Elizabeth Henderson is an organic farmer. She is the co-chair of the Interstate Council policy committee of the Northeast Organic Farming Association and represents the Interstate Council on the Board of the Agricultural Justice Project.
Elizabeth Henderson farmed at Peacework Farm in Wayne County, New York, for more than 30 years. Peacework CSA was one of the first community-supported agriculture farms in New York State. She is co-chair of the Interstate Council policy committee of the Northeast Organic Farming Association (NOFA), and represents the Interstate Council on the Board of the Agricultural Justice Project. Elizabeth is the lead author of Sharing the Harvest: A Citizen’s Guide to Community Supported Agriculture (Chelsea Green, 2007), with a Spanish-language e-book edition in 2017. She maintains the blog The Prying Mantis.
Who is going to do farm work? This is a crucial question for US farms and for people who want to eat food grown in this country. Except for the very smallest, all farms need more than one set of hands to get the work done. As a farmer myself, I hear farmer friends talking about the difficulties they are having (along with many other employers) in finding steady, reliable, decently trained local workers.
But even when these farmers stretch to offer more than they are earning themselves, few family-scale farmers can afford to pay living wages with a competitive package of benefits. The long history of racism and theft of land from native peoples sets the context for undervaluing food production.
U.S. food policy has relegated farming to the role of providing food as cheaply as possible with heavy pressure to cut from the bottom. In response, there is a long history of organizing to improve conditions for farm labor. Farmworkers themselves and even some farmers are creating alternatives. Let’s examine the options available to farmers and steps that can move us towards a system that produces healthy food for all while providing a decent life for the people who do the work.
The COVID-19 pandemic has exposed deep craters in the U.S. food supply chain. Dairies that supply milk and food products to restaurants have had the heartbreaking task of dumping millions of gallons of milk. Many giant meat processing plants had to close down because their workers were getting infected by the virus. The shutting down of these plants resulted in millions of farm animals being “culled” by drowning, shooting and suffocating.
The meat processing plants were ordered to reopen when the administration declared that it is essential to maintain the meat supply in late April, even as the death toll and number of infections continue to swell. Since April 22, there have been more than 32,000 COVID-19 cases and 109 deaths among food-system workers, according to the Food & Environment Reporting Network.
During the crisis, however, family-scale farms that are deeply embedded in their communities have been able to pivot nimbly to provide high-quality, locally grown and processed foods while keeping everyone—farm family, workers and customers—safe.
armworkers, farmers and their organizations around the country have been singing the same tune for years on the urgent need for immigration reform. That harmony turns to discord as soon as you get down to details on how to get it done, what to include and what compromises you are willing to make. Case in point: the Farm Workforce Modernization Act (H.R. 5038), which passed in the House of Representatives on December 11, 2019, by a vote of 260-165. The Senate received the bill the next day and referred it to the Committee on the Judiciary, where it remains. Two hundred and fifty agriculture and labor groups signed on to the United Farm Workers’ (UFW) call for support for H.R. 5038. UFW President Arturo Rodriguez rejoiced:
“Today is a milestone because this bill will help bring stability to the agricultural industry…Agricultural workers will have stability for themselves and their families. No longer will children worry whether their moms and dads are coming home from work. The bill addresses the pervasive fear faced every day by the immigrant farmworkers who perform one of the toughest jobs in America.”
In February, a dairy farmer friend sent me a note confiding that a few farmers she knows are living on cereal until their milk checks arrive. Yet, the recently released census of agriculture shows that the Report/Volume_1,_Chapter_1_US/usv1.pdf number of young farmers is growing even as the average age of farmers also increases, and there are uplifting articles about young Black farmers connecting with the land and enjoying the self-empowerment that comes with being an independent farmer.
Meanwhile, voices are rising about the central role that regenerative and organic farming can play in a Green New Deal, a program to mobilize all possible forces to prevent climate disaster.
How can we make sense of these conflicting currents? What policies and programs will create a just transition for family-scale farmers? What changes will enable farmers to maximize the potential of photosynthesis for putting carbon in the soil to supplement reductions in greenhouse gas emissions in mitigating climate disaster?
The certified organic label has helped save many generational farms and enabled people like me, who do not come from agricultural backgrounds, to become successful farmers. Organic farming has brought environmental benefits—healthier soils, freedom from toxic pesticides and herbicides—to 6.5 million acres in the U.S.
