(h) (INS regulations). See House Judiciary Report No. 99-682(I) (July 16, 1986); Stephen Yale-Loehr, "Foreign Farm Workers in the U.S.: The Impact of the Immigration Reform and Control Act of 1986," 15 New York Univ. Review of Law and Social Change (1986-87) at 333.
The H-2A program's legal standards are discussed later in this article. Briefly stated, an employer seeking temporary foreign agricultural workers must apply for a labor certification from the Department of Labor that there is a shortage of labor for the employer's jobs and that the wages and working conditions offered would not adversely affect similarly employed United States workers.
Since the 1986 amendments, use of the H-2A program has changed. The Florida sugar cane companies, which had employed about 9,000 H-2A workers each year, gradually mechanized the harvest and then stopped using H-2A workers. The program continues to be concentrated in apples in several states on the east coast . It has expanded during the last 8 years to hundreds of tobacco growers in Virginia, North Carolina (where many cucumber growers also use the program), Kentucky, Tennessee and Connecticut, as well as others. About 1,500 sheepherders, mostly in the West, come in under the H-2A program.
The Department of Labor Employment and Training Administration ("ETA") estimated that it certified about 19,000 H-2A positions in 1996. It rejects very few H-2A applications filed by employers. However, very few employers, as a percentage of all agricultural employers, have attempted to use the H-2A program.
The H-2A program's failure to protect workers' labor standards and U.S. workers' jobs is discussed further below.
The SAW Amnesty Program and the Legalization of the Labor Supply
The immigration law of 1986 dramatically affected America's labor-intensive agricultural sector. IRCA offered a legalization, or amnesty, program specifically to ensure agribusiness access to experienced farm workers who had held undocumented, or unauthorized, immigration status. In return, agribusiness was expected to stabilize the labor force and end its addiction to foreign labor.
Under this "special agricultural worker" or "SAW" program, applicants had to show that they had worked at least 90 days in fruits, vegetables or other perishable commodities during the one year ending May 1, 1986. 8 U.S.C. § 1160; 8 CFR Part 210. Most of the SAWs became permanent resident aliens effective December 1990 and eligible for citizenship five years later. See Report of Commission on Agricultural Workers at 59-64; Philip L. Martin and J. Edward Taylor, "Introduction," in Martin et al., Immigration Reform and U.S. Agriculture (Univ. Of Calif. Div. Of Agriculture and Natural Resources, Publication No. 3358) (1995).
The SAW program granted permanent resident alien status to 1.1 million farmworkers. IRCA's "replenishment agricultural worker" or "RAW" program would have admitted additional "SAWs" had the Departments of Labor and Agriculture concluded that there was a shortage of seasonal farm labor. During the four-year RAW program that ended in 1993, those agencies annually determined that there was no labor shortage. See 8 U.S.C. § 1161. Commission on Agricultural Workers at 64-65; Martin et al. at 7.
In addition to the H-2A program amendments, the SAW program and the RAW program, another legacy of the 1986 immigration law was the U.S. Commission on Agricultural Workers ("CAW"). Although CAW's membership was dominated by employer representatives, its report and data yielded valuable information about farmworkers, an inadequately studied group.
The Economic Status of Migrant and Seasonal Farmworkers
Recent studies confirm that migrant and seasonal farmworkers -- the people who earn wages by planting, cultivating and harvesting our fruits, vegetables, nuts and horticultural varieties -- continue to be the poorest of the working poor. Perhaps more surprising, the treatment of farmworkers generally has worsened.
Researchers estimate that there are 1.6 million migrant and seasonal farmworkers (excluding livestock workers) in the United States.. Approximately half (800,000 to 900,000) are in California, vying for many fewer jobs. U.S. Department of Labor, Migrant Farmworkers: Pursuing Security in an Unstable Labor Market, Based on Data from the National Agricultural Workers Survey (NAWS), Research Report No. 5 (1994) at 2; Philip L. Martin, "California's Farm Labor Market and Immigration Reform," in U.S. Commission on Immigration Reform, Temporary Migrants in the United States (ed. B. Lindsay Lowell )(1996)at 200.
The California market is highly concentrated: "The largest 1,250 farm employers -- just 5 percent -- pay about two-thirds of California's farm wages." Id. at 201. More broadly, there has been a "weakening of family businesses nationwide" and "increasing numbers of highly capitalized, large scale units." CAW at 28.
Declining Real Wages and Earnings and Increasing Poverty Rates
Farmworkers' real wages have declined. An ongoing study of migrant and seasonal farmworkers commissioned by the Department of Labor recently found that "median personal incomes have remained between $5,000 and $7,500 since 1988, which means that personal incomes, in inflation-adjusted dollars, likely fell during this period." U.S. Department of Labor, A Profile of U.S. Farm Workers: Demographics, Household Composition, Income and Use of Services, Based on Data from the National Agricultural Workers Survey (April 1997) at 18.
The New York Times reported economists' assessment that farmworkers' real wages during the last twenty years have decreased by 20% or more. Steven Greenhouse, "U.S. Surveys Find Farm Worker Pay Down for 20 Years," New York Times, March 31, 1997 (exhibit 1 attached to this testimony). Time Magazine reported that California's strawberry workers experienced a decline in real earnings from $9.00 per hour a decade ago to $6.00 per hour in 1996 (November 25, 1996).
The Department of Agriculture, whose studies include higher-wage agricultural jobs, reported that real U.S. farm hourly wages between 1986 and 1991 decreased by 2 percent, and by 13 percent in California. CAW at 93-94.
According to the Commission, real farm wages peaked in 1977, then fell for 8 years, increased in 1986, and then sloped gently downward during the post-IRCA period." CAW (1992) at 95.
The Commission on Agricultural Workers found that the piece rates paid to farmworkers decreased between 1989 and 1991 by 10% and that hourly rates decreased by 6%. CAW at 97. Some wage rates increased, of course, but many did not. The Commission's case study of Florida vegetables found, "There has been no significant changes in piece rates for at least 10 years." CAW at 99. Obviously, workers earning such piece rates suffered decreased real wages. In California raisins, the average piece rate per tray was 16 cents in 1991, an increase of only 1 cent from 1986. CAW at 99. Philip Martin reported in 1995 that the raisin piece rate ranged from 15 cents to 18 cents per tray. Martin, California's Farm Labor Market and Immigration Reform, in Temporary Migrants in the United States at 203 (1996). This would suggest that between 1986 and 1995, some workers may have experienced a decline in the piece rate, some experienced no change, and perhaps some received an increase of 3 cents, or possibly an average annual increase of 2%, less than inflation.
Not surprisingly, then, the portion of farmworkers living below the poverty level has increased during the last few years to well over one-half the population. NAWS (1997) at 25.(1)
Farmworkers have devised various strategies to survive such incomes. Some sleep in pesticide-laden fields or caves, along river banks and in other unsafe and dangerous locations. Some farmworkers -- including many permanent resident aliens -- return to their homeland (usually Mexico) for part of the year. NAWS (1994) at 13-18. For this reason, one cannot assume that a farmworker arriving from Mexico to perform farmwork is unauthorized.
