Washington State today is ground zero in the effort to hold back the massive use of agricultural guest workers by U.S. growers, and to ensure that farmworkers, both those living here and those coming under the H-2A visa program, have their rights respected. For a second year, on August 4 workers and their supporters marched 14 miles in 90-degree heat through berry fields just below the Canadian border, protesting what they charge is widespread abuse of agricultural labor.
“Farmworker families have been living and working in local fields since the early 1950s,” according to Rosalinda Guillen, director of Community to Community, a farm worker organizing and advocacy group in Whatcom County. “But we’ve seen a big increase in growers’ use of the H-2A guest worker program in the last few years, and it’s had a huge impact on working conditions in the fields. We’ve had to feed guest workers who come to us hungry, fight to get them paid their wages, and help them deal with extreme work requirements. At the same time, our local workers find they’re not being hired for jobs they’ve done for many seasons.”
At dawn on August 4, two hundred marchers gathered in front of the immigration detention center in Ferndale, about three hours north of Seattle. Before starting the 14-mile peregrination, Guillen told the crowd that most of the immigrants detained there, and later deported, are farmworkers. “The Trump administration is targeting our local community, deporting people who have been living here for years,” she charged. “Then growers complain there aren’t enough workers, and begin using the H-2A program to bring in guest workers. It is a vicious revolving door of exploitation.”
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According to the U.S. Department of Labor’s National Agricultural Workers Survey, there are about 2.5 million farmworkers in the U.S., about three quarters of whom were born outside the country. Half are undocumented and the rest are visa holders or people born in the U.S.
Last year growers were certified to bring in 242,762 H-2A workers – a tenth of the total workforce and a number that in just four years has increased from 139,832.
In 2017, Washington State growers were given H-2A visas for 18,796 workers, about 12,000 of whom were recruited by WAFLA (formerly the Washington Farm Labor Association, a H-2A labor contractor). “We predict growers will request more than 30,000 H-2A workers during 2019,” according to Washington Employment Security Department Commissioner Suzi LeVine.
The department estimated that 97,068 farm workers were employed in Washington State in 2016, so the projected number of H-2A workers would be a third of the entire workforce.
At the same time as H-2A employment is rising, deportations are increasing. The Trump administration deported 256,000 people in 2018, just slightly more than the number of people brought to the U.S. under H-2A visas. Local deportations are increasing as well in Washington. In August last year 16 people were arrested and held at the Ferndale center. Half were deported immediately, and others were charged bail as high as $18,000 to be released pending hearings. A month earlier 19 others had also been arrested for deportation.
Stories are common, according to C2C, of people stopped for traffic violations, and then held for detention by immigration authorities. In 2017, Gov. Jay Inslee signed an executive order barring state agents from helping to enforce federal immigration laws in most cases, ordering them not to ask about immigration status. Nevertheless, immigration detention centers are scattered around the state, including one of the nation’s largest in Tacoma, three hours south of Whatcom County, where the GEO Group holds around 1500 people.
Protesting Exploitation at Crystal View Raspberry Farm
After leaving the Ferndale detention center, people walked north for four hours, arriving at the Crystal View Raspberry Farm. There they stopped to hold an informal hearing to highlight the decision by the farm’s owners to bring in 80 guest workers for this year’s blueberry harvest.
Growers recruit H-2A workers every year from other countries, mainly Mexico. Companies using the H-2A program must apply to the U.S. Department of Labor, listing the work, living conditions and wages workers will receive. The company must provide transportation and housing. Workers are given contracts for less than one year, and must leave the country when their work is done. They can only work for the company that contracts them, and if they lose that job they must leave immediately.
The H-2A program has its roots in the notorious “bracero” program, which brought workers from Mexico in extremely exploitative conditions starting in 1942. At its height in 1954 about 450,000 workers were brought in by growers, and in the same year over a million people were deported – the same “vicious revolving door” described by Guillen. Although the program was abolished in 1964, the H-2 visa on which it was based was never eliminated. In 1986 an organized farm labor importation program began again, and the H-2A visa was created. It has been growing ever since.
In August last year, about 60 Crystal View workers, brought from Mexico and Guatemala under H-2A visas, went on strike to protest the non-payment of their wages. They reached out to Community to Community (C2C) and Washington’s new farm worker union, Familias Unidas por la Justicia, looking for help. Workers told C2C organizer Edgar Franks they’d been threatened that if they didn’t work fast enough they’d be fired and sent back home. “They didn’t feel safe reaching out to anyone because of the threats,” he said. Workers were isolated because they lived on the farm property, miles from the nearest town, and had no cars or transportation of their own.
