Thirty years after passage of the Migrant and Seasonal Agricultural Worker Protection Act (“AWPA” or “MSPA”), a new report issued today says the law has proven critically important to preventing wage theft and dangerous working and living conditions for many farmworkers across the country. However, the report by Farmworker Justice calls for enhanced labor protections in the law and regulations and for stronger enforcement by the Department of Labor.
“Unfinished Harvest: Agricultural Worker Protection Act at 30,” says the 1983 law, enacted in response to previous legislation’s failure to achieve equity and sufficient protection for migrant workers, has proven beneficial to farmworkers. The law requires agricultural employers to disclose and comply with job terms, regulates the use of farm labor contractors – who are notorious for labor abuses – and contains safety standards for some housing and transportation vehicles.
Congressman George Miller said: “This report by Farmworker Justice is timely and a must-read for policymakers. While AWPA has helped remedy and prevent wage theft, farm labor contracting abuses, unsafe transportation and unhealthy housing, there is much more to be done. Because our immigration system is broken, the majority of farmworkers lack authorized immigration status, and most are too afraid to step forward to challenge illegal employment practices. Unscrupulous employers need to be weeded out, and abused workers need greater access to the justice system and immigration. The working people who sow and harvest our food every season should be treated with dignity and respect.”
However, many farmworkers continue to experience wage theft, and dangerous housing and transportation. Many factors contribute to this reality, notably our broken immigration system and farmworkers’ limited access to attorneys, but many problems can be addressed in the short term through stronger enforcement of AWPA and in the longer term through improvements to the law. To address systemic abuses, the Department of Labor should emphasize holding farm operators jointly responsible with their farm labor contractors for violations of labor protections.
“The AWPA’s enactment was an important step forward,” said Bruce Goldstein, President of Farmworker Justice, “but the wages and working conditions for most of the workers who cultivate and harvest our fruits and vegetables are still inadequate. To reduce serious abuses that harm farmworkers and undermine the agricultural sector of our economy, there are improvements that should be made in AWPA’s enforcement, in the regulations issued to implement the law, and to the law itself.”
Migrant farmworkers, particularly hand-harvest laborers, are frequently paid less than the minimum wage. Many growers rely on shady farm labor contractors to recruit workers, and then assert that the farm labor contractor – not the grower – is the employer, and therefore solely responsible for paying the minimum wage.
In other situations, the grower pays a piece rate – a fixed amount per bucket or tray of goods harvested – that is too low for one worker to be able to earn the $7.25 per hour federal minimum wage. Many workers are forced to rely on their children for help, frequently with the grower’s knowledge, to meet their production quota and earn the minimum wage. The children are paid nothing. Over half of hand-harvesters are undocumented workers who are fearful of trying to assert their rights, and frequently are not even aware of them.
Meanwhile, some members of Congress are working to weaken a powerful enforcement mechanism to protect these workers’ rights. Reps Kurt Schrader (D-OR), Suzanne Bonamici (D-OR), Doc Hastings (R-WA), Cathy McMorris Rodgers (R-WA) and Austin Scott (R-GA), have introduced legislation, for example, that would wall off all perishable crops from “hot goods” enforcement.
The U.S. Department of Labor sometimes, has relied on the so-called “hot goods” provision in the federal minimum wage law, to request a federal court order barring not only the employer who has paid less than the minimum wage, but also any other businesses (such as packing sheds or food brokers) that have possession of the goods, from shipping those goods in interstate commerce. The Labor Department has asked the courts for a hot goods order in agriculture about 20 times in the last 11 years to stop these violations, only 2 percent of all FLSA cases filed by the Labor Department during that period.
Why would Congress pass a law that includes such a drastic remedy that applies to all goods, including perishable produce such as blueberries and cherries? Why would the Labor Department seek such a remedy? And wouldn’t the remedy, by preventing shipment of the goods, disrupt the businesses and cause the perishable produce, and perhaps other kinds of goods as well, to become worthless?
The answers to these three questions show, first, that Congress knew what it was doing in passing the law; second, that the Labor Department seeks the remedy in limited circumstances; and, third, that the courts – which alone can issue an emergency order – use their discretion to fashion an order tailored to the specific situation, so that the employees get the back wages they are due and the goods can be sold and shipped in interstate commerce.
Congress passed the hot goods provision to prevent unfair competition by barring goods produced or handled by underpaid workers from entering the flow of interstate commerce. The Supreme Court, in upholding the hot goods provision, made clear that the power of Congress to regulate the interstate flow of goods was not limited to explosives, poisons, and other goods that posed an immediate danger, but applied to all goods. The Supreme Court later ruled that the hot goods provision is “not simply a means to enforce” other goals of the Fair Labor Standards Act (such as the minimum wage), but instead a “central purpose” of the FLSA.
In most hot goods cases, prompt action is essential because otherwise there are no assurances that the underpaid employees will be paid the wages due to them and that the grower will comply with the law in the future. A court order achieves these assurances. Migrant farmworkers move from place to place to do their jobs, so it is critical to distribute back wages due to them as soon as possible. In the absence of a court order, even where an employer agrees to pay back wages, the workers may be difficult to locate.
