May 16, 2012

VI. Inadequate Civil Law Protections for Agricultural Workers

US law in theory protects all workers, including unauthorized workers, from sexual violence and sexual harassment. Title VII of the federal Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, religion, national origin, or sex. The law also prohibits retaliation, including threats to report a worker to immigration authorities, against people who report discrimination. Sexual harassment is a form of sex discrimination prohibited under Title VII.[230]

But many survivors of workplace sexual violence and harassment find it difficult to gain meaningful protection under these laws. Several of the farmworkers identified for this report had filed claims for sexual harassment under Title VII or similar state law, but the vast majority had never filed a claim for sexual harassment or for any other workplace violation they had experienced.

Exclusion of Farmworkers from Worker Protection Laws

Historically, US labor law has excluded agricultural workers from federal protections that apply to workers in nearly every other industry.

Agricultural workers do not have collective bargaining rights under the National Labor Relations Act (NLRA).[231] Agricultural workers are also excluded from many of the protections of the Fair Labor Standards Act (FLSA). As a result, agricultural workers are not entitled under federal law to overtime pay, rest periods, or meal periods during the workday. They are also exempt from minimum wage requirements if they work on small farms.[232] The child labor provisions of the FLSA treat agricultural work differently from work in other industries. While the minimum age to work in most industries is 16, the standard minimum age for agriculture is 14; on small farms, there is no minimum age for children to work outside of school hours with their parents’ permission.[233] Although agricultural work includes some of the most dangerous work in the country,[234] the Occupational Health and Safety Administration (OSHA) does not enforce federal workplace health and safety standards on farms with fewer than 11 employees, effectively excluding a third of all farmworkers.[235] Similarly, agricultural employers may require or allow 16- and 17-year-olds to work in particularly hazardous occupations, while in nonagricultural occupations, the minimum age for particularly hazardous work is 18.[236]

State worker protection legislation varies considerably. California provides collective bargaining rights for farmworkers excluded under the NLRA,[237] but no other state has such a law. California, Oregon, and Washington include farmworkers in state wage and hour, as well as rest and meal period, protections;[238] in other states, agricultural employers are subject only to the minimal federal requirements. California has no agricultural exemptions for workers’ compensation, but most other states do, excluding small farms or migrant and seasonal farmworkers altogether.[239]

Agriculture is one of the most hazardous industries, with workers facing a higher risk of fatal and nonfatal injuries than workers in most other industries. In 2010 the injury rate for agricultural workers was over 20 percent higher than the rate for all workers; the fatality rate for farmworkers was over 7 times higher than for all workers.[240] Although several states require employers to provide clean drinking water, toilets, and other equipment to ensure sanitation and protection from heat stress, many farmworkers reported to Human Rights Watch that they had worked for employers who violated these rules. Employers must also abide by certain health and safety standards when applying pesticides, but again, farmworkers told us they had to work in areas that were still being sprayed or had been recently sprayed.[241]

Inadequate Enforcement of Existing Worker Protection Laws by DOL and Other Federal and State Agencies in Agricultural Workplaces

I would like to see the Department of Labor come. They should not announce their visits; they should show up without warning.
—Mercedes A., New York farmworker, August 2011.

Although farmworkers are highly vulnerable to a wide range of workplace abuses, the federal and state agencies charged with enforcing laws that do apply to farmworkers are seriously understaffed and unable to address the full scope of violations.

The Department of Labor (DOL) is charged with investigating violations under the Fair Labor Standards Act and the Agricultural Worker Protection Act (AWPA). Although surveys indicate that low-wage workers, particularly immigrant workers, experience high rates of wage theft,[242] from 2002 to 2008, DOL investigations of farms under the FLSA declined from 229 investigations to 110 investigations. During that same period, DOL investigations of farms under the AWPA declined from 1,849 investigations to 1,499, although the percentage of employers found to be violating the law held steady at 60 percent.[243] The penalties imposed are also very low. From 2002 to 2008, the average penalty assessed for a violation of the AWPA was only $342.[244] DOL’s enforcement of child labor laws is equally spotty. Child labor violations in agriculture decreased from 36 cases (involving 109 children) in 2009 to 31 cases (involving 49 children) in 2010; overall civil monetary penalties assessed DOL for child labor decreased by almost half from 2009 to 2010.[245]