Crystal View owner George Sandhu brought in two representatives of WAFLA, which had contracted the workers, to negotiate. The strikers were eventually paid the money owed them and returned to work after two days. “But I don’t think those workers will be coming back this year,” Franks predicted.
The problem of high production standards, enforced by blacklisting threats, was highlighted by several recent strikes over the past two years. On June 21 this year workers at the King Fuji apple ranch stopped work because of production pressure. According to one striker, Sergio Martinez, “We’re all working as fast as we can, but the company always wants more. When we can’t make the production they’re demanding, they threaten us, telling us that if we don’t produce they won’t let us come back to work next year.”
Pressure to work harder and faster is permitted by the U.S. Department of Labor, often written into the certifications that allow growers to import workers. The job order approved for King Fuji Ranch, Inc. lists the first reason why a worker can be fired: “malingers or otherwise refuses without justified cause to perform as directed the work for which the worker was recruited and hired.” If a worker’s productivity doesn’t improve after “coaching” then “the Worker may be terminated.”
Coaching at King Fuji, according to Martinez, means “they threaten to send us back to Mexico.” Another worker, who preferred not to give his name, explained that “they give you three tickets [warnings], and then you get fired. They put you on the blacklist so you can’t come back next year. Workers who were fired last year aren’t here this year.”
Forced to Work on the Brink of Death
At the impromptu hearing in front of the Crystal View farm the marchers held a brief moment of silence in memory of Honesto Silva Ibarra. In 2017 Silva, an H-2A guest worker brought from Mexico to harvest blueberries, collapsed in a field belonging to Sarbanand Farms near the Canadian border, and later died. One of his coworkers, Raymond Escobedo, said when Silva began feeling sick “he asked to leave work. They wouldn’t give him permission, but he went back to the barracks to rest anyway. Then the supervisor went and got him out and forced him back to work.”
According to a suit filed by Columbia Legal Services against Sarbanand Farms, Nidia Perez, who supervised workers on behalf of the company’s recruiter, told them that they had to work “unless they were on their death bed.” Nevertheless, 70 Sarbanand workers stopped work after Silva’s death, and were fired and expelled from the company labor camp. Because they were no longer employed, they soon lost their visas and were forced to return to Mexico. A Sarbanand statement said “H-2A regulations do not otherwise allow for workers engaging in such concerted activity.”
Lynne Dodson, former Secretary Treasurer of the Washington State Labor Council, condemned the reprisals. “If you get deported for collective activity,” she says, “that’s basically saying you have no enforceable labor rights. No right to organize. No right to speak up on the job. No right to question working conditions without being deported.”
Sarbanand Farms belongs to Munger Brothers, LLC, a family corporation based in Delano, California. Beginning in 2006, the company brought more than 600 H-2A workers from Mexico to harvest 3,000 acres of blueberries in California and Washington. Munger calls itself the world’s largest blueberry grower, and is the driving force behind the growers’ cooperative that markets under the Naturipe label.
In February 2018, the Washington State Department of Labor and Industries announced that Silva had died of natural causes, and that the company was not responsible. The department said it had investigated conditions at the Sarbanand ranch and had found no workplace health and safety violations. Nevertheless, Sarbanand Farms was fined $149,800 for not providing required breaks and meal periods, an amount a judge later cut in half. And this year, in a rare move, the U.S. Department of Labor finally debarred Sarbanand and Munger from using the H-2A program. While the DoL does not list a specific citation or cause for the disbarment, the publicity around Silva’s death and the workers’ strike made it clear that Sarbanand felt no hesitation in violating rights and enforcing brutal conditions, and that the department had not monitored the company’s actions.
In theory, growers have to advertise for local workers first, and can only bring in guest workers if none are available. In another suit, however, Columbia Legal Services sued WAFLA, a labor recruiter called CSI, and a large Washington State winery, Mercer Canyons, charging that it had used the H-2A program to replace local farmworkers. The suit quoted company manager Garrett Benton, who said that when Mercer Canyons brought in WAFLA “it left very little work for the local farmworkers.”
“Working conditions got so bad for the local workers that they eventually went on strike on May 1, 2013,” Benton charged. “They felt strongly that they were being given harder, less desirable work for less pay. Mercer Canyons was doing everything it could to discourage local farm workers from gaining employment.” The suit was settled in 2017, and Mercer Canyons agreed to pay workers $545,000 plus attorneys’ fees.
Trump Administration Fuels Increased Use of Vulnerable Guest Workers
Growers, however, have the support of President Donald Trump, despite his otherwise violent anti-immigrant rhetoric. At a Michigan rally in February, 2018, he told supporters, “For the farmers it’s going to get really good.… We have to have strong borders, but we have to let your workers in…. We’re gonna let them in because you need them.… We have to have them.”