Unemployment and Underemployment: The Oversupply of Labor
Farmworkers continue to experience high unemployment and underemployment. There is no need for a guestworker program. The National Agricultural Workers Survey found that:
The U.S. farm labor system is characterized by an oversupply of workers. At any point in the year, there is a plentiful supply of farmworkers (at least 190,000, or 12% of farmworkers) in the United States who are not working. . . . Furthermore, there are many workers who are out of the country but may be available for work.
U.S. Dept. of Labor, "Migrant Farmworkers: Pursuing Security in an Unstable Labor Market, Based on Data from the National Agricultural Workers Survey (NAWS)," Research Report No. 5 (May 1994) at p. 38. The 1992 Report of the U.S. Commission of Agricultural Workers had earlier found a "general oversupply of farm labor nationwide" (p. xx) resulting in declines in real wages, annual earnings and living and working conditions for farmworkers. Id. at xxii. In pungent language, the U.S. Commission on Immigration Reform said the same thing:
. . . only 61 percent of farmworkers are employed in farm work. If the supply of illegal farmworkers dried up tomorrow (or if growers chose to stop hiring illegal workers), the supply of work-authorized farmworkers is ample, even in peak harvest months.
U.S. Commission on Immigration Reform, Legal Immigration: Setting Priorities (1995) at 173.
Employers for many years have been predicting labor shortages that have not materialized. Even agribusiness representatives admit, despite an alleged "feeling" that there will be labor shortages, in fact there are ample workers. See "Growers feel squeeze of tighter labor," Capital Press, Agriculture Weekly (Ore.-Wash. Ed.), July 18, 1997 at 1:
Washington State Farm Bureau official Julie Murray said this summer, "At $5 per hour, you're not being competitive.. . . If you raise wages, you get more workers."
Roy Gabriel, a long-time official with the California Farm Bureau, said, "We're not suffering from labor shortages, and no one's losing crops yet. But there is a great deal of anxiety about this."
"In Idaho, Farm Bureau officials say they haven't heard of any problems when it comes to labor."
"For now, there seems to be enough workers to harvest crops in Oregon, Schellenberg said." Don Schellenberg is an official of the Oregon Farm Bureau.
Rural unemployment rates remain stubbornly high in states that supply migrant farmworkers. A glance at rural America's unemployment rates reveals a shocking disparity in the effects of the national recovery that has brought the general unemployment rate down to the relatively low level of about 5%.
California
California state government data show high unemployment rates among citizens and legal immigrants in rural counties. Average unemployment rates in 18 farm labor counties in California during January 1996, June 1996, January 1997 and June 1997, respectively, were 17.6%, 13.3%, 16.8% and 12.4%. Some of the individual California county unemployment rates during the last two years were as follows:
Jan 1996 June 1996 Jan 1997 June 1997
Colusa County 32.7% 14.1% 31.4% 14.0
Fresno 16.5 12.4 16.2 12.4
Imperial 27.9 26.4 25.7 24.4
Kern 14.5 12.4 14.6 11.4
Monterey 19.3 8.2 18.4 7.2
San Joaquin 14.0 11.5 13.2 10.8
Tulare 19.0 15.1 18.6 13.9
A recent study of these statistics concluded:
As in 1995, we have found that the persistent high unemployment rates in these counties have shown little change, despite a broad-based economic recovery throughout the state in recent months, and despite the fact that labor -intensive acreage is up in many of these counties.
Mark S. Schacht and Cynthia L. Rice, "Joblessness in the California Heartland" (California Rural Legal Assistance Foundation, September 1997) (attached as exhibit 2).
A recent article in the Los Angeles Times examined these unemployment rates and their consequences. Experts predicted that the removal of many families from public benefits programs under the new welfare reform law will have serious negative impacts for such communities and could set off a major migration to urban areas in search of jobs. "To Phase Out Aid, Farm Belt Needs New Crop of Jobs," Los Angeles Times (June 2, 1997).
Texas
Texas historically has been a major supplier of migrant labor. The Texas Workforce Commission, in cooperation with the Bureau of Labor Statistics recently issued the following unemployment statistics for Texas counties where many farmworkers live and/or work (attached as exhibit 4). The data show the following:
Number Unemployed Percent Unemployed
Texas Counties Jan 1997 July 1997 Jan 1997 July 1997
Cameron County 16,266 17,543 12.9% 13.5%
El Paso County 34,646 34,900 11.8 11.7
Hidalgo County 43,580 33,142 21.7 17.8
Maverick County 7,140 3,574 35.3 21.9
Starr County 8,634 4,418 35.4 22.7
Val Verde County 2,578 1,860 13.9 10.3
Webb County 8,626 7,692 12.3 10.7
Willacy County 1,974 1,684 23.9 21.6
Zapata County 480 404 10.0 8.3
The McAllen, Texas newspaper recently wrote:
The effects of federal welfare reform are trickling down to the Rio Grande Valley. Nearly 22,000 resident aliens in the four-county area have lost their food stamp benefits. . . . That has resulted in increased demands on the Food Bank of the Rio Grande Valley, which helps distribute edibles to the needy. . . . [T]he demand on canned goods has been particularly acute, and the agency is calling on groups and businesses to sponsor food drives to increase stocks. This is the first time it has made a special call for such efforts.
The impact has been particularly strong in Hidalgo, Cameron, Willacy and Starr counties.
"Food Bank Issues Call for Donations of Canned Goods," The Monitor, Sept. 9, 1997 at p. 1A.
Jobs are difficult to find and they are often pay below $5.00 per hour. The following table describes migrant and seasonal farmworkers who applied for job referrals and other services through the United States Employment Service offices in Texas between July 1, 1996 and June 30, 1997.
Farmworker Applications to Job Service in Texas and Results
Number Percentage
Applications 31,283 100%
Referred to Jobs 9,431 30.15%(2)
Placed in Jobs 4,816 15.39%
Placed in Agricultural Jobs 2,764
Placed in Non-Agric. Jobs 2,325
Wage Under $4.75/hour 1,264
$4.75 to $4.99 2,698
$5.00 and over 1,185
Source, U.S. Department of Labor, Employment and Training Administration- Texas Workforce Commission data (attached in Exhibit 4). See also, "Migrants Wait for Work: Need for Farm Workers Keeps Dwindling," Herald, Brownsville, Texas, June 4, 1997.
Florida
Florida's farmworkers, many of whom migrate to locations in the Midwest and the East Coast, also have lacked adequate jobs in and out of Florida. In major agricultural counties, unemployment rates are extraordinarily high, especially during the summer (the off-season for the state's huge citrus harvest), when northern employers from Georgia to Maine need workers.