Organic shoppers are willing to pay a little extra for food that is free from chemical residues. But the organic label is in trouble after reports of fraudulently labeled food made national news. On top of that, agribusiness pressures and National Organic Program (NOP) actions have weakened standards. Yet at a time when farms are in distress, family-scale farmers need a label with integrity. They need a label that provides public support from people who understand that small-scale farmers are an endangered species.
To an increasing number of American families the CSA (community supported agriculture) is the answer to the globalization of our food supply. The premise is simple: create a partnership between local farmers and nearby consumers, who become members or subscribers in support of the farm. In exchange for paying in advance--at the beginning of the growing season, when the farm needs financing--CSA members receive the freshest, healthiest produce throughout the season and keep money, jobs, and farms in their own community.
In this thoroughly revised and expanded edition of a Chelsea Green classic, authors Henderson and Van En provide new insight into making CSA not only a viable economic model, but the right choice for food lovers and farmers alike. Thinking and buying local is quickly moving from a novel idea to a mainstream activity.
The groundbreaking first edition helped spark a movement and, with this revised edition, Sharing the Harvest is poised to lead the way toward a revitalized agriculture.
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AGRICULTURAL LABOR WORKING GROUP MEMBERSHIP
Open Letter to the House of Representatives Agricultural Labor Working Group
The purpose of the following is to lay out our criticisms of the H2A visa program for nonimmigrant agricultural workers, especially from the worker perspective, and to make actionable recommendations on ways to improve the domestic agricultural workforce. The H2A program ties workers to one employer, separates them from their families at home and treats them like agricultural inputs rather than humans, uses discriminatory recruiting practices, and displaces workers who are already here and long-term members of their communities.
Therefore, here is a summary list of our recommendations, to which we will return at the conclusion of our letter:
1. Dismantle and eliminate the H2A guestworker program and do not expand guestworker programs to or in other industries.
2. Due to the importance of food to human life, replace the H2A program with a long-term commitment to building a domestic workforce for farms to elevate farmwork to the high level it deserves in status, rights, protections, and compensation.
3. Implement an immediate path to permanent legal resident status for ALL undocumented farmworkers and their families, including H2A workers, if they so choose, without fees, penalties. and waiting period, or criminal barriers, thereby eliminating one of the major structural mechanisms that facilitates exploitation, abuse, and inhumane working and living conditions for farmworkers.
4. End the exemption of farmworkers from the National Labor Relations Act (NLRA) and from the Fair Labor Standards Act (FLSA) requirement to pay minimum wage, provide a weekly day off, and time-and-a-half for overtime over 40 hours a week, holiday pay, and the right to freedom of association and collective bargaining.
5. During storms, forest fires and other hazardous conditions, the Federal Government should ensure hazard pay for farmworkers.
6. The Occupational Safety and Health Administration should ensure enforcement mechanisms are in place to protect farmworkers from heat, heat exposure and other environmental hazards such as wildfire smoke. Heat stress trainings for workers and supervisors should be mandated, as well as implementation of adverse climate mitigation plans.
7. Ensure farmworkers receive living wages that reflect the value they contribute to our economy and our sustenance, without loopholes for mid-sized and smaller farms - but rather provide support for mid-sized and smaller farms that are verified to provide living wages and full rights and protections.
8. Do not implement mandatory E-verify for farms, since it serves as a control and scare tactic in an immigration and trade policy system that strategically created a large population of undocumented immigrant workers to ensure an exploitable labor pool.
9. Federal farm policy should fund programs that facilitate and incentivize authentically local community and family-scale farms that seek to move away from underpaid or captive labor and towards being able to thrive as farm businesses while providing decent and humane working conditions and compensation for farmworkers, and also programs that support and incentivize worker-owned farms. Good examples include the NYS tax credit for hiring more local workers, and a return to parity price supports, so that farmgate prices cover the costs of production, including living wages for workers and the farmers themselves.
10. To ensure a steady supply of skilled labor for farms, invest in farm labor services that are controlled by farmworker and other community-based organizations.
11. Enable farmworkers themselves to be represented in discussions of public policy that affects their lives
12. Ensure that states have the resources and oversight mechanisms to protect farmworkers’ safety, health, and decent housing.
13. Provide H2A workers who have been returning year after year to the same farm with a special immigration status that allows them to cross the border to travel home and return freely.
