New Labor Department Protections Empower H-2A Agricultural Workers to Organize

Agriculture is rife with labor violations and abuse, but thanks to a new rule that went into effect June 28, the industry’s most vulnerable migrant H-2A workers now have better protections to organize against unfair treatment from American employers.

The H-2A Temporary Agricultural Program allows American employers to bring migrant workers to the U.S. with visas to perform temporary or seasonal agricultural jobs that could not be filled by American workers. Unlike other visa categories, there is no cap on the number of H-2A workers who can work in the U.S. each year. The program has exploded in recent years because of ongoing labor shortages in the agricultural industry, where labor violations run rampant. In 2023, the Department of Labor (DOL) certified nearly 380,000 H-2A jobs, compared to 79,000 in 2010.

The new rule, Improving Protections for Workers in Temporary Agricultural Employment in the United States, went into effect on June 28 and focuses on what DOL calls “worker self-advocacy.” Namely, H-2A workers can now better engage in advocacy regarding their working conditions because the range of activities protected by anti-retaliation provisions has expanded.

Since the 1930s, agricultural and domestic workers have been cut out of certain labor protections due to racist exclusions in the National Labor Relations Act (NLRA), but under DOL’s new rule, H-2A workers can now engage in “collective action and concerted activity for mutual aid and protection.” In practice, this means that H-2A workers can now decline to attend “captive audience” meetings where employers attempt to dissuade workers from joining unions or engaging in other protected activities.

Seasonal farmworkers can now also consult with service providers, including legal aid and labor organizations, at their employer-furnished housing. There is no overstating the importance of this development, according to farmworker organizers and advocates.

Former farmworker Leticia Zavala now organizes H-2A workers in North Carolina with the farmworker-led organization El Futuro Es Nuestro. Agricultural labor violations in the Southeast are exceptionally bad, and over the years, Zavala has encountered horrendous abuse of farmworkers, including modern-day slavery. But making interventions in agriculture is never easy, and this is especially true in the H-2A program that is structured to give American employers total control of migrant workers’ employment, immigration status, housing, transportation, and food.

Zavala told Prism she’s been threatened by agricultural employers for trying to speak to H-2A workers and that just last year she was kicked off of a farm. She said the ability for H-2A workers to now invite her and other service providers into their employer-furnished housing is “a very serious development.”

“Employers have an unbelievable amount of power, and agricultural workers don’t,” Zavala said. “This is a very scary environment for workers, and they are fearful when they come [to the U.S.]; many have experienced abuse before, and it’s a burden that they carry, and it’s burdensome that they have to leave their families behind to come and harvest our crops. This burden has to be shared somehow, and the new rule gives them some of their power back.”

DOL’s new rule also establishes five conditions that must be met to terminate a worker for cause; makes the labor recruitment process more transparent by imposing new disclosure requirements intended to protect H-2A workers from exploitation and abuse; improves safety by including a seat belt requirement for vans and buses used to transport workers; clarifies that employers are prohibited from holding or confiscating a worker’s passport, visa, or other identification documents (a tactic often used to exploit and traffic workers); and improves the process for debarring employers from participating in the H-2A program, among other protections.

Some of the new rule’s provisions simply clarify longstanding protections that have proven difficult for DOL to enforce, in part because of the agency’s severely insufficient resources and lack of investigators and inspectors. The H-2A program, in particular, is notoriously lacking in DOL oversight, making serious violations and crimes against workers — such as illegal recruitment practices and wage theft — all too common. Labor trafficking within the program also happens with alarming regularity. Fewer than 1% of agricultural employers are investigated each year by DOL’s Wage and Hour Division (WHD), with officials finding violations in 88% of H-2A investigations opened in the last five years.

Given the lack of oversight, organizations like Centro de los Derechos del Migrante (CDM) have become critical for helping H-2A workers obtain back wages, for example, or file complaints regarding deadly labor violations and other crimes. The binational organization primarily supports migrant workers from Mexico, who account for 90% of the H-2A workforce. It is the work of organizations like CDM and Migrant Justice that helped lay the groundwork for DOL’s new protections. Lawsuits, reports, and other documentation of farmworker abuse from these groups were cited repeatedly by DOL as justification for the new rule.