Enforcement by state agencies varies, but is rarely better. Some states exempt farmworkers from their state worker protection laws. Other states inadequately enforce laws that on paper should protect such workers. According to Nathan Dollar, director of a farmworker health program in North Carolina, when reports of violations are actually investigated and fines are levied, the fines are often negotiated down by the grower and end up not being paid at all.[246] North Carolina Legal Aid recently filed a complaint in November 2011 against the North Carolina Department of Labor for failing to ensure safe working and housing conditions for farmworkers in North Carolina.[247] 

Many farmworkers interviewed by Human Rights Watch reported having worked at some point with an employer who violated wage and hour laws or occupational health and safety laws. This is significant because, as Daniela Dwyer, a legal services attorney in Florida, stated, there is a “broken windows” problem: “You can have all the workplace rights posters that you want, [but] if two out of three requirements are not being met, it gives people less confidence in their ability to act on their rights.”[248] 

The same supervisor who sexually harassed several women at a cauliflower packing plant in California had also created a dangerous and abusive workplace. The women reported that when another woman was seriously injured at work, she was not taken to the hospital. And while workers were told to gather at 6 a.m., the work would not start until 9 a.m., and they were not paid for the hours they spent waiting. Workers were never given lunch breaks or other breaks, and the bathroom was placed far away, further than allowed under California law. Magdalena C. said that when she complained about the bathrooms being far away, the supervisor lifted his middle finger, “as if he were sticking it inside [my vagina],” and said, “Now where are the bathrooms?”[249]

Attorneys representing women in sexual harassment cases said their clients reported seeing other violations at work. Many of their clients initially came in with questions about other issues or were represented in other matters, and as the clients came to trust them, they revealed that they had also been victims of sexual violence and harassment at work.[250] For example, one community worker had a client initially come with a question about unpaid wages. When she questioned her further about why she had not been paid, the client broke down and said the foreman had claimed the check was in his truck, had taken her to an isolated field, and had raped her. She reported, “She was just a vulnerable person…. She still wasn’t given her check.[251]

In 2002 the EEOC reached a $1.5 million settlement with DeCoster,[252] an egg farm in Iowa that had a long history of being charged with other workplace violations, including child labor, failure to pay overtime, failure to comply with previous orders to install safety guards, and employing undocumented workers.[253]

Some seemingly unrelated workplace violations directly make women more vulnerable to sexual violence and harassment. For example, if bathrooms are not provided, as required by law, a man might be able to relieve himself discretely, but a woman might have to go far from the fields into woods or other secluded areas where she can more easily be assaulted.[254]

California’s Unique Position in Agriculture

California annually generates $37.5 billion in revenue from agriculture, more than any other state in the US.[255] The major crops of fruits, vegetables, and nuts are particularly dependent on human labor. Thirty-six percent of all farmworkers in the US work in California; the next closest state is Washington, with only 8 percent.[256] California also has a higher proportion of unauthorized farmworkers, a higher percentage of workers employed by farm labor contractors, and a more rapidly increasing population of indigenous workers than other states.[257]

California also has some of the best legal protections for farmworkers, stronger in many cases than federal law.[258] The base of Cesar Chavez and the United Farm Workers, California has a long history of farmworker organizing and advocacy, and state law explicitly protects farmworkers’ right to form unions.[259] There are more bilingual Spanish speakers working at social service agencies, law enforcement agencies, and regulatory agencies in California than in states where the Latino population is newer, such as North Carolina. Although there is still a serious lack of resources available to indigenous language speakers, California Rural Legal Assistance employs more indigenous language speakers than the US federal government.[260]

California law requires that employers with 50 or more employees provide sexual harassment training to their supervisors and managers once every two years.[261] The San Francisco Division of the Equal Employment Opportunity Commission (EEOC) was the first within the EEOC to investigate and conduct outreach regarding sexual harassment among low-income immigrant women, including farmworkers. As the EEOC’s William Tamayo explained, “The $1.855 million verdict against the largest lettuce grower, Tanimura & Antle, was an earthquake in Monterey County. The bigger growers are aware of the EEOC.”[262]

Michael Meuter, an attorney at California Rural Legal Assistance, noted, “Success breeds success and interest.”[263] California also has its own state law prohibiting sexual harassment, a provision of which gives California workers up to 300 days after the prohibited conduct to file charges with the EEOC, not 180 days as in states without this provision. California workers may also seek damage awards higher than those available under Title VII.