14. Establish a division of farm labor in the Department of Labor charged with overseeing measures to improve the conditions for farmworkers including training and research, and that will hear appeals from H2A and other farm workers against excessive work requirements imposed by employers or bad living conditions.
Guestworkers - the H2A program
As a result of willing departures, deportations, and competition between the Republicans and Democrats to make the border with Mexico more dangerous to cross, the supply of prime-age workers available for farm work has been reduced. Thus, despite the added expense, housing requirements and complex paperwork, more farms are turning to the H2A guest worker program, initiated by Immigration Reform and Control Act (IRCA) of 1986, that allows employers to import seasonal workers who have no access to permanent legal status and are not allowed to change jobs. According to the USDA, employers have to make at least a show of hiring locals and “to pay a State-specific minimum wage, which may not be lower than the average wage for crop and livestock workers known as the Adverse Effect Wage Rate (AEWR).” (The AEWR is a federally determined wage rate.) The stated intent of this wage requirement is to not undermine farmworker wages, though its effect is to set a limit on what domestic workers can demand since, if they ask for more, the employer will shift to guestworkers. If H2A workers complain or attempt to raise issues, the employer can have them deported and barred from the program for 10 years. FLCs are the major users of H2A labor in field crops, vegetables, melons, fruit and tree crops; in the past ten years, ERS reports an increase of 870% in FLC imported H2A workers. The most serious violations of human rights occur on these farms. Latino USA has documented some of the worst examples of FLCs using H2A to exploit and take advantage of workers[1].
Individual farmers, even highly respected organic farmers, have also been turning to H2A workers. Some of these farmers try to blunt the ethical dilemma by treating the workers with respect, learning their language and even visiting them in their home countries during the off-season [2]. However, as Cindy Hahamovitch documents searingly[3], large-scale sugar, citrus and cotton growers designed and have pushed hard for guestworker programs that insure grower control over workers.
Over the past few decades, there have been numerous legislative proposals to change immigration with a focus on farm labor regulations. Carefully negotiated between farm labor advocates and big ag, the AgJobs bill[4] would have made significant improvements, but did not advance to passage. The “Fairness for Farm Workers Act” (H.R. 3194/S. 4480)[5], re-introduced in June 2022, by Senator Alex Padilla (D-CA) and Rep. Raúl Grijalva (D-AZ), would have ended the discriminatory denial of overtime pay and most remaining minimum wage exemptions for farm workers under the Fair Labor Standards Act (FLSA). It also has not moved.
In October 2022, the Department of Labor (DOL) published a final rule amending the regulations of the H2A temporary agricultural work visa program (the “2022 H2A Rule”). The changes made limited improvements to worker protections from unscrupulous FLCs and the standards that prospective H2A employers, especially FLCs, must meet to participate in the program.
The Farm Workforce Modernization Act (H.R. 5038)[6], passed in the House of Representatives twice, but did not pass in the Senate despite Sen. Bennett renaming it the “Affordable and Secure Food Act.” (Nothing in the bill would lower the price of food in any detectable way.) The same sponsors resubmitted it in July 2023.
This bill has three titles that address a pathway to legal status for some farmworkers who could apply for a temporary “certified agricultural worker” status that allows travel within and outside of the U.S., and expansion of the H2A program to year-round work on farms along with many adjustments to make it easier and cheaper for farmers to apply[7]. Although the bill promises that farmworker information will not be shared with immigration officials, farmworkers interviewed by Cornell researchers expressed wariness that this would not be the case. A common theme among farmworkers was that they do not trust the government to not deport them once their personal information is shared.
The third title makes electronic verification of employment eligibility, known as “E-verify,” mandatory for the entire agricultural sector. No other industry sectors are saddled in this way. The goal is to close all pathways to farm work for undocumented people and to provide due process for authorized workers who are unfairly rejected by the system. However, despite the bill’s assurances of fairness and accuracy, so far, the E-verify system has not reached that high bar[8]. With E-verify, field workers who lack immigration papers would be unable to apply for jobs they have done for previous seasons. Since the Department of Labor estimates that over half of the two million people who labor in the fields are undocumented, the impact on available farm labor and on farmworker families would be enormous. The bill would have given growers an H-2A workforce to continue farming, but would have dealt a bitter blow to the people who worked through the pandemic to put food on the country’s tables. Many of these workers already lack a resource safety net to get them through lean times. Replacing workers who are already here puts an unnecessary burden on those families and on our economy.