Overhauling the H-2A program would require Congress to pass legislation, which is why reforms often come through new regulations from DOL, explained CDM founder and Executive Director Rachel Micah-Jones.

“There is a whole host of changes we’d like to see through a legislative package, like shifting the employer control of the program to workers, but given the limitations of the current process, we are happy to see the new rule taking steps toward shifting the balance of power in the program,” Micah-Jones said. “It’s clear employers are already very upset by the provision that allows workers to invite service providers into their housing.”

More than a dozen Republican-led states and industry groups in Georgia filed a lawsuit against DOL on June 10, alleging the agency gave “certain federal rights to alien workers that are not enjoyed by Americans.” Much of the lawsuit’s framing implies DOL granted H-2A workers rights they are excluded from under the NLRA. However, the new rule’s protections also extend to American agricultural workers and simply require employers to respect farmworker organizing efforts without intimidation or threats of retaliation.

The Economic Policy Institute reported that American employers prefer to use the H-2A program over hiring U.S. workers because they see foreign workers as “exploitable.” American employers often fight against new H-2A regulations, alleging that the program is already too “expensive” and “bureaucratically complex.”

Employers and industry groups have come out in full force against DOL’s new rule. This includes the National Council of Agricultural Employers and the American Farm Bureau Federation, organizations based in or led by farm owners in the Southeast — a region where violations of labor laws by agricultural employers were found in 90% of investigations last year. It’s also a region where some of the worst abuses in the program have occurred.

In November 2021, federal investigators made public a modern-day slavery ring in Georgia, where, according to a federal indictment, H-2A workers from Mexico and Central America were forced to dig for onions with their bare hands under the threat of gun violence. The workers were housed in labor camps surrounded by electric fencing or otherwise forced to reside in cramped and unsanitary mobile homes with raw sewage leaks and no access to food or safe drinking water. At least two people died from heat exposure on the job, and one woman was repeatedly raped, the indictment stated.

In a statement to Prism, a DOL spokesperson reiterated that agricultural workers are among the “nation’s most vulnerable to workplace abuses” and that the Farmworker Protection Rule “focuses on strengthening protections for agricultural workers and enhancing the Department’s capabilities to monitor H-2A program compliance and take necessary enforcement actions against program violators.”

The agency spokesperson also noted that one key provision of the new rule establishes stronger protections that benefit both H-2A workers and “other similarly employed workers in the U.S.”

Micah-Jones said that structuring the new rule around worker self-advocacy was both a smart approach for DOL to take and one that seems to recognize the agency’s limited resources for performing more agricultural investigations each year. But according to some farmworkers, this approach might also initially cause employers to lash out.

Eli Carmona Porras is an H-2A worker who labored in North Carolina fields for nearly 20 years. He now organizes H-2A workers with Zavala as part of El Futuro Es Nuestro, where he was recently chosen by farmworkers in the U.S. and Mexico to run for president of the Farm Labor Organizing Committee, the second-largest farmworker union in the U.S. Carmona Porras said in WhatsApp messages from Mexico that the H-2A program is still in need of an overhaul because new regulations in some ways only worsen employers’ threats of retaliation. It is this fear of losing their job that prevents workers from reporting the abuse they’re exposed to, Carmona Porras explained.

American media, farmers’ unions, and even immigration advocacy organizations frame the H-2A program as “mutually beneficial,” but decades of evidence show that migrant workers get the short end of the stick. Still, Carmona Porras said Mexican workers will do almost anything to have the opportunity to legally work in the U.S.

“They do so leaving behind family and their circle of comfort in the hope of a better future,” Carmona Porras said. “Some do well, others do not — and even worse, they return sick or dead.”

DOL’s new rule became effective on June 28. However, according to the agency, H-2A applications filed before Aug. 28, 2024, will be processed according to previously applicable federal regulations, and applications submitted on or after Aug. 29 will be processed in accordance with the provisions of the new Farmworker Protection Rule.

Prism is an independent and nonprofit newsroom led by journalists of color. We report from the ground up and at the intersections of injustice.