Borrowed Hands

In the fall of 2006 Irma Luna, a community worker for California Rural Legal Assistance in Fresno, got a phone call from the tiny town of Tulelake, on the Oregon border. Hundreds of farmworkers, the caller said, were living at the Siskiyou County fairgrounds, and many were being fired and sent back to Mexico.

Luna and CRLA attorneys Alegria G. De La Cruz and Michael Meuter drove 500 miles through the Central Valley to investigate. At Tulelake they found about a hundred angry laborers waiting at the local library. The workers said that Sierra Cascade Nursery, a leading grower of strawberry plants in the United States, had contracted in Mexico for 600 people to spend six weeks at its facilities trimming strawberry plant roots. The company, which develops rootstock and sells strawberry plants to growers around the world, owns more than a thousand acres of nurseries in northern California and southern Oregon.

The attorneys took declarations from workers and prepared to file what would become one of the most important cases yet to test guest worker rights in California. It also turned into one of the longest such cases: Only this spring – four and a half years after the case was filed – did Sierra Cascade finally make the last payments to resolve the workers' claims.

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 farmworkers 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 farmworker 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 the Sierra Cascade workers, Ricardo Valle Daniel, described in a declaration how he and others were hired in Mexico by Larry Memmott, the company's human resources director. In Valle's hometown of Nogales, Sonora, he said, Memmott offered him an H-2A visa and an employment contract guaranteeing six to eight weeks of work at $9 an hour. The company, Memmott told him, would supply housing and transportation to the job site.

The H-2A program, enacted as part of the federal Immigration Reform and Control Act of 1986 (Pub. L. No. 99-603), allows an agricultural employer to hire nonimmigrant workers from outside the United States. 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. (8 U.S.C. §§ 1184(c)(1), 1188(a)(1).) The foreign workers who receive H-2A visas can work only 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 their wages, housing, and other conditions. (20 C.F.R. §§ 655.0-655.1319.)

“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 workers had to meet a production quota: processing 1,025 plants per hour. “I was told by Mr. Memmott,” 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.”

Several hours later the workers arrived in Tulelake, where they were taken to the county fairgrounds. 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, Valle and the others had problems meeting the quota. They were factory workers, with no experience trimming the roots of strawberry plants. “This is not a common job,” Valle 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.” He'd been told by company representatives and coworkers that if they couldn't make the quota, the supervisor would 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/or bread with jelly for dinner,” Valle stated.

Rosa Ignacia Guzman Castro, who had arrived by bus with her husband from Nogales, stated in another declaration that her first paycheck for two weeks' work was reduced by a deduction of $130.20 for food, leaving $947.93. Like the other H-2A workers, Guzman said, she didn't take breaks and worked through the lunch period, trying to make the production quota. She put in more than 125 hours on those 14 days – more than 11 hours a day on weekdays and 8 on Saturdays – effectively reducing her hourly rate to just over $7.50. She wasn't paid time-and-a-half for any of the overtime.

At the end of the third week, Guzman and about 50 others – including Ana Luisa Salinas de Valle – were fired for not meeting the 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.

By then Guzman had met with the CRLA's Luna and De La Cruz, so she knew the company was supposed to pay her final check immediately. When the foreman wouldn't do so, she and others refused to get on the bus, and he called the sheriff. “I believe 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 stated.

Seeking to address the allegedly substandard housing conditions and prevent more firings at Sierra Cascade, CRLA attorneys sought a temporary restraining order against the company. The suit, filed in superior court less than a month after the contract workers had arrived, was brought under California's Unfair Competition Law (UCL) (Cal. Bus. & Prof. Code § 17200) and asserted individual causes of action for breach of contract and violations of California labor laws. It alleged that Sierra Cascade had failed to pay the H-2A program's required “adverse effect wage rate,” which the Labor Department had set at $9 an hour to ensure that domestic farmworkers' wages wouldn't be affected. Failure to comply with statutory wage and hour requirements, the legal assistance lawyers argued, is unfair competition (Salinas de Valle v. Sierra Cascade Nursery, No. SC CV 061378 (Siskiyou Super. Ct. filed Oct. 16, 2006)).

Significantly, the CRLA brought suit in state court instead of alleging federal wage-and-hour violations under the Fair Labor Standards Act. “The law doesn't recognize the right of H-2A workers to go to federal court,” explains Cynthia L. Rice, a CRLA litigation director in San Francisco. Workers under H-2A contracts can file a complaint with the Department of Labor, but the process is very slow and the outcome, under the Bush administration at the time, was uncertain.

CRLA attorneys hoped that a restraining order would improve conditions, at least as long as the H-2A workers were still in the United States. They argued that under California's UCL, Sierra Cascade was illegally undercutting other agricultural employers by providing substandard wages and conditions to its guest workers. “That allowed us to ask for immediate injunctive relief,” Rice says.