When the FWMA failed, however, many farmworker organizations outside the Washington, D.C., Beltway felt they’d dodged a bullet. They saw in the bill a boost to the H-2A temporary guestworker program in agriculture, accompanied by immigration enforcement intended to drive undocumented workers from the fields[9]. For Edgar Franks, political director for Familias Unidas por la Justicia, a Washington State farmworker union, “this bill was a gift to growers and gave them things they’ve always wanted. We’ve been speaking out against it for three years—time we should have been able to spend organizing workers—because of the threat of E-Verify and the growth of the H-2A program.”
The vulnerability of H-2A workers makes them an attractive workforce for growers. Workers are recruited by large companies, primarily in Mexico. They work for less than a year, and then go back home. Most depend on returning the following year. They are tied to the grower or contractor who recruits them, and can be legally fired for not meeting exhausting production quotas, or for raising issues about working conditions. There is currently no penalty against employers for these reprisals, and the FWMA would not have imposed any. Fired H-2A workers lose their visas and must leave the country. Recruiters in Mexico then refuse to hire them for a new season of employment.
H2A from the Farmer Perspective
From the employer perspective, making E-verify mandatory for all of agriculture is extremely problematic. In its current form, E-verify makes many misidentifications thus disqualifying qualified workers and the reverse. Contested cases take days to straighten out, threatening new hires[10]. A large farm would have office staff assigned to sort this out, but for small farms, appealing a mistaken finding can turn into a lengthy and expensive legal tangle.
Title Two of H.R. 5038 makes the H2A program easier to use[11]. Instead of sequential filings via snail mail with three different government agencies, it consolidates the application process into one online filing, allows farmers to stagger labor requests and post their “workers wanted” listings in a single electronic registry. Title Two changes the formula for calculating H2A pay in a way estimated to reduce wages slightly while allowing more flexibility for differentiating among different work assignments, freezes the rate for a year and then caps the percentage increase per year, and allows alternatives to inspected on-farm housing. It sets up a limited number of three-year visas for year-round workers, thus opening the program to dairies and other livestock farms and adds a pilot program for 10,000 workers who will be allowed to change employers. However, granting legal status to farmworkers already in this country yet lacking documentation would allow farmers to hire them without fear of committing a felony and thus resolve the artificial farm labor shortage more directly.
H2A from the Farmworker Perspective
The basic premise of the H2A visa: a worker's legal status is under the control of their employer, creating a power imbalance that too often results in exploitation and violation of workers’ rights especially when farm labor contractors employ so many of the H2A workers.
Although the requirement for employers to provide food, housing, and transportation for H2A workers may not be intended to impose additional control of workers’ lives, in practice these requirements impede the workers’ movement and ability to engage with the outside world outside their place of employment. In cases where there are abuses and health and safety negligence, their lack of contact with the outside world prevents workers from being able to seek help whether from individuals or from organizations. Control of their movement prevents them from even learning about the resources that are available to them. Additionally, as mentioned above, complaints from workers can result in their being deported and barred from the program for 10 years. Even when health and safety inspections take place, workers are unlikely to report violations that they witness for fear of losing their livelihood. This situation makes farmworkers more likely to suffer from an occupational hazard when their safety loses priority to their ability to remain employed.
Although housing for farmworkers is supposed to maintain a certain quality standard, enforcement is extremely variable. In some states, there are as many as four different agencies that inspect H2A housing, while in other states, FLCs have been able to get away with sub-standard barracks that lack window screens, clean and functioning sanitary facilities adequate for the number of workers, and temperature control.
A Vision for a Domestic Farm Workforce
To create a domestic farm workforce requires a long-term vision that farmworkers and farmers should develop together in a participatory process through discussions all over the country with guarantees of public investments to bring the vision into reality. Here are some possible components:
● Establish a system of training in agroecology and horticulture at public schools that feeds into advanced training in farming, both urban and rural, for youngsters who excel and choose to continue.
● Provide graduates of these programs who want to become entrepreneurs or farm managers with access to land and farming resources.
● Increase support for cooperative farming ventures, including training in cooperative skills, expansion of and greater promotion for the existing USDA cooperative business program, and implement changes in regulations to allow cooperative farms access to all USDA technical assistance programs, grants, and loans.