Our research does not allow us to draw firm conclusions on this point, but California farmworkers interviewed by Human Rights Watch seemed to have more awareness of their legal rights than farmworkers interviewed by the organization in less-regulated states, including New York and North Carolina. All but one of the farmworkers we spoke with who reported receiving sexual harassment training at work was in California (the exception was a poultry processing worker in North Carolina), although many of them noted that the training was performed perfunctorily or not taken seriously. Organizations like Lideres Campesinas also provide Know-Your-Rights trainings for many farmworker women in California, and several of its members believe these trainings have made a difference.

Several California farmworkers we spoke with said their work conditions had improved, at least a little, over the years.[264] Ines R., an 18-year-old who performs agricultural work during the summers when she is not in college, told us her farmworker parents had “nothing, no water” at their first workplaces in California, while she works with a supervisor who “really takes care of people.”[265] Several of the sexual harassment cases in California involved farmworkers who had previously asserted their rights in other matters or who came seeking assistance in another matter. Lucia A. knew where she could go for help because she had previously filed a claim for unemployment.[266] The mother of the teenager who filed a sexual harassment lawsuit at Giumarra Vineyards had also previously been represented by California Rural Legal Assistance in a housing habitability case.[267] In California, workers who are pregnant can get disability benefits, and that is what first brought Patricia M. to the social service agency that helped her report her rape to the police.[268]

All of these farmworkers were careful to note, however, that abuses still occur.  And the most marginalized of California’s farmworkers, who are often young, recent arrivals, or indigenous workers, still face formidable barriers to accessing services and reporting abuses. As several cases in this report illustrate, even when a survivor is able to make contact with services, such contact does not guarantee that she will be able to seek or obtain redress.[269] 

The experience of California farmworkers suggests that strong labor laws can help improve working conditions. The continued persistence of workplace abuses, however, demonstrates that more comprehensive changes—including federal immigration reform—are needed to transform an industry that has relied for too long on an unauthorized, marginalized workforce.

Particular Barriers for Unauthorized Immigrants

In the rare instances in which unauthorized farmworkers decide to bring claims under civil sexual harassment law, they face significant barriers. Legal services organizations that receive federal funding through the Legal Services Corporation (LSC) are prohibited, with some exceptions, from representing unauthorized immigrants,[270] and in many rural areas, LSC-funded organizations are the only legal service organizations that exist.

Furthermore, although US law is clear that Title VII and its provisions prohibiting sexual harassment apply to unauthorized workers, the Supreme Court’s 2002 decision in Hoffman Plasticv. National Labor Relations Board (NLRB) has raised questions about which remedies are available to unauthorized workers. In Hoffman Plastic, the Supreme Court ruled that the NLRB had erred in awarding back pay (as defined under the NLRA) to an unauthorized worker wrongfully terminated for participating in a union organizing campaign.[271]

This decision has led some employers to argue that unauthorized workers are not entitled to other remedies beyond the specific remedy at issue in Hoffman Plastic, including those under Title VII, which prohibits sexual harassment. The decision has also emboldened employers to argue that inquiries into immigration status are relevant during discovery.  For example, in Rivera v. Nibco, where immigrant workers brought claims of national origin discrimination under Title VII, the employer sought to inquire into their immigration status.[272] In a decision in the case, the Ninth Circuit Court of Appeals noted, “[T]he overriding national policy against discrimination would seem likely to outweigh any bar against the payment of back wages to unlawful immigrants in Title VII cases. Thus, we seriously doubt that Hoffman applies in such actions.”[273] Although the court ultimately declined to decide this question, it did hold that the harm to employees would outweigh benefit to the employer if discovery into immigration status were allowed.[274] Other courts have similarly declined to extend Hoffman to analogous cases,[275] and the EEOC has sought and won protective orders prohibiting inquiries into immigration status.[276] 

The issue, however, has not been decisively settled. A federal court in Washington held in 2010 that immigration status is relevant to determination of actual damages, although the court bifurcated the liability and statutory damages determinations to limit the chilling effect of the decision. Liz Chacko, a farmworker attorney in Pennsylvania, stated that even though she believes Hoffman Plastic does not apply to remedies under Title VII, in practice, “we can’t guarantee [unauthorized workers] that the employer won’t try to inquire into immigration status.”Out of caution, she sometimes chooses not to seek certain remedies.[277]

Chacko further noted that if sexual harassment is severe, she can seek compensatory damages based on emotional distress to make up for the remedies she is not claiming. But this strategy does not work for clients who suffer less severe, though real, sexual harassment.  Limited remedies not only reduce compensation for the survivor, of course, but also weaken the deterrent effect of the law on employers who engage in unlawful practices.

