Rural Laws: October, 1999 - Number #15

On Friday, August 6, 1999 the American Bar Association, meeting in Atlanta's World Congress Center, presented a Presidential Showcase entitled: "The Hands that Feed U.S.: Farm Labor Legal and Legislative Issues Today and in the New Millennium." The session was designed by Carol L. Wolchok, Director of the ABA's Center for Immigration Law and Representation, to educate Bar Association members about the lives and working conditions of farmworkers in the U.S. and to examine the larger legal, legislative, and policy issues that effect them. The session was also designed to inform the ABA's House of Delegates, which would meet on Tuesday, August 10 to vote on the following resolutions recommended by the Coordinating Committee on Immigration Law:

A.) Resolved, that the American Bar Association supports: (1) efforts to improve wages, working conditions and housing for farmworkers; (2) enhanced enforcement of laws regulating the rights of farmworkers; and (3) according legal resident status to farmworkers presently working in the United States.

B.) Further resolved, that the ABA opposes any expansion of the existing H-2A nonimmigrant visa category for admitting temporary agricultural farmworkers to the United States by changing the temporary labor certification process or by repealing or lowering existing H-2A requirements.

The showcase session was sponsored by the ABA's Coordinating Committee on Immigration Law, the Section on Individual Rights and Responsibilities, and the Commission on Homelessness and Poverty.

Stephen Yale-Loehr, the moderator, adjunct professor of immigration law at the Cornell Law School, and co-author of Immigration Law and Procedure (Matthew Bender & Company), began the session by having the 35 members of the audience introduce themselves. This exercise revealed that most of the audience members were intimately involved with the issues at hand. Some were farmworker legal advocates, a few had been farmworkers and many were officials of the Department of Labor. In his overview of the issues, Professor Yale-Loehr noted that farmworkers can only find US farmwork for an average 25 weeks a year, and 60 percent earn wages that put them below the poverty line. He cited a recent study that identified farmwork as the most hazardous occupation in Georgia, one of thirteen states that does not require farmers to provide workers compensation for agricultural employees. He also noted that some 25,000 foreign farmworkers with H2-A visas are admitted annually and that the new legislation proposed by grower advocates might expand this number to as many as 300,000 while removing the requirement that H2-A employers provide free housing and advertise first for domestic workers.

Cindy Hahamovitch, Associate Professor of History at the College of William & Mary and author of The Fruits of Their Labor: Atlantic Coast Farmworkers and the Making of Migrant Poverty, 1870-1945 (University of North Carolina Press), then discussed the World War II origins of the H-2A program. She challenged the audience to think carefully about the motivations behind demands for increased labor supply--arguing that the 1942 Emergency Farm Labor Importation program was less a response to labor scarcity than an effort to supplant farmworkers who were organizing. She also warned those involved in legislating improvements in farmworkers' conditions never to assume that protective legislation will be adequately enforced as long as farmworkers are denied the right of collective bargaining. She noted that the wartime program—which later became the Bracero Program--came with strict rules designed to protect temporary farmworkers, guarantees that were quickly set aside as the program grew and became permanent.

Michael Hancock, Team Leader at the Wage & Hour Division of the Department of Labor and a former Executive Director of the Farmworker Justice Fund, provided an overview of the enforcement mechanisms now in use by the Department of Labor. Though New Deal era labor legislation excluded farmworkers, in 1966 Congress expanded the Fair Labor Standards Act to include farmworkers. The Migrant Agricultural Workers Protection Act later added a laundry list of protections, including minimum housing standards, health and safety standards, and the right to use federal courts to enforce the law. He concluded by describing the "Hot goods strategy," which the Wage & Hour Division can use to enforce these rules: if goods are produced in violation of the Fair Labor Standards Act, the Department of Labor can seize the goods, even if they are no longer in the offending grower's possession.

Dolores Huerta, co-founder and Secretary-Treasurer of the United Farm Workers of America, AFL-CIO, Vice-President of the Coalition for Labor Union Women, and Vice-President of the California AFL-CIO, noted that this was her second effort to defeat a bracero program. She lobbied against the original bracero program (which is how the Emergency Labor Importation Program became known on the West coast) in the 1960s. When Public Law 78 ended the bracero program in 1964, she said, farm labor wages more than doubled the following year. She also revealed that the UFW helped some 500,000 ex-braceros get "amnesty" that year, a quarter century before the Immigration Reform and Control Act (IRCA) gave permanent residency status to over a million undocumented farmworkers. She added that H2A workers used to harvest sugar cane were supposed to get amnesty under IRCA, but due to pressure from the sugar industry, they were excluded from the program.

Speaking as an advocate for H2-A employers, Dan Bremer, the owner of Agristaff, a Georgia company which recruits H2-A workers for growers, compared the experience of two migrant farmworkers from Mexico, one an undocumented worker, the other an H2-A worker. Bremer, a former official of the Department of Labor, argued, in effect, that the H2-A program spares workers the indignity and danger of illegal border crossings, long journeys hidden in unsafe vehicles and terrible housing conditions.

Finally, Robert Williams, Director of the Migrant Farmworker Justice Project, argued that we shouldn't be surprised that conditions for farmworkers are so poor in the United States. He noted that agriculture has always been treated as special and that agricultural employers have always had access to forced labor of one kind or another, from indentured servants to slaves to peons to H2-A and undocumented workers who can be threatened with deportation if they challenge their wages or conditions. He pointed out that approximately many millions of people work outside their own country worldwide, and suggested that, before the US creates a much expanded guestworker program, legislators should look abroad for other models.

The panelists' comments were followed by a very lively and sometimes contentious audience discussion. Four days later, the ABA's House of Delegates passed the resolutions recommending stronger enforcement of farmworkers' rights and recommending against the expansion of the H-2A program.

Cindy Hahamovitch ( cxhaha@mail.wm.edu