Farmworker advocates fear the USDA’s decision last month to cancel the Farm Labor Survey is a step toward dismantling the already modest protections for agricultural guestworkers under the H-2A visa program in the middle of the Covid-19 pandemic.
Labor officials use the Farm Labor Survey to calculate regional minimum guestworker wages that don’t adversely affect U.S. workers. Federal law established this adverse effect wage rate (AEWR), as it is called, decades ago to ensure that employers don’t undercut wages and labor standards for domestic workers by relying on workers from poor countries who accept much lower pay.
Last year, the Department of Labor proposed sweeping changes to dismantle guestworker protections as part of the Trump administration’s deregulation agenda. The most troubling proposals would allow employers to inspect their own worker housing, shift nearly a billion dollars’ worth of transportation costs to workers and cut guestworker wages by revising the AEWR.
Worker advocates, who have long complained that lax oversight of the H-2A program results in workers suffering all manner of labor abuses, easily collected more than 70,000 comments opposing the plan.
The Department of Labor has yet to release its final rules, which were expected in August. But the administration appears to be advancing at least part of its agenda through the USDA.
Canceling the survey is the latest move in a longstanding effort to lower H-2A wages, said Bruce Goldstein, president of the nonprofit Farmworker Justice. “But we’re wondering what the hell they’re going to do under the new regulations.”
The administration may not even bother to issue a final rule, he said. “They may just say, ‘Here’s a gift to employers: no Farm Labor Survey means no adverse effect wage rate. Congratulations, you can now underpay workers.’”
Soon after Trump was elected, he tapped Agriculture Secretary Sonny Perdue to lead an interagency task force on agricultural prosperity. In a 2017 report, Perdue assured the administration that the task force was addressing farmer concerns about the H-2A program’s administrative burdens through regulatory changes to ensure access to a “lawful workforce.”
The report made no mention of farmworker concerns.
Leydy Rangel, a spokeswoman for the United Farmworkers Foundation, believes the administration aims to give farmers access to more workers at a lower price with fewer responsibilities for their welfare. “There are going to be more and more attempts to reduce their wages or just eliminate their protections as much as possible to ensure that workers remain vulnerable.”
Farmers have increasingly hired guestworkers to harvest the nation’s food. A decade ago, about 79,000 H-2A jobs had been approved. The number had more than tripled by last year, a 30-percent rise just since Trump took office. H-2A employers must provide transportation, housing and meals for the foreign workers they hire.
Guestworkers depend on their employer for basic necessities, including transportation to run errands, said Karla Gilbride, an attorney with Public Justice, a nonprofit that represents low-wage workers. “Hanging over all of that is the threat of deportation, which the employer can use as a disciplinary bludgeon to say, ‘You better do what we say or we’ll revoke your status.’”
The H-2A program is ripe for exploitation because the visa ties a foreign worker to a single employer, said Ben Botts, legal director of the nonprofit Centro de los Derechos del Migrante. That leaves Spanish-speaking workers hundreds of miles from home at the mercy of employers who can invalidate their visa simply by firing them.
“Workers often feel compelled to continue working in situations that you or I would never accept because they face very serious consequences if they don’t keep working,” Botts said. “They have to choose between becoming undocumented or going home.”
In a survey of 100 guestworkers released earlier this year, Botts’ organization found that every single worker had experienced at least one serious labor violation such as wage theft or restrictions on their mobility.
“It’s a program that’s designed to facilitate the types of abuses we see often,” Botts said.
Eroding protections during a pandemic
When the pandemic hit, farmworker advocates urged Trump administration officials to enforce existing laws to protect the guestworkers they’d deemed “critical to maintaining our food supply” from the coronavirus.
Instead, the administration relaxed hiring constraints and considered a plan to lower wages. Goldstein, of Farmworker Justice, obtained details of a new AEWR formula through a Freedom of Information Act request, and found “massive wage losses” up to $6.18 an hour for both guestworkers and U.S. workers at H-2A employers. Farm laborers, among the country’s lowest-paid workers, could lose between $2,000 and $3,000 per season, Goldstein reported in May, forcing them to skip meals or essential medications.
Rep. Ted Yoho, a Republican from Florida, which employs the most H-2A workers, introduced a bill in March using the same AEWR formula. Yoho, who sits on the House Agriculture Committee, and his co-sponsors have taken more than $3.5 million from farming interests since 2012, a review of campaign finance records shows.
In July, four months after advocates requested immediate pandemic protections for farmworkers, a Labor Department spokesman dismissed their recommendations as “beyond the scope” of its authority.
Asked why the Department of Agriculture canceled the survey, a spokeswoman replied: “USDA has determined the public can access other data sources for the data collected in the Agricultural Labor Survey.”
A Labor Department spokesman did not address questions about how the agency would maintain fair guestworker wages without the survey, and said he could not comment on the agency’s final H-2A rules. On the same day the USDA canceled the wage survey, the Congressional Hispanic Caucus held a panel with leading healthcare experts addressing Covid-19’s disproportionate impacts on Latinos.
Hispanics under age 65 are dying of the virus at three times the rate of whites, said panel member Peter Hotez, dean for the National School of Tropical Medicine at Baylor College of Medicine who’s working on a coronavirus vaccine. “It’s robbing families of mothers and fathers and brothers and sisters, causing a historic decimation of Hispanic communities,” he told me.
Letting employers do their own housing inspections, as the administration proposed, is particularly troubling during a pandemic, said Iris Figueroa, the senior staff attorney at Farmworker Justice. Illegal overcrowding was common before self-inspections, she said. “Now there’s the risk of Covid contagion on top of everything else.”
Overcrowded housing sparked Covid-19 outbreaks among hundreds of guestworkers in California alone, CalMatters reported. As of Monday, more than 143,000 farmworkers had tested positive for Covid-19, according to estimates from Purdue University, which does not track seasonal workers.
For all the abuses visited upon guestworkers, they account for only 10 percent of the nation’s 2.5 million farmworkers, who are mostly undocumented immigrants, said Goldstein. “We’re now calling them ‘essential.’ We need immigration reform to grant them immigration status and a path to citizenship.”
Once that happens, he said, there’s less need for the kind of labor protections and regulations required under the H-2A program because workers would have the freedom to stay in the country, switch jobs and assert their rights without fear of deportation. “And if the goal is to reduce government regulation,” he said, “that also can be accomplished.”