Only a federal court has the power to issue an emergency order, and to specify conditions and limitations. The Labor Department is willing to agree to an order permitting shipment of the fruit or other goods if the employer and other businesses agree that the proceeds will go to the employees to pay them the back wages they are due, and if the court order includes provisions that assure that there will not be future minimum wage violations.
The employer and other defendants in the lawsuit are free to oppose in court what the Labor Department proposes. But courts usually agree with the Labor Department’s approach, because the assurance of back wage payment means that the goods are no longer “hot” and can thus be sold and shipped. The result is a win-win situation for all parties to the lawsuit.
--James B. Leonard, a retired attorney, handled various FLSA hot goods cases during his 22-year career with the U.S. Department of Labor.
The latest edition of the Eye on Farmworker Health newsletter is now available. Farmworker Justice monitors the on-going research involving health topics and farmworkers. In this newsletter, we provide summaries of the academic research articles and a timely policy analysis. Highlights of the newsletter include:
Obesity Among Latino Children Within a Migrant Farmworker Community
Several studies show a rise in the prevalence of obesity among Mexican-American children. However, there are few studies that focus on the children of migrant Latino farmworkers. This study examines the prevalence of overweight and obesity among the children of migrant Latino farmworkers.
Heat Related Illness Knowledge and Practices among California Hired Farm Workers in the MICASA Study
The study aims to describe farmworkers’ understanding of heat-related illnesses and view of their own vulnerability to heat conditions.
Anticipatory Guidance Preferences of Latina Migrant Farmworker Mothers
The provision of health education materials requires development of promotion materials that are culturally sensitive and appropriate for their lifestyles. This study aims to learn which forms of education materials appeal to Latina migrant farmworker mothers.
Heat Index in Migrant Farmworker Housing: Implications for Rest and Recovery from Work- Related Heat Stress
Several states enforce heat standards that prescribe shaded rest breaks during hot weather and education on adequate water intake. However, risks from enduring excessive heat in housing, which can affect rest and recovery, have been neglected. Daily recovery alleviates the effects of heat on health. For farmworkers, recovery relies significantly on cooler facilities for their nonworking time but they possess limited control over their accommodations. Farmworkers often live in employer-provided housing. Sometimes they rent from a small supply of low-quality rural housing stock. This study aims to define the burden of heat endured by farmworkers in employer-provided housing and to what extent fans or air conditioning can provide relief.
Will farmworkers have access to health insurance?” “What are the obligations of employers?” “How will our access to healthcare change?” These are some of themany questions we heard about the Affordable Care Act from farmworkers across the country. Over the summer, we met with farmworker community-based organizations in California, Florida and Arizona to talk about the Affordable Care Act (ACA). We spoke with promotores de salud and community members to discuss their questions and concerns
Under the Affordable Care Act, many farmworkers and their families could benefit from health insurance offered in their state’s marketplace. The plans will cover a range of services from preventative care to ER visits to maternity care. If eligible, they will likely qualify for subsidies to reduce the cost of health insurance premiums and co-pays. Yet few farmworkers are enrolling in the marketplaces. Generally, enrollment numbers for Latinos are low. Covered California, the state marketplace for California, reported that fewer than 1,000 Latinos enrolled in coverage during October. There are several reasons for these low enrollment numbers. Both in the state- and federal-run marketplaces, Latinos are finding it difficult to access information and apply for health insurance. Additionally, many immigrant families are reluctant to reveal the immigration status of family members when applying for insurance coverage.
71% of farmworkers speak Spanish as their dominant language. Spanish speakers are encountering numerous challenges to enrollment. Spanish language websites for both federal and state marketplaces have been slow in implementing online enrollment tools, and some are still not fully operational. And in California, a state where 32.8% of the population is Latino, the paper application is not yet available in Spanish. Furthermore, some states have placed burdensome requirements on navigators - individuals who are trained and certified to help people in the community find insurance plans. Such laws have discouraged some community-based organizations from assisting with outreach and enrollment efforts. There are several ways to apply for health insurance – by phone, online, on paper, or in person with the help of a navigator or application assister. While many Spanish speakers may be more comfortable applying for health insurance in person, all of these options should be available to them.
For immigrant families, barriers to enrollment go beyond issues related to access. In focus groups that we conducted with farmworkers over the summer, many had concerns about sharing sensitive information required for enrollment. Among the top concerns is that information about immigration status could be used to find and deport undocumented family members. On October 25, Immigration and Customs Enforcement (ICE) issued a memo stating that information included in the marketplace application will not be used for immigration law enforcement purposes. Despite these assurances from ICE, fear and misinformation remain. Some navigators have told individuals that they should be careful because their information can be shared with immigration enforcement authorities. One-third of U.S. citizen children of immigrants live in “mixed-status families,” households that include members with a different immigration status. In farmworker communities, 24% of farmworker families are mixed-status. Reassurances for mixed-status families are crucial to boost Latino and farmworker enrollment.
Over the next several months, marketplace websites will continue to improve and more options will be available for the enrollment of Spanish-speakers. We are hopeful that with more options, farmworker communities will see improved access to affordable and preventative healthcare.
Stay in the know by reading our briefs on the latest happenings in immigration reform and the impacts on farmworkers.
Immigration reform updates
Immigration is a critically important issue for farmworkers. Learn about current legislation proposals impacting farmworkers.
Learn about the history of guestworker programs, H-2A program for temporary agricultural work, and the H-2B visa program.