Does A Foreign Worker Program Verge On 'Indentured Servitude'? A Debate Simmers In Washington State | KNKX

Does A Foreign Worker Program Verge On 'Indentured Servitude'? A Debate Simmers In Washington State

Feb 28, 2018

More than 18,000 foreign workers, most of them from Mexico, traveled legally to Washington last year to labor on the state's farms, largely in the apple, pear, and cherry industries.

Recent high-profile lawsuits have thrust the state into a debate about the benefits and shortcomings of the H-2A visa program, which allows farmers to import temporary workers from other countries to make up for labor shortages at home.

The U.S. Department of Labor announced a lawsuit Tuesday accusing a Skagit County berry farm of illegally rejecting domestic workers in order to hire from abroad using the H-2A program.

In January, the nonprofit law firm Columbia Legal Services filed a lawsuit against a Whatcom County berry farm where a worker died last year, claiming foreign workers suffered there due to poor conditions.

To farmworker advocates, the cases point to inherent flaws in the program that leave foreign workers isolated and vulnerable to abuse.

One reason is workers are required to stay with one employer — an employer who likely spent roughly $1,000 per worker to import them — during their months in the United States.

“The employers feel like they’ve made an investment in particular workers such that they feel entitled to those workers’ labor, and that comes dangerously close to a situation where an employer has ownership," said Andrea Schmitt, an attorney with Columbia Legal Services. "It starts to look a bunch like indentured servitude.”

But to farmers' defenders, unfair enforcement and criticism risks undermining a program that's good for workers.

They say the program provides government oversight of worker housing and other conditions that would otherwise go unregulated.

“H-2A is a fantastic program that workers love. Period, end of story," said Dan Fazio, executive director of the Washington Farm Labor Association, a nonprofit that connects farmers with foreign workers. "It gives them high wages, excellent working conditions, and the dignity of legal presence."

Favoring Foreign Workers

The Department of Labor's lawsuit accuses Sakuma Brothers Farms, located in Burlington, of bypassing qualified domestic workers in order to hire foreign workers.

Farm representatives did not respond to requests for comment.

The suit also names Fazio's organization, known as WAFLA, which helped Sakuma Brothers Farms navigate the H-2A program. Fazio called the allegations "untrue."

Schmitt with Columbia Legal Services said generally farmers prefer workers from abroad because they tend to be less likely to complain about working conditions.

“H-2A workers are good for employers precisely because they’re compliant, because they don’t have the ability to leave and look for other work," she said.

Foreign workers often find themselves isolated on their farms, unable to drive, unaware of their rights, and fearful that speaking up could get them "blacklisted" from future employment by recruiters in Mexico, Schmitt added.

In order to qualify for the H-2A program, farmers must first try and fail to hire workers locally and prove to the federal government that they're suffering from a labor shortage. That includes advertising the job openings locally and posting them to a database seen by employment offices in other states.

Schmitt said it's easy to game the system. Farmers, she said, can "disincentivize" domestic workers from accepting a job by making the conditions seem unappealing, then claim they can't fill the job locally.

"Over the years, we've seen many instances where employers and farm labor contractors very successfully turned away local workers in one way or another," she said. "It's very common for employers to say, 'Okay, you can have this job, but you have to commit to working every day for me for this nine-month period.'"

But WAFLA's Fazio said the standards that farmers have to meet in order to qualify for H-2A are "ridiculous" and should be loosened.

He said under the rules, farmers still have to keep some positions open for local labor. Even if employers fill them, it often doesn't work out.

"They have to agree to hire a potentially infinite number of people throughout their entire season," he said. "Literally, farmers have to keep open beds and keep positions open for a person who might be there for one or two days. It’s a tremendous waste of time."

The Department of Labor also claims Sakuma Brothers Farms illegally gave preferential treatment to foreign workers in the form of household goods, bus rides to the fields, and breaks on housing deposits that domestic workers didn't get.

Federal regulators are seeking nearly $125,000 in penalties and nearly $10,000 in back wages for an eligible domestic worker who was passed over for a job and for bus drivers who drove workers to the fields.

"While this farm has taken steps to correct its practices, we seek to hold accountable those who unlawfully discriminate against American workers," Janet Herold, the Department of Labor's regional solicitor, said in a statement.

