CALIFORNIA LAWYER

September, 2011

SOMETHING LESS THAN PROSPECTIVE CITIZENS

Borrowed hands -- does the H-2A guest worker visa program make it easy to exploit farm workers?

By David Bacon

In the fall of 2006 Irma Luna, a community outreach worker for California Rural Legal Assistance in Fresno, got a phone call.

Hundreds of farm workers, the caller said, were living in the Siskiyou County Fairgrounds, and many were being fired and sent back to Mexico.

To investigate, Luna and CRLA attorneys Alegria Delacruz and Mike Meuter drove 500 miles north to the tiny town of Tule Lake.

Waiting at the local library they found a hundred angry laborers.

Over 600 people, workers said, had been contracted in Mexico by Sierra Cascade, a large nursery, to spend six weeks trimming the roots of strawberry plants.  The company owns over a thousand acres of nursery ranches in northern California and southern Oregon, where it grows rootstock for berry plants, selling to growers around the world.

The attorneys took declarations and prepared a suit, beginning one of the largest litigations in California over the job rights of contract Mexican guest workers.  It became one of the longest as well.  The last payments to workers to settle their claims were finally made this spring, five years later.  The passage of that much time might not seem extreme to many California lawyers.  But to workers who live from one paycheck to the next, waiting five years to get paid is more than a delay.  It is an indication that the legal process cannot overcome the vast inequality in power between Mexican contract workers and their employers.

California's 650,000 farm laborers comprise a third of the nation's agricultural workforce, but only about 1 percent of those laborers are here on H-2A visas - a much lower rate than on the East Coast.

However, numbers don't tell the full story. For more than a decade pressure for expanding guest worker programs in California agriculture has been coming from growers and the politicians close to them. More than half of the state's farm workers are undocumented, and though their labor is cheap, growers can't always rely on having it when they need it. And if the prohibition on hiring undocumented workers were seriously enforced in agriculture - as it has been increasingly in other industries - most enterprises would not be able to function.

Every major immigration reform bill proposed over the past decade, therefore, has called for the expansion of guest worker programs. In this atmosphere, then, Sierra Cascade became a watershed case, with farm worker advocates seeking both to enforce the limited legal protections available to the workers and to highlight the fundamental structural imbalances built into the H-2A visa system.

One of those workers, Ricardo Valle Daniel, described in a declaration the way he and many others were hired by the company's human relations director, Larry Memmot.  While still in his hometown of Nogales, Mexico, Valle said in a declaration, Memmot offered him a H2A visas and a contract guaranteeing 6-8 weeks of work at $9 an hour.  The company would supply housing and transportation.

The H2A visa program, enacted as part of the federal Immigration Reform and Control Act of 1986, allows an agricultural employer to recruit workers outside the U.S. First, however, the employer must obtain Department of Labor certification that it can't find local labor to meet its needs, and that hiring foreign workers won't drive down the wages and working conditions of domestic laborers.  The workers are given H2A visas, but can only work for the company recruiting them, and only for less than a year.  At the end of the contract they must return to their country of origin.  Federal regulations govern wages, housing and other conditions.

"On or about the night of September 20, 2006," Valle recounted in the declaration, "Sierra Cascade transported me and other workers by bus from Nogales to Susanville" in Lassen County.

Nine buses of workers made the trip in about 24 hours. Though the company had promised to provide them with food for the journey, the workers were given only water, Valle stated.

In Susanville, more than a thousand miles from the Mexican border, "we were given documents to fill out and sign. ... In addition, I was given a new copy of the employment contract," Valle stated. "There were significant differences between the information we received in Mexico when we were recruited and the employment contract we were forced to sign at that time."  The big difference was that the contract specified they'd have to meet production standards requiring them to process over 1000 plants per hour.  "I was told by Mr. Memmot," Valle said, "that the new provisions were [due to] clerical errors ... and that I had to sign the documents - otherwise I would be sent back to Mexico."

