“The Biden administration has to choose. Who is going to speak the loudest here? Whose interests are going to be served, the farmworker families who are doing the work now, during the pandemic, providing this country with the food that it needs to eat, or growers whose basic interest is having a labor supply that’s as low cost as possible?”
Oakland Institute Senior Fellow, journalist and photographer David Bacon discusses the history of exploitation of the H-2A worker program and how it creates a race to the bottom for all farmworkers.
Will the Biden administration protect the profits of growers and expand the H-2A program or will it stand with farmworkers who labor in the fields to keep our country fed?
Andy Currier (AC): Hello and welcome back to the Oakland Institute Podcast. I’m Andy Currier and will be your host for today’s episode as we turn our focus back to the US and examine the watershed moment we are currently in with regards to immigration policy and the rights of farmworkers.
Today we are very fortunate to be joined by David Bacon. In addition to being a Senior Fellow at the Oakland Institute, David is a writer and photojournalist, with decades of experience covering labor, immigration, and international politics. A former labor organizer for unions with predominantly immigrant workers, David brings a unique perspective into changing conditions in the workforce, the impact of the global economy and migration, and how these factors influence the struggle for workers’ rights. David will break down some of the major findings of his recently released report: Dignity or Exploitation: What Future for Farmworker Families in the United States?
At the heart of the report looms this question. “The choice confronting the Biden administration is whether to expand an immigration program prioritizing grower profits over workers' and immigrants' rights, or instead to reinforce the immigration system based on family reunification and community stability, while protecting the wages, rights, health, and housing of farmworkers — the alternative advanced by the civil rights movement over half a century ago”
To understand the consequences of this decision for the nation’s farmworkers, it will be useful to get into some of the background and historical context that the report provides. Welcome David, let’s jump right in.
Can you start by giving a brief overview of the H-2A worker program and its impact on farmworker rights?
“So the whole set up of the H-2A program is organized in a way that controls the labor cost for growers of having this recruited workforce, and that also creates a vulnerable workforce that is much less likely and able to organize and fight for something better.”
David Bacon (DB): The H-2A program is a program under which US growers are able to recruit workers from Mexico and bring them to the United States on work visas that severely restrict peoples’ labor rights and their human rights generally. The H-2A program is actually the inheritor of the old Bracero Program. It’s not exactly the same as that program was, in which the US had immigration from Mexico from 1942 to 1964, but it has most of the same features and its purpose is the same, and that is to supply labor to US growers at a cost that US growers want to pay. So the whole set up of the H-2A program is organized in a way that controls the labor cost for growers of having this recruited workforce, and that also creates a vulnerable workforce that is much less likely and able to organize and fight for something better.
AC: And how do the rules of the H-2A program differ from some of the other labor standards that would govern other farmworkers in the US?
DB: So the rules of the program say that the grower has to be certified by the Department of Labor to bring a set number of workers to the US. Then usually what happens is that a grower contracts with a labor contractor who in turn contracts with a recruiter in Mexico who recruits those workers, and those workers come to the US under a visa. That’s what the H-2A is, the name of the visa. And those workers come to the US and they have to work for the employer that brings them, and they are limited to a contract that is less than one year long. So at the end of that period, they have to return to Mexico. They can’t bring their families with them. The court decisions have allowed growers to discriminate and to ignore US anti-discrimination law, for instance, there are almost no women who come as H-2A workers, growers are permitted to employ only men. And they are permitted to discriminate on the basis of age, because what growers are looking for are young men who can work really hard under the kind of pressure to produce that growers exert on people, especially during harvest time. And so growers are not interested in having older workers. That would be a violation under US law but, again, court decisions have allowed this program to ignore those basic legal rights. There are requirements for wages, supposedly in order to prevent growers from using these workers in competition with farmworkers who are already living in the United States. Growers have to pay what’s called an “Adverse Effect Wage Rate,” which means a wage rate that won’t undermine the wages of other farmworkers. Unfortunately what this really means is that these regulated wage rates are only very slightly above minimum wage, because minimum wage is the wage for farmworkers in the United States, and so it essentially puts a cap on farmworker wages.