● For individuals who choose careers in farm work but do not want to be farm managers, develop technical assistance programs, and professional development training that allows them to use and increase their skills without becoming managers or farm owners.
Background
Current data on farms and farm labor force
In 2020, ERS reported 1.16 million hired farm workers[12]: 78% are Hispanic, mainly from Mexico or of Mexican descent. The average wage ranged from $14.62 for crop workers, most of whom are people of color, to $25.58 for managers, most of whom are white. Farm wages have been falling since the late 1970s, when the United Farm Workers was at its peak strength, and the base labor rate in union contracts was twice the minimum wage. Even non-union employers had to compete for workers by paying union wages.
While in 1998, 41% of the harvesters were migrants, following the crops from south to north, by 2022, 85% of crop workers were settled and the percentage of newly arrived workers fell to only 3%. On the largest farms in CA, FL, WA and NC, the farmers don’t hire directly; instead, they hire Farm Labor Contractors who, in turn, hire the workers. While regulation such as the Migrant and Seasonal Worker Agricultural Worker Protection Act (see below) is meant to provide worker protection and FLC accountability, enforcement has been limited and ineffective.[13]
Although exact figures of undocumented workers would be hard to determine, ERS reports that close to half of the hired farmworkers are undocumented; farmworker advocates place the number higher. Knowingly hiring an undocumented worker is a felony. By hiring through Farm Labor Contractors (FLC) or crew leaders, farmers evade “knowing.” Deportations of migrants, who are almost all workers, has increased from 21,046 per year under Ronald Reagan and 33,332 under George H.W. Bush to 383,307 under Barack Obama and 275,725 under Donald Trump.
USDA data collectors estimate that in 2021 there were 2,012,050 farms, down 6,950 from 2020. Over half of those farms had sales of less than $10,000 which means that they were not commercial operations. Another 30 percent of all farms sold less than $100,000 – while small, these are actual farm businesses. Most of the farm products sold come from a very small percentage of farms, and these farms are steadily increasing in size: “Average farm size increased in the $1,000,000 or more sales class and decreased or remained unchanged in all other sales classes.” (NAWS, 2021 Summary, Feb. 2022).
Deportations of migrants, who are almost all workers, has increased from 21,046 per year under Ronald Reagan and 33,332 under George H.W. Bush to 383,307 under Barack Obama and 275,725 under Donald Trump. In 1992, fewer than 10,000 H-2A visas were issued. That number tripled by 2005, and under Presidents Obama, Trump, and Biden, it mushroomed. H-2A certifications will soon rival the 450,000 workers recruited in 1954 at the height of the notorious bracero program. That year, the United States deported over a million migrants in “Operation Wetback.” The government issued 48,000 H2A visas in 2005, and 371,619 in 2022.
On mid-sized and smaller farms, most of the labor is still done by family members and according to ERS, 89% of farms are supported by someone’s off-farm labor. A typical workday on these diversified farms involves a variety of tasks and skills, unlike the large-scale crop farms where harvesting can require long days of repetitive tasks by large crews, or Concentrated Animal Feeding Operations (CAFOs) with thousands of animals where shifts of workers milk, feed and clean up round the clock. This is the work reality for the immigrant farmworkers who do most of the weeding, picking, and packing of vegetables and fruit, as well as calf care and milking of cows in this country.
The most recent U.S. comprehensive immigration reform was the Immigration and Reform Control Act of 1986. That legislation resulted in approximately 2.7 million undocumented residents adjusting their immigration status. IRCA’s Special Agricultural Worker (SAW) program was designed to address labor concerns expressed by agricultural employers. However, it was estimated that just 350,000 farmworkers benefitted from that reform.
Federal and State laws governing farmworkers
There are federal laws governing farm work: the Fair Labor Standards Act (FLSA) and the Migrant and Seasonal Agricultural Worker Protection Act (MSPA). The National Labor Relations Act exempts farmworkers from its provisions, leaving farmworkers without the federally protected right to freedom of association and collective bargaining. Each state has additional laws that cover wage rates, supplementing wages with food or other benefits, housing, workers compensation, unemployment insurance, etc. Farm Commons, a not-for-profit founded by lawyer Rachel Armstrong, has developed state-by-state guides to farm employment legalities.
