The Farm Labor Dilemma: H2A, At-Will Workers, Cooperators?

A farmer and DSA member takes a critical look at the farm labor crisis in the US.

Who is going to do farm work? This is a crucial question for US farms and for people who want to eat food grown in this country. Except for the very smallest, all farms need more than one set of hands to get the work done. As a farmer myself, I hear farmer friends talking about the difficulties they are having (along with many other employers) in finding steady, reliable, decently trained local workers. But even when these farmers stretch to offer more than they are earning themselves, few family-scale farmers can afford to pay living wages with a competitive package of benefits. The long history of racism and theft of land from native peoples sets the context for undervaluing food production. US food policy has relegated farming to the role of providing food as cheaply as possible with heavy pressure to cut from the bottom. In response, there is a long history of organizing to improve conditions for farm labor. Farmworkers themselves and even some farmers are creating alternatives. Let’s examine the options available to farmers and steps that can move us towards a system that produces healthy food for all while providing a decent life for the people who do the work.

To look at farm labor in context, it is important to note that the overall farmer share of the consumer dollar has been falling steadily since Congress gradually reduced parity pricing and supply management from the late 1950’s through the 1996 Farm Bill which eliminated parity altogether as corporate capture of global food chains made Washington, DC its command center. In tightly consolidated markets, farmers are price takers. Industrialized farms that produce most of the food sold in the US externalize the social costs of their production methods (chronic illness and obesity, the contamination of water, air and soil, the public cost of social services for full-time workers who still qualify for EBT) making it difficult for farms that use ecological systems to charge prices high enough to cover all the costs of production.  International trade agreements have opened US borders to imports of food from countries with even lower labor costs that undersell anything produced here. The farm crisis of the 1970s continues with greater numbers of mid-sized and smaller farms going out of business than farm incubators and training programs can replenish. The average age of farmers has been rising steadily. And while there are farmer training programs and willing candidates, many young farmers spend 10 years mastering the craft of farming, accessing land and farming resources, only to put down their hoe and Instagram account when they discover that they cannot earn a middle-class living with their farm business.

Harvest of Empire

USDA data collectors estimate that in 2021 there were 2,012,050, down 6,950 farms from 2020. Over half of those farms had sales of less than $10,000 which means that they were not commercial operations. Another 30 percent of all farms sold less than $100,000 – while small, these are actual farm businesses. Most of the farm products sold come from a very small percentage of farms, and these farms are steadily increasing in size: “Average farm size increased in the $1,000,000 or more sales class and decreased or remained unchanged in all other sales classes.” (NAWS, 2021 Summary, Feb. 2022). The system is stacked against midsized and smaller farms.

On these farms, most of the labor is still done by family members and many farms are supported by someone’s off-farm labor. A typical workday on smaller, diversified farms involves a variety of tasks and skills, unlike the large-scale crop farms where harvesting can require long days of repetitive tasks by large crews, or Concentrated Animal Feeding Operations (CAFOs) with thousands of animals where shifts of workers milk, feed and clean up round the clock. This is the work reality for the immigrant farmworkers who do most of the weeding, picking, and packing of vegetables and fruit, and milking of cows in this country. When small-scale organic farmers expand beyond the one- to five-acre size that a single farmer or family can manage, they discover that in most cases skilled farmworkers do this work faster and more reliably than reluctant teenagers or college students from the suburbs.

In general, our culture devalues physical labor and farm work is considered low-skilled, “stoop labor.” Yet farming isn’t unskilled labor. As an appeal for farm employees exclaims, “Hoeing requires agility and practice. Harvesting requires judgment and speed. Marketing requires communications skills and experience.”  Nevertheless, few US citizens raised in cities or suburbs would consider taking jobs on farms, especially at the wages on offer.  Some smaller farms supplement the family’s work by taking on interns (apprentices). While under the “at-will” laws that prevail in 49 of the 50 states, an essentially adversarial relationship is assumed to exist between employers and employees, with interns, by contrast, the farmer has the obligation to instruct.  Interns are preparing themselves for a vocation, or at least learning how to grow their own food.  To manage them fairly means assuming a major responsibility to teach and share what the farmer knows.

