May 5, 2010

V. Exploitation: Wages and Hours

Children typically work for long hours and poor pay. Many described workdays as long as fourteen hours, seven days a week at the peak of the harvest. Most children Human Rights Watch interviewed said they earned less than the federal minimum wage.

Excessive Working Hours

“You’re put to work every day, you hardly get a break unless it’s raining. Kids get so happy [when it starts to rain] that they’re screaming.”
—James A., age 15, Plant City, Florida, March 21, 2009
My son, he needs his play time. He can’t work 30 hours a week. He can work three to four hours a few times a week. . . . As an employer you can’t say “I’ll hire 13-, 14- year olds.” No! I don’t support that.
—Farm operator whose 12-year-old son works on his farm, Michigan, August 28, 2009.

Children described the long hours they worked, over which they typically had no control:

  • James A., age 15, who worked in a blueberry packing plant in Michigan the previous summer, said that sometimes he worked as long as from 7 a.m. to 2:30 a.m. the following morning: “When I got home I didn’t even have time to take a shower. During the breaks I’d need to get a little bit of sleep. Lunch was only 30 minutes. I don’t know if painkillers would have helped out. Sometimes I took coffee. I worked seven days a week and we would go beyond 40 hours. Twice I got to 80 hours.”[38]
  • Olivia A., age 14, described picking blueberries in Michigan: “I would wake up at 5 and start working at 6 [a.m.]. We’d come out at 6 or 7 [p.m.], depending on if it rained and how quick we worked. We worked seven days, all day, except the days it rained. That was the only time we got a break. I felt happy we could go home. We didn’t have to be in the sun no more.”[39]
  • Sam B., age 17, who said he sometimes hoed cotton in Texas for up to 14 hours a day, told us: “We have to work 10 hours for sure but if they want us to work more, we work 12-13 hours. It depends on whatever they what. You have to put in at least 10 hours, you can’t just go home.”[40]
  • Felipe D., age 15, said he worked from 6 a.m. to 6 or 7 p.m. deflowering tobacco in North Carolina. “At 12 [noon] we get an hour break,” he said. “The rest is just hot sun and working.”[41]
  • Luz A., age 18 and from Florida, explained that the previous summer: “In the morning we’d start around 7 [a.m.] and end at about 8 [p.m.]. We’d work a long time. There really ain’t no hours. It depends on how fast everyone finishes the section. No one can leave. They block the exits and say everyone has to help out. In a day you do two sections, sometime they put their cars there so we couldn’t drive out. . . . If you left early they’d end up kicking you out.”[42]

By the end of the day, children said, they were exhausted. “You change out of your clothes if you can make it and pass out,” said Elisabeth S, about working when she was in high school. “Taking a shower, it doesn’t happen. If you had the energy you would eat, but you would usually sleep, wake up, then shower and eat. . . . “I hated to sleep because sometimes all you dreamed of what working, thinking, ‘I need to be working.’ It’s so tiresome. And then you get up and think, ‘I have to go to work?’”[43] Thirteen-year-old Marta V. told us: “Really, I don’t have a good day when I work. It’s just so tiring. After 12 [noon] you just want the time to go by quick, to come home and rest.[44] Even older teens described the toll of having no days off. “Every day it gets harder with no rest,” 15-year-old James A. explained.[45]

US federal law permits children to work in agriculture for unlimited hours, outside of school hours. In non-agricultural jobs 14- and 15-year-olds cannot work before 7 a.m. or after 7 p.m., except during the summer when they can work until 9 p.m. They may not work more than 3 hours on a school day, 18 hours in a school week, 8 hours on a non-school day, and 40 hours in non-school week.[46]

Workers’ powerlessness to control their hours combined with the unpredictability of agricultural work leave them in a constant bind: some days they may work past the point of endurance; other days the weather, slow demand for a crop, or a poor harvest leave them without enough work to meet their most basic needs.