The EEOC: Positive Efforts but Limited Resources

EEOC investigators and attorneys display a wide range of understanding and sensitivity about different forms of discrimination—some truly do not understand the unique challenges faced by farmworkers and particularly indigenous farmworkers. As a result of this combination of factors, the EEOC process is cumbersome, inefficient, and often causes repeated re-traumatization and/or loss of interest among clients. Put bluntly, the administrative process, handled incorrectly, can sometimes be worse for complainants than if they had made no complaint at all.
—Megan Beaman, Attorney, California Rural Legal Assistance, May 1, 2011.

The Equal Employment Opportunity Commission (EEOC) is charged with enforcing Title VII, along with other anti-discrimination laws, in the workplace. An employee who wants to bring a claim under Title VII must first file a complaint, or “charge of discrimination,” with the EEOC. In general, the charge must be filed within 180 days of the last act of discrimination, a time period extended to 300 days if a state or local agency enforces a law that prohibits employment discrimination on the same basis.[278] Some cases are sent to mediation; others go directly to an investigator. If an investigator finds evidence of illegal discrimination, the EEOC seeks to reach a settlement with the employer. If the EEOC does not reach a settlement, the agency may bring a lawsuit on behalf of the employee. In deciding whether or not to bring a lawsuit, the EEOC considers such factors as the seriousness of the violation, the type of legal issues in the case, and the potential impact a lawsuit could have on workplace discrimination in general.[279]

If the investigator does not find evidence of illegal discrimination, or the EEOC decides not to bring a lawsuit, the employee is given a Right to Sue letter, and he or she may still personally sue the employer but must do so within 90 days.[280] The EEOC must issue a Right to Sue letter when 180 days have passed since the charge was first filed.[281]

In 1999 the EEOC began to prioritize assisting low-wage workers, including immigrant workers.[282] The EEOC has since taken significant steps toward addressing sexual harassment of low-income immigrant workers—including unauthorized workers—with some positive results, including in the two dozen sexual harassment lawsuits it has brought against agricultural and food industry employers. Several have resulted in significant settlements, while the one case that went to trial resulted in a verdict of over $1 million in favor of the farmworker.[283] These cases have generated some publicity, which increases the likelihood that farmworker survivors will discover they have a right to redress. Attorneys at several rural legal services organizations praised the EEOC for its efforts to reach farmworker communities and noted that the increased outreach seems to have led to more farmworkers being willing to bring lawsuits against their employers.[284] 

The EEOC process also sometimes allows farmworkers to bring claims anonymously. In the lawsuit against Evans Fruit in Washington, the EEOC filed a “Jane Doe” complaint.[285] In the lawsuit against Knouse Foods in Pennsylvania, the lawsuit was brought as a Commissioner’s Charge, so that the farmworkers who initially brought the claim to the EEOC did not have to be named.[286] The attorney who brought this case stated, “It afforded a level of protection that [the workers] wouldn’t otherwise have had, especially to the worker who was still at the employer.”[287]

At the same time, however, several farmworker advocates expressed some frustration with the EEOC and the way it processes and investigates claims. The basic steps required for filing a complaint under Title VII were clearly not designed for a rural and often isolated and migratory workforce. Given the distrust many farmworkers have of government authorities, as well as the fear many have of deportation, it can be difficult for a farmworker to even enter a federal building to file a charge with the EEOC. One woman stated, “I wanted to complain to an agency, but I don’t have documents. They always want to see your ID.”[288] Other than the office in Fresno, California, EEOC offices tend to be located in major urban areas nationwide. Farmworkers without cars can find it difficult to reach these offices, let alone take time away from work. William Tamayo, Regional Attorney with the EEOC, acknowledged that the location of EEOC offices is a problem and stated that if the agency had more funding, it would locate more offices in rural areas.[289] Antonio Flores, a community worker for the Indigenous Farmworker Program at California Rural Legal Assistance, further noted that EEOC staff cannot simply sit in their offices, because “indigenous people will not go knock on their doors.”[290]