Proposed changes to H2A
The Farm Workforce Modernization Act (FWMA) passed in the House of Representatives in March 2021, and was celebrated as a successful compromise among bipartisan legislators, employers, and farmworker representatives in response to a critical shortage of agricultural labor. The Senate version of the legislation, renamed AFSA, was introduced during the lame duck session of December 2022, and despite the inherent increased costs associated with transitioning to an H2A workforce (round trip and local transportation, DOL inspected housing, higher hourly wage), proponents claimed that this legislation would lower food prices
Both the FWMA and AFSA propose a lengthy pathway to legalization (up to 14 years), a continued commitment to work in agriculture (4-8 years), and a number of measures that would force undocumented workers to share their immigration status with the US Government while awaiting a decision on approval of a 5 ½ year visa to work as Certified Agricultural Workers (CAW). In addition to the continued commitment to work in agriculture, undocumented workers would be required to pay fines, application fees, and unpaid taxes.
Both the FWMA and the ASFA allow current undocumented farmworkers the option to adjust their status to CAW by fulfilling a series of requirements including 1) prove their work history of having worked in agriculture for at least 180 workdays in the 2 years prior to the introduction of the bill; 2) satisfactorily pass a required background check; 3) pay an application fee of $250 or more; 4) share their undocumented status through e-verify, and 5) agree to work 4-8 additional years in agriculture. Individuals with CAW status would be able to adjust their immigration status to a lawful permanent resident (LPR) status by fulfilling another set of requirements including: 1) a penalty fee ($750-$1,000); 2) processing fees (of undisclosed value); and 3) demonstrated proof of having paid taxes.
While the mainstream media portray the recent bills as compromises supported by farmworkers, farmworkers in NYS voiced deep concerns about potential negative impacts should these become law. Together with farmworkers and their member organizations, including Alianza Agrícola (a farmworker-led organization based in Western NY – see article on p. ), the Cornell Farmworker Program initiated a collaborative research project to gain farmworkers’ perspectives on these legislative proposals, conducting individual interviews with farmworkers, to learn if they would participate in this program should it become law, and examined their willingness and ability to comply with the many requirements.
None of the farmworkers we interviewed was in favor of these legislative proposals, and several highlighted how both bills fall far short of what they need:
It is very important to be informed since we need comprehensive immigration reform. Sometimes immigration reform proposals seem like a good reform, but when we closely examine all the details, we learn that these proposals aren’t to our benefit.
A primary concern among NYS-based farmworkers is that they were not included in deliberations about these bills, and concessions were made on their behalf without their input. In several instances, farmworkers noted that union representatives had come to their farms, and encouraged them to sign on in support of the FWMA. Many resented that “unknown individuals” had tried to convince them that the bill would benefit them, explaining that during deliberations the UFW had to “make concessions” over certain aspects such as e-verify.
The e-verify requirement raised significant concerns among the workers interviewed:
When we talk about the possibility of this law passing, it makes me very nervous and very worried. that there could be a situation in which I wouldn’t be given this work permit (CAW). That would put my family and me at tremendous risk. I’m very worried about this. I hate to think about a situation in which I couldn’t work. I couldn’t support my family.
Although both bills include language that promises that their information can’t be shared with immigration officials, interviewees were wary that this would not be the case. A common theme among farmworkers was that they don’t trust the government to not deport them once their personal information is shared. Workers were aware that information sharing with ICE had been breached in neighboring Vermont once farmworkers began to apply for driver’s licenses and noted uncertain futures for those who shared personal information when applying for DACA.
Above all, workers were puzzled by the concept of “earned legalization.” Since farmworkers have recently been recognized as “essential” workers, why would they not be eligible for immediate legalization:
I have so many worries and concerns. I think this legislation doesn’t have all the necessary components… Farmworkers that produce, pick and pack food or care for cows should have something better than to have to wait so long and fulfill so many requirements to adjust our (immigration) status. It (legislation) should help workers rather than benefiting the crew leaders and farmers. We need a stronger immigration reform that isn’t simply a temporary status that has to be renewed.
Another stated:
During the pandemic, we earned the distinction of being considered “essential” workers. We never stopped working, continuing to support the economy through our work. From my perspective, we have always been essential. This law does not offer us any real benefits. Most people don’t understand that we came here for a reason - to feed ourselves and our families. We have worked hard to put food on the tables of people here.
