Agriculture is an industry rife with abuse of workers. Because the majority of workers are undocumented, it makes it very difficult for farmworkers to enforce the few labor protections that cover them. In the absence of immigration reform or administrative relief providing farmworkers with immigration status with a path to citizenship or protection from deportation and work authorization, the Department of Labor plays a critical role in ensuring that abuses of farmworkers are remedied.
A recent Department of Labor, Wage and Hour Division, (DOL) investigation in the Philadelphia-Southern New Jersey area highlights the importance of labor law enforcement in agriculture. The DOL investigation revealed that a farm labor contractor, Heng Heng Agency, Inc. and its president, Visith Oum, violated the Fair Labor Standards Act’s (FLSA) minimum wage and record keeping requirements and the Migrant and Seasonal Agricultural Worker Protection Act’s (AWPA) safe transportation requirements, including the requirement that farm labor contractors obtain motor vehicle insurance in compliance with the law. According to the Philadelphia Inquirer, Heng Heng supplied 125 Latino, Vietnamese and Cambodian farmworkers to Medford Nurseries in Lumberton, NJ.
DOL’s investigation also found that Medford Nurseries was a joint employer of the workers, which means that they are responsible, along with the contractor, for compliance with the Fair Labor Standards Act’s and the Migrant and Seasonal Worker Protection Act’s provisions. Medford nurseries settled with the DOL and paid $36,505 in back wages to the workers. DOL is seeking an additional $146,100 in civil money penalties from Heng Heng for its willful and repeat violations of the FLSA and AWPA.
Heng Heng and Oum have a history or labor law violations. They were recently sued by another agricultural employer, Frank Donio, Inc. to whom Heng Heng supplied labor. Donio, Inc. is seeking to recover $650,000 in back wages that Donio paid to 500 workers to settle a DOL investigation.
Holding growers accountable under the doctrine of joint employment is essential for ensuring that exploited farmworkers receive just compensation for their injuries. As the Heng Heng case illustrates, legal action against an FLC alone may yield little in the way of lost wages or damages. FLCs are often transient, hard to find, and insolvent or otherwise judgment-proof. Suing them alone does little to provide victimized farmworkers with restitution or to deter future violations. Growers control the operation of their business, are in the best position to ensure that FLCs comply with workers’ rights, and that workers are adequately compensated if the FLCs violate the law. Holding growers accountable has proven to be the only way to effectively deter illegal conduct and provide farmworkers with meaningful remedies.
Some good news for farmworkers came out of California this week that will help address the abuses associated with farm labor contractors. The Governor signed into law AB 1897, which holds companies with 25 workers or more liable for most labor contractors’ wage violations and failure to provide workers’ compensation across industries. The law also restricts work site employers from shifting responsibility for occupational safety and health protections to contractors. In California, 55% of farmworkers employed on crop farms are hired by farm labor contractors or other intermediaries.1 At least in part, this trend reflects an effort by growers to evade responsibility for labor and immigration laws. The subcontracting model in agriculture and other forms of contingent labor supply have increasingly been used in other low-wage industries that have high rates of labor law violations as well. Although holding employers jointly liability for labor contractor violations is possible under certain federal and state labor laws, this issue often involves litigating the specific facts and circumstances of each case. AB 1897’s clear rule holding companies liable for their contractor’s wage payment and workers’ compensation will help ensure that companies exercise greater oversight over their contractors to ensure there is compliance with the law. At least one business oriented journal notes that by exercising greater oversight, company joint liability under other protections may in turn be implicated. This legislation, which was co-sponsored by the California Labor Federation, the International Brotherhood of Teamsters, and the United Food and Commercial Workers International Union and supported by the California Rural Legal Assistance Foundation, and others, should have a strong positive impact for farmworkers as well as other low-wage and contingent California workers.
In addition to AB 1897, this past week Governor Brown signed into law two other pieces of legislation that should help prevent labor law violations for farmworkers and others. SB 1087, which is supported by the California Rural Legal Assistance Foundation and others, provides for increased sexual harassment training requirements for supervisors and farm labor contractors. Farm labor contractors will also have to answer questions about sexual harassment in their licensing exams. This legislation is one small step towards preventing the huge problem of sexual violence and harassment of farmworker women, but much more needs to be done to combat the rampant abuse.
Finally, Governor Brown signed SB 477, which provides protections for internationally recruited workers on visas coming to work in California. The Coalition to Abolish Slavery & Trafficking advocated for this bill, which is very similar to the protections included in the Senate’s comprehensive immigration reform bill, S, 744. Experiences over many years across various visa programs demonstrate the need for such oversight, monitoring, transparency and regulation of international recruitment systems. Workers’ experiences during recruitment abroad, which include fraud and debt due to recruitment fees, have a substantial impact on their earnings and working conditions in the U.S., as well as on those of the U.S. workers in the labor market where the foreign workers are employed. SB 477 seeks to address these abuses by requiring disclosures about job terms during the recruitment and prohibiting recruitment fees. SB 477 also requires foreign labor contractors to register with the Labor Commissioner and requires employers to use registered labor contractors.
Unfortunately, Gov. Jerry Brown also vetoed legislation Sunday that would have made it harder for California farmers to stall new contracts under the California Agricultural Labor Relations Act.
Farmworker Justice applauds the California Legislature and Governor Brown for the enactment of these important laws protecting farmworkers and others. We sent a letter to Governor Brown in support of SB 1087 and AB 1897 and joined a sign-on a letter to Governor Brown from the International Labor Recruitment Working Group in support of SB 477. We continue to advocate at the federal level for immigration status and increased labor protections for farmworkers in order to end the abuse of farmworkers.
1Philip Martin California Ag Employment: 2014 http://migrationfiles.ucdavis.edu/uploads/cf/files/2014/04/22/martin-california-ag-employment-2014.pdf (last visited July 16, 2014).