May 16, 2012

I. Background

Immigrant Farmworkers: A Vulnerable Workforce

There are an estimated 1.4 million crop workers in the United States, with an additional 429,000 livestock workers.[16]

The vast majority of farmworkers in the United States are believed to be foreign-born. According to the National Agricultural Workers Survey (NAWS), which surveys crop workers, about 72 percent of farmworkers in 2007-2009 reported they were foreign-born; 68 percent reported they were born in Mexico.[17] Although most are Latino, there are other immigrant groups as well; one sexual harassment lawsuit filed by the Equal Employment Opportunity Commission against a Florida vegetable and fruit wholesale was brought on behalf of five Haitian women.[18]

The proportion of farmworkers who are unauthorized is close to 50 percent and has held steady at that number since 2001.[19] Many believe the percentage of unauthorized workers may be even higher, as the methodology used by the NAWS relies on employers who agree to allow their workers to be interviewed.[20] Manuel Cunha, president of the Nisei Farmers League, a major growers association, believes 90 percent of farmworkers in California have questionable documents and that across the nation, 75 to 80 percent are unauthorized.[21]

Not included in the NAWS are about 68,000 foreign-born farmworkers who have work authorization under the H-2A temporary foreign agricultural worker program, a very small portion of the entire agricultural workforce.[22] But these workers’ visas are tied to their employers, and the worker is entirely dependent upon his or her employer for permission to remain in the United States. Thus, their work authorization provides little protection from abuse and retaliation.[23]

The native language of the vast majority of farmworkers is Spanish, and only 30 percent report speaking English “well.”[24] Most have had little formal education; the average highest grade completed is eighth grade.[25]

According to the NAWS 2009-2010 data, about 24 percent of farmworkers are estimated to be female.[26] About three percent are under 18 and many of these children are girls.[27] Some women work with their husbands, but others are single mothers who, unable to support their children in their home countries, migrated to the US in search of work.

Women face particular difficulties in farm work. They are vulnerable to sexual violence and harassment and other forms of gender discrimination, and they face the significant challenge of taking care of children while working in an industry in which benefits like sick leave and paid vacation are extremely rare. Analysis of NAWS data from 2004-2006 by the Southern Poverty Law Center found that the average personal yearly income of female crop workers was $11,250, significantly lower than the average income of $16,250 for male crop workers.[28] The Indigenous Community Survey, while cautioning that its sample size was small, found that indigenous farmworker women work in worse conditions and earn lower wages than indigenous farmworker men.[29]

Among the fastest growing populations of farmworkers in California, and possibly the US in general, are migrants from indigenous communities in Mexico and Central America. A 2010 study of indigenous farmworkers in California identified 23 different languages spoken by these workers, the most common being Zapoteco, Mixteco, and Triqui.[30] These workers frequently speak little or no Spanish, which isolates them even further from government and community services.[31] It is difficult to quantify exactly how many farmworkers are indigenous, as it is believed many report Spanish as their native language in their responses on the NAWS survey regardless of their actual mother tongue, but 15 percent reported being indigenous on the 2007-2009 NAWS.[32]

In California, researchers estimate that 20 percent of farmworkers, or approximately 128,000 farmworkers, may be indigenous.[33] Indigenous workers tend to be younger, more recently arrived, and poorer than other immigrant farmworkers, with less education and less English-speaking ability. They are frequently discriminated against in their home country, and continue to suffer discrimination at the hands of non-indigenous or mestizo immigrants when they come to the US. Social service agencies are often unaware that these workers speak a different language and have a different cultural background than other Latino immigrants. Thus, indigenous workers face additional barriers to reporting abuses and violations.[34]

Farmworkers’ vulnerability is exacerbated by low wages and poverty. National surveys of farmworker wages represent mainly skilled and permanent employees and often exclude workers who are unauthorized or paid by contractors.[35] Even so, the reported annual incomes are very low. Average annual income for crop workers from 2007-2009 ranged from $15,000 to $17,499; average total family income ranged from $17,500 to $19,999.[36]