Should a farmworker overcome all the barriers to filing a charge, she will encounter a system for processing charges that can last several years. Survivors often find it difficult to understand the EEOC’s enforcement capabilities. An attorney described how one client was frustrated and wondered, “Why aren’t they putting him in jail? Why aren’t they acting faster?”[291] The EEOC generally will not issue a Right to Sue letter before 180 days after the charge is filed. If the EEOC decides to investigate a case, it generally takes at least six months for an investigator to be assigned to the case, and that is the best case scenario for expedited cases. The investigation itself can take anywhere from six months to several years. One attorney acknowledged that the EEOC has a tremendous workload, but felt that the length of time it takes to complete an investigation is “terrible,” especially for migrant workers, stating further, “We lose track of our clients, they lose faith in the system, they think, ‘What’s the point of staying in touch?’ It’s a big, big problem.”[292] The delays can also adversely affect the viability of a class action in situations where many workers suffer sexual harassment, as it makes it more difficult to locate witnesses and claimants, and memories fade.[293]

The quality of investigations also ranges widely. While some attorneys felt investigations had been carried out rigorously, others reported encountering investigators who lacked sensitivity, with regard to both the cultural background of the survivors (especially with indigenous workers) and the sensitive subject at issue. One woman who had been traumatized by the sexual harassment she experienced reported that the investigation had been “very stressful” and that the investigator had only interviewed her by telephone.[294] Telephone interviews are particularly difficult for survivors of rape. Attorneys further reported that some investigators are not sensitive to the unique challenges farmworkers face. In one case, an investigator tried to do interviews of witnesses at the workplace. Not surprisingly, “when she approached people at work, they said, ‘I don’t know anything, I’m not a witness.’”[295] That same investigator resisted doing interviews outside of work hours from nine to five, even though farmworkers are more available before 7 a.m. and after 7 p.m., their typical work day.[296] Some attorneys reported that supposedly bilingual Spanish-speaking investigators did not speak Spanish fluently and had even less capacity to interview indigenous workers with limited Spanish proficiency. In one case, an investigator grew so frustrated with an indigenous farmworker that he reportedly began pushing the client, declaring, “You’re contradicting yourself! This doesn’t make any sense!”[297]

When settlement offers are made, “the pressure to settle low and early is intense.”[298] One attorney expressed concern that when cases settle at the mediation stage of the EEOC process, it adversely affects the rights of other workers who might potentially have formed a class for a class action. The settlement offers are also often extremely low: “What she was offered was a joke; it didn’t even pay for a week’s work.”[299] But given the financial precariousness of a farmworker’s life, many “end up taking the first $1,000 offered to them.”[300]

The damages available to farmworkers are also statutorily limited. Title VII places caps on compensatory and punitive damages at $50,000 for employers with 101 employees or fewer, a figure that has been unchanged since 1991.[301] These caps can affect how seriously employers take these charges.[302] A worker who brings a claim under state and federal law can often seek greater damages, but there are several states, including four in the south, that do not have state laws prohibiting sexual harassment.[303] In some states, like Pennsylvania, the law specifically exempts agricultural workers.[304]

The Terra Linda case is a good example of how long and difficult a civil harassment claim can be and how contractors can complicate the issue of liability. In 2006 two women filed claims against Terra Linda Farms, a grower, and Green Valley Ag, Inc., a farm labor contractor, with the California Department of Fair Employment and Housing (DFEH), alleging sexual harassment and retaliation by a supervisor working for Terra Linda Farms. In 2008 the Department of Fair Employment and Housing Commission (Commission) issued a decision, after a three-day evidentiary hearing, ordering Terra Linda Farms to pay $110,000, deciding that although the women were employees of Green Valley, Terra Linda Farms was a joint employer. Terra Linda Farms appealed, and in 2009 a California superior court affirmed the Commission decision. Terra Linda Farms appealed again, and in January 2012 the Fifth Appellate District Court of California issued a decision upholding the superior court decision.[305] In all, it took almost six years before the women received this decision, and as this report went to publication, they had yet to receive the money awarded to them.[306]

