Laws: January, 2003 - Number #7

Three counties in Southwestern Virginia-- Carroll, Grayson and Floyd -- produce $74 million a year in Christmas trees, holiday garlands and wreaths with the help of about 900 Mexican H-2A workers, and unauthorized Mexicans, between mid-October and early December. Many of the H-2A workers move from tobacco in North Carolina to Virginia, and they are to be paid at least $7.53 an hour and are provided with housing at no charge, but many complain of not receiving proper wages.

Some of the workers are settling in the area with their families; the area's Hispanic population is estimated to be 3,000 to 4,000. One worker noted that, in Mexico, he would earn $150 a month picking oranges, while in Virginia he earns $1,200 a month.

Ten Mexican workers reached a confidential settlement with Miller's Evergreen in Grayson County for not paying them the correct wage or overtime hours in October 2002. Hoyt and Glenna Osborne, who owned a Grayson County motel that was found to be overcharging migrant workers, were ordered to pay $155,000 to 17 workers and $106,000 in attorney's fees in 2002; instead, they moved to Florida and declared bankruptcy. The Osbornes have been cited for more than 170 state health and environmental code violations since 1974.

The suit was brought by a legal aid group that does not collect federal funds, thereby avoiding federal restrictions enacted in 1996 that prevent federally subsidized legal aid groups from filing class-action suits or collecting attorneys' fees. A bill in the Virginia General Assembly in 2001 would have imposed the federal restrictions on legal aid groups that receive state funds.

Sexton Christmas Tree Farms, the largest in the area with 13,000 acres, has not paid overtime wages since 1996, asserting that its workers are farm workers not entitled to overtime, rather than forestry workers, who must be paid overtime wages. The U.S. Department of Labor argues that the workers should be paid overtime for forestry work. Sexton grows Fraser firs on 2,000 acres, and sends 170,000 trees a year to market.

Several types of workers are involved in the garland industry, which is based on white pine because it stays green. Cutters climb trees and cut pine branches for wreaths; most work for labor contractors who pay them piece rate wages, typically five to 10 cents a pound for pine branch limbs. Ropers feed pine branches to the cutters into sewing machine devices that rope the branches together.

Virginia's largest garland company, Roberts Evergreens, acknowledges that many operators do not pay the minimum wage or overtime, and complains that the violators can undercut his prices.

In FY00, some 820 Virginia employers applied for 3,238 H-2A workers, and 250 employers applied for 5,000 H-2B workers. Most of the H-2A workers are employed on tobacco farms.

H-2A workers used to be employed in apple orchards, but apple acreage is shrinking, from 26,000 acres in 1982 to 16,000 acres in 2002; production in 2002 was about 7.5 million bushels, or 460 bushels an acre (www.usapple.org/).