The topic of our latest webinar was driven by the continuing tension between the H-2A farmworker program that brings legal workers, usually from Mexico, into the US, and the various stories coming out about how these workers may be exposed to forced labor risks, including payment of recruitment fees, due to many factors that the US government seems unable to enforce or alleviate.
The produce industry’s new designation as an “essential service” has brought with it an uncomfortable lens on the fact that farm workers may lack the information or support they need to realize their rights and continue the essential work that consumers expect. A critical support for workers’ economic participation is to ensure that they do not bear the costs of recruitment that should rightfully be paid by employers. Access to fair economic opportunity is critical not only to the livelihood of workers but also to preventing human trafficking. Too often, however, workers shoulder the cost of their own recruitment, which makes them increasingly vulnerable to exploitation.
The large economic disparity between Mexico and the US promotes a situation where farm workers and crew bosses have the latitude to get their own “cut” in return for bringing friends and family to work sites in the US. News reports are consistently highlighting where things can go wrong, but not necessarily what has gone right or how employers might respond and change practices to an expected level of professionalism.
We invited four experts, John Farrington, Owner & COO Good Farms; Colin Abbott, Managing Attorney, Statewide Migrant Farmworker Unit, Florida Rural Legal Services Inc (FRLS); Bruce Goldstein, Farmworker Justice; and Hannah Newcomb, Managing Director, Responsible Recruitment Toolkit (RRT) to a panel discussion to bring examples to life.
Hannah Newcomb, Responsible Recruitment Toolkit (RRT), opened the conversation by sharing a global perspective on fee payments and responsible recruitment. She explained that in 2016, The Leadership Group for Responsible Recruitment, an initiative of the Institute for Human Rights and Business, publicly committed to the Employer Pays Principle and its implementation throughout their supply chains. Employer Pays Principle is a commitment to ensure that no worker should pay for a job. RRT provides guidance and training to support businesses to ensure No Recruitment Fees are Paid by Workers, the first of 24 standards of responsible recruitment that RRT has developed in alignment with international ethical standards.
John Farrington began by sharing some practical business examples.
He described the huge amount of investment that goes into crops – planting them, growing the crops and then harvesting. As labor shortages increase, the risk is that the investment cannot be returned because there is no one to do the work that is needed (e.g., the planting, growing, harvesting) to make that happen. And it’s not just a question of anyone doing the work. Farmworkers are highly skilled in what they do. “” There’s a tremendous business case to get good workers – highly trained workers that stay with you. We (GoodFarms) want to be the preferred employer. We want to retain those workers. We’ve got to be a magnet for them,“ said Farrington. GoodFarms uses a just in-time labor plan where highly skilled workers are retained year-round so that they are ready to do the work on just-in time inventory. This allows the company to pay workers higher wages which helps with recruitment and retention. For recruitment, GoodFarms uses CIERTO Global exclusively for farm labor contacting and the H-2A program and no third party recruiters. According to Farrington, “CIERTO is involved in the entire supply chain, not just on our farms, but they go into the villages in communities of origin and are able to connect with families throughout Mexico.” He shared that for GoodFarms transparency at all points is a key pillar for recruitment.
Colin Abbott described how Florida Rural Legal Services Inc (FRLS) works on Florida farms to reach H-2A workers once they have been recruited and arrived in the US. Florida is often a first point of entry for workers before moving on to other states so early outreach and education can be especially impactful. Florida is also unique in the sense that there are laws that allow FRLS to ingress into the locations where farmer workers live enabling them to do one-on-one legal education with farmworkers. FRLS also provides support and education to other stakeholders either directly or indirectly involved in the H-2A regulatory process including growers, FLCs, other agencies, and local communities. Abbott emphasized that the according to the United Nations Office of Drugs and Crime, local legal services agencies on the front lines are among the most effective in combatting human trafficking. The best examples of success is when FRLS is able to establish solid multilateral relationships between regulators, farmworkers, and employers to address issues together, but of course, it takes a long time to build trust in an environment where there is fear of retaliation. He shared FRLS often sees cases where farmworkers have been required to lie at consulate interviews about having paid fees, have had their legal documents confiscated, and receive verbal threats of not being able to return as H-2A workers if they do not pay to stay on the “re-hire list” or worse physical harm to their families back in Mexico.
In-person outreach has, of course, been impacted since the arrival of COVID-19 so a hotline has been established for workers to reach FRLS directly for local legal services.
Our last speaker, Bruce Goldstein, spoke further about the immense pressures that workers face under the H-2A program. Goldstein described two models of employment under the H-2A. The first model is direct hire and employment by a grower. The other model is joint employment by a grower and a farm labor contractor. Under H-2A, workers cannot apply for work visa independently at a consulate. They are selected to receive the visas so from the very start, workers are very dependent on recruiters and employers. Regardless of the model, most workers arrive to the U.S. with debt that has been incurred during recruitment and if they lose their jobs, they still have to pay that debt off in their home country. There’s intense pressure on workers to do whatever the employer says and avoid any risk of losing the job. Additionally, many workers hope that they will be selected to return to the U.S. for work for few seasons which will allow them to make good money to support their families.
“They’re under incredible pressure even without unscrupulous actors and what that tremendous pressure does is it motivates the workers to work to the limits of human endurance for a relatively low wage,” Goldstein explained. “U.S, workers are not going to work to the limits of human endurance. The pace is not sustainable over a career for the kind of money that is being offered. Yet, there is an unlimited number of foreign workers in poor countries around the world who will take that job in that space. And there is an unlimited number because there is no limit on number H-2As per year.”
If both models of employment under the H-2A system ultimately give way to exploitation, what should be done? According to Goldstein, first there needs to be a recognition on the part of consumers, brands, retailers and growers that we, all of us along the supply chain, are all responsible for the way workers are treated. Secondly, the H-2A program needs to change. It needs to allow workers to move freely among employers. Workers need to have contracts where they are free from retaliation, so they do not find themselves forced into difficult productivity demand and labor abuses. We need to grower and labor contractor joint employer liability and joint employer responsibility.
Finally, and maybe most important of all, workers must be given workers a voice and empowered to take control over their work situation.