Growers are required to offer jobs to workers who are in the US first, which is a requirement that basically growers laugh at. Then, they are required to provide housing and transportation. That has become the subject of a lot of struggle and controversy, especially during the pandemic, because growers are providing barracks-based housing, what’s called “congregate housing”, in which workers are sleeping in bunk beds in rooms which have them close together. In other words, they can’t maintain a social distance of six feet from each other, and as a result of that, we are seeing, especially in Washington where this problem has become the most acute, concentrations of the breakout of the coronavirus among workers who are living in this kind of congregate housing in these barracks. It’s to the point where one large grower, Gebbers (Farms) in central Washington, had two workers die this summer, essentially because they were infected because of the way in which they were housed. So these are kind of the rules of the program, but they all essentially function in the interest of growers and to the detriment of the workers.
AC: I definitely want to come back to the impact of the pandemic and farmworkers, especially those under the H-2A program. First, to get the complete picture, the rationale with the H-2A program is it allows recruitment of workers by a grower who demonstrates it can’t find people to hire locally, but in practice is this how the program has functioned?
“If growers provided higher wages and medical plans and the other benefits that people in urban areas expect, they wouldn't have problems attracting people to work in the fields. The problem is that what growers want to do is maintain the existing wage structure, the existing cost of labor, and at the same time have a ready supply of workers.”
DB: That’s not how the program functions. In fact, first of all, unemployment in rural areas in California, Washington State, and the US generally is much higher than it is in urban areas. So at the beginning of this year, before the pandemic, the unemployment rate in the Imperial Valley next to the border with Mexico, a big lettuce growing area, was 15 percent. In Merced County, which is in the middle of the Central Valley, unemployment was over ten percent. At the same time in Los Angeles it was four percent and in San Francisco it was less than three percent. And this was during a period in which there was actually work for workers. In periods between harvest, for instance, the unemployment rate shoots up even more than that. So the idea that there are no workers is just simply not true. There are workers. The problem is that there are workers who growers might have to attract by paying more reasonable wages, for instance. If growers provided higher wages and medical plans and the other benefits that people in urban areas expect, they wouldn't have problems attracting people to work in the fields. The problem is that what growers want to do is maintain the existing wage structure, the existing cost of labor, and at the same time have a ready supply of workers.
And so their solution to this is to reach across the border into Mexico and bring up workers who can be contracted at the set wage, in which growers have a predictable, low wage that they have to pay, and workers who will also disappear after the harvest is over. In other words, these are people without families here in the United States, of course they have families in Mexico that they are trying to support with these wages. But here in the US they don’t have families, so farmers don’t have to pay for any of the social costs of the existing labor force. For farmworkers who are living here in the United States with families, of course, people have children, they go to school, people need hospitals and they need medical care because they get sick sometimes, people need the same array of social services that any community in the US needs. And that imposes a social cost that corporations don’t want to pay. And so the H-2A program allows them to get this labor force at a very low cost without having to worry about the social impact. And of course the other advantage to growers is that this is a workforce that is so restricted in terms of its rights that growers, generally speaking, don’t have to worry about workers trying to organize unions for instance, or protest, or do things that might raise that wage level.
AC: Because this program has been so beneficial to growers, it’s been expanded over the past few decades. Could you speak a little bit about how the program has grown from where it started to where it is now?
DB: Well just in terms of the history, the Bracero Program, which was the predecessor of the H-2A program, ended in 1965. In 1965, two very significant things happened. One was that the grape strike started in Delano California, which was the birth of the United Farm Workers union. That happened very consciously, the workers went out on strike the year that they knew that growers could no longer get braceros to replace them during the strike. But the other thing that happened was that Congress passed the Immigration and Naturalization Act of 1965, and that set in place a system for migration to the United States that was based on families, the family preference system, rather than the previous system which was essentially a labor supply system for growers. However, the change in the law did not actually abolish the visa that was used by growers to bring braceros to the US, the so-called “H visa.” And in 1986, in the Immigration Reform and Control Act, that visa was modified and became what we know today as the H-2A visa.
“So you can see that just statistically what's happening is that at least a certain part of the farm labor workforce in this country has already been replaced by H-2A workers, and the number of workers who are involved in this is rising very quickly every year.”