The New England Small Farm Institute (NESFI) has developed high-quality resources for training new farmers. Most of the organic farming associations around the country provide support for farmers in the training needed to be good mentors to new farmers. There is rarely any compensation to the farmer for the value of the education provided and labor laws don’t recognize interns as being any different from other hired workers, requiring at least minimum wage. Taking on interns has a broader importance as well since you can’t really learn to do organic farming without hands-on experience. For family-scale organic farming to continue to expand, experienced farmers must learn how to pass on their knowledge. “We need thousands, tens of thousands of new farmers!” exclaimed Paul Bernacky in a presentation on apprenticeships at the 1997 Northeast CSA Conference.  Currently, there are national networks of farm beginnings and farm incubators, however, these programs do not take aim at industrial-scale farms or their labor needs.

As Juan Gonzalez puts it – Latinos are “the harvest of Empire” – this harvest first supplemented and then largely replaced Black labor. In 2020, ERS reported 1.16 million hired farm workers: 78% of them are Hispanic, mainly from Mexico or of Mexican descent. The average wage ranged from $14.62 for crop workers, most of whom are people of color, to $25.58 for managers, most of whom are white. While in 1998, 41% of the harvesters were migrants, following the crops from south to north, by 2022, 85% of crop workers were settled and the percentage of newly arrived workers fell to only 3%. On the largest farms in CA, FL, WA and NC, the farmers don’t hire directly; instead, they hire Farm Labor Contractors who, in turn, hire the workers. Although exact figures of undocumented workers would be hard to determine, ERS reports that close to half of the hired farmworkers are undocumented; farmworker advocates place the number higher.  Knowingly hiring an undocumented worker is a felony. By hiring through Farm Labor Contractors (FLC) or crew leaders, farmers evade “knowing.”

As a result of willing departures, deportations, and competition between the Republicans and Democrats to make the border with Mexico more dangerous to cross, the supply of prime-age workers available for farm work has been shrinking. Thus, despite the added expense, housing requirements and complex paperwork, more farms are turning to the H2A guest worker program, initiated by Immigration Reform and Control Act (IRCA) of 1986, that allows employers to import seasonal workers who have no access to permanent legal status and are not allowed to change jobs. According to the USDA, employers have to make at least a show of hiring locals and “to pay a State-specific minimum wage, which may not be lower than the average wage for crop and livestock workers…known as the Adverse Effect Wage Rate (AEWR).” The stated intent of this wage requirement is to not undermine farmworker wages, though its effect is to set a limit on what domestic workers can demand since, if they ask for more, the employer will shift to guestworkers.

If H2A workers complain or attempt to raise issues, the employer can have them deported and barred from the program for 10 years. FLCs are the major users of H2A labor in field crops, vegetables, melons, fruit and tree crops; in the past ten years, ERS reports an increase of 870%. Individual farmers, even highly respected organic ones, have also been turning to H2A workers. Many of these farmers try to blunt the ethical dilemma by treating the workers with respect, learning their language and even visiting them in their home countries during the off-season. However, as Cindy Hahamovitch documents searingly in her 2013 book No Man’s Land, Jamaican Guestworkers in America and the Global History of Deportable Labor, large-scale sugar, citrus and cotton growers designed and have pushed hard for guestworker programs that insure grower control over workers.  The government issued 48,000 H2A visas in 2005, and 371,619 in 2022.

Immigration Reform Is Not Happening

Farmworkers, farmers and their organizations around the country have been singing the same tune for years on the urgent need for immigration reform. That harmony turns to discord as soon as you get down to details on how to get it done, what to include and what compromises you are willing to make. An added challenge is that labor and immigration are not under the purview of the USDA or included in the Farm Bill. Tremendously effective sustainable agriculture organizations like the National Sustainable Agriculture Coalition (NSAC) focus on USDA and have little energy or resources left over to take on the Department of Labor or the Department of Homeland Security. The basic labor protections for workers that were enacted during the 1930s excluded farmworkers as a compromise with racist politicians during the Jim Crow era. When labor advocates turn to farm work, they rarely have a farming lens, so in their attempts to protect farmworkers, they hurt the very farms they would most like to encourage while the biggest farms escape through loopholes.