Fazio said Sakuma Brothers Farms opted into the H-2A program in 2014 "as an experiment" and hired "a fraction" of the foreign workers the federal government allowed. The farm's owners then dropped the program, he said, and it's unclear if they ever used it again.

In 2014, Sakuma Brothers Farms was dealing with walkouts by its domestic workers, who were trying to organize. The workers later joined a union and negotiated their first contract last year.

Fazio said he has seen a lot of "shaky human resources practices" at farms, but Sakuma Brothers Farms isn't one of them.

“Sakuma is a model employer," he said. "And it’s frustrating to see that the Department of Labor is levying a fine on these guys because they’ve been through a lot."

Written Out Of Law

The January class action lawsuit by Columbia Legal Services targeted a different operation: Sarbanand Farms in Sumas, near the Canadian border.

The lawsuit claims foreign workers were told last year that they had to be working in the fields every day "unless they were on their death bed."

An attorney for the farm's parent company, California-based Munger Farms, called the allegations "untrue" in a January statement.

"All employees are treated well and paid well," attorney Tom Pedreira said.

In August 2017, an H-2A worker on the farm, Honesto Silva Ibarra, complained of head pain, collapsed on the job, and later died at Harborview Medical Center in Seattle, according to farmworker advocates. He was 28.

His hospitalization led about 70 of his colleagues to walk off the job in protest, saying they were forced to work long days in the heat with not enough food.

The lawsuit doesn't make any claims regarding Ibarra's death. But it does deal with general conditions on the farm, arguing its owners violated federal and state labor laws.

Advocates say H-2A workers are especially vulnerable to working in poor conditions because they've been written out of the main federal law protecting other farmworkers, the Migrant and Seasonal Agricultural Worker Protection Act.

Fazio said H-2A workers benefit from even more stringent protections in the contracts they sign with their employers.

Typical contracts, he said, guarantee workers a minimum wage and say workers could be required to work up to 40 hours a week but anything beyond that is optional.

Contracts also say workers can't be forced to work on their Sabbath, and are reimbursed for any expenses they pay while traveling to the farm and, if they complete the contract, back home as well, he said.

"The employer can only terminate worker for a violation of the contract, whereas domestic workers are at-will employees," Fazio said.

But Schmitt said it's much harder to take an employer to court for a breach of contract than for a violation of federal law.

"While there may be some things that are, in theory, better protected for H-2A workers, it is much harder to enforce those rights," she said.

After Ibarra's death, the state Department of Labor and Industries launched an investigation into Sarbanand Farms.

On Feb. 1, state and local officials fined the farm's owners nearly $150,000, saying hundreds of workers missed rest or meal breaks.

"These violations are serious," Elizabeth Smith, the department's assistant director for Fraud Prevention and Labor Standards, said in a statement. "Meal and rest breaks are especially important for farm workers. It's physical labor, and they often work long hours outside in the elements."

While Ibarra's death spurred regulators to scrutinize the farm, an autopsy later determined he died of natural causes unrelated to conditions at his job, according to the state Department of Labor and Industries.

Sarbanand Farms called it an exoneration.

“We are relieved and reassured that state investigators concluded what we have known all along — that Mr. Ibarra’s death, while tragic, was not the result of the company’s actions or policies,” the farm said in a statement.

Calls For Reform

Advocates on both sides of the H-2A issue say the program needs a regulatory overhaul, but disagree on the reasons and the objectives.

Proponents of H-2A say, without the program, workers would enter the country illegally and live in their cars or housing that hasn't passed government inspection. Some argue it should be easier for farmers to opt into the program.

"For example, a small farmer needs five people," Fazio said. "We should have those farmers offering the job to five people and if the five people don’t want it, then they’re free to hire foreign workers. And once they start their season, they shouldn’t have to keep hiring people once the foreign workers get here."

He said WAFLA is also working to root out scammers in Mexico who promise potential workers they can get on an H-2A "list" for a hefty fee. He said the scammers are in business because H-2A jobs are so desirable in Mexico.

Schmitt said H-2A workers should have the ability to change jobs if they don't like their employer and be written into the Migrant and Seasonal Agricultural Worker Protection Act.

She also said foreign workers should have a pathway to legal residency or even citizenship. That effort has been included in past attempts at immigration reform.

"They should be part of an immigration system that gives them a path to being members of the community here," she said, "and incentivizes them to make ties to the community and understand their rights."