Farmworkers are paid an hourly or daily wage or a piece rate. When a worker is paid a piece rate, the day’s wages are calculated based on how many containers of fruit or vegetables are picked or packed. With some exceptions, however, the workers must be paid at least the minimum wage. As found in a previous Human Rights Watch study of child labor in US agriculture, Fields of Peril, however, workers who are paid a piece rate are often under extreme pressure not to take breaks, whether to go to the bathroom, drink water, or stand up from stressful, stooped positions.[37] The report also found that workers who are paid a piece rate who do not pick enough to meet the minimum wage are often not paid the difference as required by law.[38] For this report, a woman in North Carolina reported she had just worked an eight or nine-hour day and been paid only $34, well below North Carolina’s minimum wage of $7.25 per hour.[39]

Should farmworkers lose their jobs, only 39 percent are eligible for unemployment insurance; should workers lose their jobs because of injury, less than 50 percent are eligible for workers’ compensation. Unauthorized workers are not eligible for unemployment insurance even when their employers pay into the system. Twenty-one percent live in housing supplied by the employer, meaning the loss of a job would also result in loss of housing.[40] Farmworkers simply cannot afford to lose their jobs, and they often have few options for other employment if farm work is not available.

In keeping with national trends, immigrant farmworkers increasingly have lived in the US for long periods of time and live in “mixed status” families, where some members are US citizens or have work authorization while others are unauthorized. In 2007-2009, 55 percent of foreign born-workers reported having been in the US for at least 10 years; 29 percent reported having been in the US for more than 20 years. In 1992-1994, only three percent of all farmworkers were in mixed status families, but by 2007-2009, that number had increased to 12 percent.[41] This is significant, as some advocates told Human Rights Watch that the fear of separation from US citizen family due to deportation was a significant factor in farmworkers’ reluctance to report sexual violence and other abuses.[42]

Structure of Agricultural Work

Seasonal and Temporary Work

Some farms employ full-time workers year-round, but most farm work is by nature temporary and seasonal, which creates working conditions that are very different from those experienced by workers in most other industries. Because it is so difficult to find stable, year-round work, farmworkers have a strong interest in keeping the jobs they have.[43]

Most farmworkers, often called “settled” farmworkers, live and work in the same area year-round, such as in California, where the growing season is longer. Others are classified as “migrants,” defined in the NAWS as those who travel at least 75 miles within a 12-month period to obtain a job. Some “shuttle” between the US and a foreign country to work each year, while others migrate within the US for work; for example, workers Human Rights Watch met in North Carolina had also worked in New Jersey, Michigan, and Florida. Newcomers to the US are most likely to be migrant workers,[44] and as migrants, they are less likely to know about the communities in which they live temporarily and to have access to social services.

Farm Labor Contractors

Farmworkers may be employed directly by growers or by farm labor contractors, who recruit and hire workers for multiple growers. Although the NAWS indicates that only 12 percent of farmworkers were employed nationwide by a contractor in 2007-2009,[45] the use of contractors varies significantly by state. One study using NAWS data from 2003-2004 found that while 18 percent were employed by contractors nationwide, 37 percent were employed by contractors in California.[46] Although farm labor contractors are required to be licensed by the US Department of Labor and are regulated by the Migrant Seasonal Agricultural Worker Protection Act, there are many small, unlicensed contractors operating outside of the regulatory framework.[47]

Growers may choose to use a contractor for a variety of reasons. Contractors are often second-generation or long-term immigrants who speak better English as well as Spanish and are better able to communicate with workers than growers are. Some farms that employ a small, year-round workforce find it convenient to use a contractor for the few months each season when they need more workers. And given the increase in the use of contractors after the enactment of the Immigration Reform and Control Act of 1986 (IRCA), there is evidence that some farmers seek to avoid IRCA-related paperwork and sanctions on employers for hiring unauthorized workers.[48] One farmer told Human Rights Watch that one reason he uses a contractor to hire his seasonal workforce is that some of his most valued employees are unauthorized, and he hopes using a contractor for new hires will help reduce the likelihood of an audit of his permanent workforce.[49]