[230] Title VII of the Civil Rights Act of 1964 (Pub. L. 88-352), Section 701 et seq., 42 US Code, 2000e et seq., amended by the Civil Rights Act of 1991 (Pub. L. 102-166) and the Lily Ledbetter Fair Pay Act of 2009 (Pub. L. 111-2). See also Contreras v. Corinthian Vigor Ins. Co., 25 F. Supp. 2d 1053 (N.D. Cal. 1998); Singh v. Jutla & C.D. & R.’s Oil, Inc., 214 F. Supp. 2d 1056 (N.D. Cal. 2002) (finding that employer threats to turn workers in to immigration authorities violate the anti-retaliation provisions of the FLSA).

[231] National Labor Relations Act (NLRA) Section 2(3), 29 US Code Section 152(3).

[232] Fair Labor Standards Act (FLSA), 29 US Code Sections 201 et seq. See also US Department of Labor, Wage and Hour Division, “Fact Sheet #12: Agricultural Employers Under the Fair Labor Standards Act (FLSA),” revised July 2008, http://www.dol.gov/whd/regs/compliance/whdfs12.htm (accessed January 26, 2012).

[233] Fair Labor Standards Act. See also US Department of Labor, Wage and Hour Division, “Fact Sheet #40: Federal Youth Employment Laws in Farm Jobs,” revised July 2008, http://www.dol.gov/whd/regs/compliance/whdfs40.htm (accessed January 26, 2012).

[234] US Department of Labor, Bureau of Labor Statistics, “Census of Fatal Occupational Injuries,” http://www.bls.gov/iif/oshcfoi1.htm (accessed January 26, 2012).

[235] Bon Appetit Management Company and United Farm Workers, “Inventory of Farmworker Issues and Protections in the United States,” March 2011.

[236] 29 US Code Section 213(c).

[237] California Agricultural Labor Relations Act, California Labor Code, Division 2, Part 3.5, Section 1140.2.

[238] California Labor Code Section 1171 and California Industrial Welfare Commission, Order No. 14-2001, Regulating Wages, Hours and Working Conditions in the Agricultural Occupations; Oregon Revised Statutes Sections 653.020, 653.022, 653.025, 653.261, and Oregon Administrative Rules Sections 839-020-0010, 839-020-0004(4), 839-020-0135, 839-020-0050; Washington Minimum Wage Act, Revised Code of Washington Section 49.46, Washington Administrative Code Section 296-131-020.

[239] Bon Appetit Management Company and United Farm Workers, “Inventory of Farmworker Issues and Protections in the United States,” March 2011.

[240] US Department of Labor, Occupational Health and Safety Administration, “Agricultural Operations,” http://www.osha.gov/SLTC/agriculturaloperations/ (accessed February 23, 2012).

[241] Similar reports were documented by Human Rights Watch in Fields of Peril. Human Rights Watch, Fields of Peril: Child Labor in US Agriculture, May 5, 2010, http://www.hrw.org/reports/2010/05/05/fields-peril-0.

[242]Farmworker Justice and Oxfam America, “Weeding out abuses: Recommendations for a law-abiding farm labor system,” 2010, http://www.fwjustice.org/files/reports/Farmworker_Justice-lowres-spreads.pdf (accessed January 31, 2011). A report by the Southern Poverty Law Center similarly found 41 percent of Latino immigrants surveyed in the South had experienced wage theft. Southern Poverty Law Center, “Under Siege: Life for Low-Income Latinos in the South,” April 2009, http://www.splcenter.org/get-informed/publications/under-siege-life-for-low-income-latinos-in-the-south (accessed April 23, 2012).

[243] Ibid.

[244]Ibid.

[245] Letter from Human Rights Watch to Secretary of Labor Hilda Solis on Child Farmworkers, August 6, 2011, http://www.hrw.org/news/2011/08/05/letter-secretary-labor-hilda-solis-child-farmworkers (accessed March 12, 2012).

[246] Human Rights Watch telephone interview with Nathan Dollar, Executive Director, Vecinos, July 17, 2011.