Sierra Cascade promptly filed a notice of removal to federal court, arguing that since the breach of contract and misrepresentation claims arose in part under the H-2A program, plaintiffs had alleged a federal question under 28 U.S.C. 1331. The plaintiffs again sought a TRO and remand to state court.

Sierra Cascade responded: “In a recent case involving similar facts, a district court held: 'While ordinarily contract claims are adjudicated in the state courts, absent the existence of an express federal cause of action, the Court may exercise jurisdiction over H-2A workers' claims because they turn on interpretation of terms dictated by federal statutes and regulations.' ” The case cited by the company was an unpublished federal court decision from Florida (Avila-Gonzalez v. Barajas, 2006 WL 643297 (M.D. Fla.), which in turn relied on Grable & Sons Metal Products Inc. v. Darue Engineering & Manufacturing (545 U.S. 308 (2005)).

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.”

Although attorneys for Sierra Cascade did not respond to requests for comment for this article, the company 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.

Merrill F. Storms Jr., an attorney in the San Diego office of DLA Piper who represents Sierra Cascade, acknowledged in court filings that “the Tulelake fairgrounds facility consisted of barracks/dorm-style housing with cots and bunk beds” but denied that the conditions were illegal – and asserted 49 affirmative defenses.

CRLA, however, argued that the production quota hadn't been disclosed to the workers when they were hired, and was first presented as a requirement at the job site. “At that point they had to sign [contracts] because they were already in the country and had to work,” Rice says.

But HR director Memmott declared that he'd told recruits about the production quota while they were still in Mexico; that it was described in Spanish in the employment contract distributed in Susanville; and that the contract advised workers they could be terminated if they failed to meet the quota after a break-in period. Memmott said approximately 170 of the H-2A workers had voluntarily resigned, and another 100 were fired for failing to meet a quota of 800 plants an hour.

Steve Fortin, the chief of operations for the company, stated in a declaration, “If there are no production standards, Sierra Cascade is concerned that a substantial number of workers, particularly the H-2A 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.”

Just a week before the remaining H-2A workers' contracts were to end, U.S. District Judge Garland E. Burrell Jr. granted a partial TRO. Burrell ordered Sierra Cascade to comply with basic federal standards on bed spacing, heat in the bathrooms, and nutritious meals, but he declined to enjoin Sierra Cascade from firing workers who failed to meet the production quota (Salinas de Valle v. Sierra Cascade Nursery Inc., No. 06-CV-2274 (E.D. Cal. order filed Oct. 20, 2006)).

When the root-trimming season at the nursery was over, the workers returned to Mexico. In January 2007 the CRLA legal team won a victory when Judge Burrell remanded the case to superior court, finding that although some conditions of the guest workers' employment were governed by federal regulations, the plaintiffs' allegations turned on separate and independent state law claims. “Defendant has not shown why Plaintiffs' UCL claim is not supported by an 'alternative and independent' state law theory,” the judge ruled (Salinas de Valle v. Sierra Cascade Nursery Inc., 2007 WL 214604 (E.D. Cal.)).

Sierra Cascade entered settlement negotiations soon afterward. The major issues involved a federal rule guaranteeing that workers be paid at least three-quarters of the hours anticipated in their contract; and state laws requiring workers to be paid an hour's wages for each missed break period (Cal. Labor Code § 226.7) and a penalty equal to 30 days' pay if they are fired without receiving immediate final payment (Cal. Labor Code § 203).

A year and a half later, in October 2008, CRLA and Sierra Cascade reached agreement: The plaintiff workers would receive approximately $59,000 for unpaid wages and rest periods, $57,000 for the minimum hours guaranteed under the contract; and $210,000 in penalties, damages, and other unpaid wages. Going forward, the company was required to pay employees' travel time from their housing to the workplace, to disclose all contract provisions in Spanish at hiring sites in Mexico, to reimburse transportation expenses from Mexico to the work site, and to provide housing, heat, toilet and laundry facilities, meals, and meal and rest breaks.

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.”

Although the settlement ended the Sierra Cascade legal dispute, it marked the beginning of a two-and-a-half-year effort to reimburse the H-2A workers for their wages and expenses. The problem was, most of the plaintiffs had returned to Mexico long before the parties reached agreement.

To ensure that the plaintiff workers could be consulted on settlement terms, the CRLA's Luna set up a communications network to locate most of the H-2A workers. Although the complaint named only 52 plaintiffs, Sierra Cascade had provided a list of 242 nursery workers who were eligible to make claims under terms of the settlement.

“We generally knew where the plaintiffs were, but for most of the other workers the company just listed an address in Susanville,” Luna says. “Since we knew they were actually living in Mexico, we had to look for them. I compared the names on the lists, and found people from the same families. I talked with the plaintiffs by phone, and they knew where many of the others were.”