After the stop in Susanville, the workers were taken to Tule Lake and bunked in a warehouse at the fairgrounds, sleeping in a large room on cots densely packed together.  Valle and his wife, Ana Luisa Salinas de Valle, were among more than 100 workers who slept in bunk beds in a mixed-gender dormitory. Around six the next morning, they boarded company buses to the nurseries.

From the beginning, however, they had problems with the quota.  As former factory workers they had no experience cutting the roots of strawberry plants. "This is not a common job," he explained, "and it has taken me some time to learn to do it without damaging the plant.  In fact, if I don't do it correctly the cuttings that are used to credit my piece rate are thrown away by my forelady and I don't get any credit for them."   When Valle and his coworkers couldn't make the quota, the supervisor threatened to fire them and send them home.

At the fairgrounds, life was grim.  "During the first two weeks on many occasions we would have a cup of coffee for breakfast, a small portion of greasy tough meat with rice for lunch, and cereal, coffee and bread with jelly for dinner," Valle says.

After the workers met with the CRLA lawyers, the food got better. But in the warehouse couples like Rosa Ignacia Guzman Castro and her husband were also housed in a barracks-type room where many men and women were mixed together, despite what she said were promises of family quarters.

Her first paycheck for two weeks work totaled $1078.12.  The company deducted $130.20 for the food, leaving her with $947.93.

Like the other H2A workers, she didn't take breaks and worked through her lunch period, trying to make the quota.  She put in more than 125 hours -- over 11 hours a day (8 on Saturday) - making her hourly rate just over $7.50.  She wasn't paid time-and-a-half for overtime.

Finally, at the end of her third week, she and 50 others, including Ana Luisa Salinas de Valle, were fired for not meeting quota and told to get on a bus to Mexico. "I came with my husband, and he has not been fired. I do not want to be separated from him, or to have to travel without him back to Mexico," Guzman recounted telling the bosses.  She was already sick from the cold.  "I am afraid to travel alone in this condition," she worried.

By then she'd already met with Luna and Delacruz, so she knew the company was supposed to pay her final check immediately if they fired her.  When the foreman wouldn't do so, she and others refused to get on the bus, and he called the sheriff.  "I think if the sheriff hadn't agreed to talk with our attorneys we would have been put in jail or sent back without our pay," Guzman said.

To try to address the allegedly substandard housing conditions, and intervene to prevent more firings, the CRLA lawyers filed suit in Superior Court for Siskiyou County in Susanville on October 16, asking for a temporary restraining order.  The suit, filed less than a month after the contract workers had arrived, was brought under California's Unfair Competition Law (UCL) and asserted individual causes of action for breach of contract and violations of California labor laws.

Failure to comply with statutory wage and hour requirements, the legal assistance lawyers argued, is unfair competition.  The suit listed nine causes of action, all state violations:  breach of contract, failure to pay minimum wage, provide break and meal periods, or pay wages due on discharge, unlawful wage deductions, misrepresentation, housing violations, enforcement of penalties and unlawful competition.

There were also violations of Federal regulations governing the H2A program, CRLA attorneys believed.  The company had failed to pay the required wage, called the adverse wage rate, which at $9 an hour is set slightly higher than the minimum wage.   It hadn't paid overtime after 10 hours a day or 60 a week, violating Federal wage and hour laws.  Compensation also has to comply with prevailing practices, which CRLA litigation director Cynthia Rice believed meant the quota and piece rate system wasn't legal either.   Failure to disclose the production requirement violated the H2A regulations, which hold that a written contract must set forth all the terms and conditions at the time people are hired.

Further, if workers complete half of their contract, the company has to reimburse transportation to and from the U.S. worksite, and provide subsistence payments to allow people to eat on the way.  While the fired workers hadn't completed half their contract, under Arriaga v. Florida Pacific Farms the first weeks' wages, minus the unreimbursed transportation expense, must total a wage above the legal minimum.  CRLA attorneys believed Sierra Cascade hadn't met this standard either.

