The Lethal Inequality on American Farms
During the pandemic, a broken system for migrant laborers turned even more deadly.

Jonah Goldman Kay/December 22, 2020 THE NEW REPUBLIC

BRENT STIRTON/GETTY
Farm laborers from Fresh Harvest working with H-2A visas maintain a safe distance as a machine is moved in Greenfield, California.

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When Flavio first heard about a temporary farm work program in the United States, it sounded like a great deal. Everything from his salary to his housing would be guaranteed in advance by his employer, who would also sponsor his visa. He forked over more than $1,000 to a recruiter in Mexico and was approved in April for an H-2A agricultural visa through a farm labor contractor. These contractors, a small but fast-growing part of the legal migrant worker system, hire laborers directly and then pair them with farmers. They are also notorious for human trafficking, and many have a background in cross-border smuggling, according to the Farm Labor Organizing Committee. Several weeks after his visa was approved, Flavio boarded a bus, chartered by the contractor, that would take him from his hometown in Hidalgo to the farm in North Carolina.

The problems started when the contractor asked Flavio and his co-workers to smuggle nearly $50,000 across the border. “Before we got to the border, they gave us each $1,000,” Flavio said. “After we got past the checkpoint, they took it right back.” (Flavio asked that he be referred to only by his first name and not name his employer because of an ongoing lawsuit and fears of retaliation.) This would prove to be the first in a series of labor violations, including cramped and unsafe accommodations, that would force Flavio to lose his visa and his opportunity to earn a living.

Over the past decade, farmers have faced severe workforce shortages—a paucity exacerbated by the Covid-19 pandemic. Many American workers have avoided agricultural employment since the pandemic began, choosing to stay closer to their families and avoid the crowded working conditions of many farms. To meet their labor needs, farmers have turned to hiring foreign workers who come to the U.S. on temporary agricultural visas, mainly the H-2A program, which allows employer-sponsored workers to stay in the U.S. for up to 10 months every year. In theory, this helps farmers fill employee shortages while providing the workers with a higher income than they could earn in their native countries; employers must pay a living wage and offer safe housing for employees. The Department of Labor, which administers the H-2A program, monitors working conditions on the farms and investigates allegations of wage theft and abuse.

Or at least that’s the intent. In practice, the H-2A program binds migrant workers to their employer, who controls every part of their lives, from work hours to living conditions to transportation. Since the employer also sponsors the visa, they also wield significant control over workers’ immigration status and whether they’ll be rehired the next year. Farmers usually hire the same group of workers every year, so if any speak out about violations, they’ll likely be out of a job when the next season comes around. In effect, workers are forced into an exploitative and one-sided relationship that leaves them vulnerable to all kinds of abuses. Joe Biden’s administration will have a chance to alleviate some of these problems by policing employers’ behavior and reversing a Trump-directed wage freeze. But more expansive reform—like allowing these workers, who spend most of their time in the U.S., to qualify for lawful permanent residency—seem sadly far off.

During the pandemic, this unequal system turned lethal. Only a handful of states have issued mandatory protection for farm workers during the pandemic. In April, the Trump administration declared that H-2A workers were essential to national security and increased its processing of new visa applications. However, the administration never provided updated worker safety regulations, leaving housing and transportation in the hands of the farmers. The results were deadly, in some cases. In Texas, a 48-year-old man on an H-2A visa died from Covid-related complications after his employer denied him medical care. In California, an H-2A worker died after contracting the virus during an outbreak in his employer-arranged congregate housing. Similar cases have been reported across the country.

Nonetheless, employers continue to pack workers into motel rooms and trailers, according to Lauro Barajas, the regional director for the United Farm Workers in the area around San Francisco. They frequently decline to implement social distancing on the buses that transport workers from their housing to the fields where they work. Very few offer protective gear in the cramped packing houses or adjust conditions in the field to accommodate social distancing. Health insurance, which is not a requirement for the H-2A program, remains out of reach for most workers.

Flavio felt the iron grip of his employer as soon as he arrived in North Carolina. His contract was clear—he’d work 35 hours a week on a blueberry farm, and the farm labor contractor would pay for a hotel for him and his fellow workers. But when he got there, he found out that the contractor had actually signed an agreement with another farm, more than an hour and a half away, planting sweet potatoes. The hotel he had been promised turned out to be a run-down trailer that he shared with more than a dozen other H-2A workers.

“There were only two bedrooms for 19 workers,” Flavio said. “We were sleeping on mattresses on the floor.”

After he complained to the local farm workers’ union, the Farm Labor Organizing Committee, he was moved into a hotel, where he was kept for nearly a week without work or pay. In late June, Flavio was forced to quit in order to find other work. His employer had paid out less than a quarter of the total contract.