The increase in the use of contractors is significant for several reasons. Contract workers tend to be paid less than directly-hired workers and are unemployed for longer periods during the year.[50] A study focusing on indigenous farmworkers found that contract workers receive the same wages but are more commonly mistreated, such as through charges or overcharges for equipment, food, rides, and other services by foremen.[51] Although not all contractors violate labor laws, farmworker advocates have raised particular concerns about farm labor contractors, in part because some of the most egregious and well-publicized incidents of violations in an agricultural setting have involved contractors.[52]

The role of contractors perhaps most warrants scrutiny because when violations occur under contractors, growers often argue that they should not be held liable because the contractors, not they, are the workers’ employers.[53] Many farmworker advocates believe that some growers take advantage of the grower-contractor relationship to distance themselves from abusive working conditions and wages set by some contractors.

Swanton Berry Farm, a major organic strawberry producer in California, does not use contractors because the owners believe the primary motivation for using a contractor is “externalizing the risk of being an employer,” and “that’s not something we’re interested in.”[54] Other farmers echoed similar concerns and stated that when they do employ a contractor, they either work with a contractor they know and trust or ensure that the workers under the contractor receive the same training as their own permanent employees.[55]

One farmworker who has worked in North Carolina, Georgia, and Florida expressed strongly her belief that growers who directly employ workers and do not rely on contractors often feel more responsibility for the workers’ working conditions:

Right now, we’re working directly for a grower and it’s very different…. He knows us personally…. When we went to work on Friday, he asked for a meeting with all of us. He said he wanted a job well done, work slow, that he didn’t want anyone to get sick. He said it’s going to be really hot, wants to make sure there’s water, let women use the bathroom, water on both sides…. He explained to us, if there’s lightning, don’t wait for him to say so, just note the time and go home. With a contractor, you just keep working.[56]

Although some farm labor contractors are large companies with millions of dollars in annual sales and hundreds of employees,[57] many are small, mom-and-pop operations with limited assets, which can affect the damages available to workers seeking remedies. If certain conditions are met, such as grower involvement in training or supervision of workers, workers can argue that the grower should be considered a joint employer. As a grower association representative noted, “A grower cannot interfere with a contractor’s business because if anything goes wrong, then there’ll be joint liability,” illustrating the incentive for growers to distance themselves from contactor-run farm operations.[58]

Supervisors and Others in Positions of Power

Even growers who do not use contractors to find workers frequently relinquish oversight and responsibility to employees such as supervisors and foremen (frequently called crewleaders or mayordomo). The foreman may, in addition to recruiting and hiring workers, also help find housing, provide transportation to work (usually for a fee), and help newcomers adjust to life in the US. A foreman can have significant authority because he informs workers which fields they should report to and is typically responsible for determining pay.

Some contractors charge employees for transportation, food, and/or housing, either charging them directly or deducting these expenses from their paychecks, reducing their already meager pay. Those who are newcomers and more vulnerable tend to feel obligated to pay for a service like a ride from a raitero, a worker who provides transportation to the worksite.[59] Because many farmworkers do not have cars or other ways to get to work, the raitero has the power to take someone to work and to determine the conditions of transportation.

A punchadora is the person who is assigned the task of counting containers, boxes, or buckets for those who are paid by piece rate. Although it is not a supervisory position, it can be a coveted position because the work is somewhat less strenuous. Because the punchadora’s actions set wages for the day, it can also be a position of power.

[16] Measuring the number of people doing agricultural work in the US today is challenging for many reasons, including the migratory nature of the population, the seasonal nature of agricultural work, and the varying definitions of “agricultural work.” This widely cited figure of about 1.8 million agricultural workers is derived by dividing crop and livestock labor expenditures of farmers in each state by the average hourly earnings of farmworkers in that state, based on data from both the US Department of Agriculture National Agriculture Statistics Service (NASS) and the US Department of Labor National Agricultural Workers Survey (NAWS). Philip Martin, “California Hired Farm Labor 1960-2010: Change and Continuity,” Migration Dialogue, University of California-Davis, April 30, 2011, http://migration.ucdavis.edu/cf/files/2011-may/martin-california-hired-farm-labor.pdf (accessed March 12, 2012).