However, CRLA filed suit in Superior Court, alleging violations of state statutes, rather than in Federal court under the H2A regulations.  By doing so, it sought to avoid a basic problem in enforcing labor standards for H2A workers.  "There's no private cause of action that can enforce the Federal regulations governing their employment," Rice explains.  "The law doesn't recognize the right of H2A workers to go to Federal court."  Workers can file a complaint with the Department of Labor, but the process is very slow, and under the Bush administration, the outcome seemed uncertain.

CRLA attorneys sought action that would change the conditions while workers were still in the U.S., especially to stop the firings.

They argued that California's Unfair Competition Law (UCL) in particular gave them standing to request a TRO in Superior Court.

Sierra Cascade had failed to pay the H-2A program's required "adverse effect wage rate," and by maintaining illegal conditions, CRLA argued, Sierra Cascade was able to unfairly lower costs and therefore unfairly compete with other employers who obeyed the law.  "That allowed us to ask for immediate injunctive relief," Rice says.

Attorneys for the defendant didn't respond to requests for comment.  The company's answer to the complaint, filed by Merrill F. Storms Jr. of Piper US LLP, admitted some basic facts, including that "the Tule Lake Fairgrounds facility consisted of barracks/dorm-style housing with cots and bunk beds," but denied all allegations of illegal conditions.  In addition, it put forward forty-nine affirmative defenses, including the unconstitutionality of the California Unfair Business Practices Act.

Instead of litigating these issues in Siskiyou County, however, Storms removed the case to Federal court, arguing that "the court has original jurisdiction under 28 U.S.C. 13331" and that "it is a civil action founded, in part, on claims arising under 8 U.S.C

1101 et seq. (Federal Agricultural Guest Worker Program)."   As for undercutting other employers, the company asserted, "Plaintiffs' attempt to use California's Unfair Competition Law as an 'end run' around the Secretary of Labor's jurisdiction over the H-2A Program must be rejected."  It maintained in court filings that it complied with state labor laws; that production quotas are necessary to the operations of its business and consistent with industry standards; and that it voluntarily provided fired workers with bus transportation back to Nogales.

Four days later on October 20, Federal Judge Garland Burrell granted a partial TRO, seven days before the employment period in the remaining workers' H2A contracts was due to end.  Burrell ordered the company to comply with basic standards on bed spacing, heat in the bathrooms and meals.   He accepted CRLA's arguments that food should meet the standard of the Child Nutrition Act.

He declined, however, to find that the production standards were illegal, and therefore that the company should not fire workers for failing to meet them.  CRLA argued that the quota requirement hadn't been disclosed when the workers were hired, and only included in a contract they were required to sign once they were a thousand miles north of the border.  "At that point they had to sign because they were already in the country and had to work," Rice charged.  The company denied it had misled workers, and fiercely defended both the standards, and its right to fire workers and return them to Mexico if they couldn't meet them.

Sierra Cascade CEO Steve Fortin argued in a declaration, "If there are no production standards, Sierra Cascade is concerned that a substantial number of workers, particularly the H2A workers who have indicated a dislike for the trimming work, will simply produce little or nothing and draw their $9 per hour pay plus free housing."  In another declaration Larry Memmot, Sierra Cascade's HR director, added, "since the start of the [company's] H2A program, approximately 170 H2A workers have voluntarily resigned.  In addition approximately 100 workers have been terminated for failure to meet a production quota."

The root cutting work ended soon after the Federal order was granted, and the workers returned to Mexico.  Finally, on January 24, 2007, the CRLA legal team won a victory when Judge Burrell accepted their argument that although some conditions were governed by Federal regulations, the allegations in the complaint turned on state rather than Federal law.  In particular, although violating Federal H2A regulations might constitute unfair competition, giving the Federal court jurisdiction, violations of California worker protection statutes was an alternative legal theory.  "Defendant has not shown why Plaintiffs' [Unfair Competition Law] claim is not supported by an 'alternative and independent' state law theory," Burrell decided, and therefore remanded the case back to Siskiyou County.