[247] Chris Liu-Beers, “NC Dept. of Labor Neglects to Enforce Laws that Protect Farmworker Health and Safety,” post to untitled blog, North Carolina Farmworker Advocacy Network, ncfan.org, October 12, 2011, http://www.ncfan.org/blog/2011/10/12/nc-dept-of-labor-neglects-to-enforce-laws-that-protect-farmw.html#.T1jK18CvJ8E (accessed March 8, 2012).

[248] Human Rights Watch telephone interview with Daniela Dwyer, Staff Attorney, Florida Legal Services, Migrant Farmworker Justice Project, May 12, 2011.

[249] Human Rights Watch interview with Natalia B., Magdalena C., Ana D., and Soledad E. (pseudonyms), California, April 2011.

[250] Human Rights Watch telephone interview with Mercedes Lorduy, Attorney, VIDA Legal Assistance, May 18, 2011; Human Rights Watch interviews with Michael Marsh, Directing Attorney, California Rural Legal Assistance, Salinas, California, April 26, 2011; and Megan Beaman, Attorney, Migrant Farmworker Project, California Rural Legal Assistance, April 27, 2011.

[251] Human Rights Watch telephone interview with Irma Luna, Community Worker, California Rural Legal Assistance, July 22, 2011.

[252] “EEOC and DeCoster Farms Settle Complaint for $1,525,000,” US Equal Employment Opportunity Commission press release, September 30, 2002.

[253] Institute for Women’s Policy Research, Ending Sex and Race Discrimination in the Workplace, March 2011, http://www.iwpr./org/initiatives/pay-equity-and-discrimination (accessed March 12, 2012).

[254] Human Rights Watch interview with Adrienne Dervartanian and Virginia Ruiz, Senior Attorneys, Farmworker Justice, Washington, DC, March 23, 2011.

[255]California Department of Food and Agriculture, “California Agricultural Production Statistics,” http://www.cdfa.ca.gov/statistics/ (accessed February 5, 2012).

[256] Aguirre International, “The California Farm Labor Force: Overview and Trends from the National Agricultural Workers Survey,” June 2005, http://agcenter.ucdavis.edu/AgDoc/CalifFarmLaborForceNAWS.pdf (accessed March 7, 2012).

[257] Ibid.

[258] Bon Appetit Management Company and United Farm Workers, “Inventory of Farmworker Issues and Protections in the United States,” March 2011.

[259] California Agricultural Labor Relations Act, California Labor Code, Division 2, Part 3.5, Section 1140 et seq.

[260]Human Rights Watch interview with Jeff Ponting, Director, Indigenous Farmworker Program, California Rural Legal Assistance, Oxnard, California, June 29, 2011.

[261]Assembly Bill 1825, California Government Code 12950.1.

[262]Human Rights Watch interview with William Tamayo, Regional Attorney, US Equal Employment Opportunity Commission, San Francisco, California, April 7, 2011.

[263] Human Rights Watch interview with Michael Meuter, Director of Litigation Advocacy & Training, California Rural Legal Assistance, Migrant Farmworker Project, April 5, 2011.

[264]Human Rights Watch interviews with Luz S. (pseudonym), California, August 2011; and Rosa O. (pseudonym), California, August 2011.

[265]Human Rights Watch interview with Ines R. (pseudonym), California, August 2011.

[266]Human Rights Watch interview with Lucia A. (pseudonym), California, April 2011.

[267]Email communication from Megan Beaman, Attorney, California Rural Legal Assistance to Human Rights Watch, May 1, 2011.

[268] Human Rights Watch interview with Patricia M. (pseudonym), California, June 2011.

[269] Human Rights Watch interviews with Fidelina Espinoza and Oralia Maceda, Community Workers, Centro Binacional para el Desarollo Indigena Oaxaqueno (CBDIO), Fresno, California, June 20, 2011; and  Ines R. (pseudonym), California, August 2011.

[270] Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134, Sec. 504 (11), 100 Stat. 1321.

[271]Hoffman Plastic Compounds v. NLRB,  535 U.S. 137, 122 S.Ct. 1275, 152 L.Ed.2d 271 (2002)

[272]Rivera v. Nibco, Inc., 364 F.3d 1057 (9th Cir. 2004).

[273] Ibid. at 1069.

[274] Ibid. at 1070.

