United States Farmworkers Still Lack Basic Labor Protections

by Emma Clippinger

8/29/19

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.

Labor and Workers in the Food System

The Racist Origins of Agricultural Exceptionalism

Legal historians note that the longstanding exclusion of farmworkers from key labor laws – often referred to as “agricultural exceptionalism” – was not simply intentional, but explicitly racist. During the New Deal era, President Roosevelt and Congress repeatedly heeded Southern Democrats’ demands to exclude domestic workers and agricultural workers – the majority of whom were black in southern states – from basic labor protections and benefits. Southern Democrats sought to preserve segregationist Jim Crow policies and ensure the continued exploitation of black labor.

This agenda was put on public display during Congressional debates over the Fair Labor Standards Act, passed in 1938. Representative J. Mark Wilcox of Florida voiced his concern that federal protections would make it difficult to perpetuate the wage discrimination his state depended on, since  “the Federal Government knows no color line…” The Fair Labor Standards Act established minimum wage, overtime pay and employer recordkeeping requirements, as well as prohibitions on “oppressive child labor.” Yet, in a nod to Southern lawmakers, the Act included a pointed exclusion for agricultural workers – even under the child labor provisions.

Over the past eighty years, Congress has taken steps to correct for some of these racist omissions and provide protections to farmworkers and others. First, in 1966, Congress amended the Fair Labor Standards Act to apply the minimum wage and recordkeeping provisions to farmworkers. Then, in 1983, Congress passed the Migrant and Seasonal Worker Protection Act which established, among other things, health and safety standards for housing and gave farmworkers the right to receive written notice of the terms of their employment and, ultimately, file suit for employer violations of the law.

Farmworkers are Still Denied Basic Labor Protections

Yet, gaping holes remain in federal labor protections for the United States’ 1.13 million farmworkers. Farmworkers still do not have the right to overtime pay or collective bargaining; without the latter, farmworkers can be legally retaliated against for organizing, or even complaining about work conditions or asking for a raise.

It is no coincidence that, across the country, farmworkers make meager wages and endure punishing working conditions. According to the 2015-2016 National Agricultural Workers Survey, one-third of farmworkers had family incomes below the Federal Poverty Level; the average family income was between $20,000 and $24,999. Agriculture ranks among the most dangerous industries for workers, with a work-related fatality rate of 21.4 deaths per 100,000 workers. Farmworkers face a number of health and safety risks, including pesticide poisoning, heat and sun exposure, hazardous tools and machinery, musculoskeletal injuries and respiratory illnesses. In addition, an epidemic of sexual harassment and violence is finally coming to light.

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.

21.4

The work-related fatality rate per every 100,000 agricultural workers.

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.

Terms to Know
H-2A Visa
According to the Department of Labor, a H-2A visa "authorizes the lawful admission into the United States of temporary, nonimmigrant workers (H-2A workers) to perform agricultural labor or services of a temporary or seasonal nature."

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.”

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