The simple family farmer in the folk song “Old McDonald’s Farm” tended alone to his animals; he didn’t hire any farmworkers. Much has changed since the era of Old McDonald, yet today’s farming corporations often claim they don’t “employ” any of the workers on their farms or ranches.
Similarly, the McDonald’s Corporation, which started in a single store in 1948, claims it doesn’t employ any of the workers in its franchised restaurants. By denying employer status companies seek to avoid responsibility for ensuring that workers receive the minimum wage, Social Security coverage and other worker benefits and protections, and for negotiating with unions.
Today about 2.5 million people labor on farms and ranches in the United States. They cultivate and harvest fruits, vegetables and other crops and they raise and care for dairy cows, chickens, sheep and other livestock. Most of them work on larger farms that use from several dozen to a few thousand farmworkers each year. A large percentage of these farmworkers are recruited, hired and employed through farm labor contractors, “crewleaders,” labor leasing firms or other intermediaries. The farm operator often contends that it does not “employ” any farmworkers. Rather, it claims that the labor contractor is the sole “employer” and therefore is solely responsible for complying with the minimum wage, workers’ compensation, Social Security contributions and immigration laws.
About 1.5 million people work at tens of thousands of McDonald’s fast food franchises around the world, whom McDonald’s claims that it does not employ. It contends that the franchisee is the only employer and is solely responsible for setting job terms and complying with labor and immigration laws.
These efforts to escape status and responsibility as an employer have dire consequences for many workers. The farm operators and McDonald’s possess economic power to dictate how the farm labor contractors operate and how the McDonald’s franchisees carry out their functions. They take advantage of that power for their own benefit, leaving few resources for the worker to gain from the labor contractor or franchisee.
Farmworkers often do not receive the promised, or even legally-required, job terms from their labor contractor. If they dare to sue the labor contractor, most have a hard time collecting what is owed. With a majority of the farm labor force lacking authorized immigration status, few farmworkers feel protected to file lawsuits or join a labor union.
The McDonald’s Corporation’s success is built largely on its ability to control the consistency of the customer experience at its company-owned and franchised restaurants throughout the world. For workers who wish to reform the way they are treated, many franchise owners will not and cannot adopt major changes unless McDonald’s revises its approach.
One of the solutions is to reject the companies’ claims that they are not “employers,” instead making the farm operator and McDonald’s “joint employers.”
Farmworkers have sued growers and their labor contractors as joint employers with some success, and fast food workers are also now making efforts to hold McDonald’s responsible as an employer of the workers in its franchised restaurants in the U.S. Recently, the chief attorney at the National Labor Relations Board announced plans to bring a case to hold McDonald’s responsible as an employer under the National Labor Relations Act. The NLRA (which excludes agricultural workers and employers) protects most workers’ right to organize free from retaliation and requires employers to bargain collectively in good faith with certified labor unions.
The response from business has been predictably fierce. Both McDonald’s and farm operators want to exercise the right to control their franchises and labor contractors, respectively, to assure their profit, which has substantial consequences for the people who actually perform the work.
Long ago, Old McDonald’s Farm stopped being the predominant model for agriculture, and McDonald’s ceased to be an owner-operated hamburger joint. The courts should make clear that fast food chains and farm operators are jointly responsible as employers of the workers who labor in restaurants and farms.
Goldstein is president of Farmworker Justice, a non-profit, nonpartisan organization in Washington, D.C. that works to improve living and working conditions for migrant and seasonal farmworkers.
By Bruce Goldstein
The head of a national farmworker rights group defends the U.S. Department of Labor's actions in the case involving three Oregon blueberry growers.
How about a little bit of objectivity when it comes to farm operators that deprive hard-working farmworkers of the minimum wage? Your editorial, “It’s time for DOL to pay up” (Sept. 25), shows no sympathy for farmworkers who are just scraping by on meager wages and are ripped off by their employers.
You also misrepresent what happened by calling it “extortion.” These employers were told by the Department of Labor that it found violations of workers’ rights. The department can take several actions and employers can contest those actions. The department is permitted to go to federal court and ask a federal judge to issue an injunction to temporarily hold up the sale or shipment of goods that were produced in violation of the law. The farm operators can have their day in court.