However, at that time, growers were very dependent on the existing workforce that already existed in the United States, and then also the flow of undocumented people across the border, who also were people who growers could pressure to work at low wages because of their lack of legal status. So at first the H-2A visa was not very well used. At the beginning of the 1990s for instance, 1992, there were only 10,000 people who were brought to the United States. 10,000 is a big number, but the total farm labor workforce in the United States is about two and a half million, so you can see it was a very small percentage of it. Under Clinton it rose to about 50,000-60,000 a year. And then under George Bush Jr., and under Obama, the program really started to grow. Last year, there were over 250,000 certifications issued by the Department of Labor for growers to bring H-2A workers to the United States. So that is now ten percent of the entire farm labor workforce in this country. In some states, like Washington and Georgia, the percentage of H-2A workers has risen to represent over a quarter and as much as a third of the workforce, and it is rising very, very quickly. So you can see that just statistically what's happening is that at least a certain part of the farm labor workforce in this country has already been replaced by H-2A workers, and the number of workers who are involved in this is rising very quickly every year.
AC: So what’s the relationship between the expansion of the H-2A program and deportations. Deportations get a lot of attention but it’s not exactly clear to everyone what the relationship between these two things might be?
“There is a very direct relationship between deportations and the bringing of workers in from Mexico…”
DB: There is a very direct relationship between deportations and the bringing of workers in from Mexico, and other countries as well but Mexico being the primary one. And this is very old, it goes all the way back to the Bracero Program. People might remember the song Deportee, Woody Guthrie song, about the crash of an airplane in the Central Valley that was carrying people back to the border. And these were workers who, at that time that this song was written, were undocumented and were being sent back to the border, deported in other words, and would then be recycled at the border and then come back, to the same ranches even, where they had been working before, but as bracero workers under that contract labor system. So it got to the point where in 1954 the US deported over a million people, and that same year brought in about 450,000 braceros. So you can see that the deportation and the bringing in of people are happening concurrently, at the same time, and in fact there were immigrant rights activists and farmworker activists at that period who said specifically that the deportations were being used to create a labor shortage that would then be filled by the Bracero Program. When the H-2A program started to grow, we saw exactly the same thing happen. In fact, the number of people brought to the US under the H-2A program last year, about 257,000 people, while last year the US deported about 275,000 people. So the numbers are almost the same, and they track each other.
And in fact, what the enforcement of immigration law in this way does is create a labor shortage and then growers complain about it, they do this all the time, complain that the border is being tightened and that it’s cutting off their supply of undocumented people and therefore they need the H-2A program to replace that workforce. And sometimes the replacement is very direct.
Ten years ago, the immigration authorities forced the Gebbers Farms apple company in Central Washington to fire its entire undocumented workforce of 550 workers, and then to bring in H-2A workers to replace them from Mexico and Jamaica. And since then, Gebbers has had an H-2A workforce. This year, again, that workforce is where we saw two people get sick and die from the coronavirus because of the housing conditions in which they were kept. But it’s a direct replacement sometimes, and sometimes it’s simply beefing up the enforcement and rural areas against farmworkers who are undocumented, and then growers know, of course, that they can use the H-2A program to bring in workers, and they do. Same, of course, if they have no workforce available to them any longer.
AC: So that’s an important link to make, between the expansion of the H-2A program and deportations. The data given in the report really shows just how direct this relationship is, and it was one of the more surprising things that I took away. Now beyond the historical context and wider policy analysis that the report includes, it also features many personal testimonies from farmworkers whose own stories living and working inside the H-2A program are featured. Is there one that you’d like to share, that you feel highlights the experience of this program on peoples’ lives?
DB: Well yes, there is. I think about a man named Honesto Silva who worked as an H-2A worker in the state of Washington. He was contracted in Mexico by a company called Sarbanand Farms that belongs to the Munger family in Delano. At first, they brought him in to work in the blueberry fields around Delano in the Central Valley, and then they sent him to a farm that the company had started up near the Canadian border in Washington State. Actually, the company didn't really have permission to transfer the workers that way, and one of the things that happened to these workers once they got to Canada was that they discovered, really, that their H-2A visas had already expired, which obviously did not concern the company because the company just sent them up to Washington.