Once the case was back in state court, CRLA and the company began settlement negotiations.  A year and a half later, in October 2008, CRLA and Sierra Cascade reached agreement.

The final settlement revolved around three issues.  One other H2A regulation guarantees that workers will be paid at least three quarters of the hours promised under their contract.  California Labor Code section 226.7 says workers must be paid an hour's wages for each missed break period.  And Labor Code section 203 requires an employer to pay workers 30 days pay if it terminates their employment without paying their wages immediately.  The total settlement included $59,000 for unpaid wages and rest periods, $57,000 for the guaranteed number of hours under the contract, and $210,000 in penalties and damages.

The company was required in the future to pay travel time from housing to the workplace, to disclose all contract provisions in Spanish in Mexico, to reimburse transportation expenses from Mexico to the U.S. worksite, and to provide legal housing, heat, toilet and laundry facilities, meals, and meal and rest periods.

CRLA attorneys hoped the Sierra Cascade settlement would accomplish two things: spreading word among H-2A workers in Mexico that their labor rights in the U.S. are enforceable, and putting California growers on notice that those rights must be respected.

"We've seen in other states that H-2A programs have been accompanied by serious labor and housing violations, and the displacement of local U.S. workers," says the CRLA's Rice. "We believe that litigation to vigorously enforce labor standards can help keep that from happening in California."

While the settlement ended the suit, it began a second phase for CRLA and the workers that lasted much longer than the litigation itself.  It took a two-and-a-half-year effort to track the workers down and ensure they received their share of the settlement.

Long before agreement was reached with the company, the workers were back in Mexico. To ensure that plaintiffs knew what was happening with their case, and were able to agree on the terms of the settlement, Luna set up a communications network among them.  While 52 were named in the suit, the company gave the lawyers a list of 242 people entitled make claims under the terms of the settlement, either because they were owed reimbursement for travel, or because they hadn't been paid for three-quarters of the hours promised in their contract.

"We generally knew where the plaintiffs were, but for most workers, the company listed an address in Susanville.  Since we knew they were actually living in Mexico, we had to look for them," she remembers.  "So I compared the names, and found people in the same family.  I went over the list with the plaintiffs by phone, and they knew where others were."

Most workers came from Sonora and Chihuahua, but others from more remote states, including Zacatecas and Guanajuato.  Luna realized that there was already a network used by the recruiters in small towns.  When she called someone saying she was looking for "the guys who went to California," word spread through that network.   "In

Casas Grandes, Chihuahua, for instance, we found one person who helped us find the others," Luna says.  "In each place workers had been recruited, we found a contact.  People would go to that person's house, and sign the papers we needed."

The hunt began in October 2008, and workers had until October 2010, to make a claim. "We never did find everyone," Luna says.

"There were still about 40 we couldn't locate when the time expired."

CRLA staff went to Nogales, where they held a press conference on the border, hoping that news of the settlement in the Mexican press would encourage more workers to claim their part.

Slowly, she began to collect signatures on forms authorizing payment, turning hem over to the company.  Beginning in May of 2009, Sierra Cascade began issuing checks, deposited first in CRLA's trust account.  But getting money to claimants themselves turned out to be complicated.  Workers in Mexico couldn't cash CRLA checks.  The wire-transfer companies used by workers to send wages home couldn't handle the large sums and many individuals involved.

Finally CRLA asked the Center for Migrant Rights in Zacatecas (Rice sits on its board of directors) to distribute the money to each person.  The center is one of several organizations in the U.S. and Mexico that have started programs to ensure that guest workers receive settlements for violations of rights and wage standards, and Rice sits on its board.  CDM opened an office in Zacatecas because of that state's role in encouraging its residents to enroll in guest worker programs.   With over 50% of Zacatecans abroad, remittances are the state's largest source of income.