SOUTH-CENTRAL FLORIDA UNEMPLOYMENT RATES
JULY 95 JULY 96 JAN. 97 JULY 97
Hendry County 26.1% 24% 9.2 23.7%
Hardee 19.0 19.0 10.2 16.6
St. Lucie 17.5 17.7 10.3 13.7
Okeechobee 13.5 13.7 9.0 9.3
Indian River 14.5 13.8 6.9 11.4
Highlands 12.0 13.0 6.9 12.9
Glades 12.6 13.0 8.3 12.9
Martin 8.0 8.0 8.0 6.9
DeSoto 9.7 10.4 5.2 9.8
Source: Florida Department of Labor and Employment Security, Bureau of Labor Market Information, and Florida Legal Services, "Despite a Strong Economy, Unemployment Remains High in Florida's Citrus Belt" (1997) (attached as exhibit 3).
Some Florida counties, such as Palm Beach County and Dade County, have lower overall unemployment rates of between 6% and 8% due to the availability of non-agricultural work , but the many farmworkers who live or work in those counties experience disproportionately high unemployment and underemployment.
The welfare reform law is placing pressure on Florida's farm labor market by either forcing welfare recipients to seek farm jobs or causing former farmworkers to return to agricultural work. For example, Chinisher Lane, a 28-yearold Pahokee, Florida woman who had been receiving welfare benefits began searching for work. Because she could not find work at fast food restaurants, she turned to agricultural work. "For eight months, she picked radishes for $4.80 [per] hour and could earn more by working extra time." Note, however, that as an agricultural worker, she was not entitled to time-and-one-half-pay for such overtime work. See, "In Search of Openings: Rural Recipients of Welfare Hunt for Elusive Jobs," Florida Sun-Sentinel (August 18, 1997).
A fundamental problem is that the advantages of foreign guestworkers and unauthorized immigrants often cause employers to discriminate against U.S. farmworkers.
This summer, a Florida vegetable grower, Pero Family Farms, filed an application seeking 370 H-2A workers claiming that it did not have sufficient numbers of citizens or legal immigrants applying for jobs. As part of the application process, Pero Farms was obligated to recruit workers in Florida. Sufficient workers applied and Pero Farms withdrew its H-2A application. However, several U.S. workers charged that Pero Farms had discriminated against them during the hiring process due to a preference for foreign workers, and the State of Florida has issued a decision to terminate public employment services to the company due to its violations of the law. As a Palm Beach Post editorial wrote after the incident: "A Palm Beach County farm's experience shows that failure to find home-grown employees usually is just a dodge." (3)
Washington State
A Washington State government report reveals that there are twice as many workers as jobs in agriculture.
While there was an average of 67,100 jobs for hired farm workers in 1995, the CWBH database, which tracks workers by individual social security number, reveals that those jobs were filled by approximately 139,000 workers.
Washington State Employment Security, Agricultural Work Force in Washington State 1996 at 21 (June 1997) (attached as exhibit 5). The State concluded that farmworkers average earnings are low "because many agricultural jobs are relatively unskilled [and] there is normally a plentiful supply of workers at relatively low wage rates." Id. at 20.
The lack of work also poses a problem for workers seeking unemployment compensation. In Washington State, workers need 680 hours of work in covered employment to secure unemployment compensation. "However, it is difficult to find 680 hours of work in seasonal agricultural jobs, so to qualify most farm worker need jobs in other industries as well." But only 30% of farmworkers also obtained a nonfarm job. Id. at 22.
The most recent report also noted the high employee turnover in agriculture: "many workers leave farm work because of relatively low wages and uncertain hours of work." Id. at 24. The size of the labor supply, however, grew slightly between 1990 and 1995. Id.
One year earlier, the conditions in Washington State were similar. The State report then said:
Average earnings of farm workers are low relative to those of most other workers for a variety of reasons. First there is a large supply of workers available for much of the farm work which can be learned on the job in a relatively short period of time. Then there is the seasonal nature of many agricultural jobs. Seasonal workers are often not employed full time even during harvest periods.
Washington State Employment Security, Agricultural Employment in Washington State 1995 (Published May 1996) at 19.
Average annual earnings for crop workers decreased slightly in 1995 to $6,664. Average number of hours worked annually also dipped. June 1997 Report at 22. Average wage rates for workers in vegetables, berries, grapes and tree fruits ranged between $7.12 per hour and $7.45. Id. at 23. Nursery production workers averaged $8.70 per hour apparently because most nurseries "are located in western Washington where growers must compete with higher paying nonfarm employers for workers." Id. (1995 Report) at 21. Thus, the competition for labor that produces higher wage rates for agricultural workers does not exist as much in the eastern part of the state, where there are lower wages.
Illegal Employment Practices in Agriculture
An industry widely known for mistreatment of its employees cannot expect to attract and retain workers. Agriculture's reputation is one of rampant violations of minimum wage and other basic protections.
In 1995, the Department of Labor's Wage and Hour Division conducted just 2376 investigations under the Agricultural Worker Protection Act (about half the number conducted a decade earlier), but found violations in 1337, or 63%, of those cases. U.S. Department of Labor, Wage and Hour Division, Selected Farm Labor Statistics, Fiscal Year 1995.
Even the Commission on Agricultural Workers, led by the president of the California Farm Bureau, said, "The Commission was made aware of numerous violations of worker protective statutes in both research and hearings. Clearly this must stop." Rep. at xxx.
The Helsinki Commission recommended major improvements in labor law enforcement in agriculture. Commission on Security and Cooperation in Europe, Migrant Farmworkers in the United States (May 1993) at v-vii.
Wages are not paid. Social Security deductions are not sent by employers to the Social Security Administration. Housing is non-existent, decrepit or reminiscent of concentration camps (the Westover Camp on the eastern shore of Maryland was a World War II prisoner-of-war compound). Farmworkers are forced to pay exorbitant prices for food and other items provided by contractors and growers. Many farmworkers are killed or injured while being transported in unsafe, uninsured motor vehicles. Toilets are not provided in the fields when required. Sexual harassment occurs on the job. Women are denied access to jobs: for example, the H-2A temporary foreign worker program is 100% male. The list goes on.
Under-Utilization of Public Benefits
Agricultural employers historically have enjoyed subsidies in the form of public benefits provided to farmworkers due to their low incomes. Yet through all their adversity, farmworkers continue to under-utilize government services and public benefits. DOL's study found that only 20% of farmworkers (citizens and authorized immigrants) reported using Food Stamps and only 20% used Medicaid, but even fewer used cash assistance programs or the WIC Program (Special Supplemental Food Program for Women, Infants, and Children). NAWS (1997) at 29.
The 1996 welfare reform law -- which restricts access to public benefits generally but especially for legal immigrants -- will have a substantial effect on permanent resident alien farmworkers. Although most of the 1.1 million SAWs under the 1986 immigration amnesty became permanent resident aliens as of 1990 and are now eligible for citizenship, farmworker advocates expect that their clients' naturalization rates will remain low in part due to economic, geographic and logistical obstacles. Such persons ordinarily come within an exception to the welfare law's anti-immigrant provisions based on their long work experience in the United States, but many will have difficulty proving their employment history due to the employers' failure to report earnings to the Government.
