Ava Mandoli is a Dow Jones News Fund intern.
This story is supported by the Pulitzer Center for Crisis Reporting.
They had worked for Pitts Farms, in the Mississippi Delta region, for years. As U.S. citizens, the Black farmworkers labored alongside white South African workers on guest visas, even training them to drive heavy trucks and mix pesticides, according to court documents. Then, in 2020, with no explanation, the U.S. workers weren’t asked back.
The following year, they sued, alleging the farm prioritized foreign workers over domestic ones — a violation of domestic workers’ rights. Pitts Farms did not return requests for comment.
The Pitts Farms case is one of several recent examples of employers hiring visa workers instead of willing domestic employees, according to Investigate Midwest’s review of lawsuits and federal investigations.
RELATED: SEE OUR ONGOING INVESTIGATION ON FARMWORKER HOUSING
Farm employers are required to recruit U.S. residents before hiring H-2A workers, who come to the states for seasonal agricultural work. The federal government created the H-2A program to help growers meet labor needs, but sometimes it can result in U.S. citizens being passed over for jobs, the lawsuits and federal investigations show.
The agriculture sector should strive to create fair work environments for both H-2A and domestic workers, said Amal Bouhabib, the director of Southern Migrant Legal Services, a project of Texas RioGrande Legal Aid that provides free services to farmworkers in the South.
“We’re not vilifying H-2A workers when we represent U.S. workers. They shouldn’t be pitted against each other,” she said. “I think all of these things can be true at the same time. I think the U.S. farmworker workforce can be dwindling, and that there are (domestic) workers out there who would work for a living wage. And I get that it’s not an easy answer.”
The Pitts Farms case was the first time Bouhabib had represented U.S. workers, not H-2A workers, in her eight years at the legal services organization.
The case sparked a two-year U.S. Department of Labor investigation into farms in the Mississippi Delta region. In June 2023, the department announced they had identified workplace violations, including the preferential treatment of H-2A workers over U.S. workers, by 44 employers. They recovered more than $500,000 in back wages for 161 workers.
Growers are increasingly relying on the H-2A program: Nearly seven times as many H-2A jobs were certified in 2022 than in 2005.
H-2A workers can be a more reliable workforce for growers because of the strict conditions of their employment. Their work authorization is tied to one agricultural employer, meaning it is very difficult for them to switch industries or change employers.
This limited mobility also means H-2A workers are more easily exploitable, said Lisbeth Iglesias-Ríos, co-founder of the Michigan Farmworker Project.
One common complaint from farmworkers is poor housing. Workers have lived with shattered windows, leaky doorways, broken fridges and bed bug-infested mattresses. Some are crammed into small spaces. One person told Centro de Los Derechos del Migrante, an advocacy group based in Mexico, they lived in an “iron chicken coop” with bunk beds.
U.S. workers face similar issues, but generally have more employment options.
“They know more or less how the system works, and they have more agency to move if things don’t work,” she said.
While the H-2A program is unpopular among some growers for what they consider too much red tape, it’s largely seen as the best — or only — option for having a reliable workforce, said Lee Wicker Jr., deputy director of the North Carolina Growers Association. The association is the largest H-2A employer in the country, hiring more than 10,000 workers in 2022.
Labor is the biggest cost in production, and Wicker said it is part of the reason why U.S. growers struggle to provide goods at prices competitive with imported produce. Cutting corners with labor costs can help them stay competitive, but may violate workers’ rights, Wicker said.
“If someone has to cheat the workers to make U.S. agriculture sustainable, that’s a systemic problem,” he said.
A lasting issue
The federal government has struggled for decades to protect the jobs of domestic farmworkers.
Virginia tobacco growers highlighted in a 1988 report from the General Accounting Office, now named the Government Accountability Office, emphasized the same reasons as growers today for preferring foreign workers: reliability, cost-effectiveness and productivity.
Protections afforded to domestic workers trying to find agricultural jobs appeared weak, the report noted.
“Nevertheless our case study highlights the continuing policy dilemma of reconciling the competing interests of U.S. labor and growers, which is probably present in varying degrees in every crop area where H-2A labor is used,” the report stated.
Two similar cases illustrating this tension were raised in Washington state courts more recently. In 2019, the Washington attorney general investigated King Fuji Farms, an apple grower, for having higher work experience requirements for U.S. workers than for H-2A workers in an effort to get permission to hire more foreign guest workers.
A different farm in Washington, Mercer Canyons, failed to tell U.S. workers they had work available at the higher rate they were paying H-2A workers, leading to a lawsuit in 2016.
Two additional factors of the H-2A program that appeal to growers are the overall lower cost of H-2A workers and the selectivity they have in choosing them.
H-2A workers must be paid the Adverse Effect Wage Rate, which is more than the federal minimum wage, to protect U.S. workers’ wages from becoming depressed. However, growers save by not having to pay Social Security or health insurance for H-2A workers.
A U.S. Court of Appeals opinion following a 2001 lawsuit affirmed that growers and labor recruiters are also allowed to be more selective about the H-2A workers they select.
The case was filed by a Mexican national alleging the North Carolina Growers Association violated the Age Discrimination in Employment Act by refusing to hire new workers over age 40.
The opinion stated that anti-discrimination laws only apply to people who are already authorized to work in the U.S. The judge said enforcing those laws during foreign recruitment processes would be outside U.S. jurisdiction.
Within the U.S., growers are required to hire any domestic workers who have the necessary qualifications, regardless of age, gender, race, or other protected demographic characteristics.
“You have a lot of benefits from being able to get a young workforce that all they have to do in life is work for you,” Bouhabib said.
Government efforts
The State Workforce Agency is in charge of managing the Agricultural Recruitment System, which connects U.S. farmworkers with growers.
Recruitment happens in stages: SWA staff first try to match growers with local U.S. workers. If they can’t find enough workers, they advertise to the entire state, then the rest of the country.
Only after reaching this stage is an employer allowed to request foreign workers on H-2A visas.
The process of placing a job order for U.S. workers through the recruitment system is free, there are no requirements as to how far in advance growers must place their request, and there are fewer regulations than the H-2A program.
Even so, the H-2A program has exploded in popularity over the last two decades. In 2022, the labor department certified more than 96% of requests growers placed for H-2A workers.
There are well-intentioned groups within the government trying to improve farmworker outreach, said Alexis Handal, co-founder of the Michigan Farmworker Project. But understanding farmworkers’ specific needs can be challenging.
Employment information and complaint systems may be available online but can be difficult for farmworkers to access. Not all resources are available in Spanish, either.
“Some of the systems are harder to do on a phone, versus being on a desktop or a laptop, and most of the workers are accessing these resources through their phones,” Handal said.
Wicker said government outreach and education needs to extend to growers, too.
“I’m sure there’s some willful non-compliance, but this is complicated for anybody to understand,” Wicker said.
Wicker said he thinks a system like the private pesticide applicator certification could be a helpful model for growers recruiting workers. The applicator certification requires farmers to pass a test demonstrating they understand the regulations and continue taking classes to keep the certification.
Currently, few employers face consequences beyond a warning or a fine for improper usage of the H-2A system, Iglesias-Ríos, with the Michigan Farmworker Project, said.
“I think they feel that they can move the workers whenever they want, they can make them work in any weather condition and they are not going to complain,” she said. “They use the social vulnerability of the worker.”
That helps explain why some employers pass U.S. workers over for jobs, Iglesias-Ríos said.
“The workers in Michigan don’t have unions, they are not organized. They don’t have a voice,” she said. “There is a huge difference in power.”
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