[275]Cano v. Mallory Mgmt., 195 Misc. 2d 666, 760 N.Y.S.2d 816, 818 (N.Y.Sup. Ct. 2003); De La Rosa v. N. Harvest Furniture, 210 F.R.D. 237, 238-39 (C.D.Ill. 2002); Escobar v. Spartan Sec. Serv., 281 F. Supp. 2d 895, 897 (S.D. Tex. 2003); Flores v. Amigon, 233 F. Supp. 2d 462, 464-65 (E.D.N.Y. 2002); Zeng Liu v. Donna Karan Int’l, Inc., 207 F. Supp. 2d 191, 192-93 (S.D.N.Y. 2002).

[276]EEOC v. First Wireless, 225 F.R.D. 404 (E.D.N.Y. 2004); EEOC v. City of Joliet, 239 F.R.D. 490 (N.D. ill. 2006).

[277] Human Rights Watch telephone interview with Liz Chacko, Friends of Farmworkers, July 29, 2011.

[278] US Equal Employment Opportunity Commission, “Time Limits for Filing a Charge,” http://www.eeoc.gov/employees/timeliness.cfm (accessed February 5, 2012).

[279]US Equal Employment Opportunity Commission, “Filing a Lawsuit,” http://www.eeoc.gov/employees/lawsuit.cfm (accessed February 5, 2012).

[280] US Equal Employment Opportunity Commission, “Filing a Charge of Discrimination,” http://www.eeoc.gov/employees/charge.cfm (accessed February 5, 2012).

[281]US Equal Employment Opportunity Commission, “Filing a Lawsuit.”

[282] William R. Tamayo, “The EEOC and Immigrant Workers,” University of San Francisco Law Review, vol. 44, Fall 2009, p. 253.

[283]“Sexual Harassment Verdict Upheld in Favor of EEOC Against Ag Industry Giant Harris Farms,” US Equal Employment Opportunity Commission press release, April 25, 2008, http://www.eeoc.gov/eeoc/newsroom/release/4-25-08.cfm (accessed March 7, 2012).

[284] Human Rights Watch telephone interviews with Jenifer Rodriguez, Attorney, Colorado Legal Services, August 5, 2011; Joe Morrison, Attorney, Columbia Legal Services, March 1, 2011; and Victoria Mesa, Attorney, Florida Rural Legal Services, August 2, 2011.

[285]EEOC v. Evans Fruit Co. Inc., No. CV-10-3033-LRS, Complaint, June 17, 2010.

[286] Human Rights Watch telephone interview with Liz Chacko, July 29, 2011.

[287] Human Rights Watch telephone interview with Liz Chacko, July 29, 2011.

[288]Human Rights Watch interview with Guadalupe F. (pseudonym), North Carolina, August 2011.

[289]Human Rights Watch interview with William Tamayo, April 7, 2011.

[290] Human Rights Watch interview with Antonio Flores, Community Worker, Indigenous Workers Project, California Rural Legal Assistance, Oxnard, California, June 29, 2011.

[291]Human Rights Watch interview with Jenifer Rodriguez, August 5, 2011.

[292] Human Rights Watch interview with Michael Meuter, April 5, 2011.

[293]Human Rights Watch interview with Michael Marsh, April 26, 2011.

[294] Human Rights Watch interview with Lucia A. (pseudonym), California, April 2011.

[295] Human Rights Watch telephone interview with Victoria Mesa, August 2, 2011.

[296] Ibid.

[297] Ibid.

[298] Email communication from Megan Beaman, May 1, 2011.

[299] Human Rights Watch telephone interview with Victoria Mesa, August 2, 2011.

[300] Ibid.

[301] 42 US Code Section 1981A(b)(3)(A).

[302]Human Rights Watch telephone interview with Liz Chacko, July 29, 2011.

[303] Human Rights Watch interview with William Tamayo, April 7, 2011.

[304] Pennsylvania Human Relations Act, 43 Pa. Cons Stat. Ann. Section 954(c); Liz Chacko, an attorney with Friends of Farmworkers, noted that at least with workers in packing or processing houses, they can categorize them as not being agricultural workers. Human Rights Watch telephone interview with Liz Chacko, July 29, 2011.

[305]Terra Linda Farms v. California Fair Employment and Housing Commission, 2012 Cal. App. Unpub. LEXIS 395, January 19, 2012.

[306] Human Rights Watch telephone interview with Anthony Seferian, Assistant Attorney General, California Office of the Attorney General, April 13, 2012.