Expansion of Agribusiness Production
Farmworkers' conditions may have deteriorated but the production of labor-intensive fruits and vegetables in the United States has been expanding for 25 years. An economist who works for the law firm that has been lobbying for a new guestworker program on behalf of the National Council of Agricultural Employers and other groups conceded:
With rising incomes worldwide, and changes in consumers' tastes and preferences favoring fruits and vegetables, the demand for labor intensive agricultural commodities is growing rapidly. The United States agricultural producers have participated in that growth. The 1992 United States Census of Agriculture reported that fruits, vegetables and horticultural specialties accounted for more than $23 billion of agricultural sales in 1992, a 32 percent increase from that reported in the previous agricultural census five years earlier. Most economists expect demand for labor intensive agricultural commodities to continue a strong growth pattern.
Statement of James S. Holt, Senior Economist, McGuiness & Williams, Hearing before the Subcommittee on Immigration and Claims of the Committee on the Judiciary, House of Representatives, "Guest Worker Programs," December 7, 1995, 104th Cong., 1st Sess. at 178.
Despite increased international competition, exports in labor-intensive crops have been growing. For example, between 1970 and 1991, U.S. vegetable exports grew 5 percent per year to reach $1.8 billion. The real value of fruit and tree nut exports grew 4 percent per year during the same time to reach $2.1 billion. Hamm, Oliveira, Zepp and Duffield, "Trends in Labor-Intensive Agriculture," in Philip L. Martin, et al., Immigration Reform and U.S. Agriculture at 39-40, 47-48 (authors are USDA employees).
Rarely does an employer admit that it can afford a wage increase, and agribusiness is no exception. But the industry can afford to treat its workers better. The slight price increases that might result from improving the wages and working conditions of the people who harvest our food can be absorbed by the industry and consumers. Mechanization of tasks might occur in some crops if labor costs were to rise, but the result can be to replace low-skilled work with better-quality, higher paying agricultural jobs. See Philip Martin, "California's Farm Labor Market and Immigration Reform," in U.S. Commission on Immigration Reform, Temporary Migrants in the U.S. at 207 (1995), Wallace Huffman and Alan McCunn, "How Much is that Tomato in the Window?: Retail Produce Prices Without Illegal Farmworkers," (Center for Immigration Studies 1996).
The United Farm Workers, for example, has argued that California strawberry workers' wages could double if consumers paid 5 cents more per pint of strawberries in the store and the price increase was passed on to the growers and shippers.
The Labor Contractor System: Destabilizing the Labor Supply
Growers' use of farm labor contractors, or "crewleaders," to recruit, hire, transport, house and supervise farmworkers has been a long standing problem and has been getting worse. The use of labor contractors spread as agricultural employers sought to evade the 1986 immigration law's "employer sanctions" against hiring vulnerable undocumented workers.
Use of labor contractors has been associated with low wages, bad working conditions, illegal employment practices, high turnover, use of unauthorized immigrants and even slavery. Philip L. Martin and J. Edward Taylor, Merchants of Labor: Farm Labor Contractors and Immigration Reform (The Urban Institute 1995) at 15.; Report of Commission of Agricultural Workers 119-125, 135; U.S. Department of Labor, U.S. Farmworkers in the Post-IRCA Period, Research Report No. 4, National Agricultural Workers Survey, March 1993 at 34; Steven Greenhouse, "3 Plead Guilty to Enslaving Migrant Workers in South Carolina," The New York Times, May 8, 1997 at p. A20.
Many growers hope to keep their labor costs low by hiring labor contractors and then disclaiming any responsibility as an "employer" for the inevitable labor law violations. The courts have usually, but not always, rejected such shams and found that growers are indeed employers of their farmworkers. Recent cases holding that a grower and a labor contractor jointly employed the farmworkers and were jointly responsible for complying with the minimum wage include Antenor v. D&S Farms, 88 F.3d 925 (11th Cir. 1996) and Torres-Lopez v. May, 111 F.3d 633 (9th Cir. 1997). The Department of Labor recently updated its "joint employer" regulation to clarify court decisions during the last 14 years and provide employers with greater certainty. See 20 C.F.R. § 500.20 (as amended March 12, 1997). Agribusiness has responded to these developments with a bill offered by Rep. Canady of Florida, H.R. 2038 (June 25, 1997), to substantially weaken existing law regarding labor contractors, transportation safety and farmworker housing.
The crewleader problem has been getting worse. The "major farm labor story of the 1980s and 1990s is the growing importance of [farm labor contractors] in seasonal labor
markets." Fifty percent or more of California's seasonal farm jobs are now filled through farm labor contractors, rather than through direct hiring. Philip L. Martin and J. Edward Taylor, Merchants of Labor: Farm Labor Contractors and Immigration Reform (The Urban Institute 1995) at 6, 15; Report of the Commission on Agricultural Workers (1992) at 135.
Increased Use of Undocumented Workers
Agricultural employers' use of unauthorized immigrants is increasing. A Department of Labor study concluded that the percentage of undocumented farmworkers had risen from about 7% just after IRCA took effect to about 37% during 1994. See NAWS (1997) at 33. Employers claim that the percentage is much higher.
Hypocrisy is evident in the growers' statements about undocumented workers. The employers claim that they can detect fraudulent proof of immigration status or citizenship for purposes of their self-serving estimates of the percentage of unauthorized workers in the labor force. Yet they claim that they are not violating the law against hiring unauthorized immigrants because they don't know whether the documents are fraudulent. (In addition, many growers claim that their farm labor contractors are solely responsible for hiring the unauthorized workers.)
While we all can agree that the employers are hiring more undocumented workers, there is not much evidence to support their claim that the supply of undocumented workers is about to dry up.
The principal author of the immigration legislation of 1996, Rep. Lamar Smith, has criticized this prediction: "if the immigration reform bill works beyond our wildest dreams," it would only reduce "the number of illegal aliens coming into the country in half," and there would not be a "significant impact" on the farm labor force. "Agricultural Guest Worker Programs," Joint Hearing before the Subcommittee on Risk Management and Specialty Crops of the Committee on Agriculture and the Subcommittee on Immigration and Claims of the Committee on the Judiciary, House of Representatives, 104th Cong. 1st Sess., Dec. 14, 1995, at 54. The number of deportations, which indicates the Government's ability to remove undocumented workers from the labor force, is expected to remain under 100,00 nationally, and relatively few occur in agriculture.
There is no end in sight to employers' hiring of undocumented workers. Fear of the 1986 law's employer sanctions did not prevent such employment and it is highly doubtful that the 1996 law will change that fact. The undocumented workers' vulnerability is an irresistible attraction for agricultural businesses.
Undocumented Worker Status v. Guestworker Status
One can purposelessly and endlessly debate who is treated worse (or better): undocumented farmworkers or guestworkers. It is a false choice and one that workers should not have to make. But the growers often contend that guestworkers are better off, and their opinion is not necessarily correct.
Under the bracero program, "The Wetback [undocumented worker] himself as he gained experience was constantly shopping in the black labor market, for he generally considered himself a "libre" (free worker) in contrast with the bracero, who was restricted to a named employer" and who was paid according to a "uniform wage level . . . set by the associations to keep good neighbors from under cutting one another. . . ." Galarza, Merchants of Labor at 58.