Earning Less than the Minimum Wage

They don’t pay us enough for the hours we work. I would like them to pay us enough and give us some benefits. We’re out there, a whole bunch of young people. . . . It’s hard but since you need the money you don’t have a choice. It doesn’t matter if they pay us a little because you need the money. That’s why I’m working. . . . I make $300/week. $200/week if it rains.
—Sam B., age 17, who said he typically works at least 55 hours, 5 and a half days a week when not in school[47]

Like adults, many children in farmwork earn less than federal minimum wage, which was $7.25 an hour as of July 24, 2009, up from $6.55 the 12 months prior to that. Most children Human Rights Watch interviewed said they were paid less than the minimum wage—many earned far less. For example:

  • Antonio M., age 12, in North Carolina said he picked blueberries from 6 a.m. to 11 a.m. or 12 noon. He could fill five or six boxes in a day, at $3.00 a box.[48] At best, therefore, he made $18 for five to six hours’ work, or $3.00 to $3.60 an hour. For five hours of work at the federal minimum wage, Antonio should have earned $36.25, more than twice what he was paid.
  • In Texas, children and adults consistently reported making $45 to $50 a day for 10 hours or more of hoeing cotton, or at best $4.50 to $5.00 an hour. At federal minimum wage at the time Human Rights Watch visited, they should have earned $65.50 for 10 hours’ work.
  • Olivia A., age 14, said she made $300 to $350 a week the previous summer picking blueberries in Michigan from 6 a.m. to 6 or 7 p.m., seven days a week except when it rained.[49] Her brother said he made about $200 a week.[50] At best they were earning $4.16 and $2.38 an hour, respectively. At federal minimum wage at the time, for 84 hours of work a week, they should have earned $550.20 a week.

In one part of North Carolina, we heard reports of some employers paying children a lower hourly wage than adults. A migrant health outreach worker whose own child worked told us: “Sometimes they just pay part for children, $2-3. Or they don’t pay. Patrones [bosses] talk with parents and say, ‘I’ll let your kid enter but I’ll pay half of what you earn.’ But they have to work the same as an adult or they don’t let them enter.”[51]

With some exceptions, agricultural workers are entitled to minimum wage. These exceptions include workers on small farms and some piece rate workers, including certain local hand harvest laborers and non-local children ages 16 and under who are working alongside their parents.[52] Where workers are entitled to minimum wage, agricultural employers may pay either an hourly rate or a piece-rate, but those who pay on piece-rate must by law ensure that the earnings for all hours worked in a week are sufficient to bring the average hourly wage up to minimum wage, unless they fall under one of the previously mentioned exceptions. “They have to make at least minimum wage,” a cucumber farm operator in Michigan explained. His workers do, he said “if pickles are going well. If not, I have to kick in.”[53]

All agricultural workers are deprived of overtime pay protections as a result of a special provision in the Fair Labor Standards Act (FLSA). Most other workers, by contrast, are required to be paid one and a half times their regular rate of pay for each hour worked in excess of 40 hours per week.[54] Agricultural workers are also excluded from the protections of the National Labor Relations Act and do not have the right to organize and collectively bargain with their employers, except in the handful of states such as California in which state laws protect their right to organize.[55]

Laws that deny farmworkers protections enjoyed by other workers, combined with poor enforcement of existing laws, contribute to farmworkers’ poverty and financial desperation that compels children to work and makes farmworkers even more vulnerable to exploitation.[56]

Although government data suggest that crop workers on average make slightly above minimum wage, these figures are likely inflated.[57] There are several reasons for this, discussed in more detail below. First, in situations where workers are paid a piece rate, children often work with a parent in the fields, but only the parent is listed on the payroll.  The parent is shown as earning more than the minimum wage, because the children make the parent’s productivity look higher. Second, employers often falsify payroll records to show fewer hours than the employee actually worked.[58] Third, many employers make illegal deductions from their employees’ wages which reduce their gross below the minimum wage, forcing the workers to pay for goods and services that benefit their employer. “Most farmworkers in Florida are not making minimum wage,” explained Gregory Schell, of Florida Legal Services Migrant Farmworker Justice Project. “Kids aren’t different and in fact, there probably is a higher percentage of the underage workers earning below the minimum wage than among the general farmworker population.”[59] Several factors make children easier to exploit than adults: children may be more credulous, less experienced, and less likely to question authority. They also may have even fewer options to change jobs, since their employment in other labor sectors may be illegal.