Over the past decade there have been a number of legislative proposals to change  immigration with a focus on farm labor regulations.  Carefully negotiated between farm labor advocates and big ag, the AgJobs bill was promising, but did not go anywhere. The “Fairness for Farm Workers Act” (H.R. 3194/S. 4480), re-introduced in June 2022, by Senator Alex Padilla (D-CA) and Rep. Raúl Grijalva (D-AZ), would have ended the discriminatory denial of overtime pay and most remaining minimum wage exemptions for farm workers under the Fair Labor Standards Act (FLSA). It also has not moved. In October 2022, the Department of Labor (DOL) published a final rule amending the regulations of the H2A temporary agricultural work visa program (the “2022 H2A Rule”). The changes made limited improvements to worker protections and the standards that prospective H2A employers, especially FLCs, must meet to participate in the program. The Farm Workforce Modernization Act (H.R. 5038), passed in the House of Representatives twice, but has not moved in the Senate despite Sen. Bennett renaming it the “Affordable and Healthy Food Act.”

This bill has three titles that address a pathway to legal status for some farmworkers who could apply for a temporary “certified agricultural worker” status that allows travel within and outside of the U.S., and expansion of the H2A program to year-round work on farms along with many adjustments to make it easier and cheaper for farmers to apply. The third title makes electronic verification of employment eligibility, known as “e-verify,” mandatory for the entire agricultural sector. No other industry sectors are saddled in this way. The goal is to close all pathways to farm work for undocumented people and to provide due process for authorized workers who are unfairly rejected by the system. However, despite the bill’s assurances of fairness and accuracy, so far, the e-verify system has not reached that high bar, and in its current form makes many misidentifications thus disqualifying qualified workers and the reverse. Contested cases take days to straighten out, threatening new hires. A large farm would have office staff assigned to sort this out, but for small farms, appealing a mistaken finding can turn into a lengthy and expensive legal tangle.

From the employer perspective, Title Two of H.R. 5038 improves the H2A program. Instead of sequential filings via snail mail with three different government agencies, it consolidates the application process into one online filing, allows farmers to stagger labor requests and post their “workers wanted” listings in a single electronic registry. Title Two changes the formula for calculating H2A pay in a way estimated to reduce wages slightly while allowing more flexibility for differentiating among different work assignments, freezes the rate for a year and then caps the percentage increase per year, and allows alternatives to inspected on-farm housing. It sets up a limited number of three-year visas for year-round workers, thus opening the program to dairies and other livestock farms and adds a pilot program for 10,000 workers who will be allowed to change employers.

All of these changes leave untouched the basic premise of the H2A visa that a worker’s legal status is under the control of their employer, creating a power imbalance that too often results in exploitation and violation of workers’ rights especially when farm labor contractors employ so many of the H2A workers. “We don’t want to wait anymore,” Lisa Held quotes Luis Jiménez, a co-founder of the advocacy organization Alianza Agrícola who has worked on dairy farms in Western New York since he came to the U.S. from Mexico more than 18 years ago. “It was an anti-immigrant, racist proposal . . . that didn’t benefit our community.”

Unions, Worker-Driven Social Responsibility, Values-Based Purchasing and High-bar Labels

Changing the conditions of farm labor has proven intractable in a capitalist system where even the essentials of human existence like food are subjected to the profit motive. Yet farmworkers and their allies are not giving up. At least four different approaches have emerged like a series of living experiments chipping away at the injustices to test if anything short of revolution can make a difference.

For three decades, the United Farm Workers (UFW) and the Farm Labor Organizing Committee (FLOC) have been unionizing farmworkers and even H2A workers, yet just over one percent  of farmworkers belong to unions where they benefit from collective bargaining for clear contracts and health programs. Familias Unidas por la Justicia is a new, independent union of 500 Washington State berry pickers.