Some Remedies to Meet Growers' Needs and Improve Farmworkers' Lives
Growers Should Compete for Labor in the Modern Economy
Agribusiness must stop engaging in a low-wage, high-turnover strategy based on new migrations of foreign labor. Studies of farm labor have been remarkably consistent in their recommendation that agribusiness should be expected to compete in the United States to attract and retain workers. The President's Commission on Migratory Labor in 1951 concluded,
We have used the institutions of government to procure alien labor willing to work under obsolete and backward conditions and thus to perpetuate those very conditions.
Migratory Labor in American Agriculture (1951) at 22-23.
Forty-one years later, the U.S. Commission on Agricultural Workers concluded that American agriculture must "modernize" and "improve its labor management practices" to develop "a more structured and stable domestic agricultural labor market with increasingly productive workers." CAW at xxxi and 139. Decent wages and working conditions, provision of housing, and incentives to return the following season would enable growers to attract and retain its labor force.
Labor Unions and Collective Bargaining
Labor organizing has probably served farmworkers better than any other solution to their problems. Collective bargaining agreements, though too few in number, have improved wages and working conditions and increased job security. See generally, Maralyn Edid, Farmworker Organizing: Trends and Prospects (Cornell Univ. ILR Press 1994).
. Agricultural labor unions, like many others, have suffered serious setbacks, but the future may be brightening. Organizing campaigns by the United Farm Workers and the Farm Labor Organizing Committee, both supported by the AFL-CIO, and other organizations, offer some modest hope that the targeted employers will come to the bargaining table. The UFW's strawberry workers campaign in California has drawn significant attention from workers, the public and the media. Success in that effort and others could make a significant difference in the lives of farmworkers at the affected employers and at non-union employers.
Guestworker programs impede this important method of improving farmworkers' lives because temporary foreign workers have limited economic and immigration-law rights and work in fear. Indeed, the current guestworker proposals are in part a response to union organizing. One of the signatories to an August 1997 letter to members of Congress requesting support of guestworker legislation is Mt. Olive Pickle Co. of Mt. Olive, North Carolina, a major processor of cucumbers. Mt. Olive does not employ any farmworkers, but the growers who supply the company with cucumbers are the subject of a union organizing campaign by the Farm Labor Organizing Committee, led by Baldemar Velasquez. See "Union Targets Pickle Plants: Mount Olive migrant workers focus of organizing," The News and Observer (Raleigh, North Carolina), May 29, 1997. Mt. Olive apparently agrees that guestworker legislation could help thwart the labor organizing campaign.
Enforce the Labor Laws
How can we simultaneously (1) limit illegal immigration, (2) improve farmworkers' conditions, and (3) stop law-abiding employers from suffering unfair competition? Enforce the labor laws.
More vigorous enforcement of the minimum wage requirement and other employment laws would reduce employers' incentive to hire undocumented workers and therefore help limit illegal immigration. See, e.g., Demetrios Papademetriou, "A Solution Under Our Noses: To control illegal immigration enforce the labor laws," Washington Post op-ed page, August 6, 1997. Congress apparently accepted this concept and, after years of declining resources, the Wage and Division received a modest increase in funding for labor law enforcement in high-immigration states. With only 950 investigators nationwide, however, the Labor Department's impact will be very limited.
Law-abiding employers benefit by more effective labor law enforcement. When Congress passed the minimum wage law in 1938 it declared that substandard labor conditions constitute "an unfair method of competition in commerce." 29 U.S.C. § 202(a)(3); United States v. Darby, 312 U.S. 100, 115 (1941). Growers who comply with the law should not have to compete against law-breakers.
The Department of Labor's unwillingness to enforce the protections for U.S. and foreign workers under the H-2A program led the Helsinki Commission to recommend its abolishment.
Absent that, the Helsinki Commission said, "If the program is to continue, the Department of Labor must be required to improve enforcement of existing protections and revise policies to prevent future abuses." Neither recommendation has been followed. Commission on Security and Cooperation in Europe, Migrant Farmworkers in the United States (1993) at v.
Recommendations About Guestworker Programs
Just as there is no shortage of workers willing to perform low-wage farm work, there is no dearth of timely recommendations against a new guestworker program.
First, the November 1992 Report of the U.S. Commission on Agricultural Workers specifically recommended against any new guestworker or supplemental labor program. Its conclusions were bolstered by a thick volume of academic studies that it funded and an equally thick book containing the transcripts of hearings held around the country. The Commission, although dominated by agribusiness representatives, recommended that growers modernize and improve employment policies to attract and retain U.S. farmworkers. The Commission concluded that stabilization of the workforce would be repaid with increased productivity that would improve employers' international competitiveness. See Report at xxxi, 133, 135, 139.
Second, the U.S. Commission on Immigration Reform in 1995 (then chaired by Barbara Jordan) considered the agricultural guestworker issue and "unanimously and strongly agree[d] that such a program would be a grievous mistake," due to the oversupply of authorized U.S. farm labor, high unemployment and underemployment among farmworkers, inadequate wages and working conditions, and the fact that guestworker programs increase unlawful immigration. That commission also said:
If the supply of illegal farmworkers dried up tomorrow (or if growers chose to stop hiring illegal workers), the supply of work-authorized farmworkers is ample, even in peak harvest months.
U.S. Commission on Immigration Reform, Legal Immigration: Setting Priorities at 173 (June 1995). Confirming that guestworker programs produce illegal immigration, that Commission said, "'temporary' guestworkers tend to become permanent residents, de facto or even de jure." Id.
The following year the U.S. Commission on Immigration Reform published a series of papers in which several authors criticized the H-2A program for failing to protect workers. No support for a new guestworker program was offered and any policy responses which were discussed differed markedly from those sought by agribusiness. See, e.g., David S. North, "Some Thoughts on Nonimmigrant Student and Worker Programs" (recommending against any agricultural guestworker program); Philip Martin, "California's Farm and Labor Market and Immigration Reform," in U.S. Commission on Immigration Reform, Temporary Migrants in the United States (1996).
Third, a Congressional Research Service report to Congress on the agricultural guestworker issue noted "the lack of evidence that a labor shortage exists" as one indication that Congress would not act to expand the use of agricultural guestworkers. (The other indication was "past opposition by both the Administration and the Chairman of the House Judiciary Immigration Subcommittee.") Joyce C. Vialet, Maria D. Gutierrez, "Immigration: The 'H-2A' Temporary Agricultural Worker Program," Congressional Research Service (July 18, 1997).
Fourth, this month (September 1997), the Bi-National Study on Migration issued its report, Migration Between Mexico and the United States, in which it recommended against a new guestworker initiative. It specifically noted that illegal immigration tends to supplement, not be replaced, by guestworker programs.
Another major report ordered by Congress is forthcoming. By December 31, 1997, the General Accounting Office of Congress will report the results of a study of the H-2A guestworker program. In 1996 Congress ordered the GAO to analyze the ability of the H-2A program to meet the needs of employers and protect the rights of workers in the event of a significant labor shortage. The introduction of legislation for a new guestworker program prior to the GAO report is, among other things, premature.