In Washington, though, the conditions that the workers have been complaining about earlier in California became much worse. They were already complaining, for instance, about the food that they were being given, and remember that H-2A workers are kept isolated from the towns. They generally live in these barracks on the growers’ property behind fences, and so even to get into town they have to get a ride. They’re not coming here in their own cars, they’re being brought. And so they are oftentimes supplied food which they have to pay for by the grower that they are working for. So these workers, they had a lot of complaints about the quality of the food and the quality of the housing. When they got to Washington State those complaints increased quite a bit. They said the food was really lousy, that the company wouldn't even allow them to bring the food into the fields so that they could eat something on their break times, that there were these kind of unreasonable arbitrary rules.
That year there were a lot of forest fires in Canada right across the border, and the smoke from those fires blew south across the border, and so workers were working in 90 and 100-degree heat in the middle of the smoke. And Honesto Silva began to feel sick as a result of this, and so he went to his foreman and asked if he could go back to the barracks and rest instead of continuing to work, that he was feeling dizzy. And the foreman said no, but he was really not feeling well at all, and so he went back to the barracks anyway. The foreman went back to the barracks after him and told him, “You must come to work, you must stop lying down in your bed and get up and go back to work.” And so he did. And then he collapsed in the field. The other workers around him were extremely concerned, and they were able to find a means by which he was transported to the clinic in the town that was nearby. They saw that Honesto Silva was in really bad shape. They sent him to Harborview Hospital in Seattle, and he died. So the rest of the workers were very upset about this, and about 70 of those workers decided that they would refuse to work in order to force the company to tell them, first of all, what had happened to Honesto and why, and to get some response from the company about this man who had died, and also to resolve the problems that they had been complaining about.
What the company did was say, “You’re not here for vacation, you’re here to work. If you don’t want to work, get out.” The company fired them all, and then just sort of shoved them out the gate into the road running outside the ranch. Fortunately, the workers were able to get in touch with the new union for farmworkers in Washington called Familias Unidas por La Justicia. They were able to find a vacant piece of land nearby where workers were able to set up some tents and to live while they were involved with this protest against the company. But, first of all, once they were protesting, they no longer were earning any money, and these were workers who were at the margin to begin with. But also, once the company fired them, they no longer qualified for that H-2A visa, and so they became deportable. And both because of the economic pressure on them, they couldn't stay in the US without being able to work, and because they lost their visa, they essentially had to return to Mexico. So being deported became the punishment and the penalty on them for organizing and protesting. And this is something that was common during the Bracero Program, and it’s something that happens to workers when they protest under the H-2A program as well.
AC: So are there other structural barriers to workers organizing under this program for better conditions? The case you just laid out, I think, is really indicative of the tough position that they’re in, and even when something extreme like that happens they are left really with no options. But just basically what are some of the other barriers to them organizing?
DB: Well, first of all, aside from California and Hawaii, the farmworkers have no legally protected right to organized unions. Farmworkers as a whole were written out of the federal legislation that set up the process for workers to have union elections and to organize unions in the 1930s. So already, farmworkers who organize in Washington or Oregon or Georgia or wherever, are organizing in an environment where the law does not protect them. If a company fires a worker for organizing, the worker can’t go down to a local federal or state agency and file a complaint and say, “Hey, I was illegally fired for my union sympathy,” which you might be able to do if you’re working in the private sector in a city in another kind of job. So already there’s no legal protection for that, and then you add onto that what happened to the people who were protesting at Sarbanand Farms when Honesto died, that once the grower fires you, you lose the visa and therefore you are essentially deported.
But the third element of that is the blacklist, and that is the growers are legally entitled to not rehire people who they have fired for the next season. So they can send instructions to the recruiters into the labor contractors who do the hiring in Mexico, and send them a list that, “these people are troublemakers.” And it’s not even just protests or trying to organize a union. I’ve seen blacklists — Manpower of the Americas, for instance, had a blacklist, a computer printout that was two inches thick, and it would specify the reasons why workers were not what was called “eligible for rehire,” it was called the “Eligibility for Rehire Report.” And so it had the lists of workers, and for any worker who was ineligible it would list the reason. And you would get reasons like, “works too slow,” or “bad attitude,” so that it's not just a punishment for organizing, it's a labor discipline vehicle that allows the grower to put pressure on workers. And of course the way the law is written in that certification that the Department of Labor gives the grower that allows them to get the H-2A visas to bring people in, the growers are allowed to put in there, for instance, production quotas so that workers who don’t work fast enough are, under the terms of the contract and under the terms of that certification, the grower can legally fire them and send them back to Mexico.