Even when farmworkers are paid minimum wage, the unpredictability of the work and no guarantee of minimum hours drive down their income. Farmworkers only get paid for the hours they work. They typically receive no paid sick days, no health insurance, no paid vacation leave, and have no job security. Among other things, average minimum wage data do not take into account unpaid hours, days, and weeks waiting out weather or traveling to remote fields.[60] Families may use their last dollars to migrate only to find there is no work when they arrive. Those who do find work may find themselves without income when it rains and between harvests.[61] Some workers in Florida said their employers required, as a condition of providing housing, that they remain permanently available and not seek work with others, even when the employer did not have work for them.

Unscrupulous practices and wage fraud

Some children described unscrupulous practices and outright fraud by labor contractors and growers that further reduced their pay. For example, Walter R. and his parents said that their employer had required them to sign a document promising to return $30 a week so that their wages would appear higher than they actually were. The teenager told us that a “government inspector,” whom they could not identify, had recently come to their worksite and questioned him and his family—“we said we work for $7.25.”[62] His mother explained, “My husband was afraid to denounce because he said we would get fired.”[63] Marcos S., whose account is given above, said that he was not paid for cutting Christmas trees after 5 p.m.: “If they need you, they hold you late. But when it comes to [pay]check time they say 8 to 5. They say they don’t remember holding you later. But if you get off earlier, they remember.”[64] A paralegal in Florida described cases he had worked on in which employers or contractors required workers to under-report their hours or clock in only after, for example, picking the first flat of strawberries.[65] The practice of withholding but not reporting social security money from workers’ paychecks is particularly widespread when the labor contractor is responsible for paying taxes.[66] In a survey by the Southern Poverty Law Center of some 500 Latino immigrants in five states, 41 percent said they had experienced wage theft in which they had not been paid for work performed.[67]

Deductions for transport were commonly described by children working in tobacco in North Carolina, who said that their employers charged them $10 to $30 a week to take them to the fields.[68] Children told us they were required to purchase their own basic safety equipment and tools such as gloves, hoes, and knives.[69] For example, Elisabeth S. said that when she first started working in Washington State: “I couldn’t afford a new hoe so I was using a half hoe for two days. My sister would switch with me for 15 minutes. It was old and would give you splinters if you didn’t have gloves. Then my boss gave me one but took it out of my check. They don’t give you nothin’.”[70] US law prohibits crediting against minimum wage obligations items furnished primarily for the employer’s benefit—these include tools of the trade.[71] Daily transport to and from work may generally be credited but typically not transport from the point of hire to a distant jobsite.[72]

Employers or contractors may also cut wages by deducting rent or running a “company store.” “By the time they get done, there’s no paycheck left,” explained Josie Ellis, the director of Vecinos Inc. Farmworker Health Program.[73]

Piece rate and child labor

Workers who harvest fresh fruits and vegetables are often paid on a piece-rate basis (such as a flat rate for each box of fruit or bag of apples they pick) rather than an hourly rate. Diana G., age 16, explained how the piece rate system worked for blueberries in North Carolina. “You fill liter buckets to the top,” she said. “If you don’t go to the top, you have to go back. You don’t make much. Two buckets is $5. It’s really hard because blueberries are really tiring. It takes 30 to 45 minutes to fill one bucket. Later on when the blueberries get bigger it gets faster. You get a token when you turn in the bucket. If you have leaves or sticks in it, you get a yellow ticket—$1 taken off.”[74] At this rate, Diana was earning $3.33 to $5.00 an hour.

