SANTA ROSA, California — Visit the tourism websites for California’s wine country, and the first images are romantic and idyllic: smiling tourists, expansive vineyards, generous pours of red wine. What’s not shown is what makes the syrahs, chardonnays and pinot noirs possible — farmworkers.
The disconnect made for an ideal setting for a new U.S. Department of Labor announcement on April 26. In Sonoma County, with grapevines stretching into the distance behind her, the head of the agency declared new rules aimed at holding farmworker employers accountable for abusive practices.
Farmworkers often endure substandard housing and working conditions. In the past decade, for example, more than a hundred California wineries have been cited for labor violations (the vineyard where the announcement was held has not had any violations in that timeframe).
The new protections allow farmworkers to invite union representatives into employer-owned housing, which is part of President Joe Biden’s goal to be the most “pro-worker, pro-union” executive in history, said acting Labor Secretary Julie Su. Another protection prohibits employers from withholding workers’ passports in an attempt to prevent human trafficking, which studies have shown H-2A workers are susceptible to.
But farmworker advocates have complained the labor department does not do enough to enforce existing laws. Fines can be so low they could be considered the “cost of doing business.”
For instance, during the past 20 years, when farmworkers have died of heat stress in fields, employers have faced a median fine of about $4,000 — the equivalent of some employers’ weekly payroll.
Su acknowledged limited resources could affect enforcement of the new rules.
“Laws are only as powerful as their enforcement,” she told Investigate Midwest outside the vineyard’s reserve room. “We need more resources in order to do what we need to do. We cannot allow penalties to be a cost of doing business. We cannot allow companies that profit off of workers, who decide that it’s cheaper to break the law and the chances of getting caught are slim and the costs even if you do get caught are negligible, to keep on pursuing those practices.”
The new rules do not carry increased fines. While Su did not directly address fines, she said her agency was rebuilding the department’s enforcement capabilities after the Trump administration cut workplace investigators.
“The previous administration made major cuts, especially when it comes to enforcement,” Su said. “Enforcement is about boots on the ground: people who are out in workplaces, people who are actually uncovering violations. We’ve done massive hiring at the Department of Labor but we are also in the midst of going to Congress to seek a budget that we need.”
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For the current fiscal year, the agency’s operating budget is about $13.5 billion. The agency has requested nearly $15 billion for the next fiscal year, which starts in October
Two labor department agencies have the most responsibility for enforcing rules related to farmworkers: the Occupational Safety and Health Administration, which investigates workplace safety issues, and the Wage and Hour Division, which investigates wage theft.
Both agencies’ ranks have decreased in the past decade, though OSHA has recently hired more inspectors.
In 2014, the wage and hour division had nearly 1,000 investigators, according to an agency spokesperson. As of March, it had just under 700, its lowest amount since 2014.
The department’s budget request includes a $430 million increase for worker protection agencies, including to hire more wage and hour division investigators.
The number of OSHA inspectors had been decreasing since 2011, but the number of inspectors hit its lowest level since the agency was created in the 1970s right before the COVID-19 pandemic. Early in Biden’s tenure, his administration started hiring more inspectors. (An OSHA spokesperson did not immediately respond when asked for the current number of inspectors.)
Another effort to identify workplace abuses of farmworkers is the State Monitor Advocate system, which the labor department oversees. Monitor advocates are supposed to conduct outreach to farmworkers. In theory, trust would develop between them, and farmworkers would share the problems they endure.
Enforcement is about boots on the ground: people who are out in workplaces, people who are actually uncovering violations.
Julie su, acting labor secretary
However, the program has been riven with staff turnover, and outreach workers have repeatedly failed to perform the required amount of outreach, Investigate Midwest has reported.
Several other public officials and farmworker advocates spoke at the event at the vineyard last week. California’s labor commissioner, Lilia Garcia-Brower, also said enforcement was the heart of the matter.
“These improvements to law are outstanding and necessary, and there’s more we have to do,” she said. “However, (even) having some of the best laws in the country in California, we have not seen those laws exercised as they should be. We have sex harassment and rape laws that have been on the books for decades. Why is it that immigrant women don’t come forward?”
One study from 2010 estimated that 80% of female farmworkers in the U.S. experienced sexual harassment at work, according to The Conversation. Some workers even nicknamed their workplace “fields of panties” because of pervasive harassment.
While California has a reputation for treating farmworkers better than other states, enforcement has proven challenging for the agency Garcia-Brower oversees. CalOSHA, the state agency charged with investigating workplace abuses, has struggled to oversee workplace safety because of a small number of inspectors, according to an investigation by the Sacramento Bee.
Maria Casillas, a California farmworker, said at the press event the announced protections for H-2A workers were necessary. She said she had personally witnessed abuses of H-2A workers whom she’d worked beside.
Employers often tell workers that if they don’t like the working conditions, they can leave, Casillas said. For H-2A workers, being fired means losing access to jobs that pay better than in Mexico and likely being blacklisted.
“They don’t speak out when they are working under abusive conditions,” she said in Spanish through an interpreter. Better protections “would improve their lives.”
For example, the agency can ban from the H-2A program employers that violate labor laws. However, relatively few employers are banned, and those that are can sidestep the ban by transferring ownership of the company to a relative. One of the new rules “streamlines” the process to apply the ban to an owner’s successor.
Laws are only as powerful as their enforcement. We need more resources in order to do what we need to do. We cannot allow penalties to be a cost of doing business.
Julie su, acting labor secretary
Another accountability element requires H-2A employers to disclose the name and location of their recruiters in other countries.
Recruiters can wield considerable influence over workers from very poor parts of the world. They can determine who goes to the U.S. and for how much. For instance, a recruiter for a farm in North Carolina charged workers from his hometown in Mexico up to $5,245 to access an H-2A visa. Charging workers fees for visas is illegal.
The names of recruiters, however, often are not public. The new rule forces H-2A employers to provide the labor department with information on recruiters. The agency said the disclosures should improve the transparency of the hiring process, allowing more accountability.
The new rule will go into effect June 28. However, applications for H-2A visas that are filed before Aug. 28 will not have to adhere to the new rules until next year.
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