The requirement to continue to work in agriculture for several more years was seen as onerous.
I have been working here since 2005. Eighteen years is a long, long time to do this physical work. They are not providing you with any real benefit. They are forcing you…to continue [working]…People are going to leave…..People are not stupid, farmers want to have a guaranteed workforce. I don’t think I could agree to work 4 more years, or however many years they decide will be required.
Another noted that, “The eight-year requirement does not account for the physical demands of the job, especially for those who have been here for more than a decade.” Both proposals suggest that undocumented workers could apply for a short-term (5 ½ year) work permit and labor shortages would be filled by H2A temporary guest workers. In our interviews, workers reflected on how the farm environment would change having workers of mixed immigration status working together:
As long-term workers, we are the most knowledgeable. A mixed workforce (H2A and CAWs) would likely lead to divisions among workers. Farmers would likely prefer H2A workers. H2A workers would have more benefits: a higher salary; medical insurance, and more paid sick leave. We wouldn’t have that. The farmers would likely give them different or easier work resulting in divisions.
Through these initial interviews, we learned that no farmworker interviewed was in favor of either the FWMA or AFSA legislation, and they resented that others spoke on their behalf with no apparent consultation. They strongly expressed the view that they deserve better legislation to promote fair immigration relief that should take into account their past and current contributions to the local economy. There is a large gap between what farmworkers would tolerate in regard to legislation already passed and what farmworkers would propose in fair immigration reform legislation. In particular, we noted that farmworkers who do not have US-born children are more likely to seek employment in another non-agricultural employment sector, or leave the US entirely. Those with US-born children and close ties to local communities also expressed interest in exploring other areas of employment such as construction or in the hotel or food sector. In summary, should this legislation pass, agriculture would likely lose some of the most skilled workers.
Returning to Our Recommendations
In summary, we believe the following policy changes are needed to transform the farm labor force:
1. Dismantle and eliminate the H2A guestworker program and do not expand guestworker programs to or in other industries.
2. Due to the importance of food to human life, replace the H2A program with a long-term commitment to building a domestic workforce for farms to elevate farmwork to the high level it deserves in status, rights, protections, and compensation. The current policy drift towards relying increasingly on imported farm labor contributes to the weakening of rural communities, exposes the food supply to the risks of unstable and political weaponization of immigration policies, and reinforces the widespread disdain for physical labor and those who perform these essential functions. The combination of low farmgate prices, low wages and poor working conditions for farmworkers with militarized, well-funded border controls and concentration in the food system has made it ever harder for farms to recruit the workers they need. It is time to stop and invest in a public process to envision alternatives.
3. Implement an immediate path to permanent legal resident status for ALL undocumented farmworkers and their families, including H2A workers, if they so choose, without fees, penalties. and waiting period, or criminal barriers, thereby eliminating one of the major structural mechanisms that facilitates exploitation, abuse, and inhumane working and living conditions for farmworkers. The immigration “reform” proposals before Congress uniformly require punitive, lengthy and bureaucratic procedures, and threaten workers who lack legal documentation with exposure to deportation. To qualify for CAW status, the FWMA would impose on farmworkers a series of complicated and excessive requirements including 1) to prove their work history of having worked in agriculture for at least 180 workdays in the 2 years prior to the introduction of the bill; 2) satisfactorily pass a required background check; 3) pay an application fee of $250 or more; 4) share their undocumented status through E-verify, and 5) agree to work 4-8 additional years in agriculture. Individuals with CAW status would be able to adjust their immigration status to a lawful permanent resident (LPR) status by fulfilling another set of requirements including: 1) a penalty fee ($750-$1,000); 2) processing fees (of undisclosed value); and 3) demonstrated proof of having paid taxes.
4. End the exemption of farmworkers from the National Labor Relations Act (NLRA) and from the Fair Labor Standards Act (FLSA) requirements to pay minimum wage, provide a weekly day off, and time-and-a-half for overtime over 40 hours a week, holiday pay, and the right to freedom of association and collective bargaining. A few states with significant agricultural sectors such as California,Washington and New York States have passed and implemented laws that allow farmworkers to unionize, raised the minimum wage and included farmworkers in the raise and in receiving time-and-a-half for overtime. The much-trumpeted catastrophe for farming in those states has not taken place. It is time to regularize farmwork as employment on a national basis.