The H-2A Program: The Current Procedures and Requirements
The agribusiness proposals seek "radical reform" in the H-2A program or an entirely new program.(4) The present H-2A program is based on the 1986 immigration act but many of the provisions existed under the earlier H-2 and bracero programs.
The H-2A law and regulations recognize problems inherent in guestworker programs, especially those concerning low-wage, low-skill jobs. Guestworkers hold temporary "non-immigrant" status. They are tied to their employer and ordinarily
must leave the country when their job ends. They almost always come from poorer countries and view almost any
American wage as advantageous. Such temporary foreign workers generally do what they are told without complaint.
Consequently, guestworkers are an easily controllable, highly productive labor force. With these and other advantages,
employers often prefer guestworkers over U.S. workers.(5)
To deter employers from exploiting the advantages of hiring guestworkers, the H-2A law requires employers to apply to the
Department of Labor for a labor certification stating that there is a shortage of labor and that the wages and working
conditions offered by the employer will not "adversely affect" the wages and working conditions of similarly employed
U.S. workers. 8 U.S.C. §1188(a)(1).
The H-2A application must be filed at least 60 days before the first date of work. DOL examines the employer's job offer and, within 7 days, determines whether it meets the law's standards. During the next 33 days or so, the employer is obligated to recruit workers. Twenty days before the date of need the DOL must determine the extent of any labor shortage and, if one exists, issue the labor certification to fill the job vacancies. The employer then arranges for the INS visas and delivery of them by the American consulate in the appropriate country (usually Mexico or Jamaica) to the waiting workers.
Several specific measures exist to prevent employers from creating artificial labor shortages, discriminating against U.S. workers, or exploiting the foreign workers.
One of the most basic protections is the employer's obligation to disclose all material terms of the employment during recruitment and comply with those terms. Workers have an employment contract. This is probably why guestworkers historically have been called "contract workers." The workers currently have the right to go to state court or the Department of Labor to enforce their work contracts. See 8 U.S.C. §1188(f)(2); 29 C.F.R. Part 501.
In addition, employers who claim a labor shortage are supposed to recruit workers using private-market methods as well as the interstate job service. 8 U.S.C. § 1188(b)(4). The regulations contain a job preference which requires employers to hire qualified U.S. workers who apply by the season's mid-point (even if it would require displacement of the foreign worker). This so-called 50% rule was the subject of a Congressionally-mandated study which concluded that the rule provided U.S. workers with important job protections at minimal costs to employers. 8 U.S.C. § 1188(c)(3)(B); 20 C.F.R. § 655.103(e).
Employers must provide free housing; reimburse the in-bound transportation costs of workers who complete half the season; and pay for the return trip home upon completion of the season. The three-fourths guarantee requires that workers be offered work for at least three-fourths of the stated season (absent an "Act of God"). It assures workers of a reasonable minimum amount of work opportunities for their long-distance travel, and dissuades employers from recruiting too many workers to drive down wages. See 20 CFR § 655.102(b). Workers may not be discharged in the absence of a job-related reason. Id. at § 655.103(b)-(c). Although domestic farmworkers are covered by the Migrant and Seasonal Agricultural Worker Protection Act, 29 U.S.C. § 1801 et seq., which is the principal employment law for farmworkers, that law excludes from coverage H-2A workers. Id. at §1803(10)(B)(iii).
The wage must be the higher of the state or federal minimum wage, the local "prevailing" wage rate for that work, or the "adverse effect wage rate" (the average agricultural/livestock worker wage as determined in regional surveys by the Department of Agriculture). Id. at § 655.102(b)(9).
The H-2A Program in Reality: A History of Abuses
Employers' criticisms of the H-2A program largely are baseless. Indeed, these criticisms ordinarily are made by (a) employers who have consistently secured approval for guestworkers for many years, even when no credible person offered the argument that there was a labor shortage, or (b) employers who have never applied for H-2A workers.
DOL routinely approves illegal job offers and ignores mistreatment of U.S. workers by employers who blatantly prefer guestworkers. We recognize the growers' valid concern over the lack of certainty on a few policy issues, but the employers have successfully taken advantage of almost every ambiguity.
Highly-paid lawyers and consultants for the growers have devised clever techniques to circumvent the law and DOL generally has let them get away with it. For example,
Season lengths have been manipulated to discourage longtime U.S. workers from wanting the jobs in the first place, and to prevent workers from "completing the season" so that they can be denied the transportation funds to which they are entitled.
Despite using labor contractors to find foreign workers, the growers, with DOL's permission, do not use labor contractors to secure U.S. workers and engage in no other meaningful recruitment.
H-2A employers only hire male foreign workers and discriminate on the basis of sex in the hiring of U.S. workers as well.
Growers are permitted to impose special "qualifications" and "productivity standards" on U.S. workers once they decide to seek foreign workers so that they can find justifications for rejecting or firing the U.S. workers.
Several former federal and state officials who have acceded to growers' demands have left government to work as consultants to the H-2A growers, including as paid expert witnesses in litigation, to facilitate such scams. The person who headed the H-2A program at DOL from 1982 through 1994, John Hancock, retired in 1995 from the agency and less than one year later testified as a consultant for the H-2A growers' lobbying firm in a hearing jointly sponsored by this Subcommittee. See December 14, 1995 Hearing on Agricultural Guestworker Programs at 81. Undoubtedly, others in the program know that they can expect to be hired by the growers if they are deemed acceptable during their government tenure.
Abuses by employers and the Government under the H-2A program have been documented in official reports. See General Accounting Office, Foreign Farm Workers in U.S.: Department of Labor Action Needed to Protect Florida Sugar Cane Workers (GAO/HRD-92-95) (June 1992). The H-2A program has been the subject of litigation by employers as well as farmworkers, who have won millions of dollars in backpay from H-2A employers. See, e.g., Frederick County Fruit Growers Association v. Martin, 968 F.2d 1265 (D.C. Cir. 1992) (in suit brought by H-2A growers, court awarded farmworkers backpay on counterclaim). The public has learned about the H-2A program through numerous media reports, documentary films such as Stephanie Black's "H-2 Worker" (which won a Sundance Film Festival Award), and even a novel by Carl Hiassen, "Striptease," which became a movie featuring actress Demi Moore.
Rather than repeat recent testimony about the H-2A program, we refer the Subcommittee to testimony in three recent hearings before this Subcommittee (December 7, 1995), before this Subcommittee and the Subcommittee on Risk Management and Specialty Crops (December 14, 1995) and the Senate Subcommittee on Immigration (September 28, 1995), especially testimony by Dolores Huerta, Robert A. Williams, Mark S. Schacht, and Bruce Goldstein. (6)
There are many examples of recent abuses, including the case of Pero Family Farms mentioned above. Of special concern is the spread of the practices of the North Carolina Growers Association, whose executive has set up additional corporations to secure foreign workers in other states as well, using the same tactics that should have been stopped a long time ago.
The Farmworker Justice Fund, in January 1994 submitted extensive recommendations to the Department of Labor to reform the H-2A program to protect U.S. workers and temporary foreign workers. None of those recommendations has been adopted. Instead, the Department has weakened protections based on growers' demands to reduce "red tape."