A paralegal working with farmworkers in Florida, himself a former farmworker, explained that it is very difficult for workers to consistently pick enough on piece rate to earn minimum wage. “I rarely find a worker who can constantly pick a certain number of tubs in one year,” he told us. “You can’t do it.”[75]

From an employer’s perspective, piece rate incentivizes productivity. But for workers, piece rate adds additional pressure to work as quickly as possible and avoid taking breaks, sometimes even at the expense of drinking water or cooling down when overheated.[76] Luz A., who had worked since age nine, said that when picking blueberries on piece rate she does not stop and rest: “We keep on going because if we were to sit down and take a break we’d make even less.”[77]

None of the children Human Rights Watch interviewed reported that their employers had made up the difference between the piece rate they received and minimum wage. Moreover, when children work off the books and what they harvest is counted towards their parent’s check, this creates the appearance on paper that the adult has earned a higher wage. For example, although a farm operator in Michigan said that his employee tracked the hours the farmworkers worked, when Human Rights Watch reviewed records of the amount picked and payment, these were recorded as if only one person, rather than a family group, had picked the cucumbers. When Human Rights Watch noted that families with children 12 and younger were working together to pick the vegetables, an office employee said: “It should be one person but I don’t know—they can pick it any way they want. They can get others or do it themselves.”[78]

Others described similar arrangements. A man who had three children and his wife working with him harvesting onions in Texas told us that with five people working on piece rate, “We made $80 on the first day. There are days where we can do $200. But sometimes we don’t work all week.”[79] At these rates, each family member earned, on average, $16 to $40 a day.

Child labor in these instances, regardless of whether the children themselves are exploited, facilitates wage exploitation of adults by potentially preventing the adult from receiving the legal minimum wage. Attorney Gregory Schell explained: “Most farmworkers are unaware that the federal minimum wage applies to piece-work tasks. Therefore, so long as workers are paid the promised piece-rate for the buckets/tubs/units they pick, they (mistakenly) believe they have been properly paid.”[80] 

Where employers fail to ensure that piece rate workers make at least minimum wage, a piece rate system creates incentives for employers to allow young children to work and for families to send their children to work, even if they earn very little.[81] For example, a young woman from California said she started working at age 14 after her mother could only find work in the fields: “We realized the more she [my mother] picked the more she earned. We all would help on weekends . . . . My mom was the only one registered so the check went to her. . . . On the weekends we were five people—parents plus three kids.”[82]

[38] Human Rights Watch interview with James A., age 15, Plant City, Florida, March 21, 2009.

[39] Human Rights Watch interview with Olivia A., age 14, Plant City, Florida, March 21, 2009.

[40] Human Rights Watch interview with Sam B. (not his real name), age 17, Plainview, Texas, July 21, 2009.

[41] Human Rights Watch interview with Felipe D. (not his real name), age 15, Goldsboro, North Carolina, August 6, 2009.

[42] Human Rights Watch interview with Luz A., age 18, Plant City, Florida, March 21, 2009.

[43] Human Rights Watch interview with Elisabeth S. (not her real name), age 19, Durham, North Carolina, August 3, 2009.

[44] Human Rights Watch interview with Marta V., age 13, Plainview, Texas, July 21, 2009.

[45] Human Rights Watch interview with James A., age 15, Plant City, Florida, March 21, 2009.

[46] 29 C.F.R. sec. 570.35.

[47] Human Rights Watch interview with Sam B., age 17, Plainview, Texas, July 21, 2009. A wage of $300 for 55 hours a week would constitute $5.45 an hour; $200 for 55 hours would be $3.64 an hour. Compared with the federal minimum wage at the time of $6.55 an hour, Sa, earned $60.50 to $160.05 a week less than he should have for those hours of work.