On July 26 this year, the U.S. Department of Labor proposed rule changes for the H-2A program to make it cheaper and easier for growers to use. The administration has been promising these changes for the last two years, and can make them without having to get anything passed through Congress. The rule changes have a 60-day comment period, after which they go into effect.
The new rule changes would make it easier for growers to recruit H-2A workers without offering the jobs to farmworkers already living locally, who are almost all immigrants themselves and mostly undocumented. The relaxed rules already allow multiple growers to cooperate in recruiting a group of H-2A workers, and to move them from job to job. Previously growers have had to advertise each job to local workers. Now they will only have to offer the first job in the series, rather than in each place H-2A workers will work. That makes it easy for a contractor like WAFLA to bring in a crew and move them from ranch to ranch, job to job, without ever offering those jobs to local farmworkers. WAFLA’s website already offers growers ways to create such pools of workers.
The U.S. Department of Labor proposal would allow growers to self-inspect housing for H-2A workers. There are many legal cases documenting terrible housing, even with the current government inspection, which would now be eliminated. Already Washington State gives farm worker housing subsidies to WAFLA and other growers for building H-2A barracks.
Columbia Legal Aid has protested that the state Department of Commerce’s own surveys show that 10 percent of farmworkers who are Washington residents live outdoors in a car or in a tent, and 20 percent live in garages, shacks, or “in places not intended to serve as bedrooms.”
Growers now have to pay the transportation costs of H-2A workers from their homes to the place where they’ll be working. In the future, they would only have to pay transportation from the border or the place where the workers get their visa, relieving growers of about $80 million in expenses per year, forcing the H-2A workers themselves to pay it.
Currently every state is required to survey wages every year to establish an Adverse Effect Wage Rate (AEWR) —a minimum wage for H-2A workers that theoretically won’t undercut the wages of resident farm labor. The U.S. Department of Labor is proposing a complicated change in the method for calculating that wage.
In Washington State the department has a history of cooperation in wage cutting. Last year’s hourly AEWR wage in Washington was $14.12. In the apple harvest, however, most workers are paid a piece rate that can reach the equivalent of $18 to $20 hourly. WAFLA asked the state Employment Security Department and the U.S. Department of Labor to eliminate any standard for piece rates, effectively slashing wages by up to $6 per hour. The Employment Security Department and the Department of Labor agreed. WAFLA President Dan Fazio boasted, “This is a huge win and saved the apple industry millions.”
According to Farmworker Justice, a Washington, D.C., farm worker advocacy group, “The Trump Administration seeks to guarantee agribusiness unlimited access to a captive workforce that is deprived of economic bargaining power and the right to vote. The Administration would transform the farm labor force of roughly 2.4 million people into a workforce of 21st-century indentured servants.”
In California, the United Farm Workers condemned the proposed changes as well. “If Trump’s H-2A rules-changing scheme happens,” a union statement predicted, “there would be a huge negative impact on those currently working in agriculture. This scheme would deprive U.S. citizens and lawful permanent residents of job opportunities by weakening the laws that require U.S. citizens and legal residents to be offered these jobs first…. This drastic move could replace local U.S. workers with foreign H-2A workers.”
State-Level Efforts to Monitor Abuses Against Guest Workers
This spring Community to Community and Familias Unidas por la Justicia convinced the Washington State legislature to pass a bill to address the concerns highlighted by the march. SB 5438, “Concerning the H-2A Temporary Agricultural Program” funds an oversight office and advisory committee to monitor labor, housing, and health and safety requirements for farms using the H2A program, as well as prioritizing outreach to domestic workers. Representatives from C2C and FUJ along with representatives from corporate agriculture will be on that committee. SB 5497, “Keep Washington Working Act,” requires local law enforcement to strengthen protections for undocumented community members and limits local law enforcement’s cooperation with ICE.
Growers complained they faced a labor shortage and needed greater freedom to use H-2A workers. Familias Unidas por la Justicia’s president Ramon Torres responded that they themselves were guilty of causing any alleged shortage. Before the explosive growth of the H-2A program, a large part of Washington’s farm labor force consisted of people who live in California, and come north for work during the harvest season. “Who do growers think was harvesting their fruit all those years before H-2A?” he asked.
“In the last few years when those workers call they find out that the jobs and housing have been filled by H-2A workers,” Torres charged. “They have no alternative but to look for work elsewhere. Workers aren’t stupid. The more the H-2A program grows, the more the message goes out to the traditional workers that there’s no work for them. But if growers decide to give them back their jobs, those workers will come back, especially if the wages are good and there’s a union.”