Even with CDM's help, it was hard to determine sometimes whether the person claiming the money was who they said they were.

Finally CRLA and CDM developed a unique code for each person.  At the bank where CDM deposited money, claimants had to have the code and show their "voting credential," an identification document workers already had before they came to the U.S. to work.

"It was very complicated and difficult," Luna concluded.

Despite Sierra Cascade's six-figure payout in the case, the company has continued to use the H-2A program; on the California/Oregon border, there's not much in the way of a permanent farm labor force. In 2009 Sierra Cascade obtained 742 H-2A visas.

Last October it was certified for 310 guest workers. Department of Homeland Security records indicate that this year Sierra Cascade has applied for at least 45 H-2A visa workers to be housed in a dormitory and barracks at Susanville, and another 55 at Tule Lake. According to its application, the nursery company still holds workers to a production quota.

Legal action by CRLA and others has not slowed the recruitment of H2A workers.  The number of visas issued for guest workers increased rapidly just before the recession hit: The Department of Homeland Security certified 87,316 H-2A visas in 2007 and almost twice that number in 2008 for a peak of 173,103. Then the number dwindled with the economy, falling to 149,763 in 2009.

California H-2A employment followed a similar, if less pronounced, course. According to the DHS, 7,422 workers were admitted to California under the H-2A program in 2007 and 8,889 the next year, but the total dropped to 5,018 in 2009.

Unlike the East Coast - where the guest worker program's popularity surged in the 1990s after it was established in 1986 - California has a century-old tradition of immigrant labor in its fields. Employers here still hire great numbers of undocumented workers. "It's likely that over 70 percent of farm workers in America lack proper work authorization and immigration status," according to Craig J. Regelbrugge of the American Nursery and Landscape Association. Because H-2A workers' wages are set slightly higher than the federal minimum wage, hiring through that program has been less attractive to growers, who generally pay undocumented workers the minimum wage - and sometimes less.

But that calculation has started to change. From 2007 to 2009 the state ranked among the top five in applications for H-2A visas, twice ranking second only to Arizona. As immigration enforcement efforts increase, so does the appeal of foreign contract labor programs.  The current administration has placed much more emphasis on workplace immigration enforcement, including the E-Verify electronic database and audits of the I-9 immigration status forms each worker fills out at the time of hiring.

Meanwhile, political campaigns in other states to enact criminal sanctions against undocumented workers have stemmed the supply of agricultural labor. This year Alabama became the fifth state to adopt such criminal sanctions, following Arizona, Utah, Indiana, and Georgia. In June a federal court granted a temporary injunction in a constitutional challenge to the Georgia law - but not before the state agriculture commissioner reported that farmers would need the help of more than 11,000 additional workers to harvest this year's crops.

All of these pressures have increased growers' interest in the H-2A program.  In April, U.S. Rep. Elton Gallegly (R-Ventura), chairman of the House immigration policy and enforcement subcommittee, held a hearing on the H-2A program intended to "plant the seed for needed reform" - essentially a reinstatement of the Bush administration policies.

There have been recruitment programs in U.S. agriculture going back over a century.  The largest was the bracero program,

established in 1942 during World War 2, and ended in 1964.   At its height in the late 1950s, between 432,491 and  445,197  Mexican workers were brought into U.S. fields every year, and sent home after the harvest was over.

The bracero program was halted when the U.S. Congress, under pressure from Chicano civil rights leaders Ernesto Galarza, Cesar Chavez, Bert Corona and others, repealed Public Law 78.   They contended that farm workers would be unable to organize unions so long as strikers could be easily replaced by braceros.  And in fact, the grape strike that led to the organization of the United Farm Workers Union began in 1965, the year after the bracero program ended.