5. During storms, forest fires and other hazardous conditions, the Federal Government should ensure hazard pay for farmworkers.
6. The Occupational Safety and Health Administration should ensure enforcement mechanisms are in place to protect farmworkers from heat, heat exposure and other environmental hazards such as smoke from wildfires. Heat stress trainings for workers and supervisors should be mandated, as well as implementation of adverse climate mitigation plans.
7. Ensure farmworkers receive living wages that reflect the value they contribute to our economy and our sustenance, without loopholes for mid-sized and smaller farms - but rather provide support for mid-sized and smaller farms that are verified to provide living wages and full rights and protections.
8. Do not implement mandatory E-verify for farms, since it serves as a control and scare tactic in an immigration and trade policy system that strategically created a large population of undocumented immigrant workers to ensure an exploitable labor pool. Any farmworker who is unable to meet the elaborate qualifications for the Certified Agricultural Worker (CAW) status proposed under the FWMA will be unable to get work. Agriculture risks losing some of its most highly skilled workers. The E-verify requirement raised significant concerns among the workers interviewed by Cornell researchers. This is what one worker said:
When we talk about the possibility of this law passing, it makes me very nervous and very worried. that there could be a situation in which I wouldn’t be given this work permit (CAW). That would put my family and me at tremendous risk. I’m very worried about this. I hate to think about a situation in which I couldn’t work. I couldn’t support my family.
9. Federal farm policy should fund programs that facilitate and incentivize authentically local community and family-scale farms that seek to move away from underpaid or captive labor and towards being able to thrive as farm businesses while providing decent and humane working conditions and compensation for farmworkers, and also programs that support and incentivize worker-owned farms. Good examples include the NYS tax credit for hiring more local workers, and a return to parity price supports, so that farmgate prices cover the costs of production, including living wages for workers and the farmers themselves.
10. To ensure a steady supply of skilled labor for farms, invest in farm labor services that are controlled by farmworker and other community-based organizations.
11. Enable farmworkers themselves to be represented in discussions of public policy that affects their lives.
12. Ensure that states have the resources and oversight mechanisms to protect farmworkers’ safety, health, and ensure decent housing.
13. Provide H2A workers who have been returning year after year to the same farm with a special immigration status that allows them to cross the border to travel home and return freely. Farms that have developed long-term relationships with H2A workers must be ensured that their valued workers can continue to cross the border.
14. Establish a division of farm labor in the Department of Labor charged with overseeing measures to improve the conditions for farmworkers including training and research, and that will hear appeals from H2A and other farm workers against excessive work requirements imposed by employers or bad living conditions.
Conclusion
We appreciate the opportunity to comment to this critical and important working group. Thank you for seeking input from stakeholders, employers, and workers, and for particularly emphasizing the H-2A visa program for nonimmigrant agricultural workers. We eagerly anticipate your interim report detailing the program’s shortcomings and the impacts on food security, the opportunity to provide further feedback on that, and the final report you will produce with recommendations to address any shortcomings within the program.
We look forward to working with you to ensure that we protect our communities and realize our commitments to protecting workers, farmers, and communities.
[1] https://www.latinousa.org/2023/04/14/headdown1/
[2] https://growingformarket.com/pages/growing-for-market-podcast
[3] Cindy Hahamovitch, No Man’s Land, Jamaican Guestworkers in America and the Global History of Deportable Labor
[4] https://www.congress.gov/bill/111th-congress/house-bill/2414/text
[5] https://www.congress.gov/bill/117th-congress/house-bill/3194
[6] https://www.congress.gov/bill/116th-congress/house-bill/5038
[7] https://civileats.com/2023/02/22/congress-killed-a-bill-to-give-farmworkers-a-path-to-citizenship-what-comes-next/
[8] https://www.aclu.org/other/prove-yourself-work-10-big-problems-e-verify?redirect=technology-and-liberty/prove-yourself-work-10-big-problems-e-verify
[9] https://www.dol.gov/agencies/eta/foreign-labor/programs/h-2a
[10] https://www.cato.org/blog/serious-problems-e-verify
[11] https://www.uscis.gov/working-united-states/temporary-workers/h-2a-temporary-agricultural-workers
[12] https://www.ers.usda.gov/topics/farm-economy/farm-labor/#recent
[13] https://repository.uclawsf.edu/cgi/viewcontent.cgi?article=1427&context=hastings_environmental_law_journal