[48] Human Rights Watch interview with Antonio M. (not his real name), age 12, and his mother, Goldsboro, North Carolina, August 6, 2009.

[49] Human Rights Watch interview with Olivia A., age 14, Plant City, Florida, March 21, 2009.

[50] Human Rights Watch interview with James A., age 15, Plant City, Florida, March 21, 2009.

[51] Human Rights Watch interview with mother and health outreach worker, Jackson County, North Carolina, August 4, 2009.

[52] Employers are exempt from minimum wage requirements if they did not utilize more than 500 “man days” of agricultural labor in any calendar quarter of the preceding calendar year, with a “man day” defined as any day during which an employee performs agricultural work for at least one hour. Employees are not entitled to minimum wage if:

·          they are immediate family members of their employer;

·          they are principally engaged in the production of livestock;

·          they are local hand harvest laborers who commute daily from their permanent residence, are paid on a piece rate basis in traditionally piece-rated occupations, and worked in agriculture less than 13 weeks during the preceding calendar year; or

·          they are non-local children 16 years or younger who are hand harvesters, paid on a piece rate in traditionally piece-rated occupations, employed on the same farm as their parent, and are paid the same piece rate as those over 16.

29 C.F.R. sec. 780.300.

In addition, employers may pay youth under age 20 a lower minimum wage during the first 90 consecutive calendar days after their initial employment.

[53] Human Rights Watch interview with farm operator, Michigan, August 28, 2009.

[54] 29 U.S.C. sec. 213(b)(12).

[55] 29 U.S.C. sec. 152. As a result, agricultural workers can be fired for joining a labor union or engaging in collective action against an employer, and have no way of joining together to compel an employer to negotiate wages paid, hours worked, and other conditions of employment.

[56] The connection between the failure to enforce minimum wage laws for adults and child labor was highlighted by attorneys who advocate on behalf of farmworkers. See, for example, Human Rights Watch telephone interview with Thomas Thornburg, managing attorney, and staff of Farmworker Legal Services of Michigan, Bangor, Michigan, July 20, 2009.

[57]According to NAWS, crop workers were paid an average of $8.09 an hour in 2005-2006. US Department of Labor, “The National Agricultural Workers Survey: Public Access Data,” http://www.doleta.gov/agworker/naws.cfm (accessed April 27, 2010). The US Department of Agriculture reported that the median wage for nonsupervisory hired farm labor in 2006 was $6.75 per hour, “among the lowest wages paid for a typical unskilled occupation.”USDA Economic Research Service, “Rural Labor and Education: Farm Labor” (using information from the USDA, the National Agricultural Statistics Service, and the Farm Labor Survey).

[58] For example, if a harvester is shown as having worked only 40 hours with a gross wage of $290 in the week, that indicates an hourly wage of $7.25, the current minimum wage. But if the harvester actually worked 60 hours a week, he was paid only $4.83 an hour, far below the minimum wage.

[59] Human Rights Watch telephone interview with Gregory Schell, managing attorney, Florida Legal Services Migrant Farmworker Justice Project, Florida, February 2, 2009.

[60] Farmworkers in the fields many have to interrupt their work because of rain or a cold snap, but if they are required to wait in the fields until the weather improves, this time is ordinarily considered to be compensable, because the employer, as courts have ruled, has “usurped” the workers’ time. Adding this forced downtime to other hours of productive work can result in minimum wage violations if the employer fails to pay for it. A similar unpaid time situation can occur when workers are required to be in the fields at a specific time, only to be told that the temperature, humidity, and other factors are not yet right for harvesting crops. For example, 16-year-old Diana G. described a recent experience of getting up at 3 a.m., traveling an hour and a half to the fields, and upon arrival being told to wait 30 minutes to start working. In fact, she was not allowed to start working until much later, at 10 a.m., and at 3 p.m., she said “they said we had to go because it’s too hot and will make the blueberries soggy.” She was not paid for the time she spent waiting to work although she was obligated to be there. Human Rights Watch interview with Diana G. (not her real name), age 16, Goldsboro, North Carolina, August 6, 2009. 