To replace the old contract labor system, Congress established family preference criteria for issuing residence visas ("green cards"). In 1986, however, the Immigration Reform and Control Act moved immigration policy back in the other direction, by setting up the H2A program to supply workers to growers..  At the same time, IRCA provided visas for about 1.6 million undocumented people then living in the U.S., and an additional 1 million undocumented farm workers.   It also required employers to verify the immigration status of all hires, and penalized them if they employed undocumented people.  Since then, other guest worker programs have been established for other industries and employer groups.

Democrats in Congress, including Sen. Dianne Feinstein and Rep. Howard L. Berman, have long championed AgJOBS, a plan to legalize limited numbers of undocumented workers in agriculture in exchange for relaxing requirements on the guest worker program. The bill would lower the adverse wage rate to its 2008 level, permit a housing allowance for workers in lieu of actual housing, and give workers a private right of action in federal court to enforce contractual provisions. The measure failed to become law in the last Congress but was included in the Comprehensive Immigration Reform Act of 2011 (S-1258), introduced in June by Sen. Robert Menendez (D-NJ).

Other proposals go in a different direction.  The Dignity Campaign, for instance, calls for increased protections for H2A and other guest workers.  But it would also end the programs altogether after five years.   Neither that proposal, however, nor any other

that would abolish the H2A program, has so far been introduced in Congress.

Over the past decade, CRLA attorneys have used legal action or the threat of it to win settlements for H2A workers employed by other growers as well.  It sued Ralph de Leon, a labor contractor in Ventura, in 2002, and Harry Singh, a San Diego grower, in 2004.  Both were early users of the H2A program in California.  In 2008, it filed suit in Sacramento for workers brought from Colima, Mexico by Salvador Gonzalez, Farm Labor Contractor, with promises of work for $100 a day. That case is pending.

CRLA is far from alone in challenging conditions for H2A workers.  In May the Southern Poverty Law Center won a $2 million summary judgment for 1500 workers harvesting tomatoes for Candy Brand, a grower in Bradley County, Arkansas.  Like CRLA, the SPLC cited the Arriaga decision to enforce legal wages and reimbursement of travel and visa expenses.

Among the biggest doubters that legal efforts can be effective at enforcing H-2A regulations, however, are the attorneys who file such lawsuits.  Cynthia Rice points to the isolation of the workers, corruption in the recruitment system, and the temporary nature of their presence in the U.S. as root causes of vulnerability.

"Our agricultural industry is sustained by cross border labor -- we have to acknowledge that," she says.  "But these workers have only a quasi-legal status, controlled by growers."

In 2007 the Southern Poverty Law Center's report, "Close to Slavery", said the program was structurally flawed because workers "are bound to the employers who 'import' them. If guest workers complain about abuses, they face deportation, blacklisting or other retaliation."  Regulations to protect workers "exist mainly on paper.

Government enforcement ... is almost non-existent."

H2A wages have been especially controversial.  The adverse effect wage rate rule says they must be set high enough that they don't depress wages of farm workers in the surrounding community.  At the end of the Bush administration, the methodology for calculating this wage was changed, resulting in a $1-2 wage cut for H2A workers.

The administration also challenged the Arriaga decision, arguing that it was "wrongly decided."  In March 2010, Labor Secretary Hilda Solis reinstated the old wage methodology  and withdrew the challenge to Arriaga.   Her rule requires employers to document efforts to recruit local workers, and to provide workers with contracts before they leave for the U.S.

"Some improvement is possible with changes in the regs," argues Mary Bauer, SPLC's legal director.  She suggests raising wages and policing recruitment.  "But the structure of the program is the real problem," she says.   "Workers need a visa that's not dependent on employment.  They should come with a visa that lets them shop their labor around, like any other worker."

Both Rice and Bauer argue against immigration reform proposals based on guest worker programs.  "How we bring human beings into the economy is a fundamental question of policy and morality,"

Bauer concludes.  "Will they be prospective citizens, or something less?  Programs for disposable people are convenient for some, but they're not my vision of what our world should look like."