Farmworkers' lawyers have played a major role in minimizing the damage caused by government's inappropriate conduct, but they are a declining population due to cutbacks in funding and permissible activities for the Legal Services Corporation .
The "Monitor Advocates" inside the U.S. Employment Service, which includes the Department of Labor and state employment security agencies, are supposed to ensure that farmworkers are referred to jobs in compliance with the law, including under the H-2A program. See 20 C.F.R. § 658.602-658.605, 658.702. This system was established after litigation in the early 1970's established that the Department had discriminated against farmworkers in the provision of services. See Ronald L. Goldfarb, Caste of Despair (1981) (Goldfarb was appointed the court monitor in the NAACP v. Brennan case that caused the establishment of the Monitor-Advocate system).
The Monitor-Advocate system has failed to prevent major abuses. On April 17, 1996, a consultant, the Technical Assistance and Training Corporation, issued a "draft" report to DOL concluding that the agency had relegated the Monitor Advocates to meaningless status with no resources. DOL never permitted the consultant to issue a final report, however, and has not responded to the strong criticisms or recommended solutions in the report. See "Monitor Advocate Program Review Report" (April 17, 1996). Thus, multiple levels of watchdogs have been unable to persuade DOL, especially the Employment and Training Administration, to comply with the law.
We are hopeful that the upcoming General Accounting Office report on the H-2A program will inform Congress of some of the problems that workers have under the program and recommend solutions.
The Growers' Legislative Proposals
Guestworker Proposals Defeated in 1995-96
In the 104th Congress, agribusiness unsuccessfully sought a new guestworker program. At the request of the National Council of Agricultural Employers, the California Farm Bureau, the Florida Fruit and Vegetable Association and others, hearings were held in both houses of Congress in late 1995. In 1996, Congressional supporters of the employers proposed legislation that would have been included in the 1996 immigration act.
Sen. Larry Craig of Idaho introduced a bill to "reform" the H-2A program in drastic ways but made no progress last year. See S. 2174, 142 Cong. Rec. S11973-02.
Rep. Richard Pombo of California and Rep. Saxby Chambliss of Georgia, among others, led the fight in the House for a new "pilot program." In early 1996, the Agriculture Committee voted in favor that proposal but imposed a limit of 250,000 temporary foreign farmworkers. The proposal was treated by the Rules Committee as a proposed amendment to the immigration legislation.
The Clinton Administration threatened to veto the entire immigration bill if the Pombo/Chambliss guestworker proposal was included, but promised to consider ways to "streamline" the H-2A program to aid the growers. The Administration believed that there was an adequate supply of farm labor, that the proposal would weaken wage and other protections for U.S. farmworkers, and that it would actually increase illegal migration. Guestworker programs enable foreign workers to establish networks inside the United States that can facilitate illegal migration. In addition, some guestworkers overstay their visas. When guestworker programs become concentrated in geographic areas (as the H-2A program has), they tend to restrain wage increases and the employment terms therefore attract mostly guestworkers and unauthorized immigrants.
On March 21, 1996, the House debated the amendment and defeated it by a margin of 242-180. Cong. Rec. H2605-2621. Rep. Lamar Smith, the Republican who chairs the immigration subcommittee and is a strong immigration restrictionist, opposed the amendment and 75 Republicans joined him. He and Rep. Robert Goodlatte of Virginia supported an alternative guestworker proposal. That amendment would have altered the H-2A program and placed a 100,000 worker annual cap. It was unacceptable to both agribusiness and farmworker supporters, and that amendment was defeated by an even larger margin. H2621-2626.
Current Legislative Proposals in the 105th Congress
Nothing that occurred between 1996 and 1997 would justify a reconsideration by Congress of guestworker issues except intense lobbying by agribusiness. Such lobbying, however, has been enough. Two proposals have been made, one in the House and one in the Senate. We understand that Rep. Saxby Chambliss (a co-sponsor of the House bill) intends to offer yet another guestworker proposal, called the Farmers' Temporary Employee Assistance Act.
Senator Craig's Bill: S. 169
In the 105th Congress, Sen. Craig introduced S.169, named "The Agricultural Work Force Stability and Protection Act." (January 21, 1997). It would amend the H-2A program for the benefit of employers by, among other things:
eliminating the safeguards against false claims of labor shortages,
lowering wage rates for both U.S. farmworkers and guestworkers
exempting employers from state minimum wage laws
ending the housing requirement,
overriding state and local housing codes,
ending the 50% rule job preference for U.S. workers,
in effect ending the minimum work guarantee,
granting employers, but not affected workers, expedited appeals of decisions
prohibiting effective judicial and agency oversight.
This completely one-sided bill would further de-stabilize the U.S. farm labor force and permit exploitation of hundreds of thousands of vulnerable guestworkers, as there would be no numerical limitation. Senator Spencer Abraham, the chair of the immigration subcommittee, has not revealed a public opinion about that legislation. No hearings have been held on the bill.
Rep. Bob Smith's Bill: H.R. 2377
Rep. Robert Smith of Oregon on August 1, 1997 introduced H.R. 2377 to create an H-2C program. The bill is very similar to the proposed "pilot program" in the 1996 Pombo/Chambliss amendment that was defeated on the House floor by 62 votes on March 21, 1996 during the immigration law debate.
The major difference between last year's bill and this year's proposal is that the new bill nominally would be a 24-month pilot program limited to 25,000 visas per fiscal year. Due to the availability of visa extensions, in the third fiscal year there could be 75,000 guestworkers in U.S. agriculture, in addition to the guestworkers under the H-2A program. The H-2A program currently approves about 19,000 guestworker jobs. Because many employers would immediately secure H-2C workers, the number of agricultural guestworkers would soon quintuple.
The proposed H-2C pilot program is a long, highly-detailed bill. Its most striking characteristic is its methodical effort to exempt employers from capitalism's basic law of supply and demand. Employers would be set free to impose labor standards that only foreign workers in developing nations could afford to accept. Here is how the H-2C program would work:
An employer would submit a seven-sentence form to a local office of the state job service announcing that it would be hiring temporary foreign workers. There is no deadline for doing this. The submission, a "labor condition attestation," would not contain the terms and conditions of employment.
The employer would then submit a brief form to the INS district office asking for as many H-2C visas as it wanted, and the INS must approve those visas within "3 working days." Still, no terms and conditions of employment are disclosed. No labor shortage need exist.
Then the company would submit a specially-limited "job order" to the local office of the state job service. Any information in the job order "shall create no obligations for employers except as provided in this section." These job orders could not be circulated through either the intrastate or interstate job service system. The job service (if it took any action at all) could only provide "non-employer-specific information" about such job orders, and only to the local community.
There would be no requirement that the employer engage in private recruitment efforts to find U.S. workers (other than to post a notice at the place of employment that foreign workers were being recruited); the employers could recruit solely in foreign countries.
While recruiting foreign workers, the bill provides, the employers need not disclose information to job applicants about terms and conditions of employment.