Other estimates of the US farmworker population range from about 1 million to over 3 million. US Department of Agriculture Economic Research Service, “Rural labor and Education: Farm Labor,” updated July 11, 2011, http://www.ers.usda.gov/Briefing/LaborAndEducation/FarmLabor.htm (accessed March 5, 2012); and National Center for Farmworker Health, “Migrant and Seasonal Farmworker Demographics,” 2009, http://www.ncfh.org/docs/fs-Migrant%20Demographics.pdf (accessed March 5, 2012).

[17] Daniel Carroll, Annie Georges, and Russell Saltz, “Changing Characteristics of US Farm Workers: 21 Years of Findings from the National Agricultural Workers Survey,” Immigration Reform and Agriculture Conference: Implications for Farmers, Farm Workers, and Communities, University of California, Washington, D.C. Campus, May 12, 2011, http://migration.ucdavis.edu/cf/files/2011-may/carroll-changing-characteristics.pdf (accessed March 12, 2012) .

[18]Southern Poverty Law Center, US EEOC et al. v. Gargiulo, Inc., Case Docket, http://www.splcenter.org/get-informed/case-docket/-us-eeoc-et-al-v-gargiulo-inc (accessed April 7, 2012). 

[19] Carroll et al., “Changing Characteristics of US Farm Workers,” Immigration Reform and Agriculture Conference, May 12, 2011.

[20] US Department of Labor, “The National Agricultural Workers Survey: Survey Documentation—Statistical Methods of the National Agricultural Workers Survey,” updated January 5, 2011, http://www.doleta.gov/agworker/naws.cfm (accessed January 24, 2012).

[21] Human Rights Watch interview with Manuel Cunha, President, Nisei Farmers League, Fresno, California, August 12, 2011.

[22] US Department of Labor, “H-2A Temporary Agricultural Visa Program, FY 2011 Select Statistics,” http://www.foreignlaborcert.doleta.gov/pdf/h_2a_selected_statistics.pdf (accessed February 23, 2012).

[23] See Farmworker Justice, “Litany of Abuses: More – Not Fewer – Labor Protections Needed in the H-2A Guestworker Program,” December 2008,  http://www.fwjustice.org/images/stories/imm_labor_files/LitanyofAbuseReport_Dec2008_FINAL.pdf (accessed January 30,2012); Southern Poverty Law Center, “Close to Slavery: Guestworker Programs in the United States,” March 2007,  http://www.splcenter.org/get-informed/publications/close-to-slavery-guestworker-programs-in-the-united-states (accessed January 30, 2012).

[24] Carroll et al., “Changing Characteristics of US Farm Workers,” Immigration Reform and Agriculture Conference, May 12, 2011. The most recent Department of Labor report of data from 2001-2002 states that 81 percent of crop workers reported their native language is Spanish; 77 percent were foreign-born. US Department of Labor, Office of the Assistant Secretary for Policy, Office of Programmatic Policy, “Findings from the National Agricultural Workers Survey (NAWS) 2001-2002,” March 2005.

[25] Ibid.

[26]Email communication from Daniel Carroll, US Department of Labor, Office of Policy Development and Research, Employment and Training Administration, to Human Rights Watch, March 13, 2012.

[27]Carroll et al., “Changing Characteristics of US Farm Workers,” Immigration Reform and Agriculture Conference, May 12, 2011.

[28] Southern Poverty Law Center, “Injustice on Our Plates,” November 2010.

[29]Richard Mines, Sandra Nichols, and David Runsten, and California Rural Legal Assistance, “California’s Indigenous Farmworkers,” January 2010, http://indigenousfarmworkers.org/ (accessed January 30, 2012).

[30] Ibid.

[31]Ibid.

[32]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 January 30, 2012).

[33] Ibid.

[34]Mines et al., “California’s Indigenous Farmworkers,” January 2010.

[35] Mines et al., “California’s Indigenous Farmworkers,” January 2010.

