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.
As we approach the midterm elections, pieces of information are surfacing in the press about President Obama’s plans for executive action. According to recent news, President Obama has not yet made a decision on what form administrative immigration relief will take. According to Buzzfeed, the Department of Justice and the Department of Homeland Security are expected to pass along their recommendations to the White House in the next two weeks for the President’s review and decision-making. The administrative relief is expected to include some kind of deferred action or parole program that would provide protection from deportation and work authorization for a defined group of undocumented immigrants.
Many immigration advocates are disappointed by rumors that the recommendations may provide for potential administrative relief to only a limited number of individuals. The recommendations will likely include factors such as length of residence in the United States and family relationships with others in the country. For example, if the President only offers relief for undocumented immigrants who have been in the US for 10 years and have US citizen children, an estimated 3 million individuals would be eligible, as opposed to other proposals that could cover up to 5 million individuals. The Senate immigration bill, on the other hand, would have offered permanent relief for up to 8 million individuals, including separate farmworker and DREAMer provisions. Many advocates have been urging the President to be bold in his actions, pointing out that he will face Republican criticism for any administrative relief action, no matter the size. Advocates are concerned that the President may choose a smaller option. DREAMer groups are particularly disappointment that the parents of DACA-recipients could be excluded from relief.
A program that only covers individuals who have been in the U.S. for 10 years and have U.S. citizen children would be very challenging for farmworkers and others in the informal economy. Many farmworkers would have difficulty proving residency in the United States for 10 years if they are paid in cash and don’t have bank accounts; live in employer-provided housing or shared housing; or otherwise lack documentation such as utility bills in their own name. Farmworker Justice and allies continue to raise issues such as these with the Administration to ensure that any administrative relief program is as inclusive as possible and takes into consideration the unique challenges faced by farmworkers.
Farmworker Justice believes President Obama must act boldly to provide broad affirmative administrative relief to address the millions of undocumented people who contribute to our economy and society but suffer due to our broken immigration system. The Administration must take action because the House of Representatives has refused to address the urgent need for comprehensive immigration reform. Any action President Obama takes must be inclusive of farmworkers, the majority of whom are undocumented. Broad, bold administrative relief would help farmworkers, their families and their communities, and would help stabilize the farm labor force and ensure a prosperous agricultural sector.
Members of Congress continue to express their support for the President taking executive action on immigration. Representatives Nancy Pelosi (D-CA), Luis Gutierrez (D-IL) and Zoe Lofgren (D-CA) co-authored an op-ed in Univision.com Thursday, expressing confidence that President Obama will announce an affirmative relief program and outlining his legal authority to do so. The Members of Congress mention that among Obama’s options for affirmative relief, he could “recognize that it is ‘essential for agriculture’ that farmworkers who toil in our fields do so without fear.”
Regarding timing for the President’s announcement, the only timeframe given so far has been the President’s assertion that he would take action by the end of the year. Some are predicting that the announcement may not come until December due to a possible run-off election for the Louisiana Senate seat and the interest in completing the appropriations process prior to the announcement. The current continuing resolution will expire on December 11 and if the President makes his announcement before the government is funded, the House may attempt to limit the President’s action through the appropriations bill as it tried to in the summer when it voted to defund DACA. Some individuals have also expressed concern that if there is a runoff election in the Georgia Senate race which would take place January 6th, the President may delay his announcement yet again. The runoff could create pressure for the President to delay by Democrats who believe that the executive action would motivate Republicans to turn out for the runoff, hurting the Democratic candidate Michelle Nunn’s chances of winning. If the Democrats need Nunn to win to maintain control of the Senate, the pressure on the President will be more intense. However, the President and his staff have repeatedly promised that he will announce executive action by the end of the year and another delay would produce much anger from immigrant communities and reflect poorly on the President’s willingness to keep his promises.
H-2A Program Increases Show the Program Working Well for Employers
Data on the H-2A program for Fiscal Year 2014 released last week by the Department of Labor show that the H-2A program is far from “broken,” as growers continue to claim. From FY 2013 to FY 2014, the number of H-2A worker positions certified increased by 18%. The number of applications from FY2013 to FY2014 also increased by 13%.1 North Carolina remains the number one user of the H-2A program, bringing in up to14,502 H-2A workers in FY2014, a 17% increase from last year. Several states had significantly large increases in the number of H-2A workers certified, including a 45% increase in Washington, 44% in California and 35% in Florida.
The increase in H-2A program usage has not been limited to this past year. The program has more than doubled in size in recent years: from about 48,000 worker positions certified in FY 2005 to about 117,000 worker positions certified in FY 2014—an increase of 141%.
Complaints by growers that the H-2A program is “broken” are thinly-veiled attempts to get a new guestworker program with lower wages and fewer worker protections. But the H-2A program wages and worker protections are greatly needed. Despite the current H-2A program’s modest protections aimed at reducing exploitation of guestworkers and protecting the jobs, wages and other labor standards of U.S. farmworkers; the program is rife with abuse. H-2A workers typically arrive indebted and fearful, are tied to their employer for the length of their visa, and must leave the country when the job ends, factors which make workers extremely dependent on their employers and vulnerable to abuse. No matter how many years H-2A workers spend in the U.S., they never earn the opportunity to become an immigrant or citizen.
With comprehensive immigration reform unlikely next year, some growers may push for a new agricultural guestworker program with reduced government oversight, low worker wages and reduced protections; with no legalization program for current experienced undocumented farmworkers. Farmworker Justice will continue to educate policymakers and the public about such harmful proposals.
Happy Halloween and don’t forget to vote next week!
1 Note that the number of workers certified is not an accurate reflection of the number of H-2A workers who entered the US in FY 2014 as growers may not bring in the total number of workers listed on their certification.
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.