In these cases, there was no “extortion.” The growers decided to settle the controversy by paying tens of thousands of dollars to numerous underpaid farmworkers. Much later, the growers decided they wished they had not settled. So they asked the court to be allowed to renege on the settlement and re-open the case so that it could be litigated.
Meanwhile, some of the workers were reimbursed for their losses, as they should have been under the settlement, while others undoubtedly have moved on and may never be found to be given their lost earnings. So now the growers will have their day in court for a judge or jury to decide whether the farmworkers were underpaid. Stop misrepresenting what happened to attack the Department of Labor’s efforts to enforce the few employment laws that protect farmworkers.
Bruce Goldstein, President
Farmworker Justice is deeply disappointed in President Obama's delay of anticipated administrative relief to fix our broken immigration system. In June, after the House of Representative’s failure to pass needed immigration legislation, the President had announced that he would take executive action by the end of the summer. Although the White House had not yet indicated what the administrative action would entail, it is expected to include granting administrative relief against deportation and work authorization to millions of undocumented immigrants with strong ties to the U.S. protection.
“This delay in fixing the broken immigration system will inflict unconscionable harm on the millions of hard-working aspiring Americans, including the many farmworkers who labor on farms and lack authorized immigration status,” said Farmworker Justice President Bruce Goldstein. “The entire food system is undermined by the failure of the political leadership in this country to address this crisis responsibly. Farmworker Justice will continue to press the Administration and Congress for immigration reform,” said Goldstein.
Administrative Relief, Family Detention & Fraud in the H-2 Visa Programs
In recent weeks President Obama has reaffirmed his commitment to announcing executive action on immigration reform before the end of the year. The President also said that he remains committed to passing immigration reform through Congress, warning that it is “suicide for the GOP not to address the issue.” Meanwhile, some Democrats running in close races have distanced themselves from pro-immigration stances. Most notably, Alison Lundergan Grimes is running an offensive “anti-amnesty” advertisement accusing incumbent Senator Mitch McConnell (R-KY) of being pro-amnesty due to his support for the 1986 immigration law that legalized undocumented immigrants. In the ad Grimes says “I’ve never supported amnesty or benefits for illegal immigrants, and I never will.” Several progressive and get-out-the-vote groups, such as MoveOn.org and the Latino Victory Project, have expressed their strong opposition to the ad, calling on Grimes to take it down.
While immigrant communities await administrative relief, detentions and deportations continue. In Florida, immigrant and worker advocates are criticizing Florida Chief Financial Officer Jeff Atwater for going after undocumented immigrants for workers’ compensation fraud. Last July, the state arrested more than 100 workers in a raid on a fruit and vegetable processing plant in Naples, FL. Workers are being charged with the felony of identity theft for using a fake ID to get a job and sign up for workers’ compensation insurance. However, the workers had not submitted any false workers’ compensation claims, which is typically what is considered workers’ compensation fraud. Instead, it appears that this is a roundabout way for Atwater to enforce immigration law.
The Obama administration is being seriously criticized for its increased use of detention facilities for families from Central America, many of whom have legitimate claims for asylum. Immigration and refugee advocates and religious organizations argue that detaining families and children is unnecessary and inhumane. The Obama Administration’s justification for detaining the families is to deter more families from coming and to ensure that they show up for court proceedings. However, the US Executive Office for Immigration Review recently stated that 85% of the unaccompanied minors who have recently entered the country and have been placed with relatives in the US are showing up for their court hearings, undermining the argument that detention is necessary.
Moreover, there are serious concerns regarding the treatment of women and children in these detention centers. MALDEF and others filed a lawsuit on behalf of women in family detention in the privately-run Karnes facility in Texas alleging sexual harassment and abuse by guards. Three guards are accused of engaging in sexual acts with detainees and making inappropriate remarks in front of children and other detainees.