“But H-2A workers were also ineligible under that rule. And that had the impact of essentially forcing people to work because people could not survive economically without working. How do you pay the rent? How do you buy food for your family? So absent that kind of relief, people were forced to work.”
AC: Returning to the impact the pandemic has had, obviously all farmworkers have been impacted but what specifically has the impact of COVID been on H-2A workers? Have they received any protections or been included in any government relief programs?
DB: No, they have not. So all the government relief programs, first of all, have immigration status requirements, basically, so that if you are undocumented, for instance, you cannot get the relief package that was made available to people under the CARES Act passed last spring. Not only if the individual person is undocumented, but even a family member who has a visa or is even a citizen could not get that US$2,000 if they are a member of a family with somebody who doesn’t have papers. But H-2A workers were also ineligible under that rule. And that had the impact of essentially forcing people to work because people could not survive economically without working. How do you pay the rent? How do you buy food for your family? So absent that kind of relief, people were forced to work. For H-2A workers, obviously people were in the US to work and could be required to work regardless, and regardless of how dangerous it was. Farmworker communities, over the course of the pandemic, have become concentration areas for the virus. So you’ll see very high rates of infection in, for instance, the rural counties of California and the San Joaquin Valley, and the reasons for that are not really hard to figure out. First of all, peoples’ living conditions generally force people to live in very close quarters with each other because rents are high and wages are low. People double up, families double up in order to be able to pay rent, which means that you have people living in very close quarters. If somebody gets sick, it’s easy for that person to infect other people. Maintaining that social distancing is very difficult. And the same goes for going to and from work. People travel to and from work either packed into private cars or on buses provided by labor contractors and growers. Now some of the growers and some of the labor contractors who do have some concern for workers will do things like say, “Ok, well only one worker can sit in a bench seat and we’re going to put plastic dividers between the seats to keep some distance between people.” But I would say that’s the exception rather than the rule. In general, people are very close to each other.
And that applies very much to H-2A workers, who are living in this congregate housing to begin with and then are traveling to work very close together. And the state and the federal government have been willing to ignore the dangers, and Washington State was one place where there was a big controversy about that because under the pressure, especially from Familias Unidas por La Justicia, this new union, but labor people in general in Washington, Washington was forced to engage in a process of setting up regulations for H-2A workers. And this process started right before the pandemic, so when the pandemic started these organizations began telling the state, “Well you have to stop growers from using this kind of housing. Growers have to put fewer people into those barracks and they have to spread people out more.” And the growers, of course, complained that this is going to cost an enormous amount of money because they would have to build new housing for the workers that they hoped to bring in and it was going to be too expensive. And there were even epidemiologists at the University of Washington who told the state of Washington that this kind of congregate housing is dangerous. Public health authorities in the counties said the same thing. Nevertheless, the State Department of Health and State Department of Labor and Industries in Washington ruled that putting workers into these rooms, where there were four workers to a room and two sets of bunk beds, was ok so long as workers were only working in groups of 15 at a time, the logic, I guess, being that you could limit the infection to 15 people if somebody got sick.
But you weren’t really eliminating the condition that might cause the infection to spread to begin with. So why did the state of Washington come up with this rule? Essentially because of the pressure of growers. Growers have a lot of political power in states with agriculture-heavy economies like Washington or California. We don’t have a rule in California that prohibits congregate housing for H-2A workers despite the pandemic, and the reason for that is pretty simple, and that is that it’s expensive. And growers are obligated under the rules of the program to provide housing, but they want to provide it at the lowest cost that they have to pay, and if workers pay the price for that by getting infected and dying, well then so be it.
AC: On top of the historical context that the report provides, towards the end, it turns to the central question of where the future of immigration policy is headed. So there is this line: ”Restoring the family preference system and halting or restricting the H-2A program are two of the most important decisions that will face the incoming administration in regards to the direction of U.S. immigration policy.” There’s also the Farm Workforce Modernization Act of 2019, which essentially tied legalization for undocumented farmers and guest worker programs together. This compromise bill would guarantee growers a labor supply at a price they want to pay, while at the same time providing a pathway to legal residence for many undocumented farmworkers. When this bill was introduced, it passed the House and then died in the Senate. So now, with a new Congress and a new President, has there been a signal from the Biden administration on where it will head?