[61]Crop workers were employed on US farms in 2005-2006 an average of 34.5 weeks (65 percent of the year) and in non-farm activities for a little more than 3 weeks (6 percent of the year); 12 percent of hired crop workers also held a non-farm job at some point during the year. US Department of Labor, “The National Agricultural Workers Survey: Public Access Data,” http://www.doleta.gov/agworker/naws.cfm (accessed April 27, 2010).

[62] Human Rights Watch interview with Walter R. (not his real name), age 17, and his parents, Goldsboro, North Carolina, August 6, 2009.

[63] Ibid.

[64]Human Rights Watch interview Marcos S., age 17, Jackson County, North Carolina, August 4, 2009.

[65] Human Rights Watch interview with paralegal, Immokalee, Florida, March 24, 2009.

[66] Email from Schell, Florida Legal Services Migrant Farmworker Justice Project, April 7, 2010.

[67] Southern Poverty Law Center, “Under Siege: Life for Low-Income Latinos in the South,”April 2009, www.splcenter.org/undersiege (accessed March 20, 2010), p. 6. The workers surveyed were employed in agriculture and other sectors. As noted above, in this report, the terms “Hispanic” and “Latino” are used according to the term employed in the survey referenced.

[68] See, for example, Human Rights Watch interviews with Felipe D., age 15, with Walter R. and his parents, and with Diana G., age 16, Goldsboro, North Carolina, August 6, 2009.

[69] In contrast with Human Rights Watch’s interviews, NAWS reported that most employers covered the cost of using tools or equipment in 2005-2006. US Department of Labor, “The National Agricultural Workers Survey: Public Access Documentation,” http://www.doleta.gov/agworker/naws.cfm (accessed April 27, 2010).

[70] Human Rights Watch interview with Elisabeth S., age 19, Durham, North Carolina, August 3, 2009.

[71] See 29 C.F.R. sec. 531.3 (d)(1), (2). 

[72]See Arriaga v. Florida-Pacific Farms, 305 F.3d 1228 (11th Cir. 2002); and  Rivera v. Brickman Group, 2008 WL 81570 (E.D. Pa. 2008).

[73] Human Rights Watch telephone interview with Josie Ellis, registered nurse and director of Vecinos Inc. Farmworker Health Program, Sylva, North Carolina, July 27, 2009.

[74] Human Rights Watch interview with Diana G., age 16, Goldsboro, North Carolina, August 6, 2009.

[75] Human Rights Watch interview with paralegal, Immokalee, Florida, March 24, 2009.

[76] See, for example, John J. May, “Occupational Injury and Illness in Farmworkers in the Eastern United States,” Latino Farmworkers in the Eastern United States: Health, Safety, and Justice, Thomas A. Arcury and Sara A. Quandt, eds. (New York: Springer, 2009), p. 72.

[77] Human Rights Watch interview with Luz A., age 18, Plant City, Florida, March 21, 2009.

[78] Human Rights Watch interview with farm office manager, Michigan, August 27, 2009.

[79] Human Rights Watch interview with father of working children, Plainview, Texas, July 20, 2009.

[80] Email from Schell, Florida Legal Services Migrant Farmworker Justice Project, April 7, 2010.

[81] In 2005-2006, 84 percent of crop workers reported being paid by the hour, 9 percent by the piece, 2 percent by a combination of hourly and piece rate pay, and 2 percent by salary. US Department of Labor, “The National Agricultural Workers Survey: Public Access Documentation,” http://www.doleta.gov/agworker/naws.cfm (accessed April 27, 2010).

[82]Human Rights Watch interview with Julia N., age 18, Benson, North Carolina, August 5, 2009.