The employer would only need to accept U.S. workers as job applicants during a period of 25 days. If the employer filed the job order 30 days before the first day of work, the employer could refuse to hire U.S. job applicants beginning 5 days before the season begins, while continuing to hire foreign workers.
The law would theoretically require employers to pay the "prevailing wage." The "prevailing wage" is an inadequate wage rate. By definition, it is usually the median wage rate paid in the area for that kind of work, meaning that about half the workers performing that same work in the local area are being paid more than that wage rate. Employers who claim that they cannot find U.S. workers should compete for workers with the top half of employers. To overcome the depression in wage rates caused by the presence of foreign workers, the H-2A and bracero programs augment the prevailing wage requirement with an "adverse effect wage rate. This bill eliminates the "AEWR" and contains exceptions to the prevailing wage requirement. For example, employers would be permitted to establish an "incentive system" that did not pay the "prevailing wage" but was merely "designed" to yield the prevailing wage.
The law would prohibit employers from using foreign workers to cause adverse effects to U.S. workers' "working conditions" but the bill contains a peculiarly narrow definition of the phrase "working conditions." As a practical matter, employers would be obligated to provide U.S. workers with workers' compensation coverage but would not be obligated to compete for workers by providing a minimal set of benefits that are required under current H-2A law or by matching the working conditions of employers who successfully recruit U.S. workers. The H-2C employers could deter U.S. workers from applying for jobs by refusing to offer such benefits as housing, minimum work guarantees, reimbursement of transportation costs, availability of food or kitchens, transportation to town to buy food, freedom from arbitrary firings, or reasonable hours.
The H-2C worker would be tied to a single employer or an association that could switch the worker among employers. If the job ended, the worker would have to return home unless another employer decided to seek an extension of the visa for that worker. However, an employer could not seek an extension of a visa while the worker is employed at another company.
The employers would not pay any fees for the program.
The employers would deduct and pay the equivalent of Social Security and unemployment taxes but these would be placed in a fund to pay for the cost of the program. The employers also would withhold 25% of the workers' wages. These sums would be returned to the worker, minus any costs for the program's operation, only if the worker returns home on time and applies to the U.S. Treasury for the money within 30 days.
The bill appears to limit the Secretary of Labor's enforcement powers to enforcing the limited terms of employment required in the statute, rather than enforcing the terms of employment that the employer may have promised the worker or may be required under other laws. The bill limits monetary remedies to "back wages" and apparently excludes interest or liquidated damages that are available for other workers under federal and state laws. Civil money penalties would be limited to $1000 per violation.
The bill would grant employers extraordinary power. Employers could tell their current U.S. farmworkers that they will lose their current jobs to temporary foreign workers unless they agree to the abysmal terms of employment that the bill allows employers to impose. The only persons likely to accept such onerous standards are economically-desperate foreign workers. As "non-immigrants," moreover, these workers would never develop the right to vote or other democratic rights necessary to secure redress of their grievances from the Government. They would be indentured servants with no hope of future freedom.
CONCLUSION
The current legislative proposals by the agricultural industry perpetuate more than one hundred years of demands for exemptions from the laws of the marketplace and the laws of government. The time for government policies that feed agribusiness' addiction to exploitable foreign labor has ended. There is no valid justification for a new guestworker program.
1. 0 For other recent analyses, see David Griffith and Ed Kissam, Working Poor: Farmworkers in the United States (Temple Univ. Press 1995); Commission on Security and Cooperation in Europe, Implementation of the Helsinki Accords: Migrant Farmworkers in the United States (Gov't. Printing Office May 1993); U.S. Commission on Agricultural Workers, Case Studies and Research Reports, 1989-1993, and Hearings and Workshops (Appendix I and Appendix II, respectively, to Report of the Commission on Agricultural Workers; Department of Labor, U.S. Farmworkers in the Post-IRCA Period, Based on Data from the National Agricultural Workers Survey (NAWS), Research Report No. 4 (March 1993); Maralyn Edid, Farm Labor Organizing: Trends & Prospects (Cornell University ILR Press 1994); Carol Zabin et al., Mixtec Migrants in California Agriculture: A New Cycle of Poverty (Calif. Institute for Rural Studies 1993). See also Ronald L. Goldfarb, Migrant Farm Workers: A Caste of Despair (Iowa State Univ. Press 1981).
2. 0 Although the report indicates that only 30% of farmworkers were reported to be referred to jobs and that only 15% actually were placed in jobs, apparently some participants were provided with job counseling or other services that may have led to employment.
3. 0 "Work to Find Workers," Palm Beach Post, Sunday, July 6, 1997 at p. 2E; "Delray-based farm withdraws request for 370 foreign workers," Palm Beach Post, June 25, 1997 at p. 4B; "Several apply to work for Pero Family Farms; few interviewed," Palm Beach Post, June 13, 1997 at 4B. Letter from Florida Department of Labor and Employment Security, Office of Inspector General to Donald L. Summers, Attorney for Pero Family Farms, Inc. (September 8, 1997); "Pero Family Farms Violated Rules in Recruiting Workers, State Says," Palm Beach Post, September 19, 1997 at p. 6B..
4. 0 The demand for "radical reform" was made by John Young, then President of the National Council of Agricultural Employers. He testified that the H-2A program was "unworkable in meeting the need for temporary and seasonal agricultural labor. . . ." Yet, he is an east coast apple grower who consistently has received H-2A workers for 30 years, even during times when virtually all agreed that there was no farm labor shortage. Committee on the Judiciary Subcommittee on Immigration and Claims, "Guest Worker Programs," Hearing, December 7, 1995, 104th Cong., 1st Sess. at 85-87. For this reason alone, NCAE's complaints should be rejected.
5. 0 Employers often exhibit national-origin and racial stereotyping, suggesting that one ethnic group has "good" workers and that another has "bad" or "lazy" workers.
6. 0 For additional information regarding the history of the H-2A program, especially in Florida sugar cane, see House Education and Labor Committee, U.S. Congress, Report on the Use of Temporary Foreign Workers in the Florida Sugar Cane Industry, Serial No. 102-J (July 1991); U.S. General Accounting Office, Foreign Farm Workers in the U.S.: Department of Labor Action Needed to Protect Sugar Cane Workers, GAO/HRD-92-95 (June 1992); U.S. General Accounting Office, The H-2A Program: Protections for U.S. Farmworkers, GAO/PEMD-89-3 (Oct. 1988); Phyllis Berman, "The Family with the Sweet Tooth," Forbes (May 14, 1990); Jane Mayer and Jose de Cordoba, "First Family of Sugar is Tough on Workers, Generous to Politicians," Wall Street Journal (July 29, 1991); Barnaby J. Feder, "Labor Peace in Florida's Sugar Fields," New York Times (Sept. 20, 1992); Lisa Shuchman, "Machines Don't Sue: Big Sugar Cuts Back on Foreign Labor," Palm Beach Post (Oct. 28 1992); Robert McCabe, "Firms Cutting Cutters: Sugar Companies to Use Machines," Sun-Sentinel (Ft. Lauderdale, Fla. Apr. 28, 1993).