United States Farmworkers Still Lack Basic Labor Protections

The first Labor Day parade, held in New York City on September 5, 1882, was a 10,000-person strike, not a holiday celebration. Workers marched with signs that called for higher wages, fewer hours, and an end to convict labor. Labor Day’s history is rooted in the American labor movement and recognition of its social and economic achievements – things like the five-day work week and overtime pay.

Yet, one group has been systematically and persistently excluded from many of these achievements: farmworkers.

Farmworkers do physically demanding – and often dangerous work – for long hours, but make minimum wage, do not have the right to overtime pay nor the right to organize. In addition, most do not receive critical benefits such as healthcare or workers compensation.

New York State recently passed and signed into law the Farm Laborers Fair Practices Act, which seeks to address this glaring inequity by establishing critical protections for farmworkers, such as collective bargaining rights, overtime pay, a day of rest, a 60-hour work week, and health and sanitation codes for farmworker housing. The Act also makes farmworkers eligible for benefits such as unemployment insurance, workers compensation and paid family leave.

Child Labor Standards Leave Children at Risk

Fair Labor Standards Act also establishes separate child labor provisions for agricultural work allow children as young as twelve to work outside of school hours (age fourteen for other types of work) and children as young as sixteen to engage in “hazardous” occupations (age eighteen for other types of work).

Reports have found that employers routinely violate even lax child labor protections, employing children as young as seven, making them use dangerous tools and machinery, paying less than minimum wage and failing to provide water, handwashing facilities or toilets. Agriculture accounts for over half of work-related fatalities among children. Farm work often comes at the expense of school work; the school dropout rate among children from farmworker families is four-times the national average.

New Threats to Farmworkers in the Trump Era

The racist origins of farmworkers’ exclusion from basic labor protections takes on new meaning in today’s political climate. Whereas farmworkers were once predominantly African-American (a direct holdover from slavery), the National Agricultural Workers Survey reports that, as of 2016, 84% of farmworkers identify as Latino or Hispanic. The Survey also finds that 49% of (non-temporary) farmworkers lack work authorization. However, the actual number is likely higher — the organization Farmworker Justice estimates that up to 75% of farmworkers are undocumented — because of the real and perceived risks of answering questions about one’s immigration status.

Labor Protections Apply to Everyone

It is important to note that federal labor and employment protections apply to all workers, regardless of immigration status. Once someone is doing work on behalf of an employer, they are not supposed to be exploited, denied basic protections or otherwise discriminated against because of their country of origin or immigration status.

In practice, however, farmworkers have long been vulnerable to such exploitation and are increasingly so as the current Presidential Administration targets immigrants with verbal attacks, deportation raids, and other measures intended to intimidate and oppress. Farmworkers are afraid to report wage theft, health and safety violations, sexual harassment or other poor working conditions because they fear not just retaliation, but deportation. Employers, in turn, have taken advantage of this fear. As Victor Narrow, of UCLA’s Labor Center, explained to the Los Angeles Times, “Industries dependent on immigrant labor have been emboldened by the Trump Administration…It’s all about maximizing profitability by not paying minimum wage or not offering workers the labor protections they are entitled to.”

The Role of H-2A Visas

At the same time, the Administration recognizes that the American agriculture industry depends on immigrant labor. Without people to do the very hard work of picking, packing and processing our food, production would decrease and food prices would skyrocket. While outwardly stoking anti-immigrant sentiments, the Trump Administration has also responded to the food industry’s demand for inexpensive labor by issuing a record-breaking 242,762 H-2A visas, which are used for seasonal farmworkers (also called guestworkers). H-2A workers are not covered by basic federal protections – for example, the Program has a separate minimum wage standard.  The Administration also recently released its proposed changes to the H-2A Program, changes that overall make it much easier for employers to participate in the program. Farmworker Justice has called the existing program “inherently flawed” because it promotes discrimination against United States citizens as well as exploitation of H-2A guestworkers and finds that the proposed changes only further these problems.

States Step In to Address Farmworker Labor Flaws

With weak labor protections and overt hostility towards farmworkers at the federal level, states have an important role to play in protecting and enforcing the basic labor rights of those who serve as the backbone of the American food system.

However, progress at the state level is piecemeal and slow-going. Passing New York State’s new farmworker labor rights law took over twenty years of organizing and lobbying by farmworker advocates. The bill had previously passed the State Assembly a number of times, but always stalled in the State Senate. The bill’s primary opponent was the New York Farm Bureau, an industry lobbying group, which contended that the bill would place devastating financial burdens on farmers.

Labor Laws are Irrelevant if Protected Workers Can’t Self Advocate

Jose Chapa, Legislative Campaign Coordinator for the Justice for Farmworkers Coalition, says that “overall, [the Act] is a successful piece of legislation and will be one of the strongest in the country once it goes into effect,” but challenges remain, including the need for farmworkers to be educated about their rights. This need has been underscored by California’s pathbreaking farmworker law, the Agricultural Labor Relations Act of 1975. While the law has long been regarded as the gold standard for collective bargaining, it has recently come under scrutiny for failing to achieve its promise. Notably, the Chair of California’s Agricultural Labor Relations publicly resigned in 2017, expressing frustration that 99% of California’s farmworkers were ununionized and the law was “irrelevant to farmworkers” who did not know about its protections.

The Unavoidable Need for Immigration Reform

While state level changes are welcome, it’s clear that farmworker justice cannot be realized without significant immigration reform efforts.

This year, California’s Senator Diane Feinstein and Congresswoman Zoe Lofgren introduced the Agricultural Worker Program Act (S. 175/H.R. 641) into Congress. Previously introduced in 2017 and as part of comprehensive immigration reform efforts in 2013, the bill’s central provision is a new “blue card” program that gives farmworkers a path to citizenship. Though the bill is seen as a bargaining chip in a larger, comprehensive immigration reform debate, it is the only solution being put forward to address a reality that has become “untenable,” in the words of Farmworker Justice President Bruce Goldstein: “The opportunity for legal immigration status is crucial to enabling farmworkers to live and work productively without fear and to seek improvements to their working and living conditions.”