[36] Carroll et al., “Changing Characteristics of US Farm Workers,” Immigration Reform and Agriculture Conference, May 12, 2011.

[37]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.

[38] Ibid.

[39] Human Rights Watch interview with Jimena H. (pseudonym), North Carolina, August 2011. Her experience was confirmed by other farmworkers and by Nathan Dollar, executive director of Vecinos, a farmworker health organization, who has repeatedly met farmworkers being paid by piece rate for tomatoes and strawberries who are not making $7.25 per hour. Human Rights Watch telephone interview with Nathan Dollar, Executive Director, Vecinos, July 17, 2011.

[40] Bon Appetit Management Company and United Farm Workers, “Inventory of Farmworker Issues and Protections in the United States,” March 2011, http://www.bamco.com/sustainable-food-service/farmworker-inventory (accessed April 23, 2012).

[41] Carroll et al., “Changing Characteristics of US Farm Workers,” Immigration Reform and Agriculture Conference, May 12, 2011.

[42] Human Rights Watch telephone interviews with Daniela Dwyer, Staff Attorney, Florida Legal Services, Migrant Farmworker Justice Project, May 12, 2011; and Mercedes Lorduy, Attorney, VIDA Legal Assistance, May 18, 2011.

[43] According to the NAWS from 2000-2001, crop workers are employed on US farms an average of 34.5 weeks a year, and in non-farm activities for a little more than 5 weeks a year. US Department of Labor, “National Agricultural Workers Survey (NAWS) 2001-2002,” March 2005.

[44]Aguirre International, “The California Farm Labor Force,” June 2005.

[45]US Department of Labor, “National Agricultural Workers Survey (NAWS) 2001-2002,” March 2005.

[46]Aguirre International, “The California Farm Labor Force,” June 2005.

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

[48] Philip Martin, “California Hired Farm Labor 1960-2010,” April 30, 2011; Philip L. Martin and Gregory P. Miller, “Farmers increase hiring through labor contractors,” California Agriculture, vol. 47, no. 4, July-August 1993, http://ucanr.org/repository/cao/landingpage.cfm?article=ca.v047n04p20&fulltext=yes (accessed March 11, 2012), p. 20-23.

[49] Human Rights Watch telephone interview with California farmer, July 2011.

[50] Bon Appetit Management Company and United Farm Workers, “Inventory of Farmworker Issues and Protections in the United States,” March 2011; see also Philip Martin, “California Hired Farm Labor 1960-2010,” April 30, 2011.

[51] Mines et al., “California’s Indigenous Farmworkers,” January 2010.

[52] “EEOC Files Its Largest Farm Worker Human Trafficking Suit Against Global Horizons, Farms,” US Equal Employment Opportunity Commission press release, April 20, 2011, http://www.eeoc.gov/eeoc/newsroom/release/4-20-11b.cfm (accessed March 12, 2012) (describing trafficking lawsuits brought in separate cases against farm labor contractors). See also 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 March 12, 2012) (describing a lawsuit against a large grower for unpaid wages, where the company argued the workers were actually employees of an independent contractor, although the workers lived in company labor camps, used company equipment, and were supervised by company employees).

[53] Ibid. 

[54]Human Rights Watch telephone interview with Sandy Brown, Human Resources, Swanton Berry Farm, July 21, 2011.

[55]Human Rights Watch telephone interviews with Phil Foster, California farmer, July 1, 2011; and Larry Jacobs, California farmer, July 1, 2011.

[56] Human Rights Watch interview with Juana J. (pseudonym), North Carolina, July 11, 2011.

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

[58]Human Rights Watch interview with Manuel Cunha, August 12, 2011; see also US Department of Labor, Wage and Hour Division, “Fact Sheet #35: Joint Employment and Independent Contractors Under the Migrant Seasonal Agricultural Worker Protection Act,” revised July 2008,  http://www.dol.gov/whd/regs/compliance/whdfs35.htm (accessed January 31, 2012).

[59] Mines et al., “California’s Indigenous Farmworkers,” January 2010. The study found only 5 percent of non-indigenous workers with 9 or more years in this country will pay for rides.