However, there are some positive developments around the issue of ICE detainers. An increasing number of municipalities are refusing to honor ICE detainers, or requests to hold undocumented immigrants 48 hours past their scheduled release date from jail. Several federal court rulings on the issue have held that ICE detainers are not mandatory and they do not constitute probable cause. This opens local law enforcement up to the possibility of being sued for violating individuals’ constitutional rights. According to the LA Times, 225 local law enforcement agencies have decided to completely ignore the requests. Another 25 have limited the circumstances under which they will honor the requests to individuals who have committed more serious crimes.
Grower Representative Accused of Defrauding the U.S.
Harry Lee Wicker, Jr. was recently indicted by the federal government for criminal conspiracy to defraud the United States in a scheme involving the H-2A temporary agricultural guestworker program and the H-2B temporary nonagricultural guestworker program. Wicker is Deputy Director of the North Carolina Growers Association (NCGA), a large farm labor contractor that brings in guestworkers from Mexico, and a board member of USA Farmers, which represents employers of guestworkers.
Wicker has testified several times in Congressional hearings on behalf of agricultural employers seeking to eliminate labor protections and reduce government oversight of the H-2A program.
Wicker was added to a case that was previously filed by the U.S. Attorney in federal court in North Carolina. Wicker’s co-defendants in the 87-count indictment of USA v Eury, are Craig Stanford Eury, Jr. and Kenneth White. Eury serves as the Executive Director of NCGA and the founder and primary interest holder of International Labor Management Company (ILMC), a North Carolina company engaged in preparing and submitting applications for H-2A and H-2B workers on behalf of client companies. White is another Deputy Director of NCGA.
The indictment alleges that under a scheme to defraud, Lee Wicker improperly directed the payment of over $1,000,000 to a limited liability company under his control. The indictment seems to allege that the farm operators that are members of, and are supplied with guestworkers by, the NCGA and/or ILMC were victims of fraud. The defendants allegedly overcharged growers and pocketed the money. Among other claims, the indictment alleges that ILMC, Eury and others instructed H-2B employers on how to interview US workers so as to inhibit their hiring and to hire token US workers. The alleged result was to allow ILMC to profit from hiring guestworkers instead of United States citizens. These criminal charges, if proved, would suggest that the defendants sought to evade the federal immigration law’s requirement that qualified, available U.S. workers should be hired before an application for guestworkers is approved.
Wicker most recently testified before the House Judiciary Committee on May 16, 2013, in favor of Rep. Goodlatte’s “Agricultural Guestworker Act,” HR 1773, which would create a new program with lower wages, fewer requirements for ensuring job opportunities for U.S. citizens and lawful permanent residents, and allow exploitative conditions for hundreds of thousands of new guestworkers. According to Wicker’s testimony before the House Judiciary Committee, the NCGA has been the single largest user of H-2A agricultural guestworkers for over 15 years. In his testimony, Wicker calls the H-2A program “expensive, overly bureaucratic, [and] unnecessarily litigious.”
The H-2A program and its predecessor have been characterized by widespread evasions of their modest labor protections for U.S. and foreign workers. Indeed, a guestworker program is inherently problematic because the foreign workers are denied freedoms most workers possess and are vulnerable to abuse. Farmworker Justice has long called for greater oversight and stronger enforcement of the H-2A program’s requirements.
Labor Violations on Florida Farms
The Department of Labor’s Wage and Hour Division (WHD) issued a press release on findings of wage, housing and transportation violations under the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act in its ongoing initiative focusing on Central and Northern Florida farms. So far, the WHD has assessed $100,000 in back wages for 277 workers and more than $25,000 in civil money penalties. The high rates of labor violations in agriculture is directly related to the high portion of undocumented farmworkers in the workforce and demonstrates the urgent need for legalization of undocumented immigrants. Farmworker Justice continues to advocate for Congress to pass immigration reform with a path to citizenship and for President Obama to create a broad affirmative relief program for undocumented immigrants that includes farmworkers and their families.
Stay in the know by reading our briefs on the latest happenings in immigration reform and the impacts on farmworkers.
Immigration reform updates
10/17/2014 Farmworker Justice Immigration Update
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.