Taking an approach inspired by the UFW grape boycott, the Coalition of Immokalee Farmworkers (CIW) has empowered “Worker-Driven Social Responsibility,” effectively shaming some of the biggest fast-food brands into forcing the farms that supply them to pay a penny more for each pound of tomatoes.  The farms must also sign contracts that set out standards of behavior under penalty of losing these markets. Shoppers can support this effort by looking for their Fair Food label. Mentored by CIW, Vermont Migrant Justice has forced Ben and Jerry’s to require the dairies in their supply chain to sign contracts with Milk with Dignity. These programs have raised wages, improved worker housing and all but eliminated some of the worst abuses of sexual harassment, human trafficking, and wage theft for thousands of farmworkers.

UFW is also a party to the Equitable Food Initiative (EFI) with non-profit advocacy groups, Pesticide Action Network and Oxfam, a few large farms, and the retailer, Costco. On EFI farms, management consults with leadership teams of workers to solve problems that stand in the way of food safety. “Responsibly Grown, Farmworker Assured” are the proud words on the EFI label.

A trio of organizations, the Good Food Purchasing Program, Healthcare Without Harm and the Real Food Challenge, are collaborating on values-based purchasing standards for institutional food procurement. A valued workforce is one of the five core values.  Institutions that sign on set purchasing goals and agree to make incremental improvements. It is too soon to evaluate results for farmworkers, but many institutions are agreeing to prioritize values instead of always going for the lowest bid.  The Good Food NY bill currently before the NYS legislature would allow municipalities and public institutions to pay up to 10 percent extra for procuring food that aligns with at least one of the Good Food Purchasing Program values.

Yet another approach defines the work of the Agricultural Justice Project (AJP) and Regenerative Organic Certification (ROC). These voluntary programs appeal to organic farms and food businesses to add the claim of fairness to the National Organic Program Certified Organic label (full disclosure – I am a founding member of the AJP Board). Dedicated to keeping the principle of fairness in organic food chains through fair prices to farmers and high labor standards, AJP maintains the Food Justice Certified label and provides technical assistance to farmers who want to adopt fair labor practices such as recognition of their workers’ rights to organize, living wages, firing only for just cause, and conflict resolution free from threat of retaliation. ROC has similar labor standards but focuses its campaign on regenerating soil health through organic practices.

Farmer Action

In the role of boss, many organic farmers retain their sense of social justice and seek ways to make the working conditions as decent as possible within the tight budget constraints that they face. The farmers at Roxbury place labor standards next to organic practices as their top priorities. Farmer Jean-Paul Courtens has written, “We are interested in creating fair working conditions and providing fair wages to our workers as we feel this is as important as applying organic methods to our land.”

Farmers also have the choice of limiting the size of their farms to what they can manage with other farmers who are cooperators, not employees, empowering everyone working on the farm to participate in decisions as worker-owners or as a farmer cooperative. This is the path taken by farms like Rock Steady in Millerton, NY, Letterbox Farm Collective in Hudson, NY, with many other examples around the country. The Federation of Southern Coops that grew out of the Civil Rights movement of the 1960’s, includes among its members worker-owned farms and farmer cooperatives as well as marketing cooperatives. With support from Community to Community Development, the farmworker members of Familias Unidas por la Justicia have been able to access land for a cooperative farm, Tierra y Libertad, where for five years they have been growing organic berries. They hope to inspire and assist other farmworkers in forming cooperative farms.

When most of us eat, we rarely think about the many workers who have put their time and energies into planting, nurturing, harvesting, packing, shipping and distributing the food. Becoming aware of the many hopeful alternatives underway opens up many paths for taking action to transform the existing extractive food system. We can change our individual shopping and eating choices to “vote with our forks.” Those are important first steps, though clearly inadequate and based on a shallow analysis that swallows the line  that “consumers” call the shots in the food system. To go deeper, we can support or even join in farmworker-led campaigns like the CIW appeal to boycott Wendy’s and the VT. Migrant Justice call to pressure Hannafords’ into signing on with Milk with Dignity. We can add our voices to campaigns for legislative reform and let our representatives know that we support ending the exemption of farm workers from the NLRA and the FLSA, and that we want a moratorium on concentration and a revival of stringent antitrust laws.

As we appreciate the effort that goes into what we eat, we discover that the food actually tastes better when we feel secure in the knowledge that the workers up and down the food chain have enjoyed respectful treatment, decent salaries and safe working conditions.