Most of the contract workers had come from Sonora and Chihuahua, but others lived in more distant states, including Zacatecas and Guanajuato. Luna realized that there was already a network in the small towns-used by the labor recruiters. Every time she called someone in the network asking for information about “the guys who went to California,” word spread. “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.”

Under terms of the settlement, workers had until October 2010 to file a claim. Luna and other CRLA staff members traveled to Nogales, where they held a press conference in hopes that local reports of the settlement would encourage more workers to claim what they were due.

Slowly, Luna collected the workers' signatures on forms authorizing payment, which she turned over to the company. In May of 2009, Sierra Cascade began issuing checks, depositing the first in CRLA's client trust account. But getting money to the claimants turned out to be complicated: Workers in Mexico couldn't cash CRLA checks, and the wire-transfer companies they used to send wages home from the United States couldn't handle the large sums and the many individuals involved.

Finally, CRLA asked the Center for Migrant Rights in Zacatecas to distribute the money. (Rice sits on its board of directors.) The center is one of several organizations that have started programs in the U.S. and Mexico to ensure that migrant workers receive payouts from settlements involving violations of wage-and-hour laws and basic employment rights. It opened in Zacatecas because of that state's role in encouraging its residents to enroll in guest worker programs. More than half of Zacatecans live abroad, and remittances from migrants are the state's largest source of income.

Even with the center's help, it was sometimes difficult to verify the identity of claimants. Finally, the two organizations developed a unique code for each person. At the Mexican bank where settlement money was deposited, claimants had to show that code and the identification document the state issues to workers before they cross the border.

“It was very complicated and difficult,” Luna recalls. “We never did find everyone. There were still about 40 workers we couldn't locate when the filing deadline expired.”

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 Tulelake. According to its application, the nursery company still holds workers to a production quota.

Over the past decade, several lawsuits have been filed to improve the lot of H-2A workers. For example, in 2002 CRLA sued Ralph De Leon, a labor contractor in Ventura, and in 2002 and 2004 it sued Harry Singh, a San Diego grower who was another early user of the H-2A visa program in California. More recently, in 2008 CRLA filed a federal suit in Sacramento against Salvador Gonzalez, a farm labor contractor who had brought in workers from Colima, Mexico, with promises of work for $100 a day. That case is pending (Rodriguez v. SGLC Inc., No. 08-CV-01971 (E.D. Cal. filed Aug. 20, 2008)).

In another federal suit, the Southern Poverty Law Center in May won a summary judgment for 1,500 tomato harvesters under H-2A employment contracts to an Arkansas grower (Perez-Benites v. Candy Brand LLC, 2011 WL 1978414 (W.D. Ark. order filed May 20, 2011)). The plaintiffs relied on an Eleventh Circuit decision holding that H-2A employers must reimburse workers for their transportation and visa expenses (Arriaga v. Florida Pacific Farms, 305 F.3d 1228 (11th Cir. 2002)).

But of all the components of the guest worker program, the adverse effect wage rate has been the most controversial. At the end of the Bush administration, the Labor Department changed the way it calculates that rate, which resulted in a reduction of up to $2 an hour. The administration also boldly declared that the Eleventh Circuit had “wrongly decided” the Arriaga case. (See 73 Fed. Reg. 7711077162 (Dec. 18, 2008).)

However, after Hilda Solis was appointed secretary of labor for the Obama administration, she promptly reversed both of those changes. (See 74 Fed. Reg. 11408-11440 (Mar. 17, 2009); and 13261-13262 (Mar. 26, 2009).) In addition, employers must now document their efforts to recruit local workers before they apply for the H-2A program, and provide migrant workers with contracts before they leave their home countries.

At the same time, 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 (Georgia Latino Alliance for Human Rights v. Deal, 2011 WL 2520752 (N.D. Ga. order filed Jun. 27, 2011)).

All of these pressures have increased growers' interest in the H-2A program. 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 has 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 farmworkers 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.

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. 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 exchange for expanding 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-N.J.).

Among the biggest doubters that legal efforts can be effective at enforcing H-2A regulations are the attorneys who file such lawsuits.

CRLA's Rice notes that the H-2A farmworkers' vulnerability is exacerbated by their social and geographic isolation, corruption in the labor recruitment system, and the brief duration of the work. “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 the growers.”

In 2007 a report issued by the Southern Poverty Law Center, Close to Slavery: Guestworker Programs in the United States, concluded that H-2A workers “are bound to the employers who 'import' them. If guestworkers complain about abuses, they face deportation, blacklisting, or other retaliation.” Federal regulations to protect the workers “exist mainly on paper,” it added. “Government enforcement … is almost nonexistent.”

Mary Bauer, the law center's legal director, says changing the regulations could bring “some improvement.” She suggests raising H-2A workers' wages, and policing recruitment. “But the structure of the program is the real problem,” she adds. “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 resist proposals that base immigration reform 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.”