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U.S. lawsuit over Arizona farmworkers shines light on Visa program

Posted by   /  August 12, 2017  /  No Comments

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Workers contracted through the H2A guest-worker program labor in the watermelon fields of G Farms, in El Mirage, Ariz. ALEJANDRO LAZO/THE WALL STREET JOURNAL

As demand for temporary workers soars, Labor Department cracks down on living conditions described as ‘horror show’

By Alejandro Lazo | The Wall Street Journal

L MIRAGE, Ariz.— For the last two seasons, G Farms has depended on legal migrant workers to harvest potatoes, onions and watermelons growing in its fields on the outskirts of Phoenix. Now the farm is bearing different fruit: a first-of-its-kind federal lawsuit that federal officials and immigration activists say exemplifies the pitfalls of the nation’s agricultural visa program—as Congress proposes changes to it.

This year the U.S. Labor Department took the farm to court, saying its owner, Santiago Gonzalez, underpaid some of its 69 workers by not offering a set, hourly wage and housed them in an “encampment” consisting of yellow school buses and semitrailers that “violated numerous safety, sanitation and fire code regulations.”

Janet Herold, the regional solicitor in charge of the case for the Labor Department, called the living situations a “horror show” that could have led to many worker deaths.

The case is the first time the department won a preliminary injunction against a farm using the temporary farmworker visa, known as the H2A. A federal judge barred the business from housing the workers in the encampment, forcing it to house them in an apartment complex and an extended-stay motel for the rest of the season.

Mr. Gonzalez declined to comment. His attorney said he is cooperating with federal officials.

The case comes as demand for foreign farmworkers soars, and as Congress is expected to introduce a measure later this year that could make changes to guest worker programs. The Labor Department has certified 160,084 workers through the program so far this year, a 20% increase from the year-earlier period.

President Donald Trump has discussed a revamped guest worker program with Mexican President Enrique Peña Nieto. Mexico received 92% of the H2A visas issued last year, according to data from the U.S. State Department. Separately, the Trump administration is backing a proposal to cut the number of green cards annually by half.

U.S. Rep. Bob Goodlatte, chairman of the House Judiciary Committee and a member of the Agriculture Committee, last month said it was “well past the time to replace the outdated and onerous H2A program” and activists said they expect him to introduce a bill aimed at the program later this year.

Jason Resnick, vice president and general counsel for the Western Growers Association, which represents local and regional farmers in Arizona, California and Colorado, said there has “historically been good oversight and enforcement in the H2A program, and this case demonstrates that those enforcement mechanisms are working. … So if those allegations are true, it shows the Department of Labor is on top of its compliance and enforcement obligations,” he said.

Critics say the H2A program has been rife with abuse because of poor living conditions and wages for workers. The Labor Department and state officials said this week they are investigating the death of a farmworker on an H2A visa working in rural Washington state, which led to protests from other workers.

In a rare instance of agreement between immigration-rights activists and the Trump administration, immigration advocates welcomed scrutiny from the federal government in the G Farms case. Bruce Goldstein, president of the group Farmworker Justice, said he was pleased with “an aggressive stand in court against the abuses.”

Workers at the farm’s processing facilities, contracted through the H2A program, packed watermelons into crates for distribution to supermarkets locally and across the West.

But he said he fears that efforts to revamp the program—either through Mr. Goodlatte’s measure, or through a series of bills already introduced in the Republican-controlled Congress—could weaken worker protections under the program if signed by Mr. Trump.

Secretary of Agriculture Sonny Perdue recently hired a former American Farm Bureau Federation lobbyist that critics on both the left and the right expect will lead the push for an H2A expansion.

One bill introduced in the U.S. House of Representatives would move oversight of the program from the Labor Department to the Agriculture Department, which is considered more favorable to industry.

Critics fear another bill in the U.S. Senate—which would create a pilot program for states to have their own guest-worker program—could remove federal oversight of the program.

Another bill proposed by Rep. Rick Allen (R., Ga.) would limit the ability of legal aid attorneys to represent agricultural guest workers. That bill would also move administration of the program to the Agriculture Department, change the methodology for how wage rates are calculated and eliminate the obligation to provide housing as long as a state’s governor certified that farmworker housing was available.

“Right now many farmworkers in the U.S. are experiencing a housing crisis,” Mr. Goldstein said. “Many farmworkers are already living in very crowded shelters, sometimes it is a house, sometimes it is a trailer, sometimes they are just living in cars.”

In some parts of rural California, for instance, farm labor has essentially “cornered the market for small hotels that were used by low-income folks,” said Cynthia Rice, director of litigation at California Rural Legal Assistance Inc.

The Trump administration declined to comment regarding the bills before Congress. Meanwhile, demand is on the rise from the agricultural industry for more H2A visas, as the Trump administration cracks down on illegal immigration and farms struggle to find enough workers.

To escape the brutal heat and living conditions at the Arizona farm, “some workers left the cargo containers and took refuge in a nearby open-air shed to sleep on discarded bus seats that were being stored there,” the Labor Department said in court documents.

Michael King, the attorney representing the farm, said “the housing conditions were corrected immediately as soon as notification was given” and that the government didn’t have to pursue its suit.

He also said the piecemeal rate at which workers are compensated—meaning they are paid by volume of products picked, not by the hour—is legal. But he added that many workers were paid less than what would be equivalent to the legally required $10.95 an hour during their first weeks of work because they were adjusting to the pace of labor.

“In our view, the lawsuit that got filed almost immediately didn’t need to be filed,” he said. “Our client had already fixed all the deficiencies.”

The Labor Department said in court documents that G Farms failed to keep records of the hours of its workers.

Emilio Chaparro García, 37 years old and one of the workers whose treatment prompted the suit, said he came to Arizona to work for G Farms from the small town of Sinaloa de Leyva in the state of Sinaloa, Mexico, to save money to send his three daughters to school. This season was his second with G Farms, and he said he believes the farm treated workers well. He has been coming to the U.S. as a seasonal worker since 2008 using the H2A visa, he said.

After the Labor Department’s intervention, he was paid $10.95 an hour and worked eight hours a day on the farm. At night, he slept in the motel.

Four other Mexican laborers interviewed by The Journal with their employer present echoed his sentiments, with all of them declining to say their living conditions or pay had been an issue.

“We were living good, we weren’t lacking in anything,“ Mr. Chaparro García said. ”We had everything we needed.”

Ms. Herold, of the Labor Department, said it was workers themselves who called the Mexican Consulate about the conditions, and the Mexican Consulate alerted her office.

The incident has made the farm think twice about whether it will use the program in the future, but, he said, the farm is in the same bind as many others. There simply isn’t enough accessible labor.

“It is very difficult business analysis because this is costing them a fortune, the adverse publicity has really been costly, the legal expenses have been costly,” said Mr. King, the farm’s lawyer. “But without the H2A visa workers it is very, very hard to harvest onions and watermelons in Arizona.”

 

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