DB: Well, the Biden administration has done some very good things since coming into office. One thing they did for H-2A workers, for instance, where Trump had tried to invoke rules that would have led to slashing wages for H-2A workers, one of the first things that Biden did on his first day in office was to get rid of those Trump rulings. So that was good and it showed some concern, I think, for the welfare of those workers themselves. And then Biden also said that he would introduce an immigration reform bill that would provide legal status to undocumented people, 11 million people in the US. That would have a big impact on farmworkers because, of that two and a half million people working in foreign labor in the US, over half of those folks have no papers, and in California that percentage is even higher. So clearly a legalization program would benefit those people who don’t have papers, hopefully with reasonable rules attached to it so that people don’t have to wait 15 or 20 years to get legal status, but according to Biden’s proposal it sounded like a version of the Amnesty bill that passed in 1986.
That being said, however, Biden has said some other things that were more contradictory. So he said that he wanted to, on the one hand, protect family-based immigration and employment-based immigration, putting into the same pot, essentially, two systems which, especially in terms of farmworkers, are diametrically opposed to each other. You cannot have an emphasis on family reunification for farmworker families and at the same time allow growers to expand the use of the H-2A program to replace the workers in those families with people who are being brought in from Mexico and other places. And that is exactly what the history is. In fact, the whole family preference system was put in place by the activists of the day, César Chávez and Dolores Huerta and Ernesto Galarza, who wanted to replace the Bracero Program with a system of immigration that benefited families. That’s why this report says that the Biden administration has to choose. Who is going to speak the loudest here? Whose interests are going to be served, the farmworker families who are doing the work now, during the pandemic, providing this country with the food that it needs to eat, or growers whose basic interest is having a labor supply that’s as low cost as possible? So I think that that is the choice, and that is, I think, why we wrote the report to begin with, to highlight this watershed, because I think we are at a watershed moment in immigration policy and in the welfare of farmworkers. And the administration and Congress could do something very, very good for farmworkers here; it could really improve people’s lives quite a lot. It could help people get legal status, enforce their labor rates, make it easier for people to organize unions, help to stabilize families, provide people with their social benefits that families need to survive, and make it possible for people to have a decent living as farmworkers in the rural areas of this country. Or it can treat the people who do this work as simply being exchangeable, interchangeable work-people who are brought in to do the work and then sent away somewhere when they’re done. Not only would that be unfair and a real mistreatment of those people actually brought in to do the work, and we have seen the record of it here in this country, but what it would also do is for the farmworker families who are living here in the United States, it would condemn people to poverty. It would condemn people to a status that people might live in for a very prolonged periods of time without adequate legal status, it would make it more difficult for them to bring in their families to reunite them here, and it would also drastically affect the economies of those families, making it more difficult for them to survive.
If growers need a labor supply and farmworker families are able to bring their relatives from Mexico or the Philippines or Jamaica or wherever on visas that give people the ability to live normal lives here in the United States, residence visas or so-called “green cards”, then growers can offer those people jobs at a reasonable wage. Everybody needs to work, and I’m sure the growers will get a workforce. It might not be as cheap as they want to pay, hopefully not because, after all, those workers have some needs here too. But it would give workers a legal status that, essentially, although it wouldn’t make them exactly equal because we do have this sort of anti-immigrant atmosphere in this country, so even people with a green card and a residence visa don’t have the same rights as somebody who is a citizen. But it would be a far better situation for people than having to come to work as an H-2A worker and then be sent back to Mexico at the end of the harvest, or trying to survive here as a farmworker in that kind of a context.
AC: So again, that was David Bacon discussing his recently released report: Dignity or Exploitation: What Future for Farmworker Families in the United States? I hope that everyone enjoyed that discussion as much as I did. I highly recommend listeners take a look at the report, it can be found on the Oakland Institute website as well as our social media. It provides the historical context to really understand today’s immigration debate as well as amplifying individual testimonies to show firsthand how these policies impact peoples’ lives. As noted, David is also a widely published photojournalist so the report is full of images that are not to be missed. In the episode description, you will find a link to the report and to David’s website.
Thanks again for listening, until next time.
Special thanks to Intern Scholar, Noah Linde, for transcribing the interview.