Wage theft is particularly rampant among farmers and farm labor contractors who employ H-2A workers, according to a new report from the Economic Policy Institute. Last year, the Department of Labor identified 12,000 labor violations in the H-2A program. The vast majority of those were wage violations. According to the Labor Department, farmers owed 5,000 workers a total of $2.4 million in back wages. Farm labor contractors were by far the most egregious offenders. Because many employees choose not to file complaints out of fear of retaliation, these numbers likely paint only a partial picture of the situation.

Employers have been given free rein to mistreat workers like Flavio under the Trump administration. The Labor Department’s Wage and Hour Division, which is responsible for investigating labor violation complaints from H-2A workers, faced unprecedented budget and staffing cuts. In 2016, there were around 1,000 investigators; by 2019, there were just 780, according to the EPI report. At the same time, the number of H-2A workers increased dramatically—from around 135,000 in 2016 to more than 200,000 last year. As a result, even when workers manage to file complaints, there is a slim chance that they will be investigated.

Often, as a defense, farmers claim they are too broke to adequately compensate their employees or fulfill their contracts. Surely some farmers face unstable income and operate on slim profit margins. But the federal government has failed to police genuinely bad actors who abuse the H-2A system. Many farmers who commit multiple, severe labor violations have been allowed to hire H-2A workers, usually without needing to prove that they’ve changed their ways.

Just two days before Election Day, the Department of Labor proposed changes to the wage structure that governs wages for workers on H-2A visas, who are already some of the lowest-compensated workers in the U.S. labor market. But the Labor Department has proposed freezing those wages until 2022 and then raising them annually at a significantly lower rate than before. By the department’s own assessment, this would result in an unparalleled “transfer” of income from workers to farmers.

There is a certain amount of irony in this. If the regulation goes into effect, the very organization charged with protecting H-2A workers from wage theft would be executing the largest transfer of income from workers to farmers in the history of the H-2A program. To put that into perspective, over the past two decades, the Department of Labor ordered employers to pay $76 million in back wages. The new wage-rate system proposed by the Trump administration would result in $178 million in lost wages every year.

Fixing the H-2A program’s broken wage system would involve a series of regulatory changes at the Department of Labor. That would be fairly easy for the incoming Biden administration to implement, according to Daniel Costa, the director of immigration law and policy research at the Economic Policy Institute and the author of the report on H-2A wage violations. The proposed wage freeze is already the subject of several lawsuits filed by Farmworker Justice on behalf of the UFW. If the wage freeze is found to be invalid, the Biden administration could simply choose not to litigate it further. Even if the wage freeze goes into effect, the new secretary of labor could choose to publish new regulations to supersede the Trump administration cuts.

While new regulations could take up to a year to go into effect, there is precedent for such an action. In the waning days of the Bush administration, Elaine Chao—the secretary of labor at the time—cut wages and protections for H-2A workers. Barack Obama replaced Chao with Hilda Solis, who issued new guidance that restored the previous regulations, effectively nullifying the Bush administration’s changes.

More immediately, the Department of Labor under Biden could issue guidance to the agriculture industry on pandemic-related safety measures. In the lead-up to the election, Biden repeatedly called for increased testing and safety precautions for agricultural workers. “President-elect Biden is committed to strengthening labor protections and ensuring all workers, regardless of status, have access to safe working environments and the necessary protections to report labor violations without fear of retaliation,” said Jennifer Molina, a spokesperson for Biden’s transition team.

There are also signs that Biden is committed to broader reforms of the H-2A program, particularly those relating to citizenship. Currently, workers on H-2A visas aren’t eligible for permanent resident status, regardless of how long they’ve worked in the U.S. As part of a broader modernization of the H-2A program, the Farm Workforce Modernization Act would provide a pathway to legal status for H-2A workers. The bill, which was passed by the House in 2019, is currently stalled in the Senate Judiciary Committee.

Biden’s current immigration plan proposes legislation that is almost identical to the Farm Workforce Modernization Act. His plan supports “compromise legislation” that would allow longtime agricultural visa workers to gain legal status and be fast-tracked to permanent residency and eventually citizenship. However, Costa says that any meaningful legislation would be a “heavy lift” for Biden, given the likely opposition he would face from the Republican-dominated Senate. It’s also unclear how hard the new administration will push on immigration reform given a recent NPR report that Biden’s team is “uncomfortable” with the policies proposed by immigration activists.

When he quit his job, Flavio also lost his visa. He is now undocumented and stuck in limbo, unable to work legally in the U.S. or return home to Mexico. He’s waiting for the results of a lawsuit against his employer, who owes him more than $4,000 in missing wages. What started off as a chance to earn a decent income and send money back to his family has turned into a living nightmare. Without his full wages for the contract, he doesn’t have enough to pay off his debt to the recruiter in Hidalgo, effectively trapping him in the U.S.

“I didn’t expect to be undocumented—it’s not what I wanted at all,” Flavio said. “But until I pay off my debt, I can’t see my family. I’m stuck here.”

Jonah Goldman Kay  is a writer based in New Orleans.